In certain circumstances, the evidence of an evidential breath test procedure could be admitted, although a request for legal advice had been made but no attempt was made to secure the provision of advice from a solicitor to the appellant prior to the commencement of the breath test procedure.Appeal by way of case started from the decision of District Judge Robin McPhee sitting at Highbury Corner Magistrates' Court to admit certain evidence. On 4 November 2002 at 5.30 am, the appellant was arrested at the scene of a road traffic accident for failing to provide a breath specimen pursuant to s.6(1) Road Traffic Act 1988. The appellant was then taken to a local hospital to undergo a medical examination but was discharged. The appellant arrived at Islington Police Station at 7.25 am, where he was detained at 7.31 am when the process of booking him in by the custody sergeant began. At 7.40 am the appellant requested legal advice under a pro forma legal advice slip. A second police sergeant from another station was present for the purpose of administering a breath test. The appellant refused to provide two specimens of breath for analysis on two occasions. The police sergeant administering the procedure concluded it at 7.50 am. The appellant's request for a duty solicitor was logged at the relevant centre at 7.53 am and the appellant's case was accepted at 7.55 am. At 8 am the duty solicitor contacted the appellant. The appellant was subsequently charged with offences under the Road Traffic Act 1988. On 30 January 2003 District Judge Robin McPhee sitting in Highbury Corner Magistrates' Court refused to exclude the evidence of the appellant's refusal to provide a breath sample notwithstanding the fact the appellant had requested legal advice prior to the test being administered. The appellant appealed and submitted that: (i) considering the case of Kennedy v CPS (2002) EWHC 2297, the evidence of the breath test procedure should have been excluded in its entirety by virtue of s.78 Police and Criminal Evidence Act 1984; (ii) as there were two sergeants involved, the call for the duty solicitor could have been made before the requirement was made to provide two specimens of breath for analysis; and (iii) that the delay in contacting a solicitor was avoidable and so the delay was unreasonable and in breach of s.58 of the 1984 and the codes of practice. In addition the appellant submitted that any discretion exercisable pursuant to s.78 of the 1984 should be exercised in the appellant's favour as the prejudicial effect of the admission of evidence of the appellant's refusal to provide two specimens of breath for a breath test outweighed the probative value of that evidence.HELD: (1) The judge was correct in law, in refusing to exclude the evidence of the evidential breath test procedure and the refusal of the appellant to provide two specimens of breath as required, in circumstances where notwithstanding a request for legal advice no attempt was made to secure the provision of advice from a solicitor to the appellant prior to the commencement of the breath test procedure. (2) It was a question of fact and degree in individual cases whether a custody officer had acted without delay in providing legal advice for an arrested person who had requested legal advice. (3) In the present case the police had to allow the appellant to contact a solicitor as soon as was practicable at that time. What was practicable had to be considered from the point of view of those present at that time. (4) There had in the present case been significant delay prior to the commencement of the breath test procedure. The appellant had not requested any particular solicitor nor was there any solicitor immediately available in the station. In all those circumstances any delay in the present case was not unreasonable and in addition had not been significant.Appeal dismissed.