Motoring Offences and the Importance of Legal Advice

Drivers should think carefully when attending a police station and requesting legal advice as it shows that even a fundamental breach of the right to take legal advice will not always result in the case being thrown out.

Gearing v. DPP in the High Court of Justice

Miss Gearing was observed at 12.30 a.m. in the morning driving erratically.  She was stopped by the Police and failed a roadside breath test.  She was arrested and taken to the Police Station where she arrived some time later.  She indicated that she wished to speak to a solicitor in order to obtain legal advice.  She declined to sign the custody record and she indicated that she wanted to wait until she had spoken to a solicitor before taking a breath test.  She was told by the Police officers that the taking of a breath test would not be delayed and that process would continue.  In response Miss Gearing further requested a delay in the test until she had spoken to a solicitor.  Prior to the test being undertaken she asked for advice some seven or eight times both directly and indirectly.

[At this point most solicitors would consider this to be a fundamental breach and would expect certain consequences to follow because of the failure to provide access to a lawyer.]

Miss Gearing declined to provide two specimens of breath for analysis and at this stage the police did attempt to contact a solicitor.  This was the first time that the Police had done so and  the solicitor then spoke to Gearing and to a police officer and advised that Miss Gearing was willing to provide a sample but no sample was in fact taken. Miss Gearing was then charged with an offence of failing to provide a specimen of breath and she was convicted of that charge some months later by the Magistrates.

It was argued that, due to there being a substantial breach in the right to have legal advice under the Police and Criminal Evidence Act 1984 and the Codes of Practice, evidence of the breath test procedure should be excluded, although the Court found that there had been a substantial delay in the provision of legal advice which could have had the effect of excluding the breath test procedure found against Miss Gearing due to her particular circumstances.  They however implied that, had she not known she had been drinking, or if she was trying to advance a particular defence at that stage when she made the request for legal advice, then the outcome may have been a little different.  Quite possibly the breath test procedure would have been excluded and Miss Gearing’s conviction would have been quashed.

The lessons that we learn from this case is that if you think you have a defence no matters how obscure then you should advance it and if the police then fail to provide timely legal advice then it is at point a legal argument should be advanced that could affect the outcome of the case.

If you should have any further questions or queries then please contact a member of the Motoring Law team on 0845 402 0001.