Denied a solicitor: Is it a defence to drink driving?
By MAJ Law on 26 April 2023
What happens if you are denied Legal Advice at the Police Station?
If you are arrested for drink driving and taken to the police station, you have the right to legal representation under The Police and Criminal Evidence Act 1984 (PACE). Under Section 58 PACE 1984, a suspect has the right to a solicitor at any time. A solicitor can provide you with advice regarding the alleged offence and the options that are available. If the police want to formally interview you regarding an alleged offence, they must explain that you have the right to be represented in the interview by a solicitor. A solicitor would normally attend police custody and would be present in the interview room with you.
A person arrested and held in custody in a police station or other premises shall be entitled, if he so requests, to consult a solicitor privately at any time.
The Evidential Test
After you have been arrested for drink driving, the police will transport you to a police station where an evidential sample of breath will be requested. It is important that you are checked in at the custody desk and have all of your details taken before you are required to provide two samples of breath for evidential purposes. It is here when you should be told about the automatic right to legal representation. The police won't allow you to speak with a solicitor if they reasonably suspect that you are only requesting a solicitor in order to delay the evidential process. The police will assume this for almost every drink driving suspect they deal with. This is a reasonable request by a suspect who has never been in police custody before. The police should not deny you access to a solicitor, but instead explain that you are entitled to a solicitor but only after the evidential procedure has been conducted.
The police will want an evidential sample from you as quickly as possible. The quicker you are tested by the police, the higher the breath alcohol reading is going to be. This is where the police can and will cut corners.
Another common occurrence is when you request a solicitor, but the police explain that you would have to wait for a solicitor to arrive. The police will often say that this may take hours or longer and will convince you otherwise by saying this. The police cannot deter a suspect from obtaining legal advice in the police station. This would likely amount to a breach of their Code of Practice!
Video: Don't Accept the Breath Reading!
Police Interview
A formal police interview is not normally standard practice with a straight forward drink driving allegation. Here are some common drink driving case examples that may not require a police interview:
- Where the police have witnessed you driving
- When the police have a statement from an independent person witnessing you as the driver
- When you admit to driving the vehicle whilst cautioned
- The police are too busy to conduct the interview
- There are no duty solicitors available to attend the interview (this is common with duty solicitors)
- There is a problem with the recording equipment in the interview room (interviews are audio and visually recorded)
In other circumstances, (perhaps where you had an accident and the police have not witnessed you in a vehicle) the police will often conduct a formal interview. It is important that you are made aware of your right to legal representation before the interview takes place. The police will often make out that the interview is standard practice. The police are not allowed to tell you that you don't need a solicitor. This would be a breach of Code C of PACE.
Prior to a police interview taking place, you have the right to consult your solicitor in private. If this is in the police station, you'll be locked in a conference room with your solicitor to review the pre-interview disclosure (if the police provide any). It is here where your solicitor should explain your options. It is vital that the correct option is chosen to give you the best chance at avoiding a drink driving conviction. If a defence is outlined based on what you tell your solicitor before the interview, the solicitor may then advise you to speak in the interview and raise this defence. If it is simply an interview to confirm who was driving, the advice may be to say nothing - i.e. a 'no comment' interview. A prepared statement can also be considered. This is a written statement from you which would normally be read out by your solicitor in the interview room. The police may still ask you questions - the solicitor may advise you to say 'no comment' to any questions asked after a prepared statement is put forward.
Adverse Inference
It is always worth considering the impact that a no comment interview may have on the case against you. The Prosecution may seek to introduce your 'no comment' interview as evidence against you in the case. If you seek to rely on a fact for your defence that you failed to mention when being questioned by the police, that is where an adverse inference can arise. This is provided by Section 34 of the Criminal Justice and Public Order Act (CJPOA) 1994. This is rare in the Magistrates' Court and should only be used by the Prosecution where they have asked the court to set a direction to allow an adverse inference to be admitted.
Case Example
Robin had been invloved in a road traffic collision in March 2022. The police arrived on scene and carried out a breath test. Robin was twice over the legal limit for alcohol. As a result of his injuries Robin was transported to the hospital. At hospital, the police took a sample of blood and left Robin to deal with his injuries. A year later, having heard nothing from the police Robin was pulled over by the police on his commute to work and was arrested for failing to attend the Magistrates' Court for a drink driving charge. The police got his address wrong when he was originally arrested so all of the paperwork went to a different address! Robin was kept overnight in police custody before being transported to the Magistrates' Court the next morning. Robin requested to speak with a solicitor at the police station. No solicitor was requested by the custody sergeant. When Robin arrived at court, again he requested a solicitor. At no point did anyone advise Robin of his automatic right to legal representation. He was denied a solicitor in custody as well as in court. Luckily, Robin had the initiative to plead not guilty as he understood something was not right. Robin then called our office and spoke with us regarding his case. We explained that he had the right to speak in private with a solicitor whilst in custody and at court and explained what steps we would need to take to defend the allegation this basis.
We prepared a skeleton argument setting out the right to a fair trial under Article 6 of The European Convention of Human Right (ECHR). In our argument, we explained that if Robin's case was listed for a trial, a fair trial could not take place because he was not afforded legal representation at the both the police station and the Magistrates' Court. The court listed a hearing to consider our argument and it was upheld. The District Judge at the court hearing forced the Prosecution offer no evidence and the case was dropped. This is an example of how seriously the court will consider cases where a suspect has been denied access to legal representation.
What is an Appropriate Adult?
When you are taken to custody and classed as a person who is vulnerable, the police should offer you an appropriate adult. This is not a solicitor, but someone who can attend police custody in order to explain things to you in terms that you are able to understand. This is particularly important where someone suffers with mental health conditions. Someone with mental health may not understand the procedures that police have to conduct in a drink driving allegation. This is where the need for an appropriate adult should be considered. This also applies for police interview. Ultimately, the police decide whether an appropriate adult is provided by consulting the guidance in Code C of PACE.
Next Steps
If you were not offered a solicitor or you were refused a solicitor in custody or at court, contact us for free advice regarding your case. There may be the option of making representations to the Police or the Prosecution Service to invite them to withdraw the case against you.
You may also want to consider our previous blog which discusses in detail the role of a solicitor in a drink driving case.