England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM ORDER OF HIS HONOUR JUDGE TOWNEND
(PRESTON COUNTY COURT)

		Royal Courts of Justice Strand London WC2 Tuesday, 30th October 2001

1. LORD JUSTICE KAY: This is an appeal from the decision on a preliminary issue made by His Honour Judge Townend, sitting at Preston County Court, on 18th December 2000. The appeal is brought following permission granted by the judge himself.
2. The action is one for damages for assault and false imprisonment arising out of the purported arrest of the claimant for driving a motor vehicle whilst disqualified from driving. He was arrested on 10th April 1997 by an officer of the Lancashire Constabulary, Woman Police Constable Large. The claimant was subsequently charged with the offence but was acquitted by the justices. Throughout he denied that he had ever been driving the car in question and contended that the officer was mistaken in her identification. The judge was asked to rule on a preliminary point of law relating to the lawfulness of the arrest based upon the defendant's version of facts being accepted.
3. The case and issue were put in the following terms:

"The defendant's case is that WPC Large observed the claimant `jogging' away from the parked Ford Escort at 40 Fielding Crescent when he was approximately four houses away from the vehicle. She followed him and purported to arrest him approximately outside the house of Ms. Willoughby and Mr Slater (on the opposite side of the road) at the position marked on the plan.

Assuming an honest belief as to the identity of the claimant when driving the Escort and taking these facts as read, was there a power of arrest under Section 103 (3) of the Road Traffic Act 1988?"

4. The statement of the facts omitted the earlier part of the police officer's account. It is necessary to read the relevant part of her witness statement, starting at paragraph 3:

"3. On Thursday the 10th April 1997 I was working a 9.00 am - 5.00 pm tour of duty on my area. At about 1.30 pm I was on mobile patrol in a marked police vehicle travelling along Morley Avenue, Blackburn in the direction of Fielding Crescent. As I approached the junction with Fielding Crescent a vehicle turned left into Morley Avenue from Fielding Crescent. Morley Avenue is narrow so I moved over to my left and I came to a stop to let the vehicle pass by me. The car drove slowly towards me. I looked at the driver and I saw it was Craig Shackleton. I knew Craig very well as he lives in Fielding Crescent and I had spoken to him on several occasions in the past. Craig had no alternative other than to continue driving towards me but he ducked down slightly as he approached. He did not duck down so much that he could not steer the car and so I could still clearly see him. He passed within about three feet of me and I looked straight at him. He on the other hand avoided making eye contact. The car was a Ford Escort registration number DDH 846Y and I had often seen it parked outside Craig's home address at 40 Fielding Crescent. In fact I had seen him working on the vehicle under the bonnet on occasion.

4. I knew that Craig had been a disqualified driver but I did not know if his disqualification was still current. I radioed through for a check as he drove past me. When he had gone past me I moved off and I turned left into Fielding Crescent and then left into Green Lane and left once again into Fielding Crescent. I saw the car DDH 846Y parked outside 40 Fielding Crescent facing towards me. The driver's window was down. I also saw Craig jogging away from the car. He was only a few yards away from the car when I first saw him and he had his back to me.

5. I drove slowly along behind him awaiting the result of my radio check as to whether he was disqualified or not. After a short while I was informed that Craig was still disqualified so I stopped my vehicle and I got out and I shouted to Craig to attract his attention. He stopped and immediately said, `What do you fucking want?' in a loud aggressive manner."

5. Section 103 (3) of the Road Traffic Act 1988 (the "1988 Act") provides:

"A constable in uniform may arrest without warrant any person driving a motor vehicle on a road whom he has reasonable cause to suspect of being disqualified from driving a motor vehicle."

6. The argument advanced by Mr Osman on behalf of the appellant was that not only must the officer's reasonable cause to suspect a person of disqualified driving arise during the course of the driving but that person must be driving at the time of the purported arrest. The judge was referred to Edkins v Knowles [1973] 1 QB 748, a decision of the Divisional Court. That was a case dealing with an offence against Section 2 (1) of the Road Safety Act 1967 (the "1967 Act") which provided:

"A constable in uniform may require any person driving or attempting to drive a motor vehicle on a road or other public place to provide a specimen of breath for a breath test there or nearby, if the constable had reasonable cause

(a) to suspect him of having alcohol in his body, or

(b) to suspect him of having committed a traffic offence while the vehicle was in motion provided that no requirement may be made by virtue of paragraph (b) of this subsection unless it is made as soon as was reasonably practicable after the commission of the traffic offence."

7. The courts were required to consider two related questions in respect of that section. First, whether the suspicion under (a) or (b) had to arise while the person was "driving or attempting to drive", and, second, whether the requirement for a specimen of breath had to be made while the person was still "driving or attempting to drive".
8. The first question was answered by the House of Lords in Pinner v Everett [1969] 1 WLR 1266 when it was held that no specimen of breath could be required if the suspicion did not arise when the person was driving or attempting to drive although an extended meaning was given to that expression. That extended meaning was subsequently developed by the courts and the effects of the decisions were summarised by Griffith J. in giving the judgment of the court in Edkins v Knowles (page 756 D):

"Whether the motorist is driving at the relevant time is a question of fact to be determined by the justices, directing themselves to the same considerations as a judge would direct a jury in his summing up. Pinner v Everett ..... and other decisions provide guidance as to the considerations that are relevant in determining this question. The court has considered all these decisions and it is not necessary to lengthen this judgment by an elaborate citation of authority. While it is not possible to reconcile all the decisions one with another, the court is satisfied that their collective effect may be summarised as follows:

1. The vehicle does not have to be in motion; there will always be a brief interval of time after the vehicle has been brought to rest and before the motorist has completed those operations necessarily connected with driving, such as applying the handbrake, switching off the ignition and securing this vehicle, during which he must still be considered to be driving.

2. When a motorist stops before he has completed his journey he may still be driving; an obvious example is when he is halted at traffic lights. Each case will depend its own facts, but generally the following questions will be relevant: (a) What was the purpose of the stop? If it is connected with the driving, and not for some purpose unconnected with the driving, the facts may justify a finding that the driving is continuing although the vehicle is stationary. (b) How long was he stopped? The longer he is stopped the more difficult it becomes to regard him as still driving. (c) Did he get out of the vehicle? If he remains in the vehicle it is some though not a conclusive indication that he is still driving.

3. If a motorist is stopped by a constable in uniform who immediately forms the suspicion that the motorist has alcohol in his body, the motorist should be regarded as still driving at the moment when the suspicion is formed; but if an appreciable time elapses before the constable's suspicion is aroused it will be a question of fact and degree whether the motorist is still to be considered as driving at that time.

4. When a motorist has arrived at the end of his journey, then subject to the brief interval referred to in 1 above he can no longer be regarded as driving.

5. When a motorist has been effectively prevented or persuaded from driving he can no longer be considered to be driving."

9. It was submitted on behalf of the appellant that this approach was equally applicable to the question whether a person could be arrested pursuant to Section 103 of the 1988 Act. Thus, an officer could only arrest a person while that person was driving or attempting to drive within the extended meaning summarised by Griffith J. Once a person had finished driving in that sense the only option available to an officer was to proceed by way of summons for the offence.
10. On behalf of the respondent it was submitted that provided the arrest was effected as part of a continuous chain of events or, put otherwise, that there was a degree of contemporaneity, the arrest would be lawful, notwithstanding that the physical act of driving was at an end.
11. The judge concluded that on the factual basis which he was asked to consider applying either test would have led to the same conclusion - that the arrest was lawful. With every respect to the judge, it is not immediately obvious that the appellant's contentions could lead to that conclusion. However, neither counsel referred to a distinct and more immediately relevant line of authority that might have produced a clearer answer.
12. The second question arising from Section 2 (1) of the 1967 Act, referred to above, related not to whether the suspicion needed to arise whilst the person was driving but whether the requirement to provide a specimen of breath needed to be made while the person was still driving. That question was considered by the Court of Appeal in R v Jones (EJM) [1970] 1 WLR 211. In the course of giving the judgment of the court, Sachs LJ referred to an argument advanced by counsel for the Crown that is highly pertinent to the issue in the present case. At page 216 B he said:

"He brought to the attention of this court a powerful argument upon the basis of other statutory provisions and authorities not previously brought to the attention of any court dealing with this point. These related to a power of arrest - a more formidable power than that of requiring a breath test. He referred the court to section 30 of the Road Safety Act, 1967, itself which reads:

`A constable in uniform may arrest without warrant any person driving or attempting to drive a motor vehicle on a road whom he has reasonable cause to suspect of being disqualified for holding or obtaining a licence granted under Part II of the principal Act.' No one, he pointed out, has suggested that if the driver dodges off the road when pursued he cannot be arrested nor could it be so held without producing absurd results.

In that behalf Mr Williams, moreover, cogently referred us to a line of decisions in relation to powers of arrest and to the rule often referred to as that of fresh pursuit, which has been part of the law of this country for well over a century. For instance, in Hanway v Boultbee (1830) 4 C & P 350 and again in Griffith v Taylor (1876) 2 CPD 194 the court had to consider powers of arrest given by statutes which contained provisions worded even more strictly than the above section 30. The relevant words were in each case -

`Any person found committing any offence punishable ..... by virtue of this Act ..... may be immediately apprehended without warrant." (cf. Larceny Act 1861, section 103).'

The courts in each instance insisted on giving a reasonable construction to the statutes (see the judgment of Lord Cockburn CL in Griffith v Taylor 2 CPD 194, 202) although "immediately" was such a strong word. In one case - Hanway v Boultbee - an arrest a mile from the scene of the offence was upheld. In the earliest case - R v Howarth (1828) 1 Moody CC 207 - the judges spoke of all the material matters being part of "one transaction" - a convenient phrase.

That this construction of the above-cited provisions of the relevant statutes embodied sound sense is clear - otherwise the obvious intentions of the legislature would have been largely and wrongly frustrated. That the resulting rule is by no means obsolete can be shown by reference to current standard works (e.g. Clerk & Lindsell on Torts, 13th ed. (1969), paragraphs 729-730 and Halsbury's Laws of England, 3rd ed. (1955) Vol 10 pages 351 and 352) and the authorities there cited. That it should be applied to Section 30 of the Act of 1967 is manifest."

13. Section 30 of the 1967 Act is the direct predecessor of Section 103 (3) of the 1988 Act. The subsequent history of the provision can be traced. Section 30 of the 1967 Act was replaced initially by Section 100 of the Road Traffic Act 1972 (the "1972 Act"). When, in 1984, most existing statutory rights of arrest were abolished in favour of new provisions contained in the Police and Criminal Evidence Act 1984, the right of arrest under Section 100 of the 1972 Act was specifically preserved by Section 26 and Schedule 2. Section 100, in its turn, was replaced by Section 103 (3) of the 1988 Act, which was in identical terms. Hence, unless in some way either the clear view of the Court of Appeal in R v Jones is wrong or the law has since changed, the rule of fresh pursuit applies to Section 103 (3) of the 1988 Act.
14. R v Jones was followed by the Divisional Court in Sasson v Taverner [1970] 1 WLR 338. In giving the judgment of the court Bridge J., referring to the earlier decision, said at page 341 G:

"Their Lordships refer to a number of decisions on statutes conferring a power to arrest without warrant `any person found committing' certain offences. Such words have received a liberal rather than a literal construction so as to permit a valid arrest after a `fresh pursuit' of the offender caught red-handed where the observed commission of the offence, the pursuit and the arrest can fairly be regarded as one transaction. If this approach, so runs the reasoning, is permissible in construing a statutory power of immediate arrest, how much more so in construing the less Draconian power to require a suspect to take a breath test followed by a power of arrest if, but only if, the test proves positive."

15. The court concluded that where the suspicion that a driver had committed a moving driving offence arose while the vehicle was in motion, the requirement to provide a specimen could be made after a "fresh pursuit" since "the whole sequence of events was so closely related as to form a single transaction".
16. These issues were considered by the House of Lords in R v Sakhuja [1973] AC 152. Each of their Lordships considered and approved the approach in both R v Jones and Sasson v Taverner and reached the same conclusion as that arrived at by the Divisional Court in Sasson v Taverner.
17. Lord Hailsham, at pages 166 E and 167 C, approved of the approach of Sachs LJ in R v Jones. He made clear that the requirement to provide a specimen of breath could be made of -

"one who has stopped driving and has been continuously pursued since the act of driving referred to."

18. At page 181 E to F Viscount Dilhorne again cited with approval the summary of the law relating to fresh pursuit given by Sachs LJ. At page 181 C he referred to Section 30 of the Road Traffic Act 1967 and said:

"In the light of the construction hitherto given to section 2 (1), it would seem to follow that an arrest under this section would be unlawful unless made before the driver had ceased to drive or attempt to drive. This cannot be right. Parliament cannot have meant the power of arrest to have been so restricted. In this section, the words, `driving or attempting to drive' are, in my opinion, clearly used in a descriptive sense and not to impose a time limit on when an arrest under this section can lawfully be made."

19. Lord Pearson at pages 186 A to 187 A set out the reasoning of Bridge J. in Sasson v Taverner, including his reliance on R v Jones, and concluded that he found "the reasoning of that judgment convincing". Lord Cross at page 194 D to E again placed reliance on the analogy with Section 30 of the 1967 Act and added:

"I do not believe that it would occur for a moment to any educated layman reading those words"

(i.e. Section 30 of the 1987 Act)

"that if a constable saw a man whom he knew to be disqualified driving up to his front door he could only lawfully arrest him if he succeeded in performing the operation before the car came to a halt or at all events before the man switched off the engine and got out of it."

20. There is no suggestion made to us that the law has changed and, accordingly, this very powerful body of authority would seem firmly to establish the position that an officer may arrest someone who he or she sees driving a vehicle and suspects to be a disqualified driver provided the arrest is part of a continuous process from that point of time on. Where the officer pursues such a driver the fact that the driver has stopped the vehicle and got out of the car and started to move away will not render an arrest of the person unlawful so long as nothing has happened that could be said to have broken the chain of continuity so that the events could not be said to form part of a single transaction.
21. On the version of events put forward by the police officer there can be no doubt that, if they were accepted to be right, what she describes is one continuous chain of events starting with the sighting of the appellant driving the vehicle followed by her moving so as to catch up with the appellant with a view to effecting an arrest and then, having satisfied herself that her suspicion was in fact true, moving in to arrest the person. On that view it seems plain to me that the judge was right to conclude that if those facts were established to be right the arrest was a lawful arrest. It is not suggested that any other version of events that could be put forward demonstrates any break in the chain of continuity.
22. The appellant's case is that he was not driving. It is not suggested that the version put forward by the officer as to her movements from the moment when she saw the car is not right or, save for some minor discrepancy as to the distance the appellant was from the car when she arrived on the scene, is there any dispute about that part of her evidence. In those circumstances it seems to me that so far as this issue is concerned, provided the relevant evidence does establish that the appellant was driving the vehicle and that the officer had the necessary suspicions while he was driving the vehicle, then nothing in events thereafter could in any way affect the lawfulness of the subsequent arrest.
23. One matter raised in the course of argument merits some mention. Lord Justice May raised with Mr Wood on behalf of the respondent the issue as to whether an honest belief by the police officer that the person driving the vehicle was the appellant would be sufficient for his purposes. Mr Wood contends that Section 103 (3) would be satisfied if an officer had reasonable grounds for suspecting that the person he was arresting had been the driver and had also had reasonable cause to suspect that the person was at the time disqualified from driving a motor vehicle. For my part I would be surprised if an arrest pursuant to Section 103 (3) could be a lawful arrest if, in fact, the person being arrested was not the driver. That seems to me manifest from the wording of the section. However no detailed argument has been addressed to that matter nor have we been able to look at such authorities, if any, as may assist on this matter.
24. In my judgment, it would be wrong to resolve that issue although, as I made clear, my initial reaction is that the contention that a person may be lawfully arrested under this section if they have not been driving is wrong.
25. For those reasons I have come to the conclusion that the appeal brought against the decision of the judge must fail. His conclusions were undoubtedly right although his reasoning may not have led directly to the result that I find to be the proper conclusion of these matters. In those circumstances I would refuse this appeal.
26. LORD JUSTICE MAY: I agree that this appeal should be dismissed for the reasons that my Lord has given. Once the law, as he has explained it, is understood, it looks as if the main issue in this part of the case is and always was whether it was the claimant who was driving the Ford Escort when WPC Large observed it in Morley Avenue and subsequently.
27. On the face of it, as my Lord has said, by Section 103 (3) of the Road Traffic Act 1988 it seems to me that the power of arrest depends on the person to be arrested in fact being the driver and that a reasonable belief by the arresting officer that the person was the driver will not do. I put it in these terms because that question does not arise on this appeal and neither counsel nor the court has researched authority on the point. Mr Graham Wood has indicated that he would wish to contend that a reasonable belief by the officer that the claimant was the driver would be enough, but he was not able to point to any authority in support of that submission. If it is a pure question of fact, the arresting officer's belief might subsequently be relevant to the question of damages but not, if the apparent meaning of the section is correct, to the lawfulness of the arrest.
28. The claimant says that he was not the driver when WPC Large saw. There is a statement from Terence Parker that it was he who was driving. That issue is a matter for the jury. It seems to me - with the benefit of hindsight, I acknowledge - that the efficient conduct of these proceedings would have had that issue and probably other remaining issues of fact decided straightaway.
29. Mr Graham Wood suggests that this case in the county court would be likely to take three or four days. Accepting that that is his experience, I feel bound to say that a culture that has this result ought to change and that cases such as this ought not to take anything like as long as that. Short issues of fact with three short witnesses only ought to be disposed of in a day even with the time which a jury trial takes. Granted that rulings of law, such as have now come to this court, have to be made, it will often be sensible and efficient to have the facts determined before any appeal on the point of law is proceeded with. After all, the facts may render the point of law irrelevant or put it in a different factual context.
30. LORD JUSTICE WARD: I agree with both judgments. In a family who prefers to remain anonymous for this purpose there is a well known saying that when father decides to take a short cut it ends up being a long cut. That was shown in this case and in many cases where a preliminary issue is taken without adequate regard to the brevity of the real issues as my Lord, Lord Justice May, has outlined them.
31. I am sorry that the authorities uncovered by the industries of Lord Justice Kay did not appear to have been discovered by counsel or drawn to the judge's attention. Had they been so, Mr Osman, who acknowledged to us that, in the light of those authorities, he was having difficulty in maintaining his appeal, would have been bound to accept that the point taken was utterly hopeless and the journey of short cut would never have been undertaken in the first place.
32. I hope some sense of reality is injected into this litigation before a great deal more money is wasted by its further conduct. I agree that the appeal must be dismissed.
Order: Appeal dismissed with costs not to be enforced except by way of set off or otherwise not without permission of court below