England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT

		Royal Courts of Justice Strand London WC2
		23 May 2005

1. MR JUSTICE GIBBS: This is an appeal by way of case stated against the decision of the Crawley Magistrates' Court on 13 September 2004. The charge of which the appellant was convicted was that of driving with excess alcohol contrary to section 5(1)(a) of the Road Traffic Act 1988.
2. The facts of the case in brief were these. The appellant was a serving officer of the British Transport Police, and on the date of the alleged offence, namely 24 April 2004, he went to Crawley Police Station whilst on duty in order to deal with a detainee, the time being around 11 o'clock in the morning. An acting police sergeant noticed the appellant, as he thought, smelling of alcohol, and no doubt since the appellant was a serving police officer, the sergeant decided to seek the services of a senior colleague, Mr Hodnett, a police inspector, and together they approached the appellant. A conversation then took place. An important issues in the case is whether that conversation constituted an interview for the purposes of the Code of Practice under the Police and Criminal Evidence Act 1984. To that issue I shall return shortly.
3. Inspector Hodnett asked the appellant, "You smell heavily of intoxicating liquor, have you been drinking"? The appellant answered, "Not this morning but I did last night". The inspector asked the appellant, "Have you driven here today"? The appellant replied, "Yes". It appears that there was some further conversation. The appellant and Inspector Hodnett had, it appears, had associations with one another in the past. The appellant was asked whether he had been in a police car, and why he was not in uniform. The outcome of the conversation was that Inspector Hodnett said to the appellant:

"I suspect you have been driving a motor vehicle on the road having consumed (in effect, excess) alcohol. I require you to provide a specimen of breath for a breath test. I must warn you if you fail or refuse to provide a sample you will commit an offence for which you could be arrested."

4. The appellant agreed to comply with the procedure. The breath test was positive. The appellant was arrested and cautioned. When questioned under caution, he repeated the admissions made in the previous conversation, namely that he had taken alcohol the night before and that he had driven to the police station that day. Indeed, he provided some further details in connection both with the driving and the circumstances under which he had taken alcohol.
5. The submission made by Mr Selby, on behalf of the appellant, is that there is no doubt that the conversation prior to the taking of the test constituted an interview which required a caution before the appellant was invited to answer any questions. He says that Inspector Hodnett and/or the other officer who had brought him into the conversation undoubtedly did suspect the appellant of drink driving. That is why they approached him, in order to seek evidence to confirm that suspicion and in order, in effect, to incriminate himself. He argues that this interpretation of events was confirmed in the course of cross-examination before the justices when the inspector agreed that he was asking him how he got to work, and then said, according to the following note, " ... and if he incriminated himself, yes".
6. The inference to be drawn from that, says Mr Selby, is that there was an express intent on the part of the inspector, having formed the suspicion, to secure the necessary admissions to prove the offence without administering a caution. In those circumstances, there was a plain breach of the Code of Practice.
7. He invites me to consider the case of Batley v Hampshire Justices [1998] EWHC Admin 212, in the Divisional Court. He submits that that provides support for his submissions. He draws my attention, in particular, to paragraphs 20 to 23 of the report of that case. I need not cite the whole of that passage, but I identify two particular parts:

"For my part, I think there is force in Mr Stobart's submission that in those circumstances any reasonable police officer would have suspected that an offence was being committed and would have suspected that the appellant, as the licensee, was one of the persons committing it."

I pause there to say that the facts of the case of Batley were very different and concerned after hours drinking to which the licensee was a party. I need not analyse the facts, but Mr Selby relies on the proposition I have just cited. He further relies on a passage at paragraph 23 of that decision in which Maurice Kay J (as he then was) said in relation to questions put in the course of a conversation:

"The appellant might answer the question in a number of ways. He might answer it truthfully or untruthfully, but it is a fundamental observation that he was being invited to incriminate himself if he was in fact committing an offence. Moreover, according to Sergeant Scrivens, that is precisely what the appellant did, and as a result the evidence of what Sergeant Scrivens attributed to him became crucial in the subsequent trial."

8. Mr Selby seeks to distinguish the decision principally relied upon by the respondent, namely the decision of Whelehan v Director of Public Prosecution [1995] RTR 177. That concerned an excess alcohol charge in which a police officer saw a motorist sitting in the driver's seat of a car with keys in the ignition in the early hours of the morning, and alcohol was smelt on the driver's breath. In that case, the conversation that took place thereafter between the officer and the offender, which was not under caution, was found by the justices not to have been in breach of the Code of Practice, a finding upheld in the Divisional Court. Mr Selby seeks to distinguish that decision by pointing out that the justices in that case made a finding that the suspicion on the part of the officer did not arise until after the breath test had been administered. There was, in other words, a specific finding that the circumstances under which the appellant in that case was found by the police did not give rise to suspicion. He contrasted the present case in which, as will be seen shortly, the justices made a rather different finding, namely that there was a conversation and not an interview prior to the caution.
9. Mr Hall, on behalf of the Director of Public Prosecutions, submits that this case is essentially on all fours with Whelehan. Indeed, if anything, it was more open to argument in the case of Whelehan that suspicion existed than it was in the present case. He submits that the police officers who spoke with the appellant in the present case had, it is true, detected alcohol on the appellant's breath; they had not, however, seen him driving at any point prior to that; nor at the stage at which they questioned him was there any evidence that the alcohol was excessive. That could only arise when the breath test procedure had been concluded.
10. In support of his argument in relation to that point, Mr Hall relies on the well-known pro forma in connection with the administering of breath tests, which provides for a caution to be administered only at the point when a positive reading has been obtained. Alternatively, Mr Hall submits that, even if the conversation prior to the breath test could be described as an interview for the purposes of the Code of Practice, the subsequent admissions under caution which repeat and elaborate the previous admissions were, on any view, admissible, and it was therefore inevitable that the justices would convict, the subsequent admissions reinforcing the earlier ones and/or rendering the earlier ones essentially immaterial.
11. Mr Hall also draws attention to the distinction between suspicion and grounds for suspicion, and submits that there must be grounds to suspect of an offence before the duty to caution arises -- mere suspicion in itself being insufficient.
12. Mr Selby replies that the definition of an interview in the Code of Practice does not refer to grounds, and in response to the point about the subsequent admissions under caution, argues that, if there was a breach of the Code of Practice prior to the breath test, the whole subsequent procedure must be regarded as tainted.
13. It is necessary to refer to the provisions of the Code of Practice. The first material provision is in Code C under the heading "Interviews - general" under 11(a) 11.1A:

"An interview is the questioning of a person regarding their involvement or suspected

involvement in a criminal offence or offences which, under paragraph 10.1, must be carried out under caution."

14. It is necessary, therefore, to refer back to paragraph 10.1 to find out what sort of questioning has to be carried out under caution. Paragraph 10.1 provides:

"A person whom there are grounds to suspect of an offence ... must be cautioned before any questions about an offence, or further questions if the answers provide the grounds for suspicion, are put to them ... "

15. It therefore seems to me, on the particular argument relating to whether there has to be suspected involvement or grounds to suspect of an offence, that there must be grounds to suspect of an offence; the existence of grounds must, by virtue of the reference in paragraph 11.1A to paragraph 10.1, be a precondition to the necessity to give a caution. As has been submitted by Mr Hall, essentially the question of whether there was an interview is one of fact for the magistrates, subject of course to the right of this court to interfere if there is some error of law or principle or irrationality.
16. In their findings, the justices held as follows:

"We were of the opinion that:-

A discussion took place in the waiting room of the custody suite at the Police Station at Crawley.

A question was asked by Inspector Hodnett regarding how the defendant had travelled to the Police Station. This was with the intention of finding the possibility of whether an offence had been committed.

No interview took place prior to the caution.

No breach of Code C took place.

The reason for our decision is as follows:-

The question was merely preliminary and was analogous to the police stopping a driver and asking whether he had been drinking, prior to administering a caution and proceeding to require a breath test."

17. As it seems to me, the justices were entitled to reach the opinion that they did for the reason that they gave. A decision about whether there were grounds to suspect in the particular circumstances of a given case is essentially one for the justices. Where police officers question people, in any circumstances in the course of possible investigations relating to the commission of a criminal offence, there inevitably comes a time when it begins to occur to them that an offence might have been committed. They need to make further enquiries to establish whether there are grounds for suspecting the particular person, the potential defendant, of committing the offence. If the stage comes when there are such grounds, then the duty to caution arises.
18. It seems to me that the facts of this case are more closely aligned to those in the decision of Whelehan than to any of the other decisions cited. In that case, the facts of which I have already referred to, Curtis J upheld or declined to disturb the decision that the constable did not suspect that an offence had been committed until the screening test had been administered to the driver. He made that finding against a background in which it might be thought that there were stronger grounds than in the present case to argue that a suspicion might have arisen in the mind of the constable at the roadside.
19. In contrast to the present case, the constable in that case had clearly seen the suspect at the wheel of the car in the driving seat in possession of the keys, as well as having detected alcohol on his breath. In this case, all that the officers had prior to the questioning of the appellant was a smell of alcohol on his breath; no indication as to when and how much alcohol had been taken; and no indication as to whether or not he had been driving. Under those circumstances, the magistrates were, in my judgment, fully justified in concluding that the conversation on those matters amounted simply to a conversation and not to an interview within the definition of the Code of Practice to which I have referred.
20. Further, if I am wrong in that conclusion, it does seem to me inevitable that the justices would have reached precisely the same decision about the appellant's guilt in any event. It is difficult if not impossible to see how any unfairness could have arisen by the admission of that conversation. The appellant was himself a police officer, and once he was cautioned he not only freely admitted precisely the same matters as he had done in the previous conversation, he elaborated upon them. There could have been no unfairness. Under all those circumstances, this appeal is dismissed.
21. MR HALL: My learned friend and I have discussed what might happen in relation to costs. It seems that the respondents are entitled to costs under the circumstances. I do not know if the court requires an exact figure or whether it will just agree the order in principle.
22. MR JUSTICE GIBBS: What do you say about that?
23. MR SELBY: My Lord, I do not see how I can argue against it, save to say that Mr Ridehalgh is of course a man who is legally aided, is a current British Transport Police Officer and it is now very much doubtful whether he will continue in that post.
24. MR JUSTICE GIBBS: Will it assist for a figure to be put on the costs?
25. MR SELBY: I think ultimately it will assist, but I am not in a position today to have any instructions --
26. MR JUSTICE GIBBS: I think I had better make an order in principle. I will order costs to be paid by the appellant. Is there any restriction on an award of costs arising from the fact that an appellant is legally aided?
27. MR HALL: Not that I am aware of. My Lord, in order to put the court fully into the picture, the driving suspension that followed the conviction has been suspended pending these proceedings. So the matter will clearly have to go back to the lower court for that disqualification to continue.
28. MR JUSTICE GIBBS: Very well. I make any necessary direction that it goes back to the lower court. Thank you.