England and Wales High Court (Administrative Court) Decisions

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

		Royal Courts of Justice Strand London WC2A 2LL
		Friday, 27 November 2009

1. LORD JUSTICE LAWS: This is an application by the Crown Prosecution Service for judicial review of a decision of the Wolverhampton Magistrates' Court, on 17 June 2008, to allow the second defendant's submission of no case to answer on a charge of driving with excess alcohol, contrary to section 5 of the Road Traffic Act 1988. Judicial review permission was granted by this court, Richards LJ and Blair J, on 27 March 2009.
2. I will refer to the second defendant simply as the defendant.
3. The events which led to the defendant's prosecution took place on 20 February 2008. Uniformed police officers were on duty in Penwood Lane, Wolverhampton, conducting house to house enquiries in an unrelated matter. A BMW X5 motor car approached the scene, but was quickly reversed when the driver spotted the officers. They went after the car on foot. At length the BMW collided with an earth bank and a hedge and came to a stop. The driver and sole occupant was the defendant.
4. PC Grimley spoke to him. He saw that the defendant's eyes were glazed and he could smell intoxicants -- in his evidence he was later to say it was alcohol -- on the defendant's breath. No preliminary road side tests were conducted to confirm the officer's suspicion that the defendant had been driving while unfit through drink.
5. There were two relevant types of preliminary test; first, a preliminary breath test (see section 6A of the Road Traffic Act 1988); and secondly, an impairment test carried out, for example, by means of asking the suspect to walk in a straight line for a short distance, placing one foot in front of another (see section 6B of the 1988 Act). PC Grimley, whose good faith the District Judge was to find was not in question, did not carry out the former test because he had no breath test equipment at the scene. He had not carried out the latter test because he had not received the necessary training. The defendant was, however, arrested, or purportedly arrested, for driving while unfit through drink, contrary to section 4 of the Road Traffic Act 1988.
6. He was cautioned and taken to the police station where the Intoxilyzer breath test procedure was carried out. The lowest reading obtained was 44 micrograms per hundred millilitres of breath. As was his right, the defendant then choose to have a specimen of blood examined. Later analysis of the blood taken showed a reading of 103 milligrams of alcohol per hundred millilitres, the legal maximum being 80 to the hundred. The defendant was then charged with driving with excess alcohol in the blood, contrary to section 5 of the 1988 Act.
7. The defendant pleaded not guilty in the Magistrates' Court on 9 April 2008, and the trial was adjourned to 21 May 2008. At trial, after the officer's evidence had been given, it was submitted for the defendant that there was no case to answer on the ground that his arrest had been unlawful. The District Judge reserved his decision on that issue and so the matter had to be relisted on 17 June 2008 when he handed down a written judgment. In the judgment the District Judge noted the statement in Wilkinson's Road Traffic, 23 edition, paragraph 4 of 96, that:

"The powers of arrest in respect of offences under sections 4 to 11 [that is of the road traffic Act 1988] are contained in section 6D".

8. Under section 6D(1), the officer may make an arrest if a preliminary breath test under section 6A is carried out; as I have said it was not. The officer may arrest under section 6D(2) if the driver fails to cooperate with a preliminary test under section 6B or 6C. 6C is irrelevant on the facts of this case, and again, as I have indicated, no section 6B test was sought to be administered. Accordingly, no power of arrest arose under section 6D(1) or 6D(2).
9. After noting that PC Grimley had not received the training required to administer the impairment test under section 6B, the District Judge said this:

"5) I was informed that in the West Midlands Constabulary, only about 80 PCs have received this training, with only one in Wolverhampton. This is unacceptable, as the law was brought in no doubt after government consultation with the police. The police have had time to arrange such training for all traffic officers but have not done so.

6) I cannot consider as relevant, any logistical issues for the police, and sympathy for financial resources does not determine the validity of an arrest.

7) I find that the arrest did not satisfy any of the conditions in section 6B, and therefore conclude that the arrest must be unlawful. I specifically find that the PC was not acting with any mala fides".

10. The District Judge then proceeded to consider whether, in consequence of his finding that the arrest was unlawful, the procedure at the police station, and therefore the critical evidence as to the defendant's blood alcohol level, should be held inadmissible. He considered a number of authorities, including the decision of their Lordship's house in Fox v Chief Constable of Gwent [1986] AC 281, and continued as follows:

"14. The question that remains is that this court must exercise its own discretion fairly in relation to the question of admissibility of this evidence. The s78 requires the court to have regard to all the circumstances in which the evidence was obtained, and decide whether the admission of the evidence would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it.

15. I bear in mind Article 6 ECHR in this respect and remind myself about the right to have a fair trial, but in my view that adds nothing to the matter before me on these facts.

16. When I consider all the circumstances, it becomes apparent that there has been a failing in the way the police force has not trained its officers about the new provisions of s6 when amended in January 2006. It is now two years on and there are only 80 trained officers in the whole force. The PC on the street is not to blame that he or she is still using the old procedures, but since Parliament has enacted 6A-D, it required the police force to carry out the will of Parliament. The police force has singularly failed to do so. There is a wider issue here than just the question of whether the D may be acquitted on a technicality. It is the right of a motorist not to be arrested due to lack of training or resources of police officers. Once a motorist has been arrested unlawfully, he or she is treated as a common criminal at the police station, a custody record is created, kept in a police cell, and so on. They cannot proudly claim never to have been arrested in their life. They have been subjected to such a fundamental attack on their liberty that the court should be slow to approve the actions of the police if the arrest was unlawful. I therefore conclude in the exercise of my discretion that the evidence of the breath test at the police station should be excluded."

11. It is submitted for the Crown Prosecution Service that the arrest was not, or may not have been, unlawful at all. The breath test procedure at the police station may be allowed to constitute the preliminary test under section 6A. Reliance was also placed, at any rate before the District Judge, on the residual power of arrest arising under section 24 of the Police and Criminal Evidence Act 1984. In my judgment, however, those arguments are, at best, fragile. The real issue here is as the District Judge's application of 78 of PACE. The District Judge has used this power, as I see the matter, to exclude evidence under the section as a rod with which to beat the police for failure it put in place sufficient training in the new procedures enacted in section 6A to 6D which were introduced into the Road Traffic Act by section 107, and schedule 7, paragraph 1 of the Railways and Transport Safety Act 2003. The District Judge has not considered the critical section 78 question, namely, whether admission of the evidence in issue would have such an adverse effect on the fairness of the proceedings that it should not be admitted. Instead, he has delivered what I fear I can only call a rhetorical plea for, "the right of a motorist not to be arrested due to lack of training or resources of police officers". In fact, for my part, I am unable to see how the unlawfulness of the arrest, constituted by the want of any preliminary road side test, occasioned the least unfairness to the defendant. Given the readings at the police station it is surely inconceivable that a breath test at the scene would have been favourable to the defendant. And whatever the result of a road side test, the officer would still have been entitled to arrest the defendant if he had reasonable cause to suspect that he had committed a section 4 offence. If there has been an inadequate commitment to training for new procedures, in this or any other police force, that is, of course, greatly to be regretted, but its remedy does not lie in the imposition by the Criminal Courts of a sanction obtained through the use of section 78 of PACE.
12. For all these reasons, I would, for my part, grant this application for judicial review and quash the defendant's acquittal.
13. I apprehend that, subject of course to my Lord's agreement, that it will also be appropriate to direct that the case be returned to the Magistrates' Court to proceed with the trial.
14. MR JUSTICE OUSELY: I agree. I would only add that one should be very careful about allowing the general power of arrest in section 24 of the Police and Criminal Evidence Act to be used to circumvent the specific pre-condition to the lawful exercise of the power of arrest in relation to section 4 of the Road Traffic Act 1988, which are contained in section 6D of that Act as amended. And the fragility of the argument, as my Lord has referred to, is possibly understated.
15. LORD JUSTICE LAWS: Are those the orders you wanted, Mr Singh? That would entail going to the same District Judge, of course. If it was to go to a different judge the trial would have to begin de novo.
16. MR SINGH: Yes, it would.
17. LORD JUSTICE LAWS: I had not considered that until this moment. You are content that it go to the same District Judge and they, having heard earlier the police evidence, continue with the case? I am not suggesting you should not be.
18. MR SINGH: I am content that it does go before the same District Judge.
19. LORD JUSTICE LAWS: Yes. Thank you. That is the order we shall make.