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
		Thursday, 26 November 2009

1. LORD JUSTICE MOSES: This is an appeal by way of case stated against a conviction of driving with excess alcohol by the Peterlee Magistrates on 11 June 2008.
2. The appellant was arrested in the early hours of the morning at 6.15 am on 25 August 2008. He was slumped over the steering wheel of the car, a Volkswagen Golf. The parking lights were on, the keys were in the ignition and he was asleep. He was arrested, it is important to note, for being in charge of a motor vehicle whilst under the influence of drink or drugs. He took a breath test, just under an hour later, in connection with an investigation of being in charge of that vehicle whilst unfit through drink. The lower specimen of the two specimens he provided showed 74 micrograms of alcohol in 100 millilitres of breath.
3. The custody record at 7.43 am shows that the appellant was informed that he would be charged. That was found as a fact by the justices. Despite that information, and contrary to the Code of Practice under the Police and Criminal Evidence Act 1984, he was then interviewed. It is plain from the written record of the interview - which is not set out in the case stated - the appellant was not informed of the offence for which the police were investigating him at the outset of that interview. On the contrary, he was asked to say in his own words exactly what had happened. He did so. Half way through the interview, without being informed that he was being investigated for some other offence, he was asked whether he was driving the car and he said that he was. Accordingly at the close of the interview he was charged not with being in charge of a vehicle while unfit but driving while under the influence, thus rendering him liable to compulsory disqualification as opposed to discretionary disqualification.
4. The justices found, inevitably, that the interview had been conducted in breach of paragraph C 16.5 which provides that -

"a detainee may not be interviewed about an offence after they have been charged with, or informed that they may be prosecuted for it, unless the interview is necessary",

for reasons identified in that paragraph. No one suggested that the interview was necessary for any of the purposes identified in C 16.5. There was thus a clear breach.

5. There was a further breach at the outset of the interview. If a detainee is interviewed notwithstanding that he has been informed that he may be prosecuted for the offence, he must be informed by way of caution in the old form of words, namely -

"You do not have to say anything but anything you do say may be given in evidence."

The form of caution administered in the instant case was the new form of caution, namely he was told -

"You do not have to say anything but it may harm your defence if you do not mention now something which you later rely on in court. Anything you say may be given in evidence."

6. The justices in the light of those breaches considered two sections of the Police and Criminal Evidence Act - first, Section 76 - and concluded that there was nothing said which was likely to render unreliable the confession of the appellant that he was driving. That is not the test under the second section which they considered, namely whether they should exclude the admission in the interview pursuant to Section 78. They had to decide whether the admission of the interview would or would not have an adverse effect on the fairness of the proceedings. In so deciding, they recorded the agreement between both prosecutor and defence that absent that admission in the interview there was no case against this appellant that he was driving whilst under the influence of drink. It is not for us to comment on whether that was a curious or surprising concession by the prosecution. It was a concession by the prosecution and not one from which the magistrates dissented.
7. In those circumstances the only evidence against this defendant was his own admission made during the course of an improper interview conducted in breach of the code and without the benefit of the caution which should have been given which, if the English language has any meaning, would have made it clear to this defendant that he was under no obligation whatever to say anything. His silence would not have harmed his defence.
8. I turn therefore to the reasons given for the justices' conclusion that the admission of the interview would not have had an adverse effect on the fairness of proceedings. They said:

"The appellant knew he was over the prescribed limit before he was interviewed, but nonetheless went on to admit the driving knowing the consequences that would most likely follow i.e. that he would be charged with driving with excess alcohol."

It is not clear to me how he would know of those consequences if he had not been informed of the purpose of the interview.

9. What is more troubling is the reason - and the sole reason - given appears to be that it was this defendant's own fault for making a voluntary admission that he was driving. Of course the fact that he voluntarily admitted that he was driving, without any compulsion, coupled with the express finding that there was no bad faith on the part of the police are important factors to take into account when exercising the judgment that has to be exercised in relation to Section 78. But they are not the only matters.
10. These provisions are not a mere rigmarole to be recited like a mantra and then ignored. The provisions of the Police and Criminal Evidence Act and the Code relating to caution, are designed to protect a detainee. They are important protections. They impose significant disciplines upon the police as to how they are to behave. If they can secure a serious conviction in breach of those provisions that is an important matter which undermines the protection of a detainee in the police station. That is not say, by any means, that every breach will lead to the exclusion of the evidence obtained in consequence of that breach; far from it. It is merely to emphasise the general importance of the breaches when exercising the judgment in Section 78. Their significance must be taken into account. There is no hint in the case stated that any of those factors were taken into account by the magistrates.
11. The sole reason they seem to have given relates to the fact that the confession was voluntary. That is by no means - for the reason I have given - dispositive.
12. There were in this case two breaches, admittedly not in bad faith, but they showed scant regard for the clear requirements in a case such as this. They had the unfortunate result that the appellant cannot have been aware that the switch in questioning half-way through the interview would lead to far more serious consequences. Although the magistrates found that he would know the consequences that would most likely follow, there is no finding and there could not be any finding that he was aware of what offence was being investigated in the course of that evening because he was simply not told.
13. In those circumstances I take the view that in answer to the question whether the justices were right in law in ruling the evidence of the interview was admissible, the answer should be no. And in relation to the second question - whether they applied the correct test - whilst the answer is yes, it can only be a qualified yes because they failed to take into account the necessary ingredients which they were required to weigh before reaching that conclusion.
14. In those circumstances I would allow this appeal, noting only that neither the magistrates nor the prosecution were represented, and we thus lack the benefit of any counter-argument.
15. MR JUSTICE HICKINBOTTOM: I agree.
16. MR BLOOMFIELD: Can I ask for costs under two aspects? Since 28 May 2009 there has been a representation order in force. Could I ask for the usual detailed assessment of those costs.
17. LORD JUSTICE MOSES: Yes.
18. MR BLOOMFIELD: Can I additionally ask for this - it is not to cover any of that period - that before 28 May there be a defendant's costs order because it covers those costs that would not be covered by the representation order? I cannot ask for a defence costs order where there is a legal aid order in force.
19. LORD JUSTICE MOSES: You can have one. From when?
20. MR BLOOMFIELD: The defendant's costs order - - for his costs up to 28 May this year but not including any costs of the court below.
21. LORD JUSTICE MOSES: Yes. We will make that. Perhaps you would draw it up and let the associate have it. What happens about the other charge - being drunk in charge?
22. MR BLOOMFIELD: He was never charged with that.
23. LORD JUSTICE MOSES: He was a lucky fellow; that is all I can say. I thought that slumped over the driving wheel at that time was evidence of driving.
24. MR BLOOMFIELD: Fortuitously he has served 17 months of disqualification which has been quashed.
25. LORD JUSTICE MOSES: He has been disqualified.
26. MR BLOOMFIELD: He is disqualified since about June of last year whenever - - - - -
27. LORD JUSTICE MOSES: It looks as if a sort of justice has been done.
28. MR BLOOMFIELD: Sort of, yes.
29. LORD JUSTICE MOSES: He has to tell his insurance company about it anyway, has he?
30. MR BLOOMFIELD: Yes.