Jersey Unreported Judgments

Criminal prodecures - application for exclusion of evidence.

[2012]JRC133B

Royal Court

(Samedi)

10 July 2012

Before     :

J. A. Clyde-Smith, Esq., Commissioner, sitting alone.

The Attorney General

-v-

Niall Linden

R. C. P. Pedley, Esq., Crown Advocate.

Advocate S. E. Fitz for the Defendant.

JUDGMENT

The commissioner:

1.        The defendant is due to stand trial for an offence under Article 23 of the Road Traffic (Jersey) Law 1956, namely for causing death by dangerous driving. 

2.        The defendant applies to have three pieces of prosecution evidence excluded, namely:-

(i)        a comment allegedly made by the defendant to PC Lambotte;

(ii)       a comment allegedly made by the defendant to a paramedic, namely Janet Davison and

(iii)      the evidence of Liam Anthony Morin. 

3.        The comments allegedly made by the defendant to PC Lambotte and to Janet Davison come within the definition of a confession under Article 1 of the Police Procedure and Criminal Evidence (Jersey) Law 2003 ("PPCE") namely statements that are wholly or partly adverse to the party making them whether to a person in authority or not.  The application in respect of these confessions is brought under Article 74 of PPCE but also (together with the application in relation to the evidence of Liam Morin) under the broader jurisdiction of the Court under Article 76 of PPCE. 

4.        In brief summary, the case for the prosecution is that the defendant was driving a two seater Lotus 111R sports car along the Grande Route de la Côte in the early hours of 12^th February, 2011, in the direction of Green Island.  The deceased was his passenger.  As he approached the scene of the accident, the car crossed the centre of the road, collided with a lamp post on the opposite pavement, spun around, collided with a house on the same side of the road, continued to spin and came to rest diagonally across the carriageway on which it was originally travelling, the front offside corner facing the original direction of travel. 

5.        The deceased was thrown from the car and died later in hospital.  Car parts were strewn across the area around the car.  Parts of the car became detached in the various collisions and some of its contents were also thrown from it.  

6.        The application proceeded by way of voir dire on the papers with the exception of expert medical evidence called by the defence.  

Evidence of PC Lambotte

7.        Working from her two statements, she will say that at 02:20 hrs in the morning of 12^th February, 2011, she was detailed to attend the Jersey General Hospital to check on the welfare of the passenger, the accident having occurred at around 01:45 hrs.  She was denied access to the passenger, but remained in Accident and Emergency, and in doing said that she was aware that her duty would also involve the collection of evidence.  At about 03:20 hrs, she overheard a conversation between the defendant and the doctor treating him, in which the defendant confirmed that he was the driver of the vehicle.  She took a note of this conversation in her notebook.  The doctor walked away from the defendant, who she saw was lying flat on a hospital bed with a neck brace on.  He had a lot of blood on his face and appeared to have an injury to one of his arms.  He appeared to her to be in a lot of pain and was very emotional and distressed.  Before joining the police force, she was a health care assistant on the wards in the General Hospital and due to the emotional and physical state of the defendant, she was concerned for him and went over to speak to him.  She was not intending to question him but asked him whether he was involved in the road traffic collision at St Clement.  He confirmed to her that he was the driver and quoting from her statement he:-

"said words to the effect of 'I was driving fast, put my foot down and the next thing I hit the wall'. "

She recorded this in her notebook.  She was the only person present when this conversation took place and it lasted three minutes.  It was a slow conversation between them but she was unable to recall what else either of them said.  She did not give the defendant the opportunity to verify the contents of her notebook.  

Defendant's submissions

8.        Miss Fitz submitted that this evidence should be excluded, in part because the defendant was not in a fit physical or mental state to be interviewed and in part because of a number of breaches of Code C. 

9.        Miss Fitz called Dr Elizabeth Jane Carter, whose specialist field is clinical forensic medicine.  She had not been present at the scene, in the ambulance or in the hospital and she gave her evidence therefore from the papers submitted to her.  She confirmed from the records that the defendant sustained a fractured arm, multiple fractured ribs and cuts to his head and chest.  He had been placed on a spinal board before being put into the ambulance.  He had been given oxygen and morphine was administered intravenously at 02:35 (in the ambulance) and at 03:00 (after he had arrived at the hospital), with it would appear 10 milligrams per dose.  Strong opiates, she informed me, cause relaxation and euphoria and may cause confusion and a dream-like state, where conversation can occur but is not necessarily accurate.  

10.      Doctor Carter referred to the statement of Janet Davison, the paramedic who attended at the scene, which showed that in the ambulance she had asked him a number of questions in order to complete the Patient Review Form, which would indicate that he was able to provide her with information.  This included his date of birth, address and past medical history.  She also completed (amongst other things) the Glasgow Coma Scale, in which he scored the maximum of 15 showing that he was fully conscious.  In her statement, Janet Davison said that he seemed alert and did not have a head injury.  The hospital records that he had sustained three cuts to his neck and head which required stitching with "many small cuts all over the face".  However, by the term "head injury" Dr Carter was of the view that Janet Davison meant that he had not been unconscious and that there was no clinical evidence of skull fracture or brain injury. 

11.      She advised me that actual deceleration of a car during a crash may possibly have caused brain contusion injuries.  The brain is of a firm gel consistency within the bony skull, but it may carry on moving forward within the skull when the surrounding bone stops at speed.  Similarly rapid rotation gives a force within the brain which can cause damage.  The damage can be microscopic, but it can cause temporary or permanent alteration in cognitive ability.  As it may affect cognitive function, it can make the person unreliable in what they say in the immediate aftermath of a sudden deceleration accident.  This can be present even when a paramedic gives a "no head injury" opinion. 

12.      It is clear to her that he would have been in considerable pain from his obviously broken arm and chest injuries and, as X-Rays later confirmed, multiple rib fractures.  Pain is distracting and causes loss of concentration on other matters.  It is possible that the defendant would have incomplete memory and was trying to work out what could have happened when he was looking at the wrecked car after the accident, distressed, puzzled and effectively confabulating to fill in the gaps.  Jane Davison says that he mentioned his estimated speed a couple of times.  Doctor Carter said this can occur with failure to form memory with a brain injury after a blow to the head, but also with intoxication by drugs. 

13.      In her opinion, he was not fit to be questioned about the accident and the answers he gave in the ambulance or at the hospital should not reasonably be used as factual evidence against him. 

14.      As further evidence that the defendant was not in a physical or mental state to be questioned or to make reliable comments, Miss Fitz points to the notebook of PC Graham, who was at the scene of the accident and who had noted that the defendant was "in no fit state to be questioned reference the RTC".  Furthermore, at 04:10 on 12^th February, 2012, a police sergeant, namely Mark Smith, and a police forensic medical examiner, Dr Mandy Johnson, attended Accident and Emergency at the hospital and concluded that the defendant was not in a fit state to give or refuse permission for a voluntary blood sample and that such a "request was not practical due to the nature of his injuries".  

15.      Miss Fitz cited the following breaches of Code C on the part of PC Lambotte:-

(i)        A failure to administer a caution, contrary to Code C10.2. 

(ii)       A failure to give the defendant a chance to verify what she had recorded in her notebook, contrary to Code C12.10. 

(iii)      A failure accurately to record what had been said, contrary to Code C12.5. 

(iv)      Questioning a detained person who is unfit through drugs to the extent that he was unable to appreciate the significance of questions put to him, contrary to Code C11.3. 

(v)       Questioning the defendant at the hospital without the agreement of the responsible doctor, contrary to Code C15.2. 

(vi)      Failing to advise the defendant of his right to legal advice before questioning him, contrary to Code C12.2. 

16.      Miss Fitz submitted the following propositions of law:-

(i)        For the purpose of Code C10.2, whether a police officer has reasonable grounds for suspecting that a person has committed an offence is an objective test (see R-v-Williams [2012] EWCA Crim 264 referring to the cases of R-v-Nelson and Rose [1998] 2 Cr App R 399 and R-v-Hawkins [2005] All ER (D) 163).  In Hawkins, the Court expected there to be appropriate liaison between the investigating authorities and Miss Fitz submitted therefore that PC Lambotte is deemed to have the knowledge the police had at the time.  The police knew that the defendant was the driver, that there had been a significant crash and that no other car was involved.  Witnesses were speaking of hearing loud engine noises and the passenger had life threatening injuries.  It was obvious, she said, that the police had reasonable grounds for suspecting that he had committed a driving offence. 

(ii)       Any questioning means what it says, and therefore one question may be an interview (R-v-Miller [1998] Crim LR 209 and Blackstones Practical Policing by Ozin, Norton and Spivey at paragraph 7.2). 

(iii)      Impropriety or bad faith in the way in which a defendant's alleged verbal statement was obtained is not a prerequisite for the exercise of the Court's discretion (see DPP-v-McGladrigan [1991] RTR 297). 

(iv)      The courts will exclude evidence where breaches are "significant and substantial".  In R-v-Walsh [1990/91] Cr App R 161, Saville J said this:-

"The main object of section 58 of the Act and indeed of the Code of Practice is to achieve fairness - to an accused or suspected person so as, among other things, to preserve and protect his legal rights; but also fairness for the Crown and its officers so that again, among other things, there may be reduced the incidence or effectiveness of unfounded allegations of malpractice. 

To our minds it follows that if there are significant and substantial breaches of section 58 or the provisions of the Code, then prima facie at least the standards of fairness set by Parliament have not been met."

(v)       Archbold, 2012 edition, at paragraph 15-428 states that the absence of a caution in circumstances in which it should have been administered will normally amount to a significant and substantial breach of the Code, citing R-v-Sparks [1991] Crim L.R.128. Archbold goes on to say:-

"The thrust of C:10.1 is that before questioning a suspect the police must ensure that he is aware of the true nature of the investigation; it is only if this requirement is fulfilled that the suspect can make meaningful decisions as to whether to avail himself of legal advice and how to respond to questions."

17.      In summary, Miss Fitz submits that the defendant was in no fit state either to be interviewed or make reliable comments as a result both of his injuries and the morphine administered to him and that in circumstances where it was obvious that he was a suspect, PC Lambotte interviewed him without administering a caution and in breach of the other provisions of the Code referred to above.  In all those circumstances, she submitted that the evidence of PC Lambotte should be excluded. 

Crown submissions

18.      Mr Pedley's primary submission on the failure to caution was that a police officer is entitled to ask the driver of a car whether he or she has been drinking (relying on Sneyd-v-DPP [2007] RTR 6) and a person at the scene of an accident whether he or she was the driver of a car (relying on Kemsley-v-DPP 169 JP 148) without being required to caution them.  One reason for that is that to drink is not itself a criminal offence.  Applying that reasoning to the present case, PC Lambotte simply asked the defendant whether he was involved in the road traffic collision in St Clement.  To be involved in a road traffic collision is not itself an offence and he submitted that the question was not a question "relating to the offence" within the meaning of Code C.  It follows he said that there was no requirement to caution the defendant before asking that question. 

19.      Alternatively, a police officer is only required to caution a person where there are, objectively, reasonable grounds to suspect he has committed an offence, and in this case, PC Lambotte did not have such objectively reasonable grounds to suspect. 

20.      Mr Pedley accepted that PC Lambotte had failed to give the defendant the chance to verify what the Crown regarded as an unsolicited statement and this contrary to Code 12.10 but he submitted that this breach was not sufficiently significant or substantial to cause the evidence to be excluded for the following reasons:-

(i)        The comment was recorded in her notebook. 

(ii)       It was an unsolicited comment and there is no reason to think that the comment was not reliable. 

(iii)      The content of the comment is corroborated to some extent by the way the accident occurred; there is no mechanical reason for the accident to have occurred, no third party was the cause of the accident and the defendant was driving rear wheel drive sports car in damp conditions and the car had no traction control. 

(iv)      There is nothing in the circumstances in which the comment came to be made that suggests that PC Lambotte would have fabricated the comment. 

(v)       His comment was subsequently put to him at an interview with the police held on the 25^th May, 2011, to which he gave a "no comment" response. 

21.      Mr Pedley submitted that the evidence of Dr Carter was not compelling.  Her opinion had been derived from the papers alone and in the main she propounded theories or put forward possibilities based on incomplete information.  It was clear, he said, from the statement of Janet Davison and from the patient review form she had completed in the ambulance and the answers that the defendant must have given her that he was fully conscious.  Indeed, he scored the maximum 15 on the Glasgow Coma Scale.  He was clearly able to provide her with accurate information about himself and his medical history to enable her to complete that form.  She makes no reference to him being confused or garbled - on the contrary, she says he was alert. 

22.      Dr Carter's suggestion of a possible brain injury was pure speculation as there was no evidence of actual brain injury.  She had raised the possibility of "suggestibility" - someone at the scene telling him he had been going too fast, but there was no evidence to support this.  She had said that driving in the rain could have affected his subjective assessment of speed, but such a suggestion was beyond her expertise. 

23.      Mr Pedley relied on the English Court of Appeal decision in R-v-Williams [2012] EWCA Crim 264.  In that case, the defendant had suffered wounds to the face and head caused by a sword.  He also had a dislocated shoulder.  In hospital, when sedated (there was no reference to morphine) but not yet treated, he had given an account to a police officer of the incident without a caution being administered, which contradicted the account given by him in evidence at his trial.  The prosecution wished to adduce the evidence of the police officer on the issue of the defendant's credibility.  It was held on appeal that the evidence of the police officer should have been excluded by the trial judge, because of the failure to administer a caution when on an objective test, there were reasonable grounds to suspect the defendant at the relevant time.  The Court however dealt briefly with an alternative submission that the defendant's physical and mental condition at the time of being questioned were such as to make it unfair for this evidence to be admitted:-

"30.    The appellant had a number of serious injuries to his head: six separate wounds were later repaired, and his left parietal bone and left zygomatic arch were both fractured.  He also had a dislocated shoulder.  At the time when he was questioned by DC Chinn he was still in the resuscitation unit; his wounds had not yet been treated; and he had recently been sedated for the purpose of his shoulder relocation.  In addition to the hospital notes and evidence from a junior doctor, there was agreed evidence from Mr Stewart, a consultant in the maxio facial unit, that the appellant was fit to be interviewed but 'would not necessarily be able to give logical responses and could be confused' and that 'it would be important to take the responses given in the context of the situation and take responses as not being 100% reliable'.  Mr Stewart regarded the Glasgow Coma Score as the most reliable indicator of consciousness and observed that the appellant's reading of 14/15 was near normal.  DC Chinn gave evidence on the voir dire that the appellant's initial responses to her questions were 'rather confused and garbled' (she described them as 'somewhat confused' when later giving evidence before the jury).  

31.      The judge gave these reasons for rejecting the argument that the appellant's medical condition was such as to make it unfair for DC Chinn's to be adduced:-

'...I have seen the relevant notes, heard evidence from a staff grade doctor and more significantly a lengthy admission has been drafted after both counsel have had the opportunity to speak to a consultant at the hospital in which he was first treated. 

It is plain that whilst it is impossible to be precise about the effects upon him their ambit is limited to that set out in the agreed admission.  Perhaps one of the most significant factors is the fact that he scored 14 out of a possible 15 of the Glasgow Coma Scale. 

Again it seems to me that this argument goes to weight that can be attached to the evidence rather than its admissibility.  Armed with this agreed medical opinion, the defendant's position is safeguarded so far as the jury are concerned and, given a fair and careful direction, they are able to properly assess this evidence.'

32.      The judge was entitled to take the view that the appellant was not in such a poor condition as to make it unfair to adduce DC Chinn's evidence of her questioning of him.  The significance of his condition for the reliability of the answers he gave was a matter properly left for assessment by the jury."

It would seem clear that the account given by the defendant to the police officer in Williams did not constitute a confession. 

Evidence of Janet Davison

24.      I have summarised this in part in paragraph 10 above.  According to her statement, Janet Davison attended with her colleagues at the scene of the accident and was asked to attend a male patient (the defendant) who was on the opposite side of the road.  She and her colleagues put him on a spinal board as he was complaining of thoracic pain.  He had an injury to his right humerus and he had cuts to his face.  He was talking to her and her colleagues and was obviously concerned about the passenger.  At some point, she is not quite sure when, she asked him "Had you been drinking?"  He said "No".  In the ambulance en route to the hospital after she had administered the dose of morphine and whilst filling in the Patient Review Form she asked him what speed he was doing and he said "About 55 mph".  She thought he said this a couple of times and she documented this in the form.  The defendant was able to answer all of her questions and he seemed to her alert and did not have a head injury. 

Defendant's submissions

25.      Miss Fitz sought the exclusion of the defendant's alleged reply that he was doing about 55 mph.  The exclusion was sought because he was not in a physical or mental state to make reliable comments, and this for the reasons set out above. 

26.      Miss Fitz submitted that the questions were put to him not for the purpose of gathering evidence but for the purpose of assessing his medical condition.  It would be undesirable for potential defendants injured in this way to be concerned that their answers given to paramedics for the purpose of assessing their medical condition might be used against them in subsequent prosecution.  By way of analogy, she referred me to paragraph 15-423 of Archbold and the case of R-v-Elleray [2003] 2 Cr App R 11, CA where admissions were made in an interview with a probation officer preparing a pre-sentence report:-

"In deciding on the issue of fairness, it was important to bear in mind the desirability of frankness between offender and probation officer; and if it were to become the practice for the prosecution regularly to rely on such admissions, the situation would soon arise when probation officers were unable to perform their duty; accordingly, the prosecution should carefully consider whether it was right to seek to rely on such admission; in making this judgment under section 78, the court should bear in mind the contrast between an interview with a probation officer and one with a police officer conducted under the protection of the 1984 Act; in particular, there might have been no accurate record, no caution and no legal representation; and as to probation officers, it was not for the court to dictate what they should do in such a situation but they should take whatever action they thought appropriate to protect the position of the interviewee, including, possibly, warning the interviewee that what was said by way of admission would be included in the report to the court, and offering to pause the interview so that the offender might have legal representation."

Crown submissions

27.      Mr Pedley submitted that the statement made to Janet Davison is a confession and is therefore admissible under Article 74 of PPCE and that there is no basis for its exclusion under Article 74 or under Article 76.  If authority is needed for that proposition, it is to be found in Hawkins, where evidence of an admission given to a fire officer was admitted, although admissions subsequently made to a police officer without a caution who should have been informed of the admission made to the fire officer and should therefore have administered a caution were excluded. 

Evidence of Liam Anthony Morin

28.      Liam Morin will say that he was working at the Ambassadeur Hotel as a DJ and had just finished about 1 o'clock in the morning and was waiting for his daughter, who also worked there, to finish work.  He remembers saying to his daughter "Come on, it's nearly 2 o'clock", and looked at his watch.  They got into his car and at the exit of the hotel on to the main road at Grève d'Azette, he nosed his car out of the car park foot by foot, in order to turn right.  From Grève d'Azette way, a car just appeared in front of him.  He slammed on his brakes and he and his daughter jolted forwards.  The car swerved round his car, but did not slow down at all.  It carried on towards Green Island and he estimated its speed as between 50 and 60 mph.  He described the car as being a light coloured sports car.  He heard of the accident on the radio later on that morning and it reminded him of what he had seen on the same road at about 01:55 that morning. 

Defendant's submissions

29.      Miss Fitz submitted that this evidence should be excluded as its probative value was outweighed by its prejudicial effect; it was too vague to be relied on.  Mr Morin did not identify the car as being a Lotus, could not see anyone in the car, saw the car for only two seconds and neither saw nor heard the car on its approach, despite looking out for vehicles.  Furthermore, the timing makes it unlikely that it was the defendant's car, as the accident occurred sometime around 01:50 and Mr Morin appeared to be fairly certain that he exited just before 02:00. 

30.      The Prosecution cannot prove that this was the defendant's car but can only suggest that it might have been.  If the Prosecution cannot prove that this was the defendant's car, the evidence should not be admitted as the defendant would be left to endeavour to establish a negative, i.e. that it was not his car. 

31.      Mr Morin did not identify the car as being a Lotus.  He merely identified a sports car in the vicinity but at a time after the accident occurred.  It could have been a car approaching the accident, or even a fast moving unmarked vehicle attending the accident.  Reference to a sports car could subconsciously have been influenced by hearing the news of the incident involving a sports car. 

32.      Furthermore, admitting the evidence of Mr Morin would force the defendant to give evidence thereby unfairly depriving him of his right to remain silent.  For that proposition, she relied on the case of R-v-Keenan [1989] 90 CAR 1 CA.  In that case, the trial judge had ruled that questions and answers given in a police station interview in breach of the Code on the basis that any unfairness could be remedied by the appellant giving evidence.  Thus admitting that evidence unfairly deprived the defendant of his right to remain silent and also forced him not only to give evidence but to put his character in issue by attacking the police evidence.  

Crown submissions

33.      Mr Pedley submitted that there were no grounds to exclude this evidence.  This is eye witness evidence relevant to the event.  Arguments over weight were for cross-examination and submissions.  The evidence may be prejudicial as all evidence against a defendant in a criminal trial potentially is, but it did not go to the fairness of the trial itself.  It is for the Prosecution to prove that the light coloured sports car seen by Liam Morin was the defendant's and not for the defendant to prove a negative.  Jurats may accept or reject it but it is not open to the trial judge to exclude it on grounds of vagueness. 

Decision

34.      I am going to take the evidence of Liam Morin first.  In short, I accept the submission of the Prosecution.  Vagueness is not a ground for a trial judge to exclude evidence.  The case of Keenan does not assist the Defence in that in that case, the trial judge had admitted evidence of a Q and A taken in breach of the Code on the basis that any unfairness could be remedied by the defendant giving evidence, thus, in effect, forcing him to give evidence and depriving him of his right to remain silent.  This has no application to the evidence of Liam Morin which does not force the defendant to give evidence or deprive him of his right to silence.  I see no basis upon which I should exclude it.  It will be a matter for the Jurats to decide what weight is to be placed upon it. 

35.      Turning to the evidence of PC Lambotte and Janet Davison, both of the comments allegedly made by the defendant constitute confessions.  It seems to me that before I consider the broader jurisdiction under Article 76, namely whether the admission of these confessions would so adversely affect the fairness of the proceedings that they ought not to be admitted, I must decide whether the Prosecution has surmounted the hurdle imposed upon it by Article 74.  That Article provides in summary that in any proceedings where the prosecution proposes to give evidence of a confession and it is represented to the Court by the defence that the confession was obtained in consequence of anything said or done which was likely in the circumstances at the time to render it unreliable, the Court should not allow it:-

"except in so far as the prosecution proves to the Court beyond reasonable doubt that the confession, notwithstanding that it may be true, was not obtained as aforesaid".

36.      Thus the onus is placed firmly upon the prosecution to the criminal standard. 

37.      We are not concerned here, in my view, with anything said but with something done which was likely to render the confessions unreliable.  There are two aspects to this:-

(i)        Firstly, the defendant had been involved in a serious accident in which he was injured. 

(ii)       Secondly, the confessions were made after he had morphine administered to him. 

38.      Unlike the case of Williams, which did not involve confessions, I do not have the evidence of a doctor or consultant who was present either in the ambulance or at the hospital as to the reliability of any answers the defendant gave to the questions put to him in the circumstances in which he was in, nor did I hear evidence from Janet Davison to expand upon her statements. 

39.      However, I have the forms completed by Janet Davison which show that the defendant was fully conscious and was able to provide her with answers to the many questions needed to complete the form.  The consultant in Williams placed great emphasis on the Glasgow Coma Scale and in this case, the defendant scored the maximum, namely 15.  The forms show that his pulse, oxygen levels and pupils were normal.  His blood pressure was raised, but not significantly.  Dr Carter acknowledged the results of the Glasgow Coma test, but said it was not clear whether Janet Davison assessed his orientation in time and place and may not have established whether he had any period of memory loss or felt in any way confused as to what had just happened. 

40.      Whilst it is true that Dr Carter's evidence was the only expert medical evidence I heard in the voir dire, it seems to me that its assistance is severely limited.  Dr Carter was not present to assess the defendant at the relevant time and is therefore reduced to expressing a number of possibilities.  She says opiates "may cause confusion" and a dreamlike state where conversation can occur, but "is not necessarily accurate" (my emphasis) There may "possibly" have been brain contusion injury, although there is no medical evidence of such an injury.  It is "possible" that the defendant may have an incomplete memory.  There was a "possibility" of suggestibility and so on. 

41.      As against that, I know that the defendant was standing when the police arrived (paragraph 7 of PC Graham's statement) and when the ambulance arrived he was placed on a spinal board, as he was complaining of thoracic pain.  In the ambulance, he was fully conscious and alert and able, without apparent difficulty, to give accurate answers to a whole series of questions required to complete the patient review form.  Furthermore, when in hospital, he was able to conduct an apparently coherent conversation both with the doctor, which was overheard by PC Lambotte and reported in her notebook, and with PC Lambotte herself, who made no reference to him appearing confused. 

42.      I conclude that the confessions are reliable for the purposes of Article 74 and that the Prosecution has discharged the burden placed upon it by that article.  I therefore turn to the broader test under Article 76, where the burden of proof has no part to play (see AG-v-Bhojwani [2010] JRC 026).  I take first the evidence of PC Lambotte. 

43.      In R-v-Quinn [1990] CRM LR 581, Lord Lane CJ underlined the general nature of the discretion in Article 76:-

"The function of the Judge is therefore to protect the fairness of the proceedings, and normally proceedings are fair if a Jury hears all relevant evidence which either side wishes to place before it but proceedings may become unfair if, for example, one side is allowed to adduce relevant evidence which, for one reason or another, the other side cannot properly challenge or meet."

44.      The position was summarised in the case of AG-v-Da Silva [2007] JLR N 61 where it was held that:-

"The following principles can be deducted from the English authorities dealing with the English equivalent of Article 76:-

(i)        A breach of the Codes of Practice does not lead automatically to the exclusion of the evidence so obtained. 

(ii)       Where there is a breach, the judge has a discretion to exclude the evidence. 

(iii)      The breach must be 'significant and substantial' to justify exclusion. 

(iv)      In exercising the discretion, the judge should have regard to the rationale of the provisions of the Codes of Practice."

45.      I accept, as did Mr Pedley, on the basis of the authorities cited by Miss Fitz that:-

(i)        For the purpose of Code C10.2, whether a police officer has reasonable grounds for suspecting that a person has committed an offence is an objective test. 

(ii)       Any questioning means what it says and therefore one question may be an interview. 

(iii)      Impropriety or bad faith in the way in which a defendant's alleged verbal statement was obtained is not a prerequisite for the exercise of the Court's discretion. 

(iv)      The absence of a caution in circumstances in which it should have been administered will normally amount to a significant and substantial breach. 

46.      I do not agree with Mr Pedley that the cases of Sneyd and Kemsley are relevant.  In both those cases, the officers were attending at the scene of the accident.  That role has been played by the officers who attended the scene of this accident and indeed PC Graham dealt with both issues with the defendant identifying himself as the driver and submitting himself after caution to a roadside breath test, which proved negative. 

47.      The key issue, it seems to me, is whether at the time PC Lambotte approached the defendant on his hospital bed, there were grounds objectively for suspicion, falling short of evidence which would support a prima facie finding of guilt, not simply that an offence had been committed, but committed by the defendant (see paragraph 21 of Williams).  

48.      At the point at which PC Lambotte approached the defendant, namely at 03:30, the position as known to the police was as follows:-

(i)        There had been a serious accident involving a sports car but no other vehicle. 

(ii)       Shortly after the accident, PC Graham had identified the defendant as the driver. 

(iii)      By 02:18 it was clear that the passenger's injuries were believed to be serious and life threatening.  According to the iLog the road had been closed to all traffic and a collision investigator recalled to duty. 

(iv)      PC Graham had spoken to and taken an account from three members of the public who had attended the scene.  One of those was Paul Mildren, a local resident, who told him that he has been woken "by a car speeding.  I then heard a slide.  Then two possibly three loud bangs". 

(v)       PC Lambotte was on duty and in evidence gathering mode.  She listened in to a conversation between the defendant and a doctor, from which she ascertained that the defendant was the driver of the car and she recorded that conversation in her notebook. 

49.      I have no doubt that, objectively, at that point there were grounds for suspicion that the defendant, the driver of the only car involved in the accident, had committed a driving offence.  It follows that there he should have been cautioned by PC Lambotte and that her failure to do so constitutes a significant and substantial breach of Code C. 

50.      Mr Pedley effectively conceded that if that were my finding, then the exclusion of the evidence would follow and that is my decision. 

51.      I turn finally to the evidence of Janet Davison.  The Codes have no application to her.  I have already found that the defendant's answer to her question as to his speed was reliable for the purposes of Article 74 and if so, the question arises as to why it would be unfair to admit it. 

52.      I do not accept that admitting the evidence of this paramedic would render paramedics in general unable to perform their duty.  In Elleray the Court of Appeal drew an analogy between an interview by a police officer and an interview by a probation officer and the protection afforded to in the case of the former by the Codes.  It suggested that interviews by probation officers should include appropriate warnings.  I see no analogy between an interview by a probation officer and a conversation with a paramedic in an ambulance during the course of completing the relevant form.  

53.      I appreciate that the defendant had been injured in a road accident and had morphine administered for pain relief but he was fully conscious and alert.  In terms of fairness, a concept which works both ways, I see no reason to exclude it.  It will be for the Jurats to decide what, if any, weight they wish to give to it.  

54.      I therefore decline to exclude the evidence of Janet Davison. 

Authorities

Road Traffic (Jersey) Law 1956.

Police Procedure and Criminal Evidence (Jersey) Law 2003.

R-v-Williams [2012] EWCA Crim 264.

R-v-Nelson and Rose [1998] 2 Cr App R 399.

R-v-Hawkins [2005] All ER (D) 163.

R-v-Miller [1998] Crim LR 209.

Blackstones Practical Policing by Ozin, Norton and Spivey.

DPP-v-McGladrigan [1991] RTR 297.

R-v-Walsh [1990/91] Cr App R 161.

Archbold, 2012 edition.

R-v-Sparks [1991] Crim L.R.128.

Sneyd-v-DPP [2007] RTR 6.

Kemsley-v-DPP 169 JP 148.

R-v-Williams [2012] EWCA Crim 264.

R-v-Elleray [2003] 2 Cr App R. 11.

R-v-Keenan [1989] 90 CAR 1 CA.

AG-v-Bhojwani [2010] JRC 026.

R-v-Quinn [1990] CRM LR 581.

AG-v-Da Silva [2007] JLR N 61.