APPEAL COURT, HIGH COURT OF JUSTICIARY
OPINION OF THE COURT
THE RIGHT HONOURABLE LORD McCLUSKEY
CONTINUED APPEAL BY STATED CASE
JOHN ALEXANDER THOMSON
PROCURATOR FISCAL, ALLOA
Appellant: Wheatley, Solicitor Advocate; Wheatley & Co.
Respondent: Mulholland A.D.; Crown Agent
14 September 1999
This is an appeal by way of stated case. The background appears from the opening paragraph of the stated case which discloses that the appellant was charged with a contravention of Section 5(1)(a) of the Road Traffic Act 1988. After he pled not guilty the trial proceeded and at the close of the Crown case the defence agent made a submission of no case to answer. That submission was based upon the assertion that there was insufficient evidence to establish that the police officers involved had reasonable cause to suspect that the appellant was, at the material time, under the influence of alcohol. The Sheriff rejected that submission. The defence led no evidence and after hearing submissions from the parties the Sheriff convicted the appellant of the offence libelled.
The facts are set out fully by the Sheriff and need not be rehearsed in detail. The essence of the matter, however, is that an anonymous caller made a telephone call to the police at about 7.20am telling them that a certain vehicle, which was described, had left an address at 12 Hutton Place, Alloa and that the driver of the vehicle was under the influence of alcohol. This telephone message was relayed by a civilian duty office clerk by radio to police officers who were in a police car in the area. They went to the street address mentioned and arrived there some four minutes or so after the original call had been made. They saw the vehicle described by the anonymous caller but there was no one in the vehicle at the time. They took observation and it is recorded that within a short period two males, one of whom was the appellant, approached the vehicle and got in. The appellant then got into the driver's seat and drove the vehicle for a short distance and the police officers stopped the vehicle. They believed on the basis of the report that had been made to them that they had reasonable cause to suspect that the appellant was driving that vehicle with alcohol in his body and duly required him to provide a specimen of breath, which he did and that proved positive. In due course, of course, he was convicted on that basis.
The Sheriff narrates that the sole matter in contention in the case was whether or not the anonymous telephone call relayed to the police officers who stopped the appellant was sufficient to give them reasonable cause to suspect that the appellant was driving while under the influence of alcohol.
When an application was made for the stated case, paragraph 2 of that application set forth the matter which it was desired to bring under review and that was in effect enlarged upon what the Sheriff had said. The substance of paragraph 2 of the application for a stated case was that there was no evidence sufficient to entitle the police officers to conclude that they had reasonable cause to suspect that the appellant was under the influence of alcohol. No general point was taken about the application of any provision relating to human rights; and although Mr Wheatley, who appeared for the appellant, mentioned that matter, no argument was advanced to us on the basis of the supposed application of any human rights legislation and we need not deal with that matter further.
In support of his submission that there had been a miscarriage of justice Mr Wheatley invited us to look at all the circumstances of the case. What was particularly important was the matter recorded in the Sheriff's note at page 6, namely that the police officers did not suggest that the driving which they observed the appellant to engage in had been erratic. They had not observed anything in his manner to suggest that he was under the influence of alcohol and they did not suggest that he smelt strongly of drink or that his speech was slurred or that his eyes were unfocussed. In effect therefore they accepted that for the purpose of forming a reasonable suspicion they were relying totally upon the information from the anonymous caller relayed via the civilian duty clerk.
Mr Wheatley expressly accepted that the police had reasonable cause indeed, possibly even a duty, to stop the vehicle, given the information that had been received from the civilian officer on duty. However, he submitted that there had been a material break between the event referred to in the anonymous telephone call and what the police officers observed. They had arrived upon the scene to see an empty vehicle and then had seen it approached by two persons, one of whom was the appellant, before the appellant drove off. He submitted that there required, in law, to be some independent circumstance which would entitle the police officers to form the view that a road traffic offence was being committed by the person whom they then found to be driving. It would have been be necessary in the circumstances to find something such as a smell of drink or something else in his conduct or bearing which pointed to his being possibly under the influence of drink.
He referred to the fact that the information in the present case came originally from an anonymous caller but he did not suggest that that in itself vitiated the basis upon which the police sought to rely. The submission in substance therefore was that there had to be something else which the police observed themselves in the circumstances of this case to entitle them to have reasonable cause to require a breath specimen to be supplied. There was in fact nothing here at all. In this context he referred to a passage appearing on page 86 of the second edition of Road Traffic Law in Scotland by Sheriff Wheatley which was to the following effect:
"However, once the vehicle has been stopped the constable must then have reasonable cause to suspect that the motorist has alcohol in his body. The usual reasons given are that alcohol is smelt on the motorist's breath or that his speech is slurred, his eyes glazed or his movements are uncoordinated."
He sought to distinguish the case of Dryburgh v Galt 1981 S.C.C.R. 26 on the basis that that case too was one in which the police, before they administered the breath test, smelt alcohol from the accused's breath. He made no significant point of distinction between the present case and the case of Allen v Douglas in 1978 J.C. 7. He accepted that, in terms of his argument, that even if the landlord of the licensed premises had telephoned the police to say that a customer under the influence of drink was then entering a car in the car park. Nonetheless, the police, if they subsequently stopped the car after an interval of the kind which occurred here, they would require to have something in addition to that report before they could administer the breath test.
The Advocate Depute drew our attention to the case of Orr v Urquhart in 1992 S.C.C.R. 295 and to the inter-relationship between Section 6(1) and Section 7 of the Act which is dealt with in that case. He presented a full argument against the submissions of Mr Wheatley but submitted that, in any event, on the basis of Orr v Urquhart, even if Mr Wheatley's submission was right, the procedure adopted was entirely lawful.
In our opinion, there was no real, significant and material break in continuity between the telephone call which initiated the police action and the administering of the breath test. Mr Wheatley conceded, as we have already noted, that the police had reasonable cause to stop the vehicle; but it is perfectly clear that the reasonable cause which they had to stop the vehicle was the information that that vehicle was being driven by a person who was committing a road traffic offence, namely the offence of driving whilst under the influence of alcohol. There was nothing changed in that respect. Accordingly there was no break between the initial circumstance which gave reasonable cause for stopping and the circumstances in which gave the police concluded that they had reasonable cause to believe that the appellant was then committing an offence of driving while under the influence of drink. Furthermore, we find no reason to distinguish the case of Dryburgh v Galt. It is true, as Mr Wheatley pointed out, that before the breath test was administered in that case the police in fact smelled drink but it is also quite clear that the police had formed the suspicion, which the Court held to be a reasonable suspicion, before they smelled the breath; and we refer to the Opinion of the Court delivered by the Lord Justice Clerk, and in particular to the passage at page 30, which reads:
"When the police officer spotted the car that was the point of time when the suspicion was formed in relation to the person driving it and if there was reasonable cause for that suspicion, that was the time when the right to make the requirement arose."
We also consider that the case of Allen v Douglas supra supports the same approach.
In the whole circumstances we consider that this appeal must fail, that the Sheriff has correctly dealt with the matter and in the circumstances we shall answer both questions posed in the stated case in the following way, the first question will answered in the affirmative and the second question will also be answered in the affirmative.