Scottish High Court of Justiciary Decisons

PATRICK STEWART v. PROCURATOR FISCAL, HAMILTON [1999] ScotHC 43 (24th February, 1999)

This is an appeal by stated case arising out of proceedings in the Sheriff Court at Hamilton on 27 August 1997. The appellant was convicted of an offence under Section 5(1)(a) of the Road Traffic Act 1988 and was fined and disqualified. During the course of the trial after the conclusion of the Crown evidence, a submission was made that there was no case to answer. The point raised turns on whether the police had acted oppressively. The position putting it generally is that when the appellant's car was stopped by two constables, they were carrying out instructions together with other pairs of police officers in implementation of a police campaign against drink driving in the lead up to Christmas. The purpose of this was raising motorists' awareness of the possibility of what can be called "the morning after effect" following the consumption of alcohol. Officers had instructions to stop all vehicles, inform each driver of the campaign and request each driver to undertake a roadside breath test. What would follow would be this. They were instructed that if the driver agreed to the breath test, the breath test was to be administered. If the driver refused, then the driver was to be allowed to go on his or her way in the absence of any detectable smell of alcohol from the breath. But finally, if the officers did detect a smell of alcohol on the breath of the driver, then the driver was to be required to give a breath test in terms of Section 6 of the Road Traffic Act 1988. It is to be noted that this set of instructions did not involve requiring any person to give a breath test unless there had been a smell of alcohol, which would open up the provisions of Section 6 of the Act.

It is not suggested that once the vehicle was stationary there was any flaw in these instructions or in what the particular constables did in this case. What is submitted is that, in stopping vehicles in pursuance of this overall campaign, the police were acting oppressively. The power of police to stop vehicles is to be found in Section 163(1) of the Road Traffic Act 1988 (as amended). The provision of that sub-section is that a person driving a mechanically propelled vehicle on a road must stop the vehicle on being required to do so by a constable in uniform. It is clear from that provision that the driver has therefore no choice if required by the police to stop and it was accepted on behalf of the appellant that the power of the police to stop is a general and unrestricted one. What would limit it would be the obvious limit of justice that the power must not be used capriciously or oppressively. It is not suggested that in the present case that what the constables did was capricious. Indeed, the opposite appears to be the case, since they were carrying out instructions under a general campaign. What is submitted is, that stopping vehicles in this way for this purpose amounts to oppression.

The randomness of what was done obviously distinguishes the case from situations where a particular person is stopped for reasons particular to himself. It is obviously possible to conceive of oppression in that sort of situation where one can say that the power is being abused or misused in relation to that person and not being put to its proper purposes. The fact that this was a general campaign appears to us to rule out that kind of oppression, of the use of a power out of balance and unfairly against a particular citizen. The question becomes, whether it is oppressive to use this sort of power as part of a general campaign. The general campaign itself has purposes which cannot be seen as contrary to the public interest. Expecting citizens to take part in and help with such purposes, cannot in principle be seen as oppressive. The question is whether stopping the vehicle with the citizen having no choice becomes oppressive.

The matter was portrayed as essentially one designed to get people to take the test, and no doubt that can, in general, be seen as its purpose. Nonetheless, it is clear from the instructions and from what the constables did, that any citizen who did not agree to take the test would not be forced to do so. We would observe that in a situation such as this, there is plainly a very substantial need for the police to act with considerable tact and good manners and to be very scrupulous in not going beyond the intended purpose of merely requesting and doing no more than that, unless reasonable grounds for suspicion arise through the smell of alcohol. But there is no suggestion in this case that there was any impropriety or failure in tact or good manners or scrupulousness in the way in which the powers were used. There being no speciality of that kind, the question becomes a very simple one of whether the use of the power was oppressive. Reference was made to the cases of Chief Constable of Gwent v Dash 1986 RTR 41 and Normand v Kellor 1995 SLT 798. In particular, we would draw attention to the passage in the opinion of Mr Justice MacPherson in the former case, where he said:

In the present case, there is no question of people being required to submit to breath tests at random and the random stopping appears to us to have been done in the carrying out of a perfectly proper campaign, which cannot be objected to. In these circumstances, it does not appear to us that one can describe what was done as oppressive and that being so, the appeal fails, and the questions asked in the appeal will be answered in the negative to question 1, in the affirmative to questions 2 and 3. The appeal is refused.