Appellant: Scott, Q.C., Solicitor-Advocate; Mason; Capital Defence

Respondent: Prentice, Q.C., A.D.; Crown Agent

4 November 2011

Introduction

[1] The appellant was prosecuted on summary complaint at Oban Sheriff Court on a charge of contravening section 5(1)(b) of the Road Traffic Act 1988, as being in charge of a motor vehicle whilst having consumed a level of alcohol in excess of the prescribed limit. He had been found by two police officers sitting in the passenger seat of a car parked in a car park. His then girlfriend, Elizabeth McGinty, was sitting in the driver's seat. A member of the public had expressed concerns to the police about them because they were thought to be drunk. As there was vomit beside the driver's door and Miss McGinty was seen to be upset, the police officers decided to speak to the appellant. Having formed the view that he had been drinking, one of the police officers cautioned him but did not give him any specification about the offence which he was suspected of having committed. The appellant made no reply when cautioned. He was then asked three questions, to which he gave answers. They were as follows:

"Q - Where are the keys for the vehicle?

A - In my pocket.

Q - Do you drive the car?

A - Yes.

Q - Are you going to drive the car?

A - Ah, well she wisnae well or Aye, well she wisnae well."

The appellant then removed the car keys from his trouser pocket. He was asked whether he had anything to drink in the last 20 minutes and replied that he had not. He was then given a roadside breath test which he failed. He was taken to Oban police station where he gave a breath/alcohol reading that was well in excess of the prescribed limit.

[2] The appellant pled not guilty to the complaint. He went to trial before the Sheriff on 31 May 2010 and 2 July 2010. The evidence of the questions and answers was led without objection from his solicitor. After the Crown had closed its case, the appellant's solicitor challenged the admissibility of this evidence on the ground that the police had not informed the appellant of the offence of which he was suspected before he was questioned. The Sheriff repelled this submission. After hearing evidence from the appellant and Miss McGinty, he found the appellant guilty. The appellant then lodged an appeal against his conviction. Among the grounds on which he applied for a stated case was the submission that the act of the Lord Advocate in seeking a conviction in reliance on the evidence of the police interview was incompatible with his right to a fair trial under Article 6(1) of the European Convention on Human Rights.

[3] Following a procedural hearing on 26 January 2011 and at the request of the Lord Advocate, this court referred the following question to the Supreme Court:

"Whether the act of the Lord Advocate in leading and relying on evidence obtained in response to police questioning of the appellant conducted under common law caution at the roadside and without the appellant having had access to legal advice was incompatible with the appellant's rights under article 6(1) and 6(3)(c) of the European Convention on Human Rights, having regard in particular to the decision of the Supreme Court of the United Kingdom in Cadder v HM Advocate 2010 SLT 1125."

The Supreme Court answered that question in the negative: Ambrose v Harris 2011 SLT 1005. It noted that that left open the question whether, taking all the circumstances into account, it was fair to admit the whole or any part of this evidence: see paras 68 and 121 per Lord Hope and Lord Clarke respectively.

[4] In the light of the decision of the Supreme Court, the appellant's conviction has been challenged on two bases: first, that the evidence of the appellant's answers to the questions put to him had been unfairly obtained and should not have been admitted; and secondly, that the Sheriff had failed to deal adequately with the appellant's defence that there was no likelihood of his driving while the proportion of alcohol in his breath, blood or urine exceeded the prescribed limit.

Fairness

[5] It was conceded on behalf of the appellant that there had been no unfairness in the police officer's putting the first question to the appellant. Once that question had been answered, however, there were plainly grounds for suspecting that the appellant was in contravention of section 5(1)(b) of the 1988 Act, since he was sitting in the car with the keys in his pocket and he appeared to have been drinking. It was unfair to put further questions, calculated to confirm that suspicion, when the appellant (a) was drunk, (b) did not know what he was suspected of and (c) had no access to a solicitor. Reference was made to Miln v Cullen 1967 JC 21 and to McClory v MacInnes 1992 SLT 501. On behalf of the Crown, on the other hand, it was submitted that there had been no unfairness in the procedure followed. A caution had been administered to the appellant. There was no evidence to suggest that his level of intoxication was such as to affect the fairness of the procedure, and no such suggestion had been made during the trial.

[6] As Lord Justice General Emslie stated in Lord Advocate's Reference (No 1 of 1983) 1984 JC 52 at p58, a suspect's self-incriminating answers to police questioning are admissible in evidence unless they have been extracted from him by unfair means. Such means will include improper forms of questioning tainted with an element of bullying or pressure designed to break the will of the suspect or to force from him a confession against his will. They will also include questioning carried out without access to a solicitor in circumstances where such access is necessary, such as those which existed in Cadder v HM Advocate. The rationale of the Strasbourg judgments on which the latter decision was based is one which has long been recognised in Scots law, namely the need for protection of the suspect against abusive coercion on the part of the authorities ( see Ambrose per Lord Hope at para 32).

[7] In the present case, the appellant was cautioned before he was asked any questions. The whole point of the caution was to make it clear to him that he was under no obligation to answer the questions that were subsequently put to him. He was therefore under no coercion or compulsion to answer the questions. There is no suggestion that the questioning was carried out in an intimidatory or oppressive manner. The appellant was not in police custody or otherwise in a physical environment which might be intimidating. There is no evidence to suggest that the appellant's state of intoxication was such as to compromise the fairness of the procedure. In these circumstances, we can see no unfairness in what occurred.

The appellant's defence

[8] The Sheriff found that the appellant and Miss McGinty were on holiday in Oban at the relevant time. They were staying in a guest house on the Corran Esplanade, where breakfast was served until 9 am. On the day in question they had left Oban at approximately 1 pm in order to go sightseeing. The car was driven by Miss McGinty, to whom it belonged. When they returned to Oban Miss McGinty parked the car in the public car park adjacent to Corran Esplanade, within a short walking distance of the guest house. The appellant and Miss McGinty then spent some time in a local public house, until they had an argument and the appellant was asked to leave. The appellant then returned to the car, but discovered that he did not have the keys. He returned to the public house, where he was given the car keys by Miss McGinty. He then returned to the car and sat in the passenger seat, while Miss McGinty remained in the public house. After 10 or 15 minutes the appellant returned to the public house and asked Miss McGinty to come out. He then returned to the car and again sat in the passenger seat. Miss McGinty left the public house shortly afterwards and sat in the driver's seat of the car. The couple continued their argument. During the course of the argument Miss McGinty was sick. The police officers arrived shortly afterwards. That would appear to have been shortly after 6.55 pm, when the officers were instructed to go to the car park. The appellant would have been below the legal limit to drive at 9.01 am the following morning.

[9] The appellant gave evidence that he would not have driven the car that evening. He and Miss McGinty would have walked the short distance to the guest house rather than drive. He had sat in the car to wait for her. They were due to go home to Coatbridge the following day, but would not have left before the late morning or early afternoon. He would not have driven because he would still have been over the limit. The earliest he would have driven would have been mid-afternoon. He would still have been at breakfast until after 9 am. It was "more than his job was worth to drink-drive". He was a self-employed plumber.

[10] Miss McGinty also gave evidence that they would have walked to the guest house that evening. According to her evidence, a decision had been made that she would be driving home the next day. She went for breakfast between about 8.30 and 9 am. She could not remember if the appellant had come down for breakfast that morning. She had retrieved the car at about 11.30 am. They would not have left Oban until late morning or early afternoon. They had never left to go home before 9 am on any of their previous trips to Oban.

[11] The Sheriff did not make any findings in relation to that body of evidence, or in relation to the likelihood or otherwise that the appellant might have driven the car while over the prescribed limit. In his account of the reasons for his decision, the only passage relating to the statutory defence is as follows:

"I was satisfied and in agreement with the Fiscal that the reply [scil "Aye, well she wisnae well" or "Ah, well she wisnae well"] was clearly indicative of an intention to drive and in my opinion that reply negated the defence of 'no likelihood of driving' on a balance of probabilities."

The submission by the Procurator Fiscal with which the Sheriff expressed agreement was, as narrated by the Sheriff, that "if the court were to accept that the accused had made the reply spoken to by the police officers then the defence of no likelihood of driving could not be made out."

[12] We have difficulty understanding the Sheriff's reasoning in relation to this matter. The answer in question was not logically conclusive of the question whether there was no likelihood of the appellant's driving while over the prescribed limit, regardless of all the other evidence bearing on that issue; but the Sheriff appears to have treated it as if it were. The consequence is that he has failed to state which parts, if any, of the evidence of the appellant and Miss McGinty he accepted, and which he rejected, or to examine in a balanced manner all the facts found to be proved which bear on this issue. There is, for example, no mention of the fact that their accommodation was only a short walking distance away, nor of the fact that at all material times - even when he was alone in the car - the appellant sat in the front passenger seat. We find it difficult to avoid the conclusion that the appellant's defence has not been properly considered. On that basis, and bearing in mind that there was a body of evidence which provided some support to the appellant's defence, we feel obliged to quash the conviction. For what is required in a case of this kind, see Ludriecus v Thomson 2008 SCCR 996, especially per Lord Wheatley at para 12.

Disposal

[13] The issue raised in the first question posed in the Stated Case, which asks whether the Sheriff erred in repelling a submission of no case to answer, was not pressed on behalf of the appellant, and we answer that question in the negative. The second question, which asks whether the Sheriff erred in holding that the replies made by the appellant to the questions from the police were admissible in evidence, is also answered in the negative. The third question, which asks whether the Sheriff erred in holding that the appellant had not established the defence of no likelihood of driving, is answered in the affirmative, on the basis that we are not satisfied that the Sheriff dealt adequately with a potentially valid defence. It follows that the fourth question, which asks whether the Sheriff erred in convicting the appellant, is also answered in the affirmative. The fifth question, which relates to sentence, is superseded.