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  4. Driver's reply that he dozed off not unfairly obtained

Driver's reply that he dozed off not unfairly obtained

10th May 2021 | criminal law | Criminal court work

Police officers did not act unfairly in asking the driver of a crashed car what he could tell them about the accident, with a prior caution but with no offer of access to a lawyer, and a statement in reply that he “must have dozed off” was admissible in evidence on a charge of dangerous driving, the Sheriff Appeal Court has held.

Sheriff Principal Mhairi Stephen QC, Sheriff Principal Aisha Anwar and Appeal Sheriff Norman McFadyen gave the decision in refusing an appeal by Anthony Wilson against his conviction at Dumfries Sheriff Court of a contravention of s 2 of the Road Traffic Act 1988.

Police had found the appellant's car on the hard shoulder of the A74(M) after it had apparently collided with the central barrier. The appellant, who was unhurt, was taken to the back of the police vehicle and required to state who the driver had been. He confirmed it had been himself. He was cautioned and the police put some questions to him, the first of which was a general one as to what he could tell them about the collision. He answered that he had driven from Manchester Airport following a holiday and “must have dozed off because the next thing I knew I was woken by the sound of my car hitting the central barrier”. 

In evidence the police position was that they did not know whether any offence had been committed until the appellant had clarified his position. Following a trial within a trial the sheriff decided that the interview had been conducted fairly and the evidence was admissible.

On appeal the appellant contended that the interview was unfair at common law. As legal advice could have been sought via helpline, and the appellant had not been made aware of the possibility, the questioning while in the police car was equivalent to being in police custody and was oppressive and intimidatory without access to a lawyer. He should have been arrested and taken to a police station.

Giving the opinion of the court refusing the appeal, Sheriff Principal Stephen said the issue was truly one of fairness, which involved careful consideration of the facts and circumstances. The first, general question could not be categorised as questioning designed to elicit an incriminating response. “The fact that an incriminating response emerged does not render a fair question or process unfair... Conducting the interview in the back of the police vehicle, whilst not ideal, cannot be considered either intimidating or oppressive given the locus of the accident... Practical considerations would suggest that conducting the interview at the roadside might be unsafe and noisy.”

She concluded: “We consider that the sheriff was entitled to find that Ambrose v Harris [UK Supreme Court, 2011] was in point; to repel the objection to the fairness of the interview and to admit the appellant’s answers as evidence.”

In further observations she added: “we would be concerned at both the principle and the practicality of requiring police officers to arrest drivers in circumstances such as existed in this case where the driving may possibly have been dangerous or careless or indeed, no driving error may have been attributable to the driver at all. Arguably, interview at a police station, even with a solicitor in attendance, is more intimidating for a person in the appellant’s situation”. The availability of arrest without warrant depended on whether the offence was imprisonable, and careless driving, which might have been the appropriate charge, was not.

Click here to view the opinion of the court.

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