Alistair Stewart Harper v DPP
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE SULLIVAN,‘MR JUSTICE SULLIVAN’ |
| Judgment Date | 05 December 2001 |
| Neutral Citation | [2001] EWHC 1071 (Admin) |
| Docket Number | CO/3304/2001 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 05 December 2001 |
[2001] EWHC 1071 (Admin)
IN THE HIGH COURT OF JUSTICE
(THE ADMINISTRATIVE COURT)
Royal Courts of Justice
The Strand
London WC2
Mr Justice Sullivan
CO/3304/2001
MR NIGEL LEY (instructed by PETER W MARSH SOLICITORS, MELTON MOWBRAY, LEICESTERSHIRE LE13 OTZ) appeared on behalf of the Claimant.
MR KERRY BARKER (instructed by CROWN PROSECUTION SERVICE, WILTSHIRE AREA) appeared on behalf of the Respondent.
This is an appeal by way of case stated from a decision of His Honour Judge McNaught sitting with justices at the Crown Court at Swindon on 13th June 2001. The appellant had appealed against his conviction and sentence for three offences by the North West Wiltshire Justices sitting at Chippenham on 13th February. First, failing to provide a specimen for analysis on 9th January 2000, contrary to section 7(6) of the Road Traffic Act 1988; secondly, resisting Constable Hunt in the execution of his duty on 9th January; and, thirdly, resisting Constable Peffers in the execution of his duty on 9th January.
The facts are set out in a transcript of Judge McNaught's judgment and are, so far as relevant for present purposes, as follows:
“At about 8 o'clock…on Sunday 9th January [2000] in Chippenham, a motorist on the road saw a Saab motor car with some frontal damage and some steam coming from it, [situated on a road near to] a demolished road sign. The motorist followed the car. He was able to follow the trail the car was leaving to where it had parked on the driveway of a house and he saw a man by the front of the car looking at the damage.
He, the motorist, told the police and within a few minutes [they] arrived at the house, Kempton Park Court. They too had seen the trail which led to the parked car and they [too had seen] the damage [to the car]. They saw the parked car, they thought, actually touching the house. Opening one of the [car] doors, one of the police officers smelt intoxicating liquor and saw that the airbag in front of the driver had inflated.
They saw there were lights on upstairs in the house. They knocked on the door [because] they suspected the driver might have been drinking. One of them saw a face duck down and lights went off. No one answered the door. A warning was shouted that the police were going to use force. No reason was shouted by the police for the proposed forcing of the door and no attempt was made to [look around the house to see] if there was a back door and [whether or not] it might be open. Police Constable Hunt said he had in mind the powers given by section 4 of the Road Traffic Act. The door was forced [by the police and when they were] inside the police put on the lights. They identified themselves as police officers [that was hardly necessary as] they were in full uniform. They asked the occupants to identify themselves and say how many people were in the house. A male voice said ‘Two’. The police asked the driver of the Saab to identify himself and the appellant, Mr Harper, appeared in socks and boxer shorts.
The police concluded from his unsteady gait, his glazed eyes and slurred speech that he had been drinking. He was cautioned. PC Hunt asked him: “Are you the owner of the car?” “Yes.” “Were you the driver?” “Yes.”
Then [PC Hunt] used these words: [which are of critical importance in this case] “I am arresting you on suspicion of driving a motor vehicle on the road whilst over the prescribed limit through drink or drugs.”
Continuing with the judgment of His Honour Judge McNaught:
“The officer said when he used those words he had in mind the power to arrest under section 4, although it is right to note that the words are not entirely appropriate to that section.
The appellant resisted the arrest and struggled and was taken in handcuffs to the police station where he refused to undergo the station breath test procedure. I should add that before leaving the house, the house was searched and there was no-one else there. At the police station he was further arrested for the offences of assault with intent to resist arrest. It is common ground that there was no power to make that arrest. They are not arrestable offences.
The next day when he was completely sober he was interviewed.”
I interpose to say that the Crown Court has provided an addendum to the findings of fact in the judgment as follows:
“When the Appellant was interviewed the day after his arrest by PC Corke, the latter said to him, “Yeah I realise that. PC Hunt basically formed the opinion that you had consumed an excess amount of alcohol and from your replies about being the driver of the vehicle, has arrested you on suspicion of being over the prescribed limit, and then as he's arrested you, apparently there's been some kind of scuffle going on. Can you sort of tell me, coz I get the impression that err your side of the story is going to be a little different. Can you tell me what your version is?”
The appellant gave an account of what he had been doing. He said he had been the driver. He had some problems with his vision through losing a contact lens. There had been some sort of accident and that he had a smallish quantity to drink that day.
The learned judge then summarised counsel's submissions before him. On behalf of the appellant, Mr Ley, who has appeared on the appellant's behalf before me, submitted before the Crown Court that the entry of the police into the house was an unlawful entry. Firstly, because on the facts the police did not have reasonable suspicion at that time that someone in the house had driven whilst unfit; secondly, while the law does in certain circumstances permit an entry by force it was inappropriate here because it had not been shown that there was a need to use force, the back door could have been checked. Before officers effect an entry by force they must warn that they are going to do that, and say why they are going to do that. So, Mr Ley submitted, the officers entered as trespassers.
It is further submitted that if the entry was lawful, the arrest was unlawful because the words used by PC Hunt suggested that the ground for arrest was the non-arrestable section 5 offence, rather than the arrestable section 4 offence. It is convenient at this point to cite the relevant parts of sections 4 and 5 of the Road Traffic Act 1988. Section 4:
“Driving, or being in charge, when under influence of drink or drugs
(1) A person who, when driving or attempting to drive a [mechanically propelled vehicle] on a road or other public place, is unfit to drive through drink or drugs is guilty of an offence.
…
(6) A constable may arrest a person without warrant if he has reasonable cause to suspect that that person is or has been committing an offence under this section.
(7) For the purpose of arresting a person under the power conferred by subsection (6) above, a constable may enter (if need be by force) any place where that person is or where the constable, with reasonable cause, suspects him to be.”
Section 5:
“Driving or being in charge of a motor vehicle with alcohol concentration above the prescribed limit
(1) If a person-
(a) drives or attempts to drive a motor vehicle on a road or other public place, or
(b) is in charge of a motor vehicle on a road or other public place,
after consuming so much alcohol that the proportion of it in his breath, blood or urine exceeds the prescribed limit he is guilty of an offence.”
Reverting to the judgment of the Crown Court, the submission on behalf of the appellant was that if he had been arrested unlawfully, the court then had to exercise a discretion as to whether to consider the evidence of what had happened at the police station, and since the arrest was unlawful the only proper exercise of that discretion, bearing in mind Articles 5 and 8 of the European Convention on Human Rights, would have been to exclude the evidence. Any other exercise of the discretion, it was submitted on behalf of the appellant, would have been unreasonable in the Wednesbury sense.
The court considered those submissions and said as follows:
“Our conclusions are clear and unanimous. Firstly, we are quite sure the police did have reasonable suspicion that someone in the house had committed the arrestable offence of driving whilst unfit. There was an accident in which property had been damaged and somebody had left the scene. There was a trail leading to the house. There was damage to the car. The airbag had inflated, the car was parked in an irregular way, and there was the smell of drink.
Secondly, we are quite sure the police, having been refused entry, and having seen somebody duck down and the lights being put off, had the power to force entry. We think it is fanciful to suggest that they, in the circumstances, should have gone round to the back to see whether there was a back door and whether it was open. To open an unlocked but closed door would have, by itself, involved some force. Since there was no dialogue with the person or persons inside, it was pointless in the circumstances to say before using the force, exactly why the force was being contemplated. However, we are satisfied that once force had been used, within seconds, the police properly identified themselves, and made clear why they were there and what their business was.
…
“Once the police knew that the appellant was the driver, they had power to arrest under section 4. The right to enter and the right to arrest under section 4 were, we are satisfied, in PC Hunt's mind. The words used to arrest brought home to Mr Harper the reasons for his arrest and that was that he was being arrested for driving and having...
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Table of Cases
...! CCA! 227 , 250 ....................................... Harper v DPP [2001] EWHC Admin 1071, unreported! 349 .................................. Harper, DPP v [1997] 1 WLR 1406, [1998] RTR 200, DC! 464 ................................................ Harrison, DPP v [2007] EWHC 556 (Admin),......
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Evidence
...The answer to the first question was “no”; the second question did not therefore arise. Appeal dismissed. Harper v DPP [2001] EWHC Admin 1071, unreported, 5 December 2001, QBD (Admin) On the facts of this case (unlawfulness of arrest a matter of form not substance), it was not unreasonable......