Foster v Farrell
| Jurisdiction | Scotland |
| Judgment Date | 22 February 1963 |
| Date | 22 February 1963 |
| Docket Number | No. 8. |
| Court | High Court of Justiciary |
HIGH COURT.
Lord Justice-Clerk. Lord Mackintosh. Lord Strachan.
Statutory Offences—Road Traffic Acts—Evidence—Admissibility of statement by accused driver—Obligation to give information as to identity of driver—Whether information sought "by or on behalf of a chief officer of police"—Road Traffic Act, 1960 (8 and 9 Eliz. II, cap. 16), sec. 232 (2).
The Road Traffic Act, 1960, provides by sec. 232:—"(2) Where the driver of a vehicle is alleged to be guilty of an offence to which this section applies—(a) the owner of the vehicle shall give such information as to the identity of the driver as he may be required to give—(i) by or on behalf of a chief officer of police …; and (b) any other person shall if required as aforesaid give any information which it is in his power to give and may lead to the identification of the driver."
An accused was charged with three contraventions of the Road Traffic Act, 1960, to which the provisions of sec. 232 (2) applied. It was proved that a police officer investigating the case required the accused, before he had cautioned him, to say who was the driver of the car concerned in the charges, and the accused admitted that he was the driver. The accused was not the owner of the car. There was no finding on the question whether the giving of the information was required "by or on behalf of" the chief constable. It was conceded that the statement was inadmissible at common law.
Held that the accused's statement was inadmissible in evidence because it was necessary, in order to comply with sec. 232 (2), to prove that the statement had been elicited by a person who had been authorised either generally or specially by the chief constable to require the giving of such information.
Observed (1) that the words "any other person" in sec. 232 (2) (b) included a driver who was not the owner of the vehicle (following Bingham v. BruceWLR, [1962] 1 W. L. R. 70); (2) that a statement obtained under sec. 232 was not only available to the police for the purpose of aiding their investigations but was also admissible in evidence (distinguishing Chalmers v. H. M. Advocate. 1954 J. C. 66); (3) that it was unnecessary to warn or caution a person before requiring him to give information under sec. 232.
Hugh Craig Foster was charged in the Sheriff Court at Airdrie on a complaint at the instance of James Farrell, Procurator-Fiscal, containing three charges of contraventions of sections 3 (1), 6 (1) and 77 (1) respectively of the Road Traffic Act, 1960. These are offences to which the provisions of section 232 of the Act apply.1
The accused pleaded not guilty to the charges and was tried on 24th October and 19th November 1962. In the course of the evidence counsel for the accused objected to the admission in evidence of the accused's reply, when he was asked, by the police officers who were witnesses for the Crown, to say who was the driver of the car involved in the offences. The Sheriff-substitute (Young) repelled the objection, and at the conclusion of the evidence found the accused not guilty of contravening section 3 (1) and guilty of contravening sections 6 (1) and 77 (1) of the Act.
At the request of the accused, the Sheriff-substitute stated a case for the opinion of the High Court of Justiciary.
The only parts of the stated case relevant to the questions with which this report is concerned were as follows:—"The following facts were admitted or proved:—(1) The appellant is managing director of Foster's Sports Ltd., and resides at 38 Blair Road, Coatbridge. (2) Foster's Sports Ltd., are registered as the owners of a Ford motor car number XGG 443 which the appellant uses. … (14) About 10.20 p.m. the appellant was seen in his dwelling-house by Sergeant Reeve and Police Constable Jarvie and told by them they were inquiring as to who was the driver of the car which it was alleged had knocked down a man in Blairhill Street about twenty minutes previously. Accused's car was in his garage and the radiator was warm. The entrance
to the garage is awkward. The car was undamaged. (15) Sergeant Reeve called upon the appellant to say who was the driver of the car in Blairhill Street and the appellant after some quibbling said that he had been driving the car. The appellant was not given any caution or warning before answering the question. … This case again raises the question of whether a person who is suspected of being guilty of a contravention of the Road Traffic Act, 1960, may be asked if he is the driver of a motor car belonging to him and whether his answer to that question may be used in evidence against him in charges relating to contravention of the said Act. So far as I know this has not been the matter of judicial decision by the High Court of Justiciary in Scotland. It was raised in a recent case before me—Russell v. Farrell—in which an appeal by stated case against my decision was refused by your Lordships on 19th October 1961 (not reported). Your Lordships did not find it necessary to deal with this point. As the stated case in Russell may not be readily available I quote part of what I said in that case in so far as it is relevant to the point in this case: “So far as I know this question of the competency of such a question being made to an accused person and then used in evidence in order to help identification has never been raised in any case before, although it is referred to incidentally in the case of Copland v. Shields, 1959 S. L. T. (Sh. Ct.) 50. The test seems to me to be whether it is fair to an accused or a person under suspicion to ask him any such question in a common law crime or a statutory offence if there are no statutory provisions which take it out of that test. I agree with Sheriff Bryson that it might be said that the question is unfair in that the answer may tend to incriminate the person and is made against that person's interests and inclination but Parliament has imposed such a duty on him. If that duty is imposed by Parliament it seems to me that the Fiscal is quite entitled to prove what took place when that duty is incidentally being carried out. It is important to note that not only is a person who is a driver of a vehicle bound to so disclose himself to the police but even if the police never went near him he is bound to go and report an accident to the police if he was involved in it. I think one is apt to be confused in this case by the fact that the sergeant at the same time was going for the purpose of cautioning and charging the appellant."I think the matter might be tested by asking whether the police are entitled to go at any time and ask if a suspected person was the driver of the vehicle although at the same time they were not going to caution and charge him. If that is the test to be applied then clearly that evidence would be competent. I cannot see that it makes any difference that at the same time the sergeant was ready whether he admitted he was the driver or not, to caution and charge him. Wilkinson on Road Traffic Offences, (4th ed.) at p. 219, refers to a case—Hawkes v. HinchleyUNK, (1956) 129 J. P...
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Miln v Cullen
...and had not been cautioned and that it would therefore be unfair to him to admit his reply. Held, distinguishing Foster v. Farrell, 1963 J. C. 46, that there had been no unfairness to him and that consequently his reply was admissible in evidence at common law. Chalmers v. H. M. Advocate, 1......
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Brown v Stott (Procurator Fiscal, Dunfermline)
...Series A No 35; (1980) 2 EHRR 439 Eckle v GermanyHRC Series A No 51; (1982) 5 EHRR 1 Ferreira v Levin NO 1996 (1) SA 984 Foster v FarrellSC 1963 JC 46 Funke v France Series A No 256–A; (1993) 16 EHRR 297 Hoffman v United States 341 US 479 (1950) JP, KR and GH v AustriaENR Application Nos 15......
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Margaret Anderson Brown V. Procurator Fiscal, Dunfermline
...know and could not with reasonable diligence have ascertained who the driver of the vehicle was." As this court held in Foster v. Farrell 1963 J.C. 46, dealing with the equivalent provision under the Road Traffic Act 1960, Section 172 changes the common law position in two respects. First, ......
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Brown v Stott (Procurator Fiscal, Dunfermline)
...that an oral admission made in response to a requirement under the section which preceded section 172 is admissible in evidence: Foster v. Farrell 1963 JC 46. This has never to my knowledge been doubted in England and Wales. Where notice of the requirement under section 172(2) is given by ......