In the Scottish Courts
| Published date | 01 April 1973 |
| Date | 01 April 1973 |
| DOI | http://doi.org/10.1177/002201837303700208 |
| Subject Matter | Article |
In
the Scottish Courts
"ARREST"
AND
-DRMNO"
AND
THE
BREATHAL
YSER
S
WANKIE,
the
accused in Swankie v. Milne
(High
Court
on
Appeal,
November
1972),
was
the
driver of a vehicle
which
overtook apolice
car
in such a way as to force
the
police
car
onto
the
verge in
order
to avoid a collision.
The
police,
not
unnaturally
then
chased
the
accused
and
stopped
him
a few
minutes
later
while he
was
still
driving
his
car.
The
police,
who
were
not
in
uniform,
spoke to
the
accused
and
formed
the
opinion
that
he
had
been
drinking.
They
then
radioed for
uniformed
officers to
attend.
The
uniformed
officers
attended
within
about
10
minutes;
when
they
arrived
they
formed
the
opinion
that
the
accused
had
alcohol
in his
body,
and
gave
him
a
breathalyser
test
which
proved
to be
positive.
The
sheriff's findings as to the actings of
the
plain
clothes
officers
after
they
had
summoned
the
uniformed
officers by radio,
were as follows;
"After
detaining
the
accused,
the
plain clothes police officers
preferred
no
charge
against
him;
on stopping
the
car
driven
by
the
accused
the
plain
clothes policemen took
the
keys of
the
car
from
him.
Although
the
plain clothes police
did
not
formally
arrest
the
appellant
they
detained
him
and
had
he
attempted
to leave would
have
prevented
him".
The
accused was convicted,
and
appealed
by
stated
case.
His
argument
on
appeal
was basically
that
he was
not,
at
the
time he
was asked to
take
the
breathalyser
test, aperson
"driving
or
attempting
to
drive"
avehicle,
and
that
therefore
the
test was
not
authorised
by section 2 of
the
Road
Safety
Act
1967
(now
the
Road
Traffic
Act
1972,
s.8).
The
accused
argued
first
that
at
the
time of
the
breathalyser
test he
had
already
been
arrested
by
the
plain
clothes police,
and
therefore
could
not
be said to
have
been
driving
the
car.
It
is
an
interesting
commentary
on
the
state
of
the
Scots
law
of
arrest
that
while
the
Fiscal was
prepared
to concede
that
he
had
been
arrested,
the
court
took
the
view
that
he
had
not
been arrested.
The
court
drew
adistinction between aperson
who
has
been
arrested
and
aperson who,
"when
driving,
had
merely been
stopped
by
the
130
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