Miln v Cullen
| Jurisdiction | Scotland |
| Judgment Date | 22 November 1966 |
| Date | 22 November 1966 |
| Docket Number | No. 5. |
| Court | High Court of Justiciary |
HIGH COURT.
Lord Justice-Clerk. Lord Strachan. Lord Wheatley.
Evidence—Competency—Statement of accused—Admissibility of statement by accused when under suspicion—Accused not cautioned—Statement made in reply to question by constable—Police—Duty of police to persons under suspicion.
About twenty minutes after a collision between a motor lorry and a motor car the driver of the lorry made a statement to two police constables in which he indicated that a man, who was then standing about 100 yards from the locus, was the driver of the car, was responsible for the collision and was in his opinion drunk. On approaching the man the constables formed the opinion that he was under the influence of drink, and one of them, who had no authorisation under sec. 232 (2) of the Road Traffic Act, 1960, then asked him if he was the driver of the car. The man replied that he was. After giving his name and address and producing his driving licence, he was cautioned and charged with a breach of sec. 6(1) of the 1960 Act. At his trial objection was taken to the admission in evidence of his reply to the constable's question, on the ground that, when the question was put to him, he was under suspicion 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, 1954 J. C. 66,commented on.
Thomas Cullen was charged in the Sheriff Court at Glasgow on a complaint at the instance of Russell Leonard James Miln, Interim Procurator-fiscal, which set forth, inter alia, that "on 14th April 1965 on the road in Milton Street, Glasgow, at a part thereof near Dobbies Loan … (2) you were driving said motor car registered number YYS 686 while you were unfit to drive through drink or drugs: Contrary to the Road Traffic Act, 1960,1 section 6 (l)."2
The accused pleaded not guilty and the case proceeded to trial on 25th February 1966. In the course of the trial the agent for the accused objected to the admission in evidence of the accused's reply when asked by a police officer whether he was the driver of the car mentioned in the complaint. The Sheriff-substitute (Pirie) sustained the objection, and, as there was otherwise insufficient evidence of identification of the accused as the driver of the car, found him not guilty.
At the request of the Procurator-fiscal the Sheriff-substitute stated a case for the opinion of the High Court of Justiciary.
The case set forth that the following facts were proved or admitted:—"(1) At 6.30 p.m. on 14th April 1965 George Sievwright was driving motor lorry HUS 491 westwards in Milton Street, Glasgow, when it was involved in a collision with motor car YYS 686. (2) At 6.50 p.m. on said date a police land rover by chance came upon the scene of said collision. (3) Police Constables Blair and Laing left the land rover and spoke to Sievwright. (4) As a result of a statement made by Sievwright, Constables Blair and Laing walked towards a group of men standing about one hundred yards from the scene of the accident. (5) When the respondent detached himself from said group, just before the constables reached it, Constable Blair asked the respondent if he was the driver of YYS 686. (6) At the time said question was put by Constable Blair the respondent had previously been pointed out by Sievwright and had not been cautioned or charged. (7) The respondent replied that he was the driver and gave his name and address. (8) On being cautioned and charged with contraventions of sections 3 and 6 (1) of the Road Traffic Act, 1960, the respondent made no reply."
The case further set forth:—"By joint minute of admissions it was admitted that:—(1) At or about 6.30 p.m. on Wednesday, 14th
April 1965 the accused Thomas Cullen was unfit to drive through drink or drugs …"The Crown did not ask for conviction on the first charge and I accordingly returned a verdict of “not guilty”. During the course of the trial the respondent's agent objected to the admissibility in evidence of the respondent's reply to Constable Blair's question referred to in finding (5), at a time when he was under suspicion and had not been cautioned or charged. Sievwright's identification of the respondent as the driver of YYS 686 immediately after the accident and his subsequent pointing to the respondent to the two constables was very clear and requires no further comment. It was conceded by the Crown that Constable Blair had not been authorised, either generally or specifically, by the Chief Constable to require on his behalf the giving by the respondent of the information for which he asked. It was conceded by the Crown that Sievwright's evidence was not corroborated and that accordingly the Crown case must fail if the objection to the admission was sustained. It was conceded by the respondent's agent that conviction must follow if the statement was held to be admissible in evidence. No reference was made to authority relevant to the point at issue subsequent to Foster v. FarrellSC, 1963 J. C. 46. In the light of the concessions made by the Crown and the decision inFoster I regarded myself as being bound to sustain the objection to the admissibility of the respondent's admission and accordingly to return a verdict of “not guilty” to charge (2)."
The question of law for the opinion of the Court was:—"Should I have admitted the evidence of the respondent's reply to the question put to him as to whether or not he was the driver of the car YYS 686, and accordingly have found him guilty of a contravention of section 6 (1) of the Road Traffic Act, 1960?"
The Court remitted to the Sheriff-substitute to report upon, inter alia, the details of the evidence of the police constables as to the information given to them before they approached the accused. This report, the substance of which appears from the judges' opinions, having been made, the case was heard before the High Court of Justiciary on 2nd November 1966.
At advising on 22nd November 1966,—
LORD JUSTICE-CLERK (Grant).—On the evening of 14th April 1965 the witness George Sievwright was driving a motor lorry when it was involved in a collision with a motor car. Twenty minutes later Constables Blair and Laing came on the scene. Sievwright pointed out the respondent to them as being the driver of the car, indicated that the respondent was responsible for the accident and informed them that he thought the respondent was drunk. The constables went up to the respondent and formed the opinion that he was unfit to drive through drink or drugs—as, in fact, he admittedly was. Constable Blair then asked him if he was the driver of the car and the respondent replied that he was. The respondent, having given his name and address and produced his driving licence, was then cautioned and charged with contraventions of sections 3 and 6 (1) of the Road Traffic Act, 1960.9 He made no reply.
It is conceded by the Crown that the sole corroboration of Sievwright's evidence in the court below that the respondent was the driver of the car is the respondent's reply to Constable Blair. The question is whether that reply was admissible in evidence. The respondent's
contention, which, after legal argument, was upheld by the Sheriff-substitute in the end of the day, is that it was not, on the ground that, when the respondent was asked if he was the driver of the car, he was under suspicion of having driven the car while under the influence of drink, that he had not been cautioned and that it would accordingly be unfair to him to admit the reply. I should add that it is also conceded by the Crown that Constable Blair had not been authorised by the Chief Constable under section 232 of the Road Traffic Act, 1960, to request the giving of the information which he sought from the respondent.In sustaining the...
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Subject Index
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