Wiltshire v Barrett

JurisdictionEngland & Wales
CourtCourt of Appeal
JudgeLORD JUSTICE DAVIES,LORD JUSTICE SALMON
Judgment Date11 March 1965
Judgment citation (vLex)[1965] EWCA Civ J0311-5

[1965] EWCA Civ J0311-5

In The Supreme Court of Judicature

Court of Appeal

From Mr. Justice Lloyd-Jones

Before

The Master of the Rolls

(Lord Denning)

Lord Justice Davies and

Lord Justice Salmon

Douglas George Wiltshire
Plaintiff Respondent
and
Dennis Stanley Barrett
Defendant Appellant

MR. RAYMOND STOCK, Q. C. and MR. J. H. INSKIP (instructed by Messrs Sharpe, Pritchard & Co., Agents for Mr. A. Norman Schofield, Town Clerk, Southampton) appeared as Counsel for the Appellant.

MR. E. S. FAY, Q. C. and MR. E. T. READ (instructed by Messrs Bernard Chill & Axtell) appeared as Counsel for the Respondent

1

THE MASTER OF THEROLLS: This case raises two important points of law in regard to the power of the police to arrest. We have no transcript of the evidence, but I will state the facts, as recounted to us by counsel, such as to raise the points of law.

2

Mr. Wiltshire is a grocer in Southampton and has his home at Botley. On 17th December, 1962, at about 10.45 p.m. he was driving his car from Southampton to his home at Botley. At Thornhill a police car overtook him and signalled to him to stop. The police officers thought he was going too fast and exceeding the speed limit. He stopped. Two police officers came back and spoke to him. One of them was P. C. Barrett He asked Mr. Wiltshire for his name and address. Mr. Wiltshire made no reply. The constable asked him to get out of the car. He did not. He clung to the steering wheel with his feet pressed against the floor of the car. The police officers said he was staring ahead with a glassy look in his eyes as if under the influence of drink. Several times, they said, they asked him to get out but he did not. He said: "I'm not moving" The police officers say they then told him that they were arresting him on suspicion of being under the influence of drink and unfit to drive. Mr. Wiltshire says that he was never told he was being arrested. Howsoever that may be, the officers tried by force to get him out of the car. He resisted and clung to the steering column. He would not budge. The police radioed for assistance. Another police car came up with two more officers. Mr. Wiltshire says they used their truncheons on him. Eventually they managed to get him out of his car and took him in a patrol car to the police station. His solicitor was sent for. So was the police doctor. The doctor examined him from 11.50 p.m. to 12.25 a.m. Mr. Wiltshire had been injured quite a lot in the struggle with bruises and abrasions all over. The police doctor examined his injuries and also examined him for drink. He came to the conclusion that at that time Mr. Wiltshire was not unfit to drive. Thereupon — and this is theimportant point — Mr. Wiltshire was forthwith released from custody without being charged at all. The officer in charge of the police station told Mr. Wiltshire that he would make a report to the Chief Constable of Southampton to see if he should be prosecuted and he would be notified of the result. A few days later he was notified that the Chief Constable had decided not to prosecute: and no further action was taken

3

On 11th June, 1963, Mr. Wiltshire brought this action against P. C. Barrett. He alleged that "the defendant assaulted and beat the plaintiff about the head, face, arms, hands, body and legs with (inter alia) a stick or truncheon, thereby causing him serious injuries" that the plaintiff was a week off work that his suit and overcoat were damaged beyond repair; and that he suffered special damage of £35. 18s.6d. The defendant pleaded that "If, which is not admitted, the defendant struck the plaintiff, he did so for the purpose of lawfully arresting him and the blows struck were no more than reasonably necessary for that purpose".

4

The action was tried at the winchester Assizes on six days in July, 1964. After all the evidence was concluded, Mr Fay, Q. C., who appeared for Mr. Wiltshire, submitted on two grounds that the arrest was unlawful. The Judge accepted one of the submissions and directed the jury that the only issue was as to damages. The jury awarded him £589. 17s.6d: and the Judge entered judgment accordingly. The defendant appeals

5

There is at common law no power of arrest for this offence. It is given only by statute. Section 6(l) of the Road Traffic Act, 1960, creates the offence. It enacts that "a person who, when driving or attempting to drive a motor vehicle on a road or other public place, is unfit to drive through drink or drugs, shall be liable" to fine or imprisonment. Then Section 6(4) says that "A police constable may arrest without warrant a person committing an offence under this section"

6

The First Point

7

Mr. Fay submitted that this section only empowered a constable to arrest a person who was actually committing an offence under the section: and accordingly the constable was only justified if he could prove that the person was in fact guilty. Whereas Mr. Stock submitted that a constable was entitled to arrest any person who was apparently committing an offence; and accordingly the constable was justified so long as it appeared to him that the man was unfit through drink, even though the man should afterwards be found to be not guilty

8

This question has to be answered by examining the contents of this particular statute, see Barnard v. Gorman. 1941 Appeal Cases, pp. 378, 387. On examining this statute, I find it very similar to the statute considered by this Court in Trebeck v. Croudacs. 1918, 1 King's Bench, p. 158. Just as Lord Wright thought that in that context "drunk" meant "apparently drunk" (see 1941 Appeal Cases at p. 394), so I think that in this context "committing an offence" means "apparently committing an offence". My reasons are these: this statute is concerned with the safety of all of Her Majesty's subjects who use the roads in this country. It is of the first importance that any person, who is unfit to drive through drink, should, not be allowed to drive on the road: and that the police should have power to stop him from driving any further. The most effective way to do it is by arresting him then and there. The police have to act at once, on the facts as they appear on the spot: and they should be justified by the facts as they appear to them at the time and not on any ex post facto analysis of the situation. Their conduct should not be condemned as unlawful simply because a jury afterwards acquit the driver. We all know how merciful some juries are to drivers who have been drinking. As often as not they acq uit them. The jurors are inclined to say to themselves: "There but for the grace of God go I". If every motorist who is acquitted is to have an unanswerableclaim for damages against the police, I should think that the police would soon give up trying to arrest anyone: and that would be very bad for us all. The police must be entitled to act on the facts as they appear to them at the time

9

Our attention was drawn to the wording of Section 217, sub-section (l) of the Act, which says that "a person who takes and drives away a motor vehicle without having either the consent of the owner thereof or other lawful authority" shall be liable to fine or imprisonment: and to sub-section (4), which says that "a police constable may arrest without warrant a person reasonably suspected by him of having committed or attempted to commit an offence under this section". It was said that this section expressly empowered arrest on reasonable suspicion. If Parliament intended a like power under Section 6, surely they would have expressed it in like language. But I think different considerations apply. Section 217 deals with offences where the power of arrest may be exercised some time after the offence has been committed. It may be based, not on the constable's own observation, but on information received from others. Whereas Section 6 deals with offences where the power of arrest is to be exercised at the very time when a person is committing the offence, or very soon afterwards. So much so that the constable acts on his own observation. Naturally enough there is a difference in language

10

My conclusion is that, on the true construction of Section 6, a constable is justified in arresting the driver of a motor car if the driver was apparently committing an offence under the section. Sometimes the test has been put in rather a different way. The test has been said to be that a constable is justified if he honestly believed on reasonable grounds that the driver was guilty, see, for instance, Trebeck v. Croudace itself, 1918, 1 King's Bench at p. 165. But we have had several cases in recent years which show that the test of "honest belief in guilt" is fraught with ambiguities andgives rise to much difficulty in summing-up to a jury, no matter whether it is an action for assault and false imprisonment or for malicious prosecution, see Glinski v. Mclver. 1962 Appeal Cases, p. 726. I prefer to approach the case in this way: The constable is justified if the facts, as they appeared to him at the time, were such as to warrant him bringing the man before the Court on the ground that the man was unfit to drive through drink. In other words, such as to warrant him thinking that the man was probably guilty. It is for the jury to find, in case of dispute, what were the facts as they appeared to the constable at the time, that is to say, the grounds on which he formed his opinion; and then it is for the Judge to rule whether those facts were such as to warrant him forming that opinion, that is to say, whether those grounds, considered objectively, afforded reasonable cause, see Liversidge v. Anderson. 1942 Appeal Cases, p. 206, at pp. 228-9, 268: Dallison v. Caffery. 1964, 3 Weekly Law Reports, p. 385, at pp. 396, 402. But it is sometimes not practicable to ask the jury to find specifically the facts as they appeared to the constable. In those circumstances the better...

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