Beckett, R (on the application of) v Aylesbury Crown Court [2004] EWHC 100 (Admin)

Case No CO/348/2004[2004] EWHC 100 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Venue Royal Courts of JusticeDate Thursday, 22nd January 2004
Strand
London WC2
B E F O R E:
LORD JUSTICE MAY
MR JUSTICE NELSON
Between
THE QUEEN ON THE APPLICATION OFClaimantBECKETTClaimant-v-
Between
AYLESBURY CROWN COURTDefendant
Computer-Aided Transcript of the Stenograph Notes ofSmith Bernal Wordwave Limited190 Fleet Street London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
THE CLAIMANT APPEARED IN PERSON for in personMR JUSTYN TURNER (instructed by AYLESBURY CPS) appeared for DEFENDANT
J U D G M E N T

LORD JUSTICE MAY:

[1]This is an appeal by way of case stated by Mr Colin Beckett, the appellant, in his dispute against the Chief Constable of the Thames Valley Police. The case stated arises out of an appeal in which Mr Beckett was unsuccessful at the Crown Court at Aylesbury heard before His Honour Judge Connor and justices on 9th May 2003. Judge Connor originally refused to state a case because he regarded it as frivolous. But he was ordered to do so by this Court in a constitution presided over by Brooke LJ on 6th October 2003.[2]Mr Beckett had been convicted by the Milton Keynes Magistrates' Court on 9th April 2003 of an offence of driving a motor vehicle, a Ford Escort, G87 TUR, on a road in Milton Keynes on 17th January 2003 after consuming so much alcohol that a proportion in his breath exceeded the prescribed limit contrary to section 5(1)(a) the Road Traffic Act 1988. He appealed against that conviction. His appeal was heard in Crown Court on 9th May.[3]The Crown Court found the following facts:
"At about 11.50 pm on 17th January 2003 [Mr Beckett] was observed driving [his] Ford Escort by Police Constable David Johnson and Acting Police Sergeant Neil Jones (who were in uniform) as he drove into Coffee Hall, a residential area in Milton Keynes. He was signalled to stop, and did so after continuing to drive for a short distance. Constable Johnson spoke on the Appellant and asked him if it was his vehicle. When the Appellant replied, Constable Johnson immediately noticed the smell of intoxicating liquor on his breath. He Constable asked the Appellant if he had been drinking and the Appellant said he had had, 'a couple of pints'. Suspecting that the appellant had been driving with alcohol in his body, Constable Johnson required the Appellant to take a breath test, which was positive, whereupon the Appellant was arrested and taken to Milton Keynes police station. At the police station the evidential breath procedure was carried out and the Appellant, who was compliant, provided two specimens of breath upon an approved device. The lower reading given by the device for the proportion of alcohol in his breath was 58 micrograms of alcohol per 100 millilitres of breath -- a figure in excess of the statutory maximum of 35 microgrammes per 100 millilitres."
[4]The following is a short statement given by the court of the evidence and recorded in the case stated as follows:
"Constable Johnson said that he had stopped the Appellant in the exercise of his power under section 163 of the Road Traffic Act 1988 to check his documentation. It was a random check. When asked in cross-examination to expand upon this, he said that factors that had caused him to stop the Appellant had been the lateness of the hour, the fact that the car contained a single occupant and that the car was 'an older vehicle'. He had noticed alcohol on the Appellant's breath before he had got round to asking for his documents. He and the Appellant had been standing face to face in the initial conversation. The evidence of Acting Sergeant Jones was that it was a random stop to check documents and the road worthiness of the car. He had not spoken to the appellant in the first instance and had been a few yards away looking at the vehicle during the initial conversation, and had not overheard what had been said. The Appellant's evidence was that he had been about eight feet from Constable Johnson during the initial conversation. However, he agreed that he had told the officer that he had had, 'a couple of pints', and that the second officer had been looking at his car. He complained that he had been stopped upon the pretext of checking documents so that the police officers could 'avoid the random breath test law'."
The case goes on to say that:
"It was, in effect, contended by the Appellant (who was not legally represented) that as he had been stopped upon a random basis without any cause; that random stopping of motorists is prohibited by law; the officers should not have administered the breath test and the court should not have regard to the evidence of the subsequent breath testing upon the evidential device. Save that he asserted that it was a random stop a fact that was not in dispute) the Appellant did not allege bad faith on the part of the police officers."
The Crown Court did not call on the respondent to the appeal to answer the submissions and they were not referred to any authority. They expressed their opinion as follows:
"(a) It is well settled law that a police officer in uniform is entitled, by virtue of section 163 of the Road Traffic Act 1988, to stop any person driving a motor vehicle on a road. He does not require grounds to do so, providing that he is acting in good faith. The constable's duty and power come from the section itself. (See Beard v Wood [1980] RTR 454). (b) It is, similarly, well settled law that in the absence of malpractice, oppression, caprice or opprobrious behaviour, there is no restriction on the stopping of motorists by a police officer in the execution of his duty and subsequent requirement of a breath test if the officer then and there genuinely suspects the ingestion of alcohol. (See Chief Constable of Gwent v Dash [1986] RTR 41, a case in which the only purpose of the stop was to ascertain whether the driver had alcohol in his body). (c) There was no evidence that Constable Johnson and Acting Sergeant Jones were acting otherwise than in good faith when they decided to stop the Appellant. The reasons given by them for doing so appeared to us to be adequate reasons. The Appellant adduced no significant evidence or argument to suggest otherwise. (In his application to this court to state a case, the appellant asserts the existence of a discrepancy between the evidence of the officers and the custody record. However, no evidence was adduced before us upon the hearing of the appeal as to the contents of the custody record and we were not aware of its contents). (d) In those circumstances we concluded that there was no basis upon which we should regard the evidence of the proportion of alcohol in the Appellant's breath as inadmissible or disregard that evidence. (e) There being no issue as to the remaining elements of the offence, we dismissed the appeal, upheld the conviction and ordered the Appellant to pay the sum of £250 in respect of the Respondent's costs of the appeal, to be paid within 28 days. (f) Upon the hearing of the appeal, the Appellant did not claim to rely upon the Human Rights Act 1998. Had he done so, we have taken the view that the restriction upon liberty authorised by section 163 is insufficient to offend Article 5 of the Convention."
[5]The basis upon which this Court on 6th October 2003 was persuaded that the court below should be ordered to state a case appears in paragraph 9 of the judgment on that day of Brooke LJ. He said this:
"On the other hand, it appears to me that there is an arguable point of law which Mr Beckett could take further if he is willing to bear the risks of the costs involved. On the face of it, the police do have power to stop people under the Act, but Mr Beckett's challenge at his appeal was that this was not the random stop of police officers who were in the habit of stopping people at all times of the day and night to check their documents. This was a misuse of police power, when they were thwarted by the rule that they are not entitled to stop drivers at random to check the alcohol on their breath, and that, accordingly, he should not lawfully have been stopped. In those circumstances, the events which led up to his conviction should not be relied on."
That is Brooke LJ reciting the basis of the argument, not deciding that it is correct.[6]The authorities referred to in the court's statement of the case need just briefly to be looked at. Before doing so, one notes that the authority to require a breath test in section 6 of the 1988 Act is introduced by the words "where a constable in uniform has reasonable cause to suspect". The section 163 referred to in the case starts in these terms:
"A person driving a mechanically propelled vehicle on a road must stop the vehicle on being required to do so by a constable in uniform."
[7]There was a similar provision in the same essential words in section 159 of the Road Traffic Act 1972. That was the subject of consideration by the Divisional Court in Chief Constable of Gwent v Dash [1986] RTR 41. In that case it was held that: "... in the absence of malpractice or oppression or caprice or opprobrious behaviour, there was no restriction on the stopping of motorists by a police officer in the execution of his duty and the subsequent requirement of a breath specimen for a breath test if the officer then and there genuinely suspected the ingestion of alcohol.[8]Lloyd LJ said at page 48, agreeing with Macpherson J, that:
"The word 'malpractice', as it has come to be used in this field, seems to me to cover cases where the police have acted from some indirect or improper motive or where the conduct on the part of the police could be described as capricious. The random stopping of cars under section 159 of the Road Traffic Act 1972 for the purpose of detecting crime, or for inquiring whether the driver has had too much to drink, cannot be so described. Nor can it be said that the police were acting from some indirect or improper motive. However much the public may dislike the random stopping of cars, I cannot agree that random stopping by itself involves malpractice, and if Donaldson LJ said otherwise in Such v Ball to which Macpherson J has referred, then, I would very respectfully disagree."
[9]What Macpherson J had said at page 46 was:
"in summary, therefore, the police are, in my judgment, not prohibited from the random stopping of cars within the limits already referred to; but are, of course, prohibited from requiring breath tests at random, which is a very different thing. That distinction must always be borne in mind."
[10]In the case of Beard v Wood [1980] RTR 455, it was held that:
"... nothing in section 159 of the Road Traffic Act 1972 required the prosecutor to prove that a constable in uniform acting in the execution of his duty under that section was acting under some common law power for he derived his duty and his powers from the terms of section 159 itself; that since the facts established that the defendant, when driving a vehicle on a road, was required to stop by a uniformed constable not acting capriciously, the defendant, seemingly, had no answer to the charge."
[11]Reference may also be made to the decision of the Queen's Bench Division in the case of Steel v Goacher [1985] RTR 98. In that case Griffiths LJ said at page 103:
"It should, however, be stated that the police officer was acting within the execution of his duty by virtue of his power at common law and not by virtue of any power contained in section 159 of the Road Traffic Act [which he quoted]."
[12]He said of that case, having referred to Beard v Wood:
"The finding that the police officer was acting lawfully in the execution of his duty at the time he stopped the defendant is sufficient to dispose of the appeal."
[13]Accordingly, whether it be under section 163 of the Road Traffic Act 1988, or under a duty at common law, a police officer has the power, provided he or she does not act capriciously or in bad faith, or provided there is no malpractice or oppression or opprobrious behaviour, to stop a motorist on the road. If thereafter there is a reasonable suspicion of drinking, a breath test may be administered.[14]In the present case the policemen had given evidence that it was a random check, that they had stopped Mr Beckett because of the lateness of the hour, the fact that the car contained a single occupant and that the car was an older vehicle. The Crown Court held that there was no evidence that they were acting otherwise than in good faith and plainly the court accepted the evidence which they gave.[15]Upon this appeal Mr Beckett has made a number of points. He has, first of all, complained that the proceedings before the magistrates and before the Crown Court should have been taped. His point there is not so much one of procedure pure and simple, but what he really submits is that parts of the case that have been stated are wrong and inaccurate and contain details which he would wish to challenge. He has drawn our attention to some of the points that he would wish to challenge both in the findings of fact and in the evidence.[16]The main point, as I understand it, that he does challenge is the assertion in the case stated that he did not allege bad faith on the part of the officers. He, in effect, says that his whole case was that the officers were acting in bad faith, or, to put it another way, that the officers had no cause whatever to stop his car unless it be that they were in truth seeking to conduct random breath tests. He submits that that in truth was what was going on. He submits that that is what the court ought to have found and that in those circumstances he ought to have been acquitted.[17]I am afraid to say that that is not what the case stated tells us when it tells us, firstly, what the evidence was, and, secondly, what evidence the Crown Court found to have been proved. The evidence which I have read out, as it is recorded in the case stated, was that which the constables had given. In short their evidence was that it was a random check but it was not a check designed to carry out random breath tests. The court in the course of stating the case, and in particular in paragraph 8C of the case, have made it abundantly plain that that evidence was accepted. They said that there was no evidence that the constables were acting otherwise than in good faith. If and insofar as Mr Beckett was asserting that they were not, nevertheless it is perfectly plain that the Crown Court found that they were.[18]Those facts having been found, the case quite plainly, as the case stated points out, comes within the principle that entitles officers to stop vehicles whether it be under section 163 of the Road Traffic Act 1988, or under their common law power. The case also finds that there was no malpractice, oppression, caprice or opprobrious behaviour, and in those circumstances it seems to me that the appellant's conviction was inevitable.[19]In my judgment, there is no proper basis for concluding otherwise. The basis of the appeal, in my judgment, takes Mr Beckett nowhere and I would dismiss this appeal.

MR JUSTICE NELSON: I agree.

LORD JUSTICE MAY: Mr Beckett, thank you very much.