APPEAL COURT, HIGH COURT OF JUSTICIARY
Lady Paton Sheriff Principal Bowen Sheriff Principal Lockhart	[2009] HCJAC 99 Appeal No: NO. OPINION OF THE COURT delivered by LADY PATON in APPEAL BY BILL OF SUSPENSION by AMY LEIGH-ANN ANDERSON Complainer; against PROCURATOR FISCAL, DUNFERMLINE Respondent: _______

Complainer: Keenan, Solicitor advocate; Capital Defence (for Basten Sneddon, Dunfermline)

Respondent: CHS MacNeill QC, Advocate depute; Crown Agent

16 December 2009

Introduction
[1] The complainer (then aged 21) stood trial on 12 August 2009, charged with a contravention of section 5(1)(a) of the Road Traffic Act 1988. The only point at issue was whether the police officers who administered the breath test complied with their statutory duty and advised the complainer that she could have her specimen of breath replaced by one of blood or urine. Had the officers been found to have mentioned only the option of a blood test, then it was not disputed that the proceedings would be vitiated: cf Hamilton v Jones 1989 SCCR 1.

[2] Sheriff J C C McSherry heard evidence from police officers and from the complainer. He preferred the evidence of the officers, and convicted the complainer. He imposed a fine of £600 and disqualified the complainer for a period of 12 months.

Bill of suspension
[3] The complainer brought a bill of suspension, and the Crown lodged answers. The bill and answers narrate inter alia:

"2. ... [B]oth the court and the Crown were made aware at the intermediate diet that the only point at issue in the trial was whether police officers had, given the intoximeter reading of 41 microgrammes of alcohol in 100 millilitres of breath, complied with their statutory duty to offer the complainer the opportunity to have her specimen of breath replaced by one of blood or urine. Both the Crown and the court were made aware at the intermediate diet that the complainer's position was that police officers had stated she could have her specimen of breath replaced with one of blood but did not mention urine.

(2) Admitted.

3. During the trial the Crown led evidence from inter alia Police Constable Aaron Fyvie and Police Sergeant Alexander Pullman. Evidence was led that the initial roadside breath test gave a reading of 53 microgrammes in 100 millilitres of breath. Further evidence was led that the lower sample on each of the two intoximeter readings was 41 microgrammes of alcohol per 100 millilitres of breath. There was therefore clear evidence that the alcohol reading was reducing and the obtaining of the sample of blood which would take some time would result in a reading below the legal limit.

(3) Not known and not admitted that the obtaining of [a] blood sample would take some time and would result in a reading below the legal limit. Quoad ultra admitted.

4. Police Constable Fyvie gave evidence that he could not recollect the exact circumstances of the procedure that had been followed but that the appropriate parts of Fife Constabulary, Form 1, would have been read out. In particular, the police constable gave evidence that page 5 of said form (b) was read out in full. That paragraph states 'As the breath specimen with the lower proportion of alcohol contains more than 39 but no more than 50 microgrammes of alcohol in 100 millilitres of breath you may claim that it should be replaced by a specimen of blood or urine. The type of specimen shall be decided by me'. Under cross-examination the police officer was referred to the terms of the statement compiled by him and he could offer no explanation as to why in that statement it indicated 'the accused was afforded the opportunity to replace the specimen of breath by one of blood'. There was no mention of urine in that statement.

(4) Admitted. Further explained and averred that Police Constable Fyvie was cross-examined on his evidence and statement. In examination in chief he gave evidence that he was sure that [the] full statement, including the words 'and urine' were read out to the complainer at the time. He maintained this position under cross-examination. The defence had the opportunity to cross-examine him on his evidence and did so.

5. Sergeant Pullman was asked during his evidence by the Procurator Fiscal Depute to read out the relevant part of the form. Sergeant Pullman read from the form but did not in reading out paragraph B refer to 'or urine'. The witness stopped after 'you may claim that it should be replaced by a specimen of blood'. The sergeant was asked by the Procurator Fiscal Depute whether he had omitted anything and he indicated in the negative. He was asked to read out the section again and on that occasion read out the paragraph in full.

(5) Admitted. Further explained and averred that Police Sergeant [Pullman] also gave evidence that he had no doubt that the version he read out to the complainer on the date of the charge was the full version that included the words 'and urine'. The complainer signed the form directly under the statement that included the words 'and urine'.

6. The complainer gave evidence that she was employed as a bar supervisor, had no previous convictions and that she had definitely not been offered the opportunity to have the specimen of breath replaced by one of blood or urine but of blood only. There had been no mention of urine. She gave evidence that she did not like needles and had she been offered the opportunity to have the breath specimen replaced by one of blood or urine she would have indicated that she wanted it replaced by one of urine because of her assertion that she did not like needles. Under cross-examination it was suggested to her by the Procurator Fiscal Depute that she had 'come up with this defence' to 'wriggle out of the charges against her'. Under re-examination the complainer indicated that she had no knowledge of the relevant procedure and had only become aware of the possible defence when it had been explained to her by her solicitor. She had been intending to plead guilty before receiving legal advice.

(6) Not known and not admitted that the Procurator Fiscal Depute made the said suggestions. Quoad ultra admitted that this was the evidence that complainer gave.

7. Reference was made to the court in terms of Hamilton v Jones, 1989 SCCR 1 and the authorities referred to therein which indicate that the police must comply with a statutory obligation to indicate a person may claim a breath specimen should be replaced by a specimen of blood or urine. Failure to mention both blood and urine would vitiate the procedure.

(7) Admitted.

8. There was a proper and stateable defence to the charge against the complainer albeit the sheriff preferred the evidence of the police officers to that of the complainer in respect of the facts of the case.

(8) Admitted that there is a proper and stateable defence to the charge on the basis of Hamilton v Jones 1989 SCCR 1. Denied that this was available to the complainer. Further explained and averred that this was a matter of credibility and reliability which are for the sheriff to decide upon.

9. When convicting the complainer of the offence the learned sheriff expressed disbelief that the complainer could not have known the relevant procedure at the time given her job as a bar supervisor. The learned sheriff stated he found the complainer wholly incredible and further stated 'you were going to plead guilty until you were put up to this defence by your solicitor'.

(9) Not known and not admitted that the learned sheriff expressed disbelief of the complainer's position at trial. Admitted that the sheriff found the complainer incredible. Not known and not admitted that the sheriff made the remark quoted. Further explained and averred that the sheriff made a remark in the context of repeating what the complainer had said in her evidence.

10. The learned sheriff in making these remarks clearly implied that he saw the defence put forward by the complainer as a technicality which should not be taken into account and implied misconduct on the part of the solicitor for the complainer. These comments would indicate to any independent and impartial observer justice was not seen to be done.

(10) Denied.

PLEA-IN-LAW

1. That justice not having been seen to be done and the learned sheriff having acted in an oppressive manner, the convictions and sentences following thereon should be suspended simpliciter.

PLEAS-IN-LAW FOR THE RESPONDENT

(1) The learned sheriff having decided to convict after assessing the credibility and reliability of all the witnesses was acting within his discretion and that having explained the context of the remark he was averred to have made the crave of the bill should be refused."

The sheriff's report

[4] In his report, the sheriff comments at pages 3-4:

"The complainer gave evidence. She said that she was employed as a bar supervisor and that she had had a drink but did not believe she was over the limit. After the intoximeter specimens had been provided, she said that she had been asked if she wished a blood test. She said she did not. She had said that she would not like to have a needle. She had no particular medical reason for this. She was very sure that the opportunity of providing a sample of urine had not been mentioned. In cross-examination, she said that she had drunk 3/4 pint of high alcohol cider and blackcurrant. She claimed to have no idea as to the alcohol/breath limit. She had held a driving licence for 2 years. She agreed that being ignorant of the levels she drove the vehicle. She thought the procedure carried out at the police station was normal until she consulted her solicitor. She also claimed to have no idea of the legal consequences, such as fine and disqualification, of being convicted of drink driving. She admitted that she had signed page 5 and would have read the statement offering a choice of blood or urine. In re-examination she said that she had been intending to plead guilty until she consulted her solicitor.

I was of the view that the complainer's evidence was not credible. She was employed as a bar supervisor and had held a driving licence for 2 years, yet affected not to know the alcohol/breath limit or that the consequences of drink/driving were inter alia she might be fined and disqualified from driving. In making my remarks, I was repeating what the complainer had said in evidence, namely, that she had been about to plead guilty until she had consulted her solicitor. It is rather surprising how the complainer could be so definite about an alleged lack of compliance with a procedure of which she was wholly unfamiliar, without something or someone prompting her. I had no doubt that, given her affected ignorance of the generalities surrounding drink/driving, ... she had no knowledge of the procedure as detailed in Form 1. Had the evidence of the police officers been that the complainer was only given the opportunity to provide a specimen of blood and that there had been no mention of urine, I would have found her not guilty following Hamilton v Jones 1989 SCCR 1."

[5] The remark attributed to the sheriff and recorded at the end of paragraph 9 of the bill is not therefore disputed.

Submissions
[6] Mr Keenan for the complainer submitted that the remark "you were going to plead guilty until you were put up to this defence by your solicitor" suggested that the sheriff disbelieved the complainer for an invalid reason, namely a suggested impropriety on the part of her solicitor.

[7] The Advocate depute for the Crown contended that too much was being read into the remark. It was entirely appropriate for the sheriff to assess credibility and reliability. The sheriff clearly disbelieved the complainer for a number of reasons, and then made the remark in the context of having disbelieved her. The sheriff had concluded his reasoning on the issue of credibility when he made the remark.

Discussion
[8] Credibility and reliability of witnesses are very much matters for the sheriff. However the remark attributed to the sheriff causes a number of problems. The sheriff may have intended to do no more than repeat some of the evidence given by the complainer. However the words he used resulted in an unfortunate implication that the complainer's lawyer had in effect proposed a technical line of defence and that the complainer had adopted that line - not because it reflected what actually happened, but because it was a way of avoiding conviction. The problems arising from the words used include the following:

[9] First, it is a serious matter to suggest that a lawyer in effect put forward a concocted defence which his client then used. Certain repercussions may follow upon such an allegation.

[10] Secondly, the sequence of events which occurred prior to the trial did not in our view inevitably give rise to an inference that the defence agent must have "put [the complainer] up to" the line of defence. On the contrary, a defence agent might seek to elicit from his client exactly what had occurred once she had been stopped by the police. On hearing her narration of events, an agent with some knowledge of road traffic law would no doubt notice that there had apparently been no mention of the alternative of a urine test. Having clarified the client's position on that matter, it would be entirely proper for the solicitor then to advise his client not to plead guilty as the procedure could be challenged and might be vitiated.

[11] Thirdly, and perhaps most importantly, one inference which could be drawn from the sheriff's remark was that the sheriff had (a) concluded from the sequence of events that the defence solicitor must have put forward a technical line of defence which bore little resemblance to the truth, and that his client had been willing to adopt that line; and (b) as a direct result of that conclusion, reached the view that the complainer was lying.

[12] In all the circumstances, it is our opinion that an impartial observer in court on the day of the trial would have found it difficult to avoid the impression that the sheriff had made an assumption about the defence solicitor's conduct, which assumption had caused or contributed to his rejection of the complainer's evidence as incredible. Accordingly even if, as may well be the case, the sheriff had assessed the complainer's credibility on the basis of material and using a method which could not be faulted, the unacceptable impression remains, and as a result, justice has not been seen to be done. For that reason we have decided that we should pass the bill and suspend the conviction and sentence.