1999/204 - AG v Hill [1999] UR 204 (2 December 1999)

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Appeal against conviction on 12 July 1999 following not guilty pleas to the following counts:

1 count of driving after consuming excessive alcohol, contrary to Article 16A(1) of the Road Traffic (Jersey) Law, 1956, (as amended) (Count 1);

1 count of driving without due care and attention, contrary to Article 15, as amended, of the Road Traffic (Jersey) Law, 1956, (Count 2);

1 count of failing to stop and report an accident, contrary to Article 27, as amended, of the Road Traffic (Jersey) Law, 1956, (Count 3).

Counts 1 & 2: Appeal allowed; conviction quashed;

Count 3: Appeal dismissed.

At about 8 o’ clock in the evening of 30 September 1998 the appellant was driving her Rover motor car down Rue à la Don, Grouville. She apparently leaned over to the well of the passenger seat where her handbag was lying in order find herself a cigarette. In that moment of distraction she lost control and crashed into the granite wall just past the parish pump and the entrance to Les Cabots. The road surface was dry. The car came to a standstill with its front parallel to the granite wall. The car was therefore across and blocking the left-hand side of the road. It was extensively damaged. The owners of the property opposite, a Mr and Mrs Wade, came out when they heard the crash.

At once we have a problem because there is no transcribed evidence of the prosecution witnesses. The tape was found to be blank and there is no recorded material on it, despite tests having been carried out. We have had to rely on the Magistrate’s notes for guidance.

Mrs Wade found the appellant attempting to start the car. She advised her to stop and went off to help to direct the traffic. The appellant was coherent.

Mr Wade also saw the appellant attempting to start the car. He went down the hill to direct the traffic coming up. The appellant approached him walking unsteadily but in a state of shock. He advised her not to leave the scene. She was "forthright". That may mean coherent.

We know that the appellant did leave the scene. She walked and sometimes ran down Rue à la Don until she came to the Old People’s homes opposite the western edge of the Rue des Près Trading Estate. That pedestrian journey would have taken no more than ten minutes and possibly less. She left her keys and all her personal details in her handbag in the car. She managed to hitch a lift and was driven straight home by a lady and gentleman. No more is known about them. She lives in a flat at Oxford Road. She was home, she thought, within twenty minutes, so that her flat door would have closed at about half past eight.

On her evidence she spent most of the day with friends. None of them were called to give evidence before the Magistrate. She had lunch at about 2 o’clock at the Pembroke Hotel and shared a bottle of wine with a friend, Jason Belhomme. She said that she drank two glasses of wine. She played pool for a while after lunch and chatted with one of the barmaids who is a friend and with other locals. She drank, according to her evidence, only coffee and non-alcoholic drinks after that time. She had arranged to meet another friend, Ian Atkinson and they did meet. She was upset before the crash. She had "personal problems", which were described in Court by her father, and a remark had been made by someone that had caused her further upset. She was crying after the crash as she had never had a crash before.

To return to the scenario. When she got home, the appellant says that she opened and drank a bottle of Vouvray and a pint of Southern Comfort. This was over a period of three quarters of an hour. She then went to bed and fell deeply asleep.

Meanwhile the Police had been called to the accident. PC Smith attended and spoke with Mr and Mrs Wade. He had the facts, the car and the handbag. He knew who the driver was. He was there within minutes following a 999 call.

At 10 o’clock that evening, some two hours after the accident occurred, WPC O’Connor came on duty. She was with PC Hannah on mobile patrol and was directed to the appellant’s flat. They knocked and got no reply. They notified control and knocked again. They then drove to an address in St. Ouen where the appellant’s father lived. He confirmed what the police already knew, that the appellant, his daughter, was the registered keeper of the car. He was told not to speak to his daughter. All that these police officers had been told was that a female had left the scene of a road traffic accident.

The appellant’s father had just returned from a business trip in Newcastle. He had confirmed his daughter’s address to the police. Mr Hill’s evidence was this:

"Well obviously Susan’s car had been involved in an accident, we were obviously very concerned at that time if there was anyone injured. We didn’t know who the passengers were. We didn’t even know where Susan was. The WPC did offer some sympathy in that she said ‘We don’t know that it’s Susan driving, the car may have been stolen; she may not be involved’. We did ask her if there were any injuries, if anybody had been injured, and PC Smith (this was, of course, PC Hannah) said that he was totally unaware of anything. The scene of the accident was being dealt with by two other officers and he was a little bit offhand in divulging any information at all. During the conversation he did go out to the car to answer the radio telephone message, and when he came back he seemed quite anxious to get away."

It was five minutes past midnight before two police officers again arrived at the appellant’s flat in Oxford Road. They were PC Smith and PC Porter. They could not rouse the occupant (if there was one there), and they obtained permission from the Force Control Room to break in. They saw that part of the front door had been repaired with plywood. They moved the plywood and turned the key which was on the inside of the door. It was a forced entry.

The appellant was found asleep in bed. By shouting, they awakened her. She was arrested because she appeared to have been drinking. Although, according to the statement of PC Smith made on 20 December 1998, over two months after the accident, he arrested her on suspicion of leaving the scene of a Road Traffic Accident. The Magistrate notes that he referred to this statement. The room smelt strongly of alcohol. The appellant dressed. Two other officers arrived. She was asked if she had had anything to eat or drink since returning home. She replied, twice, in the negative.

The appellant was tested under the drink driving procedure at Police Headquarters. Here, for the first time, she said that she had taken alcoholic drink "about two hours previously".

Her breath analysis on the intoxilyser showed 86 micrograms in 100 millilitres of breath at 00.51.49 hours and 84 micrograms in 100 millilitres of breath at 00.52.49 hours.

A blood alcohol concentration of 80 milligrams in 100 millilitres is considered equivalent to a breath alcohol concentration of 35 micrograms in 100 millilitres which is the limit recognised by the Road Traffic (Jersey) Law, 1956.

Mr Hubbard, the States Analyst gave evidence. No forensic evidence was called by the defence. That is yet another defect in the conduct of the defence. We do not have a transcript of Mr Hubbard’s evidence. By examining the notes of Judge Day, we see that Mr Hubbard made necessary assumptions. He did not examine the appellant, nor did he weigh her.

He worked on the assumption that the appellant weighed approximately 13½ stone. He had no bottles, nor glasses to examine. (A question and answer session had taken place but at twenty to eleven on 9 October. The appellant had been driven by police officers to her father’s house on 1 October, but she had obviously returned home in the intervening period).

He worked on the assumption that the wine had an alcoholic strength of 11 per cent by volume and that the Southern Comfort had an alcoholic strength of 40 per cent by volume.

"What I am saying is that it is possible that she had no drink in her system at the time of the accident - readings could be consistent with her version of having consumed ½ pint of Southern Comfort and wine.

If her statement is correct, some of the alcohol was broken down, if she had a high metabolic rate etc. and the times given if she had a bottle of Vouvray and a half bottle of Southern Comfort. This could be consistent with the readings obtained and could account for the 84 mls shown in the reading and shows possibility that at the time of the accident she had consumed no alcohol"

"Using the Widmark equation for a woman of Ms Hill’s weight and for consumption of 750 millilitres of wine with an alcoholic strength of 11 per cent by volume and 284 millilitres of Southern Comfort with an alcoholic strength of 40 per cent by volume, I am of the opinion that this would have led to a maximum breath alcohol measurement of approximately 143 micrograms of alcohol in 100 millilitres of breath.

However, the breath alcohol reading at 00:50 was only 84 micrograms of alcohol in 100 millilitres of breath.

This discrepancy may be due to the metabolism of alcohol during the time between drinking and the breath test. In this case drinking would have had to begin very shortly after 20.00.

Alternatively, the quantity of alcohol alleged to have been consumed after driving may have been over estimated".

We can rely on the statement as indicative of the States Analyst’s conclusions.

The first five prosecution witnesses were heard on 9 February. On 1 April Advocate Le Cornu made a submission of no case to answer. On 29 April Judge Day ruled that there was a case to answer. He mentioned a rescue effort by the Police. Two more witnesses were heard on 10 June (this was the appellant and her father). More witnesses were heard on 12 July. On that day the Judge found the appellant guilty.

She was convicted under Article 16(A)(1) (driving when under the influence), Article 15 (careless driving) and Article 27, (failing to inform the police officer of the occurrence of an accident).

We must essentially consider whether the conclusion was wrong in law and what, if any, consequences follow if the appeal succeeds on that ground.

However carefully the entry into the flat was made, we have no doubt that it constituted a forced entry. A forced entry into private premises by any person is a serious matter.

Where a police officer with reasonable cause suspects that any person has committed, is committing or is about to commit, an offence he may arrest that person.
There shall be expressly reserved to a Connétable and a Centenier the powers of -

the customary right of search;
the granting of bail to any person;
the formal charging of any person with an offence, without prejudice to the customary powers of the Attorney General in the prosecution of offences.

Subject to the provisions of paragraph (2) of this Article, a police officer shall have all other powers and privileges relating to policing which a Connétable or Centenier has by virtue of the common law or of any enactment for the time being in force.
Where a Connétable or, in his absence, a Centenier declines to charge any person, a member of the Force may refer the matter to the Attorney General, who may give such directions to such persons as he thinks appropriate".

The Court of Appeal Judgment in Carter v Nimmo and King (1969) JJ 1257 was decided on a limited point. On that point the Court said at page 1265:

"My decision is based upon the fact that the respondents entered a house in which they found an offence actually being committed. It is not necessary in this case to decide, and I do not decide, what power the States’ Police may have to enter premises in any other circumstances"

"It is certainly important that powers of entry upon private premises should not be lightly extended, but it is also a legitimate consideration that, unless proper interpretation imperatively demands it, the Law should not be construed in a way which would seriously impede the apprehension of offenders actually detected committing offences".

It seems to us on an analysis of the Law that if the officers entered the premises to search for the appellant, they would have required a Centenier to make their presence lawful. As was said in Representation of Quinn, Follain & Blenkinsop (1985-86) JLR 425 at 429:

"The position is that the Centenier is the ‘linchpin’ if I may so describe it, of a search. In that case the other officers inevitably have to act under his aegis, because of the reservation in Article 3 of the 1974 Law, reserving to the Centeniers, inter alia, the customary right of search!"

At the time of entry, the Police had no evidence that the appellant might have been under the influence of drink at the time of the crash.

Crown Advocate Robinson made a bold assertion. His argument was that Article 3 gives a police officer the power to arrest a person if with reasonable cause he suspects that that person has committed, is committing, or is about to commit an offence.

Article 3(3) of the law gives (with certain exceptions) all the powers and privileges relating to policing, which a constable or a Centenier has, by virtue of the common law (or any enactment for the time being in force).

"We accordingly find that where a constable or Centenier believes an offence to have been committed he has the right of his own authority to enter private premises to effect an arrest"

Because the Court of Appeal did not affect the observations of the Royal Court on these points, it follows that (on the Crown’s submission), a States police officer has the right to enter private property to effect an arrest of a person whom he has reasonable cause to suspect of having committed an offence. We agree that that argument is correct in law.

What evidence did the police have? The only evidence that they had was that the appellant had left the scene of an accident which involved only damage to private property.

However, she was charged by Centenier Godel on 2 December concerning that matter in this way:

"The said Susan Elizabeth Hill, with having, on the same occasion acted in contravention of Article 27 (as amended) of the Road Traffic (Jersey) Law 1956 in that being the driver of a vehicle involved in an accident, she did not stop and immediately inform a Police Officer of the occurrence of the accident and did move the said vehicle without the consent of the Police officer".

That charge conforms precisely with the wording of Article 27, but there was no question of the appellant having moved the vehicle. That was, in the terms of the crash, an impossibility. The Magistrate dealt with the matter in this way in deciding that there was a case to answer on 29 April:

The Police had no evidence at the time that they forced an entry into the property that the appellant had been driving while under the influence of drink or driving carelessly. They could, in our view, have forced an entry into the property to arrest the appellant under Article 27. The contention of the Magistrate is correct in law. That is not what they did.

PC Smith said that the appellant was arrested because she "appeared to have been drinking" (Magistrate’s notes). WPC O’Connor in her transcribed evidence told the Magistrate that they were asked to trace the appellant "because a female had left the scene of a road accident".

However, the authority that the police claim to enter these premises was because they had reasonable ground to suspect that the appellant was at risk.

The Magistrate made this note (which is not transcribed in the evidence that we have):

"I accept that if Police entry was not motivated by humane concern, then entry was unlawful. I accept the authorities you produce. But see" (The note ends there).

The forced entry must have had a lawful justification. Otherwise the Police, using the "common law" power of entry could enter any property at any time for no reason. That cannot be. We cannot find on the facts of this case that the entry was made because there were reasonable grounds for the officers to believe that the occupant was at risk. The evidence of PC Smith at trial was that he gained entry to the premises of the accused out of concern for her well being. We must not be drawn into thinking of the "Police force" as a sort of continuum. Each officer takes an oath and each officer has a statutory duty under Article 2 of the Law. We just do not know, and nor did the Magistrate know, what PC Smith was doing in the hours between arriving at the scene of the crash and forcing entry into the flat. He no doubt had many other duties. The fact that it took two hours before WPC O’Connor was told to visit the flat leaves us in some doubt that this was an entry motivated by "humane concern". Indeed if that were the case, we may ask why Mr Hill was not asked to accompany the officers when they left his property at St. Ouen to return to the flat. Why was he forbidden to contact his daughter?

There is one further submission by the learned Crown Advocate. Even if the entry into the accused’s premises was unlawful and we find, in the particular circumstances of this case, that it was, the evidence, he argues, is not inadmissible per se. He cites Clarkin v Attorney General (1991) JLR 232 CofA, and Attorney General v Clarke (1963) JJ 243.

In our view the right to make a forced entry must be dependent upon whether the police officer is acting in the execution of his duty. In this particular case we find that the reason for the entry was not supported by the facts. It was upon the reason given that the prosecution relied.

The Crown goes further, however, and says that, even if the entry were unlawful, the evidence obtained thereafter is not inadmissible per se. We had regard to Clarkin v Attorney General (which case in our view, effectively deals with the problematic English decision of R v Sang (1982) AC 402. What the Jersey Court of Appeal said in its conclusion on this case is this (at page 246):

"The correct principle is that a discretion to exclude evidence otherwise admissible should be exercised when, having regard to all the circumstances (including the circumstances in which the evidence was obtained), the trial court is satisfied that the use of that evidence would undermine the justice of the trial. The power to exclude evidence on that basis is a necessary incident to the overriding duty of the trial court, which is to ensure that the accused has a fair trial".

We have found that the police entry was not "motivated by humane concern". It would therefore, in our view, be invidious to allow the evidence obtained thereafter to be used against her. It is tainted. This is not a criticism of any of the police officers concerned. They may have been under the erroneous apprehension that they could not enter the premises to arrest the accused for instance under the Article 27 infraction. Why could they not?

"A Centenier, where he believes an offence to have been committed has the right of his own authority to enter private premises to effect an arrest".

"It is true that Article 30 of the Licensing (Jersey) Law 1950, provides:

‘It shall be lawful for the constable or a Centenier of any Parish to enter any house, building or other place within the Parish in which he has reason to believe that an offence against this Law is being or has been committed’.

But we are unable to deduce from that provision that the constables and Centeniers did not already possess that authority. They could not have discharged one of the obligations they undertook on taking their oath of office had they not possessed it"

The States Police share that common law power. It would in our view be quite wrong to assume that a drunken driver (clearly driving while under the influence) pursued by police officers only had to get through and shut his front door to be immune from arrest.

The Article 27 infraction is more troublesome. There was an accident. The appellant despite being advised by Mrs. Wade left the scene of the accident. Once she had left the scene it was for her, under the proviso to Article 27(2), to prove to the satisfaction of the court that the failure to comply with the provisions of the law was not with the intent of avoiding any civil or criminal liability arising out of the accident.

She quite clearly failed to satisfy the Magistrate on that. It is not for us to substitute our opinion on this matter for his. We therefore uphold his decision on Article 27 but allow the appeal on the other two charges (Articles 16 and Article 15). They are so interwoven in the unlawful entry and its consequences that we decline to attempt to separate them.

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You are here: BAILII >> Databases >> Jersey Unreported Judgments >> 1999/204 - AG v Hill [1999] UR 204 (2 December 1999) URL: http://www.bailii.org/je/cases/UR/1999/204.html Cite as: [1999] UR 204

Jersey Unreported Judgments