Man banned from driving after falling asleep at the wheel loses appeal by stated case against conviction

Anthony Wilson was disqualified from holding or obtaining a licence until passing an extended test of competence to drive following a one-year ban. He argued that the circumstances in which he was questioned were unfair and intimidating.

The appeal was heard by Sheriffs Principal Mhairi Stephen QC and Aisha Anwar, and Appeal Sheriff Norman McFadyen. The appellant was represented by Keenan, solicitor advocate, and the respondent by McDonald, advocate.

Dozed off

On 8 January 2020, the appellant was driving on the A74(M) Glasgow to Carlisle Road with his wife when his car collided with the central reservation barrier. Two police officers attended the collision and found the car on the hard shoulder, observing that the collision had damaged approximately 30 metres of the central reservation.

The appellant told the police that he had been driving home from Manchester Airport after a two-week holiday abroad, and that he “must have dozed off” while driving. Following questioning under caution, the appellant was warned in terms of section 1 of the Road Traffic Offenders Act 1988 and cautioned and charged with a contravention of section 2 of the Road Traffic Act 1988.

In determining the question of admissibility, the sheriff took the view that suspicion did not properly crystallise until the appellant responded that he must have fallen asleep, and that while the two officers indicated that they each began to consider the appellant as a suspect at a different point, there was not a significant variation.

Evidence was given by both police officers at the trial diet. The first, PC Aitken, said that by the stage he had administered the caution before questioning he had reached the view that the appellant was a suspect. However, his colleague, PC Parry, indicated that he did not know if any offence had been committed until the appellant stated that he must have dozed off and there was no other explanation why the vehicle collided with the central reservation. Following a trial within a trial, the sheriff decided that the interview had been conducted fairly and admitted the answers in evidence.

It was submitted for the appellant that the interview was unfair at common law, as he had not been made aware of the availability of legal advice at the roadside. The officers had agreed this was possible via the Scottish Legal Aid Board Advice Helpline. Further, questioning the appellant in the back of a police vehicle was equivalent to being in police custody. It was oppressive and intimidatory, and without access to a lawyer any questioning amounted to interrogation and the answers should not be admitted.

It was submitted for the Crown that conducting the interview in the police vehicle was entirely suitable based on both safety and practicality. The vehicles were on the hard shoulder of a motorway and the appellant’s wife was still seated in the damaged vehicle. None of the questions asked of the appellant were unfair, and there was no question designed to elicit an incriminating response.

Issue of fairness

The opinion of the court was delivered by Sheriff Principal Stephen, who began: “The submissions made to the sheriff focussed on when the appellant became a suspect. It could be said that when the appellant approached the police officers to inform them of the circumstances of the collision and confirmed he was the driver he potentially fell into the category of suspect.”

However, she went on to say: “It is accepted, that the possibility of mechanical failure or other external cause such as an animal crossing his path cannot be discounted leaving open the question whether any road traffic offence had been committed at all. In these circumstances we doubt whether focussing on the precise stage when the appellant became a suspect is the correct approach and truly determinative of fairness and therefore admissibility.”

Explaining that the issue was truly one of fairness, she said of the facts of the case: “The appellant confirmed he had been the driver in response to the s172 requirement. He was cautioned prior to being asked any question. The first question posed was open and neutral – ‘Anthony, I am making enquiries into a one vehicle RTC [on] the A74(M) northbound carriageway. What if anything can you tell me about this?’ We do not consider that this can be categorised as questioning designed to elicit an incriminating response.”

She continued: “There could be little doubt at all in the mind of the appellant what the police were asking questions about, standing what had occurred. Conducting the interview in the back of the police vehicle, whilst not ideal, cannot be considered either intimidating or oppressive given the locus of the accident on a major traffic route which at that precise area was classified as a motorway.”

Sheriff Principal Stephen concluded: “We take the view that the questions posed, certainly the opening question, fall into the category [of] questions the police need to ask to decide what action to take or not as the case may be.”

For these reasons, the appeal was refused. However, Sheriff Principal Stephen also addressed the contention that the appellant should have been taken to a police station, and allowed to contact a solicitor, rather than be questioned at the locus.

On this point, she said: “We would be concerned at both the principle and the practicality of requiring police officers to arrest drivers in circumstances such as existed in this case where the driving may possibly have been dangerous or careless or indeed, no driving error may have been attributable to the driver at all.”

She concluded: “There may have been no offence committed at all. In these circumstances we would be concerned at the suggestion that there be a requirement on the police to arrest a driver whose car goes off the road simply because the driving may after inquiry turn out to have been dangerous but may equally well have been careless.”