PART A
a) First, when thinking about Nicky, the main legal issue (i) is that of the failure to provide a specimen. However, two legal issues can be distinguished. The second one (ii), being; is it reasonable in these circumstances, for Nicky to request to talk with her solicitor first?
i) The general rule laid down, firstly in s.7(1)a of the Road Traffic Act 1998 and then in s.6 of the Road Traffic Act 1998 demonstrates that Nicky would be required to provide two specimens of breath. Here the suspicion of dangerous driving constitutes an offence and the failure to do so would mean that Nicky is guilty of an offence. However, when applying s.7(6) of the Road Traffic Act, the interpretation of what is meant by “reasonable excuse” is key. Would requiring the presence, or requesting to consult a solicitor constitute a “reasonable excuse”?
ii) Indeed, as laid down in s.58(1) of the Police and Criminal Evidence Act 1984, Nicky would be entitled to consult with her solicitor. Therefore, by failing to provide a breath specimen until able to consult with her solicitor would not render Nicky guilty of an offence. However, as shown in DPP v Bilington [1988], it was held that the right to consult a solicitor does not require the police to delay the taking of a breath specimen. It was established that the latter does not constitute a “reasonable excuse” for failing to provide a specimen. Therefore, by failing to provide a breath specimen until being able to consult her solicitor, Nicky would be guilty of an offence.
In conclusion, for the situation of Nicky, she would more than likely be guilty of a criminal offence, under s.7(6) of the Road Traffic 1988 as her excuse as to why she cannot provide a breath specimen does not constitute a reasonable one.
Moreover, when analysing Michael’s situation, two legal issues can be distinguished. The first (i) being, the failure to provide a breath specimen and the second (ii), being did Michael have a reasonable excuse for failing to provide a specimen?
i) The general rule laid down, firstly in s.7(1)a of the Road Traffic Act 1998 and then again in s.7(6) of the Road Traffic Act 1998 demonstrates that Michael would be required to provide two specimens of breath. Here the suspicion of dangerous driving constitutes an offence. The failure to do so would mean that Michael is guilty of an offence. However, when applying s.7(6) of the Road Traffic Act, what is meant by “reasonable excuse”. Would suffering from anxiety, a medical condition, constitute a “reasonable excuse”?
ii) The main issue here is that this condition was unknown to the arresting officer. As highlighted in Piggott v DPP [2008], “a defendant should not be lulled into the false belief that it would be an advantageous position not to advance an excuse which was known. Justices, in those circumstances, would be likely to reject any excuse put forward at a later stage as a reasonable one.” However, in this case the conviction was quashed due to the fact that the defendant was convicted on the basis that she notified the wrong police officer. The question is, could this be applied to Michael’s case? Indeed, Michael did not notify anyone of his condition and therefore it would appear that Michael wilfully failed to provide a specimen. His medical condition, therefore does not constitute a “reasonable excuse” and thus he could be found guilty of an offence under s.6 of the Road Traffic Act 1998. Furthermore, the idea that stress is not to be considered as a “reasonable excuse” is shown in DPP v Eddowes [1991]. Although willing to provide a breath specimen, “what appeared to be in the minds of the justices was that they accepted the defendant, after a first successful attempt to provide a specimen, failed to provide further specimens and that he had a reasonable excuse for not so doing despite the fact that there was no evidence to show mental or physical disability.” This suggests that although Michael was willing to provide a breath specimen, stress cannot constitute a “reasonable excuse” as to fail to provide a breath specimen. It would therefore appear that Michael although visibly stressed, in the eyes of the law would still be guilty of a criminal offence as stress is not a “reasonable excuse” for failing to provide a breath specimen.
In conclusion, Michael would be guilty of a criminal offence as he failed to notify the arresting officer of his medical condition and thus, he would be treated by the courts as if he was not suffering from a condition. Furthermore, although willing to provide a breath specimen, stress in the eyes of the law is not a “reasonable excuse” as to why he could not provide one.
b) Two legal issues can be distinguished. The first (i) being, whether or not Michael’s confession is admissible (i) and if it is inadmissible, on which grounds could it be declared inadmissible (ii)?
i) The general rule surrounding admissibility of a confession is laid down in s.76(1) of the Police and Criminal Evidence Act 1984. From a simple interpretation of this one subsection, Michael’s confession would be admissible as it is “relevant to the matter”. That is, he confessed to the lesser charges of careless driving.
ii) However, could Michael’s confession be perceived as inadmissible? Indeed, evidence suggests that Michael was “visibly shaken” and therefore could his confession be rejected on the ground of oppression?
Inadmissibility on the ground of oppression
The general rule as presented in s.76(2)a of the Police and Criminal Evidence Act 1984 would mean that any confession obtained on the grounds of oppression would be viewed as inadmissible. The case of R v Fulling (1987), deals further with what amounts to oppression and as suggested by Lord Lane CJ, “'oppression' in s 76(2)(a) should be given its ordinary dictionary meaning.”. Following this judgment, Michael was not treated in a cruel, harmful or unjust manner and therefore his confession can not be declared as inadmissible on the ground of oppression. However, as highlighted by Lord Lane CJ, s.76(2)b of the PACE act 1984 should be considered more broadly: “paragraph (b) is wider than the old formulation, namely that the confession must be shown to be voluntary in the sense that it was not obtained by fear of prejudice or hope of advantage, excited or held out by a person in authority.” Therefore, when considering s.76(2)b of the PACE act 1984 more broadly, could Michael’s confession be inadmissible on the basis that it was obtained as a result of an inducement and therefore constitutes an unreliable confession?
Inadmissibility on the ground of an unreliable confession
Indeed, the final legal issue is that of an unreliable confession. The evidence suggests that Michael desperately wanted to go home and he was promised the latter if he confessed to lesser charges. This constitutes inducement. As highlighted in R v Barry (1992), a confession as a result of an inducement, in this case an offer of bail, could not be seen as admissible. Could the latter be applied to Michael’s confession? Indeed, the confession was obtained through “a hope of advantage”, the promise that he would be allowed home. Therefore, it would appear that the promise made by the officer that Michael could go home if he confessed to lesser charges constitutes an inducement and thus the confession is inadmissible.
In conclusion, Michael’s confession would not be admissible on the grounds that it is an unreliable confession, obtained through “a hope of advantage”, the promise that he would be allowed home. Thus resulting in a confession obtained through inducement.
PART B
Question 2: “I believe that anyone who is appointing the justices of the Supreme Court should be able to look at the body of Justices as a whole and ask how they can collectively best serve the needs of the UK justice system. Excellence is important… But so is diversity of expertise. And so is diversity of background and experience.” Lady Hale.
When thinking about the role of the supreme court justices, one first has to refer to the fundamentals at the heart of the English legal system. The English legal system is based on common law, meaning that many principal doctrines have not been established but rather through cases. The legal system is based on case law, thus allowing a certain level of creative power to the courts, in particular the higher courts such as the supreme court. Indeed, the supreme court justices have a strong creative power, their decisions being the most authoritative, thus this being a key reason as to why “excellence” is essential. However, “diversity” is a relatively new issue, a rather debated topic. The role of the supreme court is to reflect to an extent society and thus diversity is key when attempting to mirror our modern and ever-changing society.
Firstly, when picking apart this question, the need for “excellence” is a somewhat rather obvious criterion. Excellence is foremost important due to this strong creative power felt by supreme court justices. Indeed, “excellence” is primordial as the supreme court justices are bound by the doctrine of precedent. Although a relatively simple concept, that of to “stand by things decided”, precedent is a highly debated topic. Judges are bound by previous court decisions, bound to treat cases in same way. Thus meaning that the supreme court justices have a certain power to influence precedent and to an extent make laws. Precedent emphasises the importance of stability, certainty and consistency as well as fairness; the same decision applies to all, promoting fairness. However, many have argued that this has only added a certain rigidity into the law. Due to Judges being bound by precedent, wouldn’t this make it hard for the law to evolve with our ever-changing society? One possible solution to the latter could be to be to perhaps not solely ensure “excellence” but also this “diversity of background”. Indeed, since the Practice Statement 1966, the House of Lords and now the supreme court have the power to alter precedent, they may decide “that earlier cases were wrongly decided and that the law should now be changed”. Therefore, meaning that it is essential that diversity be ensured to prevent bias and to ensure that the needs of the UK justice system be best served.
However, precedent isn’t the only way in which justices can express their creative power. Statutory interpretation is another way in which courts and thus the supreme court can play a vital role in the shaping of laws. Statutory provisions to an extent, can sometimes only lay down rather general rule as it would be impossible to incorporate all possible facts, situations and outcomes. Thus this leaves a certain power to the judiciary, in particular supreme court justices to interpret statutes, what Parliament was trying to achieve. This once again highlights this need for diversity as by law justices are required to remain objective, one cannot deny that subjectivity although unintentional is an un-escapable reality. Statutes are often very confusing and thus there are certain rules that aim to aid, address the problem of statutory interpretation: the literal rule (taking into account the plain literal meaning), the golden rule (taking the whole of the statute and allocating the words their ordinary meaning), the mischief rule (considering the issue that Parliament attempted to resolve) and finally the purposive rule (common unified approach). When using these rules, a degree of excellency is of course required but so is arguably a certain level of diversity. Indeed, as shown through Smith v Hughes, by applying the mischief rule, the judges transformed the potential outcome of the case. If the literal rule had been applied, the defendants would have been in what is considered as a private place and thus were acting perfect lawfully. This case is a prime example of where judges can administer a certain judicial discretion and of course excellency is key but so is “diversity”. It could be argued that here the judges were perhaps not fully objective as how could the defendant “loiter” in a private place? The decision taken by the courts is not a wrong one as when thinking about what Parliament wanted to achieve, a ban of all forms of prostitution is a reasonable one. However, the promotion of diversity in the supreme court is necessary in order to prevent bias and best serve the needs of the justice system.
However, is “diversity of background” a potential reality? As the supreme court currently stands, “diversity” is little to non-existent. Indeed, the supreme court currently constitutes of twelve justices: eleven males and one female (Lady Hale). Thus a harsh gender imbalance. Furthermore, all twelve justices are white, once again highlighting this desperate need for more diverse ethnicity. It would appear that what Lady Hale asks for here is just a simple recognition of society as it stands. Our society is diverse and so why shouldn’t the supreme court, the highest court in the UK that do have a certain creative power, represent, mimic society and thus its diversity? Although excellence is key, especially when courts play a key role in the shaping of the law, diversity is also primordial in order to “fully reflect the diversity of [the] society it serves” and best serve the needs of the British justice system. Efforts have been made and will continued to be made to increase the prospect of a “more diverse and coherent recruitment to the court”. These efforts are outline in the Equality and Diversity strategy which is a prime example of one of the ways diversity is being encouraged. This only confirms that there is a real need for a “diversity of expertise but also background”.
In conclusion, there has definitely been in the past ten years an increase in the number of females judges across UK courts. The percentage of female judges has risen from 25% in 2015 to 28% in 2016. This only highlights the increased diversity amongst the judiciary and supports the idea that slowly but surely the supreme court shall become more gender balanced. It can’t be ignored that ethnic minorities still remain a real minority and are underrepresented across all courts, most notably the supreme court. Overall, the role of the supreme court is to outline, shape the law at the highest level and reflect the society it serves. In order to do so excellency is required due to the creative power allocated to the justices but so is diversity. Diversity is primordial as to prevent bias and judicial discretion, once again allowing the supreme court to best not only reflect our modern society but also best serve the needs of the UK justice system.