RGP ACTING OUTSIDE THE LAW?

Gibraltar & El Campo
1

*100 breathalysed only one charged
*RGP likely to be exceeding legal powers
*Road checks without reasonable grounds are not permitted
*Drink/drug roadside powers exercisable on limited specified grounds
*Can only be exercised by RGP on reasonable suspicion
*Random checks are not authorised under the law
*Road checks only permissible in narrow circumstances
*Difficult to see how current checks justified in law
*If RGP cannot justify their actions public apology is essential
*‘Peace, order, and good government’ requires such an apology
*Police are within constitutional remit of Governor

BREATHALYSER TESTS AND ROAD CHECKS

In the last week GBC has gone very public to give the news that the Royal Gibraltar Police [RGP] have carried out around 100 breathalyser tests with only one person having been arrested for drink driving.

It is a statistic that tells the story that the RGP are likely not to be exercising their powers within the law.

There are pictures published on online social media to show that road checks are being systematically established by the RGP in the run up to Christmas without reasonable grounds, as required by law. That is also indicative that the RGP is also exceeding the powers granted to it.

DRINK DRIVING LAW

The police have limited powers under the Traffic Act to administer roadside breathalyser or other tests.

They may only do so in specified circumstances. Those, briefly stated, require a police officer to first reasonably suspect that a driver has consumed alcohol or drugs and he is driving or attempting to drive on a road or other public place or if a driver has committed a traffic offence or an accident has occurred.

There is no provision that allows the RGP to carry out random breathalyser tests, which is what seems to be the campaign being undertaken by them now.

ROAD CHECKS

The power to established road checks are contained in the Criminal Procedure and Evidence Act, which does not allow random checks. They specifically exclude the power to do so for road traffic offences, which would exclude drink driving offences or offences of driving under the influence of drugs.

Road checks can only be set up for the police to ascertain whether there is any person in a vehicle who has (a) committed an offence that is not a road traffic one; (b) is a witness to any such offence; (c) intends to commit such an offence; or (d) is unlawfully at large.

A road check needs to be authorised by a Chief Inspector or a higher rank, except in the case of urgency subject in that eventuality to certain procedures being undertaken after the event.

A road check is defined by reference to the Traffic Act as being the need to stop a vehicle on being required to do so by a police officer.

In addition, a road check may only be undertaken in very specific prescribed circumstances all of which require reasonable grounds to exist.

Anyone stopped in a road check is by law entitled to get a written explanation of the purpose of the road check on application within 12 months.

It is difficult to see that the current road checks are justified in law, especially when the public explanation being given is that they are being implemented because we are in the period running up to Christmas. If that is so, it must be a reference to the increased chances of drink drivers being more prevalent, which is no good reason in law, although the RGP’s own statistic of having caught one offender disproves that very fact.

PUBLIC APOLOGY IN ORDER?

The RGP need to clarify what power in law they are trying to exercise to establish road checks at all and in that process administering breathalyser tests.

If they are unable to, then they owe the public, and those who have been embarrassed and inconvenienced by those checks particularly, a huge public apology which should be covered by GBC and all other press media. It may call also for further action by the current Commissioner of Police.

The issue is central to the constitutional rights of all citizens and ‘peace, order and good governance’ and is a matter within the constitutional remit of the Governor.

2

*RGP admit that a breathalyser test may not be administered randomly
*RGP has power to stop vehicles for traffic matters
*RGP confirm that ‘reasonable suspicion’ needed save in two specific circumstances
*Statistics (one caught out of 100) imply test applied randomly and not in accordance with law. *Random breathalyser tests are not allowed in law
*‘Reasonableness’ should guide the use of road checks to administer breathalyser tests
*RGP are gatekeepers of ‘Rule of Law’ as court is sluggish and expensive
*Chief Minister’s reference to court action unhelpful
*RGP’s clarification of vehicle stop law is helpful and constructive

NO RANDOM TESTING BUT POWER TO STOP

The Royal Gibraltar Police [RGP] have admitted that they do not have power to require a breathalyser test randomly. It has also clarified the basis of its power to stop a vehicle on a road which is provided in the Road Traffic Act [Act].

The clarification on the power to stop vehicles is in reply to a question posed in the blog of 9th December 2022 [Blog]. It asked that “The RGP need to clarify what power in law they are trying to exercise at all and in that process administering breathalyser tests.”

The power to stop of itself, however, does not give the RGP the authority randomly to seek a breathalyser test from any driver.

‘REASONABLE SUSPICION’ NEEDED TO BREATHALYSE

The RGP say that one of the circumstances under the Act in which a police officer may request a breathalyser test of a driver is “where a police officer reasonably suspects that the driver is driving, is attempting to drive, or is in charge of a motor vehicle on a road or other public place and has alcohol or a drug in his body or is under the influence of a drug.”

The Blog makes a similar summary of the relevant law. It does so in terms that a breathalyser test may be administered when “a police officer reasonably suspects that a driver has consumed alcohol or drugs and he is driving or attempting to drive on a road or other public place or if a driver has committed a traffic offence or an accident has occurred.”

RGP ADMIT THAT NEED

In fact, the RGP has confirmed the need for ‘reasonable suspicion’ in its public statement on the issue. It admits that the law does “not automatically mean that an officer would conduct a preliminary breath test. An officer will only do so if he or she has reasonable grounds for believing that the driver is driving under the influence of alcohol or drugs.”

The statistics published do not support that the necessary test has been applied as explained by the RGP. If it is being applied the figures published, at best, indicate a questionable level of misjudgement by the RGP in administering breathalyser tests.

STATISTICS INDICATIVE THAT TEST IS NOT PROPERLY APPLIED

The central requirement to administer a breath test, if no traffic offence or accident has occurred, is the need for ‘reasonable suspicion.” It is that need which the statistics inform may not be one that is being strictly adhered to by the RGP.

The statistics made public are that, out of 100 drivers stopped and breathalysed last week, or thereabouts, only one has failed the test. The Blog says, “That is also indicative that the RGP is also exceeding the powers granted to it.” It is that seeming excess of power which the Blog emphasised by reference to the statistics made public, and is not explained by the RGP.

LAW DOES NOT ALLOW RANDOM TESTING

The Blog simply, and rightly, says that “There is no provision in law that allows the RGP to carry out random breathalyser tests, which is what seems to be the campaign being undertaken by them now.”

The RGP has now clarified the power that it is using to establish road checks and to stop vehicles, as was asked in the Blog, for which one is grateful.

What it does not explain, as requested, is how the statistics that have been made public, which are quoted above, come about if the tests are being carried out within the law. There is no reference made by the RGP to those statistics in its public pronouncement.

‘REASONABLENESS’ IS KEY

‘Reasonableness’ should surely guide the RGP when it establishes a full-blown road check for the primary purpose of stopping vehicles and controlling drink driving, as it admits it is doing. Thereafter, and certainly, the power to administer tests must be exercised by the RGP within the law.

It is especially so, when the RGP concedes that the checks are being undertaken because it is the period running up to Christmas. It is a consideration which surely must refer to the perceived increased likelihood of drink drivers being on the road. That alone emphasises the need to exercise those powers reasonably.

‘RULE OF LAW’

The right to seek a determination from a court is a long-winded and hugely expensive exercise that is not affordable by most victims. The Chief Minister knows that, so his reference online to matters concerning the use by the RGP of breathalysers being determined by a court is unhelpful.

The basic English principle of the ‘Rule of Law’ must guide the application by the RGP of its powers. The RGP is one of the main authorities that needs to apply the ‘Rule of Law’. The RGP is one of the main gatekeepers of the ‘Rule of Law’.

If the RGP exercises its power to stop a vehicle under traffic laws, it should then use proper judgment before administering a breath test. It’s duty in a democracy to act fairly is paramount and they should not cause unfairness or suffering to citizens through excesses.

CLARIFICATION OF LAW IS HELPFUL

The legal position is much clearer thanks to the clarification by the RGP of its statutory power to stop vehicles on traffic related matters in reaction to the Blog. It is helpful for all.

The RGP may stop any vehicle on a road for no reason, but only for traffic law enforcement purposes. The RGP may not administer a breathalyser test automatically, however. It must first have reasonable suspicion on the matters required in law or if a traffic offence or accident has occurred.

Hopefully, following the recent public debate, the law on those fronts will be applied reasonably by the RGP in the run up to Christmas.