*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.
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.