Robinson v Director of Public Prosecutions [2003] EWHC 2718 (Admin)

Case No CO/5291/2002[2003] EWHC 2718 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Venue Royal Courts of JusticeDate Monday, 3 November 2003
Strand
London WC2
B E F O R E:
LORD JUSTICE KENNEDY
MR JUSTICE ROYCE
Between
LLOYD ROBINSONClaimant-v-
Between
DIRECTOR OF PUBLIC PROSECUTIONSDefendant
Computer-Aided Transcript of the Stenograph Notes ofSmith Bernal Wordwave Limited190 Fleet Street London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
MR ALEC WILLIAMS (instructed by Traymans) appeared for CLAIMANTMR DEREK ZEITLIN (instructed by Crown Prosecution Service) appeared for DEFENDANT
J U D G M E N T

LORD JUSTICE KENNEDY:

[1]This is a defendant's appeal by way of case stated from a decision of justices for Inner London sitting at Thames Courthouse who, on 21 August 2002, found that there were no special reasons why the appellant should not be disqualified from holding or obtaining a driving licence following his conviction for driving a motor vehicle on a road having consumed so much alcohol that the proportion of it in his breath exceeded the prescribed limit contrary to section 5(1)(a) of the Road Traffic Act 1988 and Schedule 2 to the Road Traffic Offenders Act 1988.[2]The facts and findings are set out in the case stated with commendable clarity. Shortly after midnight on 13 February 2001, the appellant was stopped when driving a car on Amhurst Road, London N16. The roadside test was positive. He was arrested and taken to a police station where at 12.41am he provided two specimens of breath, the lowest of which contained 83 micrograms of alcohol per 100 millilitres of breath (the legal limit being 35 micrograms).[3]At court he pleaded guilty to the offence, but it was submitted on his behalf that there was a special reason why he should not be disqualified. That reason was that the appellant was unaware that he had taken alcohol. He said that for 7 years he had been a Rastafarian and it was contrary to his belief to take alcohol, but on 12 February 2001, he had been at the funeral of a close family friend, a lady from Monserrat, and after the funeral there was food and drink from about 8pm. The refreshments included a big bowl of a substance he thought was fruit juice, but it was in fact an alcoholic punch. He had about two glasses and thereafter felt tired, but put that down to having had a long day. 10 or 15 minutes after he had taken the drink, he left the party, drove off and was stopped by the police.[4]Before he became a Rastafarian he had drunk alcohol so he knew the taste, and indeed he had a previous conviction for driving when over the prescribed limit, but on the evening in question he had neither tasted the alcohol nor had he recognised its effects.[5]Professor Makin, a forensic scientist, was told by the solicitors for the defence what went into the alcoholic punch punch, and he calculated that its alcohol content would have been about 28 per cent. If the appellant had taken 400 to 500 millilitres of such a liquid at about 11.15pm that would, in the professor's view, account for the level of alcohol found in his breath at 12.41am.[6]The justices found the appellant a "very credible witness" and believed his evidence of his lifestyle over the last 7 years. They accepted that he chose the punch in the honest belief that it was alcohol free, BUT -- 1) They found as a fact that he made no enquiries as to its contents; and (2) although the appellant accepted in cross-examination that he was aware of the taste of alcohol and "supposed he would be aware of the presence of alcohol in a drink if it was reasonably strong", the justices made no finding of fact as to whether he was in fact aware that he had taken alcohol before he was stopped.[7]In the light of their other findings and reading the case stated as a whole, I infer that they accepted that he was unaware of the presence of alcohol in his body until he was stopped and thus resolved that issue in his favour. In paragraph 14 of the case stated, the justices say:
"We were of the opinion that there is a positive duty on anyone in such a situation as the appellant to make enquiries as to the contents of the drink. As we found the appellant had not so enquired, we were of the opinion he had not established, on the balance of probabilities, that special reasons existed . . . giving rise to a discretion of the court not to impose the otherwise mandatory statutory disqualification."
[8]At the end of the case stated the justices posed two questions for our consideration, namely:
"(a) Whether, in the circumstances which we found as facts, there was a positive duty on the appellant to make enquiries as to the content of the drink in question; "(b) if so, whether the appellant's failure to make such enquiries entitled us to find that special reasons had not been established and whether we came to a correct decision and determination in point of law."
[9]Where a person is convicted of an offence involving obligatory disqualification, and driving with alcohol in the breath in excess of the prescribed limit is such an offence, section 34(1) of the Road Traffic Offenders Act 1988 requires a court to disqualify for a specified period "unless the court for special reasons thinks fit to order him to be disqualified for a shorter period or not to order him to be disqualified".[10]The burden of establishing special reasons is on the defendant, and even where they can be shown to exist, the court has a discretion. It is not bound not to disqualify or to reduce the period of disqualification.[11]As to what can amount to special reasons, there is no statutory definition, but those words appeared in section 15 of the Road Traffic Act 1930 and were considered by this court in Whittal v Kirby (1947) 1 KB 194. There it was laid down that a special reason must be a mitigating or extenuating circumstance not amounting to a defence in law. It must be directly connected with the commission of the offence, and be a matter which the court ought properly to take into account when considering sentence.[12]In Newnham v Trigg (1970) RTR 107, the defendant had been given whisky in bed for medicinal purposes and said he did not know its strength. In this court it was said that could not amount to a special reason, but Lord Parker CJ went on to say at page 108I. "It is quite different, it seems to me, from the case which may arise and may amount to a special reason, though I am not saying that it does, where a man thinks he is drinking, we will say ginger ale, has, unknown to him, strong drink put into it behind his back. Ignorance of the quality of the drink may amount to a special reason, but ignorance of the exact quantity that he is drinking cannot in my judgment do so."[13]In Adams v Bradley (1975) CLR 168, the defendant had been drinking beer which, unknown to him, had a slightly higher alcoholic content than the beer which he normally consumed. When stopped he was about 10 per cent over the legal limit, and the justices accepted that he had shown special reasons why he should not be disqualified. This court disagreed, saying that a person who chose to combine drinking and driving did so at his peril. The "laced drinks" cases where special reasons were properly found to exist depended on an element of intervention and misleading by a third party, but where a defendant made no enquiry, the purpose and scheme of the Act were clear and no special reasons could be said to exist. The relevance of that to the present case is, as it seems to me, self-evident. In Director of Public Prosectutions v O'Connor [1992] RTR 66, six cases were considered by this court, all concerned with the lacing of drinks, and at page 79, Woolf LJ, as he then was, said:
"It is now clearly established that the matters which the defendant has to establish on the balance of probabilities in order to show special reasons are three-fold. By admissible and relevant evidence, the driver is required to show, first of all, that his drink has been laced. Secondly, that he did not know or suspect his drink had been laced; and, thirdly, if he had not taken the laced drink, the level of alcohol in his body would not have exceeded the prescribed limited."
[14]At page 81, turning to the issue of discretion, he said at letter E:
"I would also draw attention to the fact that in cases where there is erratic driving, or there is a substantial amount of alcohol above the prescribed limit in the defendant's bloodstream, justices will want to consider carefully whether, even if special reasons are established, this is a case where the defendant should have appreciated that he was not in a condition in which he should have driven. If he should, there would be no ground for mitigating the normal consequences of the conviction."
Woolf LJ went on to cite from the judgment of Kerr LJ in a previous case where Kerr LJ had said:
"Where the 'special reason' is one of laced drinks, then, on the authorities to which I have referred, the court must go on to ask itself, even in cases of non-alcoholic laced drinks, whether the defendant should have realised that he was not fit to drive due to the presence of alcohol in his body, and even though he had no reason to suspect at the earlier stage that he was taking in any alcohol."
[15]Finally, I turn, dealing with the authorities, to R v Cambridge justices ex.p Wong [1992] RTR 382, where the defendant contended that it was the unknown presence of alcohol in cough linctus which caused him to be just over the prescribed limit. In this court it was accepted by the prosecution that, on the facts, the justices could have found special reasons, and the appeal succeeded because they had closed their minds to that possibly. The value therefore of that authority in the present circumstances is limited.[16]Mr Zeitlin, on behalf of the respondent, submits that there is, in a situation such as that which we are considering, a duty on a person in the position of the defendant to enquire what he is drinking. He must do so where the drink which he has been offered may contain alcohol and he is intending to drive. In my judgment, there is considerable force in that proposition. Indeed, I would say that, in the present case, the magistrates were right to say that, on the facts, there were no special reasons for mitigating the normal consequences of the conviction. A driver who, at a party where alcohol is being served, assumes without enquiry that a cup available for consumption is alcohol-free is taking a risk, and if he turns out to be mistaken he must pay the price. The purpose of the legislation is to ensure that people do not drive when they have taken alcohol in excess of the prescribed limit. That is vitally important, as Mr Zeitlin said in the public interest, and if there is to be any mitigation of penalty, the driver must show that he or she has done all that could reasonably be expected of him to avoid the risk of committing the offence. I would therefore answer both of the questions posed in the case stated in the affirmative, and would dismiss the appeal.[17]I would also add this. If the appellant had been assured that the cup was non-alcoholic, and if he was not in any way alerted to the presence of alcohol in his body thereafter until he was stopped by the police, the magistrates nevertheless would have been entitled to find that, although there was a special reason established, the readings were so high that he should, in the circumstances, suffer the normal statutory penalty. In other words, the discretion should not be exercised in his favour.

MR JUSTICE ROYCE: I agree.

[19]MR ZEITLIN: My Lord, I would ask that costs follow the event.

LORD JUSTICE KENNEDY: Any reason why not?

[21]MR WILLIAMS: My Lord, I seek to say that this has come about -- the case was stated by the learned justices.

LORD JUSTICE KENNEDY: Yes, that is because you asked them to do so -- or somebody did.

[23]MR WILLIAMS: The point has needed clarification. My Lord, I am in your hands.

LORD JUSTICE KENNEDY: The appeal is dismissed with costs.