Carroll v Director of Public Prosecutions [2009] EWHC 554 (Admin)

Case No CO/6122/2008[2009] EWHC 554 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Venue Royal Courts of JusticeDate Wednesday, 4 March 2009
Strand
London WC2A 2LL
B e f o r e:
LORD JUSTICE GOLDRING
MR JUSTICE SWEENEY
Between
ANDREW CARROLLClaimantv
Between
THE DIRECTOR OF PUBLIC PROSECUTIONSDefendant
Computer-Aided Transcript of the Stenograph Notes ofWordWave International LimitedA Merrill Communications Company190 Fleet Street London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
Mr M Giuliani (instructed by Hathaways) appeared for ClaimantMiss S Hirst (instructed by the Crown Prosecution Service) appeared for Defendant
J U D G M E N T

LORD JUSTICE GOLDRING:

[1]My Lord, Sweeney J, will give the first judgment.[2]MR JUSTICE SWEENEY: This is an appeal by way of case stated by Justices from the Gateshead Local Justice Area who, on 2 April 2008, found the appellant guilty of being drunk and disorderly, contrary to section 91(1) of the Criminal Justice Act 1967 (the 1967 Act). The offence arose out of events at the Lobley Hill interchange in Gateshead on 11 February 2008. The Justices record in the case stated that they found the following facts:
"(a) The appellant had consumed a considerable amount of alcohol on the 11th February 2008 and was drunk. (b) The appellant had been drinking with friends in a subway forming part of the Lobley Hill iinterchange of the A1 (c) PCs Nesbitt and Young were in a marked police vehicle approaching the roundabout at that interchange. They saw a Nissan Micra car stationary at the give way marks at the Lobley Hill road entrance to the roundabout. They then saw the defendant run into the side of the Nissan Micra vehicle and roll over the bonnet of that vehicle. The officers got out of their vehicle and assisted the appellant to his feet. PC Young said to the appellant 'I've just seen you roll over the bonnet of that car'. The appellant replied 'There's no point in denying". (d) Both officers noted that the appellant's speech was slurred, his eyes were glazed and that he was unsteady on his feet. He was arrested for the offence of Drunk and Disorderly and conveyed to Gateshead police station where he was charged with that offence."
The Justices record the competing arguments and their opinion as follows:
"3. It was contended by the respondent that the appellant was aware of the presence of the stationary vehicle, he was looking straight at the vehicle and that his action in running into the vehicle was a deliberate act (of bravado intended to impress his friends) and therefore amounted to disorderly behaviour within the meaning of the Act. It was accepted by the respondent that if the action was accidental he was not guilty of the offence. 4. It was contended by the appellant that he was unaware of the existence of the vehicle at the junction until he collided with it whilst running away from a group of friends with whom he had been 'larking around'. He maintained that he had been looking over his shoulder towards his friends and that the collision was completely accidental. 5. We were not referred to any legal authority. 6. We were of the opinion that although the appellant did not have the specific intention to run into the car, and had acted recklessly, his action in running into the road as part of his larking about with his friends was not accidental and therefore amounted to disorderly behaviour. The bench accordingly found the case proved."
[3]Against that background the Justices ask a question in the following terms:
"The question for the opinion of the High Court is, having found the appellant had acted recklessly, were the Court correct in convicting him of being drunk and disorderly?"
[4]On the appellant's behalf, Mr Giuliani submits, in both skeleton and oral argument, that(1) the offence of being drunk and disorderly is a crime of specific, albeit, drunken intent;(2) the prosecution set out to prove such specific intent and the Justices' findings show that they failed to do so, therefore the appellant should have been acquitted and;(3) in the alternative, that reckless colliding with a car is in itself insufficient to amount to disorderly behaviour.[5]In support of these propositions Mr Giuliani cites the authorities on recklessness and self-induced intoxication, as summarised in Archbold at paragraph 17-52 of the current edition. He also relies upon the case of DPP v Clarke and Others [1992] Crim L.R. 60, a case concerned with the offence of using disorderly behaviour contrary to section 5 of the Public Order Act and requiring, by virtue of section 6(4) of the same Act, specific intent that the behaviour be threatening, abusive or insulting, in order to found the submission that section 91(1) of the 1967 Act should be no different, albeit that there is no reference to specific intent in that Act. Our intention has also been drawn to the well-known case of DPP v Majewski [1976] UKHL 2 and to the case of R v Heard [2007] EWCA Crim 125.[6]In a helpful skeleton argument Miss Hirst, on behalf of the respondent, submits that the offence involves either no mens rea, or is a crime of basic intent, and that the Justices were entitled to find disorderly behaviour proved on their finding that the appellant ran into the road and rolled over the bonnet of the Nissan car.[7]In my view the proceedings before the magistrates proceeded upon a hopelessly misconceived basis from first to last, as indeed have Mr Giuliani's submissions. Section 91(1) of the 1967 Act is in the following terms:
"any person who in any public place is guilty while drunk of disorderly behaviour, shall be liable on summary conviction to a fine not exceeding level 3 on the standard scale."
[8]This is one of the most basic offences in the criminal calendar. It requires proof of three elements, namely that(1) the defendant was drunk;(2) he was in a public place; and(3) he was guilty of disorderly behaviour. Only the first and third elements call for further comment in this case.[9]As to the first element in Neale v E (A MINOR) (1983) 80 Crim App R 20, this court (Robert Goff LJ and Mann J, as they each then were) decided that the word "drunk" should be given its ordinary and natural meaning. In the end, therefore, whether a defendant was drunk is a simple question of fact in each case. On familiar principles it is the voluntary consumption of alcohol which is the requisite mens rea, such as it is, of this most basic offence. If that voluntary consumption results in the defendant becoming drunk then the first element of the offence is proved.[10]As to the third element, there is no requirement or mens rea at all. What is required is proof that objectively viewed the defendant was guilty of disorderly behaviour. Specific drunken intent and recklessness are nothing to the point. The words "disorderly behaviour" are again to be given their ordinary and natural meaning. In the end, therefore, it is a simple question of fact in each case: whether the defendant is guilty of disorderly behaviour. It follows that both the prosecution's stance in opening, the appellant's response and the justice's decision all proceeded upon the complete misconception of the law, to which I earlier referred. As the prosecution set out to prove something that they did not need to prove, their failure to do so cannot result in the success of this appeal, albeit that it was they who led the Justices into error, nor, in a case in which the issue was whether the Crown had proved that it was not an accident, can it be unjust when the Justices so concluded at the end of the day.[11]For the reasons that I have given, the answer to the question posed by the Justices must be that it was not necessary for them to have found that the appellant had acted recklessly. However, on the facts that they did find they were correct to convict as objectively viewed, and as they expressed it, the appellant's action in running into the road as part of his larking about with his friends was not accidental and therefore amounted to disorderly behaviour. Accordingly, in my view, this appeal must be dismissed.

LORD JUSTICE GOLDRING: I agree. Is it a publicly funded appeal, Mr Giuliani?

[13]MR GIULIANI: Yes, my Lord. Do I need to make an application?

LORD JUSTICE GOLDRING: What discretion do we have?

[15]MR GIULIANI: I am afraid I do not know.

LORD JUSTICE GOLDRING: Not without hesitation, for it seems to us that this appeal was from beginning to end wholly without merit, we will permit your public funding to go ahead. You must undertake to lodge your certificate within seven days.