Magee v Crown Prosecution Service [2014] EWHC 4089 (Admin)

Case No CO/1909/2014[2014] EWHC 4089 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Venue Royal Courts of JusticeDate Tuesday, 7 October 2014
Strand
London WC2A 2LL
B e f o r e:
LORD JUSTICE ELIAS
MR JUSTICE HICKINBOTTOM
Between
MAGEEAppellantv
Between
CROWN PROSECUTION SERVICERespondent
Computer-Aided Transcript of the Stenograph Notes ofWordWave International LimitedA Merrill Communications Company165 Fleet Street London EC4A 2DYTel No: 020 7404 1400 Fax No: 020 7404 1424(Official Shorthand Writers to the Court)
Ms J Dannhauser (instructed by A A Mirson) appeared for AppellantMr P Lodato (instructed by the Crown Prosecution Service) appeared for Respondent
J U D G M E N T

LORD JUSTICE ELIAS:

[1]This is an appeal by way of case stated from the Bromley Magistrates' Court. The appellant was charged with two offences: first, failing to stop after an accident where damage was caused to another vehicle contrary to section 170(4) of the Road Traffic Act 1988; and second, driving whilst over the alcohol prescribed limit contrary to section 5.1 of the Road Traffic Act 1988. She pleaded not guilty to the first charge but guilty to the second.[2]District Judge Fanning stated the case and identified certain questions which the court is required to answer.[3]Before considering the background, I will set out the relevant legislation.[4]Section 171(b)(i) is as follows:
"(1)This section applies in a case where, owing to the presence of a mechanically propelled vehicle on a road or other public place, an accident occurs by which. (a) [...] (b)damage is caused — (i)to a vehicle other than that mechanically propelled vehicle or a trailer drawn by that mechanically propelled vehicle [...]"
[5]Sub-section 2 states:
"(2)The driver of the mechanically propelled vehicle must stop and, if required to do so by any person having reasonable grounds for so requiring, give his name and address and also the name and address of the owner and the identification marks of the vehicle. "(3) If for any reason the driver of the mechanically propelled vehicle does not give his name and address under subsection (2) above, he must report the accident. "(4) A person who fails to comply with subsection (2) or (3) above is guilty of an offence."
[6]The facts as found by the District Judge were as follows. The appellant reversed her car into a vehicle belonging to Mr Assadi and damaged it. She drove off but had to give way at a give way junction. At that point she was told by Mr Assadi and his son that she had collided with Mr Assadi's car.[7]The appellant got out of her car but denied that she was involved in the accident. She swore at Mr Assadi and drove away. She did not give details of her name and address and did not report the accident. The appellant accepted that the car which had allegedly hit Mr Assadi's vehicle was indeed hers. She also accepted that she was the person to whom Mr Assadi had spoken.[8]At the relevant time she was driving while well over the prescribed alcohol limit. Her recollection and judgment were affected by the alcohol but she genuinely did not believe that there had been an accident. The judge accepted that this was her genuine belief at least at the time of the collision, but that was only because of her intoxication and its effect upon her ability to rationalise events.[9]It is not entirely clear to me in the light of the facts found by the judge and the conclusions that he reached as set out in paragraph 9, whether he did accept that she continued genuinely to believe that there was no accident even after she had been spoken to by Mr Assadi. What is clear is that the judge was satisfied that the only reason she had maintained that she was not aware of an accident, if indeed she did genuinely believe that, was because she was drunk.[10]The judge accepted that she would not be required to provide details if she was unaware that the accident had occurred, relying on case of Harding v Price [1948] 1 AER 283, at least in circumstances where she was sober. She could not, however, in this case rely on that belief as a defence because her belief was the result of intoxication.[11]The judge then identified the following four questions for the opinion of the court.a. A. Is it the case that, when told of the accident, the Appellant can only be said to have become aware of an allegation of an accident rather than that an accident had in fact occurred and that, accordingly, unless she accepted the truth of the allegation, she was under no obligation to provide details per s.170 (2)?b. B. If the Appellant had a genuine belief that no accident had occurred, despite the immediate allegation, could she claim to be unaware of the accident, avail herself of the defence in Harding & Price, and, therefore, avoid the requirement to provide her details?c. C. Was I right to consider that, in the circumstances of this case, there was no distinction to be made between being aware of the allegation of an accident and being aware of the accident itself and that the Appellant’s conclusion (namely that unless she herself was under s.170(2) did not apply to her) was incorrect, and she was guilty of the offence?d. D. Is a distinction to be drawn between the driver of a motor vehicle who, by reason of intoxication, does not perceive an accident immediately that it occurs, but who is told within moments of the fact of the accident, and a sober driver similarly placed? Discussion[12]The first three questions interrelate and I will consider them together. Read literally, the obligation to provide the information on request or otherwise to notify the police of the accident applies whenever an accident in fact occurs, whether the defendant is aware that it has happened or not.[13]However, as the judge was aware, the section has not been construed in that way. In Harding v Price a vehicle known as a mechanical horse, which was towing a trailer, damaged a stationary car when being driven down the road. Owing to the noise of the vehicle, the driver was not aware that the accident had occurred. He was prosecuted for failing to report the accident to the police contrary to section 22.2 of the Road Traffic Act 1930 which was framed in terms similar to section 170.[14]Lord Goddard CJ pointed out that earlier legislation had stated that the defendant was liable only if the defendant had knowingly acted in contravention of the section, but that the requirement of knowledge was no longer necessary. Nonetheless, Lord Goddard held that whilst it was no longer necessary for the prosecution to prove knowledge as an element of the offence, it was open to the defendant to prove lack of knowledge as a defence. The legislation was not intended to be one of strict liability. The effect of removing the requirement that the defendant should knowingly act in breach of a section was therefore to reverse the burden of proof. Humphreys J and Singleton J gave concurring judgments.[15]In Harding, the defendant was unaware that the accident had taken place but in my view, the position can be no different if a defendant satisfies the court that he or she genuinely did not believe that it had occurred, notwithstanding that she had been told otherwise.[16]The first question asks whether there is a relevant distinction between knowledge that the accident has occurred and knowledge of an allegation that it has occurred. Strictly these are different things. The allegation may be false. Plainly, however, a court may properly infer that a defendant must have been aware that the accident had occurred as a result of being told that it had immediately or shortly afterwards, even if the defendant was genuinely unaware of the accident or collision at the moment it happened.[17]For example, in Quelch v Phipps [1955] 2 QB 107, a bus driver failed to stop and provide information pursuant to section 22 of the Road Traffic Act 1930. A passenger had stepped off the back of the bus in Oxford High Street whilst the bus was moving and the passenger was injured. The driver was not aware at the time that the accident had occurred but was told by the conductor at the next stop. He had no direct knowledge of the accident but was nonetheless found to have direct knowledge. Lord Goddard said that in these circumstances:
"The driver must at any rate from a common sense point of view know that the accident had occurred."
[18]The driver in that case, however, did not in fact allege otherwise.[19]Quelch supports the common sense proposition that a court may properly infer that a defendant must know that an accident has occurred once she is told that it has. That would no doubt be the position in the vast majority of cases since the defendant does not have to know from her own direct knowledge, and there is likely to be no proper basis for doubting the information given.[20]But there may be exceptional cases where a defendant may genuinely remain of the view that no accident has occurred, even when told otherwise. For example, she may genuinely believe that the allegation is being dishonestly made in an attempt to make her liable for damage caused to the other vehicle. Where she can show that she genuinely believes that the allegation is false and that no accident has in fact occurred, the onus being on her, then the principle in Harding v Price would in my view continue to operate and no duty to provide the particulars would arise.[21]The respondent contends that the duty to provide particulars arises even then. Counsel submits that whenever the party requesting the information seeks it on reasonable grounds then there is an obligation to provide it. It is said that Harding v Price has no application in such circumstances. I disagree. The duty arises whenever an accident has in fact occurred unless the defendant can show, the onus being on her, that she genuinely did not know or believe that it had occurred. But once that onus is discharged the duty does not arise. The obligation to provide the particulars depends upon the genuine belief of the defendant, not the reasonableness of the third party's request.[22]It follows that in my view the answer to the second question is a qualified "yes". The appellant would be under no obligation to stop and provide the details if she could satisfy the court that she was genuinely unaware that the accident had occurred, or genuinely did not believe that it had.[23]As I have said, it is not clear whether or not the judge was satisfied in this case that she did genuinely believe that the accident had not occurred, even after having been spoken to by Mr Assadi. But if the court were satisfied that she still held that genuine belief, the duty would not arise.[24]I turn to the fourth question. The issue here is whether there is a distinction to be drawn between an intoxicated driver who does not appreciate that the accident has occurred by reason of her alcoholic state, and a driver who is sober.[25]The essential point is that it was only because of her intoxication that the defendant did not appreciate that she had been involved in the accident at the relevant time. That was the reason, too, why she refused to accept that she had been involved even when told that she had immediately afterwards.[26]Even assuming that she was able to satisfy the court that she maintained that genuine belief throughout, in my view if this was a consequence of her inebriation, she cannot rely upon her lack of knowledge or genuine belief that there was no accident as a defence to the charge.[27]The well established rule is that intoxication cannot be asserted as a defence in crimes of basic intent as this one surely is: see DPP v Majewski [1977] AC 447. The appellant submits that is too sweeping an approach. She relies on the case of Jaggard v Dickinson [1980] 3 All ER 716 for the proposition that a mistaken view of the circumstances, even if induced by drink, will constitute a defence as long as the defendant genuinely did not believe an accident had occurred. The fact that the genuine belief was formed as a result of drink is irrelevant.[28]In Jaggard, the defendant had caused damage to a house in the course of effecting an entry. She believed in her drunken state that the house belonged to a friend of hers. Section 5(2) of the Criminal Damage Act 1971 provided a defence if the defendant believed that the owner of the property would have consented to her actions. She believed that the owner would have consented but only because she made a mistake as to who the owner was. She was acquitted of the offence.[29]Mustill J considered the distinction between cases of basic and specific intent was not helpful in a case such as this where the appellant was not seeking to rely on her drunkenness to displace an inference of intent or recklessness, but merely to establish a mistake. Here, the court was concerned with an actual state of belief.

(e) :

"[...] Parliament has specifically required the court to consider the defendant's actual state of belief, not the state of belief which ought to have existed. This seems to us to show that the court is required by section 5(3) to focus on the existence of the belief not its intellectual soundness; and a belief can be just as much honestly held if it is induced from intoxication as if it stems from stupidity, forgetfulness or inattention." 30. "
For the purposes of this section it is immaterial whether a belief is justified or not if it is honestly held, provided the honesty of the belief is not attributable to self-induced intoxication."[30]He did not believe that it was legitimate to construe the defence in that way.[31]Ms Dannhauser submits that that is precisely the position here; we are concerned only with genuine belief. In those circumstances whether that belief is the result of drink or not, the only question is whether it is genuine.[32]I do not agree. In my judgment, the principle enunciated in Jaggard does not apply in the circumstances of this case. First, there is considerable doubt whether Jaggard is still good law in the light of such cases as O'Connor [1991] CLR 135 and R v Hatton [2005] EWCA Crim 2951. In the latter case, the Court of Appeal Criminal Division held in a murder case that an honest but mistaken belief by the defendant that he was being attacked and was entitled to use self defence was not a defence where that belief was attributable to his voluntarily being drunk.[33]That principle is now found in the Criminal Justice and Immigration Act 2008 section 76, whenever an issue arises as to whether a defendant can rely on self defence.[34]Second, in any event I am satisfied that Jaggard could, and should, be narrowly rather than widely construed. Jaggard turned on the construction of the specific defence in section 5 of the 1971 Act, as the passages I have quoted demonstrate.[35]Here, the onus is on the defendant to negate the natural inference that once the accident has occurred she will have been aware of it. It seems to me that there is no reason why the common law should be construed so as to allow her to pray in aid her own state of drunkenness as the reason for the mistake, and there is every reason of policy why it should not be extended in that way.[36]Accordingly, in my judgment, even if the court could properly find that the appellant was unaware of the accident because of her drunken state, she could not rely upon that as a defence. She would have been able to rely on it had she been sober, but not where she is voluntarily intoxicated. It follows that the answer to Question D is that a distinction is to be drawn between a sober and intoxicated driver in so far as the latter does not perceive that an accident has occurred because of her drunken state.[37]For these reasons, the conviction must stand and that is so, whatever the precise finding of the judge as to the appellant’s state of belief after she had been in conversation with Mr Assadi.

MR JUSTICE HICKINGBOTTOM: I agree.