England and Wales High Court (Administrative Court) Decisions

1. LORD JUSTICE ROSE: The Appellant appeals by way of Case Stated against a decision of the Faversham and Sittingbourne Justices in Kent whereby, on 13th October 1997, they convicted him of an offence of driving while unfit through drugs, contrary to section 4(1) of the Road Traffic Act 1988 and Schedule 2 of the Road Traffic Offenders Act 1988.

2. The facts found by the Justices, as they appear from the Case Stated, were that, a little after 11.30pm, on the evening of 21st February 1997, two police officers were on patrol in a marked police car. Another vehicle, a Honda motorcar, (which it ultimately transpired was being driven by the Appellant) was overtaking another vehicle and in doing so came into the lane of the approaching marked police car. The officer who was driving braked sharply and suddenly to avoid a collision. He then turned the police vehicle to follow the Honda Accord. Ultimately, with the assistance of a blue light and sirens, the Appellant's motorcar was stopped.

3. The officers observed that his eyes were red, his speech slurred and the answers which he gave to the questions, asked by the officers, slow. There was no smell of intoxicating drink. The officers said they were going to search the Appellant for drugs. He volunteered the information that he had smoked a cannabis cigarette that night, and, indeed, had cannabis resin on him which he produced. He was arrested for the offence of driving under the influence of drink or drugs.

4. At the police station he was examined by a police surgeon who took a blood sample. That sample was analysed by a forensic scientist, a Mr McKinnon. There was no alcohol in it, but there was found a chemical compound arising in the body from the major active ingredients of cannabis/cannabis resin. The Justices found that it could not be ascertained exactly from the scientific test when the Appellant had last used cannabis. They found, from the evidence of Mr McKinnon, that:

"The effects of cannabis or cannabis resin could include dreamlike euphoria, feelings of relaxation and possible drowsiness, loss of coordination and reduced concentration, which might adversely affect driving."

5. They further found that such effects begin almost immediately after use, maximise about 20 minutes after the drug has been taken, and are relatively short lived, lasting normally around one to two hours with a maximum of about four hours.

6. The Appellant in evidence said that he had smoked one joint about 7.00 to 7.30 pm and that he had thought that the cannabis would have warn off by the time he was driving home. He was, he said, driving at between 40 and 45 miles an hour when he had overtaken the vehicle in front of him. The speed limit at that point was 30 miles an hour.

7. The contention was advanced before the Justices, on behalf of the Appellant, first, that in order to establish unfitness to drive it was necessary to call expert medical evidence, in particular, the police surgeon who had examined the Appellant; secondly, that the officers' evidence must be confined to the facts of their own observations; thirdly, that a medically qualified witness must give evidence at such a trial that, in his opinion, the Appellant was impaired or unfit through drugs when examined.

8. On behalf of the Respondent, it was contended that there was ample evidence of the Appellant's unfitness to drive through drugs before the Justices. The Justices concluded that:

"The Appellant had been driving... at speed considerably in excess of the speed limit and in an erratic and careless manner which had caused the police to stop their vehicle suddenly to avoid a collision."

9. They concluded that the Appellant had had no alcohol in his blood at the time but had had compounds arising from cannabis or cannabis resin, and that the Appellant had admitted smoking cannabis earlier the same evening.

10. They concluded that the police officer's observation that:

"the Appellant's eyes had been red and glazed, his speech had been slurred and his answers had been slow indicated that the Appellant was under the influence of and adversely affected by the cannabis or cannabis resin at the time he had been stopped..."

11. And that accordingly they had

"no doubt that the Appellant had been driving whilst unfit through drugs."

12. They also concluded that there was ample evidence of such unfitness without any medical evidence. In consequence they imposed a fine and ordered disqualification.

13. For the consideration of this Court they posed two questions: (i) whether they were entitled to convict?

14. In this Court Mr Ley, on behalf of the Appellant, accepts that the manner of driving was very dangerous indeed. However, he submits, first, that the prosecution should have called the police surgeon who took the blood sample and examined the Appellant. In the light of the failure of the prosecution to call the doctor, an inference adverse to the prosecution should be drawn because, as a matter of logic, the situation is comparable to the drawing of statutory inferences from the silence of a Defendant.

15. For the Crown, Miss Butler submits that that contention is misconceived. In my judgment, it plainly is misconceived. The position of a potential prosecution witness is manifestly different from that of a Defendant. There may be many reasons why a person, whom the Defendant believes ought to be called on behalf of the prosecution, is not called. To my mind, neither logic nor common sense suggest that inferences, adverse to the prosecution, are capable of being drawn from the failure to call particular prosecution witnesses simply because there is a statutory scheme for drawing such inferences from the silence of a Defendant.

16. Mr Ley's second submission is that there was no evidence on which the Justices could find that the Appellant was unfit by reason of drugs. He referred the Court to a number of authorities, including R v Thorpe [1972] RTR 118, in particular a passage in the judgment of Lord Widgery, CJ, citing, at the foot of page 119, the judgment of Ashworth J in R v McBride , and continuing with observations on the principle enunciated by Ashworth J at page 120. Mr Ley also drew our attention to R v Woodward [1995] 1 WLR 374. Both of those cases are authority for the proposition that, where a Defendant is charged with causing death by dangerous driving, the mere fact that, prior to his driving, he has been seen with a glass in his hand and has taken alcohol, is not, without more, relevant to the offence with which he is charged.

17. Mr Ley submits that, in the present case, evidence that cannabis had been taken by the Defendant was, of itself, insufficient to substantiate an allegation that his driving was thereafter impaired by unfitness due to that drug. There must, submits Mr Ley, additionally either be evidence of an expert character that an average person would be affected by the amount of drug actually found in the Defendant's body, or there must be expert evidence called from a doctor to speak of the impairment, if such there be, of fitness to drive by the presence of drug.

18. On behalf of the prosecution, Miss Butler accepts that bad driving in itself does not prove unfitness through drugs. However, she submits that, in the present case, there was ample evidence for the Justices to conclude that the Appellant was unfit through drugs in what the police officers saw and reported of the Appellant's condition when he was stopped, the Appellant's admission that he had earlier that day taken cannabis, the analysis of his blood which showed cannabis still to be present, and the evidence of Mr McKinnon, on the basis of which the Justices made the findings as to the effect of that drug, to which I have earlier referred.

19. So far as the authorities of Thorpe and Woodward are concerned, Miss Butler distinguished those on the ground that they were cases of causing death by dangerous driving when the issue was as to how the Defendant had driven, and the question was the extent to which consumption of alcohol was relevant to that. The present case, on the other hand, involves the central question of whether the Defendant was affected by drugs. For my part, I accept that those authorities are distinguishable on the basis advanced by Miss Butler. The crucial question in this case is whether there was material, despite the fact that no doctor was called, which justified the Justices in concluding that drugs had impaired the Defendant's ability properly to drive.

20. In my judgment, they were entitled to look at all the evidence in the case in relation to the way in which the car was driven, the consumption of cannabis which the Defendant admitted, the presence of cannabis in his blood on subsequent analysis, the effects of that drug, in particular, in relation to"feelings of relaxation and possible drowsiness, loss of coordination and reduced concentration," and to put all that evidence with the evidence from the police officers as to the slurred and slow character of the Appellant's speech. For my part, therefore, I would answer both the questions posed by the Justices in the affirmative and I would dismiss this appeal.

21. LORD JUSTICE ROSE: The appeal is therefore dismissed.

22. MISS BUTLER: I raise the issue relating to costs and I would ask for costs?

23. LORD JUSTICE ROSE: Is the Appellant legally aided, Mr Ley?

24. MR LEY: No, my Lord, but as a result of your Lordship's decision he will no longer be able to carry on his business so, at this stage, he would have no income coming in and he has no capital. Being a criminal case, unlike civil cases, if he does not pay such costs as you award, he can, of course, be sent to prison. Of course, it is always up to the discretion of the Court. I would submit that in a criminal case, as it is enforceable by imprisonment, your Lordships should consider his means before ordering him to pay the costs.

25. At the present time he is working so he is not eligible for legal aid. As a result of your Lordships' decision he cannot work for the next three years which has added to the sentence. He is a self-employed electrician and if he cannot carry his tools to his place of employment he cannot do any work. Therefore he is a man who will be on social security, presumably, as soon as he can fill out the relevant funds at the benefit office, or where people go to draw such funds. With his loss of employment now he will be on social security and, of course, he was not eligible before for legal aid as he had a job, but he is now----

26. LORD JUSTICE ROSE: You have said that.

27. MR LEY: I submit that the justice of the case is no order as to costs.

28. LORD JUSTICE ROSE: Miss Butler, do you want to say anything else about the costs?

29. LORD JUSTICE ROSE: Is he self-employed, Mr Ley?

30. LORD JUSTICE ROSE: Does he employ anyone else?

31. MR LEY: I do not think so. I shall just take instructions ( Instructions taken ) No, he does not, my Lord.

32. LORD JUSTICE ROSE: He is a one man outfit?

33. MR LEY: That is right, my Lord.

34. LORD JUSTICE ROSE: We shall make no Order as to costs.

35. MR LEY: I am much obliged to your Lordships.