QUEEN'S BENCH DIVISION
B e f o r e :
MR JUSTICE ROYCE
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MR DEREK ZEITLIN (instructed by Crown Prosecution Service) appeared on behalf of the DEFENDANT
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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.
"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."
"(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."
"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."
"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."
"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."