England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
(ADMINISTRATIVE COURT)

		Royal Courts of Justice Strand, London, WC2A 2LL
		26th January 2007

Mr Justice Owen :

1. This is an appeal by way of case dated against a decision of district judge (MC) Babington–Browne sitting in the Basingstoke Magistrates Court on 11 April 2006.
2. The facts that gave rise to the hearing on 11 April 2006 can be simply stated. On 5 September 2005 the appellant was charged with driving a motor vehicle on Andover Road, Winchester having consumed excess alcohol contrary to Section 5 (1)(a) of the Road Traffic Act 1988. A breath specimen provided by the appellant showed that his breath contained 53 micrograms of alcohol per 100 ml of breath, the legal limit being 35 mcg. On 12 January 2006 he pleaded guilty to the offence. On 11/4/2006 the district judge heard legal argument as to whether it was open to the appellant to argue that there were special reasons within the meaning of Section 34(1) of the Road Traffic Offenders Act 1988 (the Act), why the court should not impose the obligatory disqualification from driving that will ordinarily follow conviction for an offence under Section 5(1)(a). It was submitted on his behalf that the intoximeter reading was affected by eructation, belching in common parlance, during the procedure. It was further submitted that if the reading was artificially inflated by eructation, that could as a matter of law amount to a special reason for not disqualifying.
3. The district judge found that:

a) "The presence of elevated mouth alcohol cannot amount to a special reason because it is connected to the offender and not the offence.

b) As this essential component of the special reasons argument as outlined in R v. Wickens (1958) 42 Cr App 236 and approved in Whittall v. Kirby [1946] 2 All ER 552, was not present, the appellant was not entitled to adduce evidence with respect to special reasons in this case."

The case was then adjourned for sentence to 27 April 2006, when a differently constituted court imposed a financial penalty of £130, ordered that the appellant's licence be endorsed and disqualified him from driving for 12 months. The disqualification was suspended pending this appeal.

4. In her case stated District Judge Babington-Browne posed the following questions for the opinion of the high court.

"(1) was I right to conclude that the elevated mouth alcohol was a circumstance special to the offender and not the commission of the offence and thus not capable of amounting to a special reason?

(2) Following the case of Zafar v. DPP [2004] EWHC 2468 was I bound to conclude that evidence of mouth alcohol could not amount to special reason in any event as there can be no distinction made between deep lung breath and any other breath or air exhaled for the purpose of the specimen."

5. It is convenient to address the questions in reverse order. It is common ground between the parties that the second question should be answered in the negative following the decision of the Divisional Court in Robert Woolfe v. DPP [2006]EWHC 1497 (Admin) in which judgment was given on 23 June 2006, approximately two weeks after the district judge had given her ruling.
6. In Woolfe the appellant had provided two specimens of breath at the police station which were both above the legal limit. The magistrates found that he suffered from a medical condition, namely a tendency to reflux, regurgitation of stomach content, and accepted his evidence that he had drunk a very modest amount of alcohol. The experts for the prosecution and defence agreed that after consumption of the quantity of alcohol that the court accepted that he had drunk, the quantity of alcohol in his breath would be well below the legal limit, 10 mcg/11ml. The magistrates also accepted the evidence of the defence expert that the readings in excess of the limit could be explained by repeated reflux. It was argued on behalf of the appellant that that could amount to a special reason within the meaning of the Act. The judgment of the Divisional Court was given by Maurice Kay LJ. Paragraphs 8-10 of his judgment are of direct relevance:

"8. That brings me to the final issue raised by this appeal. The justices were invited not to disqualify the appellant because of 'special reasons' relating to his medical condition. His tendency to regurgitation\reflux was well documented, although his evidence was that he had no recollection of its occurrence at material times. The justices concluded:

"We found that there was not a special reason not to disqualify because this would undermine Zafar and the defence submission was closely linked with defence argument at trial."

Elsewhere, they referred to the submissions as being "no different" from the defence at trial.

9. Although the case stated did not pose a question in relation to this aspect of the case, it is common ground that the approach of the justices was legally flawed. The parties agreed the case stated should be amended to include a third question, namely –

"Were we wrong to conclude that the appellant's medical condition could not amount to special reasons, merely because the condition (if established and if relevant to the specimens provided) did not amount to a defence?"

10. "Special Reasons" are now provided for in Section 34(1) of the Road Traffic Offenders Act 1988 but the jurisprudence goes back further. Thus, in Wickens (1958) 42 Cr App R236, 239, Devlin J referred to four requirements: (1) a special reason must be mitigating or extenuating circumstance; (2) it must not amount in law to a defence; (3) it must be directly connected with the commission of the offence; (4) it must be a matter which the court ought properly take into account when considering sentence. The error of the justices in the present case was to exclude special reasons at least partly on the basis that, as Zafar precluded a defence, so it precluded a finding of special reasons. It is plain from the requirements set out in Wickens that this is incorrect. Accordingly the third question (which we admit by amendment) should be answered in the affirmative. In these circumstances, it is necessary to remit the case to the Magistrates' Court for re-consideration of special reasons."

7. Thus in the instant case the District Judge made the same error as in Woolfe, namely in concluding that the judgement in Zafar not only precluded a defence, but also precluded a finding of special reasons. The second question will therefore be answered in the negative.
8. The issue raised by the first question is whether elevated mouth alcohol that could be demonstrated to be attributable to eructation, was a circumstance special to the offender, and not directly connected to the commission of the offence, and therefore not capable of amounting to a special reason within the meaning of the Act.
9. Mr Reid, who appeared for the respondent, submitted that in law an increased concentration of alcohol in the appellant's breath as a consequence of eructation could not amount to a special reason relying on the dictum in Whittal v. Kirby 1947 KB 194, the leading case as to the meaning of special reasons, in which the judgment of the Divisional Court was given by Lord Goddard CJ, who articulated the principle in characteristically concise terms:

"A circumstance peculiar to the offender as distinguished from the offence is not a 'special reason'".

He submits that the District Judge was right to find that "the presence of elevated mouth alcohol cannot amount to a special reason because it is connected to the offender and not the offence".

10. I do not agree. The evidence upon which the appellants sought to rely went directly to the commission of the offence. If accepted it could provide an explanation as to why the level of alcohol in the appellant's breath exceeded the prescribed level, notwithstanding that on his case the alcohol that he had consumed would not have had that effect. The case is analogous to the line of authority arising out of cases in which … "the drinks consumed immediately before the offence had, without the knowledge of the offender, had been laced or combined with some extraneous substance (drugs or chemicals), or affected by some extraneous incident without the offender being aware of the potential effects.", see Regina v Jackson [1970] 1QB 647 at 657. Thus for example in Brewer v. Metropolitan Police Commissioner [1969] 1WLR 267 the facts found at Quarter Sessions were that the appellant had consumed a small quantity of alcohol which of itself did not render him unfit to drive, but that before consuming it, he had been exposed to a chemical at the premises of the engineering firm of which he was a director. Expert evidence was adduced by the appellant to the effect that the chemical in question was a form of alcohol which had operated as an anaesthetic inducing drowsiness, and that the culmination of inhalation of fumes together with the small amount of alcohol that had been consumed, could render him unfit to drive without his realising it. The Divisional Court held that those facts were capable of amounting to a special reason for not disqualifying the appellant.
11. I am satisfied that in this case the evidence upon which the appellant sought to rely before the District Judge was directly connected to the offence.
12. I also derive support for that conclusion from the judgment of the Divisional Court in Woolfe. It is plainly implicit in the answer that the court gave to the third question that it addressed, and in its remission of the case to the Magistrates Court for reconsideration of special reasons, that the fact that the alcohol level in the breath specimen was attributable to regurgitation/reflux was 'directly connected with the commission of the offence'.
13. It follows that in my judgment that the answer to the first question must also be answered in the negative. The disqualification will therefore be set aside and the matter remitted to the Magistrates Court for reconsideration of special reasons.