England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT

		Royal Courts of Justice Strand London WC2
		14th February 2008

1. LORD JUSTICE MAURICE KAY: On 21 November 2006 in the Magistrates' Court in Brighton, the respondent, Elisha Cove, having previously pleaded guilty to a charge of driving with excess alcohol, sought to persuade the magistrates that there were special reasons why she should not be disqualified.
2. The offence occurred in the early hours of 15 April 2006. The alcohol reading was 60 micrograms of alcohol in 100 millilitres of breath. She was therefore substantially over the limit.
3. The magistrates heard evidence on the issue of special reasons. They made these findings:

"a. The respondent had gone to Brighton Marina on the evening of 14th April 2006.

b. The respondent had consumed alcohol in a public house.

c. The respondent later went and sat in her car with her mother in the Asda car park. She remained there for at least 20 minutes as shown on CCTV.

d. The respondent drove her silver Rover motor vehicle at around 02.55 hours from the Asda car park at Brighton Marina whilst under the influence of alcohol.

e. The respondent was observed driving her car by PC Taggart.

f. The respondent drove from the car park, went part way around a roundabout and turned left down a dead end where she stopped the car.

g. The respondent drove the vehicle without any lights on.

h. PC Taggart having followed the vehicle spoke to the respondent.

i. He could smell intoxicating liquor and asked the respondent to provide a road side breath test.

j. The respondent was unsuccessful in completing the test.

k. The respondent was arrested for failing to provide a road side breath test.

l. At the police station the respondent gave a breath reading of 60 micrograms of alcohol in 100 millilitres of breath. This was at 03.43 hours."

4. In addition to the facts as there found, the magistrates heard quite a lot of evidence about the events of the night in question which did not give rise to specific findings set out in paragraph 3 of the case stated. I shall refer to some of that evidence later.
5. The magistrates proceeded to find special reasons. They said that they found "with reference to Chatters v Burke" that:

"(i) 250 metres was not an excessive distance to travel;

(ii) no lights were illuminated on the vehicle;

(iii) the state of the car was not an issue;

(iv) there was no intention to drive further;

(v) the road was not busy as it was late at night and the weather was dry;

(vi) there were other road users in the vicinity but there were few;

(vii) the vehicle was driven to avoid a financial penalty."

6. In this appeal by way of case stated, the Director of Public Prosecutions appeals against the finding of special reasons. The questions posed for this court by the case stated are as follows:

"1. Did the magistrates correctly apply the case law relevant to special reasons concerning this defendant's plea of shortness of distance driven (in particular the seven factors specified in Chatters v Burke), bearing in mind the totality of the evidence in the case?

2. In particular did the magistrates give appropriate weight to not only how far the vehicle was driven and whether the defendant intended to drive further, but also to the manner in which the vehicle was driven, the reason for the vehicle being driven and, most importantly, whether there was a possibility of danger by coming into contact with other road users and pedestrians."

7. That case stated is in conventional form. Some time later, the magistrates wrote a letter accepting that they had not correctly applied the legal principles relevant to special reasons and in other respects suggested how they had, but ought not to have, approached the case.
8. For the moment I propose to ignore that letter, although it now forms part of the case stated, having been annexed to it in rewritten form under the heading "Concession". It seems to me that our first task is to decide the case on the basis of the original case stated.
9. As the first question posed by the magistrates asks whether they correctly applied the case law, it is necessary to say something of that law. The concept of special reasons comes from section 34(1) of the Road Traffic Offenders Act 1988, although it has a longer history than that. Section 34(1) provides for a mandatory disqualification in relation to this offence:

"... for such period not less than twelve months as the court thinks fit unless the court for special reasons thinks fit to order him to be disqualified for a shorter period or not to order him to be disqualified."

10. In Chatters v Burke [1986] 1 WLR 1321, the Divisional Court considered the implication of special reasons in the context of a case where a driver moved a vehicle only a very short distance. There the driver had been a passenger in his own car when his friend, who was driving it, lost control of it and it ended up in a field adjacent to a highway. The defendant then drove the car back onto the highway, where he parked it and waited for the police to attend. He drove it on the highway for a very short distance indeed.
11. The following passage from the judgment of Taylor J is relevant. He said at pages 1326 to 1327:

"It is clear from these cases that there may be special reasons for not disqualifying a driver where he moves a vehicle only a short distance without any appreciable risk of contact with other road users. The cases emphasise that such instances of special reasons being found will be rare and that the shortness of the distance driven is not the only or indeed the major criterion. Whether the road is a busy one and the chances of other traffic being affected by the defendant's manoeuvre are more important considerations.

In the course of this case Watkins LJ indicated seven matters which ought to be taken into account by justices if a submission is made that special reasons exist for the defendant not being disqualified. First of all they should consider how far the vehicle was in fact driven; secondly, in what manner it was driven; thirdly, what was the state of the vehicle; fourthly, whether it was the intention of the driver to drive any further; fifthly, the prevailing conditions with regard to the road and the traffic upon it; sixthly, whether there was any possibility of danger by contact with other road users; and finally, what was the reason for the vehicle being driven at all.

Of those seven matters, for my part I would have thought that item six was the most important, but clearly the distance which is driven is of itself not a sufficient determinant as to whether special reasons should be found or not."

Watkins LJ agreed.

12. In the later case of Director of Public Prosecutions v Bristow [1998] RTR 100, which was a case of driving in response to hearing of an emergency — in that case knowledge that the driver's children had been assaulted and were being held in a nearby house — Simon Brown LJ said at page 109:

"As it seems to me the key question which justices should ask themselves in these so-called emergency cases is this: what would a sober, reasonable and responsible friend of the defendant present at the time, but himself a non-driver and thus unable to help, have advised in the circumstances: drive or do not drive?

The justices could only properly find special reasons and exercise their discretion not to disqualify if they thought it a real possibility rather than merely an off-chance that such a person would have advised the defendant to drive. Amongst the most critical circumstances influencing that advice would, of course, be these: (1) How much has the defendant had to drink? (2) Having regard to that, what threat would he pose to others when driving in that condition, given the distance he was proposing to drive, the likely state of the roads and the condition of his vehicle? (3) How acute a problem is there? (4) What, if any, alternatives were open to the defendant to solve that problem?"

13. I should also refer to R (Director of Public Prosecutions) v Oram [2005] EWHC 964 (Admin), in which Leveson J applied the approach postulated by Simon Brown LJ. At paragraph 11 Leveson J said:

"... it is wrong to isolate a particular distance on the basis that such a distance provides a marker between a short distance which will justify the exercise of discretion and a distance which will not. In each and every case it is necessary to look at all the circumstances. Not surprisingly, those cases most likely to attract the exercise of discretion will be those which arise when the driver does not expect to drive and has done so in some sort of emergency or unforeseeable circumstance. Again, I do not describe a definitive test but merely point to the circumstances."

14. The submission of Mr Light, on behalf of the respondent, is that we should have particular regard to that advice, that all cases have to be considered by reference to their own specific circumstances. With that I wholly agree, but what are the salient circumstances that arose in this case.
15. The events occurred at about 3 o'clock in the morning, when, even in that part of Brighton, things could be expected to have quietened down. But given the location, the prospective presence of other road users, including pedestrians, was still a real one. The respondent drove, and was seen to drive, for some 250 metres. That included driving around a roundabout, and it was a journey taken throughout without lights. The respondent had drunk a significant amount of alcohol.
16. The first question posed for this court — asking whether the magistrates correctly applied the case law, in particular the factors specified in Chatters v Burke, bearing in mind the totality of the evidence in the case — requires us, first, to consider whether the magistrates correctly directed themselves as to that case law. I refer again to the factors which led them to find special reasons, which I have reproduced from paragraph 12 of the case stated.
17. On the face of those reasons, it is apparent that the magistrates focused, not on what prospectively the usage of the road would have been in that part of Brighton at that time, but on what the usage actually was on the evidence. That seems to me to indicate a departure from the approach required by Chatters v Burke and the other authorities, recalling that the sixth of the matters referred to by Taylor J was "whether there was any possibility of danger by contact with other road users".
18. To that extent, it seems to me that the magistrates misdirected themselves. However, that is not the only concern. In acceding to the points made on behalf of the respondent in relation to the distance driven, the lack of lights and the reason for driving, namely in order to avoid the possibility of a car park surcharge, it seems to me that the magistrates reached a decision which no reasonable bench of magistrates could have reached on that evidence. This was not a case of emergency. On the findings it was a case of an unforeseen circumstance, but in my judgment it could only be classified as a mundane one in the context of cases of this kind.
19. Having been through the bundle of authorities and having had regard to the facts in those cases and in some of the other cases referred to in them, I take the view that it was simply not open to the magistrates to come to the conclusion that the facts of this case amounted to special reasons. For those reasons, I would answer the questions posed by the case stated in the negative.
20. That is sufficient to allow this prosecutor's appeal and it will be allowed. However, I ought now to return to the second thoughts expressed by the magistrates in their letter and in the document annexed to the case stated. It has been possible to decide the case without reference to it. However, it is an interesting document. The first thing to say about it is that the magistrates are to be praised for their straightforward self-criticism. The document reads as follows:

"We accept, having considered the evidence again and the questions posed by the Crown Prosecution Service on behalf of the Director of Public Prosecutions, that we did not correctly apply the case law relevant to special reasons concerning shortness of distance driven, bearing in mind the totality of the evidence in the case and the contradictory nature of the evidence of Miss Cove, her mother and Mr Boyce. The alcohol reading also contradicts the evidence given by Miss Cove and her mother.

In relation to the Chatters v Burke factors we accept:

• we paid insufficient regard to the comments that Miss Cove made to PC Taggart at the time of arrest. Were this fully taken into account it is clear that the vehicle was driven further than 250 metres;

• Miss Cove's comment of having driven incorrectly around the roundabout should have been taken into account in relation to the manner in which the vehicle was driven;

• that Miss Cove did not intend to drive beyond Mr Boyes's parking spot, given the considerable time she had spent in the car park, the arrangements she had made and the fact that when she drove, it was to a dead end area;

• we were unaware of the road and traffic conditions prevailing at the time Miss Cove drove around the roundabout the wrong way;

• we were unaware that we needed to concern ourselves with the prospective rather than the actual state of the road when considering the road and traffic conditions question. We accept that we would have reached a different conclusion had we been aware;

• there was a possibility of danger by coming into contact with other road users and pedestrians given the increased time and distance of the driving.

We concede that although we had sympathy for Miss Cove in relation to the potential parking charges that she may incur that this was not a sufficiently good enough reason to drive the vehicle whilst under the influence of alcohol."

21. It is clear from that summary, and from what I have already said, that the magistrates did not correctly apply the legal principles to be derived from the case law relevant to special reasons. It is also clear that, whether as a result of sympathy or for some other reason, they limited their findings of fact to the minimum and, according to the case stated, made no findings as to other parts of the evidence which, if they had resulted in findings adverse to the respondent, would have made the appeal to special reasons even more fanciful.
22. In their supplementary document the magistrates now consider that they "paid insufficient regard" to comments which the respondent made to the police officer at the time of the arrest. Although she gave evidence disputing having made those comments, it is apparent from the way in which the magistrates now express themselves that they accepted the police officer's evidence. That ought to have led to a finding that she had driven twice as far as the finding of fact suggested because she had made the journey twice. Moreover, on the first occasion, when unobserved by the police, she had driven the wrong way around a roundabout. It is not suggested that the magistrates had previously rejected that evidence of the police officer and have now come to change their mind. The implication of the way in which they express themselves is that they had accepted his evidence, but "paid insufficient regard" to it. That is unfortunate, as indeed is their self-confessed erroneous approach to the legal principles.
23. Although we have been able to decide this case without resort to the annexed document, because it is in our view a plain case, it is apparent from the annexed document that in truth this never came anywhere near being a permissible special reasons case.
24. Accordingly, I would allow the appeal and remit the matter to the magistrates for the imposition of the disqualification.
25. MR JUSTICE WALKER: I agree.
26. MS WILKINS: My Lord, there are two points. The first is that I recall your Lordship referring to 250 yards.
27. LORD JUSTICE MAURICE KAY: It is metres, is it?
28. MS WILKINS: It is metres, my Lord. The second point is that I am instructed to seek costs on behalf of the Crown in this matter.
29. LORD JUSTICE MAURICE KAY: How much?
30. MS WILKINS: I am afraid, my Lord, I do not have a schedule of costs. I would ask that those costs be taxed in due course.
31. LORD JUSTICE MAURICE KAY: Are we not required in these cases to fix a sum?
32. MS WILKINS: I thought that the costs, my Lord, arose — the jurisdiction arose from the Supreme Courts Act 1981 under section 28A(1). I am aware that there thought be a schedule before your Lordships for the purposes of looking at costs today, but I had understood that the costs could be taxed after the hearing.
33. MR JUSTICE WALKER: My recollection of what has been said in the past is that it is highly desirable that a schedule should be ready, so as avoid the costs of a taxation.
34. MS WILKINS: My Lord, I have to accept that, and I have also to apologise on behalf of the Crown that that document has not been prepared prior to today. I do make that apology to your Lordships.
35. LORD JUSTICE MAURICE KAY: Is there anybody here who can give you instructions as to costs? We have another matter to hear. We could hear you again in half an hour.
36. MS WILKINS: My Lord, yes, I am told that can be achieved. If your Lordship would be prepared to put the case back, I would be very grateful.
37. LORD JUSTICE MAURICE KAY: I am sure those instructing you will be sensible about it and not ask for silly amounts.
38. MS WILKINS: My Lord, no.
39. LORD JUSTICE MAURICE KAY: Do you want to make any observation on the principle, Mr Light?
40. MR LIGHT: Not on principle, only to say that the respondent herself has the benefit of being publicly funded in this case.
41. LORD JUSTICE MAURICE KAY: Yes. It is not a reason not to make an order, although there may ultimately be difficulties in enforcing it.
42. MR LIGHT: Yes. Just to say that she is, as was apparent from the case, a woman who is of limited means.
43. LORD JUSTICE MAURICE KAY: We will hear you when we have finished the next case.
44. MS WILKINS: I am grateful to your Lordships.
(Other case interposed)
45. MS WILKINS: I am grateful for that time to enable me to ascertain the relevant figures. I have a handwritten costs schedule which I can hand up.
46. LORD JUSTICE MAURICE KAY: What is the bottom line?
47. MS WILKINS: The bottom line is £872.75 inclusive of VAT.
48. LORD JUSTICE MAURICE KAY: Would you like to hand it up. Has Mr Light seen it?
49. MR LIGHT: I am aware of it, my Lord. (Handed) (The Bench conferred)
50. LORD JUSTICE MAURICE KAY: Mr Light, first of all do you want to say anything about the figures?
51. MR LIGHT: My Lord, I do not. What I really wanted to say was just to re-emphasise what I had said earlier about my client's means. I have had the opportunity of taking some brief instructions from those who instruct me, and just to confirm that she is in fact a single parent. She has two children and she is in receipt of state benefits. So as I said earlier, she is a woman who is of limited means.
52. My Lord, as I understand it the court has a discretion as to whether or not to make an award of costs at all and if an award of costs is made, then a discretion as to the amount of those costs.
53. Perhaps I can also say on her behalf, whilst what set the train of events in motion, as it were, was the fact that she made the application originally to try and argue special reasons, of course the principal reason why we are before the court today is because, with respect, taking into account your Lordships' decision today, the magistrates got it wrong, as it were. I wonder whether that is something that could be taken into account when considering the question of costs today.
54. My Lord, those are my submissions.
55. LORD JUSTICE MAURICE KAY: It is difficult to take into account, because that can be said of any successful appeal. The fact is that all this arises because an extremely optimistic special reasons case was advanced.
56. MR LIGHT: My Lord, I have to accept that.
57. LORD JUSTICE MAURICE KAY: Thank you very much. (The Bench conferred)
58. We propose to make an order, but not for the full amount. Not that we consider the amount to be inflated as costs, we think they are reasonable costs, but we think as a matter of justice it would be sufficient and appropriate to order her to pay £400 towards the costs of the prosecution. However, we shall add to that the words "not to be enforced without leave of the court."
59. MS WILKINS: I am grateful, my Lords.
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