Scottish High Court of Justiciary Decisons

LESLIE LYNDON CARTMILL v. PROCURATOR FISCAL, DUNDEE [1999] ScotHC 128 (25th May, 1999)

This is the appeal of Leslie Lyndon Cartmill who was convicted of a contravention of section 5(1)(b) of the Road Traffic Act.

The circumstances were that the appellant had arranged with Mrs Sandeman that she would drive his car and collect him from a public house around 1.00am on a Sunday morning. By that time the appellant had had a substantial quantity to drink. The appellant's normal practice was to stay overnight at Mrs Sandeman's house on Saturday nights and then on Sunday afternoon, around 2.00-2.30pm, they would go for a drive. When Mrs Sandeman collected the appellant at 1.00am she was disgusted by the extent of his drunkenness but nevertheless drove back to her own house. She was unable to park close to the house but found a space round the corner. The appellant commented that he would need a taxi to get to her house whereupon Mrs Sandeman walked away from the car leaving the keys in the ignition. She expected him to follow but he did not. Around 2.00am two police constables found the appellant's car, and the appellant was in the driver's seat in a deep sleep. He had the car keys in his right hand. The police tried to waken him and it took them about two minutes to do so. They smelled alcohol on his breath and required him to provide a specimen which he agreed to do, and that subsequently proved to contain 87 mgms of alcohol in 100 mls of breath, two and half times the limit. He told the police that he had fallen out with his girlfriend and that he intended to sleep in the car.

It was agreed by joint minute that by 12 noon on the Sunday the proportion of alcohol in the appellant's breath would no longer exceed the prescribed limit for driving.

Mr Shead on the appellant's behalf today argued, in the first place, that it was not proved that the appellant was in charge of his car. He referred to Kelso v Brown 1988 S.C.C.R. 278. The circumstances in Kelso were however very different and, in particular, the car concerned was not in the ownership of the accused. It appears that in that case the accused had been left in the passenger seat of the car in a drunken state by the driver and the owner of the car, who was his wife, and there was nothing to suggest that he moved from the passenger seat and assumed control of the car at any stage. The present case is, however, entirely different in that it was the appellant's own car, and after Mrs Sandeman left the car the appellant must have left the passenger seat and got into the driver's seat, and then took out the ignition keys and kept them in his hand. It is difficult to conceive of circumstances more redolent of being in charge of a car than those. In these circumstances we are quite satisfied that there is no merit in this point which was not, in any event, raised in the grounds of appeal although the Sheriff has for some reason put a question into the case asking if he was entitled to find that the accused was in charge of the car.

The main point taken by Mr Shead was that there were no grounds upon which the Sheriff could hold that the appellant had not made out the statutory defence of there being no likelihood of his driving while still over the limit. He submitted that the evidence indicated that in the normal course of events on a Sunday the appellant would not drive the car until about 2.00pm when he would go with Mrs Sandeman for a drive. At 2.00am he was in a drunken sleep. It took the police some time to waken him, so he might have continued to sleep for some considerable time. It was his stated intention to sleep the night in the car.

What the Sheriff says is that there was a distinct possibility that when he wakened he would have felt it appropriate to drive to his own home or elsewhere. Mr Shead submitted that that was speculation rather than inference bearing in mind that there was no idea how long he would continue to sleep for and that normally he would not drive the car until 2.00pm.

The Advocate Depute submitted that there was ample material for the Sheriff to come to the conclusion that the defence had not been made out. Quite plainly this was not a normal Sunday. It is apparent from the evidence that the appellant had decided not to follow Mrs Sandeman to her house and therefore had decided not to spend the night in her house and indeed he intended to sleep in the car. That being so, it could not be said that when he woke up, at such time as that would be, he would not take the car perhaps back to his own house or indeed, in view of his remark that he would need a taxi to get to Mrs Sandeman's house, that he might not even just decide to drive the car round the corner to Mrs Sandeman's house.

We are satisfied that there was material before the Sheriff which would justify him in coming to the conclusion that the appellant failed to make out the statutory defence. In these circumstances we are satisfied that the Sheriff was entitled to convict.

The matter of sentence was also raised by Mr Shead. He said that the appellant was a self-employed builder and his licence was important to him. He served two months' disqualification before the disqualification was suspended pending the appeal. He only has one conviction some time ago and that was for speeding.

The Sheriff says that he took the view that although disqualification is not obligatory it was necessary in this case in view of the substantial alcohol level. He says that he took account of the fact that the appellant was self-employed and that his licence is important to him and restricted the period to one of six months.

In our view, having regard to the matters mentioned by the Sheriff, we are satisfied that it cannot be said that he erred in the exercise of his discretion in deciding that some disqualification was appropriate and we are satisfied that the period of six months, also, can be said to be appropriate.

In these circumstances we shall answer questions (a) and (b) in the affirmative and question (c), which relates to sentence, in the negative.