APPEAL COURT, HIGH COURT OF JUSTICIARY
Appeal No: 2548/98
OPINION OF THE COURT
delivered by LORD SUTHERLAND
NEIL GRANT DAWSON
PROCURATOR FISCAL, Elgin
Appellant: Scott; Drummond Miller
Respondent: P. Grey, A.D.; Crown Agent
2 July 1999
The appellant was convicted of contraventions of sections 3 and 5(1)(a) of the Road Traffic Act 1988. The circumstances were that the appellant is a retained fireman with the Grampian Fire Brigade. On the day in question the appellant was not on call. He had been drinking that evening in the company of another fire fighter who was on call. During the course of the evening the appellant's friend was paged to go to the scene of a serious road traffic accident on the A940. The appellant decided to go along also. Two fire appliances left from Forres Fire Station to go to the scene of the accident. The appellant drove one of these pumps which carried a crew of four, including himself. He was the only one of the crew of that pump licensed to drive fire engines. The crew of the other pump included three men licensed to drive fire engines. On arrival at the locus the appellant parked the pump and went to assist other fire fighters in cutting a casualty out of a car. Once the casualty had been removed from the car he was taken into an ambulance and needed to be taken to hospital as a matter of extreme urgency. The path of the ambulance was obstructed by the pump, which had been driven by the appellant and the paramedics asked that the fire engine be moved as quickly as possible. The appellant then began to drive the pump out of the way of the ambulance which necessitated reversing the vehicle. While he was doing so he collided with a police patrol car which had been parked further down the road. The appellant was subsequently required to provide a specimen of breath and, after the usual procedure, he was found to have 163 milligrams of alcohol per 100 millilitres of blood, over twice the limit.
The defence to these charges was one of necessity. It should be noted that the charges in the complaint libelled only the locus of the accident and did not cover the appellant's driving from the fire station to the locus. It appears that, in any event, the Crown did not lead evidence sufficient to establish that the appellant had been driving from the fire station, that evidence coming primarily from the appellant himself. In any event the procurator fiscal did not attempt to argue that a conviction on the section 5(1)(a) charge could be obtained by reason of the driving of the pump by the appellant to the locus, nor did the advocate depute, before us, maintain any such proposition. The evidence relating to the defence of necessity was to the effect that the crew of the other pump, which included the duly licensed drivers, were at the material time, when the appellant drove his pump out of the way of the ambulance, at a distance of between 30 and 50 metres from the appellant's pump. It did not occur to the appellant to get one of the licensed drivers from the other crew to drive the pump out of the way of the ambulance. The appellant's evidence was that he had been helping to get a passenger from the back of the car into an ambulance. When he was on his way back to the car in order to help in getting a fatality out of the car he heard a paramedic shout "Get this machine out of the road". The appellant then took it upon himself to move the pump, and he said that the situation was urgent and that he could not see any other qualified drivers at the time. In cross-examination he agreed that there were three licensed drivers on the other pump, but that it was 40 or 50 metres away and it would have taken a few minutes to find one of them and explain that his pump had to be moved. He said that it would not have been impossible to find another driver, but he did not think it worthwhile and could not see one. Evidence was also led before the sheriff from an ambulance technician and a paramedic who confirmed that they had asked for the pump to be moved out of the way of the ambulance. The paramedic stated that he asked for the fire engine to be moved as quickly as possible, because a minute or two delay in getting the casualty to hospital could have been critical.
The sheriff in his report tells us that the procurator fiscal conceded that the situation was one where there was immediate danger of death or great bodily harm, that being the minimum requirement for the defence of necessity according to the authorities. The sheriff says, however, that he regarded the argument relating to necessity as being artificial. The appellant had driven to the locus and he was there as the driver of that pump. There was every reason to believe that if that pump had to be driven for any reason he would be the one who would do it. There was nothing in his own evidence to suggest that he had any second thoughts about moving the pump out of the way. Furthermore, he said that it never crossed his mind to get one of the other qualified drivers. The sheriff's reason for dismissing the defence of necessity therefore was, as he puts it, "Obviously, the defence of necessity cannot be available, even in the face of great danger, to an accused who would have driven anyway".
On behalf of the appellant Miss Scott argued, under reference to Moss v. Howdle 1997 SCCR 215, that the primary condition for a defence of necessity was met as was indeed conceded by the procurator fiscal. She submitted that in the present case there was no real alternative open to the appellant. The other qualified drivers were 30 to 50 metres away and the appellant did not see them at the time. The urgency of the situation was made quite clear by the paramedic. The only reason why the appellant drove at this particular time was because the paramedic had asked him to do so as a matter of urgency. It was irrelevant that he might have driven anyway, because, in fact, on this occasion the reason was urgency. When he chose to drive he was under the necessity of so doing. The sheriff was in error in taking the view that there was no causal connection between the emergency situation and the appellant's driving.
The advocate depute argued that the question to be asked was whether it was the danger of death or serious bodily harm which dominated the appellant's mind to the extent that he would be prepared to drive the vehicle even though he had excess alcohol in his blood. In other words, was he faced with a dilemma? The question is not simply whether the appellant drove because he was asked to do so as a matter of urgency, but whether he chose to drive in that situation, knowing that he should not do so but deciding that the urgency of the situation overrode the normal requirements of the drink driving law. On the facts, it was clear from the appellant's own evidence that he had driven to the locus and the clear inference is that he would have driven irrespective of the circumstances. When he was driving at the locus he never considered the possibility that he was unfit to drive and it did not occur to him to look for another driver. In that situation he was not faced with any dilemma and he was not forced to make a conscious choice between driving illegally and the risk of danger to the health of the casualty. The position might have been different if the appellant had not driven the pump to the locus, because he knew he had been drinking, but at the locus was asked as a matter of urgency to move the pump and, having looked around, could see no other qualified driver immediately available. In that situation he would have to make the choice and it may be that if, on the facts, it could be shown that the urgency was such that there was no alternative but for the appellant to drive, the defence of necessity might be open to him. That, however, was not the position in the present case.
In our opinion the argument presented by the Crown is correct. The basis of the defence of necessity is canvassed in some detail in Moss v. Howdle. The Lord Justice General accepted the argument advanced by the Crown in that case, which was to the effect that for the defence of necessity to operate, the coercion or duress must have dominated the mind of the accused at the time of the act and that it was by reason of that domination that the act was committed. The court also accepted, and founded upon, two dicta from Perka v. The Queen  2 S.C.R. 232, a decision of the Supreme Court of Canada. What was there said was that where the defence applies an accused
"has control over his actions to the extent of being physically capable of abstaining from the act. Realistically, however, this act is not a 'voluntary' one. His 'choice' to break the law is no true choice at all; it is remorselessly compelled by normal human instincts".
The second dictum was
"Given that the accused had to act, could he nevertheless realistically have acted to avoid the peril or prevent the harm, without breaking the law? Was there a legal way out? I think this is what Bracton means when he lists 'necessity' as a defence, provided the wrongful act was not 'avoidable'. The question to be asked is whether the agent had any real choice; could he have done otherwise? If there is a reasonable legal alternative to disobeying the law, then the decision to disobey becomes a voluntary one, impelled by some consideration beyond the dictates of 'necessity' and human instincts".
It is in our view clear from these dicta and the way they were applied in Moss that the defence of necessity only arises when there is a conscious dilemma faced by a person who has to decide between saving life or avoiding serious bodily harm on the one hand and breaking the law on the other hand. If, in the circumstances of the case, he elects to break the law rather than risk life, the defence of necessity may well be open to him. Applying that principle to the present case it can be seen that there was no question of the appellant making any choice at all. It never occurred to him that he should not be driving, and the reason why he drove at the locus was simply because he was the driver of that pump. The question is not why did he drive, but is why did he drive with excess alcohol and carelessly? No doubt he drove because he was asked to do so, and he did so in a situation where there was some urgency. That, however, does not answer the question as to why he drove with excess alcohol in his blood. The reason he did that was because it never crossed his mind that he was unfit to drive, and he would have driven anyway. In these circumstances it cannot be said that his mind was dominated at the time of the act by the extreme urgency of the situation which overrode the normal requirements that a driver should not drive with excess alcohol in his blood. We are therefore satisfied that in the circumstances of this case the defence of necessity was not available to the appellant. In these circumstances we shall answers questions 1, 2 and 3 in the affirmative and refuse the appeal against conviction.
The sentences imposed by the sheriff were an admonition on the careless driving charge and a fine of £500 with disqualification for 12 months on the section 5(1)(a) charge. A submission had been made to the sheriff that there were special reasons for not disqualifying the appellant and not endorsing his licence. The sheriff rejected this submission for the same reason that he had rejected the defence of necessity. Miss Scott argued before us that the sheriff went too far in taking that simplistic view. It was important to notice that the only charge on the complaint related to the driving at the locus and not any antecedent driving. As far as the driving at the locus was concerned, that was done because there was a perceived urgency. Even if that could not amount to a defence of necessity, thus avoiding conviction, nevertheless it was a relevant factor in considering whether or not there were special reasons.
We would accept that it does not automatically follow that because a defence of necessity is rejected, there can be no grounds for saying that special reasons exist for not endorsing or disqualifying. A court might decide, for example, that an accused person acted not unreasonably in breaking the law in the light of the circumstances which he had in mind at the time but that, nevertheless, there was another alternative open to him which he should have had in mind. In that situation the defence of necessity would not be made out, but it might be arguable that there were special reasons for not disqualifying. In the present case, however, as we have pointed out, no question of any choice arose. The appellant was quite simply driving with excess alcohol in his blood and he would have driven the vehicle anyway, regardless of whether or not there was an emergency. In that situation we are satisfied that no special reason has been made out for not endorsing or disqualifying. We shall accordingly answer question 4 in the affirmative and refuse the appeal against sentence.