Scottish High Court of Justiciary Decisons

DAVID POLE v. PROCURATOR FISCAL, DUNDEE [1999] ScotHC 24 (27th January, 1999)

The appellant, David Pole, was convicted at Dundee Sheriff Court on 31 July 1997 of an offence under section 4(1) of the Road Traffic Act and brings this Stated Case posing a substantial number of questions. Effectively these come down to the question of whether the sheriff had evidence on which he was entitled to convict. The case is not the usual one of unfitness through alcohol, but unfitness through drugs. The position was that the appellant was seen by police, and the police having seen him, gave evidence that they suspected that he was under the influence of drink. His speech was thick, slow and slurred. His eyes were slightly grazed and reddish. His pupils had dilated. He was unsteady on his feet. His clothes were dishevelled with his T-shirt hanging out of his trousers. He was then taken to Police Headquarters.

At this later stage he was examined by a Dr Bain. Dr Bain took a history to which we will return, but he also examined the appellant. He found that his speech was slurred, his pupils were moderately dilated. There was no smell of alcohol. Various other specific physical matters were spoken to - in particular a finding of pupils reacting sluggishly to light, nystagmus being present, inability to converge, walking being broad based and his gait being ataxic. When asked to stand on one leg he fell away. When standing on both feet with his eyes shut he had a slight sway, although he could touch the point of his nose with his index finger with his eyes closed. Dr Bain had relevant experience, and concluded that the appellant was unfit.

Leaving aside for the moment the question of what may have caused the unfitness we are entirely satisfied that the evidence of Dr Bain, taken with the evidence of the police provides an ample basis for the sheriff concluding that the appellant was indeed unfit to drive.

There remains of course the question of why he was unfit to drive. It was found that the signs and symptoms of nystagmus and ataxia were not related to an underlying psychosis or mental condition from which the appellant suffered. Equally, there was not only no smell of alcohol - it is accepted that alcohol did not provide an explanation in this case for the unfitness. Drugs would then be an apparent possible explanation in the absence of any other explanation such as drink or an underlying medical condition. When taking a history from the appellant Dr Bain had elicited information about his underlying schizophrenia and about his medication. He was on three drugs, two of these being taken several times a day, the other being taken by means of a depot injection, repeated every two weeks. A drug screen was produced which only revealed one of these drugs, the first of those which were taken a number of times per day. That drug was evidently taken in therapeutic doses and would not in itself be responsible for the appellant's impairment. The drug screen did not show the presence of the other two drugs, although there was the evidence of Dr Bain that the appellant acknowledged that he took these drugs. In these circumstances, with other explanations excluded (and no evidence which the sheriff was bound to accept as to whether the other drugs would have been revealed by the screen), we are satisfied that the whole combination of that evidence with the unfitness provides a quite sufficient basis for a finding such as that made by the sheriff that at the time that the car was driven the ability to drive was impaired, and that the appellant was unfit to drive through the ingestion of several drugs taken over a considerable period prior to the date in question. In these circumstances, since it is agreed that the specific questions are not in a form which resolves matters satisfactorily, it is better that we simply hold that there was sufficient evidence and that the appeal must be refused.