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APPEAL COURT, HIGH COURT OF JUSTICIARY
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Lord Abernethy
C.G.B. Nicholson, CBE, QC
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[2006] HCJAC 37
Appeal No: XJ 1777/05
OPINION OF THE COURT
delivered by C.G.B.
NICHOLSON, CBE, QC
in
APPEAL AGAINST SENTENCE
by
JOSEPH TEDFORD
Appellant;
against
PROCURATOR FISCAL, GLASGOW
Respondent:
_______
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Appellant: Shead; Gallen & Co,
Glasgow
Respondent: Henderson A.D.;
Crown Agent
11 April 2006
Background to the appeal
[1] On
21 October 2005 the
appellant pled guilty at Glasgow
Sheriff Court to a contravention of section
5(1)(a) of the Road Traffic Act 1988, the offence in question having occurred a
year earlier, on 24 October
2004. In terms of the
charge the offence consisted of having driven a motor car when the proportion
of alcohol in the appellant's blood was 82 milligrammes of alcohol in 100
millilitres of blood, the prescribed limit being 80 milligrammes of alcohol in
100 millilitres of blood. This was,
accordingly, a case in which the excess over the prescribed limit was very
small indeed.
[2] Having
tendered the plea of guilty the solicitor for the appellant indicated that the
appellant sought to establish that there were special reasons why
disqualification should not be imposed in terms of section 34(1) of the Road
Traffic Offenders Act 1988, and a proof on that matter took place on 16 November 2005. At the conclusion of the proof the sheriff
held that special reasons had not been established, and he thereupon proceeded
to pass sentence by admonishing the appellant and by disqualifying him from driving for a period of
12 months. It is against that order for
disqualification that the present appeal has been taken.
The proof on special reasons
[3] Evidence
at the proof on special reasons was given by the appellant and by a witness
named Scott Bay. In addition, the evidence of two police
witnesses was tendered in the form of a joint minute of agreement. The sheriff has not made specific findings in
fact regarding the evidence which was put before him. However, he has told us that the facts were
not in dispute; and, in the absence of any adverse comments as to credibility,
it may, we think, be taken that the relevant facts were those spoken to in
evidence by the appellant and by his supporting witness, Scott Bay. Stating the relevant facts shortly, they
appear to be as follows.
[4] On
Saturday 23 October 2004 the
appellant, who has no previous convictions, had been working in a bar in Glasgow from 5pm until midnight. At around midnight he was given a lift home by his
employer who lived next door to him. He
had not been drinking while at work. However,
on returning home, he went to a friend's house some five doors away where he
met up with four friends (one being the occupier of the house), and where he
remained until about 3am on the morning of Sunday 24 October. During that time he had some beer to drink. At about 3am the
appellant left the house with the intention of going home. He left the house with three of his friends
and, as they came out of the building, the appellant heard some screaming and
went to investigate. He and the three
friends went round the corner and found a friend named Alan, surname unknown,
lying on the ground. Alan was in pain,
and was stating that he thought that he had broken his leg. Neither the appellant nor any of his three
friends had a mobile phone, and the appellant did not have a telephone in his
house either. Likewise, it appears, the
friend who had recently been visited did not have a telephone either. The nearest public telephone was a 10 minute
walk from the locus where Alan was lying on the ground.
[5] The
immediate reaction of the appellant was that he had to get Alan to hospital,
and the three friends encouraged the appellant to do that. At that stage the appellant felt "all right"
to take Alan to hospital, and in the result he, accompanied by Scott Bay, drove
Alan to the Southern General Hospital. The
journey to the Accident and Emergency bay at that hospital took about five
minutes, and apparently passed without incident. The appellant and Scott Bay assisted
Alan into the hospital and, as the appellant was told by Alan on the following
day, it had transpired that he had indeed broken his leg.
[6] As
it happened, there were two police officers on duty at the time outside the
Accident and Emergency department of the hospital. On observing the appellant helping Alan into
the hospital, they spoke to him and immediately detected a strong smell of
alcohol from his breath. A roadside
breath test was thereupon required and, when it proved positive, the appellant
was arrested. The normal procedures
followed thereafter, and in due course it was established that the appellant's
level of alcohol was that set out in paragraph [1] above.
The hearing before the sheriff, and
the sheriff's decision
[7] At
the conclusion of the evidence the solicitor for the appellant, it appears,
accepted that he could not characterise the situation in which the appellant
had found himself as amounting to a medical emergency. Nonetheless, he submitted that the situation
was one which demanded some sort of action, and he went on to submit that in
the circumstances the action taken by the appellant could be regarded as
reasonable. In making those submissions
some support was sought from the case of Watson v. Hamilton 1988 SCCR
13. The solicitor for the appellant
indicated that he was seeking to rely on three factors: the medical emergency,
albeit not of the most extreme kind, the shortness of the journey, and the low
level of alcohol.
[8] The
sheriff has told us that he was not persuaded that the facts demonstrated that
there had been a medical emergency which would have justified the appellant
driving his car in the circumstances. The
appellant had taken no steps other than confirming that his friends did not
have mobile phones before deciding to drive to the hospital, and gave no
consideration to alternative options. For
example, the sheriff says, he could have walked to the nearest telephone box
and called an ambulance. He could have
called at the house of his employer for assistance. He, he could have returned to the house of
his friend (where he had just come from) to see if anyone in the building had a
telephone or would have been willing to drive Alan to hospital. The
sheriff did not consider that the distance driven was so short as to amount to
special reasons, and in the whole circumstances he could see no proper basis
for holding that special reasons had been established.
The submissions for the appellant
at the appeal hearing
[9] In
presenting this appeal on behalf of the appellant Mr Shead submitted that,
although the facts are somewhat different, general support for the existence of
special reasons in the present case is to be found in the case of Watson v. Hamilton (cited
above). In that case the appellant had
retired to bed after a party when he was awakened by a guest in the house who
was pregnant, and who had started to bleed heavily and feared a miscarriage. He made several unsuccessful attempts to find
a telephone and contact help, and about 2am he set off
to drive the lady to hospital. He was
stopped by the police en route, and was subsequently found to have a reading of
61 microgrammes of alcohol as compared with the permitted limit of 35. At the time when he set off on the journey he
knew that he had consumed too much alcohol for driving. The sheriff ordered disqualification and held
that special reasons for not doing so had not been established. In taking that view, the sheriff founded on
the fact that the appellant had not sought to rouse his neighbours in order to
seek help.
[10] In allowing the appeal, and holding that special reasons had
been established, this Court accepted that there had been a medical emergency. However, it was not considered to be
reasonable, as the sheriff had suggested, for the appellant to have tried to
rouse his neighbours. As was said by the
Lord Justice Clerk (at p. 15),
" ... even if
it be the case that there were houses within the block where there were
telephones, we are not satisfied that at some time after 1am in the morning it
would have been a fairly simple matter for neighbours to have been roused and a
request made to them to use their telephone in order to summon an ambulance. Indeed if attempts had been made to rouse
neighbours at that hour those making the attempts might well have received
short shrift."
The Lord Justice Clerk went on to
say (at p. 16):
"The
sheriff goes on to say that it cannot be said that the appellant had explored
all the reasonable avenues open to him to obtain medical assistance for Miss
Anderson. In our view the sheriff is
placing too high a burden upon the appellant in so concluding."
[11] For the present appellant, Mr Shead acknowledged that the
medical situation which confronted the appellant and his friends was not so
obviously serious as the one that had confronted the appellant in Watson. Nonetheless, it was a situation where the
man, Alan, was obviously in need of fairly urgent medical attention. For the reasons given by the Lord Justice
Clerk in Watson, it would not have been reasonable to expect the
appellant to try to rouse his neighbours at 3.30 in the morning in the hope of
finding one who had a telephone and who was willing to call the emergency
services or to drive Alan to hospital; and in that situation the appellant had
done what was reasonable by ascertaining that neither he nor any of his friends
had a mobile phone. In addition, Mr
Shead also founded on the fact that the journey undertaken by the appellant had
been a short one, and on the fact that at the material time he had only been
over the permitted alcohol limit by a very small amount.
Discussion and decision
[12] Clearly, the facts in the present case are, in certain
respects, different from those in the case of Watson. That is particularly so in relation to the
fact that the condition of the lady in that case was obviously more serious
than that of the man, Alan, in the present case; and it may be that, in Watson,
the lady's condition could properly be described as constituting a medical
"emergency" whereas Alan's problem was of a lesser kind. Nonetheless, his injury was not a minor one;
and indeed it subsequently emerged that he had in fact broken his leg. His condition was therefore one which at
least called for fairly prompt medical attention.
[13] It is not, in our opinion, the case that special reasons can be
found to exist only in circumstances where the facts in one case are, as nearly
as may be, identical to those in earlier cases where it has been held that such
reasons do exist. Every case will turn
to some extent on its own facts and circumstances, and decided cases can only
serve as a guide as to what may or may not properly be taken into account. Moreover, we consider that some account must
always be taken of the fact that, when faced with an anxious and unexpected
situation, people may sometimes react, with the best intentions at the time, in
a manner which, viewed in retrospect, and in the cold light of day, might be
considered to have been unwise. We have
come to the conclusion that in the present case there are several matters which
can, and should, properly be taken into account.
[14] First, there is the fact that, in the middle of the night, the
appellant and his friends came upon another friend who was obviously in pain
and who was suggesting that, as indeed turned out to be the case, his leg was
broken. While that could not be regarded
as a critical medical emergency, it was nonetheless a situation where medical
assistance required to be obtained as quickly as possible. Second, the appellant, knowing that he
himself did not have a telephone, took steps to ascertain whether or not any of
his friends had a mobile phone; and the result of that inquiry was in the
negative. It appears that there was a
public telephone some ten minutes walk away, but it seems to us to be perfectly
possible that, had the appellant made that ten minute walk, he might well have
found, as was the case in Watson, that the telephone had been vandalised
or was, for some other reason, not working.
In that event, he would simply have added a further twenty minutes
before any other steps could be taken to assist his friend. Third, for the reasons given by the Lord
Justice Clerk in Watson, it would not, in our view, have been reasonable
for the appellant to have attempted, at 3.30 in the morning, to rouse his
neighbours, or indeed his employer, in the hope of finding someone who had a
telephone and who was willing to use it in order to summon the emergency
services. In our opinion the foregoing
circumstances go a considerable way to bringing the present case within the
ambit of special reasons; and, apart from the seriousness of the medical
situation, they are quite similar to the considerations which found favour with
the Court in the case of Watson.
[15] There are, however, two further matters which were founded on
by Mr Shead. They are the shortness of
the journey and the fact that the appellant was found to be just over the
drink/driving limit. We are not
persuaded that the shortness of the journey of itself is of much significance. Shortness of a journey may be of some
significance in cases where all that has happened is that a person has moved a vehicle
for a distance of a few yards in order, for example, to stop it obstructing
another vehicle. We doubt whether a
journey, albeit of only some five minutes, can be so regarded.
[16] In our view, however, the fact that the appellant was just over
the limit is of rather more significance.
On its own, of course, a small excess over the limit cannot amount to
special reasons, and there is case law to that effect. However, in the present case the appellant
stated in evidence that he considered that it was "all right" for him to drive
when he did; and it appears to us that, given the small amount of excess that
was ultimately found, it was not unreasonable for him to reach that conclusion
as to his ability to drive. That, of
course, is in contrast to the situation in Watson where the appellant
was much more over the limit at the time, and who conceded that he knew that to
be the case at the time when he drove. In our opinion, a reasonably held belief by
the present appellant that he was not over the limit at the time, with that
belief being very nearly confirmed by the ultimate reading taken by the police,
is a factor of some significance, to be weighed with all the other factors
which we have mentioned, when considering whether or not special reasons have
been established in this case.
[17] Taking into account all of the factors which we have mentioned,
we have come to the conclusion that in this case the sheriff applied too
stringent a test, and that he should have found that special reasons have indeed
been established here. That being so, we
shall allow this appeal, and we shall quash the period of disqualification which
was imposed by the sheriff.
