Appellant: A Brown; Nelsons, Falkirk

Respondents: Young AD; The Crown Agent

13 March 2009

[1] On 15 July the appellant was convicted at Falkirk Sheriff Court of a drink driving offence, contrary to Section 5 of the Road Traffic Act 1988, her blood alcohol level being 83 micrograms. The Sheriff found in fact that:

"1. On the evening of 2 February 2008 the appellant attended a social function at the Labour Club, some distance from the house of CB in Falkirk. 2. Whilst there, the appellant drank two alcoholic drinks. She had arrived at the Labour Club by car, having parked [the car] with the intention of staying overnight at the home of CB.

3. Late in the evening she was in a motor vehicle outside [the] club with four males who made sexual advances towards her. She was sick. Said sexual activity was not consensual.

4. She was taken from said vehicle by one of said males and placed within her own [car]. Said male indecently assaulted the appellant. She was sick. She was partially dressed and in a state of distress. She had a mobile telephone with her.

5. The male left the appellant's car and returned to the social function. There was no immediate threat to life or threat of serious injury. The appellant had her mobile phone with her. There was a reasonable alternative to driving. She could have telephoned the police or someone else for assistance.

6. The appellant drove her [car] to Bellsdyke Road, Stenhousemuir where it was stopped by the police. Following a positive road side test, the intoximeter procedure disclosed a reading of 83 micrograms of alcohol in 100 millilitres of breath."

[2] There is no dispute on the facts of the case. The Sheriff found the complainer entirely credible and reliable in her account of being indecently assaulted in the car park of the Labour Club. It was submitted before the Sheriff on her behalf that she was effectively escaping from being assaulted, hence the defence of necessity had been made out. She had driven off in a state of undress. Ultimately she did not make a complaint of assault at the time and, as the Sheriff records, her assailants had left the immediate vicinity of the attack. She had a mobile telephone and the Sheriff considered that she could have called the police. She drove some distance from the scene of the attack. Having regard to all the circumstances, the Sheriff did not consider that the defence of necessity had been made out. He took note of the importance of protecting the public from those driving under the influence of alcohol. Nevertheless the Sheriff, correctly in the view of this Court, took a sympathetic view of the case and did not disqualify the appellant from driving.

[3] Before this Court there were essentially two submissions. The first was that the Sheriff had erred in holding that there was no immediate risk to the life or health of the appellant. It was submitted that, looked at objectively, there was a risk of further attack having regard to the repeated indecency which had occurred in the car park. Secondly, it was argued that the Sheriff had erred in relation to the issue of reasonable alternative; again looking at matters objectively. In particular, this submission amounted to a criticism of the Sheriff; that he had perhaps weighed the matter of alternatives in too fine a scale.

[4] For the defence of necessity to be made out in relation to an offence of this type, there is no dispute that the driver has to have acted under immediate danger of death or serious bodily harm to himself or another. Of course immediate danger of sexual assault of the type described here would qualify, if the circumstances merited it. It is also the case, and is not disputed, that any reasonable alternative to the offending behaviour must be taken. No doubt these matters cannot, and should not, be weighed on too fine a scale. However, there is no indication, in this case, that the Sheriff erred in his assessment. His finding in fact was that there was no immediate threat to life or of serious injury. There was also, as the Sheriff found in fact, a reasonable alternative to driving; for example, by telephoning the police or indeed other people. In these circumstances, standing the findings in fact, this Court does not have any alternative but to answer the first question in the affirmative, the second question in the negative and to refuse the appeal.

KW