R v Cambridge Magistrates Court Ex P. WONG [1992]

FACTS:

On 16 May 1989 the Applicant attended a dinner at Cambridge at which he drank some wine. He had a wine glass which was topped up from time to time so that he was unable to specify his intake. Between 9.30 pm and 11.30 pm that evening he administered to himself about 20 millilitres of Benylin, a form of cough linctus, on two occasions, making in all some 40 millilitres of Benylin.

Shortly after half past midnight the Applicant was stopped by the police after being seen driving a car in Cambridge and after blowing his horn, which no doubt was what attracted the attention of the police. At 01.14 am he gave a sample of breath at Cambridge police station on a Lion Intoximeter machine. The reading was 40 microgrammes per 100 millilitres.

The Applicant in this case pleaded guilty to driving with excess alcohol. Evidence showed that the cough linctus he had taken contained alcohol in such quantity that it would account for 1.7 microgrammes in 100 millilitres of his breath. The Applicant’s evidence was that he had been unaware that the linctus contained any alcohol. He submitted that as it was the practice of the police not to prosecute an offence of driving with excess alcohol unless the figure on analysis was 40 or more microgrammes of alcohol per 100 millilitres, special reasons existed for the justices not to impose any disqualification. The justices found that the facts were not capable of amounting to special reasons and disqualified the applicant for 12 months.

The Defendant made an application for judicial review of the justices’ decision:

HELD:

The application was granted and the Justice’s decision was quashed. 

Taylor LJ explained in his judgment that it was accepted that there was one regime for dealing with blood samples and another for dealing with breath samples. For blood samples the analyst automatically applied an error margin before the result was presented to the court. The error margin for blood-alcohol tests was said to be six microgrammes per 100 millilitres. That error margin was applied because experience had shown that error of that magnitude can occur in particular tests, and unless such an allowance was made the prosecution would not be in a position to invite the court to be sure that the result truly showed the defendant to be over the prescribed limit.

Whereas for breath samples no such automatic adjustment was made by the analyst but it was accepted that the margin of error which was to be applied in regard to breath was of the order of four microgrammes per 100 millilitres. That led to a policy on the part of the police of not prosecuting any person for having excess alcohol on a breath reading where the analysis has shown below 40 microgrammes per 100 millilitres, although of course the legal limit is 35 microgrammes per 100 millilitres. In other words, in order to provide for safety the machine must produce a figure of 40 microgrammes per 100 millilitres or more otherwise there was no prosecution.

Taylor then went on to explain that had the allowance been made in the Applicant’s case he would have not been prosecuted.  Evidence from an analyst showed that the amount of Benylin that he had taken would have accounted for 1.7 microgrammes per 100 millilitres of the total reading of 40 microgrammes. Had he not taken the Benylin, bearing in mind the approach towards rounding figures, the applicant’s reading would have been 38 or 39 microgrammes per 100 millilitres, which would of course have been below the figure at which the police prosecute. There was no indication on the Benylin container or wrapping that it contained alcohol.

Taylor found that there was no bad driving, the only matter was that the Applicant had blown his horn late at night.  Taylor further held that the justices had found against the applicant as a matter of law and therefore it is clear that they fell into error.  They took the view that the facts upon which the applicant relied were not capable of amounting to special reasons in law. 

Taylor accordingly found that the decision of the justices was wrongly made in law and quahed the decision.  Taylor also considered that mandamus should go to order the justices to continue the hearing in light of the ruling of the court on the legal point and to decide in the circumstances whether in this case there were special reasons which should persuade them not to disqualify the applicant. 

Rougier J agreed with the judgement of Taylor.

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2. DPP v Jowle [1999]
3. Pugsly v Hunter [1973]