FACTS:-

The Defendant pleaded guilty to driving in contravention of section 1(1) of the Road Safety Act 1967 with a proportion of not less than 161 milligrammes of alcohol in 100 milliliters of his blood.  It was submitted that there were special reasons within s.5(1) of the Road Traffic Act 1962 for not ordering him to be disqualified.

s.5(1) of the Road Traffic Act 1962 provides:

‘Where a person is convicted of an offence specified in Part I of Schedule 1 to this Act the court shall order him to be disqualified … unless the court for special reasons thinks fit … not to order him to be disqualified’.

Section 1(1) of the Road Safety Act 1967 provides:

‘If a person drives … a motor vehicle on a road … having consumed alcohol in such a quantity that the proportion thereof in his blood … exceeds the prescribed limit … he shall be liable …’ [ to penalty ].

Section 5(2) provides:

‘For the purposes of … disqualification … ( a ) an offence under section 1(1) of this Act … shall be treated … as if it were an offence specified in Part I of Schedule 1 to the …’

s.7(1) provides:

‘… “the prescribed limit” means 80 milligrammes of alcohol in 100 millilitres of blood …’

The Defendant called evidence that he had consumed only two light ales and a shandy in a public house and that while he was in the lavatory two double vodkas were added to his drink without his knowledge. The Magistrate, while accepting the evidence, was not satisfied that the vodka was responsible for all the excess alcohol, and declined to draw scientific conclusions without scientific evidence; he decided that a substantial tampering with the defendant’s drink could of itself constitute special reasons for the exercise of his discretion, and accordingly did not order the defendant to be disqualified.

The prosecutor appealed.

HELD:-

The appeal was allowed.  The onus was on the defendant to prove the facts on which he relied as constituting special reasons for not ordering him to be disqualified  and that, where laced drinks were involved and the conviction was of driving in contravention of section 1(1) of the Road Safety Act 1967 , the Defendant had to establish on the balance of probabilities that the quantity of alcohol in his blood in excess of the prescribed limit was attributable solely to the additional alcohol inserted in his drink without his knowledge.

Lord Widgery CJ held that it may well be desirable to adopt a practice whereby, in cases where the defence intended to call evidence to prove facts or medical opinion in support of a plea of special reasons, notice of the nature of the evidence to be called is given to the prosecution at a sufficient interval before the hearing to enable the prosecution to be prepared to deal with it.

Cusack J agreed with the judgement of Lord Widgery and with the order that was proposed.  Cusack further added:

“It is not in my view to be thought that scientific evidence must be called in every case in which it is desired to establish that there are special reasons on the ground that drink had been laced.  In some cases it will be clear that alcohol will be added to what I may call an innocent drink, and that the quantity must have been, on a balance of probabilities, such as to carry the alcoholic content of the Defendant’s bloodstream above the permitted level.  In others the excess may be such that the defendant  will fail to establish special reasons unless he calls scientific evidence.  It is for the Defendant and his advisers to decide what evidence he calls, but there may certainly be cases in which he may fail in his contention that special reasons should apply to him unless scientific evidence is brought forward to support his own evidence.”

Croom-Johnson J agreed with both judgments that were delivered.  The appeal was therefore allowed and the case was remitted to the magistrate with a direction to reconsider his conclusion in the light of the court’s opinion. 

Related posts:

1. R v Cambridge Magistrates Court Ex P. WONG [1992]
2. Brewer v Director Of Public Prosecutions [2005]
3. DPP v Jowle [1999]