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APPEAL COURT, HIGH COURT OF JUSTICIARY
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Lord Wheatley
Lord Reed
Lord Carloway
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[2008] HCJAC 65
Appeal No: XJ1034/07
Appeal No: XJ646/08
OPINION OF LORD WHEATLEY
In Appeal
By
STATED CASE
in the causes
MAX LUDRIECUS
Appellant:
against
PROCURATOR FISCAL,
EDINBURGH
Respondent:
and
GORDON ORROCK
Appellant:
against
PROCURATOR FISCAL, PERTH
Respondent:
_______
|
13 November
2008
Act: Keenan, Solicitor Advocate;
Adams Whyte (for Ludriecus)
Alt: Brown, AD, Crown Agent
Act: McKenzie; Drummond Miller, Solicitors for Ward &
Co, Perth (for Orrock)
Alt: Beardmore, AD, Crown Agent
[1] These two
appeals were heard on consecutive days and were, in broad terms at least, concerned
with the same point. Both appellants
were charged with being in charge of a motor vehicle on a road or other public
place after consuming so much alcohol that the proportion of it in their breath
exceeded the prescribed limit, contrary to the Road Traffic Act 1988, section 5(1)(b). Each appellant attempted to take advantage of
the statutory defence found in section 5(2) of the Act, by proving that
there was no likelihood of him driving when he was still above the prescribed
limit. Both defences failed, and the
appellants have now appealed.
[2] The terms of section 5(1)(b)
and 5(2) are as follows:
(1) If a person
...
(b) is
in charge of a motor vehicle on a road or other public place,
after consuming so much alcohol that
the proportion of it in his breath, blood or urine exceeds the prescribed
limit, he is guilty of an offence.
(2) It is a defence for a person charged
with an offence under subsection (1)(b) above to prove at the time he is
alleged to have committed the offence the circumstances were such that there
was no likelihood of his driving the vehicle whilst the proportion of alcohol
in his breath, blood or urine remained likely to exceed the prescribed limit.
[3] In these
stated cases, the appellants pose essentially the same question, although
expressed in different ways, namely whether the sheriff has applied the correct
test in considering whether the appellant has satisfied the court that the
defence available under section 5(2) had been made out.
[4] The first
appellant was convicted on 12 July 2007.
He was 24 years of age at the time, and resided with his parents at
an address in Joppa, Edinburgh. During
the day of 12 July 2006, he parked the car referred to in
the charge at the locus, namely Bedford Terrace, Edinburgh. Usually the car was parked outside the family
home, but because no spaces were available that day, the car had to be left elsewhere. The locus is about twenty yards from Portobello Beach and about a two minute walk from the
appellant's home. At 10.00 p.m on 11 July
2006 the
appellant and four companions met on Portobello Beach, close to the parked car, and
embarked upon a drinking session. At
about 4am the following morning, on account of the cold, they went
into the car and continued drinking there.
The appellant turned on the engine in order to operate the car heater
and radio, and after some time the engine was turned off and the appellant and
his companions continued drinking. At
about 5.30 a.m., police officers attended and found the appellant and his
four companions still within the car.
They were drinking beer and were obviously intoxicated. The appellant was in the driver's seat, but the
keys were not in the ignition. The engine
was warm. The appellant provided a
positive roadside test and was arrested and taken to Craigmillar Police Office
where the appropriate procedures were completed and it was ascertained that the
proportion of alcohol in his breath was 132mgs in 100mls of breath. When cautioned and charged, the appellant
replied "I did not drive anywhere or attempt to drive anywhere. I was just sitting in it." The proportion of alcohol in the appellant's
breath remained likely to exceed the prescribed limit until 10.00 p.m. on 12 July
2006.
[5] The sheriff
made the following findings in fact in the Stated Case. The appellant and his companions all lived
within a short walking distance of the car within which they had been
drinking. The appellant was unemployed
in July 2006. Accordingly, from the
time the police arrived at the locus until 10.00 p.m. on 12 July
2006, there would
have been no necessity, or need, for the appellant to drive the car in order to
travel home, to convey any of his companions to their homes, or to attend at a
place of work. The appellant expected
that he would have returned to his house by about 0630 hours on 12
July 2006. At the time the police arrived on the scene,
the appellant had no plans to drive anywhere.
However, the sheriff rejected the appellant's defence. He concluded that the test was not whether
the appellant was likely or unlikely to drive during the material period, but
whether he had established that there was no likelihood of his driving
between 5.30 a.m., when he was arrested, and 10.00 p.m. on the same day. The word "no" is underlined in the sheriff's note. There was defence evidence which the sheriff
appears to have accepted and which was favourable to the appellant on the
question of likelihood of driving.
However, the sheriff notes that no evidence was led regarding when, and
by whom, the car would be eventually returned to "its usual parking place"
outside the family home once that space became free. He further observes that the possibility of
the appellant returning the car to its normal parking place before 10.00 p.m. on 12 July
2006 was not
excluded in evidence. With hindsight, he
notes, the appellant in response to questions from his solicitor, was able to
carry out a calm and objective assessment of whether he would have driven his
car. But the sheriff goes on to say:
"However, at the critical point in
time when the appellant's assessment of those various reasons, or aspects of
need, for driving falls to be scrutinised, then the appellant was very drunk
indeed, and for that reason that assessment can hardly be regarded as
reliable."
[6] Accordingly
the sheriff came to the view that while there was evidence from which it might
be concluded that the appellant was not likely to drive, he was satisfied in
the circumstances, and in particular from the appellant's highly intoxicated
state at the critical time, that the appellant had not proved that there was no
likelihood of him driving between 5.30 a.m. and 10.00 p.m. on 12 July
2006.
[7] The second
appellant appeared before the sheriff at Perth on 20 March
2008. The sheriff found that on 24 June
2007, the
appellant was in charge of a motor car in Kinnoull Street, Perth when his breath alcohol reading was
78mgs of alcohol in 100mls of breath.
The appellant, who is a serving soldier, had driven from Catterick to
spend a weekend in Scotland and left an overnight bag with his sister who lived
in Scone, intending to meet friends from Perth and to spend the evening
drinking with them. On previous
occasions when the appellant had gone out drinking with his friends, he had
been driven into Perth from Scone, a distance of about three miles, and at the end of the
evening had either walked home or taken a taxi.
On this occasion, he was unable to get a lift into Perth and so took his own car and parked
it in Kinnoull Street, which is in the centre of the town. At that time the weather was fine. The appellant had left his jacket in the car,
and the sheriff found that when he parked the vehicle, it was not his intention
to drive it home to his sister's house;
he intended to walk or take a taxi.
The appellant was drinking in various public houses in Perth until about 1.15am the following morning when he decided
to go home. By that time the weather was
atrocious with very heavy rain. The
appellant bought a takeaway meal and returned to his car to take shelter while
he ate the meal and also to retrieve his jacket. He put the keys in the ignition and switched
on the radio. He then fell asleep and
was found there shortly afterwards by police officers. It was agreed that the proportion of alcohol
in the appellant's breath would not have been below the prescribed limit
until 8.33am that morning. It had
been the appellant's intention to attend that day at Strathallan Airfield to
practice parachute jumping. He would
have travelled there by car in order to board the last flight, and intended to
collect his car at about 3.15pm.
The sheriff concludes (in finding in fact 15) that:
"It was more likely than not that the
appellant would have driven his car when his breath/alcohol reading
exceeded 35mgs per 100mls of breath."
[8] The sheriff therefore
accepted that when the appellant parked his car he had no intention of driving
again that night. He also appears to
have accepted evidence from the appellant's sister that normally he did not
take his car when he was going out drinking, but that his usual lift was not
available on this occasion, and that he always made alternative arrangements to
get home after his night out. However,
the sheriff concluded that the appellant had done two things in the course of
this particular evening which had not been part of his original
intentions. First, he had taken the car
and parked it in a public street in Perth, something which he normally did not
do. Second it had not been his intention
to go back to the car and sit inside in order to eat a carry-out meal and to
take shelter from very bad weather conditions, nor to fall asleep. Taking into account the fact that the
appellant had been drinking heavily, and that he had fallen asleep in the car
with the key in the ignition, and was likely to wake up and find himself still
in very bad weather with the prospect of either walking home in the rain or
finding a taxi, the sheriff found that he could not, on the balance of
probabilities, say that there was no likelihood that the appellant would drive
while still over the limit. Although the
sheriff accepted that the appellant's original intention had been not to drive,
he found that in the circumstances that there was a likelihood that he would
have driven before the level of alcohol in his system fell below the permitted
level.
[9] The offence
of being in charge of a motor vehicle after having consumed so much alcohol
that the proportion of it in the blood, breath or urine of the person charged exceeds
the prescribed limit contains several elements.
The appellant must be in charge of the vehicle at the relevant
time. Although the reported cases give
little general guidance on this, it is reasonable to assume that mere presence
in a vehicle while under the influence of drink may not normally by itself be
enough to establish that a person is in charge of that vehicle. Commonly, persons charged under this
sub-section are found with the keys of the vehicle in their possession, or in
the ignition, and that in itself might be enough to establish that the accused
is in charge of the vehicle. The
prosecution also have to prove that the driver is in a motor vehicle, and on a
road or other public place. The
proportion of alcohol in the driver's breath, blood or urine at the time of
arrest is normally settled by forensic analysis and is rarely a matter of
challenge. Equally, the time when the
accused would have been below the prescribed limit (although this figure may be
the lower of two extremes) is arrived at following forensic calculation. Once these various matters are established, a
conviction can follow. It is perhaps important
to note at this point that the offence under section 5(1)(b) does not
require the Crown to prove that the accused was likely to drive while still
unfit because of excess alcohol in his system.
Rather, the purpose of the legislation is to provide the accused with
the opportunity, in terms of section 5(2), to exonerate himself from the
charge if he can show that there was no likelihood that he would drive whilst
he was so unfit. Thus section 5(2)
of the Act imposes a legal, rather than a persuasive burden on an accused; in order to escape conviction he has to
prove, on the balance of probabilities, that there was no likelihood that he
would drive before the amount of alcohol in his system fell below the legal
limit (see Sheldrake v Director of Public Prosecutions [2005]
1 A.C. 264).
[10] Counsel for
the appellants in both appeals accepted that the onus of establishing the
statutory defence lay on the accused, and that the appropriate standard of
proof that had to be achieved was that of the balance of probabilities. It was accepted further that what the accused
had to do was to prove that at the time he committed the offence, there was no
likelihood of him driving before the level of alcohol in his system fell below
the prescribed limit. However, in both
appeals it was argued that the phrase "no likelihood" of driving was unclear,
and that there was little guidance available to work out how such a defence
might be approached. The possibility
that the accused might drive could normally never be excluded, but that did not
necessarily mean that the statutory defence could not be established. It was also submitted that it was difficult
to understand what was involved in establishing proof of that defence. In their letter in support of their appeal to
the second sift in the case of the second appellant, the solicitors questioned
whether the meaning of likelihood was more probable than not, whether it meant
there was a material possibility that driving would take place, or whether it
implied that there was no probability but only a remote possibility of
driving. Whatever the test was, both
appellants in essence made the same complaint, namely that the sheriff had only
considered whether there was a possibility that the appellants might drive
rather than that there was no likelihood that each appellant would drive; and that further, in each case, the sheriff
had engaged in speculation about whether the appellant would have driven before
the level of alcohol in his system fell below the legal limit.
[11] In Cream Holding Ltd v Banerjee [2005] 1 A.C. 253, Lord Nicholls of
Birkenhead pointed out (at p 259) that, as with most ordinary English words,
the term "likely" has several different shades of meaning, and there may be
different degrees of likelihood depending on the statutory context and the
circumstances of the case. But in terms
of considering the present statutory application, it is significant that what
the accused has to show, on the balance of probabilities, is that there was no
likelihood that he would drive. As the sheriff
noted in the first appeal, this is a formidable hurdle for the defence in any
case. What section 5(2) does not mean is
that the accused merely has to prove that there was a possibility, or even a likelihood,
that he would not drive. Nor is the test
whether the accused was more likely to drive than not. On the other hand, the accused may not have
to exclude the possibility that he might drive;
that could set too high a test. That
possibility will often be present, and is not necessarily inconsistent with a
successful defence. Against the
background of these general considerations, it is perhaps not helpful to
provide any further description of what is meant by the phrase "no likelihood
of driving." Within the context of the
ordinary meaning of those words, it will be a matter of fact and circumstances
in each individual case as to whether the court can reach that particular
conclusion. It is clear however that the
test which Parliament had in mind in relation to this defence is a high one.
[12] What in
practice the court will have to do therefore, is to come to a view, on all of
the evidence before it, as to whether the appellant has shown, on the balance
of probabilities, that at the time of committing the offence there was no
likelihood that he would have driven whilst he was still over the legal
limit. That exercise will normally involve
reaching a conclusion on proven facts as to what the appellant was likely to
have done. The distinction between
speculation and inference can be a narrow one, but it is unquestionably
legitimate and necessary, in considering this defence, for the court to examine
in a balanced manner all of the facts it finds proved, and to come to a clear
and logical conclusion as to what would have happened. It is particularly desirable in this kind of
exercise that the court should indicate precisely what facts are accepted and what
are not, the reasons why particular facts are accepted or rejected, and the process
by which the appropriate conclusion is drawn from the facts which are found to
be proved. In the absence of such a
comprehensive exercise, there will always be room for the claim that the
conclusions reached by the sheriff, in whole or in part, were a result of
speculation. In our view, in both cases,
the sheriffs have each correctly understood the appropriate test; the question remains as to whether or not
they can be said to have properly applied that test to the circumstances of the
cases before them.
[13] In the first
appeal, the normal parking spaces outside the appellant's own house had been
occupied and he had therefore to park his car a short distance away. As indicated earlier, he began drinking with
four companions at about 10.00 p.m. the previous evening and at 4am the next morning, he and his friends
got into the car in order to keep warm.
He had no intention of driving, or any need to do so. He was very drunk and would not have been
below the legal limit until 10 o'clock that night. However, the sheriff concluded specifically
that at the critical point in time when the appellant's assessment of the
various reasons or aspects of need for driving fell to be scrutinised, the
appellant's drunken condition meant that his assessment of the situation (to
the effect that he would not have driven) could not be regarded as
reliable. Accordingly, the sheriff
concluded that while there was evidence from which it would be possible to
conclude that the appellant was unlikely to drive, he was not satisfied that
there was no likelihood of him driving.
[14] Although the
sheriff was in our view plainly correct in his appreciation of the appropriate
test, we are not convinced that he correctly applied the test to the particular
circumstances of the case. The sheriff
notes all of the evidence favourable to the defence, and apparently does not reject
it. However, he observes that there was
no evidence of when, and by whom, the car would be eventually returned to its
usual parking place. He then concludes
that the possibility of the appellant returning the car to its normal place was
not excluded in the evidence.
Mr Keenan, for the appellant, argued that this was speculation, and
that in any event the possibility considered by the sheriff did not exclude a
concurrent view that the statutory defence could nonetheless be
established. Beyond that, the only
reason which the sheriff suggests for rejecting the appellant's considered
position that he would not have driven during the relevant period was that he
was very drunk. Having regard to the
nature of the offence, we do not consider that drunkenness by itself can, in
normal circumstances, be a sufficient reason for rejecting an accused's claim
that he would not have driven. Such a
condition would have to be linked to some other feature of the evidence, and
that could perhaps be the likelihood that a driver might want to reclaim a
favoured parking place. But that has to
be something more than a speculative possibility, and what is absent from the
sheriff's reasoning in this appeal is any assessment of the various likelihoods
presented by the evidence (see Brown
v Higson 2000
S.L.T. 994). As the prospect of the
vehicle returning to its normal place was only a possibility, and may to some
extent at least have been the product of conjecture, and as the only reason
given for rejecting the appellant's claim that he would not have driven was his
drunkenness at the time, we feel obliged to discount these matters, to give
effect to all of the other evidence accepted by the sheriff, find that the statutory
defence has been established, and quash the conviction.
[15] The second
appellant produced evidence that he had a practice of not taking his car into Perth when he was out drinking and of
returning home by either walking or taking a taxi. However, again the sheriff concluded that
there were circumstances in the case which suggested to him that he was not
likely to have followed that course in the present case. First of all, he had taken his car into town
because his lift had not been available.
Secondly, he had not intended to take refuge in his vehicle, nor to have
fallen asleep there. In these
circumstances, the sheriff came to the view that there was a likelihood that
the appellant would drive, when he woke and found himself some distance from
home in very bad weather. This in effect
cuts across the appellant's attempt to establish the statutory defence that
there was no likelihood that he would drive.
Although the sheriff fails to make a specific finding that there was no
such likelihood, it is clear that he has reached precisely that conclusion.
[16] What the
sheriff did not do was to engage in a detailed and balanced assessment of the
evidence, indicating what he accepted and rejected, and producing an assessment
of whether or not the appellant had satisfactorily established the statutory
defence. But in effect he has achieved
the same result, albeit in a singularly compressed manner, by concluding that
because of the availability of his car and the extremely bad weather, there was
a likelihood he would have driven. That
is a conclusion on the facts he was plainly entitled to reach, and does not
appear to involve speculation on his part.
Further, he has come to the view that the likelihood of driving was
established in the face of the other evidence suggesting that the appellant
would not have driven. Accordingly,
while fuller and more detailed specification of the evidence and the sheriff's
reasoning will in most cases be desirable, we cannot find any reason to
interfere with the sheriff's decision in this case. The second appeal is therefore refused.
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APPEAL COURT, HIGH COURT OF JUSTICIARY
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Lord Wheatley
Lord Reed
Lord Carloway
|
[2008] HCJAC 65
Appeal No: XJ1034/07
Appeal No: XJ646/08
OPINION OF LORD REED
In Appeal
By
STATED CASE
in the causes
MAX LUDRIECUS
Appellant:
against
PROCURATOR FISCAL,
EDINBURGH
Respondent:
and
GORDON ORROCK
Appellant:
against
PROCURATOR FISCAL, PERTH
Respondent:
_______
|
13 November
2008
Act: Keenan, Solicitor
Advocate; Adams Whyte (for Ludriecus)
Alt: Brown, AD, Crown Agent
Act: McKenzie; Drummond Miller, Solicitors for Ward &
Co, Perth (for Orrock)
Alt: Beardmore, AD, Crown Agent
[17] I respectfully
agree with the reasons and conclusions of your Lordship in the chair. I wish, with some hesitation, to add a few
observations of my own, in view of the difficulty which, we were informed,
practitioners had experienced in understanding the meaning of section 5(2)
of the Road Traffic Act 1988.
[18] Like your
Lordships, I am alive to the dangers involved in paraphrasing statutory
language: it is the words which
Parliament has chosen which are authoritative, rather than any gloss placed
upon them by the court. Where, however,
Parliament uses an expression which is capable of bearing different shades of
meaning, and uncertainty exists as to the shade of meaning which was intended,
the court can properly interpret the provision in question. In doing so, it will inevitably resort to
other language to paraphrase the meaning of the provision, as a dictionary
does. Where the provision is one which
appears in a United Kingdom statute, and which has previously been interpreted
by appellate courts in the other jurisdictions of the United Kingdom, this
court will also treat those interpretations with great respect, since it is
undesirable that there should be conflicting decisions on the interpretation of
a provision which is intended to apply in the same way throughout the United
Kingdom.
[19] In the present
context, it is important to understand, in the first place, that the gravamen
of the offence of which the appellants were convicted, under
section 5(1)(b) of the 1988 Act, is being in charge of a motor
vehicle while unfit to drive. The
ingredients of the offence are (1) being in charge of (2) a motor
vehicle (3) on a road or other public place (4) after consuming so
much alcohol that the proportion of it in the person's breath, blood or urine
exceeds the prescribed limit. Having an
intention to drive, or being likely to drive, are not ingredients of the
offence. Being in charge of the vehicle
while over the limit is in itself criminalised.
[20] Parliament's
intention in creating that offence was explained by Lord Bingham of
Cornhill (with whose reasoning the other members of the House agreed) in Sheldrake v Director of Public Prosecutions [2005] 1 AC 264 at
paragraph 40:
"There is an obvious risk that if a
person is in control of a car when unfit he may drive it, with the consequent
risk of causing death, injury or damage already noted. That is why it has been made a criminal
offence to be in charge of a car in that condition. Taylor LJ was right in Director of Public Prosecutions v Watkins [1989] QB 821 at
p.829) that 'the mischief aimed at is to prevent driving when unfit through
drink.'"
[21] Section 5(2)
however provides a defence to an accused person who can prove that, at the time
he is alleged to have been in charge of the vehicle while over the limit,
"the circumstances were such that
there was no likelihood of his driving the vehicle"
while he remained over the limit.
[22] As your
Lordship has observed, words such as "likely" and "likelihood" can have
different shades of meaning, depending on the context. In the present context, the critical
consideration is the intention underlying the offence created by
section 5(1)(b), to which section 5(2) provides a defence. As Lord Bingham stated in Sheldrake (ibid):
"The defendant can exonerate himself
if he can show that the risk which led to the creation of the offence did not
in his case exist."
"No likelihood" cannot, in this context, mean "a probability
of less than 0.5", since the defence could then be established in
circumstances where there remained a substantial risk that the person would
drive the vehicle while unfit: the very
risk which led to the creation of the offence in section 5(1)(b). At the same time, particularly in the context
of a criminal provision, "no likelihood" should not be interpreted as meaning
"a probability of nil", since the offence could then be committed
notwithstanding that the risk of the person driving while unfit was fanciful or
theoretical. That conclusion is supported
by the ordinary use of "no likelihood" in everyday speech, where it usually
carries a meaning similar to "no real risk" (e.g. "I can leave my umbrella at
home today since there is no likelihood of rain"). Like Clarke LJ in Sheldrake in the Divisional Court ([2004] QB 487 at
paragraph 56), I would interpret "no likelihood" in section 5(2) as
meaning no "risk, that is a real risk which ought not to be ignored, of the
accused driving while over the limit".
[23] It is for the
accused person to establish, on a balance of probabilities, that there was at
the material time, no likelihood of his driving while unfit (Sheldrake). Whether he has succeeded in doing so is a
matter for the assessment of the sheriff on the evidence before him. In the case of the first appellant, the
sheriff appears to have rejected the defence under section 5(2) because
the appellant had not excluded the possibility that the vehicle might have been
returned by him to its usual parking space outside the family home, in the
event that that space became free while the appellant remained over the
limit. So far as appears from the
sheriff's findings, however, there is nothing to indicate that that was a real
risk, rather than a remote possibility.
In the case of the second appellant, on the other hand, the sheriff
found that he was asleep behind the wheel, with the key in the ignition, while
it was raining heavily. Although the
appellant did not usually take his car into Perth when he was going to be drinking, he
had departed from that practice on the occasion in question. In those circumstances (which your Lordship
has more fully narrated),the sheriff was entitled to find that the appellant
had failed to establish that there was no real risk of his driving the vehicle
while he remained unfit.
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APPEAL COURT, HIGH COURT OF JUSTICIARY
|
|
Lord Wheatley
Lord Reed
Lord Carloway
|
[2008] HCJAC 65
Appeal No: XJ1034/07
Appeal No: XJ646/08
OPINION OF LORD CARLOWAY
in Appeal by
STATED CASE
in the causes
MAX LUDRIECUS
Appellant:
against
PROCURATOR FISCAL,
EDINBURGH
Respondent:
and
GORDON ORROCK
Appellant:
against
PROCURATOR FISCAL, PERTH
Respondent:
_______
|
13 November
2008
Act: Keenan, Solicitor
Advocate; Adams Whyte (for Ludriecus)
Alt: Brown, AD, Crown Agent
Act: McKenzie; Drummond Miller, Solicitors for Ward &
Co, Perth (for Orrock)
Alt: Beardmore, AD, Crown Agent
[24] I agree with
your Lordship in the chair that, for the reasons which you have given, the
appeal of Mr Ludriecus must succeed and that of Mr Orrock must fail.
[25] In order to
prove the statutory offence, the crown must demonstrate, beyond reasonable
doubt, that the accused person was in charge of a car, which was on a public
road, when over the legal alcohol limit. If, nevertheless, the defence prove, on the
balance of probability, that, at that time, there was "no likelihood of his
driving" the car whilst over the limit, the prosecution will fail. The test is simply one of whether there was "no
likelihood of his driving". Reformulations
or interpretations of it using other words are only apt to confuse, since they
will almost inevitably convey a different meaning from that intended by
Parliament, when it selected the precise words of the statute. The accused person must do more than
demonstrate that he was unlikely to drive. But he does not have to prove that there was
no possibility of him driving. Within
these parameters, it will be a matter of fact and degree whether the defence
has been made out. In the context of a
stated case, it will normally be incumbent for the Sheriff to make a specific
finding-in-fact on the issue of the statutory defence and, if the decision on
that defence is challenged in the application, to explain adequately the basis
for that finding.
