R v Jackson ; R v Hart
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE SACHS |
| Judgment Date | 11 March 1969 |
| Judgment citation (vLex) | [1969] EWCA Crim J0311-1 |
| Docket Number | No. 5925/68 No. 4738/68 |
| Court | Court of Appeal (Criminal Division) |
| Date | 11 March 1969 |
[1969] EWCA Crim J0311-1
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Lord Justice Sachs
Lord Justice Fenton Atkinson
and
Mr. Justice Caulfield
No. 5925/68
and
No. 4738/68
MRS. PUXON appeared on behalf of the Appellant Jackson.
MR. PAIBA appeared on behalf of the Appellant Hart.
MISS A. CURNOW appeared on behalf of the Crown.
These two appeals, one by the appellant Jackson and the other by the appellant Hart, were listed consecutively because they raised parallel points as to what constitute "special reasons" under Section 5(1) of the Road Traffic Act 1962 in relation to certain offences recently created by Part I of the Road Safety Act 1967. Both cases having been fully and helpfully argued by counsel, it is accordingly convenient to deal with them both in a single judgment.
It is perhaps as well first to read the relevant part of the above-cited Section 5(1): "Where a person is convicted of an offence specified in Part I of the First Schedule to this Act the court shall order him to be disqualified for such period not less than twelve months as the court thinks fit unless the court for special reasons thinks fit to order him to be disqualified for a shorter period or not to order him to be disqualified."
Part I of the First Schedule of the 1962 Act sets out a number of offences, and to those offences there were in 1967 added the two which are now under the consideration of this Court.
Both appellants pleaded guilty to offences against provisions of the 1967 Act: the appellant Jackson at South East London Quarter Sessions to one under the provisions of Section 1(1), by which: "If a person drives or attempts to drive a motor vehicle on a road or other public place, having consumed alcohol in such a quantity that the proportion thereof in his blood, as ascertained from a laboratory test for which he subsequently provides a specimen under section 3 of this Act, exceeds the prescribed limit at the time he provides the specimen" he is guilty of an offence. The offence of this appellant was having 118 milligrams of alcohol per 100 millilitres of blood, that being in excess of the prescribed limit of 80 milligrams.
The appellant Hart pleaded guilty at Inner London Sessions to an offence under Section 3(3) of the 1967 Act, of which the relevant extract reads: "A person who, without reasonable excuse, fails to provide a specimen" (of blood) "for a laboratory test in pursuance of a require ment imposed under this section shall be guilty of an offence." The appellant Hart had, in fact, refused to give such a specimen in circumstances which were without doubt unreasonable and to which this Court will in due course further refer.
In both cases it was held at Quarter Sessions that no special reason had been established which would enable the Court to impose a lesser term of disqualification than the relevant Acts provided. In both cases reluctance was expressed by the Court at having come to such a decision. In both cases a lesser fine was imposed than would have been the case if the Court had been free to disqualify the appellants for some lesser period, or not to disqualify at all. Hence these appeals seeking to establish that the respective Courts were each wrong in law in holding that there was no special reason.
It should be added that, so far as the appellant Jackson was concerned, the fine was £40 and he was disqualified for twelve months: so far as the appellant Hart was concerned, the fine was 1 shilling, and he was disqualified for three years.
Taking first the facts as regards Jackson - he is aged 41, and is a civil engineer. He was arraigned on two counts: the first under Section 6 of the 1960 Act for driving whilst unfit to drive owing to drink consumed. To that count he pleaded not guilty, and that plea was accepted in the sense that it was not further proceeded with. The second count was under Section 1(1) of the 1967 Act for the offence already stated - to which he pleaded guilty. His only previous motoring offences were in December 1967, when on the same day he was twice fined for exceeding the speed limit.
The facts put before Sessions on behalf of the Crown were as follows. On the 30th April of last year a little after midnight a Police car followed the appellant's Jaguar. It was observed to be exceeding the 40 miles-per-hour speed limit, and its headlights were full on although the road was quite well lit: the driving was erratic, but the road was deserted and no one was in danger. When the Police succeeded in passing this Jaguar it was stopped at 12.50: a breathalyser test was then given, and at 1 a.m. there was a positive reaction. The appellant was then taken to the Police Station, and at 1.25 there was a second breathalyser test, again with a positive reaction. At 2.15, a doctor having arrived, a blood sample was taken: this was later found to contain not less than 118 milligrams of alcohol per 100 millilitres of blood. The doctor, having examined the appellant, gave it however as his opinion that the appellant was not then unfit to drive through drink: he had previously noted the smell of alcohol but had no doubt taken the appropriate tests. It was because of that doctor's opinion that Count 1 was allowed to remain on the Court file without further proceedings upon it.
The appellant, after his plea, gave evidence as to the sequence of events before he was stopped at 12.50 in the morning, and his case was as follows. For the whole day he had had no food at all, neither breakfast nor lunch. He had throughout the day engaged himself on business affairs and had been driving considerable distances. At 7 p.m. he had two pints of brown ale; then he had a normal dinner, with which he consumed one-third of a glass of wine followed by four brandies. At 10 p.m. - that is to say four hours before the blood test - he went for a walk; at 10.40 p.m. he commenced to drive from Brighton back to London; at 11.20 he unfortunately ran into the back of a car, but that was claimed to be no fault of his: about that time he was in conversation with a Policeman who had not attributed to him any signs of influence of alcohol; and at 12.50 he was stopped as above stated.
It was also his evidence that he was wholly unaware of the defective condition of his liver, to which this Court will now turn. After the plea of guilty Dr. Haler was also called. He gave evidence that the appellant was a person with high blood pressure, whose diet was lamentable and whose way of life was also from the medical point of view lamentable, He spoke of a malfunctioning liver, the malfunctioning of which appeared in combination with high blood pressure, and perhaps also with the diet and way of life, to produce the following effect: one way and another the result was retention in the blood of alcohol for a longer period than would be expected, though there was no statement as to how much longer than normal it was thus retained. It was said that the build-up of alcohol in the blood was below normal, and the excretion slow. These faults were thus attributed to defects of long-standing in the liver: and in essence that was the case for the appellant. The defects apparently were given no disease name - and Mrs. Puxon was unable to suggest that there was a name for them. As already mentioned, the appellant was unaware of the defect, and it was said by Dr. Haler that if he had been what he (Dr. Haler) described as "a normal man" one would have expected a much less amount of alcohol in the blood at 2 a.m: something very considerably less than the 80 milligrams which is the prescribed level. This evidence appears to have been accepted by the Sessions Court.
In those circumstances this Court observes that the learned Chairman of the South East London Quarter Sessions said when imposing sentence that, after listening to the appellant's evidence and to that of Dr. Haler and to the arguments advanced by Mrs. Puxon: "The result is that we think that in certain circumstances a condition such as yours which causes you to be more susceptible to building up alcohol in your body than a healthy man might amount to a special reason, but when we have regard to the fact which seems apparent, that this condition must have been arising for a considerable time and have existed for a considerable time, we decline in the present case, reluctantly, in view of everything, to find special reasons." The monetary penalty imposed was, as already indicated, Jess than that normally imposed by that Court in such circumstances; and with a view to an appeal the one year's disqualification imposed was suspended.
Turning now to the second appellant Hart - he is aged 46, is a polio cripple, and his right lower arm has been amputated; he drives an invalid car. He lived at the material time at Cheyne Walk, Chelsea, and on the material evening (the 29th February) he went in his invalid car to a public house within half-a-mile of his home.
Then on the way back there occurred the following incident. At about 11.20 p.m. the Police observed the appellant, who was driving his invalid car at a modest speed, negotiate a 'U'-turn on a pedestrian crossing in the Kings Road. He completed the turn, drove eastwards swerving about, suddenly made a left turn into Lincoln Street despite two clearly displayed and illuminated 'No Entry' signs, and was forced to stop because of a taxi approaching in the opposite direction.
The Police went up to him and, having smelt the alcohol on his breath, referred to what he had done and asked him to provide a specimen of breath for a breathalyser test. He said "No, I can't, cause I've had a few drinks". He was...
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