Director of Public Prosecutions v Conroy

Monday, 23rd June 2003

1. LORD JUSTICE ROSE: The Director of Public Prosecutions appeals against a decision by the Crewe Justices on 4th February 2003. They found special reasons for not disqualifying the respondent to this appeal, having convicted him of driving a motor vehicle having consumed excess alcohol, contrary to section 5(5)(a) of the Road Traffic Act 1988.

2. The facts were that the respondent drove a Rover car on Canal Road, Congleton, and the allegation in the information was that he had consumed such alcohol as gave rise to a breathalyser reading of 73 microgrammes per hundred millilitres of breath.

3. As appears from the case stated, the Justices found these facts.

4. The car was driven for no more than one mile when the respondent was stopped by police officers. He had been driving in an erratic manner and over the speed limit, and his vehicle was in good condition. He intended to drive a further 200 yards beyond the place where he was stopped. The road conditions were dry, with light traffic and only a few pedestrians in the area. There was only a limited possibility of danger of his car coming into contact with other road users. The respondent had with him his girlfriend, who was a passenger in the vehicle, and who was suffering from a condition rendering it difficult for her to walk.

5. The driving took place for approximately half a mile through the centre of Congleton, and it took place at around 3 o'clock in the morning.

6. It was not contended that the condition of the respondent's girlfriend gave rise to a medical emergency capable of sustaining special reasons. The basis of the submission that special reasons should be found was the alleged shortness of the distance driven.

7. In that respect, the Justices were referred, as is apparent from the case, to Chatters and Burke [1986] 3 All ER 168. That was an unusual case, in which a car had rolled over and stopped in a field next to the highway and was then driven with a flat tyre a few yards from the field through a gate, onto the road and parked there. The Divisional Court said that, in determining whether special reasons existed, it was relevant to take into account how the vehicle was driven, the manner in which it was driven, the state of the vehicle and whether the driver intended to drive any further, the prevailing road and traffic conditions, whether there was any possibility of danger by contact with other road users, and the reason for the vehicle being driven at all.

8. It is apparent from the case stated that the Justices did have regard to those matters. The extent of that regard is a matter to which I shall come in a moment.

9. The Justices were of the opinion that special reasons existed on the balance of probabilities on the basis of the shortness of the distance driven, in that the car had not been driven for more than a mile and the reason for it being so driven was the appellant's girlfriend's condition. There was also evidence that the Justices accepted that there had not, on the part of the respondent, been any original intention on his part to drive having taken drink.

10. Mr Potter, on behalf of the appellant, makes the succinct submission, by reference not only to Chatters and Burke, but also to James and Hall [1972] 2 All ER 59, Coombs and Kehoe [1972] 2 All ER 55, and Wickens 42 Cr App R 236, that the Justices' conclusions were perverse.

11. The classic statement of special reasons in the judgment of Devlin J, giving the judgment of the court in Wickens, prescribes four requirements for a special reason: namely, it must be a mitigating or extenuating circumstance; it must not in law amount to a defence; it must be directly connected with the commission of the offence; and the matter must be one which the court ought properly to take into consideration when imposing punishment.

12. Mr Potter submits that the actual distance driven does not, as such, fall foul of any of the first three of those requirements. But the distance driven in the present case and the surrounding circumstances which existed, as found by the Justices, namely the manner and speed of driving, the fact that the vehicle was being driven through the centre of a substantial town, when there would be pedestrians about -- those matters, in particular, ought to have driven the Justices to quite the opposite conclusion.

13. Nothing, submits Mr Potter, in the other three authorities to which I have referred in relation to distance driven begins to support the proposition that a car, which is driven for a distance of a mile, particularly when the driver intends to continue driving for a further 200 yards, is driving so short a distance as could properly give rise to special reasons.

14. So far as the girlfriend's condition was concerned, submits Mr Potter, not only was the defence before the Justices expressly conducted on the basis that that condition did not give rise to an emergency, but there could and would have been no difficulty in summoning a taxi in order to get her home. There were pay phones in the centre of Congleton, and indeed the police officers very swiftly were able to flag down a passing taxi in order to take her home after they had stopped the respondent.

15. Mr Newman, on behalf of the respondent, stresses the passage in the judgment of Devlin J in Wickens which emphasises that this court ought to be slow to interfere with a Justices' decision in this area, where they have properly directed themselves as to the law and taken proper considerations into account.

16. By that yardstick, Mr Newman submits that the Justices, as is apparent from the case, had the relevant legal criteria in mind and exercised their discretion in a way which reflected their findings of fact. No authority, he points out, specifically identifies the maximum distance which it is permissible to drive before a finding of special reasons becomes impermissible. He concede, of course, that this car was driven for a mile, but he stresses that the Justices considered that there was only a limited possibility of other road users being affected by the defendant driving this car in the condition which he was.

17. Therefore, he submits, it cannot be said that the Justices' conclusions were perverse or irrational.

18. For my part, I do not accept Mr Newman's submission, succinctly and attractively though it is put. The fact that this car was driven for a mile and would have been driven for a further 200 yards; the fact that it was driven in excess of the speed limit in a built-up area; the fact that it was driven about half a mile through Congleton; the fact that it was driven in an erratic manner; the fact that, being driven where it was, despite the time at which it was being driven, meant that there were likely to be some pedestrians about with which there might well be contact, because of the excessive speed and erratic driving -- all those circumstances, in my judgment, rendered the only conclusion open to the Justices, in a proper exercise of their discretion, to be that there were no special reasons for refusing to disqualify. Accordingly, for my part, I would answer the first question that it was wrong in law for the Justices to find special reasons, having found that the vehicle had been driven, because of the condition of his passenger, "for no more than a mile through a town centre in an erratic manner in light traffic with several pedestrians in the vicinity whilst being twice over the prescribed limit".

19. As to the second question, as I have already indicated, I would answer that in the negative; namely, no reasonable bench of Magistrates, having properly directed themselves on the law, could properly come to the conclusion that special reasons existed. Accordingly, for my part, I would allow this appeal, and if my Lord agrees, we will hear any further submissions there may be as to what the consequence should be.

20. MR JUSTICE DOUGLAS BROWN: I agree.

21. LORD JUSTICE ROSE: Mr Newman, there are two possibilities. One is that this court can impose a disqualification. The minimum would be 12 months. The guideline period, we are told, having regard to the amount of alcohol, would be 18 months. The alternative would be to remit the matter to the Justices for them to impose a disqualification.

22. What do you have to say about all that?

23. MR NEWMAN: I am sure that, had I had my instructions, it would have been to contend for the imposition of the minimum period of disqualification. In those circumstances, I think my invitation would be for the matter to be remitted to the Magistrates so that arguments can be presented.

24. LORD JUSTICE ROSE: I think that is probably right because, clearly, if we were minded, as we might be, to impose more than the minimum, that is something on which you would need the opportunity to take instructions.

25. MR NEWMAN: I am grateful.

26. LORD JUSTICE ROSE: Accordingly, we shall remit this matter to the Crewe Justices, with a direction that they consider the appropriate period of disqualification.

27. MR POTTER: My Lord, the question of the appellant's costs falls to be considered, in my respectful submission. They have been assessed at £500.50 and I would ask that those costs be paid by the respondent.

28. LORD JUSTICE ROSE: Does he have a representation order? What is the position, so far as the respondent is concerned?

29. MR NEWMAN: He had a representation order in the lower court. I do not know the finer detail of it, in terms of whether there was any contribution.

30. LORD JUSTICE ROSE: Does he have a representation order in this court?

31. MR NEWMAN: I believe so. Would you allow me one moment?

32. LORD JUSTICE ROSE: Of course.

(Pause).

33. If there is a representation order, it has not been lodged with the court.

34. MR NEWMAN: Yes. I can understand why that may not have happened. The respondent is in fact a serving soldier.

35. LORD JUSTICE ROSE: Is he?

36. MR NEWMAN: He has recently left on tour. He has gone to the Gulf, to Iraq.

37. LORD JUSTICE ROSE: May I ask what rank he is?

38. MR NEWMAN: I believe he is a private.

39. LORD JUSTICE ROSE: Did he have to make a contribution in the court below, or do you not know?

40. MR NEWMAN: I do not know.

41. LORD JUSTICE ROSE: Can you find out?

(Pause).

42. MR NEWMAN: I am afraid I am not able to.

43. LORD JUSTICE ROSE: It is not your day, Mr Newman.

44. So far as the amount of costs sought, I know you have no instructions on this, but I rather anticipate it could not be regarded as other than modest, if we are to make a summary determination.

45. MR NEWMAN: Yes.

46. I can tell your Lordship that he did have time to pay the financial penalties which were imposed in the lower court. He was allowed to pay them off at £50 a week, which is a reasonable amount.

47. LORD JUSTICE ROSE: The court's attention has been drawn to a letter written by, I take it, your instructing solicitors on 13th May saying that the defendant objects to paying any costs, given he has had no choice in relation to this appeal by the prosecution.

48. MR NEWMAN: Yes.

49. LORD JUSTICE ROSE: Is there anything you wish to add to that?

50. MR NEWMAN: No.

51. LORD JUSTICE ROSE: Thank you very much. We shall make an order that the respondent to pay £500 in relation to the appellant's costs.