Director of Public Prosecutions v Ubhi

J U D G M E N T

1. MR JUSTICE MOSES: This is an appeal by way of case stated against the decision of the Shropshire justices sitting at Telford given on 9 August 2002. On that date the justices found that there were special reasons for not disqualifying the respondent, Manjit Singh Ubhi, from driving. There was no dispute but that on 4 June 2002 Mr Manjit Singh Ubhi had driven a motor vehicle whilst the proportion of alcohol in his blood exceeded the prescribed limit. The first reading was 61 micrograms out of a hundred millilitres of breath.

2. The respondent had pleaded guilty and sought to put forward special reasons. The justices found the following facts. He, his sister, girlfriend and sister's boyfriend had been in the Student Halls of Residence and had been drinking from a bottle of Bacardi. They had gone to bed at around midnight, but had been awoken when the respondent's sister had fallen in the bathroom. They continued:

"Her scream roused the other 3 occupants in the flat, who went to her aid. The respondent stayed with his sister and shouted for someone to call for an ambulance. Manoj [the boyfriend] used his mobile phone to ring for an ambulance, could not get a signal upstairs so went downstairs to the communal area to try again.

"(b) Manoj admitted that he did see the telephone box but was in too much of a panic to use the land line to call the ambulance. He did not try to knock on any of the other students' doors to seek assistance because he knew that most of the students had gone home for the long bank holiday weekend. Although others gave evidence that they thought some students had stayed, they thought most had gone home for the weekend."

Then they go on at 3(e):

"5 minutes later Manoj returned and said he could not get an ambulance. He had tried the telephone number for the hospital doctor but got no response. He had also tried to get a taxi. The first firm did not answer and the second said there was a 30 minute wait. At that stage the respondent took the decision to drive due to the concern that he felt for his sister. He had suffered a punctured lung in the past and she seemed to be in more discomfort than that, as she was finding it hard to breathe and was screaming in pain."

The justices then found that the respondent and others had made their way towards the hospital, were stopped by police, and one of the police officers noted that the sister was in the front passenger seat:

"She seemed to be in distress, complaining of chest pains and claiming she was unable to breathe.

"(i)... the respondent seemed generally concerned for his sister."

An ambulance was requested and the sister drove the car away.

3. The justices were referred to a number of authorities and were advised that the defendant needed to make his own enquiries to satisfy the court that he had made every effort to find an alternative, other than to drive himself. The justices' conclusions were:

"We were of the opinion that special reasons should be found not to disqualify the respondent from driving.

"Our reasons were:

"(a) The respondent acted in duress of circumstances.

"(b) The respondent believed that there was a genuine medical emergency.

"(c) The respondent did explore other ways of getting help in that he delegated responsibility and believed it to have been carried out.

"(d) Section Officer Black called an ambulance as soon as he saw the distressed lady in the car."

4. The principle that has to be applied is that which was set out by Lord Widgery CJ as long ago as 1974 in Taylor v Rajan [1974] RTR page 304. He said:

"There is a very serious burden upon the justices, even when a special reason has been disclosed, to decide whether in their discretion they should decline to disqualify in a particular case. The justices should have very much in mind that if a man deliberately drives when he knows he has consumed a considerable quantity of drink, he presents a potential source of danger to the public, which no private crisis can lightly excuse. One of the most important matters which justices have to consider in the exercise of this discretion is whether the emergency -- and I call it such for want of a more convenient word -- was sufficiently acute to justify the driver taking his car out. The justices should only exercise the discretion in favour of the driver in clear and compelling circumstances. They ought to remember that the special reasons which they are considering and which are relevant are not the reasons which caused the driver to take to the road are the reasons which are urged them as a court as justifying a failure to disqualify. The justices therefore must consider the whole of the circumstances. They must consider the nature and degree of the crisis or emergency which had caused the defendant to take the car out. They must consider with particular care whether there were alternative means of transport or methods of dealing with the crisis other than, and alternative to, the use by the defendant of his own car."

He then reminds them to look at the quality of the driving and continues:

"In making this assessment this court said in Jacobs v Reid [1974] RLT 71, the test is not a subjective one. The justices do not try to put themselves in the position of the driver with drink in his body and ask if it was a reasonable decision for him to take. The matter must be considered objectively, and the quality and gravity of the crisis must be assessed in that way."

5. It is plain to me that the justices did not ask themselves the correct questions. What they meant by a finding of duress of circumstances is wholly unclear. In any event, if it was truly that the respondent drove in circumstances of duress, as properly understood, it would have amounted to a defence to the charge and not grounds for special reasons. But he had pleaded guilty.

6. The test for duress of circumstances in the context of driving was set out by Simon Brown J in R v Martin [1989] RTA page 63, at page 65. The question is:

" ... first, was the accused, or may he have been, impelled to act as he did because as a result of what he reasonably believed to be the situation he had good cause to fear that otherwise death or serious physical injury would result? Second, if so, may a sober person of reasonable firmness, sharing the characteristics of the accused, have responded to that situation by acting as the accused acted?"

The defence and special reasons share the issue of whether, objectively, the defendant was impelled to act in the way he did by the emergency. The justices failed to consider what a reasonable person would have done, faced with the screaming which roused them from the sister falling in the bathroom. The only finding was that the respondent believed there was a genuine medical emergency, see 7B. But there is no finding as to whether a reasonable person would have acted that way.

7. Secondly, the justices record that they found that the respondent believed that the other ways of getting help had been explored. Again, that is not the correct test. I am prepared to accept that, in certain circumstances, a reasonable person may ask someone else to get help while they themselves tend the victim of the medical emergency. It is not difficult to imagine circumstances in which that might happen. It will then be a question of fact as to whether a reasonable person would have accepted what they were told by the person who they had asked to get help. Here, all the justices found was that Manoj said that he could not get an ambulance. Whether it was reasonable for the respondent to accept that explanation, bearing in mind Manoj had apparently tried the telephone number for the hospital doctor but not sought help from anyone else in the Student Halls of Residence, was a matter of fact for them. It was important that they found whether a reasonable person would have reacted to what they were told by Manoj in the way that the respondent acted. There is no such finding.

8. The appellant suggests that it was not reasonable to react in that way, faced with the ambiguous statement that Manoj could not get an ambulance. That will all depend upon the particular circumstances with which the reasonable person was faced. It would be wrong of me to say what the conclusion should be, but I should stress the difficulty that any driver has in establishing special reasons where he chooses to drive when he has drunk too much, a difficulty necessarily imposed where the protection of the safety of others on the road is so important, faced with someone who has drunk to excess.

9. Having regard to those failures in the findings of the justices to look at the objective evidence of what a reasonable person faced with those circumstances would have done, it is plain that this decision cannot stand. The question I am asked is whether the justices were correct in law to find special reasons not to disqualify the defendant, having announced that the defendant acted in duress of circumstances.

10. The courts have from time to time suggested that, where special reasons are found, it would be better if the court concentrated on whether the defence of duress of circumstances was more appropriate. Simon Brown LJ remarked upon what he said was the better view, which may now be that any genuine such emergency would give rise to a complete defence: defence of necessity or, as it is sometimes called, duress of circumstances, see page 159 G to H in DPP v Whittle [1996] RTA page 154. I am not in the instant case going to say whether it will be more appropriate to run the defence of duress of circumstances. Many courts have hitherto been prepared to find special circumstances without embarking upon the interesting jurisprudential question of whether it would have been more appropriate to have a plea of not guilty entered. So I confine myself to saying, in relation to 7(a) that, where there is a defence to a charge, there cannot be special reasons. If the defence of duress of circumstances had been raised, the justices should have concentrated upon that. Since it was not raised, they should not have made any reference to duress of circumstances at all.

"(b) Were we correct in law to find that a genuine medical emergency had arisen when the evidence from the person for whom treatment had been sought indicated that she was released from hospital within an hour of her arrival, with no more than advice and pain killers, and that further treatment was not required?"

I answer that the correct question is whether a reasonable person faced with those facts would have treated it as a genuine medical emergency. The answer to that question will, in part, be dependent upon what in fact was discovered when she was treated in hospital, but, for the reasons I have given, the question does not properly grapple with the real defects in the decision of the justices.

"(c) Were we correct in law to find special reasons when the defendant himself made no inquiry to establish alternatives to him driving?"

The answer is that the justices were not correct in law to find special reasons without examining and making findings as to whether a reasonable person would have made further enquiries to establish alternatives.

"(d) Were we correct in law to find special reasons when not all available alternatives to the defendant driving had been explored by him, or others on his behalf?"

It is not clear to me from that question what other alternatives they are referring to, but it does seem to me that it is vital that any justices look at the issue as to whether a reasonable person would have made enquiries as to alternatives, and as to whether that reasonable person would have discovered that there were alternatives available. Should there, in fact, have been alternatives available, it will be rare indeed that special reasons could be found because the driver had not himself established the availability of those other alternatives.

"(e) Were we correct in law to find special reasons when following his arrest for the offence, the defendant's girlfriend, who had accompanied him in the car, was allowed and encouraged to drive the car away by a police officer?"

My answer is that I do not think that has any relevance in this case, bearing in mind that, as far as one can see, the girlfriend had been drinking just as much as the defendant.

"(f) Were we correct in law to find that the defendant himself did not need to make any inquiry as to the alternatives to him driving but was entitled to rely on what someone else had told him?"

For the reasons I have already given, there may be circumstances in which a driver need not make an inquiry himself. It will all depend upon what the reasonable person would have done, faced with the situation that he was presented with, and what inquiries he would have made of the person to whom he had delegated the task of seeking help.

11. It will be seen from my judgment that the many questions asked do not go to the root of the defect of the findings of the justices. That defect was in failing to consider the objective evidence, both as to the emergency and as to the steps that were taken to deal with that emergency.

12. For the reasons I have given, I shall quash the decision of the justices and, subject to any further argument, send it back for consideration by a different body of justices to consider the matter afresh. I do not think it would be right to direct them to disqualify. There may be circumstances in which special reasons could be found, so long as the by now long established authorities are followed.

13. Do you want to make any further argument about that, Mr Aspinall?

14. MR ASPINALL: No, thank you.

15. MR JUSTICE MOSES: Very well, I will allow the appeal.

16. MR ASPINALL: I am grateful.

17. MR JUSTICE MOSES: What about costs?

18. MR ASPINALL: The costs for the appellant are some £750 pounds.

19. MR WATSON: Can I observe this: the appeal has been allowed on grounds that have never been canvassed by the justices or, indeed, by the appellant in this case. There has been no reference to the objective test.

20. MR JUSTICE MOSES: Well, there is a reference to all the authorities in the skeleton argument.

21. MR WATSON: But the argument has always been put on the basis that there should not have been any delegation and, secondly, that because there is a defence to the charge, there cannot be special reasons. Neither of those are the basis upon which your Lordship has determined it. In those circumstances, (inaudible) to be taken today and, in my submission, there should be no order for costs.

22. MR JUSTICE MOSES: Were you surprised?

23. MR WATSON: No.

24. MR JUSTICE MOSES: Thank you very much. The more interesting point is that, I suppose, you need not have turned up. The fault lies with the clerk and justices, does it not? So should it lay at the door of your client?

25. MR WATSON: I would be careful to put it too highly, but I do not know what arguments were put precisely.

26. MR JUSTICE MOSES: Anything else?

27. MR WATSON: Yes, the defendant is legally aided. If your Lordship is minded to make an order for costs against the defendant (inaudible).

28. MR JUSTICE MOSES: So what is the order I make, if he is legally aided?

29. MR WATSON: If your Lordship is minded to make an order for costs, that those costs not to be enforced without detailed assessment of the respondent's liability to pay.

30. MR JUSTICE MOSES: It is not the right order.

31. MR WATSON: I am so sorry.

32. MR JUSTICE MOSES: We have it every day and someone has it somewhere for me. Thank you very much.

33. MR WATSON: May I ask for a detailed assessment?

34. MR JUSTICE MOSES: Yes I will give you that, but I shall also order that the respondent should pay the costs of the appellant, but the determination of the claimant's liability for payment of such costs be postponed pending further application.