Khan, R (on the application of) v Director of Public Prosecutions

MR JUSTICE DAVIS: This is an appeal by way of case stated from a decision of the Magistrates of 14th May 2004 in the context of a drink driving case whereby, on a plea of guilty and having heard evidence and legal argument as to whether special reasons existed in relation to the offence, and as to whether the defendant should be disqualified from driving, the magistrates in question did not find that there were special reasons. That was decided on 14th May 2004 and, in due course, on 19th May 2004 the defendant was sentenced to a fine and also was disqualified for driving for the specified period of three years: although the disqualification has since been suspended pending this appeal by way of case stated.

The facts are set out in the case stated and are these. The charge was that on 1st January 2004 at Ilford, Mr Khan drove a Honda car on a road after consuming so much alcohol that the proportion in it in his blood exceeded the prescribed limit, contrary to relevant provisions of the statute. It was found that he had been out for the evening with his wife and friends on New Years Eve, 31st January 2003, at a restaurant where he had drunk champagne. Mrs Khan, the appellant's wife, had driven to the restaurant. The evidence of the appellant was that his wife had not drunk alcohol at the restaurant and she drove them both home.

When the couple returned home, this being at around 2.30 am, his wife retired to bed. As it happened, their two sons, aged 14 and 15, had been to a party locally at a separate location. When they had not returned home, the appellant was worried and he waited up for them. Some time later he received a telephone call from a friend stating that he was aware that there had been a terrible fatal road traffic accident on the A12 road nearby. He feared that the appellant's sons were in the accident as he knew that there were young Asian boys involved who had come from the same party as the defendant's sons had been attending.

As it happened, previously in the year 2000 the appellant had attended the scene of an accident where a very close friend's son, aged 19, had died of serious injuries. He had considered him as a son and this left him severely traumatised. The appellant suspected on this occasion that his sons may have been seriously injured or even killed in the accident and he wanted to be with them as quickly as possible. The appellant called to his wife, who was upstairs in bed, to wake her but she did not wake. He did not make further efforts to wake his wife up. He said that by the time she got dressed he would have left anyway. He then drove his car just over one mile. This included driving along the A12 duel carriageway to the scene of the accident.

Although there was no direct evidence, the Magistrates estimated that Mr Khan could have reached the scene of the accident, just over one mile away, by foot in less than 20 minutes. There was no evidence of erratic or bad driving on his way to the scene of the accident. He drove up to and through the police cordon to see whether his sons were involved, where he was arrested for driving with excess alcohol at approximately 4.40 am. At the time of the blood test, at approximately 6.20 am, his blood alcohol level was 195 milligrams in 100 millilitres. The prescribed limit is 80 milligrams and he was therefore, at that time, nearly two and a half times over the legal limit.

The submission made on behalf of Mr Khan before the Justices was that in all the circumstances, special reasons should be found for not disqualifying him from driving. The Crown, on the other hand, sought to apply the test as set out in the case of DPP v Bristow [1998] RTR 100, as to whether a sober, reasonable and responsible friend would have advised the appellant not to drive in the circumstances; and contended that no special reasons should be found. Two cases were cited to the Justices, DPP v Bristow and also the case of Chatters v Burke [1996] AER 168.

The Justices then stated their opinion as follows:

The questions then posed for the opinion of the High Court were in the following terms:

It is of course elementary in this context that each case depends upon its own particular facts. Indeed, Mrs Chapman herself avers that. Mrs Chapman stresses that the sense of crisis any father would have felt in this particular situation, and in particular, so far as this appellant was concerned, the natural feelings he would feel enhanced by the previous incident as set out in the facts in the case stated. Mrs Chapman accepts, as she must, that the matter must be assessed objectively in deciding the question of whether or not there are special reasons. But she says regard must also be had to the facts subjectively, to the actual state of mind of this appellant at the time in question. Her blunt submission is that no reasonable body of Magistrates could properly have come to the conclusion, on the facts as found, that there were not special reasons or could have come to the conclusion that in consequence he would have to be disqualified. She stresses repeatedly the dire emergency with which the appellant would have felt himself confronted, and the natural inclination of his desire to be at the scene; the more so in the light of his previous experience, as already mentioned.

She further submits that, given such circumstances, it is unreal to think that he could have walked on foot as the Justices suggested; and she contends that having regard to his situation, and even taking the viewpoint of the sober reasonable and responsible friend, he was justified, given the state of the emergency, in getting into the car and driving as he did, notwithstanding that he was, at the least, two and a half times over the limit at the time.

Although the papers before me include copious citation of various authorities, I was in fact only referred to two of them: unsurprisingly, I think, given that the principles are by now reasonably well settled. Of course, as I have said, these cases all depend on their own facts. Mrs Chapman did specifically refer to the very well-known case of Taylor v Rajan [1974] RTR 304, and, in particular, the passage from the judgment of Lord Widgery Chief Justice starting at page 309 where he said this:

Mrs Chapman also referred me to the case of DPP v Knight, decided on 19th December 1998, and noted in 1994 RTR 374. That was a case (as is quite apparent from reading the judgment of Leggatt J, giving the first judgment of the court) with very particular facts. Mrs Chapman drew my attention to the passage in particular at page 379 where, on the facts as found by the Justices, Leggatt J indicated that it was as clear an example as could be contemplated of a crisis or emergency which moved the defendant to use her car. It is to be noted that Leggatt J, having referred to the fact, as was accepted, that there was no evidence that her driving was exceptionable, observed that the amount of alcohol in her body was not much over the prescribed limit, a feature not present in the instant case.

Bingham LJ, in agreeing, indicated that it was one of those rare cases where special reasons might be found. It seems to me that Mrs Chapman gets no assistance from that case. In these cases of asserted emergency, all depends upon the facts of the case as to whether or not special reasons may exist.

It seems to me evident on the case stated that the Magistrates approached this matter carefully and thoroughly, and faithfully applying the test as set down in Taylor v Rajan and other such cases. True it is that, on the evidence, the appellant was presented with what he perceived, understandably, to be an emergency involving potentially a serious accident relating to his two sons, in circumstances where he had had a dreadful experience of that in the past. But it is to be remembered that he was at that time at the very least two and a half times over the limit. Moreover, the findings of the Justices make clear (although Mrs Chapman rather half-heartedly tried to suggest to the contrary) that Mrs Khan was, herself, perfectly capable of driving. She had drunk nothing in the restaurant, and had gone straight to bed when she got home.

It seems to me that the conclusion of the Justices, to the effect that they were very strongly of the opinion that Mr Khan could have made more effort to wake up his wife who was asleep in bed, was justified. Indeed, although Mrs Chapman sought to advance arguments as to why he was entitled not even to attempt to wake her up and get her to drive, I have to say that those arguments struck me as very unconvincing. In any event, that was a matter for the Justices and the conclusion they reached in that regard was eminently open to them. I find it unsurprising that, looking at the position objectively, the Justices concluded that the appellant would have been advised by a sober, reasonable and responsible friend not to drive himself but rather to wake his wife who then, and in very short order no doubt, would have got dressed and driven the car herself.

It seems to me that ultimately what the Justices were doing was exercising their discretion by reference to the facts of this case as found by them. Mrs Chapman has to show that they exercised their discretion in a way which simply was not open to them, properly directing themselves. I feel wholly unable to reach such a conclusion. It may well be said that having regard to the facts of this case as found, it would in fact have been surprising had the Magistrates decided that there were special reasons. However, it is sufficient for me to say that there is, in my view, no basis for interfering with the conclusion of the Justices in this case, having regard to the facts as found.

The questions therefore posed to the opinion of this court are: as to question (1) the answer is in the affirmative, and as to question (2) the answer is in the negative; and this appeal is dismissed.

MR SPENCER: My Lord, I am grateful for that judgment. I would be instructed to make an application for costs but I have no instructions.

MR JUSTICE DAVIS: In the last hearing I had, £800 was considered acceptable.

MRS CHAPMAN:

MR SPENCER: My Lord, I could not ask for better.

MR JUSTICE DAVIS: Mrs Chapman, what would you like to say about costs?

MRS CHAPMAN: My Lord, there is nothing I can say in response to that.

MR JUSTICE DAVIS: Do you consider £800 as being an appropriate sum?

MRS CHAPMAN: It seems as though it would be.

MR JUSTICE DAVIS: How long do you want to pay, Mrs Chapman?

MRS CHAPMAN: Would 56 days which you said before be acceptable?

MR JUSTICE DAVIS: Is Mr Khan in employment?

MRS CHAPMAN: He is, I believe. Can I just take instructions?

MR JUSTICE DAVIS: Yes.

MRS CHAPMAN: We have no direct instructions, my Lord, but I have no instructions that he could not pay either.

MR JUSTICE DAVIS: 56 days. Thank you very much.