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

MR JUSTICE MITTING: This is an appeal by way of case stated from the decision of the Justices of the Ealing Petty Sessions Area made on 16th August 2004 that the respondent, Ratika Sharma, had proved, on balance of probabilities, that special reasons existed why she should not be disqualified from driving from 12 months upon her conviction for driving with excess alcohol.

From the evidence recited by the Justices in the stated case, the facts do not emerge with perfect clarity. In particular, it is unclear whether or not the respondent and her principal witness of fact, Mr Jeremiah, were saying between them that she had, to her knowledge, three drinks or only two. The Justices did not expressly address that question, but Mr Benson for the appellant accepts that this is not a case in which it would be appropriate to remit the matter to the Justices to make further findings of fact, and that I should decide this appeal on the basis of the facts that they have found.

Those facts, in a nutshell, amount to this. On 31st May 2003 the respondent drove her motorcar on a road with alcohol in her breath which exceeded the legal limit. After her arrest, the lower reading produced by the breath device showed that she had 83 microgrammes of alcohol in 100 millilitres of breath; a little over twice the legal limit. The Justices found that on the respondent's visit to the Grasshopper club on ceasing work on 31st May, a friend Mr Jeremiah, had bought her two Smirnoff Ice drinks. They were bottled drinks, 250 millilitres per bottle, comprising a mixture of Smirnoff vodka and a mixer. The Magistrates found that to those bottled Ice drinks, Mr Jeremiah had added a double measure of vodka to each drink. Measures sold at the club appear to have been large by the standards of those sold in public houses. A single measure was 50 millilitres and a double 100 millilitres. On the Magistrates' findings, the respondent therefore consumed two Smirnoff Ice drinks with an unknown quantity of vodka in them, plus 200 millilitres of vodka, clearly a substantial quantity of alcohol.

This is not strictly a case in which it is alleged that the respondent's drink was laced. On the Magistrates' findings, Mr Jeremiah added the double vodkas to the Ice drinks when he bought them. He did so not out of playfulness or malice but because he thought that she was going to go home by taxi and would welcome the drink thus strengthened. The Magistrates found that the respondent knowingly drank two Smirnoff Ice drinks, that she was suffering symptoms of hay fever which affected her taste buds and, critically, was unaware that vodka had been added to the drinks.

The Magistrates also found that the respondent did not experience any effects of intoxication from the addition of the vodka to her Ice drinks, and did not display any signs of impairment as a result of her alcohol consumption. That finding was supported not only by her own evidence but also by the evidence of the two police officers who stopped her, who did not notice anything unusual about her manner of driving before they smelled alcohol on her breath after she was stopped. Again, critically, the Magistrates also found that had the respondent drunk only the two Ice drinks that she thought she was drinking, she would not have been over the legal limit to drive. That finding was securely founded in expert evidence and is not challenged.

Two expert reports were commissioned, one by the respondent and one by the appellant. They were in agreement. Both were based upon a factual premise which the Magistrates rejected, namely that the additional vodka which the respondent consumed amounted to 300, not 200, millilitres of vodka. That was based upon her belief as to what had been added to her drinks unbeknownst to her, but that belief was not accepted by the Magistrates who preferred, unsurprisingly, the evidence of the man who put the vodka in her drinks, Mr Jeremiah, whose evidence was clear on the point that he had only added 200 millilitres in all.

Both experts said that with an extra 300 millilitres, they would have expected the reading on the breath test to be higher and would each have expected that she would have noticed that she had drunk more alcohol than she thought she had. Mr Fawcett also expressed the view that at the level of the reading, 83 microgrammes per hundred millilitres, the average person would be very conscious of being affected by alcohol.

The Magistrates drew attention to the reports in their recital of the evidence that had been given. They clearly did not overlook those views. Nevertheless, they accepted in paragraph 5(e) of their stated case that the respondent was not aware that she was in a condition that she was unfit to drive. That conclusion, amounting as it did to a partial rejection of the experts' views, was one to which the Magistrates were entitled to come, notwithstanding that the expert reports were unchallenged. The Magistrates were entitled to come to that view, both because of the respondent's own evidence and, more importantly, because of the evidence of the police officers, to which I have already referred, about the manner of her driving and to the fact, as the Magistrates found, that she was not required to be examined by a forensic medical examiner to see whether or not her ability was impaired.

On the facts which I have recited, the Magistrates' conclusion that the respondent was unaware of the additional alcohol and that her ability to drive was unimpaired might seem surprising. Indeed, one of the cases referred to by Wolfe LJ in DPP v O'Connor and Chapman and Others [1992] RTR 66, R v David Newton [1974] RTR 451, expressly recorded the then Lord Chief Justice's inability to accept that someone with 127 milligrammes of alcohol in 100 millilitres of blood, that is to say a little over half the legal limit, did not feel any effect. Nevertheless, it is not possible for me to say that the Justices' finding, surprising though it may seem to an outside observer, was one to which they were not entitled to come on the evidence that they heard -- in other words, that their findings on the facts were legally perverse. I am not satisfied that they were.

Mr Benson, for the appellant, nevertheless submits that this is a case in which, even on the Justices' findings, they should have concluded that special reasons were not established. He drew my attention to the guidance given by Lord Wolfe, then Wolfe LJ, in O'Connor and Others which can be taken from the headnote and summarised as follows. That, first of all, it is for the motorist whose drink has been "laced" to establish by admissible and relevant evidence that it was laced and that he did not know or suspect that it was. It is for the driver to establish that without the additional alcohol he would on not have exceeded the prescribed limit. Expert evidence will often be required to demonstrate those two facts, and the expert evidence may well impinge upon the credibility of the driver's own evidence.

However, each case turns on its own facts and it is, in my view, unwise to deduce from Lord Wolfe's guidance any statement of law such that if the Justices do not follow it to the letter, their decision can be categorised as wrong in law. Lord Wolfe went on to state that even where it was demonstrated that a drink had been laced unbeknownst to the driver, it was nevertheless for the driver to demonstrate that he was unaware of the impact of the additional alcohol upon him. Where, for example, he drove erratically, that was cogent evidence that he must have been, or should have been, aware of the impact of alcohol upon him. There is, in this case, no evidence of erratic driving. Indeed, the Justices found that there was no such erratic driving, and did so on a sound evidential basis.

Mr Benson submits that there was material in the evidence which might have led the Justices to conclude that the respondent was somewhat careless about where she left her drink. Her evidence was that she had left it for a time by the pool table while she played pool, the inference being that alcohol might have been added during that time. If that were to be the case, then possibly that would have been a relevant factor militating against the finding of special reasons or a decision not to disqualify, but on the Justices' findings, the only two drinks which the respondent had had were the two provided by Mr Jeremiah who added the alcohol at the time that he bought them. That issue was not a relevant one. Any carelessness on her part was not causative of the condition in which she found herself when she was stopped and arrested by the police officers.

I am satisfied, having read the Justices' reasons in the two parts of the case stated in which they set them out, that they did broadly have Lord Wolfe's guidance in mind. They found all the necessary facts, they reached a conclusion which not every bench of Justices might have done on those facts, and they reached a conclusion which was not perverse or wrong in law, and reached it by a process which was not wrong in law or influenced by errors of law. For those reasons, surprising though the outcome may seem, this is not a case in which it is for me, as a reviewing judge, to interfere. For those reasons this appeal is dismissed.

Any other applications?

MR BENSON: No, my Lord.

MR HENDERSON: No, my Lord.

MR JUSTICE MITTING: Thank you both. I am sorry you had so long to wait.