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APPEAL COURT, HIGH COURT OF JUSTICIARY |
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Lord Wheatley Lord Reed Lord Carloway |
[2008] HCJAC 65Appeal No: XJ1034/07Appeal No: XJ646/08 OPINION OF LORD WHEATLEY In Appeal By STATED CASE in the causes MAX LUDRIECUS Appellant: against PROCURATOR FISCAL,
EDINBURGH Respondent: and GORDON ORROCK Appellant: against PROCURATOR FISCAL, Respondent: _______ |
Act: Keenan, Solicitor Advocate;
Adams Whyte (for Ludriecus)
Alt: Brown, AD, Crown Agent
Act: McKenzie; Drummond Miller, Solicitors for Ward &
Co,
Alt: Beardmore, AD, Crown Agent
[1] These two
appeals were heard on consecutive days and were, in broad terms at least, concerned
with the same point. Both appellants
were charged with being in charge of a motor vehicle on a road or other public
place after consuming so much alcohol that the proportion of it in their breath
exceeded the prescribed limit, contrary to the Road Traffic Act 1988, section 5(1)(b). Each appellant attempted to take advantage of
the statutory defence found in section 5(2) of the Act, by proving that
there was no likelihood of him driving when he was still above the prescribed
limit. Both defences failed, and the
appellants have now appealed.
[2] The terms of section 5(1)(b)
and 5(2) are as follows:
(1) If a person
...
(b) is
in charge of a motor vehicle on a road or other public place,
after consuming so much alcohol that
the proportion of it in his breath, blood or urine exceeds the prescribed
limit, he is guilty of an offence.
(2) It is a defence for a person charged
with an offence under subsection (1)(b) above to prove at the time he is
alleged to have committed the offence the circumstances were such that there
was no likelihood of his driving the vehicle whilst the proportion of alcohol
in his breath, blood or urine remained likely to exceed the prescribed limit.
[3] In these
stated cases, the appellants pose essentially the same question, although
expressed in different ways, namely whether the sheriff has applied the correct
test in considering whether the appellant has satisfied the court that the
defence available under section 5(2) had been made out.
[4] The first
appellant was convicted on
[5] The sheriff
made the following findings in fact in the Stated Case. The appellant and his companions all lived
within a short walking distance of the car within which they had been
drinking. The appellant was unemployed
in July 2006. Accordingly, from the
time the police arrived at the locus until
"However, at the critical point in
time when the appellant's assessment of those various reasons, or aspects of
need, for driving falls to be scrutinised, then the appellant was very drunk
indeed, and for that reason that assessment can hardly be regarded as
reliable."
[6] Accordingly
the sheriff came to the view that while there was evidence from which it might
be concluded that the appellant was not likely to drive, he was satisfied in
the circumstances, and in particular from the appellant's highly intoxicated
state at the critical time, that the appellant had not proved that there was no
likelihood of him driving between 5.30 a.m. and
[7] The second
appellant appeared before the sheriff at
"It was more likely than not that the
appellant would have driven his car when his breath/alcohol reading
exceeded 35mgs per 100mls of breath."
[8] The sheriff therefore
accepted that when the appellant parked his car he had no intention of driving
again that night. He also appears to
have accepted evidence from the appellant's sister that normally he did not
take his car when he was going out drinking, but that his usual lift was not
available on this occasion, and that he always made alternative arrangements to
get home after his night out. However,
the sheriff concluded that the appellant had done two things in the course of
this particular evening which had not been part of his original
intentions. First, he had taken the car
and parked it in a public street in
[9] The offence
of being in charge of a motor vehicle after having consumed so much alcohol
that the proportion of it in the blood, breath or urine of the person charged exceeds
the prescribed limit contains several elements.
The appellant must be in charge of the vehicle at the relevant
time. Although the reported cases give
little general guidance on this, it is reasonable to assume that mere presence
in a vehicle while under the influence of drink may not normally by itself be
enough to establish that a person is in charge of that vehicle. Commonly, persons charged under this
sub-section are found with the keys of the vehicle in their possession, or in
the ignition, and that in itself might be enough to establish that the accused
is in charge of the vehicle. The
prosecution also have to prove that the driver is in a motor vehicle, and on a
road or other public place. The
proportion of alcohol in the driver's breath, blood or urine at the time of
arrest is normally settled by forensic analysis and is rarely a matter of
challenge. Equally, the time when the
accused would have been below the prescribed limit (although this figure may be
the lower of two extremes) is arrived at following forensic calculation. Once these various matters are established, a
conviction can follow. It is perhaps important
to note at this point that the offence under section 5(1)(b) does not
require the Crown to prove that the accused was likely to drive while still
unfit because of excess alcohol in his system.
Rather, the purpose of the legislation is to provide the accused with
the opportunity, in terms of section 5(2), to exonerate himself from the
charge if he can show that there was no likelihood that he would drive whilst
he was so unfit. Thus section 5(2)
of the Act imposes a legal, rather than a persuasive burden on an accused; in order to escape conviction he has to
prove, on the balance of probabilities, that there was no likelihood that he
would drive before the amount of alcohol in his system fell below the legal
limit (see Sheldrake v Director of Public Prosecutions [2005]
1 A.C. 264).
[10] Counsel for
the appellants in both appeals accepted that the onus of establishing the
statutory defence lay on the accused, and that the appropriate standard of
proof that had to be achieved was that of the balance of probabilities. It was accepted further that what the accused
had to do was to prove that at the time he committed the offence, there was no
likelihood of him driving before the level of alcohol in his system fell below
the prescribed limit. However, in both
appeals it was argued that the phrase "no likelihood" of driving was unclear,
and that there was little guidance available to work out how such a defence
might be approached. The possibility
that the accused might drive could normally never be excluded, but that did not
necessarily mean that the statutory defence could not be established. It was also submitted that it was difficult
to understand what was involved in establishing proof of that defence. In their letter in support of their appeal to
the second sift in the case of the second appellant, the solicitors questioned
whether the meaning of likelihood was more probable than not, whether it meant
there was a material possibility that driving would take place, or whether it
implied that there was no probability but only a remote possibility of
driving. Whatever the test was, both
appellants in essence made the same complaint, namely that the sheriff had only
considered whether there was a possibility that the appellants might drive
rather than that there was no likelihood that each appellant would drive; and that further, in each case, the sheriff
had engaged in speculation about whether the appellant would have driven before
the level of alcohol in his system fell below the legal limit.
[11] In Cream Holding Ltd v Banerjee [2005] 1 A.C. 253, Lord Nicholls of
Birkenhead pointed out (at p 259) that, as with most ordinary English words,
the term "likely" has several different shades of meaning, and there may be
different degrees of likelihood depending on the statutory context and the
circumstances of the case. But in terms
of considering the present statutory application, it is significant that what
the accused has to show, on the balance of probabilities, is that there was no
likelihood that he would drive. As the sheriff
noted in the first appeal, this is a formidable hurdle for the defence in any
case. What section 5(2) does not mean is
that the accused merely has to prove that there was a possibility, or even a likelihood,
that he would not drive. Nor is the test
whether the accused was more likely to drive than not. On the other hand, the accused may not have
to exclude the possibility that he might drive;
that could set too high a test. That
possibility will often be present, and is not necessarily inconsistent with a
successful defence. Against the
background of these general considerations, it is perhaps not helpful to
provide any further description of what is meant by the phrase "no likelihood
of driving." Within the context of the
ordinary meaning of those words, it will be a matter of fact and circumstances
in each individual case as to whether the court can reach that particular
conclusion. It is clear however that the
test which Parliament had in mind in relation to this defence is a high one.
[12] What in
practice the court will have to do therefore, is to come to a view, on all of
the evidence before it, as to whether the appellant has shown, on the balance
of probabilities, that at the time of committing the offence there was no
likelihood that he would have driven whilst he was still over the legal
limit. That exercise will normally involve
reaching a conclusion on proven facts as to what the appellant was likely to
have done. The distinction between
speculation and inference can be a narrow one, but it is unquestionably
legitimate and necessary, in considering this defence, for the court to examine
in a balanced manner all of the facts it finds proved, and to come to a clear
and logical conclusion as to what would have happened. It is particularly desirable in this kind of
exercise that the court should indicate precisely what facts are accepted and what
are not, the reasons why particular facts are accepted or rejected, and the process
by which the appropriate conclusion is drawn from the facts which are found to
be proved. In the absence of such a
comprehensive exercise, there will always be room for the claim that the
conclusions reached by the sheriff, in whole or in part, were a result of
speculation. In our view, in both cases,
the sheriffs have each correctly understood the appropriate test; the question remains as to whether or not
they can be said to have properly applied that test to the circumstances of the
cases before them.
[13] In the first
appeal, the normal parking spaces outside the appellant's own house had been
occupied and he had therefore to park his car a short distance away. As indicated earlier, he began drinking with
four companions at about
[14] Although the
sheriff was in our view plainly correct in his appreciation of the appropriate
test, we are not convinced that he correctly applied the test to the particular
circumstances of the case. The sheriff
notes all of the evidence favourable to the defence, and apparently does not reject
it. However, he observes that there was
no evidence of when, and by whom, the car would be eventually returned to its
usual parking place. He then concludes
that the possibility of the appellant returning the car to its normal place was
not excluded in the evidence.
Mr Keenan, for the appellant, argued that this was speculation, and
that in any event the possibility considered by the sheriff did not exclude a
concurrent view that the statutory defence could nonetheless be
established. Beyond that, the only
reason which the sheriff suggests for rejecting the appellant's considered
position that he would not have driven during the relevant period was that he
was very drunk. Having regard to the
nature of the offence, we do not consider that drunkenness by itself can, in
normal circumstances, be a sufficient reason for rejecting an accused's claim
that he would not have driven. Such a
condition would have to be linked to some other feature of the evidence, and
that could perhaps be the likelihood that a driver might want to reclaim a
favoured parking place. But that has to
be something more than a speculative possibility, and what is absent from the
sheriff's reasoning in this appeal is any assessment of the various likelihoods
presented by the evidence (see Brown
v Higson 2000
S.L.T. 994). As the prospect of the
vehicle returning to its normal place was only a possibility, and may to some
extent at least have been the product of conjecture, and as the only reason
given for rejecting the appellant's claim that he would not have driven was his
drunkenness at the time, we feel obliged to discount these matters, to give
effect to all of the other evidence accepted by the sheriff, find that the statutory
defence has been established, and quash the conviction.
[15] The second
appellant produced evidence that he had a practice of not taking his car into
[16] What the
sheriff did not do was to engage in a detailed and balanced assessment of the
evidence, indicating what he accepted and rejected, and producing an assessment
of whether or not the appellant had satisfactorily established the statutory
defence. But in effect he has achieved
the same result, albeit in a singularly compressed manner, by concluding that
because of the availability of his car and the extremely bad weather, there was
a likelihood he would have driven. That
is a conclusion on the facts he was plainly entitled to reach, and does not
appear to involve speculation on his part.
Further, he has come to the view that the likelihood of driving was
established in the face of the other evidence suggesting that the appellant
would not have driven. Accordingly,
while fuller and more detailed specification of the evidence and the sheriff's
reasoning will in most cases be desirable, we cannot find any reason to
interfere with the sheriff's decision in this case. The second appeal is therefore refused.
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APPEAL COURT, HIGH COURT OF JUSTICIARY |
|
|
Lord Wheatley Lord Reed Lord Carloway |
[2008] HCJAC 65Appeal No: XJ1034/07Appeal No: XJ646/08 OPINION OF LORD REED In Appeal By STATED CASE in the causes MAX LUDRIECUS Appellant: against PROCURATOR FISCAL,
EDINBURGH Respondent: and GORDON ORROCK Appellant: against PROCURATOR FISCAL, Respondent: _______ |
Act: Keenan, Solicitor
Advocate; Adams Whyte (for Ludriecus)
Alt: Brown, AD, Crown Agent
Act: McKenzie; Drummond Miller, Solicitors for Ward &
Co,
Alt: Beardmore, AD, Crown Agent
[17] I respectfully
agree with the reasons and conclusions of your Lordship in the chair. I wish, with some hesitation, to add a few
observations of my own, in view of the difficulty which, we were informed,
practitioners had experienced in understanding the meaning of section 5(2)
of the Road Traffic Act 1988.
[18] Like your
Lordships, I am alive to the dangers involved in paraphrasing statutory
language: it is the words which
Parliament has chosen which are authoritative, rather than any gloss placed
upon them by the court. Where, however,
Parliament uses an expression which is capable of bearing different shades of
meaning, and uncertainty exists as to the shade of meaning which was intended,
the court can properly interpret the provision in question. In doing so, it will inevitably resort to
other language to paraphrase the meaning of the provision, as a dictionary
does. Where the provision is one which
appears in a United Kingdom statute, and which has previously been interpreted
by appellate courts in the other jurisdictions of the United Kingdom, this
court will also treat those interpretations with great respect, since it is
undesirable that there should be conflicting decisions on the interpretation of
a provision which is intended to apply in the same way throughout the United
Kingdom.
[19] In the present
context, it is important to understand, in the first place, that the gravamen
of the offence of which the appellants were convicted, under
section 5(1)(b) of the 1988 Act, is being in charge of a motor
vehicle while unfit to drive. The
ingredients of the offence are (1) being in charge of (2) a motor
vehicle (3) on a road or other public place (4) after consuming so
much alcohol that the proportion of it in the person's breath, blood or urine
exceeds the prescribed limit. Having an
intention to drive, or being likely to drive, are not ingredients of the
offence. Being in charge of the vehicle
while over the limit is in itself criminalised.
[20] Parliament's
intention in creating that offence was explained by Lord Bingham of
Cornhill (with whose reasoning the other members of the House agreed) in Sheldrake v Director of Public Prosecutions [2005] 1 AC 264 at
paragraph 40:
"There is an obvious risk that if a
person is in control of a car when unfit he may drive it, with the consequent
risk of causing death, injury or damage already noted. That is why it has been made a criminal
offence to be in charge of a car in that condition. Taylor LJ was right in Director of Public Prosecutions v Watkins [1989] QB 821 at
p.829) that 'the mischief aimed at is to prevent driving when unfit through
drink.'"
[21] Section 5(2)
however provides a defence to an accused person who can prove that, at the time
he is alleged to have been in charge of the vehicle while over the limit,
"the circumstances were such that
there was no likelihood of his driving the vehicle"
while he remained over the limit.
[22] As your
Lordship has observed, words such as "likely" and "likelihood" can have
different shades of meaning, depending on the context. In the present context, the critical
consideration is the intention underlying the offence created by
section 5(1)(b), to which section 5(2) provides a defence. As Lord Bingham stated in Sheldrake (ibid):
"The defendant can exonerate himself
if he can show that the risk which led to the creation of the offence did not
in his case exist."
"No likelihood" cannot, in this context, mean "a probability
of less than 0.5", since the defence could then be established in
circumstances where there remained a substantial risk that the person would
drive the vehicle while unfit: the very
risk which led to the creation of the offence in section 5(1)(b). At the same time, particularly in the context
of a criminal provision, "no likelihood" should not be interpreted as meaning
"a probability of nil", since the offence could then be committed
notwithstanding that the risk of the person driving while unfit was fanciful or
theoretical. That conclusion is supported
by the ordinary use of "no likelihood" in everyday speech, where it usually
carries a meaning similar to "no real risk" (e.g. "I can leave my umbrella at
home today since there is no likelihood of rain"). Like Clarke LJ in Sheldrake in the
[23] It is for the
accused person to establish, on a balance of probabilities, that there was at
the material time, no likelihood of his driving while unfit (Sheldrake). Whether he has succeeded in doing so is a
matter for the assessment of the sheriff on the evidence before him. In the case of the first appellant, the
sheriff appears to have rejected the defence under section 5(2) because
the appellant had not excluded the possibility that the vehicle might have been
returned by him to its usual parking space outside the family home, in the
event that that space became free while the appellant remained over the
limit. So far as appears from the
sheriff's findings, however, there is nothing to indicate that that was a real
risk, rather than a remote possibility.
In the case of the second appellant, on the other hand, the sheriff
found that he was asleep behind the wheel, with the key in the ignition, while
it was raining heavily. Although the
appellant did not usually take his car into
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APPEAL COURT, HIGH COURT OF JUSTICIARY |
|
|
Lord Wheatley Lord Reed Lord Carloway |
[2008] HCJAC 65Appeal No: XJ1034/07Appeal No: XJ646/08 OPINION OF LORD CARLOWAY in Appeal by STATED CASE in the causes MAX LUDRIECUS Appellant: against PROCURATOR FISCAL,
EDINBURGH Respondent: and GORDON ORROCK Appellant: against PROCURATOR FISCAL, Respondent: _______ |
Act: Keenan, Solicitor
Advocate; Adams Whyte (for Ludriecus)
Alt: Brown, AD, Crown Agent
Act: McKenzie; Drummond Miller, Solicitors for Ward &
Co,
Alt: Beardmore, AD, Crown Agent
[24] I agree with
your Lordship in the chair that, for the reasons which you have given, the
appeal of Mr Ludriecus must succeed and that of Mr Orrock must fail.
[25] In order to
prove the statutory offence, the crown must demonstrate, beyond reasonable
doubt, that the accused person was in charge of a car, which was on a public
road, when over the legal alcohol limit. If, nevertheless, the defence prove, on the
balance of probability, that, at that time, there was "no likelihood of his
driving" the car whilst over the limit, the prosecution will fail. The test is simply one of whether there was "no
likelihood of his driving". Reformulations
or interpretations of it using other words are only apt to confuse, since they
will almost inevitably convey a different meaning from that intended by
Parliament, when it selected the precise words of the statute. The accused person must do more than
demonstrate that he was unlikely to drive. But he does not have to prove that there was
no possibility of him driving. Within
these parameters, it will be a matter of fact and degree whether the defence
has been made out. In the context of a
stated case, it will normally be incumbent for the Sheriff to make a specific
finding-in-fact on the issue of the statutory defence and, if the decision on
that defence is challenged in the application, to explain adequately the basis
for that finding.