|Can you always tell whether anything has been added to your drink?|
Monday, 22 February 2016
If a person is convicted of (or pleads guilty to) an offence of drink driving the court is required to disqualify them for a minimumof one-year (or three years if the person has a previous conviction within the past 10 years). However, the court candecide not to disqualify if there is a special reason. A common special reason is that a drink has been spiked (or laced if you prefer) with additional alcohol.
The law is relatively straightforward, the case of Pugsley v Hunter tells us that it is for the defendant to prove on the balance of probabilities, i.e. that what the defence says is more likely to be true than not.
Pugsley also gives us a test the court should apply when deciding whether there is a special reason, the three things the defence must convince the court of are that:
1. The drink was spiked;
2. The defendant did not know and had no reason to suspect his drink had been spiked; and
3. But for the additional alcohol the defendant would not have exceeded the drink driving limit at the time he drove.
So far so simple, but how do we prove any of those things? The best evidence is to get the person who spiked the drink to come to court. They rarely get into trouble because most of the time it is done by somebody who doesn’t realise the defendant would go on to drive or it happens inadvertently. If the spiker won’t come to court then we fall back on hearsay evidence – this is evidence that is not normally admissible but can be admitted if the court feels it is in the interests of justice of if the Crown agrees to it being given in court. In very rare circumstances it gets through the backdoor, e.g. in an expert report the prosecution don’t read properly and object to in time.
Evidence of whether the defendant knew or should have known his drink had been spiked can only come from him or her. Usually, the defendant should describe how the drink tasted compared to what he expected and what effect it had upon him after he drank it. It can often be helpful to make a comparison to another well-known drink, e.g. “the spiked drink would be 12% alcohol, so no stronger than an average glass of wine”.
Finally, the defence must prove that the defendant would not have exceeded the drink driving limit at the time he drove but for the additional alcohol. Pugsley v Hunter tells us that in most cases this must be done by expert evidence, the only exception is where it would be obvious to the layman that but for the additional alcohol he would not have exceeded the drink driving limit – such cases are very rare. The expert uses the Widmark formula to calculate the likely blood-alcohol concentration (often called “BAC”) both at the time of driving and at the time the police took their specimen. The additional calculation to the time of the specimen makes it very difficult for defendants to lie about their alcohol consumption and get the amounts correct – this is a fact that courts often fail to appreciate.
The law is reasonably simple in spiked drinks cases, the key is presenting the law in a clear and straightforward way, ensuring that the evidence is gathered correctly and put before the court in the best possible light to support your case. In that respect an expert solicitor who has experience preparing and presenting these cases is the most important thing any defendant can find for themselves.
Tuesday, 2 February 2016
|Should a judge reduce a driving disqualification if the defendant pleads guilty?|
In most cases, somebody who pleads guilty to an allegation will receive a reduction in the length of the sentence imposed upon them, this is because section 144 of the Criminal Justice Act 2003 requires the sentencing court to take into account when the guilty plea was entered and the circumstances of the plea.
Criminal solicitors often talk about a defendant being “entitled to a sentence discount” in return for a guilty plea, this is not a true reflection of the law but in practice most courts will give a reduction to most offenders.
As this is a blog dedicated to drink driving law, we should look at what happens in those cases specifically and what we find is that the courts have historically being reluctant to discount the disqualification portion of sentences imposed upon drink drivers. This is because many solicitors and judges consider the disqualification to be ancillary to the sentence rather than part of it.
I take the view that this approach is incorrect. While a driving disqualification can be an ancillary order, (e.g. section 301 Criminal Justice Act 2003 allows a court to impose a driving disqualification where somebody fails to pay their court fines) that does not mean that it must always be so. In this post I will set out the law both at home in England and Wales, in Scotland and the position according to the European Court of Human Rights .
First, if we look at the Road Traffic Offenders Act 1988, we find that Act gives the power to courts to impose penalty points and disqualification and it is worth noting that both powers are to be found in Part 2 of the Act, which is headed “SENTENCE”. This to my mind is a strong suggestion that Parliament intended the driving disqualification to be part of the sentence and not an ancillary order.
Secondly, we can look at the case of Gemmell v HM’s Advocate; this is a Scottish appeal case in which the court was asked to rule whether a driving disqualification and penalty points formed part of the sentence. Lord Justice Clerk headed a five judge panel and held, “[i]n my opinion, a period of disqualification from driving is a penalty… As such it is a ‘sentence… or other disposal or order.’” He went on, “I consider that sentence discounting applies also to the imposition of penalty points for road traffic offences… The imposition of penalty points is a form of order that falls within the ambit of section 196.” It should be noted that the court was considering the same Road Traffic Act and Road Traffic Offenders Act that is in force in England and Wales. Also, the section 196 that Lord Justice Clerk refers to is the Scottish law version of section 144 of the Criminal Justice Act 2003; the relevant sections, contain identical wording.
Lord Eassie expanded on Lord Justice Clerk’s view in the same case saying, “I… agree with the view which is held by your Lordship in the Chair that being banned from driving or receiving penalty points are not distinguishable in principle from sentences generally when questions of discounting arise. Being disqualified from driving is a restriction on the liberty which the offender would otherwise enjoy to drive a motor vehicle; commonly presents substantial inconvenience; and may have financial consequences including the loss of employment.”
Decisions by Scottish courts are not binding on those in England and Wales but, where such senior judges have provided such detailed and thought out opinions they should not be ignored, although they frequently are in certain magistrates’ courts.
To the best of my knowledge no English court has directly considered whether a driving disqualification imposed on a defendant convicted of drink driving should be subject to the reduction in sentence commonly given; however, the case of R v Geale gives the matter a passing thought. Geale is concerned with the sentence of a coach driver convicted of causing death by careless driving and whether a reduction in disqualification should be given if the driving disqualification is going to impact upon the offender’s livelihood. But, the court does say in passing (or “obiter” as solicitors prefer to say) that the purpose of disqualification is to protect the public from the risk of re-offending, “[h]owever, such risk is not the only relevant criterion… In addition, there is or maybe an element of punishment; as is apparent from the fact that, even where the future risk is nil, the statutory provisions require a 12 month minimum period of disqualification.” Although the court was talking about death by careless driving, the statutory provisions also require a 12 month minimum period of disqualification in drink driving cases.
Finally, when we look at the sentencing guidelines we see that the disqualification period is listed as part of the sentence and not under the section of the guideline that deals with ancillary orders.
Law from the European Court of Human Rights
The case of Welch v The United Kingdom involved a drug dealer attempting to convince the European Court of Human Rights that a confiscation order formed part of his sentence. He lost, but the court considered when a court order is a penalty rather than anything else - and, if it is a penalty, then it must follow that it forms part of the sentence imposed upon that individual.
First, they told us that a penalty is an “autonomous Convention concept”, which is to say that it does not rely on the domestic law of any of the Convention states, in other words it doesn’t much matter what domestic law thinks of the order in question. Secondly, the Court tells us that when deciding if a court order is a penalty the first thing you must consider is whether “… the measure in question is imposed following conviction for a ‘criminal offence’”. If it is then you consider other factors, such as:
· Nature and purpose of the order;
· It’s characterisation under national law;
· Procedures involved in marking and implementing the order; and
· It’s severity
In the case of a driving disqualification, there can be no dispute that a driving offence is a criminal conviction. What is the purpose of the disqualification? According to R v Geale the purpose of the disqualification is to protect other road users, but even the Court in Geale accepts that there is an element of punishment to the disqualification and Gemmell describes the disqualification as a deprivation of liberty. What is the procedure for making and implementing the order? The disqualification is imposed after conviction and during the sentencing portion of the case. The court hears mitigation and varies the length of the disqualification accordingly, just as it does with any other sentence. Once imposed, the disqualification is enforced through the immediate seizure of the defendant’s driving licence and the circulation of the disqualification to police forces nationwide. How severe is the sentence? In some cases, it will cost the defendant their job and their home; that seems pretty severe to me.
In Malige v France the European Court of Human rights considered whether the deduction of points (apparently in France a driving conviction loses you points rather than gaining them) amounted to a penalty. The Court echoed the thoughts of our own Court of Appeal in Geale when they said that, “… although the deduction of points has a preventive character, it also has a punitive and deterrent character and is accordingly similar to a secondary penalty. The fact that Parliament intended to dissociate the sanction of deducting points from the other penalties imposed by the criminal courts cannot change the nature of the measure.”
Based on Welch and Malige, we can see that the European Court of Human Rights views both driving disqualifications and the imposition of penalty points as part of the sentence imposed on a guilty defendant.
It is clear that the European Court of Human Rights views disqualifications and points as part of the sentence, just as the Scottish court of appeal did when they considered the same issue.
English courts have not explicitly said that driving disqualifications are part of the sentence or that they should be reduced after a guilty plea - and many magistrates refuse to believe that it is - but given the authorities from Scotland and Europe it seems inevitable that they will eventually have to accept that driving disqualifications can indeed be reduced.