Robinson v Director of Public Prosecutions

For an offence carrying obligatory disqualification, a defendant must prove any special reason on the balance of probabilities. A special reason must be a mitigating or extenuating circumstance directly connected with the offence and not amounting to a defence.

In a laced-drink case, the defendant must show that the drink was laced, that he or she did not know or suspect this, and that without the laced drink the prescribed limit would not have been exceeded. Where alcohol is being served and the defendant intends to drive, an assumption that a drink is alcohol-free without making reasonable enquiries may prevent any special reason being established. Even where a special reason exists, mitigation remains discretionary.

The claimant appealed by way of case stated from the decision of justices sitting at Thames Courthouse. He had pleaded guilty to driving with alcohol in his breath above the prescribed limit. He relied on a special reason, saying that he had unknowingly consumed alcoholic punch at a funeral gathering.

The justices accepted that he honestly believed the punch was alcohol-free and inferred that he was unaware of the alcohol before being stopped. They nevertheless found that he had made no enquiries about its contents and concluded that no special reason had been established. The questions concerned whether he was under a positive duty to enquire and whether the failure justified the decision.

1. Appeal dismissed with costs. The court answered both questions posed in the case stated in the affirmative.
2. Under section 34(1) of the Road Traffic Offenders Act 1988, disqualification was mandatory unless the court found special reasons and exercised its discretion to impose a shorter period or no disqualification. The burden of proving special reasons lay on the defendant.
3. Following Whittal v Kirby (1947) 1 KB 194, a special reason was a mitigating or extenuating circumstance, not amounting to a legal defence, directly connected with the commission of the offence and properly relevant to sentence.
4. The authorities established a three-stage requirement in laced-drink cases: the defendant must prove that the drink was laced, that he or she did not know or suspect that it was laced, and that without the laced drink the alcohol level would not have exceeded the prescribed limit. The court treated Director of Public Prosecutions v O'Connor [1992] RTR 66 as material guidance on those requirements and on the separate sentencing discretion.
5. Where alcohol is being served at a party, a driver who intends to drive must make reasonable enquiries before assuming that a drink is alcohol-free. A person who takes that risk without enquiry cannot establish special reasons merely because the assumption proves mistaken. The legislative purpose was to prevent driving above the prescribed limit, and mitigation required the driver to have done all that could reasonably be expected to avoid the risk.
6. R v Cambridge justices ex p Wong [1992] RTR 382 had limited value on these facts because it concerned cough medicine and the justices’ failure to consider a possible special reason.
7. Obiter, even if the claimant had been assured that the drink was non-alcoholic and had established a special reason, the readings might have justified the normal penalty if they were so high that he should have realised that he was unfit to drive.

• High Court (Administrative Court): The Divisional Court heard a defendant’s appeal by way of case stated from the justices’ decision of 21 August 2002 and dismissed the appeal with costs.