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You are here: BAILII >> Databases >> Scottish High Court of Justiciary Decisons >> Hutcheson v. Procurator Fiscal [2004] ScotHC 30 (21 May 2004)
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Cite as: [2004] ScotHC 30

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Hutcheson v. Procurator Fiscal [2004] ScotHC 30 (21 May 2004)

APPEAL COURT, HIGH COURT OF JUSTICIARY

Lord Macfadyen

C.G.B. Nicholson, Q.C.

 

 

 

 

 

 

 

 

 

 

Appeal No: XJ1011/03

OPINION OF THE COURT

delivered by LORD MACFADYEN

in

APPEAL AGAINST SENTENCE

by

BRIAN HUTCHESON

Appellant;

against

PROCURATOR FISCAL, Airdrie

Respondent:

_______

 

 

Appellant: McBride, Q.C.; Balfour & Manson

Respondent: Miss Hughes; Crown Agent

21 May 2004

 [1]      On 28 April 2003, the appellant, Brian Hutcheson, pled guilty at Airdrie Sheriff Court to a contravention of section 5(1)(a) of the Road Traffic Act 1988. The proportion of alcohol in his breath was 89 microgrammes of alcohol in 100 millilitres of breath. The appellant had a previous conviction for contravention of section 5(1)(a). The date of that conviction was 9 November 2000. Consequently, the sheriff was obliged by the terms of section 34(1) and (3) of the Road Traffic Offenders Act 1988 to order that the appellant be disqualified from holding or obtaining a driving licence for a period of not less than three years, unless for special reasons she thought fit to order that he be disqualified for a shorter period or not to order him to be disqualified.

[2]      The sheriff heard a proof on the question of whether there were special reasons for not ordering the appellant's disqualification for a period of three years. She held that special reasons had not been made out. She therefore disqualified the appellant for three years, and in addition imposed a fine of £300. The appellant challenges only the length of the disqualification.

[3]      The circumstances in which the offence was committed are partly the subject of a Joint Minute, which was laid before the sheriff at the proof. In paragraph 1 of the Joint Minute it was agreed that on 9 October 2002 in Cumbernauld Road, Muirhead, the appellant drove a motor car after consuming so much alcohol that the proportion of alcohol in his breath was 89 microgrammes of alcohol in 100 millilitres of breath. There was further agreement about the circumstances in which that came about. The agreement may be summarised as follows. At about 22.35 hours two uniformed police officers were on mobile patrol in a marked police vehicle at the locus. Opposite an Indian take-away establishment, the appellant's (or rather, his girlfriend's) car was parked partly on the northern pavement and partly on the road, and was facing east. Its near-side wheels were on the pavement, and its off-side wheels were immediately adjacent to the kerb stone. The appellant was standing beside the driver's door of the car. One of the police officers asked him if the car belonged to him. He said that it did. Thereafter the police officer "requested that the [appellant] remove the vehicle from the public footpath as it was causing an obstruction" (Joint Minute, paragraph 4). The appellant apologised to the police officer, explained that he had been attempting to obtain a take-away from the nearby Indian restaurant, and stated that he would move the vehicle. The appellant, who was in possession of a set of keys for the car, then entered the driver's seat and drove the car a distance of approximately 40 metres to the opposite side of the street. Thereafter the police officer drove off, but then turned and parked behind the appellant's car. He spoke to the appellant, became aware of a smell of alcohol from his breath, and asked if he had been drinking. The appellant admitted that he had. The breath testing procedure was then carried out with the result recorded in paragraph 1 of the Joint Minute.

[4]      Further information about the circumstances was provided in the evidence which the sheriff heard from the appellant, his girlfriend, Carol Wright, and his son, Callum Hutcheson. In the sheriff's report it is narrated that the appellant is forty years of age, and is a prison officer with thirteen years service. He had been drinking alcohol on the evening in question, and (rightly, as the subsequent breath test showed) was concerned that he was over the permitted limit for driving. Mrs Wright had also been drinking, but felt that she was fit to drive, and therefore drove to Muirhead, where she parked in the position described in the Joint Minute. The appellant and his son went to the Indian restaurant. Mrs Wright went to buy cigarettes in a nearby shop. The appellant and his son placed their order, then returned to stand beside the car while their food was prepared. While they were there, the encounter with the police, described in the Joint Minute, took place.

[5]      The appellant gave evidence that his impression was that the police officer wanted the car moved there and then. According to the sheriff's report, when it was put to the appellant in the course of cross-examination that he could simply have said that his girlfriend was driving, he said, "I felt they wanted it moved there and then and my girlfriend had had a couple of drinks less than me and the easiest thing was for me to drive the car." His position, however, was in effect that he had been instructed, rather than merely requested, by the police officer to move the car, and that he understood that he was required to do so immediately. The appellant's son gave evidence that he felt the police officer wanted the car moved immediately.

[6]      On the appellant's behalf it was submitted before us that there were two bases on which the sheriff had erred in failing to find special reasons for not disqualifying the appellant for three years. As formulated in the written submissions these were:

 

"1.

The Appellant was following the instructions of a Police Officer to remove his vehicle from an illegally parked position on the road; and
 

2.

The shortness of the distance the Appellant drove to follow said instruction."
[7]      In his oral submissions before us, Mr McBryde, who appeared for the appellant, elaborated both of the propositions advanced in the written submissions. He argued in the first place that the fact that the appellant had only driven when instructed to do so by a police officer was, by itself, sufficient to amount to a special reason for not imposing three years' disqualification. He submitted that the sheriff had fallen into error in placing too little weight on what he described as the unchallenged evidence (1) that the appellant and his son viewed the police request as an instruction which was to be acted on immediately, and (2) that the alternative driver, Mrs Wright, was not present at the locus and was therefore not available to carry out the instruction to remove the car immediately. Mr McBryde referred to R v McIntyre 1976 RTR 330 and De Munthe v Stewart 1981 RTR 27.

[8]      The second branch of Mr McBryde's argument was that special reasons were to be found in the short distance for which the appellant drove and the absence of any danger in the circumstances in which he had done so. The road was quiet and there was no danger to other road-users. The sheriff had misdirected herself in saying that there was always potential danger when a car was driven on the wrong side of the road. There was no such danger when there was no on-coming traffic. Mr McBryde referred to Lowe v Mulligan 1991 SCCR 551, in which various formulations of the considerations to be taken into account in deciding whether special reasons were established were considered. In that case special reasons were held established where the appellant drove his car twenty-five yards, from a position in which it would have become a hazard to a car park. Mr McBryde accepted, however, that the fact that a car was in an inappropriate position would provide special reasons only where there was acute danger. As we understood him, he accepted that while the appellant's car was inappropriately and possibly illegally parked, and was obstructing the footpath, there was nothing to indicate such acute danger as to amount by itself to a justifiable reason for him to drive while intoxicated. He came, therefore, to rely again on the police request or instruction as providing such justification. He submitted that, if he was wrong that the police request amounted to an instruction which by itself constituted special reason, the request nevertheless could be regarded as a sufficient justification to amount to special reasons when taken in conjunction with the shortness of the distance driven and the absence of danger involved in the manoeuvre.

[9]      In our opinion the first branch of the appellant's argument fails. It depends on the view that the police officer's request that the car be removed was tantamount to an instruction to remove it immediately. The Joint Minute records no more than that the police officer "requested" removal of the car. The elevation of that request to the status of an instruction requiring immediate compliance depends on the view taken of the evidence of the appellant and his son. The sheriff states in her report that she did not believe that evidence. She points out that the appellant knew that Mrs Wright was nearby, and states that she concluded, in the light of his evidence, that the appellant deliberately chose to drive. We do not consider that we can say that the sheriff was not entitled to disbelieve that aspect of the appellant's evidence. While we accept that there may be circumstances in which a driver might become flustered when asked by the police to move a car, and as a result act on a request as if it were an instruction, there is no suggestion that that was so in the appellant's case. He is an experienced prison officer, and we see no sound reason why he should have felt unable to tell the police officer (a) that he was not driving, because he was unfit through drink to do so, and (b) that the driver was only a short distance away and would return soon. There seems to have been nothing in the circumstances to suggest that the removal of the car was a matter of urgency. Nor can it be supposed that the appellant thought that the police officer would have insisted that the appellant drive, if he had been told that he had been drinking. We accept that there may be circumstances in which the fact that a police officer has asked or instructed the appellant to move his car may go to support a case that there are special reasons for not disqualifying (De Munthe v Stewart; R v McIntyre), but whether it does so must in our opinion depend on the facts of the particular case. R v McIntyre is in our view clearly distinguishable, because there the instruction was given at a time when the police officer knew that the applicant had consumed alcohol. In De Munthe the defendant had been driving voluntarily before the request was made, and for that reason special reasons were not established. In our opinion, whether or not the appellant regarded the request as tantamount to an instruction, we see no reason why the appellant should not have pointed out to the police officer that he had been drinking, and that the driver was nearby and would return shortly. If that had been done, we have no doubt that the police officer would have been content to wait. We therefore do not consider that the mere fact of the police request sets up special reasons for not imposing three years' disqualification.

[10]      In our view the second branch of the argument also fails. We are inclined to think that the sheriff did overestimate the extent of the potential danger involved in the manoeuvre which the appellant undertook. It does not follow, however, that the shortness of the distance driven and the absence of danger by themselves support the conclusion that there were special reasons for imposing a shorter disqualification. The shortness of the distance driven and the absence of danger are no doubt relevant factors, but they are, in our view, unlikely to be sufficient by themselves. In Lowe v Mulligan the appellant was moving the car from a position of danger. Removal from a dangerous position may contribute an element of justification of the driving. It was not argued, however, that the place in which Mrs Wright had parked the car in the present case was dangerous, as distinct from illegal or inconvenient. Instead the justification was sought in the police request. As we understood the argument, it was that, even if the request was no more than that, and was not to be regarded as an instruction, it was sufficient to introduce an element of justification which, together with the short distance and lack of danger, added up to special reasons. We do not accept that argument. The reasonable response to the police request would, as we have already held, have been for the appellant to explain that he had been drinking, and that the driver was nearby. The availability of that response in our view elides the possibility of regarding the request as justification for the appellant's driving. In the absence of some form of justification, we consider that the shortness of the distance driven and the absence of danger are by themselves insufficient to make out a case of special reasons.

[11]      For these reasons we shall refuse the appeal.

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