NG v DPP, Court of Appeal - Administrative Court, January 26, 2007, [2006] EWHC 36 (Admin)

Resolution Date:January 26, 2007
Issuing Organization:Administrative Court
Actores:NG v DPP
 
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Case No: CO/5387/2006

Neutral Citation Number: [2006] EWHC 36 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

(ADMINISTRATIVE COURT)

Royal Courts of Justice

Strand, London, WC2A 2LL

Friday 26th January 2007

Before :

THE HONOURABLE MR JUSTICE OWEN

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Between :

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(Transcript of the Handed Down Judgment of

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Mary Aspinall Miles (instructed by Shentons) for the Claimant

David Reid (instructed by CPS, Hampshire) for the Defendant

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JudgmentMr Justice Owen :

1. This is an appeal by way of case dated against a decision of district judge (MC) Babington-Browne sitting in the Basingstoke Magistrates Court on 11 April 2006.

2. The facts that gave rise to the hearing on 11 April 2006 can be simply stated. On 5 September 2005 the appellant was charged with driving a motor vehicle on Andover Road, Winchester having consumed excess alcohol contrary to Section 5 (1)(a) of the Road Traffic Act 1988. A breath specimen provided by the appellant showed that his breath contained 53 micrograms of alcohol per 100 ml of breath, the legal limit being 35 mcg. On 12 January 2006 he pleaded guilty to the offence. On 11/4/2006 the district judge heard legal argument as to whether it was open to the appellant to argue that there were special reasons within the meaning of Section 34(1) of the Road Traffic Offenders Act 1988 (the Act), why the court should not impose the obligatory disqualification from driving that will ordinarily follow conviction for an offence under Section 5(1)(a). It was submitted on his behalf that the intoximeter reading was affected by eructation, belching in common parlance, during the procedure. It was further submitted that if the reading was artificially inflated by eructation, that could as a matter of law amount to a special reason for not disqualifying.

3. The district judge found that:

a) ``The presence of elevated mouth alcohol cannot amount to a special reason because it is connected to the offender and not the offence.

b) As this essential component of the special reasons argument as outlined in R v. Wickens (1958) 42 Cr App 236 and approved in Whittall v. Kirby [1946] 2 All ER 552, was not present, the appellant was not entitled to adduce evidence...

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