Smeaton v Harrow Crown Court [2007] EWHC 3142 (Admin) (09 July 2007)

Neutral Citation Number: [2007] EWHC 3142 (Admin) CO/9562/2006 IN THE HIGH COURT OF JUSTICE QUEEN'S BENCH DIVISION DIVISIONAL COURT Royal Courts of Justice Strand London WC2A 2LL 9 July 2007 B e f o r e : LORD JUSTICE HUGHES MR JUSTICE TREACY Between: ____________________ Between: SMEATON Claimant v HARROW CROWN COURT Defendant ____________________ Computer-Aided Transcript of the Stenograph Notes of WordWave International Limited A Merrill Communications Company 190 Fleet Street London EC4A 2AG Tel No: 020 7404 1400 Fax No: 020 7831 8838 (Official Shorthand Writers to the Court) ____________________ Mr Fidler Solicitor (instructed by Stephen Fidler & Co) appeared on behalf of the Claimant Mr P Wanchope (instructed by Crown Prosecution Service) appeared on behalf of the Defendant ____________________ HTML VERSION OF JUDGMENT ____________________ Crown Copyright © MR JUSTICE TREACY: This is a renewed application for permission to apply for judicial review. The decision under challenge is that of Harrow Crown Court, in particular on 27 October 2006, when Mr Recorder Goldberg QC was sitting with justices hearing an appeal from the Magistrates' Court. The finding of the Crown Court was that there were no special reasons of a sort which would avoid the mandatory disqualification flowing from a conviction for driving with excess alcohol. The offence was committed on 20 August 2005. The applicant pleaded guilty on 21 April 2006. The district judge adjourned the case for a special reasons hearing. On 21 July 2006 the District Judge at the magistrates' court rejected the applicant's assertion that there were special reasons. The applicant was disqualified from holding or obtaining a driving licence for a period 12 months and fined £330. The applicant appealed against the rejection of special reasons to the Crown court and the hearing took place on 27 October 2006. The applicant's case was that his drinks had been laced. If they had not been, the assertion was that he would have been below the prescribed level for alcohol in blood. The burden of proof was on the applicant on the balance of probabilities. The case of Pugsley v Hunter [1973] RTR 284 shows that it was necessary for the applicant to show first, that his drinks had been laced, and secondly that he did not know or suspect that his drinks had been laced, and thirdly, that if his drinks had not been laced he would have been below the prescribed limit. The applicant's case was that he had been drinking in a bar in Queens Park on the evening of 20 August 2005. It was a place that he regularly frequented. Having left those premises he was stopped by police for having gone through a red light. He was given a roadside breath test which proved positive. He provided two further samples at the police station, each of which read 54 micrograms of alcohol per 100 millilitres of breath, the legal limit being 35 micrograms. The applicant maintained that he had drunk two red-wine spritzers over the course of the evening and that he believed the quantities to be 175 millilitres of wine per pint glass, the rest of the glass being made up of ice and soda water. He said that was a regular drink of his. He claims that his drink had been spiked with double measures of wine, that is 350 millilitres of wine for each pint glass. This, he said, had been done by the barmaid. It was apparently done not out of malice but out of the goodness of her heart as some form of present to the applicant because he was such a nice person. He maintained that at all relevant times he had no knowledge of the fact that he had been supplied with a greater quantity of wine. His case was that had he received quantities in the measure which he normally drank his reading would have been below the 35 microgram limit. There was a report from expert consultants. Their initial report referred to the quantities of wine per pint glass as being 125 millilitres. It identified the applicant as being a man of 5 feet and 9 inches. A further report corrected the amount meant to have been put into each pint glass to 175 millilitres. Mr Smeaton's height was a matter which was in issue at the hearing at the Crown Court, the conclusion being that he was somewhat shorter than the 5 feet 9 inches referred to in the consultants' report. That had a bearing upon the calculations. The report showed that dependent upon the amount consumed, that is whether the amount of the pint was 125 or 175 millilitres, the applicant's reading could have been expected to have been either 27 milligrams or 34 milligrams, in either case lower than the prescribed threshold. The Crown in cross-examination raised a sceptical eyebrow as to the two different figures which had been submitted to the expert consultants. The applicant's response to that challenge was the assertion that there must have been some form of miscommunication between himself and his solicitors or his solicitors and the expert consultants. At the hearing the Crown Court received evidence from the applicant. It heard from the barmaid who was alleged to have been generous with the measures of wine unknown to the applicant. The court had before it the expert's reports already referred to. I turn to the grounds put forward in this case. Initially the applicant made his own substantial submissions in writing to the court. It is hard to define any tenable or coherent ground for those submissions but latterly Mr Fidler has been instructed and he submitted to the court a skeleton argument. I have to say that that written skeleton argument provided little or no improvement on the applicant's own grounds. It was hard to define any matter capable of being properly argued before this court from it. At this hearing this morning Mr Fidler has in effect abandoned that document and put forward arguments to us which do not appear in his skeleton argument and which he has developed briefly orally before us today. The arguments put forward appear to be two-fold. The first is a complaint that on examination of the transcript of the proceedings before the Crown Court, the Crown never in terms put to the barmaid or to the applicant that they were mistaken or lying in what they said. It is clear to me from the whole nature of the proceedings that they were proceeding on the basis that the Crown was not accepting the accounts being put forward, and raising a query about the assertions being put forward. The specific complaint arising from that is that the tribunal below should have given itself a Lucas direction. A Lucas direction involves a consideration of what innocent explanation inconsistent with guilt might arise from an admitted or an alleged lie told in the course of proceedings. In this case it is necessary to bear in mind what was taking place in the court below. The burden was on Mr Smeaton as the applicant to show that there were special reasons. If the evidence which he put forward in support of those special reasons was untrue then the only conclusion that could be drawn from that was that he was unable to establish special reasons. There could in these circumstances be no other sensible conclusion that could be drawn. It is utterly misconceived, in my view, for Mr Fidler to be advancing the proposition that the court should have administered to itself a Lucas direction in circumstances which are wholly different from those which obtain when a judge and jury are considering potential lies which arise in the course of a trial and which are relied upon by the Crown to prove guilt. This situation is first of all a very different one. Secondly no conclusion other than that the applicant had failed to establish his special reasons could possibly arise in the particular circumstances that we are considering. The other argument advanced to us by Mr Fidler relates to the fact that two different quantities of alcohol per pint were put to the consultant experts for their consideration. When the applicant was cross-examined about that he blamed miscommunication. The submission made to us by Mr Fidler is that the solicitors who acted for Mr Smeaton below who were not conducting the proceedings - counsel had been instructed - should have come forward in those proceedings if they were at fault for what had happened and made a clean breast of their mistake so as to avoid an injustice being done to the applicant. Nothing of that sort happened below. This, it seems to me, is an issue which is a trial issue. It is not an issue that is appropriate to come before the court by way of judicial review. There is nothing that the tribunal did in coming to its conclusions in relation to this aspect of the matter which can in any way be criticised. In effect it amounts to a complaint made on the assumption that the applicant's answer in cross-examination was truthful. It is very far from clear that the fault lay at their door. In any event, this issue does not arise as an arguable issue because the court's findings show that it was not persuaded that Mr Smeaton had been unwittingly given more drink than he intended to consume. For that reason the first stage of the special reasons process was found not to be satisfied and thus this current issue which is raised is irrelevant to it. I have read the transcript. The recorder conducted this hearing in a fair and balanced way. He showed considerable patience in the face of what might be thought to have been a ludicrously thin defence which piled coincidence upon coincidence in order to explain away the inconvenient evidence for this applicant that he was driving a vehicle at a time when he was well over the alcohol limit. I do not intend to prolong this judgment by referring to the matters clearly set out in the Crown Court's ruling which very clearly show why they disbelieved the applicant and his case and why they therefore found that there were no special reasons. The ruling shows no error of law. It shows sufficient and clear reasoning and this renewed application for permission should, in my view, be dismissed. LORD JUSTICE HUGHES: I agree. Thank you Mr Fidler. MR FIDLER: There is an application for funding assessment to take place. LORD JUSTICE HUGHES: You have legal aid. MR FIDLER: I have, yes. Lord Justice Laws adjourned this matter so that it could be looked into. LORD JUSTICE HUGHES: You want an order for detailed assessment. MR FIDLER: I do. LORD JUSTICE HUGHES: Yes, that must follow. BAILII: Copyright Policy | Disclaimers | Privacy Policy | Feedback | Donate to BAILII