APPEAL COURT, HIGH COURT OF JUSTICIARY
	[2014] HCJAC 4
Lord Drummond Young Sheriff Principal Lockhart	Appeal No: XJ813/13   OPINION OF THE COURT   delivered by LORD DRUMMOND YOUNG   in   APPEAL AGAINST SENTENCE   by   JAMES ARTHUR   Appellant;   against   PROCURATOR FISCAL, HAMILTON   Respondent:   _______

 

Appellant: Freeman; Gilfedder & McInnes

Respondent: Rodger; Crown Agent

 

14 January 2014

[1] On 24 September 2013 the appellant was convicted after trial of a charge that on 22 February 2013, on Carlisle Road, Cleland, he failed without reasonable excuse to co-operate with a preliminary breath test in accordance with section 6 of the Road Traffic Act 1988, which test had been requested by a constable in uniform who reasonably suspected that he had been driving a motor vehicle on a public road while having alcohol or a drug in his body or being under the influence of a drug.

[2] Following a report of a disturbance at a public house, two uniformed police officers had attended at the locus. As they entered the car park of the public house, they required to carry out an emergency stop because the vehicle being driven by the appellant was attempting to leave, and because of the manner of his driving. His vehicle was stopped. The police officers noticed a strong smell of alcohol coming from him; his eyes were glazed and his speech slurred. When he alighted from his vehicle he was unsteady on his feet. He refused to provide the police officers with a specimen of breath as required by section 6 of the 1988 Act, despite being given three opportunities to do so. It was held by the sheriff that he had no reasonable excuse for such conduct.

[3] Samples of the appellant's breath were taken subsequently at the police station under section 7 of the 1988 Act. Owing to procedural irregularities, however, the sheriff held that these could not be used in evidence. Consequently a submission of no case to answer was upheld in respect of a contravention of section 5(1)(a) of the 1988 Act. The sheriff nevertheless convicted the appellant of a contravention of section 6(1).

[4] In determining sentence, the sheriff considered that he could take into account the circumstances surrounding the requirement to provide a specimen under section 6. These included the fact that the police vehicle required to carry out an emergency stop owing to the appellant's driving, the appellant's glazed eyes and slurred speech, and his unsteadiness on his feet. The sheriff was informed that the appellant had an HGV licence, which he required for his business. He had no analogous convictions. The sheriff nevertheless considered that a period of disqualification was appropriate, together with a financial penalty. The latter is not subject to appeal. The sheriff disqualified the appellant from driving for a period of 12 months. He considered that he could not take into account the breath readings obtained at the police station, which were almost three times the permitted level.

[5] On a contravention of section 6(1) of the 1988 Act, the specified penalty in relation to the accused's driving licence is the endorsement of four penalty points or a discretionary disqualification. In the present case the sheriff decided that, on account of the circumstances surrounding the offence, he should impose a discretionary disqualification. In support of the appeal, it was submitted that in the present case there were no aggravating features relating to either the offence or the appellant which made it appropriate to go beyond the imposition of four penalty points. A breath test under section 6 is carried out for indicative purposes only. In the event of failure to provide a specimen under that section, the police can arrest the suspect and take him to a police station, where a breath test can be carried out under section 7. Those procedures were not frustrated by the failure to provide a sample in accordance with section 6. Consequently the failure to provide a sample had had no significant practical effect. Furthermore, the appellant had no criminal record and no analogous drink driving related convictions. In these circumstances it was submitted that the sheriff misdirected himself by having regard to a factor that is not relevant to the offence actually charged, namely the seriousness of the circumstances that led to the request for a preliminary breath test. In addition, he had had insufficient regard to mitigating circumstances, namely the appellant's lack of record and the fact that he needed a licence for his business, and he had not had sufficient regard to the very limited function of the procedure under section 6.

[6] In our opinion the sheriff was fully entitled to look at the failure to take the section 6 breath test in isolation. It was obvious at the time when the test was requested that the appellant was seriously intoxicated; both his appearance and his conduct demonstrated that very clearly. In our opinion the sheriff was entitled to take account of those circumstances, which we consider highly relevant to the penalty imposed for any contravention of section 6(1). We note that the legislation requires a minimum of four penalty points on the accused's licence, but it also confers a discretion to disqualify the accused in appropriate cases. In our opinion this points to the relevance of factors other than the mere refusal to take the test. These obviously include the accused's criminal record, but in our opinion it is plainly intended that the sentencing sheriff should also be entitled to consider the full circumstances of the offence. If it is apparent that the appellant was very drunk at that time, we consider that that is a factor that may properly be taken into account.

[7] In the present case, that is precisely what the sheriff did. In the circumstances found by him, we are of opinion that the sheriff was fully entitled to exercise his discretion to disqualify the appellant, and that he exercised that discretion properly. This appeal is accordingly refused.