PART A
Question A-2.
How long should a police force keep information on a computer about an individual when the information kept has not led to a conviction?
1. Source Used:
Electronic Sources-Westlaw UK.
2. My research route was:
Westlaw
Welcome to Westlaw UK
Case Locators -Search by term (s) “Data Protection and Police Records”
Clicked Go
6 hits
4th hit-R v. Chief Constable of Greater Manchester, Ex.p. Cooms 2000 WL 877768
NOTE: On Lawtel “Data Protection and Police Records” produces 3 hits;
And 2nd hit – R v. The Chief Constable of The Greater Manchester Police Ex Parte. Christopher John Cooms 2000.
3. I know that my material was up to date because:
No red flag visible. Therefore, case still valid. Westlaw updated daily 3 times. Research is undertaken on 25-02-2004.
4. Answer:
Police force can keep information 42 days on a computer about an individual when the information kept has not led to a conviction as is described in details as follows:
The records are held both in paper and in electronic form. This case is focused on the latter category and at the relevant time data of that kind fell under the terms of the Data Protection Act 1984, the 1984 Act. Although the 1984 Act has been repealed and replaced by the 1998 Act, it is sensible for the purposes of the present case to refer to the provisions of the earlier act.
The 1984 Act sets out certain data protection principles in Schedule 1, part 1. It includes two principles, which are of particular relevance for present purposes.
Number 5: “Personal data shall be accurate and, where necessary, kept up to date.”
And number 6: “Personal data held for any purpose or purposes shall not be kept for longer than is necessary for that purpose or those purposes.”
Annex A to Home Office Circular 47 of 1993 gives guidance to police forces in dealing with police checks in respect of persons covered by the screening arrangements.
Annex A says this:
“The police check will be made against national and local police records. The national records include details of persons convicted of reportable offences and persons who have been prosecuted for such offences.”
The guidance continues:
“Depending on the policy of the police force concerned, local police records may contain details of: convictions for certain minor offences; cautions; bindovers, including those where there has been no conviction, and other relevant factual information which the police would be prepared, if necessary, to present as evidence before a court or tribunal. This may include information about acquittals or decisions not to prosecute where the circumstances of the case give cause for concern.”
The advice set out in the circular is plainly sensible and is, in general terms, further developed in detail in the Association of Chief Police Officers’ Code of Practice on Data Protection 2002. The Data Protection Registrar endorses the Code in a foreword. Under section 36, sub-section 1, of the 1984 Act:
“It shall be the duty of the Registrar so to perform its functions under this act as to promote the observance of the data protection principles by data users and persons carrying on computer bureaux.”
Dealing with principle 6, the Code of Practice says this about retention of data in respect of acquittals or discontinued cases without caution at paragraph 12:
Except in circumstance mentioned in paragraph 13 below, details of acquittals, or of cases discontinued without caution may not be retained beyond 42 days after the notification (this period is to allow for the appeals process and for the destruction of fingerprints to be synchronised with deletion of data on the computer record, this will not affect the retention on the record, of any details of conviction, cautions, or other disposals.
13. In cases detailed at 13.1 and 13.2 acquittals and discontinued cases must be retained.
13.1 Acquittal for an offence of unlawful sexual intercourse by a male with a female less than sixteen years of age must be retained. Details will be deleted when a male reaches twenty four years (Section 6 (3), Sexual Offences Act 1956)
13.2 Acquittal in cases where possession of stolen property can be proved, but insufficient ‘mens rea’ on that occasion to convict-details will be retained for a period of 1 year from the date of charging for use as special evidence (section 27 (3), Theft Act 1968) in any subsequent hearing for an offence of handling stolen goods.
Question A-3
Ian was driving his car on 13th December 2003. He pulled over and parked in a lay-by and sent a text message to his wife. Is Ian guilty of an offence?
1. Source Used:
a) Paper Source-Blackstone’s Criminal Practice 2004
b) Electronic Sources-Lawtel, Butterworths Law Direct and Westlaw UK
2. My research route was:
a) Blackstone’s Criminal Practice 2004
Index
Driving meaning, C 1.8
b) Lawtel and Butterworths Law Direct
Lawtel (Driver)
Search term “Mobile and Road”
Selected relevant checkbox Statutory Instruments
5 hits
Clicked on 2nd hit “The Road Vehicles (Construction and Use) (Amendment) (No. 4) Regulations 2003”
Clicked on Enabling Act: “Road Traffic Act 1988, s41 (1) (5)”
Clicked on “Original Full Text”
s 192 General Interpretation of Act
Lawtel (The Road Vehicle Regulations)
Search term “Mobile and Road”
Selected relevant checkbox Statutory Instruments
5 hits
2nd hit The Road Vehicles (Construction and Use) (Amendment) (No. 4) Regulations 2003
Clicked on “Full Text”
Butterworth’s Direct (lay-by)
Legislation Direct
UK Statutes
Search Using -Normal
Typed in Find box – “drive* or park* or lay-by
Clicked on 1hit “Sl 2002/3113 Traffic Signs Regulations and General Directions 2002”
Clicked on “Regulation 31 Illumination of road markings”
Regulation 26 Road markings shown in diagrams 1013.1, 1013.3 and 1013.4: double white lines.
3. I know that my material was up to date because:
a) Latest edition 2004.
b)Lawtel and Butterworths Law Direct
Lawtel (driver): Checked it on the Westlaw legislation as this updated on a weekly basis. No change. Research was undertaken on 25-02-04.
Lawtel (The Road Vehicle Regulations):
Checked Westlaw nothing relevant found.
Checked Butterworths Legislation Direct. There was nothing relevant in the “updating” frame. Research was undertaken on 25-02-04. This service is updated on a daily basis.
Butterworth’s Direct (lay-by)
Legislation Direct updated daily basis. Research was undertaken on 25-02-04. Information current on 25-02-04. No further updating required.
4. Answer:
Ian will not be held guilty due to texting a message to his wife while his car was parked in a lay-by; the reasons are given as follows:
Firstly, it was clear from the facts that Ian was not driving while he was using his mobile to text a message to his wife. The meaning of both “driving” and “driver” defined by the ss. 163 and 192 of the Road Traffic Act 1988, which is as follows:
A person in the driver’s seat of a stationary vehicle who turned on the engine and put his hand on the steering wheel could not be a person driving a motor vehicle within the Road Traffic Act 1988, s. 163.
Road Traffic Act 1988, s 192 General interpretation of Act.
(1) In this Act… “driver” where a separate person acts as a steersman of a motor vehicle, includes (except for the purposes of section 1 of this Act) that person as well as any other person engaged in the driving of the vehicle, and “drive” is to be interpreted accordingly, …….
Secondly, the court would take the view that the current case would be exempt from the requirements of The Road Vehicles (Construction and Use) (Amendment) (No. 4) Regulations 2003 as Ian was not driving while he was sending a text message to his wife. These regulations amend the Construction and Use Regulations 1986 by inserting a new regulation 110, which comes into force on 1st December 2003.
Regulations 110(1) and (2) prohibit a person from driving, or causing or permitting a person to drive, a motor vehicle on a road if the driver is using a hand-held mobile telephone or similar device. Regulation 110(4) provides a definition of devices that are considered similar to hand-held mobile telephones for the purpose of these regulations. This definition excludes two-way radios. Regulation 110 (6) (c) (i) defines “interactive communication function”.
Amendment of the Road Vehicles (Construction and Use) Regulations 1986
The Road Vehicles (Construction and Use) Regulations 1986 (2) are amended by inserting after regulation 109-
“Mobile telephones
110.-(1) No Person shall drive a motor vehicle on a road if he is using-
(a) a hand-held mobile telephone; or
(b) a hand-held device of a kind specified in paragraph (4).
(4) A device referred to in paragraphs (1) (b), (2) (b) and (3) (b) is a device, other than a two-way radio, which performs an interactive communication function by transmitting and receiving data.
(6) For the purposes of this regulation-
(a) a mobile telephone or other device is to be treated as hand-held if it is, or must be, held at some point during the course of making or receiving a call or performing any other interactive communication function;
(c) “interactive communication function” includes the following:
(i) sending or receiving oral or written messages;
Finally, lay-by is a part of the road, which is clear from the general interpretation of the Road Traffic Act 1988, s 192. Furthermore, Traffic Signs Regulations and General Directions 2002 clearly indicate that it was not unlawful to park Ian’s car in a lay-by whilst sending a text to his wife.
Road Traffic Act 1988, s 192
(1) In this Act…
“road”
(a) in relation to England and Wales, means any highway and any other road to which the public has access, and includes bridges over which a road passes, and …..
Traffic Signs Regulations and General Directions 2002
Regulation 26 Road markings: double white lines
(1) A road marking for conveying the requirements specified in paragraph (2) and the warning specified in paragraph (7) shall be the size, colour and type shown in diagram 1013.1, 1013.3 or 1013.4
(2) The requirements conveyed by a road marking mentioned in paragraph (1) shall be that-
(a) subject to paragraph (3) and (5), no vehicle shall stop on any length of road along which the marking has been placed at any point between the ends of the marking; and ……..
(5) Nothing in paragraph (2) (a) shall apply-
(a) so as to prevent a vehicle stopping in a lay-by;
………
Question A-5
In a claim for damages arising out of a road traffic accident, is a submission of ‘no case to answer’, at the end of the Claimant’s evidence, normally appropriate?
1. Source Used:
Civil Procedure (c) Volume 1
2. My research route was:
Index
No case to answer, submission of- 32.1.6
3. I know that my material was up to date because:
Checked Second Supplement- nothing relevant.
Checked Wilkinson’s Road Traffic Offences and noter–up Service: no relevant changes found.
4. Answer:
It falls within the general rule that at the end of the Claimant’s evidence, in a claim for damages, arising out of a road traffic accident, the Defendant may submit that there is no case to answer. The submission may be made on grounds of law, fact or mixed fact and law. If the submission further succeeds, judgment may be given for the defendant without requiring him to present his case.
In criminal cases, the test for submission of no case to answer is whether realistically there is no basis upon which a jury could, properly directed, find in favour of the claimant on the evidence that he had adduced. Nowadays, as most of the civil cases are tried without a jury, the question is, in effect, “whether there was no such case for the judge to put to himself wearing his jury hat”(Bentley v. Jones Harris & Co (2001) EWCA Civ 1724. Therefore, the most likely basis for a submission of no case to answer, in accordance with the pre-trial case management procedures, is due to the unexpected weaknesses emerging from the presentation of the claimant’s case at trial, in particular weaknesses in the claimant’s evidence.
To listen to a submission of no case to answer, a judge is required to offer a choice to the defendant to elect whether or not to call evidence. The general, rule is that the judge should not permit a defendant to make such a submission unless he elects to rely on the submission alone and, whatever the outcome of the submission, he will call no evidence of his own. Therefore, where a defendant elects to call no evidence in regarding to make a submission of no case to answer the issue for the judge is not whether there was any real or reasonable prospect that the claimant’s case might be made out or any case fit to go before a jury or judge of fact. Rather, it is the straightforward issue, arising in any trial after all the evidence has been called, whether or not the claimant has established his case by the evidence called on the balance of probabilities (Miller v. Cawley (2002) EWCA Civ 1100.
Part B
Question-B2
1. Question of Law
a)Does Mr Jenkins have a valid claim in respect of the hire car charges?
b)If so, which of the recoverable heads of loss does this fall into?
c)How should the court calculate the rate of hire charges in relation to damages in tort?
d)How does the case law apply in the present case?
e)Does the law require gain to be balanced against loss in relation to Mr Jenkins case?
f)Did Mr Jenkins take reasonable steps to mitigate the loss?
g)Whether the loss of the higher car-higher charges was too remote?
2.Source Used:
Westlaw UK
3. My research route was:
Westlaw
Welcome to Westlaw UK
Case Locators -Search by term (s) “hire charges”
Clicked Go
20 hits
14th hit Burdis v. Livsey (2002) EWCA Civ 510 (2003) Q.B. 36 (2002)3 W.L.R 762 (2003) R.T.R. 3 (2002) Lloyd’s Rep. I.R. 524 2002 WL 498838 2002 WL 498838.
clicked 2003
Next Search
Westlaw
Welcome to Westlaw UK
Case Locators -Search by party name (s) “Lagden”
Clicked Go
4 hits
1st hit Burdis v. Livsey (2003) UKHL 64 (2003) 3 W.L.R 1571 (2004) 1 All. E.R.277 (2003) 153N.L.J 1869(2003) 147 S.J.L.B. 1430 Times, December 5, 2003 2003 WL 22769556 2003 WL 22769556
Clicked on 2003 WL 22769556
4. I know that my material was up to date because:
No red flag visible. Therefore case still valid. Westlaw updated daily 3 times. Research is undertaken on 25-02-2004.
5. Answer:
a) Does Mr Jenkins have a valid claim in respect of the hire car charges ?
It is clear that there was nothing wrong with entering or attempting to enter, in the absence of an improper motive, into a transaction which was exempt from the Consumer Credit Act 1974 as stated in Burdis v. Livsey (2002) AC. The only question for the court would be whether the agreements were exempt or regulated; that the documents showed an intention to create genuine insurance arrangements, in that there was an assumption of risk by the underwriters as to the solvency of the Advent Car Hire. Therefore, Mr Jenkins would have a valid claim under the policy for the cost of hire car charges if no payment was made by the insurers, who would be legally be enforced to make payments, which would discharge Mr Jenkins’ debts to Advent.
b) If so, which of the recoverable heads of loss does this fall into ?
The damage to Mr Jenkins’ car led to two heads of recoverable loss. First, there was the physical damage to the car. The car was not a right off. It was repairable and the measure of the recoverable damages for this head of loss was accepted by the Easyterm House. There is no issue about this. Secondly, there was the loss of use of the car. Mr Jenkins was unable to use his car for the three weeks while a damaged car was undergoing repair. Therefore, he was entitled to damages as compensation for that inconvenience, although there was no evidence that he would have suffered financial loss as a result of being unable to use his car during this period. But inconvenience is another form of loss for which, in principle, damages are recoverable. So it was open to him, as it is to any other motorist, to avoid or mitigate that loss by hiring another vehicle while his own car was unavailable to him. The expense of doing so will then become the measure of the loss, which he has sustained under this head of his claim and will be substituted for his claim for loss of use by way of general damages. Even if he had not hired a substitute vehicle, he would still have been entitled to general damages.
c) How should the court calculate the rate of hire charges in relation to damages in tort ?
It should be noted, that in Burdis v. Livsey (2002), the correct measure of loss was identified in three ways. First, to break down the charge made by the accident hire car providers so as to enable the unrecoverable element to be stripped out. This was in theory an acceptable solution, but was rejected as being too cumbersome and expensive in hostile litigation as it would entail detailed disclosure and analysis in thousands of small cases. The second approach was to apply a “reasonable discount” to the rate charged which would by its nature be somewhat arbitrary. It does not satisfy that it appropriates in the absence of agreement between the parties or without cogent evidence as to what the discount should be. Further, once the courts start applying a particular discount the total charge may be increased. The third solution was to look at actual locally available figures. That leads to the difficulty of deciding what figures should be taken and from where. Should the highest figure be taken or the lowest or an average?
It was further considered that the fundamental principle is that a person whose car has been damaged is entitled to compensation for the loss caused. In a case where such loss includes loss of use and he establishes a need for a replacement, he is entitled to the cost of hiring a replacement car. He can go round to the nearest car hire company and is prima facie entitled to recover the amount charged whether or not the charge is at the top of the range of car hire rates.
Therefore, it is clear that the right against the wrongdoer is for a restitutio in integrum, and this restitution he is bound to make without calling upon the party injured to assist him in any way whatsoever. The principle which emerges from this passage is that it is not open to the wrongdoer to require the injured party to bear any part of the cost of obtaining such indemnification for his loss as will place him in the same position as he was before the accident.
In this case, Mr Jenkins had no money and therefore could not afford to hire a car and it is reasonable to assume that he could not have obtained a loan to enable him to pay hire charges. He therefore could not obtain a replacement car without using Advent or a similar company’s credit hire schemes. Following, it should be noted that he was entitled to recover the reasonable costs of such a scheme. That was subject to the defendant showing that there were rival credit hire schemes, which charged less. If so, the amount recovered would be likely to be the lesser charge.
d) How does the case law apply in the present case ?
The set of issues which arises from the decision in Dimond v Lovell (2002) 1 AC 384 that only the spot rate of hiring an alternative vehicle is recoverable and not the higher rates charged by credit hire companies. The question is whether that decision applies in the present case where Mr Jenkins who, due to lack of funds or for any other reason which is reasonably foreseeable, had no option but to hire a car under the terms offered by Advent. The court following the decision of Lagden v. O’Connor (2003) would be held that he was entitled to recover the full amount.
e) Does the law require gain to be balanced against loss in relation to Mr Jenkins case ?
It is foreseeable that Mr Jenkins would need another car whilst his was not available. It is further clear that he was not able to afford to hire a replacement car at commercial rates due to his unemployment for the last four months. He therefore had no alternative but to use Advent was the only way that was open to him to minimise his loss was by expending money which results may be in an incidental and additional benefit which he did not seek but the value of which can nevertheless be identified, although the sort of terms offered by Advent is not clear from the facts. Following, if the law requires gain to be balanced against loss in these circumstances, he will be unable to recover all the money that he had to spend in mitigation. So he will be at risk of being worse off than he was before the accident. That would be contrary to the elementary rule that the purpose of an award of damages is to place the injured party in the same position as he was before the accident as nearly as possible.
f) Did Mr Jenkins take reasonable steps to mitigate the loss?
It is unlikely that there were any steps that were reasonable which would have mitigated Mr Jenkins’ loss, which did not involve paying the full cost of the scheme. It was not suggested he could have obtained a loan or that there was any cheaper way of obtaining a replacement car. It seems that the Advent charge was, to him, the cheapest way to remedy the loss. He was therefore entitled to recover the full cost of the scheme.
Mr Jenkins is further under a duty to mitigate and is not obliged to do that which he cannot afford to do: see Dodd Properties (Kent) Ltd v. Canterbury City Council (1980) 1WLR 433, 435. He had no choice but to purchase the terms offered by Advent scheme. As in Alcoa Minerals of Jamaica Inc v. Broderick (2002) 1 AC 371, he suffered one head of damage. His impecuniosity did not give rise to a head of damage and was something, which was reasonably foreseeable. Thus his measure of loss included a sum for loss of use of his car. He was under a duty to mitigate his loss, but did not have to do that which he could not afford to do: see the Dodd Properties case, at p 453d. He could afford to use the services of Advent and their costs were recoverable provided Mr Jenkins acted with commercialprudence.
g) Whether the loss of the higher car-higher charges was too remote ?
The correct test of remoteness today is whether the loss was reasonably foreseeable. The wrongdoer must take his victim as he finds him: talem qualem, as Lord Collins said in the Clippens Oil case (1907) AC 291, 303. This rule applies to the economic state of the victim in the same way as it applies to his physical and mental vulnerability. It requires the wrongdoer to bear the consequences if it was reasonably foreseeable that the injured party would have to borrow money or incur some other kind of expenditure to mitigate his damages.
Lord Wright further reviewed the cases on remoteness of damage in Monarch Steamship Co Ltd v. Karlshamns OlJefabriker A/B (1949) AC 196, in which damages had been sought for breach of contract. He started his review by reaffirming the broad general rule that a party injured by the other’s breach of contract is entitled to such money compensation as will put him in the position in which he would have been but for the breach. He ended it with the propositions that the matters did not depend on the differences (if any) between contract and tort in that connection, that the reasonable contemplation as to damages was what the court attributed to the parties and that the question in such a case must always be what reasonable business men must be taken to have contemplated as the natural or probable result if the contract was broken.
On the other hand, the majority decision in Dimond v Lovell did not bar recovery on the ground that the incurring of the higher car-hire charges was not reasonably foreseeable but it barred recovery on the ground of law. If reasonable foreseeability had been the criterion, Mrs Dimond would have recovered the whole of the credit hire charges.
It therefore should be noted that if the loss of the physical damage of the car was within the contemplation of the defendant at the relevant time, the loss of use of the car must also have been within their contemplation.
It is, in conclusion, likely that there is strong case against the defendant to establish damages in respect of the hire car charges. Clearly, Mr Jenkins was unable to take any steps that were reasonable which would have mitigated his loss, which did not involve paying the full cost of the scheme. In fact, he has been unemployed for the last four months and there was no sign that he could have obtained a loan or that there was any cheaper way of obtaining a replacement car. Likewise, it seems that the Advent charge was, to him, the cheapest way to remedy the loss. Therefore, following the decision of Lagden v. O’Connor (2003), the court would be held that he was entitled to recover the full amount.
Question-B4
1. Question of Law
a) What are the offences Mr Franklin was charged with, under s5 Road Traffic Act 1988?
b) Was he attempting to drive?
(c) Was he in charge of the car while over the limit?
(d)Was the reading of his breath exceeded the prescribed levels?
(e)What are the possible defences available to Mr Franklin?
(e)What are the possible defences available to Mr Franklin?
2.Source Used:
(a)Blackstone’s Criminal Practice 2004 .
(b) Wilkinson’s Road Traffic Offences
3. My research route was:
Blackstone’s Criminal Practice For 5 (a, b & c).
Looked up “Alcohol concentration above prescribed limit” in general index .
Found “Road Traffic Act 1988, s.5, C5.19.
Next looked up “In Charge” for 5(c), C5.2.1.
Wilkinson’s Road Traffic Offences for 5(d)
To find 5(d) “was the reading of his breath exceeded the prescribed levels?” looked up “Alcohol levels” in general index.
Found “Alcohol levels”, 4.175-4.177.
Blackstone’s Criminal Practice For 5 (e & f).
Looked up “defences” in general index
Found “defences in C5.26 and other defences in c5.27”
Next looked up “Road Traffic Offences” in general index
Found “punishment”, C5.28.
`
4. I know that my material was up to date because:
5. Answer:
(a)What are the offences Mr Franklin was charged with, under s5 Road Traffic Act 1988?
Mr Franklin was primarily charged with two separate offences of driving under Section 5(1) Road Traffic Act 1988, (a) attempting to drive, and ( b) being in charge of a vehicle, each with an alcohol concentration above the prescribed limit in relation to his breath. Under s.5(1) it is an offence if a person –
(a) drives or attempts to drive a motor vehicle on a road or other public place, or
(b) is in charge of a motor vehicle on a road or other public place,
after consuming so much alcohol that the proportion of it in his breath, blood or urine exceeds the prescribed limit.
(b)Was he attempting to drive?
Prior to being charged Mr Franklin must have attempted to drive his car on a road or other public places, after consuming alcohol above the prescribed limit. In fact, he decided to drive home instead of waiting an hour and a half before a taxi was available. He then went down Market Road with a car key and tried to get into a red Honda Accord (which he thought was his car, but the key wouldn’t fit) instead of brown Honda Civic. Clearly, it shows that he attempted to drive a car. Therefore, it is likely that the court would find him guilty of an offence under s.5(1)(a) as this is one of the strict liability for which no ‘mens rea’ is required.
(c) Was he in charge of the car while over the limit?
The offence in legislation requires Mr Franklin to be “in charge” of a “motor vehicle” on a “road or other public place”. It therefore seems very relevant to consider the existing case law on these phrases to decide whether he was in charge of the car when arrested, having consumed alcohol and being ‘over the limit’. It was confirmed in Drake v. DPP (1994) RTR 411 that a person can be in charge of a motor vehicle when the vehicle is immobile. Lord Goddard CJ in Leach v. Evans (1952) 2 All ER 264 posed the question: if the motorist was not in charge of the van, who was? This principle was followed in Haines v. Roberts (1953) 1 WLR 309, where Lord Goddard CJ said (at p. 311):
It may be that, if a man goes to a public house and leaves his car outside or in the car park and, getting drunk, asks a friend to look after the car for him or to take it home, he has put it in charge of somebody else; but if he has not put it in charge of somebody else he is in charge until he does. His car is out on the road or in the car park-it matters not which-and he is in charge.
It was further made clear in DPPv. Watkins (1989)QB 821, that a person was in charge of a vehicle if he acted in a manner which showed that he had assumed control or intended to assume control of the vehicle preparatory to driving it. Following, the case law it is likely that the court would find him in charge of the car, although it is clear from the facts that he tried to get into a wrong car while his car was parked about 300yards away in Leinster Place.
(d)Was the reading of his breath exceeded the prescribed levels?
The “prescribed limit” is defined by s.11(2) as 35microgrammes of alcohol in 100ml of breath, 80mg of alcohol in 100ml of blood or 107mg of alcohol in 100ml of urine, or such other proportion as may be prescribed by regulations made by the Secretary of State. In this case, a Lion Intoximeter test was performed on Mr Franklin and the lowest of the readings was found 39 microgrammes of alcohol in 100 millilitres of breath while he was charged with an offence under s 5. Moreover, the police are generally entitled to proceed against Mr Franklin under s.5 if he exceeds the level 35 microgrammes in breath: Delaroy-Hall v. Tadman (1969) 2. Q.B.208.
In practice, on the other hand, a motorist who’s breathe reading is 39microgrammes or less will not be charged under s.5. In DPPv. Johnson (1995) 1 WLR 728, the Divisional Court held that the meaning of ‘consuming’ was sufficiently wide to cover ingestion other than by mouth and the important element of the offence was the concentration of alcohol in the driver’s body at the relevant time. The Chief Constables are independent of the Home Office, but usually are careful to follow the advice given by the Home Office and in Home Office circular 46/1983 it is stated:
To cater for those occasions where the machine may be reading high, albeit within this range (i.e. 32-38ug inclusive) the police will not proceed against the offender with a result less than 40ug.
It therefore ensures that the duty officer made a mistake by arresting and cautioning Mr Franklin on suspicion of an offence under s 5. Following the reasoning as given above, he may have exceeded the statutory limit on this occasion owing to the difficult time he was having domestically, but there was no reason for him to be charged in such a way.
(e)What are the possible defences available to Mr Franklin?
Firstly, S.5(2) gives Mr Franklin a defence to a charge under s.5(1)(b) ( in charge with excess alcohol level) if he can prove that, at the time he is alleged to have committed the offence, the circumstances were such that there was no likelihood of his driving the car whilst the proportion of alcohol in his breath remained likely to exceed the prescribed limit. It has been held, however, by a majority decision of the Divisional Court in Sheldrake v. DPP (2003) EWHC 273, that the reverse onus of proof imposed by s.5(2) on accused is an evidential burden of proof . Therefore, Mr Franklin once would raise the issue by pointing to some evidence that there was no likelihood of his driving whilst over the limit. For example, he tried to get into a red Honda Accord instead of brown Honda Civic, even which was not his car was a sign of how drunk he was.It would then be for the prosecution to prove to the criminal standard of proof that there was a real risk, in the sense of a risk that ought not to have been ignored, of his doing so.
Mr Franklin would next raise a defence that a motorist whose breath reading is 39microgrammes or less will not be charged in practice under s.5, although the statutory lower reading in breath is 35 microgrammes in 100 millilitres, which can be taken into account by the judges descretion.
(f)What are the possible punishments available if he is found guilty under S 5?
For offence of attempting to drive, the penalty is six months’ imprisonment and/or a fine up to level 5 on the standard scale. Disqualification and endorsement are obligatory unless there are ‘special reasons’, and the offence carries between 3 nad 11penalty points. The offence of being ‘in charge’ is punishable by imprisonment for up to three months and/or a fine up to level 4. Disqualification is discretionary; endorsement with 10 penalty points is obligatory.
It is highly likely that the court would consider its discretionary power to come with a concrete decision that it would be injustice to charge Mr Franklin under S 5 of the Act. Moreover, this case should be quashed on the ground that he may have exceeded the statutory limit on this occasion owing to the difficult time have been passing domestically, but there was no reason for him to be charged in such a way.