R v Shoult
(1996) The Times, 23 January.
THE ANNOUNCEMENT
THE FACTS
THE LORD CHIEF JUSTICE, giving the judgment of the court, said that their Lordships took the opportunity to make some observations about sentencing in cases which involved driving with excess alcohol.
They did so because of concern which had been expressed (The Times January 10, p3) following the judgment of another constitution of the court R v Cook (Arthur Paul)(unreported August 7 1995).
Cook had been sentenced to two months imprisonment for driving with alcohol to which he had pleaded guilty. He had also admitted a charge of careless driving for which a separate penalty had been imposed. The lower reading of a breath test he had provided was 140 micrograms per 100 Millilitres There was much mitigation in his favour.
In quashing the two-month sentence and substituting a fine of £500, Mr Justice Sachs, who gave the judgment of the court, had said: "It can never be appropriate to send a man for this criminality, at the lower end of the scale as it is, to prison. There are other perfectly appropriate ways of dealing with people who drive with excess alcohol."
since the permitted limit of alcohol in the breath was 35 micrograms in 100 millilitres, it followed that Cook's figure of 140 was four times the permitted level. Accordingly the observations quoted above caused surprise and concern.
The Magistrates Association's "Suggestions for Road Traffic Offence Penalties", which was reproduced in Appendix 3 of Wilkinson's Road Traffic Offences (17th edition (1995) vol. 1, p1129), indicated that where the offender had 100 micrograms or more of alcohol in 100 millilitres of breath consideration should be given to imposing a custodial sentence.
Clearly, the higher the figure was above 100 micrograms, the greater the prospect and length of a custodial sentence. The high reading of 140 micrograms of alcohol in 100 millilitres of breath was off the top of the association's scale of suggestions for assisting penalties.
Having consulted the constitution of the court which had heard Cook, their Lordships were clear that there had been a misunderstanding about the effect of the figure as to the alcohol content of the breath sample.
Their Lordships wished to make clear that, whatever was the appropriate sentence in Cook having regard to his strong mitigation. the general observations of the court quoted above should not be followed. They were obiter and were based on the misunderstanding to which their Lordships had referred. The offending was not in fact at the lower end of the scale.
Their Lordships considered the guidelines as to penalties set out by the Magistrates Association were sound and appropriate, although, of course, each case had to be considered individually on its own merits.
THE DECISION
The Court of Appeal. Criminal Division, refused a renewed application by Short, against a 3.5 year sentence passed on a plea of guilty to causing death by careless driving when having consumed alcohol above the prescribed limit, analysis revealing 147 milligrams of alcohol per 100 millilitres of blood some two hours after the accident.
Clearly any driver with blood alcohol 4 times above the limit deserves a custodial sentence. This is not the first time the Lord Chief Justice has had to remind judges when sentences have been "Wholly inadequate", see The Times, 25 October 1994 where an article refers to a case of sentences being doubled by the Court of appeal.
Rob Jerrard