Grant v R; Lambe v Miller (Police Sergeant)

• Jurisdiction: Bermuda
• Judgment Date: 13 March 2012
• Date: 13 March 2012
• Docket Number: Appellate Jurisdiction 2011 No. 42
• Court: Supreme Court (Bermuda)

In The Supreme Court of Bermuda

Appellate Jurisdiction 2011 No. 42

Appellate Jurisdiction 2012 No. 8

BETWEEN:

Dean Allen Grant

Appellant

and

The Queen

Respondent

BETWEEN:

Derek Herman Lambe

Appellant

and

Fiona Miller (Police Sergeant)

Respondent

Mr M Daniels for the Appellant Grant

Mr Lambe in person

Ms N Smith for the Crown

Mr G Faiella for the Respondent Miller

The following cases were referred to in the judgment:

Cox and Dillas v RBDLR [2008] Bda LR 65

Whittall v KirbyUNK [1946] 2 All ER 552

R v Crossan [1939] 1 NI 106

R v Wickens [1958] Cr App R 236

Griffiths v DPP [2002] EWHC 792

Abstract:

Disqualification for drink driving offences - Special reasons - Consideration of personal circumstances

JUDGMENT of Ground CJ

1. These two appeals concern the same point. They first came before me sequentially on 17 February, and when it appeared that there was going to be a difference of approach between the two Crown Counsel I adjourned the matter for full consideration and argument. On the resumed date I heard them together.

2. The point is a short but important one. It concerns the meaning of "special reasons" in section 4 of the Traffic Offences (Penalties) Act 1976 ('TO(P)A'). Insofar as it is relevant, that section provides:

"Disqualification; obligatory and discretionary

4.(1) Where a person is convicted of a traffic offence in relation to which there appears in head 6 of Schedule 1'

(a) the word "obligatory", the court shall order him to be disqualified for such period as is specified in that head as the period of obligatory disqualification in relation to that offence unless the court for special reasons thinks fit to order him to be disqualified for a shorter period or not to order him to be disqualified;"

3. The short issue is whether "special reasons" can include the personal circumstances of the offender, or whether they are limited to the circumstances of the offence. The former would let in such considerations as the impact of disqualification upon the employment of the offender, and in both the cases before the Court it was said that disqualification would either cause the offender to lose his job, or would make it difficult or impossible for him to travel to and from work. The Magistrates took the view that they could not consider personal circumstances such as this, but in 2011/42 the learned Senior Magistrate was recorded by Crown Counsel as having observed:

"The issue of proportionality which was discussed in the case of David Cox1 is not applicable to DUI cases. We are bound to accept the principle of the higher court or the Supreme Court when it has determined the law concerning DUI. I would welcome a current ruling on this area of the law. I encourage you to go to the Supreme Court and see what they say. I am bound and have no difficulty being bound. I understand the hardship."

4. In Appeal No. 2011/42 the brief facts were that the appellant was stopped at 1:25 am on Sunday 17th April 2011 during a stop and search under section 315(f) of the Criminal Code. When pulled over the appellant seemed to have difficulty controlling his vehicle, mounting the curb and then parking it diagonally. The officers smelt a very strong smell of alcohol on his breath, and said that on getting out of his car his eyes were red and glazed and he was having difficulty standing straight. He was cautioned and asked if he had had any alcohol, to which he replied that he had had one Heineken beer. At this point the officers considered that his speech was slurred. He was arrested on suspicion of impaired driving and a sample of breath for analysis was demanded. He failed to provide a sample and was detained and subsequently charged with Driving Whilst Impaired contrary to section 35(1) of the Road Traffic Act 1947, and Failing to Comply with a Demand for a Sample of Breath for Analysis contrary to section 35C(7) of the same Act. On his first appearance in the Magistrates' Court he pled not guilty, but on the trial date he pled guilty to the charge of failing to comply with a demand for a sample of breath and the Crown offered no evidence on the DWI. He was fined $1,000 and...