Sep 19 2023

Can emotional distress be a defence to drink driving?

One of the most surprising things I’ve discovered since I started working exclusively in criminal motoring law is that there is a small, but not insignificant, number of suicidal people using their vehicles as part of their plan to end their lives.

We have represented around a dozen people over the past five or six years who have either told the police that they were on their way to kill themselves when stopped, or who have deliberately crashed their car in an attempt to end their lives. Unsurprisingly, these people are always in an emotional state during their interaction with police. They are also often drunk, which is how they come to our attention having been charged with drink driving – why are they drunk? The reason often given is that alcohol gives people the courage to go through with their plan to commit suicide.

This isn’t a new phenomenon either. Back on the 13th May 1985, the High Court heard the case of Spalding v Paine. Ms Paine had been arrested back on the 12th September 1983 by police who found her sitting in her car with an open bottle of whisky. She was extremely distressed and told police that she just wanted to die. She was arrested and, back at the police station, police attempted to require her to provide a specimen of breath. She failed to comply and was charged with failing to provide a specimen of breath for analysis. She was tried on the 29th February 1984 and was acquitted by the magistrates. They found that she had been so distressed she had either not heard or had not understood the police’s requirement that she provide breath.

Fast forward to May 1985, the prosecution had appealed the acquittal.

The prosecutor argued that Ms Paine’s inability to understand the requirement was, in part, due to her voluntary intoxication and, in part, due to her distress. He argued that the court should discount that part of Ms Paine’s inability to provide that arose from intoxication and said that once done it effectively would leave Ms Paine defenceless.

To decide the matter, the High Court looked to past cases for assistance. First, they considered Rowland v Thorpe. In that case, Mrs Thorpe had been arrested following her refusal to provide a roadside breath test. The police officers noted that she was covered in cuts and bruises, was “highly emotional” and violent. Mrs Thorpe flatly refused to provide specimens of breath, blood, or urine. She gave no reason for her refusal at the time, but at trial said that she had been embarrassed by the presence of male police officers – this incident occurred in 1969 and the evidence was that there had been no female police officers on duty that day. Lord Chief Justice, Lord Parker said,

“As I see it, the first question that arises is whether any of the matters referred to, embarrassment, physical injuries or mental condition, could provide the basis for a reasonable excuse. In my judgment, it must be in every case a matter of fact and degree, though I would unhesitatingly say that the mental condition or the physical injuries must be of a very extreme character to constitute a reasonable excuse.”

Mrs Thorpe lost her case, because the court felt that embarrassment was not a reasonable excuse for failing to provide anything other than urine. Mrs Thorpe may have faired better had she attended the court hearing into her case!

It’s worth saying at this stage, the Thorpe did establish an important principle that once the defence raise, with evidence, reasonable excuse as a defence to failing to provide, the onus is then on the prosecution to negative it beyond reasonable doubt.

The court in Paine, also considered the case of R v Lennard. In that case, the court held that,

“… no excuse can be adjudged a reasonable one unless the person from whom the specimen is required is physically or mentally unable to provide it or the provision of the specimen would entail a substantial risk to his health”.

Although it wasn’t discussed in Thorpe, the case of DPP v Comber doubts the strictness of Lennard and points out that there may excuses other than health related conditions that provide a defence to failing to provide. Comber was decided eight-years after Paine, which is why it was not considered by that court.

In Paine, the High Court found that Ms Paine’s inability to provide had been the result of her distressed state and refused the prosecutor’s appeal against acquittal.

Anybody paying attention, will have noticed that these cases are all talking about failing to provide cases, not drink driving case. So, what is their relevance in drink driving cases? To answer that, we turn to Beck v Sager… another failing to provide case. The important point about Sager is what the court said about the need for understanding. Mr Sager had been unable to understand the requirement due to his poor English, but the principle his case established is widely applicable.

Part of the requirement to provide includes warning suspects that a failure to cooperate with the test will render them liable to prosecution. In Sager, the Court said,

“… the clear purpose of the mandatory requirement imposed on the police… was to ensure that nobody should be found guilty of [an offence] unless he had appreciated the possible consequences ensuing from the failure; that, where a substantial failure of communication resulted in a motorist at a police station not understanding what was being required of him or the possible penal consequences flowing from failure to comply with a request for blood or urine, he was mentally unable to provide the specimen because he had not gone through the mental processes which the statute intended should precede the commission of the offence.”

So, we know from Sager that the suspect must go through the process of understanding the requirement, understanding the consequences both of complying and refusing to comply and must then make an informed decision to provide a specimen. Absent that cognitive process, the testing procedure will not have been completed properly. If the test is not conducted properly then the results of that test will be inadmissible, DPP v Murray.

Therefore, we can say that where somebody is distressed, and their distress is not the result of voluntary intoxication, then it may provide a defence to both failing to provide and drink driving.

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