Wirral Magistrates Open Special Reasons Can of Worms

Merseyside Magistrates have caused quite a stir by finding special reasons in the case of young a woman who was drunk in charge of a motor vehicle.

Introduction:

The case of 20-year-old project manager Mia Elliott has now been reported in several national newspapers and on their respective websites (see here, here and here). The general consensus in the court of public opinion seems to be that colleagues dealing with the case have succumbed to a fanciful tale and imposed too lenient a penalty.

I don't think I am being too uncharitable by saying that most of those commenting will have limited knowledge of the legislation pertaining to special reasons and of the unique circumstances in this case. It is a regular bugbear of mine that most Magistrates' Court reporting is superficial. It rarely gives the full reasons for decisions of the court, despite those reasons always being announced openly.

I often look at reports of cases I have been involved in and it is regularly the case that significant information has been omitted. The only way of knowing for certain what goes on in the courtroom is to actually be there, so I would urge caution against drawing full conclusions on the basis of what is probably partial reporting.

The case of Mia Elliott:

Back to the case at hand. It would appear that Elliott and friends had been on a night out in Heswall, Merseyside, back on 28th January 2023. She had consumed several cocktails over the course of the evening. In the early hours of morning (29th January) one of her friends, Brooklyn Connis, was assaulted outside the Suede nightclub.

Elliott ran back to her car with the intention, she would say, of taking Mr Connis to the Accident and Emergency Department at nearby Arrowe Park Hospital - a journey that would have taken around 10 minutes. Police officers have seen a distressed-looking Elliott running past their vehicle and entering her VW Golf. 

The officers have approached the Golf to check of the welfare of Elliott, finding her in the driving seat with the engine running. For whatever reason, they have had cause to believe Elliott was under the influence of alcohol, so have required her to provide a roadside specimen of breath.

That test was positive, so Elliott was arrested on suspicion on being drunk in charge of a motor vehicle. A subsequent evidential test has shown her to have a breath alcohol content of 49 microgrammes of alcohol in 100 millilitres of breath, the prescribed limit being 35 microgrammes.

At the time of her arrest she has commented to the officers that someone was injured nearby, but she gave no more detail.

Elliott has been interviewed at the police station with a legal representative present. She responded "no comment" to each of the questions.

Elliott subsequently admitted being drunk in charge of a motor vehicle, but the case was adjourned for a special reasons hearing.

At the special reasons hearing Elliott chose to represent herself.

In relation to her no comment interview, she said: "I was more than happy to have told the truth in the interview - but I just believed the lawyers. If I had been given better legal advice I would have just answered all the questions."

In relation to Mr Connis being injured, she said: "I went outside and went over and there was a lot of blood on his face.

"He was claiming he could not see, that he could not breathe and over time he began to claim that he was going to pass out. I asked if an ambulance had been called.

"My friend Daisy had phoned for an ambulance but 15 minutes went by and there was no sign of it coming.

"Brooklyn was only getting worse and again saying he was going to pass out. We phoned for an ambulance again and after some time it did not seem like it was arriving.

"With a head injury, all I know is that sooner the better getting medical care. It was quite clear he needed it.

"That's when I suggested that I drive him, as I was the only person with a car nearby. Everyone was in agreement. My friends would never let me get in the car if I was under the influence of alcohol but I believed that I was okay to drive."

Mr Connis also gave evidence at the hearing, confirming that he had been assaulted and spent 12 hours in hospital as a result. He said he was unable to see anything due to his injuries at the time, and was still having trouble with his sight now.

Mr Connis confirmed that an ambulance had turned up 5 minutes after Elliott had been arrested. He said he had not reported the assault to the police.

Daisy Moran, a friend of Elliott, also gave evidence that she had seen the assault. She described Mr Connis being punched in the face several times, which led to a lot of blood.

Miss Moran said: "We believed that Mia was not over the limit. In fact the ambulance arrived about five minutes later."

Miss Moran said it did not cross her mind to report the assault to the police.

Paula Grogan, prosecuting, drew the court's attention to the fact that Elliott had not sought emergency help for Mr Connis from the police officers.

Miss Grogan said: "If she was truly in an emergency situation where somebody needed immediate help would she have walked or ran right past a marked police vehicle, basically an emergency first responder.

"If there was an emergency situation she could have flagged the police down.

"Surely the first port of call would have been the officers in the mobile patrol that the lady went straight past? She does not take advantage that she has the officers there to ask assistance for the person she is telling you that needs assistance.

"When you have got police officers who are trained to deal with people in distress or being assaulted it just seems remarkable. It was not necessarily the emergency being suggested."

It would appear that police made some enquiries and could find no evidence that an ambulance was called for Mr Connis.

Special reasons legislation:

We have previously written an article about special reasons. In simple terms, there are a few situations where the law allows the court to give the defendant the benefit of the doubt in its sentencing of driving offences.

Briefly, in accordance with section 34(1) of the Road Traffic Offenders Act 1988, the court does not need to impose either a disqualification or endorsement if it is satisfied, on the balance of probabilities, that there are special reasons not to do so. Those special reasons must be directly related to the offence, rather than the individual circumstances of the offender (in which case exceptional hardship might be a consideration instead).

The Court of Appeal has determined that in order to constitute a special reason [R v Wickens (1958) 42 Cr App R 436 (CA)], the court must be satisfied that the matter:

• Must be a mitigating or extentuating circumstance;
• Must be directly connected to the commission of the offence;
• Does not amount to a defence in law;
• Be one that the court ought properly to take into consideration when sentencing the offence.

If the court finds there are special reasons it will impose a lesser penalty than it ordinarily would. This could mean imposing fewer penalty points, penalty points as an alternative to disqualification, a shorter period of disqualification or a discharge in place of a financial penalty.

The court's decision:

The first thing to bear in mind is that the civil burden of proof applies in special reasons cases - e.g. in order to find special reasons the court must be satisfied, on the balance of probabilities, that the four previously mentioned conditions are met.

The court's ability to make that determination depends on its willingness to accept Elliott's account that she believed Mr Connis needed emergency medical attention and the need was so great that she could not wait for the arrival of an ambulance. It is not uncommon for medical emergencies or perceived medical emergencies to form the basis of special reasons arguments and there is plenty of case law on the subject.

On the basis of what has been reported, it would appear there is no dispute that Elliott was very distressed and upset when the police saw her that evening. One of the officers, Inspector Danny Murphy, also recalled her saying something about an injured person at the time. This would certainly reinforce the suggestion that she was distressed at Mr Connis being injured.

It is possible that she was so focussed on getting back to her car, that she totally missed the police parked nearby. This was 2 am, so dark, and she was distressed, so maybe not thinking as clearly as she ordinarily would.

Three witnesses have said, on oath, that Mr Connis was assaulted and sustained head injuries - Elliott herself, Miss Moran and Mr Connis. They have commented on the amount of blood and the apparent deterioration in his condition. This reinforces the suggestion that Elliott thought he needed urgent medical assistance.

The same three witnesses have said that an ambulance attended the scene. This would reinforce the suggestion that Mr Connis's injuries were deemed a medical emergency at the time. Two witnesses, Elliott and Miss Moran, have mentioned the ambulance being called twice and delayed en route. This is contradicted by police enquiries that were unable to trace a call to the ambulance service; however, the fact an ambulance did attend suggests such a call was actually made.

The three witnesses have also said they discussed the decision for Elliott to drive Mr Connis to A&E; they all thought she was fit enough to drive and it was the most appropriate decision in the circumstances. This leaves little doubt that the perceived medical emergency was directly connected to the commission of Elliott's offence.

Elliott has said she went "no comment" in interview on legal advice. That is increasingly common and sounds entirely plausible to me.

It would appear, on the face of things, that all three witnesses have given a consistent account to the court. That being the case I can understand why the court has accepted Elliott's account.

A cynic might say "well, they're her friends - of course they would back her". Well, there might be an element of truth in that, but I really believe that when someone is giving live evidence in court - on oath and on the understanding that any deliberate dishonesty is a very serious offence - then their evidence should be taken at face value unless it is contradicted elsewhere. It should also be said that as far as the court is concerned the character and conduct of Mr Connis and Miss Moran is not in question.

The court having accepted Elliott's account, does it amount to special reasons? Well, considering each of the four previously mentioned conditions it probably does - and remember that "probably" is the only standard required.

Sentencing:

So having decided to accept Elliott's special reasons argument, the court can now sentence her for the offence of being in charge of a motor vehicle when the proportion of alcohol in her breath, namely 49 microgrammes of alcohol in 100 millilitres of breath, exceeded the prescribed limit, namely 35 microgrammes of alcohol in 100 millilitres of breath.

This is an offence under section 5(1)(b) of the Road Traffic Act 1988. The maximum penalty on summary conviction is 3 months' custody and/or a fine at level 4 (currently £2,500).

The primary factor in sentencing these offences is always how far over the limit the defendant is. Considering the relevant guideline in this case, it can be seen that Elliott's offence falls into the bottom category with a starting point of a Band B fine and 10 penalty points - in other words she was never likely to face disqualification in any event.

Taking special reasons into account, the court has decided to impose an absolute discharge - e.g. no fine, points or disqualification. Is that too lenient? Well, I can tell you it's a fairly standard outcome in these cases and happens daily in courtrooms across the land.

Of course if the prosecution believes it has a legal basis to appeal the decision, as opposed to just not liking it, then the usual avenues are open to it.

Conclusion:

If you've managed to read this far then you have my absolute admiration! What I hope to have done is raised a few of the extra considerations of the court, that the newspaper reports never seem to cover. These decisions are rarely black and white and I can understand why the colleagues dealing with this case have arrived at the conclusions they have.