A delighted motorist won the first successful appe

A delighted motorist won the first successful appeal against a
drink driving conviction under a legal loophole today Friday.

In the first successful appeal of its kind the 41-year-old saw his
conviction quashed under a historic High Court ruling earlier this
year.

It is understood at least 100,000 drivers may now appeal to overturn
convictions imposed for failing to provide a specimen of breath.

Solicitor Sean Sexton, who first discovered the error in the statute,
believes compensation claims worth millions of pounds could flood in
from drivers banned by the courts.

At Southwark Crown Court freelance computer engineer Kofi Gandaa, of
Gothic Court, Wyndham Road, Camberwell, saw a three year ban, a
pounds 300 fine and a costs order of pounds 50 costs order
overturned.

He was also awarded costs.

Mr Gandaa was convicted at Bow Street Magistrates Court of failing to
provide a specimen of breath at a police station on June 9 this year.

Two High Court judges found in June that a charge under Section 7(6)
of the 1988 Road Traffic Act created two offences of failure to
provide a specimen of breath for analysis – the first when a
defendant was allegedly driving, and the second when he was allegedly
in charge of a vehicle.

Mr Justice Pill, then sitting with Lord Justice McCowan, ruled that
as the offences carried different penalties, a charge under the
section of the Act which did not distinguish the circumstances in
which the request was made was bad for duplicity.

The Director of Public Prosecutions had lodged that appeal after
Merseyside solicitor Mr Sexton persuaded Bootle magistrates to
dismiss a charge against a client he represented.

At today’s hearing Mr James Denison, for the Crown, said that he
would not contest the appeal following the Queen’s Bench Division’s
ruling of June 23.

‘The Crown having considered a transcript of that decision and
indeed, having looked at this case, the Crown do not propose to
contest this appeal,’ he said.

Mr Donal (correct) McGuire, for Mr Gandaa, applied for costs,
and said: ‘This is the first of its type to be heard by the Crown
Court on appeal from magistrates.

‘
A relieved Gandaa said: ‘It looks like I have made legal history.

‘
He had always denied failing to provide a specimen after being
arrested in his car on Tower Bridge on April 18.

He claimed he had blown into an analyser seven or eight times but
only one test registered – one with a ‘borderline’ reading of 40 mg
of alcohol in 100ml of breath.

Mr Gandaa denied he had been drinking but said he had gargled
with alcohol for toothache when he was stopped by police.

Contesting the charge he claimed that despite offering to give a
urine sample, he was charged with failing to provide a specimen.

However, Mr Gandaa read about the High Court appeal and contacted
Mr Sexton, representing him at court.

Allowing the appeal, Judge Michael Harris also awarded him costs.

Mr Sexton first discovered the loophole as he prepared
the defence of client Terry Corcoran, 43, of Aintree, Liverpool.

He found that in 85 percent of charges brought under the Act using a
standard form under Home Office guidelines, failed to distinguish the
particlar offence under the Act.

Failure to give a specimen after driving carries a maximum pounds
2,000 fine, a mandatory disqualification for at least a year, and the
possiblility of a six month jail sentence.

But failure to give a specimen while in charge of a vehicle
carried a lesser maximum fine of pounds 1,000, a maximum three month
sentence, while any ban was discretionary.

Since the High Court ruling the DPP decided against seeking leave to
appeal to the House of Lords and has issued new guidelines to the
Crown prosecution Service and police.

Mr Sexton, of Merseyside solicitors Moore Sexton Bibby, said since
the June ruling his firm had been contacted by more than 2,000
convicted drivers.

He also knows of similar prospective cases with solicitors around
the country and with convictions going back 25 years expects a flood
of similar appeals.

‘I have written to the Home Office for the purpose of co-ordinating
these appeals rather than have them piecemeal around the country
which is of course very expensive and very inefficient,’ he said.

Mr Sexton also believes there could be claims for compensation from
wrongly convicted defendants.

‘From numerous people who have lost jobs or their businesses, their
marriages have broken up, and some of whom have gone to prison,’ he
added.

‘Drivers who have served their ban have faced higher insurance
claims.

‘Conceivably the Government could end up with a bill for millions of
pounds – although it could argue these cases on public policy
grounds.

‘
But Mr Sexton warned the loophole ‘is not a licence to drink and
drive.

‘
He admitted that some people hoping for a reprieve ‘do not deserve
to benefit’ but said the Act provided a ‘strict liability’ over giving
a specimen.

The solicitor said the 1988 Act had been ‘unhelpfully’ worded
through some mistake.

‘But under English law, if someone is not guilty of an offence, then
they are inncoent, and thousands have been wrongly convicted,’ he
added.

Mr Sexton discovered the loophole when preparing the defence of
Terry Corcoran.

He said his client had refused to give a breath test to police
officers after maintaining he had not driven a car.

The solicitor said Mr Corcoran believed ‘wrongly’ that that was a
defence to the charge – but still wished to plead not guilty to
drinking and driving feeling ‘hard done by.

‘
Mr Sexton added: ‘That defence was not open to him but he wanted to
plead not guilty so I had to find something I could argue.

‘
After pouring over law libray books, the solicitor came across a
1984 House of Lords decision.

‘I simply argued that Parliament, without realising it, had created
two different offences under the Road Traffic Act.

‘
Mr Sexton said the High Court decision could allow queries on
convictions dating back to 1967.

The earliest appellant he represents
was convicted in 1971.

‘About 85 percent of the convictions we are dealing with are wrong
and only 15 percent right,’ he said.

‘The correct convictions are based around fuller details – stating
whether a defendant was driving or in charge of the vehicle.

‘
Judge Harris, sitting with two magistrates, allowed Mr Gandaa’s
appeal on the grounds the conviction was bad because of duplicity.

ENDS