I wrote back in October about a case in the Gloucester Crown Court involving two defendants who had pleaded not guilty to causing criminal damage in a betting shop. The men had relied on the rarely raised defence of automatism, which they claimed had arisen  by the trance like state induced through the use of fixed odds betting terminals. Having obtained an expert’s report, neither now seek to rely on the defence and one of the defendants has pleaded guilty on a limited basis, while the other has maintained his not guilty plea.  From what I have read the nature of his defence now is far from clear and the trial has been listed to be heard in May. The defendant who changed his plea, will not be sentenced until the conclusion of the trial.

Meanwhile in the Cheltenham Magistrates’ Court, conditional jockey Killian Moore has pleaded not guilty to driving with excess alcohol. Moore provided a positive sample of 59 micrograms of alcohol  per 100 millilitres of breath, following his Audi A4 being involved in a road traffic incident at Dumbleton on February 2nd. The legal limit is 35 micrograms of alcohol.  It is reported the  jockey explained to the Court that the alcohol reading was due to him being “plied” with rum to deal with the shock, when he had gone to a nearby house following the incident. The trial will  take place on June 26th.

This defence of post driving alcohol consumption is known to us in the trade as a “hip flask defence”. It is not without difficulties, as there is a statutory presumption that the alcohol level recorded in the reading would not be less than when the person was driving.  To rebut this presumption defendants need to obtain expert evidence with a back calculation, in an attempt to show their alcohol reading would have been below the legal limit, but for the post driving alcohol consumption. As experts being experts, require precise details of the alcohol quantities consumed, the hurdle I often professionally encounter is that clients are unable to provide instructions beyond “Well I don’t know exactly how much I had to drink, because I was pissed”.

Whatever the wisdom of Moore allowing himself to be plied with rum following involvement if a road traffic accident, one very sensible move he has made is not to instruct me to represent him. Having defended a few of these cases as a solicitor in the Magistrates’ Courts for over 20 years, I have yet to secure an acquittal.

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