Does anyone know of any caselaw that allows the descriptor needs alcohol before midday to also apply for a client that needs drugs before midday.

I have an appeal coming up for a client who failed the PCA and is addicted to speed, taking it as soon as she wakes up, whatever time of day that is.

I would be grateful for a copy of anything you are aware of.

If this caselaw doesn't exist - why on earth not.

Thanks

Not so much case law but you might find the following interesting.

Some time ago, when the AWT appeals as was had two lay members, I did a spell as a lay member. A case came to appeal of a person with substance abuse issues . He responded to the questions posed to him by the tribunal about satisfying, or not satisfying the descriptors in a way that reflected how he was feeling when he had taken his substance/s, which he had done before the hearing. He said that he could do everything very well and had no problmes at all. The tribunal seemed minded to accept that evidence and refuse the appeal. However, I asked the questions again from the perspective of how he could manage was when he had "come down". This resulted in completely different responses and the tribunal took the view that most of the time he would score the points necessary to win his appeal.

Does that help at all?

I do not think that a court would have the power to read the wording of the descriptor in question as covering drugs other than alcohol - unfortunately and odd as it may be. If there were some ambiguity there then it may be arguable but i think the approach a court should take is not to add/subtract words on the basis that they think it makes more sense - only if the wording is 'absurd'. Even then the power to do this is very limited as the courts are not there to make law etc.

There is also a 'rule' of language called 'Expressio unius est exclusio alterius' which means mention of one or more things of a class may be regarded as silently excluding all other members of the class (according to my old law textbook). Possible this will apply here to exclude other 'drugs' apart from alchohol.

It may be that this has been argued before but not got leave to appeal, hence no caselaw. Though as Paddy says, you should still have plenty to go on with the other descriptors.

Also, go for it and prove me wrong! Let us know if you are successful.

The appeal was won with no problems, chair said they awarded the easiest 10. Had extremely good evidence from clients GP who also just happens to sit on tribunals.

What was interesting is that the GP listed it as one of the descriptors (in the code letters) he beleived would apply.