England and Wales Court of Appeal (Criminal Division) Decisions

Drummond, R v [2002] EWCA Crim 527 (7th March, 2002)

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURT AT MAIDSTONE
His Honour Judge McKinnon

		Royal Courts of Justice Strand, London, WC2A 2LL
		7th March 2002

Lord Justice Longmore :

1. This case raises the question whether the statutory provisions relating to what is known as the “hip flask” defence are compatible with the Human Rights Convention. If a defendant wishes to disprove the statutory assumption that the proportion of alcohol in his breath, blood or urine at the time of the alleged offence was not less than in any specimen provided by him in connection with the alleged offence, it is for him to prove that he consumed alcohol before providing the specimen but after the alleged offence and that, had he not done so, the proportion of alcohol in his breath, blood or urine would not have exceeded the prescribed limit of 35 micrograms of alcohol in 100 millilitres of breath. This appeal concerns section 3A of the Road Traffic Act 1988 dealing with causing death by careless driving while the proportion of alcohol in the body exceeded the prescribed limit but the point equally arises under sections 4 and 5 of the Act which deal with offences of driving while under the influence of drink and with breathalyser offences tried in the magistrates courts.
2. Section 3A of the Road Traffic Act 1988 provides as follows:-

3A.-(1) If a person causes the death of another person by driving a mechanically propelled vehicle on a road or other public place without due care and attention, or without reasonable consideration for other persons using the road or place, and –

(a) he is, at the time when he is driving, unfit to drive through drink or drugs, or

(b) he has consumed so much alcohol that the proportion of it in his breath, blood or urine at that time exceeds the prescribed limit, or

(c) he is, within 18 hours after that time, required to provide a specimen in pursuance of section 7 of this Act, but without reasonable excuse fails to provide it,

he is guilty of an offence.

(2) For the purposes of this section a person shall be taken to be unfit to drive at any time when his ability to drive properly is impaired.

(3) Subsection (1)(b) and (c) above shall not apply in relation to a person driving a mechanically propelled vehicle other than a motor vehicle.

Sections 4 and 5 of the Act then provide for the offence of driving while unfit through drink or drugs and driving over the legal limit respectively.

3. Section 15 of the Road Traffic Offenders Act 1988 relevantly provides as follows:-

15.-(1) This section and section 16 of this Act apply in respect of proceedings for an offence under section 3A, 4 or 5 of the Road Traffic Act 1988 (driving offences connected with drink or drugs); . . . . . .

(2) Evidence of the proportion of alcohol or any drug in any specimen of breath, blood or urine provided by the accused shall, in all cases (including cases where the specimen was not provided in connection with the alleged offence) be taken into account and, subject to subsection (3) below, it shall be assumed that the proportion of alcohol in the accused’s breath, blood or urine at the time of the alleged offence was not less than in the specimen.

(3) That assumption shall not be made if the accused proves –

(a) that he consumed alcohol before he provided the specimen and –

(i) in relation to an offence under section 3A, after the time of the alleged offence, and

(ii) otherwise, after he had ceased to drive, attempt to drive or be in charge of vehicle on a road or other public place, and

(b) that had he not done so the proportion of alcohol in his breath, blood or urine would not have exceeded the prescribed limit and, if it is alleged that he was unfit to drive through drink, would not have been such as to impair his ability to drive properly. . . . . .

4. On 22nd December 2000 in the Crown Court at Maidstone (before His Honour Judge McKinnon and a jury) the appellant was convicted by a majority verdict (10-2) of causing death by careless driving with excess alcohol (count 2). On 19th January 2001 he was sentenced to 5 years’ imprisonment and was disqualified from driving for 5 years. He was acquitted on count 1, an alternative charge of causing death by dangerous driving.
5. He appeals on the Convention point by leave of the single Judge; leave was not granted for other grounds of appeal but they have been renewed. An application for leave to appeal against sentence was referred to the Full Court by the single judge.
6. It was alleged by the Crown that on 30th April 1999 the appellant, going north-west and under the influence of alcohol, struck a scooter, on which there was both a driver and a pregnant passenger, on the M20 near Farningham shortly before the junction with the M25. The passenger was killed and the driver was seriously injured. The defence contended that the Crown had not proved that it was the appellant’s car which had initially collided with the scooter and, even if it had, had not proved that his driving was careless, let alone dangerous. Moreover, there was some evidence that the appellant suffered from night myopia and there would have been no reason for him to have been aware of this beforehand.
7. Alan Russ gave evidence that on Friday 30th April 1999 he set off from his home address with his girlfriend, Sharon Long, to attend a scooter rally in Morecambe. They travelled on his dark-green Vespa Piaggio scooter and kept to the slow lane in view of the fact that his girlfriend was 4 months pregnant. Both were wearing black helmets and boiler suits. The luggage was in a holdall strapped on with elasticated straps and the holdall hung over the back rest. Although the scooter had been serviced recently, the rear light was not working. They left Maidstone at about 9.30 pm and travelled along the M20 London-bound carriageway heading towards the Dartford Tunnel. It was fine and dry and, apart from being dark, visibility was otherwise good. The traffic was light and Russ remained in the inside lane keeping to under 50 mph. He could recall nothing else about the evening until he woke up in hospital to be told that his girlfriend and baby were dead. He had sustained a closed head injury resulting in a form of amnesia.
8. The emergency services arrived at the scene and the two victims, both of whom were unconscious, were taken to hospital. Russ had sustained a broken hip and leg. Sharon Long had received massive internal injuries from which she later died.
9. At 10.42 pm the appellant made a 999 call to the police identifying himself. He had, he said, fallen asleep at the wheel of his car, a Vauxhall Omega, and thought that he had hit ‘somebody’ on the M25.
10. He was arrested at 11.20 pm at his home in Halstead and was questioned about what had happened. He replied ‘I have been on business in Paris. I am very tired as I’ve not been sleeping very well and I think I fell asleep and possibly hit something’. He told the officer that he had had a small bottle of wine with his meal on the train and pointing to a gin bottle said he had had gin on arrival at home. He did not know the precise amount of gin since his wife had poured the drinks. He provided a specimen of breath which proved positive and he was arrested. He was bailed to return to the station with consideration of his being reported for driving with excess alcohol.
11. He was taken to Tonbridge police station where at 12.02 he provided 2 samples of breath, both of which gave a reading of 76 mgs, more than twice the legal limit.
12. In interview, about a fortnight later, he told officers that once he had arrived home and saw the state of his car he began shaking. His wife asked him what was wrong and poured him a drink. He downed this in one go and she then gave him another one to calm him down. He told the officers that he had had 2 bottles of wine with his meal, they were quarter bottles, each of which he guessed contained 187 millilitres.
13. On 5th September 1999 he was informed that he would be reported for causing death by dangerous driving, failure to stop and failure to report an accident.
14. The Crown announced in Court in May 2000 that they were considering an additional charge under section 3A of the 1988 Act.
15. Dr McKinnon, a forensic scientist, gave evidence for the Crown that, on the basis of certain assumptions, set out in the appendix to his statement, two gins and two quarter bottles of wine would not have accounted for the breath/alcohol reading of 76 produced by the appellant. There were a number of variables such as the individual’s body-weight, the proportion of fat in the body and his blood:breath ratio. A few people had a lower elimination rate and a few, higher, but 18 milligrams per cent per hour was the average rate. In cross-examination he said the average elimination rate used to be thought of as 15 milligrams per cent per hour but recent studies regarded it as 18 and not 15. It was a possibility that a small percentage of people had a very low blood:breath ratio and a low elimination rate. If the appellant’s weight was 11 stone rather than the 12 stone upon which Dr McKinnon had based his calculations, it would make the actual breath test reading of 76 more in line with the appellant's account.
16. The Defence had retained what counsel described as a general expert but did not call him to give evidence.
17. The appellant gave evidence. He had passed his driving test at the age of 17 and had been driving for about 18 years. Although he had been caught speeding twice he had a clean driving licence and had never been disqualified. He had never been prosecuted for careless, let alone dangerous, driving. He had only ever had one accident and that had been the other driver’s fault. He did not wear spectacles but had had his eyes tested frequently. This was because he was prone to headaches as a result of working lengthy hours on the computer. He had been told he was slightly short-sighted in one eye but it was not sufficiently serious to require glasses.
18. He had been posted to France and would travel there and back frequently. On Monday mornings he would drive to Ashford, park and catch the first train to France. He would return on Friday evenings and use the M20 and M25 to drive home to Halstead. On 30th April he drank no alcohol at lunch or throughout the day and caught the train home as normal. He had a meal and two quarter bottles of wine plus a coffee and a bottle of mineral water. Each bottle had contained 187 centilitres and had an alcohol rating of 12½%.
19. He recalled feeling tired in the car so switched on the radio and opened the window. Throughout the journey he switched between the various lanes. His next recollection was of something hitting his windscreen. It was a round object and it caused a flash. The noise was loud and it startled him. He noticed that it broke the windscreen but he could see nothing else around him so continued driving. He did not know what he had hit and thought the round object had come off the road. He did not realise the extent of the damage to his car at that stage. Once he reached the M25 he was driving relatively fast. He noticed the steering was stiff but not significantly so. He did not stop because he was so close to home. When he left the motorway he noticed a tyre had “gone”. He decided to carry on and thought it would be safe if he drove gently. When he reached home he was surprised at the extent of the damage to his vehicle. As he put it, his blood rushed out of his body and he went cold. He could not remember hitting a scooter or anything else. He was shaking so much that his wife gave him a gin and tonic to try and calm him. She asked him what had happened but he said he did not know. He thought he must have fallen asleep because he could think of no other explanation as to why he had not seen what he had hit. At some stage she gave him another gin and tonic. He was in a bit of a shock and realised it was his duty to telephone the police. He had no more to drink. He went to the police station and was surprised at the reading of 76 as he felt fine. When he learned that the passenger had died he broke down and cried.
20. In cross-examination he said that that particular day was no more stressful than usual. He had not been sleeping brilliantly but, on reflection, he did not now think the reason for the accident was that he had fallen asleep but rather his myopia.
21. On the first day of the trial Counsel for the Crown had sought to amend the indictment to add the count charging an offence pursuant to section 3A of the Road Traffic Act 1988. Mr James Turner QC (who appeared below as he did before us) objected and pointed out that it was necessary to take account of section 15 of the Road Traffic Offenders Act 1988 which appeared to place a persuasive burden on the defendant. In the light of jurisprudence from the European Court of Human Rights in relation to reverse burdens of proof, the amendment sought should not be permitted since it would allow the Crown to pursue a charge on which the defendant could not fairly be tried within the meaning of Article 6. It would also be improper to confuse the jury by putting charges before them which involved different burdens and standards of proof in respect of one and the same piece of evidence, namely the evidence of alcohol. The judge rejected the defence arguments and gave leave to amend the indictment in the manner sought.
22. Next morning Mr Turner submitted further that, if the appellant had originally been charged with an offence under section 3A, he (counsel) would have directed his mind to advising that tests be done on the appellant’s metabolism and personal characteristics with a view to producing evidence to place before the jury to discharge the burden.
23. The Judge ruled against his submission saying that it was a rather speculative argument and tests could have been carried out, in any event, some time beforehand. There was no injustice to be done to the appellant by his having to face a count, which was not additional but in the alternative, and both would be left to the jury.
24. At the completion of the evidence there was a debate between the Judge and Counsel as to the form that the summing up should take in respect of section 15 of the Road Traffic Offenders Act 1998. Counsel contended that the section should be ‘read down’ so as to impose only an evidential not a persuasive burden on the defendant and that the ultimate burden of proof (or disproof) should be left on the prosecution, once the evidential burden was satisfied.
25. The Judge ruled that the reverse burden of proof was justifiable and not in contravention of the European Convention on Human Rights. Accordingly he directed the jury that there was a persuasive burden on the applicant in relation to the drink ingredient of the offence once the Crown had proved the reading from the breath test specimen which, in any event, was admitted.
26. The defendant was acquitted on Court 1 but convicted on Court 2 (the section 3A count) by a majority of 10-2.
27. Mr James Turner QC, for the appellant, submitted:-

(1) that the requirement that the driver be over the limit at the time the careless driving causes the accident is an essential requirement or ingredient of the offence in addition to the careless driving and the causing of the death;

(2) that, if the burden is on the Defendant to prove that he had taken a drink or drinks after the accident and that, but for that drink, his specimen would not have been over the limit, that would be an infringement of the presumption of innocence in Article 6(2) of the Human Rights Convention which provides:-

“Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law”;

(3) that therefore the provision should be read to mean that the defendant had only an evidential burden; that would mean the defendant would have to produce some evidence that he had drunk alcohol after the accident and that the amount he had had to drink “would have made a difference”.

He relied on: Salabiaku v France (1988) EHRR 379, Attorney General of Hong Kong v Lee Kwong-kut [1993] AC 951, R v Lambert [2001] 3 WLR 206, particularly the speech of Lord Steyn, and R v Carass 19th December 2001.

28. Mr St. John-Stevens for the Crown submitted:-

(1) That Lambert did not hold that all statutory provisions which put persuasive burdens on a defendant had to be read down to impose only evidential burdens

(2) that there was no principle that it was only if the offence was a regulatory offence that a defendant could be required to satisfy a persuasive burden in relation to an essential ingredient of an offence;

(3) that the defence of post-incident drinking was a special defence similar to the provision upheld in the Lee Kwong-kut case whereby a defendant, on a charge of being concerned in an arrangement whereby the retention or control of the proceeds of drug trafficking was facilitated, was entitled to an acquittal if he proved that he did not know that the arrangement related to the proceeds of drug trafficking;

(4) that a persuasive burden was necessary in the public interest in drink-driving cases.

29. In Salabiaku v France (which is a convenient starting point) the European Court of Human Rights said (page 338, para 28):-

“Presumptions of fact or of law operate in every legal system. Clearly, the Convention does not prohibit such presumptions in principle. It does, however, require the contracting states to remain within certain limits in this respect as regards the criminal law . . . Article 6(2) does not therefore regard presumptions of fact or of law provided for in the criminal law with indifference. It requires states to confine them within reasonable limits which take into account the importance of what is at stake and maintain the rights of defence”

Having quoted this passage in para. 34 of his speech in Lambert Lord Steyn continued:-

“This test depends upon the circumstances of the individual case. It follows that a legislative interference with the presumption of innocence requires justification and must not be greater than is necessary. The principle of proportionality must be observed”

As Waller LJ said in Carass, para. 60:-

“Thus the proper approach has to be that if a reverse legal burden is to be imposed on an accused it must be justified and in particular it must be demonstrated why a legal or persuasive burden rather than an evidential burden is necessary.”

In relation to this last matter, it was held in Lambert that only an evidential burden was necessary for section 28 of the Misuse of Drugs Act since it would not be enough for a defendant found in possession of something containing drugs to say merely that he did not know it contained drugs. He would have to bring forward some evidence that he had been duped. It was held in Carass (where the statute imposed the onus on a defendant, who had concealed a part of the company’s property or its debts, to prove he had no intent to defraud creditors) that once concealment was proved, the evidential burden would be difficult to surmount; but if it was surmounted, it would not be right for the jury to convict if they were not sure he intended to defraud.

30. We agree with the Crown that not all apparently persuasive burdens have to be “read down” to be evidential burdens; we think it necessary to look at the legislation as a whole in order to determine whether Parliament intended to impose a persuasive burden and whether such burden is justifiable.
31. The present case is, in our view, different from both Lambert and Carass in material respects. First, the offence of driving while over the legal limit is not an offence which requires the court to ascertain the intent of the accused at all. Conviction follows after a scientific test which is intended to be as exact as possible. Second, in most cases such test is exact or, to the extent it is less than exact, the inexactness will work in favour of the accused. Thirdly, it is the accused himself who, by drinking after the event, defeats the aim of the legislature by doing something which makes the scientific test potentially unreliable. There is a distinct danger that in many (perhaps the majority of cases) the accused will have taken alcohol after the event for the precise purpose of defeating the scientific test. Fourthly, the relevant scientific evidence to set against the result ascertained from the specimen of breath or blood is all within the knowledge (or means of access) of the accused rather than the Crown. This evidence will include:-

(1) the amount which the accused had to drink after the incident;

(2) what is called his “blood-breath ratio”, important for calculating the rate at which his body absorbs alcohol;

(3) the rate at which his body eliminates alcohol over time;

(4) the accused’s body weight.

These are all matters correctly mentioned by the judge in his ruling in this particular case and also in his summing-up to the jury.

32. Mr Turner objects that these last 3 matters will only be relevant in the marginal case and it is in the marginal case that the presumption of innocence most matters. This seems to us a two-edged argument because it is, of course, in the marginal case that it will be most difficult for the Crown to prove its case from particulars that have to be furnished from the Defendant.
33. These features of the case make the defence of post-incident drinking not unlike the defence of diminished responsibility which also depends on material to be furnished by the defendant. On authority presently binding on this court (see R v Lambert, Ali and Jordan [2001] 2 WLR 211, 220 in the Court of Appeal) the requirement that a defendant has the burden of proving diminished responsibility in a murder case, if he wishes to raise it, does not infringe Article 6(2) of the Convention. Drink-driving and causing death by careless driving while over the limit are both much less serious charges than murder. Mr Turner relied on the fact that the maximum sentence for causing death by careless driving under section 3A is 10 years but was constrained to accept that the nature of the burden on the defendant could not be different for a section 3A offence from what it is for a section 5 offence for which the maximum term of imprisonment is 6 months.
34. For the reasons we give in paragraph 31 above, we have come to the conclusion that the legislative interference with the presumption of innocence in section 15 of the Road Traffic Offenders Act 1988 amounts to an imposition of a persuasive burden on the defendant and that such interference is not only justified but is also no greater than necessary. It hardly needs to be said that driving while over the limit and causing death by driving in such circumstances are both social evils which Parliament sought to minimise by this legislation.
35. It would, of course, be possible to say that the burden on the defendant is an evidential one but that he would not discharge that evidential burden unless he produced evidence relating to the potentially relevant matters we have set out. In a case depending on scientific questions and expert evidence that would not, in our view, be right. Mr Turner, for obvious reasons, did not advance any such argument and it would diminish the difference between a persuasive burden and an evidential burden to vanishing point.
36. We conclude, therefore, that on the point on which leave to appeal has been given, the judge gave a correct direction to the jury; we therefore dismiss this ground of appeal.

Renewed applications

37. Mr Turner’s main complaint here on behalf of Mr Drummond was that it was only on the first day of trial that the prosecution sought and obtained leave to add an alternative count under section 3A of the Road Traffic Act 1988. Although a vague indication of intention to apply for leave to amend had been previously given, the only written indication related to a charge of causing death while unfit to drive through drink under section 3A(1)(a), not a charge of causing death while exceeding the prescribed limit under section 3A(1)(b). Had the Crown’s intention been made clear earlier, the defence would, said Mr Turner, have gathered evidence to meet the section 3A(1)(b) charge. The case was already 18 months old and no further adjournment could be contemplated. The judge did not accept this submission and neither do we. As the judge said the amount the defendant had had to drink at the time of the incident was always relevant to the charge of causing death by dangerous driving and any useful evidence could (and no doubt would) have been collected for that purpose. The judge’s decision to grant leave to amend the indictment was well within his discretion even if one has to have regard (as the judge did) to the fact that the burden of proof was on the defendant. This applies as much to Mr Turner’s submission on the second day of the trial to the effect that the trial should not proceed.
38. The other grounds of appeal related to the judge’s summing-up on the questions (inter alia) whether it was indeed Mr Drummond’s car that had collided with Mr Russ’s motor scooter, whether the expert reconstruction evidence had been correctly put before the jury, whether he had properly explained the possible prejudice to Mr Drummond by the late amendment, and whether he had reminded them adequately of the evidence of other drivers on the road that night. Many more points were raised but these were the main ones. This court has frequently said that there is no obligation on the judge to remind the jury of all the evidence. The judge set out the issues and the relevant evidence and, although we have considered each of Mr Turner’s points, we do not think there is anything in them. The single judge was correct to refuse leave on all these grounds.

Sentence

39. The judge regarded this as a bad case. He had seen Mr Drummond in the witness box and had, no doubt, concluded that he had not told the truth about the quantity of wine he had drunk before the incident. He may well have concluded that his drinks after the incident were intended to impede the police investigation. He did not say that in terms, although he did say the consumption of alcohol after the incident was an aggravating feature. Mr Turner took us through a number of authorities including Shepherd and Wernet (1994) 99 CAR(S) 39, Ware [1999] 1 CAR(S) 145 and Buckingham [2001] 1 CAR(S) 218. We consider that a sentence for causing death by careless driving while over the limit should ordinarily be somewhat lower than one for causing death by dangerous driving in circumstances where the driver is over the limit. The cases show that a plea of guilty will attract a suitable discount but no such discount was, of course, available here. We bear in mind, however, that Mr Drummond does not have a bad motoring history, had an excellent character otherwise, that the accident has had a devastating effect upon him and that there was a lengthy period before April 1999 and January 2001 when he was sentenced. In all the circumstances we accept that in this case a sentence of 5 years was manifestly excessive. We will grant leave to appeal and substitute a sentence of 3½ years. We see no reason to interfere with the disqualification period of 5 years and the need thereafter to take an extended driving test.
40. The following question was certified as a point of law of general public importance:

“Whether section 15(3) of the Road Traffic Offenders Act 1988, construed in accordence with section 3 of the Human Rights Act 1998, imposes on a defendant, either generally or in the particular circumstances of the present case, a persuasive burden, rather than an evidential burden.”

41. Leave to appeal to the House of Lords was refused. A representation order was granted for leading council to present petition.