Case No: CO/3299/00
IN THE SUPREME COURT OF JUDICATURE
HIGH COURT OF JUSTICE
(QUEEN'S BENCH DIVISION)
APPEAL BY WAY OF CASE STATED
(Bristol Crown Court)
Royal Courts of Justice
Strand, London, WC2A 2LL
Thursday 7 December 2000
LORD JUSTICE WALLER
MR JUSTICE SACHS
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LEE CHRISTOPHER PARKER
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DIRECTOR OF PUBLIC PROSECUTIONS
(Transcript of the Handed Down Judgment of
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Mr Paul Garlick QC; Mr Richard English (instructed by Gordon & Penney for the Appellant)
Mr Neil Ford QC; Mr Mark Worsley (instructed by CPS Bristol for the Respondent)
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As Approved by the Court
Crown Copyright ©
LORD JUSTICE WALLER:
1. This is an appeal by way of case stated from the Crown Court at Bristol which dismissed an appeal by Lee Christopher Parker from his conviction by the magistrates of an offence under section 5 of the Road Traffic Act 1988. The point raised is of importance. The section provides for it being an offence to drive a motor vehicle after consumption of so much alcohol that the proportion of alcohol in the breath, blood or urine exceeded the prescribed limit. The statute also deals with the way in which the prosecution may prove that offence including the taking of samples at the police station, to the detailed provisions of which I will return. The statute then provides, subject to an exception, that it will be assumed that the quantity of alcohol at the time of driving is no less than that in the sample taken at the police station. Two Court of Appeal authorities have held that that assumption was irrebuttable and that the motorist was thus not entitled to call evidence to establish that in fact when he or she was driving the quantity of alcohol in breath, blood or urine was less than the prescribed limit. It is argued on behalf of the motorist in this case that in the light of the Convention on Human Rights and the Human Rights Act 1998, that the legislation should be construed as no longer providing for an irrebuttable presumption.
2. It is right to emphasise that the Human Rights Act 1998, which established the Convention as part of English law, was not in force at the time of the Crown Court decision or thus obviously at the time of the decision before the magistrates. There can be no question thus that at that time those courts were bound by the Court of Appeal authorities interpreting the relevant legislation as providing for an irrebuttable presumption.
3. We, it should be said, expressed some disquiet as to the position which was contended for by both counsel. Mr Ford QC and Mr Garlick QC both submitted that the effect of the Human Rights Act 1998, in particular section 22(4) and section 7(1)(b), was that even though a decision may have been correct when reached prior to the coming into force of the Act, an appeal taking place after the coming into force of the Act must hold those decisions to be wrong, if the decisions would have been wrong if taken after the coming into force of the Act. I have to say that for my part I would have wanted persuasion that that was necessarily the correct interpretation to place on the relevant sections of the Human Rights Act, where what is being argued is that legislation should now be construed differently following the coming into force of s 3 of the Human Rights Act 1998. Since however, as Mr Ford put it, the point in this case is bound to arise in relation to decisions taken after the coming into force of the Act, and since resolution of the point as soon as possible will assist, no further time was spent debating this aspect.
4. The point is of such relevance to appeals now taking place I hope I shall be forgiven for setting out shortly my anxieties. Looking at the wording of the Act I would suggest that the position is very far from clear in a case such as the present. The relevant provisions are as follows:-
s6. Acts of public authorities
(1) It is unlawful for a public authority to act in a way which is incompatible with a Convention right.
(2) Subsection (1) does not apply to an act if -
(a) as the result of one or more provisions of primary legislation, the authority could not have acted differently; or
(b) in the case of one or more provisions of, or made under, primary legislation which cannot be read or given effect in a way which is compatible with the Convention rights, the authority was acting so as to give effect to or enforce those provisions.
(3) In this section `public authority' includes -
(a) a court or tribunal, and
(b) any person certain of whose functions are functions of a public nature, but does not include either House of Parliament or a person exercising functions in connection with proceedings in Parliament.
(1) A person who claims that a public authority has acted (or proposes to act) in a way which is made unlawfull by section 6(1) may -
(a) bring proceedings against the authority under this Act in the appropriate court or tribunal, or
(b) rely on the Convention right or rights concerned in any legal proceedings,
but only if he is (or would be) a victim of the unlawful act.
(6) In subsection (1)(b) `legal proceedings' includes -
(a) proceedings brought by or at the instigation of a public authority; and
(b) an appeal against the decision of a court or tribunal.
s22. Short title, commencement, application and extent
(2) Sections 18, 20 and 21(5) and this section come into force on the passing of this Act.
(3) The other provisions of this Act come into force on such day as the Secretary of State may by order appoint; and different days may be appointed for different purposes.
(4) Paragraph (b) of subsection (1) of section 7 applies to proceedings brought by or at the instigation of a public authority whenever the act in question took place; but otherwise that subsection does not apply to an act taking place before the coming into force of that section.
5. Section 22(4) applies to s 7(1)(b) proceedings brought by a public authority (in this case the D.P.P.) "whenever the act in question took place". Section 7(1)(b) allows reliance on Convention rights ie acts made unlawful by s 6 in legal proceedings including appeals.
6. What is the act that has taken place and which is said to be unlawful? It is not any act of the D.P.P. as a public authority. It is the act of the court as a public authority in refusing to admit evidence or acting on the irrebuttable assumption provided for by the legislation. But, under the provisions of the primary legislation, which at that time could not be interpreted with the aid of s 3, the court was bound so to act and it was thus not acting unlawfully (see s 6(2)(a)). What the appeal is about is that act of the court, and at present I do not see why the appeal court is acting in a way which is incompatible with a Convention right by holding that the original court, when it took the decision, was not doing so.
7. If I understand the speech of Lord Hobhouse of Woodborough in R v D.P.P., Ex p. Kebilene  3 WLR 972 at 1008, he would have supported the above view. I accept that Lord Steyn at p. 982D with whom Lord Slynn and Lord Cooke agreed, would appear to favour a different view. But it seems to me that the point did not directly arise for decision in that case. I also accept that Lord Woolf, with some reluctance, might be said to have followed Lord Steyn's view in R v Lambert, Ali and Gordon Court of Appeal transcript 11 July 2000 paragraph 28. But it does not appear that it could be said in that case the primary legislation compelled the court at first instance to act as it did.
8. In any event I am not clear that the point that would have arisen in this case has ever arisen directly for decision and I would simply put down a marker as to whether the concession in this case was rightly made and as to whether the position is as clear as in some places it is being assumed. (See for example The Law of Human Rights by Clayton and Tomlinson paragraph 3.75A).
9. I must now however approach the matter on the basis the concession was properly made.
The relevant legislation
10. Let me set out first the relevant sections of the legislation.
Road Traffic Act 1988
5 Driving or being in charge of a motor vehicle with alcohol concentration above prescribed limit
(1) If a person -
(a) drives or attempts to drive a motor vehicle on a road or other public place, or
(b) is in charge of a motor vehicle on a road or other public place,
after consuming so much alcohol that the proportion of it in his breath, blood or urine exceeds the prescribed limit he is guilty of an offence.
6 Breath tests
(1) Where a constable in uniform has reasonable cause to suspect -
(a) that a person driving or attempting to drive or in charge of a motor vehicle on a road or other public place has alcohol in his body or has committed a traffic offence whilst the vehicle was in motion, or
(b) that a person has been driving or attempting to drive or been in charge of a motor vehicle on a road or other public place with alcohol in his body and that that person still has alcohol in his body, or
(c) that a person has been driving or attempting to drive or been in charge of a motor vehicle on a road or other public place and has committed a traffic offence whilst the vehicle was in motion,
he may, subject to section 9 of this Act, require him to provide a specimen of breath for a breath test.
7 Provision of specimens for analysis
(1) In the course of an investigation into whether a person has committed an offence under [section 3A, 4] or 5 of this Act a constable may, subject to the following provisions of this section and section 9 of this Act, require him -
(a) to provide two specimens of breath for analysis by means of a device of a type approved by the Secretary of State, or
(b) to provide a specimen of blood or urine for a laboratory test.
8 Choice of specimens of breath
(1) Subject to subsection (2) below, of any two specimens of breath provided by any person in pursuance of section 7 of this Act that with the lower proportion of alcohol in the breath shall be used and the other shall be disregarded.
(2) If the specimen with the lower proportion of alcohol contains no more than 50 microgrammes of alcohol in 100 millilitres of breath, the person who provided it may claim that it should be replaced by such specimen as may be required under section 7(4) of this Act and, if he then provides such a specimen, neither specimen of breath shall be used.
Road Traffic Offenders Act 1988
s 15 Use of specimens in proceedings for an offence under section 4 or 5 of the Road Traffic Act
(1) This section and section 16 of this Act apply in respect of proceedings for an offence under [sections 3A, 4 or 5 of the Road Traffic Act 1988 (driving offences connected with drink or drugs)]; and expressions used in this section and section 16 of this Act have the same meaning as in [sections 3A to 10] of that Act.
(2) Evidence of the proportion of alcohol or any drug in a 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 a 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.]
11. The notes in Halsbury's Statutes also accurately reflect decisions under the relevant legislation prior to the coming into force of the Human Rights Act. Thus
"Evidence of the proportion of alcohol ...shall ... be taken into account
Where a person is charged under the Road Traffic Act 1988 s 5 ante, and the specimen provided by the person after a lapse of time shows an alcohol level below the prescribed limit, the prosecution may adduce evidence to show, by means of "back-calculation", ie by calculation of the amount of alcohol eliminated in the period between driving and providing the specimen, that the proportion of alcohol in the person's breath, blood or urine was above the prescribed limit when he was driving. However, the prosecution should not seek to rely on evidence of back-calculation unless it is both easily understood and clearly establishes the presence of excess alcohol at the time when the defendant was driving (Gumbley v Cunningham  AC 281)".
Thereafter the notes continue that in relation to the phrase "It shall be assumed that the proportion of alcohol ... at the time of the alleged offence was not less than in the specimen. This assumption is not rebuttable (Millard v DPP  Crim LR 601), and back-calculation of the kind mentioned in the note "Evidence of the proportion of alcohol ... shall ... be taken into account" above is not available to the accused (Beauchamp-Thompson v DPP  Crim LR 758)".
12. I should perhaps add out of completeness that Beauchamp-Thompson v DPP was cited in the House of Lords in Gumbley v Cunningham albeit it was not referred to in the judgments.
Facts of this case
13. The Appellant was stopped by police at 23.48 hours on 12 February 1999 whilst driving his motor vehicle on Winterstoke Road, Weston-Super-Mare. He was arrested following a positive roadside breath test. [This test would be pursuant to s 6 above]. The subsequent breath analysis produced by the Lion intoximeter [taken pursuant to s 7] showed the specimen with the lower proportion of alcohol to be in excess of the prescribed limit but to contain less than 50 micrograms of alcohol in 100 millilitres of breath. The Appellant consequently exercised his statutory right [under s 8(2)] to provide a specimen of blood which was taken by a medical practitioner at 00.55 hours. A subsequent analysis showed the specimen to contain not less than 81 milligrams of alcohol in 100 millilitres of blood.
14. The Appellant instructed Dr Tabernor, a Senior Lecturer in Pharmacology at the University of Bristol. The doctor concluded that the Appellant's blood alcohol analysis was consistent with his stated consumption of alcohol, namely two pints of lager. The report further concluded that the Appellant's blood alcohol level at the time of driving the vehicle more than an hour earlier was unlikely to have exceeded the statutory limit.
15. Mr Garlick accepted that if the court was concerned simply to construe the language of s 15 the assumption would be irrebuttable. He made that concession not simply because two previous Court of Appeal decisions so held but because he accepted that the contrast between s 15(2) and s 15(3) and the words "not less than" drove one irresistibly to that conclusion. However, he relied on s 3 of the Human Rights Act 1998 which provides as follows:-
(1) "So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights.
(2) This section -
(a) applies to primary legislation and subordinate legislation whenever enacted;
(b) does not affect the validity, continuing operation or enforcement of any incompatible primary legislation; and
(c) does not affect the validity, continuing operation or enforcement of any incompatible subordinate legislation if (disregarding any possibility of revocation) primary legislation prevents removal of the incompatibility".
16. Mr Garlick's submission is that the Convention rights which have been infringed in this instance are under Article 6 or more particularly Article 6(2). Article 6(1) provides:-
"In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interest of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice".
Article 6(2) provides:-
"Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law".
17. Mr Garlick then took us to Salabiaku v France 13 EHRR 379. Mr Garlick submitted that the principles which that case established were correctly reflected in the headnote with which Mr Ford did not disagree.
"1. Criminal Proceedings: presumption of innocence, strict liability.
(a) The Contracting States are free in principle to establish a criminal offence on the basis of an objective fact as such, irrespective of whether it resulted from criminal intent or negligence. The applicant, however, was not convicted for the mere possession of unlawfully imported prohibited goods, but for smuggling such goods. A legal presumption of accountability was inferred from their possession leading to a finding of guilt.
(b) The distinction between a presumption of accountability and a presumption of guilt is of a relative nature. Presumptions of fact or of law exist in many legal systems and are not contrary to the Convention in principle. However, the Contracting States are under an obligation to remain within reasonable limits which take into account the importance of what is at stake and which respect the rights of the defence. Article 6(2) does not merely lay down a guarantee to be respected by the courts in the conduct of legal proceedings and the words `according to the law are not to be construed exclusively with reference to domestic law.
(c) The prosecution had proved that the applicant had been in possession of the disputed goods. The law, however, allowed the applicant to prove force majeure and obtain his acquittal or to plead extenuating circumstances. French courts enjoyed a genuine power of assessment in that field.
(d) Article 392(1) of the Customs Code was applied in the applicant's case in a manner compatible with the presumption of innocence. The trial courts appeared to have identified in the circumstances of the case an element of intent, even though they were under no legal obligation to do so in order to convict".
18. The important points established by that case are that
(1) "according to the law" is not to be construed exclusively with reference to domestic law; the right to be presumed innocent is an entitlement enshrined as a fundamental principle of the rule of law.
(2) Presumptions of fact are not contrary to the Convention in principle but Contracting States must remain within reasonable limits depending on the importance of what is at stake.
(3) The court in France had, so far as Salabiaku was concerned, applied his case in a manner compatible with the presumption of innocence in that they did not automatically rely on the presumption; this is a point much relied on by Mr Garlick.
19. It is Mr Garlick's submission that it was unfair to prevent a defendant calling evidence to establish the fact that, whilst he was driving or in charge of a motor vehicle, the proportion of alcohol in his blood was lower than the prescribed limit. It might lead to a conviction when in fact the accused was not guilty of the offence. It was unfair in that the prosecution had the right to calculate back in order to demonstrate guilt and there was not equality of arms unless the defendant had the same right. Furthermore, the distinction drawn between the motorist who had consumed alcohol after driving and thus brought himself within s 15(3) placed the motorist who had merely consumed alcohol before driving in an unfair position.
20. Mr Garlick accordingly submitted that since an infringement of human rights was involved ie an infringement of the right to be presumed innocent until proved guilty, the court should strive to construe s 15 in accordance with s 3 of the Human Rights Act 1998 as not containing an irrebuttable assumption. He submitted that with the assistance of s 3 words should be read into s 15(2) to the effect that it shall be assumed "unless proved to the contrary".
21. Mr Garlick also submitted that the point was important so far as sentence was concerned. He submitted that it could make the difference as to whether a motorist would receive a custodial sentence or not as to the quantity of alcohol in the blood at the time that the motorist was driving. He submitted that the assumption meant that the motorist could not call evidence to demonstrate that albeit a very large quantity of alcohol had been consumed just prior to driving, the intention of the motorist was to drive only a very short distance and before that alcohol had any effect, and thus the penalty should be less.
22. Mr Ford submitted that only if one concluded that the irrebuttable assumption did infringe Article 6(2) would the court consider reading in the words as suggested by Mr Garlick. Mr Ford submitted that the irrebuttable assumption did not infringe the presumption of innocence when one took into account the nature of the offence and the importance of what was at stake even having regard to the rights of a defendant (see Salabiaku v France supra). He pointed out that when a driver consumed alcohol post driving that did not represent a danger to the public, whereas consuming alcohol before the driving has been commenced in such quantities that albeit it may be at a level very close to the limit when the driver is stopped is very much in excess of that limit by the time tests take place, is something the law is entitled to protect the public against. He furthermore submitted that there was no inequality of arms in that the whole object of the legislation was to prevent drivers consuming alcohol in any great quantity before driving and both the back-calculation by the prosecution and the irrebuttable assumption achieved those objectives.
23. The following seem to me to be important points. The offence is concerned with preventing consumption of quantities of alcohol which impair the ability of a driver to drive and applies to "drivers" "persons attempting to drive" and those "in charge of a motor vehicle". The practical position will be that a driver has failed a breath test under s 6 of the Road Traffic Act 1988. That is some indication that the proportion of alcohol in the driver's blood at that stage exceeds the permitted limit. The legislation then provides for testing at a police station which must take place some time after the initial breath test. The fact that there is a delay in testing would, if a driver has failed the breath test, normally be in favour of the driver if the alcohol consumed prior to driving is already fully in the blood at the time of the original breath test. By the time testing takes place at a police station the limit may well not be contravened. If however the driver has consumed alcohol immediately prior to driving and failed the breath test, the amount of alcohol which will be found to be in his blood when tests are carried out at a police station will be likely to exceed those present when he was actually driving and before he was breath tested. It seems to lie ill in the motorist's mouth to say that he/she had consumed great quantities of alcohol immediately prior to climbing into the driving seat of a motor car or before placing himself in charge of a motor vehicle which would thus not have shown up on a breath test carried out when the police originally stopped him/her but which then do show up on a breath test carried out at a police station some little time after the first test. The legislation is after all aimed at preventing consumption of such quantities before a driver drives or takes charge of a motor vehicle.
24. It seems to me that since it is consumption before driving or being in charge of a motor vehicle at which the offence is aimed, it is simply not to rebut the presumption of innocence to assume that the quantity of alcohol shown up on the breath test or the blood specimen carried out at the police station is the quantity which the motorist has in his blood at the time that he would be driving or would be in charge of a motor vehicle. Even if that were taking it too far, having regard to the importance of what is at stake, the assumption is a reasonable one and well within limits.
25. There may be circumstances in which the test at the police station shows a very high proportion of alcohol in the blood or in the breath or in the urine where the motorist would wish to mitigate the sentence by some form of explanation. That explanation might be along the lines that the motorist was simply moving the motor vehicle under some form of compulsion having drunk a large quantity of alcohol which the motorist believed would not get into his blood in any quantity over the very short period required to move the vehicle. As it would seem to me, there would be no reason as Mr Ford submitted why those circumstances could not be brought to the attention of the court as mitigating features or special circumstances when the court came to consider the penalty. The assumption so far as the offence was concerned would still have to be that the amount of alcohol in the blood, breath or urine was as shown by the sample taken at the police station but the circumstances if established might provide grounds of mitigation in relation to the penalty.
26. In any event the position as it seems to me is as follows. The language of the section, as conceded by Mr Garlick, provides for an irrebuttable assumption. In my view there is no infringement of Convention rights by providing for such an irrebuttable assumption in the context of this legislation as a whole. In those circumstances s 15 can be read in accordance with its natural meaning compatibly with Convention rights. In following the previous Court of Appeal authorities the magistrates and the Crown Court were not only correct in this case but will be correct hereafter. I would dismiss this appeal.
MR JUSTICE SACHS:
27. I agree.
NB: The two questions at the end have been certified as points of law of general public importance.
Order: Leave was refused
1. Is the irrebuttable presumption created on the ordinary construction of section 15(2) of the Road Traffic Offenders Act 1988 ("the RTOA 1988") compatible with the rights under paragraphs (1) and (2) of Article 6 of the European Convention on Human Rights?
2. If not, can the section be construed as providing for a rebuttable presumption by virtue of section 3(1) of the Human Rights Act 1998?