England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT

		Royal Courts of Justice Strand London WC2 Sitting at Sheffield Crown Court
		25th July 2003

Friday, 25th July 2003
1. MR JUSTICE MAURICE KAY: This is a prosecutor's appeal by case stated from a decision of Justices for the County of West Midlands acting for the Petty Sessional Division of Sutton Coldfield.
2. On 11th December 2002 at Sutton Coldfield Magistrates' Court, the Justices dismissed two charges against the respondent, Lisa Wendy Chambers. The first charge was that on 12th January 2002 at Sutton Coldfield, she had driven a motor vehicle on a public road after consuming so much alcohol that the proportion of it in her breath, namely 124 micrograms in 100 millilitres of breath, exceeded the prescribed limit contrary to section 5 of the Road Traffic Act 1988 and Schedule 2 thereof. The second charge was one of failing to stop and to give particulars after an accident.
3. The present appeal on behalf of the prosecution relates only to the first of those two charges, the excess alcohol offence.
4. The case stated records the following findings of fact. On 12th January 2002 at approximately 5.30 to 5.45 pm, a Mr Morris had parked his car near to a newsagents shop, which he then entered. In the short time whilst he was in the shop, his car suffered damage. He then visited the home of Miss Chambers and there was an argument between them. He caused the police to attend, which they did at 6.17 pm.
5. She was arrested for failing to provide a breath specimen and was taken to Sutton Coldfield police station, where the intoxilyzer procedure was conducted at 7.30 pm. She provided two specimens of breath, the lower of the two readings being 124 micrograms of alcohol in 100 millilitres of breath. She also stated that she had consumed about two glasses of wine since the time of the alleged offence.
6. The findings of fact also record that she was interviewed at 9.27 am on the following day and that, in the course of that interview, she had admitted drinking wine and vodka and then driving to and from the local newsagents shop. She was charged at 10.19 am that morning.
7. Those were the initial findings of fact, as set out in the case stated. The Magistrates went into a little more detail when summarising the evidence.
8. The police officer who had attended the respondent's home, at the request of Mr Morris as a result of the argument, had noticed that she was unsteady on her feet, her speech was slurred and she smelt of alcohol. At that time, she denied having consumed any alcohol due to her pregnancy, and said she had only taken medication. That officer also referred to her repeatedly refusing to provide a specimen of breath, which resulted in her arrest and removal to the police station, followed by the intoxilyzer procedure.
9. The police officer who gave evidence of the interview the following morning was WPC Lee. Miss Chambers had told her that she had driven after drinking alcohol, but could not remember having a collision with any vehicle. Because, by that time, it had become known to the police that she was maintaining that she had consumed alcohol both before and after driving the vehicle, the police officers went to her home on the afternoon of 13th January. WPC Lee there completed a form TF7. It is recorded in that document, or in a statement dealing with that time of events, that Miss Chambers told WPC Lee that she had consumed alcohol after the accident, but she believed she would have been over the limit when she first drove to the shop.
10. The TF7 form, which is compiled by the police as a basis for the instruction of an expert witness in a case where there is forewarning of a defence based on the consumption of alcohol after driving, refers to the pre-driving consumption as three large glasses of white wine taken at 4.30, 4.50 and 5.10 pm. It also refers to the consumption of a further glass of white wine after driving at 6 o'clock and a vodka with orange juice at 6.20.
11. It will be observed that that account of vodka only after driving is at variance with what the respondent had told the police in interview at 9.27 that morning.
12. Prior to the hearing, the prosecution had obtained witness statements from a forensic scientist, Mrs Delia Kingsbury, and another forensic scientist, Dr Nigel Langford, had been instructed on behalf of the respondent.
13. There had obviously been some discussion between the experts because on the day of the hearing what happened was that an agreement had been reached between the experts as to certain matters. They had completed a joint statement, signed on 11th December, and, in the circumstances, only Mrs Kingsbury was asked to attend court.
14. She did. She was called by the prosecution before the close of its case, but she was giving essentially agreed evidence.
15. The interesting thing about that agreed evidence is that it was confined to the expression of opinions on the basis of two different scenarios: the one set out in form TF7; and a second one, the provenance of which appears to have been instructions from the respondent, presumably via her solicitor, to the expert witnesses, subsequent to her police interviews and the compilation of the TF7. It was to the effect of a larger intake of wine and vodka subsequent to the driving.
16. What the experts were not asked to consider, perhaps for good reason, was the scenario in which the respondent had consumed both wine and vodka before driving, the scenario to which she had admitted in the course of her interview, as found as a fact by the Magistrates.
17. On the two scenarios which the experts considered, the evidence, as recorded by the Magistrates, was as follows:

"We were told that the two experts considered both the drinking pattern outlined in the form TF7 and relied upon by the appellant and the drinking pattern proposed by the respondent and gave their conclusions based on each scenario. Although they had to assume that the wine was a standard 12 % alcohol by volume and taken in 250 millilitre glasses and that the vodka was a standard 37.5 % alcohol by volume, they agreed that the drinking pattern outlined in the form TF7 was consistent with the intoxilyzer reading obtained. However they were both of the opinion that it was unsafe to use that reading to calculate either forwards or backwards to establish the respondent's breath alcohol reading at the time of driving because there was only a 20 minute interval between the pre-accident drinking and the respondent driving such that the respondent's breath alcohol level was likely still to be rising. We were informed that in order to calculate forwards or backwards from the intoxilyzer reading it is necessary to be certain that all of the pre-accident alcohol has been absorbed into the blood stream and for the breath alcohol level to be falling, otherwise any forward or backward calculation would give a falsely high reading for the time of driving. Both experts were of the opinion that at the time of the incident the respondent's breath alcohol level could have been above or below the legal limit. If the theoretical contribution to the intoxilyzer reading of the postaccident alcohol consumption shown on the form TF7, estimated at 58 micrograms, were simply deducted from that reading, the experts calculated a reading of 65 micrograms in 100 millilitres of breath.

The drinking pattern outlined by the respondent of 300 millilitres of white wine at 9 % alcohol by volume prior to the incident and 450 millilitres plus 300 millilitres of vodka at 40 % alcohol by volume following the incident was also deemed consistent with the intoxilyzer reading but the experts agreed that such a drinking pattern would not have exceeded the legal limit at any time prior to the incident. The post incident alcohol consumption could have given a reading of approximately 140 micrograms in 100 millilitres of breath. If this is deducted from the intoxilyzer reading, the breath alcohol level at the time of the incident is likely to have been very low, possibly zero. Mrs Kingsbury added that pregnancy affects alcohol metabolism but that this cannot be studied".

18. Following the completion of the evidence, the advocate for the respondent made a submission of no case to answer. The Magistrates acceded to that submission. Their reasoning is stated in the following passage:

"We were of the opinion that the appellant had established that the respondent's breath alcohol level was over the legal limit at the time of the intoxilyzer procedure and section 15(2) presumes the level to be no lower at the time she drove her car. However, we regarded the joint statement of the two experts, Mrs Kingsbury and Dr Langford, as being evidence given by both parties so that there was evidence before the court from the respondent to negate the presumption in section 15(2) of the Road Traffic Act 1988. This led us to conclude that, having heard all the evidence for the appellant that it was not such that a reasonable tribunal might convict upon it, there being no evidence before us that the respondent's breath alcohol level was over the legal lime at the time she drove the car. There was therefore no evidence to prove this essential element of the first charge. Accordingly, we dismissed it without going further".

19. It is against that decision that the prosecution now appeal.
20. Before I say anything more about this, there is a procedural aspect to this appeal to which I ought to make brief reference. I observed at an early stage in the proceedings that the experts had nowhere referred to the evidence of the consumption of vodka prior to the incident. I accept that they were never asked to and that there may have been a good reason for that.
21. That led to some exchanges with counsel as to precisely what the evidence was that was before the Magistrates' Court. So far as the interview at 9.27 on the morning of 13th January was concerned, I was provided with two different documents headed "Record of Interview". Neither is a full transcript. One is significantly longer than the other. The longer one makes no reference to the consumption of vodka prior to the incident. The shorter one does contain such a reference.
22. That caused me some concern as to precisely what evidence had been before the Magistrates, and therefore as to the accuracy of the case stated. However, the matter having been ventilated and considered at some length, both parties expressed their contentment at proceeding on the basis of the case stated, and therefore on the assumption that the evidence that was given to the Magistrates was in the shorter form of record of interview containing the reference to pre-incident vodka consumption, rather than the longer document. Everyone being satisfied about that, I can now return to the substance.
23. The governing statutory provision is that in section 15 of the Road Traffic Offenders Act 1988, which provides:

"(1) This section and section 16 of this Act apply in respect of proceedings for an offence under section 3(a), 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 3(a) 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, it would not have been such as to impair his ability to drive properly".

24. I have been referred to a number of authorities dealing with that provision in its present context or in its previous incarnations, including Patterson v Charlton [1986] RTR 18, Beauchamp Thomson v DPP [1989] RTR 54, Mallard v DPP [1990] 91 Crim App R 108, Drummond [2002] RTR 21 and Gumbley v Cunningham [1988] 1QB 170.
25. I take those authorities into account, although it seems to me that the outcome of this appeal depends very much on the application of the words of the section to the particular situation that arose in the Magistrates' Court in this case.
26. I have come to the conclusion that the Magistrates erred by acceding to the submission of no case to answer. It seems to me that, when they were considering whether the respondent had discharged the burden of proving on a balance of probabilities that which must be proved under section 15(3), their first error was to consider the evidence only by reference to the expert evidence.
27. It is abundantly clear from the case stated that that was what they did. They confined themselves to a consideration of the two scenarios considered by the experts. They did not consider as part of the evidence the fact that the respondent had admitted at an earlier stage the consumption of vodka as well as wine prior to the incident. They certainly did not reject that admission. That is apparent from their findings of fact.
28. In the circumstances, I therefore consider it erroneous for them to have confined their attention at the point of the submission of no case to answer to those scenarios addressed by the experts.
29. The second error was to have regard at that stage to the final scenario, the provenance of which was what the respondent had told her expert. There was, of course, nothing wrong with the prosecution's expert being invited to comment upon that scenario in the expectation that it might become evidence in the case upon the respondent going into the witness box. However, prior to her so doing, that scenario had no evidential basis whatsoever. It was merely a hypothesis. As such, it was no more evidence than would be a hypothesis put to a witness by counsel in cross-examination.
30. It was not in the same category as answers given by the respondent to the police in interview or on the occasion of the compilation of the form TF7.
31. I cannot escape the conclusion that the Magistrates did have regard to that scenario at the point of the submission of no case to answer, or that they fell into error by so doing.
32. The third reason why I conclude that this appeal must be allowed is that, in my judgment it was irrational for the Magistrates to conclude that there was no case to answer on the basis of the drinking pattern outlined in form TF7 and the expert evidence upon it. In relation to section 15(3), the burden was and remained upon the respondent.
33. Having read the Magistrates' summary of Mrs Kingsbury's evidence, in my judgment, it was irrational to conclude that that evidence enabled the respondent to discharge the burden on the balance of probabilities.
34. Either that evidence justified a conclusion that the burden had not been discharged because of the calculation of 65 micrograms in 1 millilitres of breath, or it had not been discharged because of difficulties of calculation related to the time span. In no case could the respondent take the benefit of such difficulties.
35. For those three reasons, taken both separately and cumulatively, I conclude that the submission of no case to answer ought to have been rejected. Accordingly, the prosecution's appeal must be allowed. The decision of the Magistrates' Court will be quashed and I shall remit the matter to the Sutton Coldfield Magistrates for a rehearing before a differently constituted bench.
36. MISS SPEDDING: My Lord, may I make a submission on that final point?
37. MR JUSTICE MAURICE KAY: Yes.
38. MISS SPEDDING: It is in relation to the case of Patterson v Charlton. The result of that was that there was an upholding of the submission of no case to answer and the Magistrates held that. When the appeal by the prosecution was allowed, the case was remitted back to the Magistrates with a direction for the hearing to continue and precisely because the conclusion was that the defence had not at that stage given any evidence during the course of the hearing. In my submission, the procedure should be that the matter should go back to the Justices.
39. MR JUSTICE MAURICE KAY: When was this case heard?
40. MISS SPEDDING: My Lord, it was 1985, but nevertheless --
41. MR JUSTICE MAURICE KAY: No. When was the present case heard?
42. MISS SPEDDING: The case was heard in --
43. MR JUSTICE MAURICE KAY: Last December?
44. MISS SPEDDING: December, yes.
45. Nevertheless, the principle in Patterson v Charlton was that because the case had reached that stage and no evidence was given on behalf of the defendant, as your Lordship has held in this case, the matter was to go back before --
46. MR JUSTICE MAURICE KAY: It is not principle. It is one way of resolving the problem. In the circumstances of this case, I prefer the other one.
47. MISS SPEDDING: My Lord, so be it.
48. MR MCMASTER: My Lord, there is an application for costs.
49. MR JUSTICE MAURICE KAY: Yes. Do you have a figure?
50. MR MCMASTER: Yes. The figure is £900.
51. MR JUSTICE MAURICE KAY: The costs of the appeal?
52. MR MCMASTER: Yes.
53. MR JUSTICE MAURICE KAY: Miss Spedding, what do you say about that?
54. MISS SPEDDING: My Lord, Miss Chambers is legally aided in this case and has been throughout the proceedings in the Magistrates' Court.
55. MR JUSTICE MAURICE KAY: That does not necessarily protect her now, does it? Is the rule not that whenever you get criminal legal aid, the matter can be investigated at the conclusion of the proceedings?
56. MISS SPEDDING: My Lord --
57. MR JUSTICE MAURICE KAY: What are her circumstances?
58. MISS SPEDDING: My Lord, my instructions are that she is somebody of limited means. I do not have precise details because obviously she is not required to be here at court today, and I was not able to take precise details as to exactly what her means are.
59. But she certainly, given the facts of this case, is a single mother and it appears that she is somebody of limited means.
60. MR JUSTICE MAURICE KAY: Yes.
61. MISS SPEDDING: In those circumstances, I would submit that it would be difficult for her to meet any order for costs.
62. MR JUSTICE MAURICE KAY: We do not know anything about her means at all, really, do we? She did not have legal aid until Scott Baker LJ granted it for this appeal.
63. I am trying to find the order in the Magistrates' Court. You say she had legal aid in the Magistrates' Court?
64. MISS SPEDDING: Yes, she did.
65. MR JUSTICE MAURICE KAY: I do not like making pointless orders for costs, but is there any point in this one?
66. MISS SPEDDING: My Lord, I would submit not, given the limited amount of information we have about her.
67. MR MCMASTER: I am not in a position to assist regarding the respondent's financial means. Where there is simply no information, perhaps an order should be made.
68. MR JUSTICE MAURICE KAY: Should be? Then leave it to the question of enforcement?
69. MR MCMASTER: Yes. It is the duty of the respondent to furnish the court with her financial circumstances.
70. MR JUSTICE MAURICE KAY: Yes.
71. Do you want to say anything about the amount, Miss Spedding?
72. MISS SPEDDING: My Lord, I accept that the matter coming before this court, clearly there is additional expense.
73. I would ask your Lordship to take into account the fact that it was an appeal. The decision was made by the Magistrates and it was an appeal which essentially Miss Chambers, although of course having an input into it, perhaps it was somewhat beyond her control as to the course of her being involved in this appeal.
74. I would ask your Lordship to take that into consideration when considering the amount of the costs that she should personally pay.
75. MR JUSTICE MAURICE KAY: Yes.
76. MISS SPEDDING: May I assist any further?
77. MR JUSTICE MAURICE KAY: No. Thank you very much. Is there a schedule?
78. MISS SPEDDING: There is not, no. It was purely a telephone conversation that the figure of £900 was related to me.
79. MR JUSTICE MAURICE KAY: There have also been two occasions when the matter has been listed.
80. MISS SPEDDING: Certainly on one occasion, and I think the --
81. MR JUSTICE MAURICE KAY: This is the second of two occasions?
82. MISS SPEDDING: Yes. The matter was vacated on that previous occasion because there was difficulty with the defendant getting legal aid. As I mentioned, she was hospitalised.
83. But the cumulative effect of that has been that those who instruct me have incurred more work, and hence the figure of £900.
84. MR JUSTICE MAURICE KAY: Does she own her own home?
85. MISS SPEDDING: My Lord, I do not know that, but I certainly know that the area of Birmingham where she lives is perhaps not the most salubrious area.
86. My Lord, what I would also say, and I do not have the precise details, but there was certainly an amount of delay on the part of the prosecution bringing this appeal before the court --
87. MR JUSTICE MAURICE KAY: There was.
88. MISS SPEDDING: -- and there has been some difficulty throughout the course of it in actually obtaining information from the prosecution in order for the respondent to prepare its case.
89. Additionally, the second hearing in this case -- the first hearing was aborted or taken out of the list through no fault of Miss Chambers.
90. MR JUSTICE MAURICE KAY: I will order her to pay £500 towards the costs of the prosecution and any difficulties in relation to that will have to be pursued through the enforcement procedures.