England and Wales High Court (Administrative Court) Decisions

IN THE SUPREME COURT OF JUDICATURE
(QUEEN'S BENCH DIVISION)
DIVISIONAL COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		23/06/2006

Lord Justice Maurice Kay:

1. In the early hours of 16 October 2004 the Appellant was driving a Renault motor car along a road in Harlow when he was stopped by a police officer. The officer could smell alcohol on the Appellant's breath. A roadside breath test proved positive. At Harlow Police Station the intoximeter procedure was carried out and the Appellant provided two specimens of breath with readings of, respectively, 69mcg/100ml and 65mcg/100ml. The legal limit is 35mcg. On 26 July 2004 at Epping Magistrates' Court, the Appellant was convicted of an offence under section 5(1) of the Road Traffic Act 1988, fined and disqualified. He now appeals to this Court by case stated.
2. The case stated records that there was no dispute as to the proper functioning of the intoximeter machine. The findings of the Justices are to be found in two parts of the case stated, the first being described as their findings of fact, the second being the summary of their "opinion". The findings include the following:

" …the Appellant suffered from a medical condition of regurgitation of stomach content into the oesophagus with inadequate clearance by the oesophagus …

We found the Appellant a credible witness … We accepted that he had drunk one pint of Castelmaine at approximately 21.45 – 22.00, then 2 cokes/soft drinks and a bottle of Budweiser just before he left the Moat House at 01.30, prior to being stopped by the Police …

The experts for the Appellant and the Respondent agreed that the quantity of alcohol would be 10mcg/100ml of breath after consuming the amount accepted by the court. Their evidence differed on the likelihood of repeated reflux giving rise to the reasonably consistent readings in breath. We accepted the evidence of the defence expert … that repeated reflux could give the readings …

We were bound to follow Zafar v DPP [2004] EWHC Admin 2468. Our understanding of this case was that the findings of Zafar indicated no differentiation between deep lung breath (which would represent the blood alcohol) and breath contaminated by alcoholic mouth contents (such as regurgitated alcohol from the stomach). A high reading on the intoximeter could result from both … Therefore … the Appellant was guilty …

We made no finding on the meaning of the word 'consume' but rejection of regurgitation and reabsorption must be implied from our conviction as we did not find the Appellant not guilty on the basis of the 'hip flask' defence within which the defence was trying to include reflux and reswallowing."

3. The case stated in its original form posed two questions for the opinion of this Court:

"(1) Does the meaning of the word 'breath' within both section 5 of the Road Traffic Act 1988 and section 15 of the Road Traffic Offenders Act 1988 include breath expelled that has been infused with alcohol contents of the defendant's stomach by way of oesophageal reflux, then giving a reading that does not reflect the blood alcohol level?

(2) Can the word 'consume' within section 15(3) of the Road Traffic Offenders Act 1988 include the regurgitating of the contents of the stomach into the mouth or upper oesophagus and reabsorbing them?"

4. The first question raises the Zafar point. In dealing with it in that case, Silber J said (at paragraph 22):

"…I conclude that there is nothing in the Road Traffic Act or in the Road Traffic Offenders Act which suggests that the word 'breath' should have a special meaning or that the dictionary definition of 'breath' should not apply. It is noteworthy that the statutory provision refers to 'breath' and not to 'deep lung air'. What [counsel] is seeking to persuade us to do is to rewrite the statutory provision and that is not correct."

5. Although Mr Bryan is critical of this analysis, it is now settled law. Not only did the House of Lords refuse leave to appeal in Zafar; this Court came to the same conclusion, albeit obiter, in O'Sullivan v DPP [2005] EWHC 564 (Admin), para 32. In my judgment that analysis and conclusion are undoubtedly correct. In the circumstances, the answer to the first question posed by the case stated is in the affirmative.
6. There was debate in the submissions before us as to whether the case stated is defective for reasons of internal inconsistency. Mr Bryan submits that the passage containing a rejection of regurgitation and reabsorption is inconsistent with the acceptance of the Appellant's account of what he had had to drink and the agreed evidence of the experts as to what that would give rise to on breath analysis – that is, a reading well within the tolerance of the statute. There are two answers to this. The first is that the point is of no relevance because, on the basis of Zafar, there is no legal significance in the distinction between mouth breath following regurgitation and deep lung air. The second is that the rejection of regurgitation and reabsorption was not a rejection of the evidence of the Appellant and the experts. It was simply a rejection of a secondary argument to the effect that regurgitation followed by a second swallowing amounted to a further act of consumption which, because it occurred after the cessation of driving, raised the issue of the 'hip flask' defence provided by section 15(2) and (3) of the Road Traffic Offenders Act 1988. In other words, what the Justices were rejecting was "regurgitation and reabsorption" such as to amount to a further consumption. That was an ingenious argument designed, no doubt, to circumvent Zafar. However, it did not and cannot have that effect. Indeed, Mr Bryan does not suggest otherwise. It is common ground that the second question posed by the case stated must be answered in the negative.
7. Pausing there, it needs to be said that, although at first sight Zafar may appear harsh, this has to be seen in context. Breath specimens do not provide a precise calculation of how much alcohol a person has consumed. Nor would several people, each having consumed the same amount of alcohol, all produce the same analytical result. There are numerous variables, including age, size, gender, metabolic rate and so on. Parliament has nevertheless prescribed a universal pragmatic test, falling well short of a total prohibition on driving with alcohol in the body. It has done so in the knowledge that different people will be able to consume the same quantities of alcohol with different physical and legal effects. There can be no principled objection to that. Moreover, a defendant who produces a positive specimen as analysed by the intoximeter has chosen to drive after consuming alcohol and will already have provided a positive roadside specimen of breath. At least twenty minutes will have elapsed between the last consumption of alcohol and the provision of the roadside test. Prosecution will only follow if the intoximeter yields two readings above the 35mcg limit (in practice, above 39mcg for a decision to prosecute) and, where the readings do not exceed 50 mcg, there is a statutory right to require an alternative specimen of blood or urine. For regurgitation or reflux to prejudice a defendant, it must have occurred twice (once before each specimen) and with substantially similar results. In addition, the present prescribed procedure requires the suspect to be asked twice (once before and once after the evidential breath test procedure) whether he has brought up anything from his stomach. The scope for real injustice is extremely slight and, where it arises, there remains the further possibility of mitigating the penalty.
8. That brings me to the final issue raised by this appeal. The Justices were invited not to disqualify the Appellant because of "special reasons" relating to his medical condition. His tendency to regurgitation/reflux was well documented, although his evidence was that he had no recollection of its occurrence at the material times. The Justices concluded:

"We found that there was not a special reason not to disqualify because this would undermine Zafar and the defence submission was closely linked with defence argument at trial."

Elsewhere, they referred to the submission as being "no different" from the defence at trial.

9. Although the case stated did not pose a question in relation to this aspect of the case, it is common ground that the approach of the Justices was legally flawed. The parties agree that the case stated should be amended so as to include a third question, namely –

"Were we wrong to conclude that the Appellant's medical condition could not amount to special reasons, merely because the condition (if established and if relevant to the specimens provided) did not amount to a defence?"

10. "Special reasons" are now provided for in section 34(1) of the Road Traffic Offenders Act 1988 but the jurisprudence goes back further. Thus, in Wickens (1958) 42 Cr App R 236, 239, Devlin J referred to four requirements: (1) a special reason must be a mitigating or extenuating circumstance; (2) it must not amount in law to a defence; (3) it must be directly connected with the commission of the offence; and (4) it must be a matter which the court ought properly to take into account when considering sentence. The error of the Justices in the present case was to exclude special reasons at least partly on the basis that, as Zafar precluded a defence, so it precluded a finding of special reasons. It is plain from the requirements set out in Wickens that this is incorrect. Accordingly the third question (which we admit by amendment) must be answered in the affirmative. In these circumstances, it is necessary to remit the case to the Magistrates' Court for reconsideration of special reasons.
11. We have been concerned as to whether, on remittal, the issue of special reasons should be reserved to the same bench of Justices or whether the Court should be differently constituted. In my view the interests of justice do not require a different bench. Although the previous consideration of special reasons was vitiated by legal error, there is no reason to suppose that, upon revisiting the matter, the Justices will not be faithful to the guidance of this Court. At the next hearing, they will have to consider whether the Appellant has discharged the burden of establishing special reasons on a balance of probabilities. In particular, they will have to consider whether (1) the amount of alcohol which he had consumed was insufficient, without more, to exceed the prescribed limit; (2) whether, on each occasion when he provided specimens of breath for the intoximeter, he had regurgitated alcohol from his stomach into his mouth; and (3) whether it was regurgitated alcohol that caused the readings to exceed the prescribed limit. At the original trial, when the burden of proof was on the prosecution to the criminal standard, it seems to me that the Justices were not satisfied so as to be sure that the prosecution had refuted these propositions. The terms of the case stated do not disclose with total clarity that, on a balance of probabilities, they were all established affirmatively. The Justices will now have to address them from the perspective of the different burden and standard of proof to which I have referred and, if satisfied on a balance of probabilities as to those matters (and/or any other matters advanced as special reasons), will have to consider as an exercise of discretion whether not to disqualify or to disqualify for a shorter period. It is a two stage process: R v Newton [1974] RTR 451.

Mr Justice Mitting:

12. I agree.