England and Wales High Court (Administrative Court) Decisions

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

		Royal Courts of Justice Strand London WC2A 2LL
		12 July 2007

1. LORD JUSTICE HUGHES: I will ask Treacy J to give the first judgment.
2. MR JUSTICE TREACY: This is an appeal by the Crown Prosecution Service by way of case stated. The decision challenged is that of the St Helens Magistrates' Court. On 20 June 2006, the Justices dismissed an allegation against the respondent, Paul Thompson, of being in charge of the vehicle whilst unfit through drink, contrary to section (5)(1)(b) of the Road Traffic Act 1988. At the trial all of the Crown's evidence was read as agreed. Mr Thompson gave evidence to the Justices. The Justices' findings of fact are set out in the case. They are as follows:

"On the 5th March 2006 at 23.15pm the Respondent's vehicle was observed on the car park of the Lidl Store in St Helens by PC Waldron and PC Adams. The reverse lights of the vehicle were illuminated but the engine was not running.

The Respondent was found to be in the vehicle asleep across the front seats. The keys were in the ignition and the heater fan was working. The gear stick was in the reverse position. An opened bottle of wine was on the front passenger seat.

The Respondent got out of the vehicle when asked to do so by PC Waldron. The Respondent was unsteady on his feet, his speech was slurred and his breath smelt of stale alcohol.

The Respondent was taken to the police vehicle, conveyed to the police station and taken through the drink drive procedure.

The Respondent was tested on the Camic Datamaster machine where he provided two samples of breath. The lowest reading being 106ug/100ml.

The Respondent was not interviewed until 09.26 the following day 6th March 2006 by PC Bennett and PC Moore. In interview the Respondent contended that he had no intention of driving the vehicle as he knew he was over the limit. The Respondent stated [to the police at arrest] 'I'm going home in the morning'.

The Respondent disclosed that the vehicle was a company van which he often slept in due to the nature of his employment. To facilitate this, the van contained a homemade mattress, made from insulation a sleeping bag and personal belongings. The Respondent agreed that he had not used the mattress and sleeping bag on that occasion.

The Respondent told the court of his movements of the afternoon and early evening of the 5th March 2006, and stated that he arrived at the van at approximately 21.00/21.15 pm.

The respondent told the court he lived 15 minutes away from the Lidl Car park and had sufficient money in his possession for a taxi. However he did not want to go home in that condition.

No expert evidence was adduced to show when the proportion of alcohol in the Respondent's breath/blood would have fallen below the prescribed limit.

The Respondent stated that he would not have driven until he felt 'alright.' He agreed that he did not know when the proportion of alcohol in his breath/blood would have fallen below the prescribed limit."

3. The Justices conclusions on those findings of fact were these:

"We accepted the evidence put for the prosecution case.

We were referred to the case of Sheldrake v DPP [2004] UKHL 43, which imposed a burden on the Respondent to show that on the balance of probabilities there was no such likelihood of him driving.

We accepted the Respondent had no intention of driving the Vehicle either at the time he entered the vehicle or at the time he was awoken by the Police Officers."

4. There are two questions posed by the Justices for this court to consider:

"Were the Justices correct in dismissing the case against [the respondent]?

Could the intention of a driver at the time of getting into his vehicle ever be enough to establish the defence afforded by section 5(2) Road Traffic Act 1988?"

5. In a nutshell the Crown's argument is that the Justices were in error. They applied the wrong test in coming to their decision. They wrongly focused, it was submitted, on Mr Thompson's stated intention that he would not drive until he felt fit, and appeared to have accepted that as decisive of this matter.
6. Section 5(2) of the 1988 Act is in these terms:

"It is a defence for a person charged with an offence under subsection (1)(b) above to prove that at the time he is alleged to have committed the offence, the circumstances were such that there was no likelihood of his driving the vehicle whilst the proportion of alcohol in his breath, blood or urine remained likely to exceed the prescribed limit."

7. It is plain that the burden of proof is on the defendant to prove that defence on the balance of probabilities.
8. The only evidence put before the Justices was from the respondent himself when he maintained that he would not have driven until he felt "alright". He agreed, during the course of his evidence, that he did not know when the proportion of alcohol in his breath or blood would have fallen below the prescribed limits.
9. It seems to me that the Justices did not focus sufficiently on the wording of section 5(2) in considering whether Mr Thompson had satisfied the statutory defence. Their conclusion that they accepted that the respondent had no intention of driving the vehicle either at the time he entered the vehicle, or at the time he was awoken by the police officers, does not direct itself to the statutory test at all. Section 5(2) is not primarily concerned with the person's intentions. They may be a factor to be considered, but the questions to be addressed are:

whether a defendant has shown that there is no likelihood of his driving the vehicle whilst the alcohol in his body remains likely to be above the prescribed limit.

10. The Justices have simply not asked those essential questions. They have stopped short. They have merely found what Mr Thompson's intentions were at particular times. A defendant's subjective intention cannot be decisive in circumstances such as these where he is: (1) affected by drink; (2) well above the prescribed level; (3) intends to drive when he feels "alright"; (4) would have no way of knowing when his blood/alcohol level would fall below the prescribed limit; and (5) has put forward no scientific evidence to indicate when that point might be reached.
11. I would answer the first question posed in the negative. I would answer the second question posed by holding that there might be circumstances in which the evidence of the driver's intention could satisfy the statutory defence. I would envisage them as most likely to arise where that evidence is accompanied by other compelling circumstantial evidence, or by expert scientific evidence. However, I can envisage circumstances where the evidence of the defendant alone might suffice if it showed that he would not drive until he was in fact below the prescribed level. That would be a matter for a court to consider in the individual circumstances of any given case, and no general answer to the question that has been proposed by the Justices can be given.
12. In my judgment this appeal should be allowed. The decision of the Justices should be quashed. The matter should be remitted to them for further consideration and the matter, which they should give further consideration to, is the application of the words of the statutory defence to the evidence which they have heard.
13. LORD JUSTICE HUGHES: I agree. In short the Justices' finding (c) focuses on the wrong time. It is addressed to the time that the defendant entered the vehicle and the time at which he was awakened by the police officers. The time that matters is whether there was any likelihood of his driving whilst he in fact remained over the limit. Accordingly, like my Lord, I would remit the case to the magistrates for them to consider the proper test.
14. MR MIUTZ: Would your Lordships allow legal taxation of the respondent's costs?
15. LORD JUSTICE HUGHES: Yes, I should think so, Mr Miutz. Thank you for coming. What about you, Mr Vollenweider?
16. MR VOLLENWEIDER: In the circumstances there is a very short schedule of costs. I can trouble the magistrates, I imagine, with that, in any event.
17. LORD JUSTICE HUGHES: Do you need an order from us for costs from central funds? I do not expect you do?
18. MR VOLLENWEIDER: I do not need an order from Central Funds, but rather an order for costs against the defendant in the terms of the schedule.
19. LORD JUSTICE HUGHES: He is legally aided.
20. MR VOLLENWEIDER: He is practically. We may not get it. I still have to ask.
21. LORD JUSTICE HUGHES: Thank you. Can you tell us anything at all about his means?
22. MR MIUTZ: I am afraid I cannot.
23. LORD JUSTICE HUGHES: That question is addressed to Mr Vollenweider first. It is coming to you later.
24. MR MIUTZ: I think he only attended the solicitors the day before yesterday.
25. LORD JUSTICE HUGHES: Do you know?
26. MR VOLLENWEIDER: I am afraid I know nothing of his circumstances other than the fact that he is obviously employed as a van driver.
27. MR MIUTZ: I accept he was convicted last year.
28. LORD JUSTICE HUGHES: You mean he has been convicted other than this offence?
29. MR MIUTZ: I do not know.
30. THE VOLLENWEIDER: His last conviction was in 2000.
31. LORD JUSTICE HUGHES: We shall make an order for costs against the respondent. We think we know enough about him to say that he ought to pay the costs, but not in the sum which is claimed. We make an order limited to £500. Thank you both for your help.