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 WC2A 2LL
		4th June 2009

1. MR JUSTICE CALVERT SMITH: This is an appeal by way of case stated by the Director of Public Prosecutions. On 1st September 2008 at Telford Magistrates' Court, the respondent appeared charged with an offence under section 5(1)(a) of the Road Traffic Act 1988 and Schedule 2 of the Road Traffic Offenders Act 1988.
2. The facts found by the Justices, having heard evidence from the respondent and police officers who attended at his home, and the person who eventually administered the breath test to the respondent were:

1. That on 22nd March 2007 the respondent drank three pints of lager topped up with lemonade between 6 and 11 pm.

2. That he then went to his partner's home.

3. That he left his partner's home at 11.50 pm and drove home, arriving at 12.15 am the following morning.

4. That he then drank one and a half pints of cider and a cup of tea with a small whiskey in it.

5. That the drink taken by him prior to his driving the car was such that "it would be obvious to any person that three pints of lager topped up with lemonade would not be sufficient alcohol over a 5 hours and 50 minutes period to put him over the prescribed limit when he ceased driving.

6. That the matter was so obvious to the court that medical evidence to prove this point was not required.

3. The police evidence, in summary, was that officers arrived at the respondent's address at 2.19 am on 23rd March, by which time the house was in darkness. An officer searched the wheelie bin outside and found no evidence of drink related items. When arrested on suspicion of drink driving, the evidence was that the respondent's eyes had been glazed, he was unsteady on his feet and his speech was slurred. He said to them that he had had four pints in the Seven Stars public house. At 4.37 am that morning at the police station a blood sample was taken which gave a reading of 155, nearly twice the legal limit.
4. At court, as must already be clear, the respondent was unrepresented and sought to prove the proposition which the Magistrates later found. The law in these cases is governed now by section 15 of the Road Traffic Offenders Act 1988, formerly section 10(2) of the Road Traffic Act 1972. Section 15 reads:

"(1) This section and section 16 of this Act apply in respect of proceedings for an offence under section 4 or 5 of the Road Traffic Act 1988 (motor vehicles: drink and drugs); and expressions used in this section and section 16 of this Act have the same meaning as in sections 4 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, 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) If the proceedings are for an offence under section 5 of that Act or, where the accused is alleged to have been unfit through drink, for an offence under section 4 of that Act, that assumption shall not be made if the accused proves --

(a) that he consumed alcohol after he had ceased to drive, attempt to drive or be in charge of a motor vehicle on a road or other public place and before he provided the specimen, 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 the proceedings are for an offence under section 4 of that Act, would not have been such as to impair his ability to drive properly."

Those are the key parts of the section for these purposes.

5. That section and its predecessor had been considered in a number of cases by the courts. One case cited for the purposes of today's hearing is Patterson v Charlton [1986] RTR 18, a case decided under the old provisions, in which similar facts were present and Taylor J (as he then was) made it perfectly clear that the burden shifted to the defendant in a hearing before the Justices and the defendant therefore had to make out his case.
6. In Dawson v Lunn [1986] RTR 234, Robert Goff LJ (as he then was) dealt with a case which, on its facts, was similar to the present case, with drink being consumed before the defendant drove his car and more drink being consumed afterwards. The court in that case had relied on extracts from the British Medical Journal in which various claims were made as to the normal content of a pint of beer, for instance, and the normal rate at which alcohol diminishes in the period following its consumption; not dissimilar to what now appears in the current edition of Wilkinson's Road Traffic Offences. The Justices in that case attempted to work out the right answer from a photocopied page from that article and, having done so, they concluded that on the balance of probabilities, the drink that the defendant had consumed before ceasing to drive was not sufficient to take him over the limit, and accordingly they dismissed the charge. Robert Goff LJ went on:

"In my judgment this case shows vividly the dangers of laymen, in other words those who are not scientifically qualified, dabbling as amateurs in science. This applies to all of us who sit on the bench, whether lawyers or lay magistrates. It shows the desirability, when faced with scientific matters, of having the assistance of those who are qualified to help us deal with those matters. If we stand back from this case, what do we see? We see the Justices proceeding on the basis of the defendant having drunk one pint of beer at 7.30 pm, having drunk a second pint of beer at about 10 pm, having drank a third pint of beer at about 11 pm and being, at 11.30 pm, 50 per cent over the permitted limit and then concluding, on the balance of probabilities, that the defendant had proved that the third pint was the crucial pint which had taken him over the limit. Those are the bare facts of the situation, as to which commonsense provides a most valuable check."

He went on to indicate that in that particular case his view was that "there was no evidence on which the Justices could reach the conclusion which they reached". He then went on to add:

"In cases of this kind I have no doubt that there are circumstances in which, as a matter of commonsense, laymen can reach a perfectly sensible conclusion unaided by scientific evidence. We need only to take the simple case of somebody who satisfies the Justices on the evidence that he had drunk only a small amount before driving, and that after ceasing to drive he had drunk a substantial quantity of alcohol. The Justices can then conclude, as laymen, reliably and confidently -- and I take those words from a judgment to which I am about to refer -- that the defendant has satisfied them, on the balance of probabilities, that he has consumed alcohol after ceasing to drive and that had he not done so the proportion of alcohol in his breath, or blood, or urine would not have exceeded the prescribed limit. But there must be cases where the Justices cannot sensibly draw that conclusion themselves unaided by expert evidence.

In those circumstances, in my judgment, they should take advantage of the guidance which was given by Lord Widgery CJ in Pugsley v Hunter [1973] RTR 284."

7. In that case, which was cited to the Magistrates in the instant case, Lord Widgery CJ expressed his conclusions as follows:

"I am most reluctant to establish a rule which will be oppressive on defendants by requiring them to call, provide and pay for expert evidence in all cases of this kind, but I am eventually persuaded at the end of the argument that, unless the case really is an obvious one, unless the case is one where a layman can reliably and confidently say that the added liquor must explain the excess of alcohol, the only way in which a defendant can discharge the onus is by calling medical evidence. One will assume and hope that these cases will not be very frequent, but I reach the conclusion at the end of the case that where the facts are not obvious to a layman in the medical sense, it will be necessary for the defendant to call medical evidence in order to discharge the onus of proof which rests on him."

Having cited that passage, Robert Goff LJ continued:

"I respectfully adopt that passage but with this qualification. I have no doubt that Lord Widgery himself would have had in mind the possibility of scientific evidence other than medical evidence. In my judgment that passage is equally applicable to the defence which arises under section 10(2) of the Road Traffic Act 1972 as substituted."

8. Finally, the case of R v Andrew Drummond [2002] 2 Cr App R 25, [2002] EWCA Crim 527 , another so called "hip flask" defence case, this time under the section with which we are concerned today. In this case, the defendant raised the issue of whether section 15 was compliant with the European Convention on Human Rights. The court ruled that it was. The facts were, again, not dissimilar to the present: drink taken during the evening and drink taken following the conclusion of driving. At paragraph 31 of the judgment Longmore LJ said:

"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."

9. In this case the Crown contended before the Magistrates that the evidence given by the accused could not, on its own, make out the defence on the balance of probabilities under section 15 that the volume, as it were, of drink taken was not, as was said in one of the cases, the balance between a sip of wine on the one hand and a large amount of alcohol on the other. Here, the Magistrates, it is submitted, fell into error in that they did not examine the defendant's evidence against the background of scientific evidence which would have either supported or worked against the validity of the evidence given by the defendant; in particular the key questions as to whether he had taken alcohol after he had finished driving and whether the alcohol he took after he had finished driving had taken him over the prescribed limit.
10. I find the submissions of the Crown persuasive and hold that the Magistrates did fall into error in jumping to the conclusion they did, as set out in their case stated.
11. The Crown's first submission is that the case should be remitted to the Magistrates with a direction that they convict, on the basis that, had they dealt with the matter properly on the day in question, they would have been driven to convict because of the absence of any evidence explaining the way in which the 155 reading had been reached on the evidence given by the accused. As an alternative, they submit that the case should be remitted to the Magistrates with a direction that, absent further evidence called by the now defendant, they would be obliged to convict, but that the defendant, who was unrepresented at the Magistrates' Court and is unrepresented before this court, should have a chance to digest this judgment and consider whether he wishes to supplement his own evidence by medical evidence or scientific evidence, or a combination of the two, in order to attempt to make out his case. It seems to me clear that the second of those two options is the only just option. On the limited facts available to this court, we have an unrepresented defendant at the Magistrates and, in particular in the way the argument went before the Magistrates, it was incumbent upon him to call scientific evidence in support if he were to make out his defence. He should therefore be given the chance to do so at a resumed hearing.
12. So the order is that the case be remitted to the Magistrates at Telford with a direction that they allow the respondent the opportunity to reopen his case by calling further evidence. Failing that, they must enter a conviction against him for an offence of driving with excess alcohol.
13. MR MILLS: My Lord, in the circumstances there is no application for costs.
14. MR JUSTICE CALVERT SMITH: Thank you.