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
		30 October 2009

1. LORD JUSTICE ELIAS: I will ask Mr Justice Openshaw to give the first judgment.
2. MR JUSTICE OPENSHAW: This is an appeal by the way of case statement from a decision of York Magistrates' Court on 18 September 2008, by which they acquitted the respondent, Azem Dukolli, upon a charge of driving a motor vehicle with excess alcohol, a charge contrary to Section 51A of Road Traffic Act 1998. The facts which the magistrates found were as follows; at 3.15 in the early hours of Sunday, 11 May 2008, a police officer saw a Mazda stopped in a lay-by on the A64, Barton Le Willows near York. The respondent, who had been driving, was standing by the vehicle. The officer asked him if he had had anything to drink. He said he had had a lager at about 11 o'clock the night before. The officer then administered a road side breath test which gave a reading of 59 micrograms of alcohol in 100 millilitres of breath. The limit is, of course, 35. The respondent was arrested. There was an open bottle of vodka on the rear seat. The defendant was taken to the police station at York, where he gave a further specimen of breath, the lower of two readings was 51 micrograms grams of alcohol in 100 millilitres of breath. When giving that specimen of breath, he incidentally repeated again that he had not had a drink after he had stopped driving. Later he was formally interviewed. He said that he had had a shot of vodka after work at 6 o'clock the previous evening, followed by a bottle of lager at about 11 o'clock. He said that after he started to drive his vehicle, he did not feel, as he put it, all right, and he pulled over to the lay-by and decided to sleep. He was again specifically asked in his interview if he had consumed any alcohol after he had stopped the vehicle, and he said he had not.
3. The respondent gave evidence at the trial when he had repeated that he had had a shot of vodka after leaving work and a single bottle of lager at about 11 o'clock in the evening. He said he had left his house at about quarter to two on Sunday morning intending to drive to London with his youngest son. He began feeling sleepy. He pulled over onto the lay-by, where he got out of the car and he had a cigarette and another shot of vodka, which he said he swallowed as the police approached. He explained that he had not said this to the police during the course of his interview, since he thought it would be worse for him if he told them he had had a drink in the lay-by. He denied that he had stopped driving because he knew that he was over the limit. The magistrates were reminded by the prosecution that the defendant had not called any medical or scientific evidence, but notwithstanding that, they found as follows, and I quote from their findings:

"The respondent was a credible witness. The respondent had alcohol in his system when he was driving from home on the A64. Due to the late hour, the respondent stopped his vehicle because he was tired. The respondent denied any post-driving consumption at the roadside to the police and in a subsequent interview because he thought this would make matters worse for him. The respondent was nervous, English was not his first language and he had a young son with him in the vehicle. We found as a fact that he wanted matters dealt with quickly.

"The respondent only consumed a mouthful of vodka in the lay-by and it was this alcohol, coupled with the alcohol already consumed earlier that was in his system, that placed the respondent's breath alcohol level over the prescribed limit."

4. They were of the opinion that the respondent had not been "in drink" as they put it when he drove from his home address. Accordingly, they were persuaded on the balance of probabilities that it was the alcohol which he had consumed after he stopped driving which caused him to be over the prescribed limit. They therefore found the respondent not guilty and dismissed the charge.
5. The magistrates posed two questions for the opinion of this court:

"Could a reasonable bench, properly directing itself, have concluded that the defendant had successfully discharged the burden of proof, having regard to Section 15.3 of the Road Traffic Offenders Act 1988 in the light of all the evidence before the court, and in particular the lack of scientific evidence?

"Do magistrates have a discretion to find the statutory assumption in Section 15.2 of the Road Traffic Offenders Act 1988 discharged as per Section 15.3 without the benefit of scientific evidence?"

6. Section 15.2 of the Road Traffic Offenders Act 1988 provides:

"It shall be assumed that the proportion of alcohol is not less than that revealed by the certificate of analysis of the specimen of breath."

7. Section 15.3 provides:

"This statutory assumption may be displaced if the accused proves that he had consumed alcohol after he ceased to drive, before he provided the specimen, and that had he not done so the proportion of alcohol would not have been above prescribed limit."

8. It should be noted that the defendant therefore bears the burden of proving on the balance of probability (a) that he consumed alcohol after he ceased to drive; (b) that it was that alcohol which pushed him over the limit; and (c) which is the corollary of (b) that but for the alcohol which he had consumed after he stopped driving, the alcohol level in his body when he was driving would have been under the prescribed limit.
9. We have been referred to the case of Dawson vs Lunn 1986 RTR 234, which was another hip flask defence case. Lord Justice Robert Goff referred to the guidance given by Lord Widgery, a Chief Justice, in Pugsley vs Hunter 1974 RTR 284, when the defendant was running a laced drink defence in support of his claim that there were special reasons why he should not be disqualified, which as Lord Justice Goff observed, also cast a burden on the defendant to prove that alcohol consumed at a certain time could produce a certain effect. He could see no material distinction between a laced drink defence and a hip flask defence. Quoting from Lord Widgery's judgment in Pugsley vs Hunter at page 290K:

"I am most reluctant to establish the rule which will be repressive 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 alcohol, the only way in which the 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 a medical sense, it will be necessary for the defendant to call medical evidence in order to discharge the onus of proof which rests upon him."

10. Lord Justice Robert Goff expressly adopted that passage with the single reservation that he thought that scientific evidence would suffice as an alternative to medical evidence. There are a number of cases in the reports where this principle has been applied, for example, the Director of Public Prosecutions vs Singh 1988 RTR 209, where an acquittal was set aside on the grounds that the magistrates could not without expert evidence have reliably and confidently concluded that the defendant had established that the alcohol consumed after driving was sufficient to account for his exceeding the prescribed limit. So the defendant, having failed to call the evidence had failed to discharge the burden of proof upon him, and the magistrates should have convicted him. Mr Justice Hutchinson pointed out another reason why justices should normally expect to have the advantage of hearing expert evidence in that it is very easy for a driver to allege that he has had a drink after he has stopped driving, and there is a strong incentive for a driver, fearful of conviction and disqualification to make such an allegation. He said this:

" ... not only because expert evidence may assist justices in deciding whether, assuming that the defendant's evidence is true, the defence is established, it may also provide valuable assistance to them in deciding whether that evidence is true."

11. It is for this reason that I have always understood that except in rare cases where it is unnecessary, it has been the standard practice for many years for defendants to call medical or scientific evidence when running a hip flask defence if they are to stand any real chance of success. A recent example at this court, reasserting this principle, is to be found in DPP vs Bolton 2009, EWHC 1502 Admin, where Mr Justice Calvert Smith at paragraph 9 said:

"The magistrates, it is submitted, have fallen into error in that they did not examine the defendant's evidence against the background of scientific evidence which would either have supported or worked against the validity of the evidence given by the defendant; in particular, the key question 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."

12. In this case, there was a real issue whether the defendant was a credible witness, not least because what he said in court contradicted what he said to the policeofficer at the time of his arrest, at the time of giving the breath test and indeed in interview. In addition, aspects of his account, such as swallowing a mouthful of vodka as the policeman approached, seemed inherently unlikely. This is, in my judgment, is precisely the kind of case where expert evidence is important. Expert evidence would, or certainly may have, enabled the justices to test whether the readings given were consistent with the defendant's account, and may very well have led to the conclusion that they were not. Furthermore, even if they accepted his story of having a mouthful of vodka, it is not at all obvious to me that a lay person would have found that that mouthful explained or even could have explained the excess. For these reasons, in my judgment, in the absence of medical or scientific evidence called to support his version, the magistrates were wrong to find that the defendant had discharged the burden of proof.
13. I turn then to the questions as asked:

"Could a reasonable bench, properly directing itself, have concluded that the respondent had successfully discharged the burden of proof, having regard to Section 15.3 of the Road Traffic Offenders Act 1988 in the light of all the evidence before the court, and in particular the lack of scientific evidence?"

14. Answer; no:

"Do magistrates have a discretion to find the statutory assumption in Section 15.2 of the Road Traffic Offenders Act 1988 discharged as per Section 15.3 without the benefit of scientific evidence?"

15. Answer; yes, but only in the comparatively rare case where a layman can reliably and confidently say that the alcohol taken after the driving must explain the excess which was not the position here. Accordingly, I will send the case back to the magistrates with a direction to convict.
16. LORD JUSTICE ELIAS: I agree. Mr Madden, in an attractive argument, submitted that the key feature here was that the magistrates had accepted the credibility of the defendant, and that involved accepting the key piece of his evidence that before driving this car, he had drunk only a shot of vodka at 6.30 pm, and a bottle of Stella lager at 11 pm. In those circumstances, it was abundantly that what he had drunk prior to driving would not take him over the limit. He submits that if one looks at the authorities, in particular, Dawson vs Lunn 1986, Road Traffic Reports 234, Pugsley vs Hunter 1973 1 WLR 578 and more recently, DPP vs Bolton 2009 EWHC 1502 Admin, these are all cases where there was an issue as to whether the amount drunk by the defendant prior to driving may have explained why the breath test was positive. In those circumstances, Mr Madden says, it is understandable why the court requires expert medical or scientific evidence if the defendant is going to overcome the burden placed on him by Section 15(2) of the Road Traffic Offenders Act 1988. However, he argued that this feature is absent here, and it would quite wrong to dictate to a defendant that he should produce scientific or medical material, purely for the purpose of allowing his own credibility to be tested by the prosecution.
17. The difficulty I have with this submission is that it seems to me that it is impossible to separate out in this case what the defendant had drunk before driving the car with what his evidence was as to what he had drunk later. The evidence as stated by the magistrates when stating the case was that he had had a mouthful of vodka after ceasing to drive. It is far from being obvious, it seems to me, to any lay magistrate that that could explain the high reading that was recorded when he took the breath test. In those circumstances, it seems to me that he had to produce expert evidence in order to assist the magistrates in evaluating that particular evidence. That, of course, necessarily meant that they would test the whole of his evidence and his credibility in the light of that scientific evidence.
18. As Mr Justice Openshaw has pointed out, the potential for abuse in hip flask defences of this kind is potentially very great, and in most surmisable circumstances it will be necessary for expert evidence to be adduced. I do not say that will be necessary in all cases, but I am satisfied that here, in view of the findings made by the magistrates, in particular in view of the question as to whether the vodka allegedly drunk after the driving could have explained the reading, it seems to me the burden placed on Section 15(2) could only be effectively discharged with the assistance of the expert evidence.
Post-judgment discussion
19. MR MADDEN: My Lord, may I address you very briefly on the direction that the case returned to magistrates with a direction to convict. The issue identified by your Lordships is that with a lack of expert evidence the defendant could not and did not -- and the magistrates should not have found that he discharged the burden against him, because there was no scientific evidence with regard to effectively a mouthful of vodka. I wonder whether the court would entertain that that remains therefore potentially a live issue on which medical and scientific evidence could properly be called? The simple question that remains is whether a mouthful of vodka could have produced that reading.
20. LORD JUSTICE ELIAS: I think the difficulty, with respect, Mr Madden, is this is not a case like Bolton where the defendant was unrepresented throughout. He was represented by you. This is not a criticism, but it seems to us that in those circumstances, in a sense, you have had your chance to as whether or not you adduce this evidence, and you took a decision, which may well have been a perfectly proper decision, not to seek that evidence.
21. MR MADDEN: May I make it clear, I have not been involved in the case until this stage. Given this is a case where the defendant has been acquitted, and the decision to acquit was wrong from your Lordships' finding, of course, I think it proper I make the submission on his behalf that therefore the acquittal may be wrong, but that does not automatically mean that as a finding of fact by a court, he is therefore guilty. Certainly, it is proper for me to make the submission that having found they made a wrong decision, it should be sent back to them to reconsider that decision. Then, of course, it is open to those who instruct me, and indeed the defendant, whether he wishes to adduce evidence, which at least for the first court was not required. But I make the submission that them having made the wrong decision does not --
22. LORD JUSTICE ELIAS: It is a perfectly proper submission to make, and I meant to put the point to you before we went out, that if you would like --
23. MR THORNE: I would respectfully submit that it is a necessary implication of the decision that no reasonable bench could have acquitted, faced with the facts, the only reasonable decision was to find the case proved. This was a man who was represented at trial before four magistrates, unlike the case of Bolton. I would say that the trial took place (inaudible) the defendant chose not (inaudible). The evidence was not sufficient for him to discharge the burden. Crucially perhaps, it is his burden. So to say effectively that because the acquittal was wrong, it does not mean he was necessarily guilty. This issue was the only point on which the Crown had the burden. The burden rested with the defendant to show that the alcohol and the test was attributable to alcohol consumed post-driving. The decision today is that the magistrates in finding that he had discharged that burden, reaching a reasonable conclusion --
24. MR JUSTICE OPENSHAW: There is another point is there not, that unless defendants running a hip flask defence call expert or scientific or medical evidence at the time of the trial, they can always not do so and run it, and only consider the expert evidence if they lose in the divisional court?
25. MR THORNE: Well, yes, that is the implication. I don't know if there is any further point that I can make to your Lordships. In my submission, the direction indicated is the correct one.
26. LORD JUSTICE ELIAS: I am sorry, Mr Madden, I think we are going to stick with the direction. Thank you for your submissions.
27. MR THORNE: My Lords, forgive me, but I understood this morning that the defendant was to be unrepresented, it had not occurred to me that there might be a need to make an application for costs in this case. I am not sure what the usual practice would be when it is a prosecution appeal. Could I ask for an order for costs? The schedule will be served within seven days and it can taxed, if not agreed.
28. MR JUSTICE OPENSHAW: Is the respondent legally aided?
29. MR THORNE: According to the magistrates, he is.
30. MR MADDEN: I am afraid I have not got that within my instructions, the basis of his representation. My understanding is that he is, but I may wrong, I don't want to mislead the court.
31. LORD JUSTICE ELIAS: I think in the normal way there would be an order for costs, unless you are legally aided.
32. MR MADDEN: Yes.
33. LORD JUSTICE ELIAS: So I think we will make the order, but conditional on your not being legally aided.
34. MR MADDEN: I am grateful.
35. MR THORNE: I am grateful.
36. LORD JUSTICE ELIAS: It saves anyone coming back to court. Thank you very much indeed.
37. MR JUSTICE OPENSHAW: Thank you.