Scottish High Court of Justiciary Decisons

At advising on 4th November 1971,—

LORD WHEATLEY .—The appellant was charged with an offence under section 1 (1) of the Road Safety Act, 1967. It is an accepted fact that he had been involved in an accident within the meaning of section 2 (2), and that there-after he was subjected to breathalyser tests and provided a sample of blood which on subsequent analysis was found to contain 238 milligrammes of alcohol in 100 millilitres of blood, as evidenced by the certificate produced.

No question was raised about the propriety of any of these procedures. It was found in fact that after the accident the appellant got out of the car, and for about half an hour carried out certain work on the engine. During this time he and his passenger, a man named Riddick, who remained in the car, consumed some alcohol. The appellant knocked his head on the raised bonnet of the car, sustaining an injury which resulted in severe bleeding. He was in due course taken by a passing car to a local doctor, and thereafter by ambulance to the local infirmary. There, about 2 1/2 hours after the accident, the various procedures under sections 2 and 3 were carried out, the appropriate consent of the doctor in charge of the appellant having been obtained.

Evidence was given by the appellant and Riddick regarding the alcohol consumed by the former during the half-hour period between the accident to the car and the injury sustained by the appellant to his head. The appellant deponed that he had only had one beer before starting the journey, but had consumed approximately two bottles of lager and most of a half bottle of whisky while attempting to repair the car. Riddick, who was adduced as a witness by the prosecution, corroborated him on the amount of alcohol which he had consumed during this later period. The Sheriff-substitute stated that he was not favourably impressed by the truthfulness of either the appellant or Riddick, but while he could not accept their evidence in detail, he was prepared to accept that the appellant had been sufficiently irresponsible to consume some alcohol while attempting to repair his car. He was not, however, prepared to accept as proved the precise amount of alcohol spoken to by these witnesses.

The only other finding of relevance is that on the following morning the appellant's car was pulled out of the hedge with the aid of a tow rope attached to another vehicle.

The Sheriff-substitute rejected an argument advanced by the appellant's solicitor that, if the Court accepted that any alcohol was consumed by the appellant during the time he was attempting to repair the car, then that eo facto invalidated the evidential effect of the certificate. In doing so he considered that he was following the decision of this Court in Wood v. Brown and the ruling and the expressed opinion of Lord Justice-Clerk Grant in the case of H. M. Advocate v. Laurie . When deciding this point he consciously followed this line of authority in preference to a different line of authority in England, as he was indeed bound to do. He has explained in his note that, if he had been of the view that the appellant had consumed alcohol during the time he was trying to repair his car in such a quantity as to account for the excess over the prescribed limit, then, subject to a further consideration which will be dealt with later, he would have felt obliged to acquit the accused. This approach seems to me to consist with the line taken and the view expressed by the Lord Justice-Clerk in H. M. Advocate v. Laurie . He goes on to explain, however, that all that he was able to find was that during that crucial half-hour the appellant consumed an unknown quantity of alcohol, the effect of which in terms of milligrammes per 100 millilitres of blood was not explained in evidence. He then proceeds to consider the question of onus and says:

"While it is, of course, for the Crown to prove its case, it seems to me that, in general, the Crown is entitled to rest its case on proof that an accused person was driving and on the evidence provided by the analyst's certificate. If the effect of that certificate is to be negated or modified in some way so as to avoid a conviction, I am of opinion that it is for the accused to do so, firstly, by leading satisfactory evidence of the amount of alcohol consumed after driving stopped, and secondly, by leading acceptable evidence to show the effect which that amount of alcohol has on the figure disclosed in the analyst's certificate. In this connection I consider that my view finds some support in the opinion of Lord Wheatley in Wood v. Brown, where he says (at p. 300): ‘In my opinion the subsection simply provides that the amount of alcohol found in the blood at the time the specimen is provided will be presumed to be the amount of alcohol in the blood at the time of driving. The prosecution is entitled to rest on this evidential presumption, but if it is established in evidence that some new element has been introduced, such as the lapse of time or the ingestion of more alcohol before the test, then the Court must, in my view, have regard to the effect of that new element on the legitimacy of the presumption in relation to the basic question.’"

That ends his quotation from Wood v. Brown and my citation from his note. He goes on to state, however, that in this case there was no acceptable evidence concerning the actual quantity of alcohol consumed during the critical period and no evidence of any kind to show what effect such alcohol would have in relation to the figure in the analyst's certificate. He rejected a submission by the appellant's solicitor that it was unnecessary to lead expert or technical evidence on this latter point, since the submission seemed to involve that it was within judicial knowledge how much alcohol would invalidate or at least throw reasonable doubt on the evidential value of the certificate. On the ground that there was no acceptable evidence to detract from the presumption created by the evidence for the respondent, he convicted the appellant.

In his note he explains that, even if he had reached a different conclusion on this point, he would still have convicted the appellant on the ground that the appellant for the purposes of section 1 (1) of the Act was still driving the car right up to the moment when he sustained the injury to his head, i.e. during the period when the additional alcohol was consumed. If he was right in so holding, then the question raised by the previous point does not fall to be considered. In coming to that conclusion he considered that he was following a line of authorities both in Scotland and in England, namely, Copeland v. M'Pherson, Smith v. Fyfe, Pinner v. Everett, and Stevens v. Thornborrow . Despite the fact that the attempt to repair the car occupied a period of half an hour, he formed the view that, since the appellant stopped and alighted from the car in order to try to effect a mechanical repair, with the intention of resuming his journey if he succeeded in effecting the repair, he was still in the category of a person driving a vehicle.

It seems to me to be logical to consider the latter point first, since, if the Sheriff-substitute reached a correct conclusion on it, the former point does not arise. I have come to the conclusion, however, that his reasoning thereanent is faulty.

I do not consider that there can be a complete equiparation of the criteria under section 2 (1) and section 1 (1) so far as driving or attempting to drive is concerned. Under section 2 (1) the requirement by a constable for any person driving or attempting to drive a motor vehicle on a road or other public place to provide a specimen of breath for a breath test there or nearby cannot normally be made when the person is actually driving the vehicle. In that situation the Courts in Scotland and England have held that a person may fall within that subsection although not actually driving or attempting to drive a vehicle. I do not find it necessary to examine the criteria set forth in the decisions in both countries for determining whether a person does or does not fall within what the Scottish Courts have described for this purpose as the category of persons from whom a breath test may be taken under the subsection. This is a procedural subsection, not one which lays down the particular offence, which is comprehended in section 1 (1). The practicabilities of the procedure envisaged made it necessary to give a wider definition to a person driving or attempting to drive than the narrower definition restricted to the physical act. Non constat that the same considerations should be applied when considering the definition to be given to the phrase in section 1 (1), namely, "If a person drives or attempts to drive a motor vehicle …" This is a penal subsection, and the gravamen of the offence is driving or attempting to drive a vehicle having consumed alcohol in such a quantity that the proportion thereof in the blood as ascertained by a laboratory test from a specimen provided exceeds the prescribed limit. The basic test may be, as I said in relation to a section 2 (1) case in Smith v. Fyfe (at p. 25), a question in each case of fact and degree, but the facts and the degrees may not be the same in the respective cases. The fact that a person driving a vehicle has stopped at traffic lights or at a road block may not take him out of the ambit of section 1 (1). I find it unnecessary in this case to seek to define the limitation of such an extension of the phrase. Indeed it might be difficult, if not impossible, to do so in the abstract, unless of course I am wrong and section 1 (1) requires the very rigid literal interpretation of "driving." It is sufficient for the disposal of this case to say that in the circumstances here present, when the appellant had got out of his car, and was engaged for a period of half an hour in seeking to repair a mechanical fault, he was not engaged in driving or attempting to drive the car during that period within the meaning of section 1 (1), even if he intended to proceed on his journey if the fault was rectified. On any reasonable view it seems to me that the nexus of his driving for the purposes of that subsection was broken. I cannot therefore accept the alternative reasoning of the Sheriff-substitute, and consider that he misdirected himself in law in making the approach which he did, and holding that the intention ultimately to resume driving preserved the nexus.

This brings me inevitably to what I regard as the main issue in the case. The argument presented by the appellant's solicitor in the Court below was to the effect that proof of consumption of any sizeable quantity of alcohol after the appellant had ceased to drive cast such a reasonable doubt on the evidential value of the analyst's certificate that the Court could not convict. There would seem to be support for this view in the decision of the House of Lords in the case of Rowlands v. Hamilton and in the decision of the Court of Appeal in England in the case of Regina v. Durrant . On the other hand, the Sheriff-substitute was faced with the decision of this Court in Wood v. Brown, where it was held that, if some new element was introduced, such as the subsequent consumption of alcohol, then the Court must have regard to the effect of that new element on the legitimacy of the presumption which the subsection provided via the certificate. That was all that was required to be said in Wood v. Brown for the disposal of the issue therein raised (it having been decided by the Court below that the subsequent consumption of alcohol should be ignored) and it was unnecessary to consider further how, and under what conditions, the Court should have regard to that new element. The situation was, however, further developed by the Lord Justice-Clerk in H. M. Advocate v. Laurie, where he rejected an objection to the Crown leading evidence to establish that the amount of alcohol consumed would not have brought the alcohol content in the blood down below the prescribed limit. In so deciding the Lord Justice-Clerk was holding that evidence for such a purpose was legitimate, and was both following and taking a step further the point established by the decision in Wood v. Brown, to which he was a party.

I now turn to examine the decision reached by the majority of their Lordships in Rowlands v. Hamilton . In that case, too, there was evidence of post-driving consumption of alcohol. At the trial the Crown sought and were allowed to lead evidence of a forensic expert to the effect that, discounting the post-driving consumption of alcohol, the analysis of the specimen would have shown that the proportion of alcohol in the blood would have exceeded the prescribed limit. On the basis of that evidence the accused was convicted. In dismissing an appeal by the Crown the House of Lords held, affirming the Court of Appeal, (Lord Pearson dissenting) that the Act prescribed the manner in which the proportion of alcohol in the blood is to be determined, namely, the proportion as determined by the laboratory test of the specimen of blood supplied (as evidenced by the certificate), and in no other way, and that accordingly, if the fact that the prescribed limit was exceeded as a result of consumption of alcohol before driving ceased was established not by the result of the test but by the evidence of an expert witness, the accused was convicted not on the result of the test but on the expert's evidence. The quashing of the conviction by the Court of Appeal was accordingly affirmed. If follows from this decision that any accepted evidence of post-driving consumption of alcohol must result in an acquittal— of. Viscount Dilhorne at p. 656. Thus, no matter how high the proportion of alcohol in the blood may have been, as disclosed by the test, and how little alcohol was consumed after driving stopped, the certificate ceases to have any evidential effect and the accused must be acquitted. This leaves an obvious loop-hole in the Act, but if that is the proper construction of the Act, then, however unfortunate it may be, it must remain until amended by legislation.

That decision is, however, quite contrary to the decisions in Scotland in the cases of Wood v. Brown and H. M. Advocate v. Laurie . It is unfortunate if different interpretations are to be given to the same U.K. statute by the Courts in Scotland and England. It is perhaps also unfortunate that, so far as the report discloses, the decision in Wood v. Brown was not before their Lordships of the House of Lords when Rowlands v. Hamilton was argued and decided. H. M. Advocate v. Laurie was only reported after that decision was given, and could not have been before their Lordships. If the decision of this Court in Wood v. Brown had been before the House of Lords in Rowlands v. Hamilton, and had been dealt with by their Lordships, it is possible that I might have found in the speeches arguments to persuade me that we had reached a wrong conclusion in the former case. In the absence of that, I have considered these speeches carefully to see whether they persuade me that the decision of this Court was wrong. Had I thought so, I would have recommended to your Lordships that we should send this case to a larger Court to determine whether the decision in Wood v. Brown (and also in H. M. Advocate v. Laurie ) should stand or be reversed or altered, since Wood v. Brown is a binding authority on this Court.

I have examined the speeches in the House of Lords with great care. I note, however, in the first place, that there was a dissenting judgment from Lord Pearson on the primary issue as to whether evidence relating to qualification or modification of the analyst's certificate is permissible. In that respect he was following the same line of reasoning as was followed in Wood v. Brown . He went on to express a view which seems to involve the question of onus, and I leave over for later consideration my views on this point. I also note that Lord Reid thought that the relevant provisions of the Act are reasonably capable of a construction which would have enabled the appeal there to succeed (i.e. to hold that the further evidence was competent), but since he also thought that the relevant provisions are capable of a construction which required the appeal to be dismissed, he was of the opinion that the doubt must be resolved by accepting the construction favourable to the accused. For that reason he agreed with the majority of his colleagues in dismissing the appeal. The views of Lord Morris of Borth-y-Gest, Lord Guest and Viscount Dilhorne, all of whom thought that the appeal should be dismissed, can be conveniently summarised as follows, without, I hope, doing an injustice to their reasoning. The Act provides that the amount of alcohol in the blood shall be determined from the specimen of blood (or urine) supplied by the "driver," which is later subjected to a laboratory test. The result of that test is conclusive. It is the only evidence on which the Crown can rely. It cannot be replaced by any other form of evidence. If, therefore, there is evidence that the "driver" has consumed alcohol after he has ceased to "drive," this vitiates the validity of the certificate, because it is no longer a certificate relating to the amount of alcohol in the "driver's" blood when he was "driving," but relates to that condition plus a superimposed condition induced by a subsequent consumption of alcohol. In these circumstances, evidence designed to establish that this subsequent consumption of alcohol would not have so reduced the effect of the certificate as to show that the amount of alcohol in the blood was less than the prescribed amount is inadmissible. If it were otherwise, the conviction would proceed not on the evidence of the certificate, but on expert evidence, yet the statute made the result of the laboratory test as embodied in the certificate the only test. I can follow this line of reasoning, but in my respectful opinion it proceeds from a wrong approach. Except on the question of onus I find myself much more in harmony with the reasoning of Lord Pearson in his dissenting speech. In my opinion it follows more closely the pattern laid down in the Act. I shall endeavour to express my view along similar lines, although perhaps in different terms.

Section 1 (1) of the Act makes it an offence, if a person drives having consumed alcohol in such a quantity that the proportion thereof in his blood, as ascertained from a laboratory test for which he subsequently provides a specimen under section 3, exceeds the prescribed limit, namely 80 milligrammes of alcohol in 100 millilitres of blood. How then does the prosecution set out to establish the charge? In the first place it must be proved that the accused was driving the vehicle. It must then be proved that at that time he had consumed alcohol to such an extent that it contravened the sub-section. How is that to be done? Under section 1 (1) the proportion of alcohol in the blood is to be as ascertained by the laboratory test of the specimen provided. This must mean that the amount of alcohol in the blood at the time of driving will be deemed to be the amount as shown by the certificate embodying the results of the test, although a period must have elapsed between the time when the vehicle was being driven and the time when the specimen was taken for the test to be made. This certificate, as provided by section 3 (8) of the Act and section 2 (2) of the Road Traffic Act, 1962 (so far as relating to a specimen of blood), shall be evidence of the matters so certified, and by section 2 (3) of the 1962 Act the certificate shall be sufficient evidence of the facts stated therein. There is thus created a statutory presumption on which the prosecution is entitled to rely. The evidential purpose of the certificate is not to establish for its own sake the proportion of alcohol in the blood—in this case 238 milligrammes in 100 millilitres. It is to establish that there was more than the prescribed limit, which is 80 milligrammes. On this evidence and on this evidence alone the prosecution can secure a conviction.

But since it is only by a statutory mechanism that the amount of alcohol in the blood as evidenced by the certificate is deemed to be the amount of alcohol in the blood at the time of driving (although a substantial period may have elapsed between the two events, especially in a section 2 (2) case), fairness and common sense would seem to dictate that this presumption is one which can be rebutted. How then can it be rebutted? The answer to that is that in the first place there must be evidence that, subsequent to the driving but before the specimen from which the analysis referred to in the certificate was taken, alcohol was consumed by the driver. Is it therefore sufficient to nullify the statutory evidential effect of the certificate to prove that a quantity of alcohol, however small, was consumed during the intervening period? Or, since the certificate is for the purpose of establishing that the driver had more than the prescribed amount of alcohol in his blood at the material time, and not just to establish the exact amount, is the Court entitled to look at evidence of the post-driving consumption of alcohol to see whether the inference of a contravention of the subsection constituted by the certificate has been rebutted? I reaffirm the view expressed in Wood v. Brown and hold that it is. If that be so, then evidence relating to (a) the amount of alcohol consumed in the interval and (b) the effect of such consumption on the subsequent test, in order to ascertain whether, taking into account that effect, the certificate would still establish that the amount of alcohol in the blood at the material time was in excess of the prescribed limit, must be admissible. Section 2 (1) of the Road Traffic Act, 1962 (which is incorporated into the 1967 Act by virtue of section 3 (8) thereof) provides that the Court will have regard to any evidence which may be given of the proportion or quantity of alcohol which was contained in the blood as ascertained by an analysis of the blood taken from the accused. It must be legitimate for evidence to be adduced showing that alcohol was consumed after the driver stopped driving and before the specimen was taken.

Both Wood v. Brown and Rowlands v. Hamilton support that view, but there they part. For myself, I do not see why in that situation the Court should not be entitled to consider whether such evidence has the effect of displacing the statutory presumption raised by the certificate that there was more than the prescribed amount of alcohol in the blood at the time of driving. The Court has to have regard to the evidence of the proportion of alcohol in the blood as ascertained by the analysis and as certified in the certificate, which speaks for itself. If, as would be the case in many instances, this was the only evidence on the point adduced by the prosecution, but subsequent evidence was led by the defence to establish that there was a consumption of alcohol subsequent to the driving, I do not see why the Court should not have regard to that latter evidence to determine to what extent it affects the evidence provided by the certificate on the vital point that at the relevant time the accused had more than the prescribed limit of alcohol in his blood.

By the same token I do not see why the evidential value of the certificate should be completely displaced by proof of subsequent consumption of alcohol, however indefinite its amount and its effect. It appears to me to be more logical to hold that evidence of the subsequent consumption of alcohol may rebut the presumption raised by the certificate, but that involves establishing (a) how much alcohol was then consumed and (b) the extent to which that would affect the evidence provided by the certificate. The Court would then have to consider the evidence as a whole and decide whether it was established beyond reasonable doubt that there was more than the prescribed amount of alcohol in the blood at the time of driving. In other words, the evidence of subsequent consumption of alcohol may modify the evidence provided by the certificate, but it does not necessarily eliminate it. The extent of the modification and its effect are matters of fact to be established by evidence. The onus of proving the case beyond reasonable doubt rests on the prosecution, and remains on the prosecution throughout, and whether that has been done depends on all the evidence before the Court, whether adduced by the prosecution or by the defence, and on the view which the Court takes of it. In a case such as this, before convicting the Court would have to be satisfied beyond reasonable doubt that the evidence established by the certificate had not been so affected by the evidence of modification as to bring the inference to be drawn from it below the statutory limit.

I now turn to consider the question of onus. In Rowlands v. Hamilton Lord Pearson said (at p. 658):

"If, however, there is evidence, whether adduced by the prosecution or by the defence, of the accused person having consumed some alcohol in stage 2, that raises a doubt, and the prosecution will fail unless it is proved beyond reasonable doubt by further evidence that the inference [i.e. the statutory inference] can still be drawn."

That seems to me to suggest that there would have to be evidence adduced by the Crown to remove the doubt and establish that the inference can still be drawn. In the present case the Sheriff-substitute proceeded on the view that the onus was on the defence to prove how much alcohol was consumed at the subsequent stage and what effect that would have on the evidential value of the certificate. I prefer to take a different approach. As I have said, it is for the Court to decide on all the evidence before it, and on the view it takes of it, what inference is to be drawn from the evidence which modifies the effect of the certificate, and to decide therefrom whether the case for the prosecution has been proved beyond reasonable doubt at the end of the day. In some cases the prosecution may have evidence about the amount of alcohol subsequently consumed, in which case it would be right and proper for the prosecution to place that evidence before the Court. And, if that were done, it would seem logical that the prosecution should also lead evidence regarding the effect of such consumption on the evidential value of the certificate. That was the course which the Crown followed in H. M. Advocate v. Laurie . But there may be many cases where the prosecution has no evidence of any such subsequent consumption of alcohol. All that can be done then is for the prosecution to rest its case on the production of the certificate and found on the inference to be drawn therefrom. The evidence of the subsequent consumption of alcohol may only emerge for the first time during the defence evidence after the prosecution case has been closed. Particularly in a case which falls within the provisions of section 2 (2) of the Act this is liable to happen. In such a case the Crown could not lead evidence of the amount of alcohol consumed, nor under our procedure could it, after its case was closed, lead evidence to show the effect of the defence evidence about alcohol consumed on the inference to be drawn from the certificate. I cannot therefore see how it can be stated as a general proposition in law that the onus is on the prosecution to lead evidence on either of these points. The prosecution may do so, but if it does not, and the inference from the certificate will stand if not rebutted, then it will be for the defence to do so. Of course, if the prosecution has led evidence on either or both of these points, the defence may lead evidence to contradict it. I see no hardship or unfairness in this approach, because the defence must know what evidence it proposes to lead to render ineffective the evidence of the certificate.

In this case the evidence regarding the amount of alcohol subsequently consumed by the appellant came from the appellant himself and his companion in the car, who was adduced by the Crown. The Sheriff-substitute was not impressed with the truthfulness of either of them, and could not accept the evidence of either of them in detail. He was prepared to hold on their evidence, however, that some alcohol had been consumed by the appellant but was not prepared to accept as proved the exact amount as spoken to by them. On the view which I have taken, I do not see how it can be said that on that evidence the Court could hold that the inference raised by the certificate had been rebutted. Nor can I see how any evidence could have been led on the second point. If there was no acceptable evidence about how much alcohol was consumed, then there was nothing on which to base opinion evidence that the indeterminate and undetermined quantity of alcohol would rebut the presumption raised by the evidence of the certificate.

I am therefore of the opinion that the Sheriff-substitute reached the right conclusion, and I would answer the question of law in the affirmative.

LORD WALKER .—On 1st March 1971 the appellant found that his car was giving mechanical trouble. About 6.30 P.M. he drove into a farm service road in order to endeavour to rectify the trouble. In stopping his car he accidentally overran a low hedge at the roadside, causing it slight damage. He got out of the car, raised the bonnet and did some work on the engine. He also drank "some alcohol." About 7 P.M. he injured his head on the raised bonnet. After seeking assistance he was admitted to the infirmary about 7.45 P.M. While he was there, the police took a breath test and, after the correct procedure, he furnished a specimen of blood about 9 P.M. That was found to contain 238 milligrams of alcohol in 100 millilitres of blood. He was charged and convicted of an offence against section 1 (1) of the Road Safety Act, 1967. Against that conviction he now appeals.

It appears that the breath test was taken under section 2 (2) of the Act on the footing of an accident having occurred when he overran the hedge. The learned Sheriff-substitute thought that the evidence of drinking between 6.30 and 7 P.M. was insufficient to overcome the effect of the analysis of the blood specimen. In any event he thought that the appellant should still be regarded as driving his car between 6.30 and 7 P.M. when he was endeavouring to repair it and also drinking. He founded himself on cases decided under section 2 (1) of the Act. The Advocate-depute did not actively support that view, though he did not abandon it. It is not necessary to decide whether the police could have required a breath test while the appellant was repairing his car. They did not do so. They proceeded under section 2 (2). I do not think it possible to regard the appellant as driving his car in the sense of section 1 (1) while he was repairing it. He may well have been in charge of it in the sense of section 1 (2), but that subsection has not been founded on. I think the appellant ceased to drive at 6.30 P.M. when he overran the hedge and got out to effect repairs. The question therefore is as to the effect, if any, of drinking after he ceased to drive.

There can, I think, be no doubt that it was relevant for the appellant to lead evidence that he drank after he ceased to drive, and that the Sheriff was bound to consider that evidence: Wood v. Brown . It was submitted, however, that the fact that the appellant drank "some alcohol" after he ceased to drive raised a reasonable doubt as to whether it could be ascertained from the laboratory test that the proportion of alcohol in his blood before he ceased to drive was in excess of the prescribed limit.

In his note the Sheriff indicates that he prefers to follow what I may call the trend of the Scottish decisions—Wood v. Brown and H. M. Advocate v. Laurie —rather than what he calls a conflicting line of English decisions, the most recent and most authoritative of which (though not referred to by the Sheriff) appears to be the House of Lords decision in Rowlands v. Hamilton . The contrast, according to the Sheriff, is that, following the former line of decisions, a person cannot be convicted of an offence against section 1 (1) of the Road Safety Act, 1967, if it is shown that any excess over the permitted limit, as ascertained from a test of the specimen of blood which he provides, is attributable to alcohol consumed after he stopped driving; whereas, following the English decisions, if he has consumed any alcohol after ceasing to drive, he must inevitably be acquitted. It would be unfortunate if such differing views of the subsection were to obtain in the two jurisdictions, and it would also be regrettable if the motorist could escape conviction merely by consuming some alcohol after ceasing to drive. In the end I think that, as the Sheriff suggests, any divergence between the two lines of authority depends on the view taken as to where the onus lies.

To my mind the subsumption underlying section 1 (1) is that the concentration of alcohol in the blood decreases with the passage of time, so that the concentration found in the specimen cannot be greater, and may be less, than the concentration present at the time of driving. Although there must be some interval—great or small—between the time when the motorist ceases to drive and the time when he provides the specimen, the statute says nothing at all about drinking or not drinking during that interval. And it follows, I think, that drinking or not drinking during that interval cannot enter into the constitution of the offence. The motorist offends simply because the concentration in the specimen exceeds the prescribed limit and so the concentration while driving must also exceed that limit. In other words, all that the prosecutor need do to establish his case is to show that the concentration of alcohol in the specimen exceeds the prescribed limit. He does not need to prove that the motorist did not drink during the interval or that he drank only to such a limited extent as could not account for the excess in the specimen over the prescribed limit.

The fact of drinking during the interval, where it is a fact, is a matter to be founded on by the motorist as an exception making it no longer possible to ascertain from the specimen what was the concentration in the blood at the time of driving. It is the motorist who is in the best position to know what he drank during the interval and there is no hardship in placing the onus upon him. He does not have to prove beyond reasonable doubt, but only as matter of probability, that the quantity which he drank accounts for the excess in the specimen over the prescribed limit. And that appears to me to be a matter for evidence at large. If he succeeds in his evidence, he will not be convicted, but if he fails, he will be convicted not because of his evidence, but because the concentration of alcohol in his blood has been ascertained from the test of his specimen. The same result follows in the case where the prosecutor joins issue on the exception and leads evidence to show that the alcohol consumed in the interval could not account for the excess in the specimen over the prescribed limit. If it could not, then the concentration of alcohol at the time of driving will be ascertained from the concentration in the specimen and not from the evidence of the prosecutor.

It only remains to say a word about Rowlands v. Hamilton . I am not familiar with procedure in the English Courts, but, as I read the report, the precise amount of alcohol consumed in the interval was either admitted or proved. And then the prosecutor led expert evidence to show that, even allowing for that consumption, the proportion of alcohol in the blood at the time of driving must, on the basis of the test, have exceeded the prescribed limit. It was that evidence that was held to be inadmissible, on the ground, as I understand it, that the subsection requires that the proportion of alcohol in the blood at the time of driving must be ascertained from the test and not from expert evidence. There the prosecutor was, I think, accepting the onus of proof that the concentration of alcohol in the blood while driving must, on the basis of the test, have exceeded the prescribed limit. I am not satisfied that he need have accepted that onus. I prefer the other way of looking at onus, namely, that it is for the motorist to show that the amount of alcohol he drank during the interval was sufficient to account for the excess in the specimen over the prescribed limit. Then, if the prosecutor successfully joins issue on that matter, the concentration of alcohol at the time of driving will be ascertained not from his evidence but from the test of the specimen, which in that event is left unchallenged. On the whole matter I think the Sheriff was right in his approach to the problem and his inference that the consumption of "some alcohol" would not detract from the test of the specimen cannot be disturbed. I would accordingly answer the question in the case in the affirmative.

LORD MILLIGAN .—The relevant facts on which this appeal falls to be decided are that the appellant, while driving a motor car, found that his car was giving mechanical trouble, and in stopping it he overran a grass verge and ran the nearside wheels of the car over a low hedge. Thereafter for about half an hour, during which time the appellant and his passenger consumed "some alcohol," the appellant carried out certain work on the engine of the car. In the course of doing so the appellant sustained an injury to his head. He went to a cottage in search of assistance for his injury. He was then taken by a passing motorist to the surgery of a local doctor and thereafter taken to the Royal Infirmary, Dumfries. While he was there, the police correctly carried out the procedure laid down by sections 2 and 3 of the Road Safety Act, 1967, and a sample of the appellant's blood was duly obtained. On analysis the sample was found to contain 238 milligrammes of alcohol in 100 millilitres of blood.

The Sheriff-substitute convicted the appellant on the ground "that there was no acceptable evidence to detract from the presumption created by the evidence for the respondent." It had been submitted on behalf of the appellant that, if it was found that any alcohol was consumed by the appellant during the time he was trying to repair his car, he could not be convicted, since the Court could not be satisfied beyond a reasonable doubt that the appellant had had more than the permitted amount of alcohol in his blood when he was actually driving his car. The Sheriff-substitute rejected this submission, but he did not do so on the ground that it can never be competent to attempt to establish that the amount of alcohol consumed by a person after he had ceased to drive or attempt to drive his car was such that there was a reasonable doubt whether at the time when he was driving or attempting to drive the car the alcohol in his blood had exceeded the prescribed limit. The Sheriff-substitute's ground was that in this particular case there was no acceptable evidence in regard to the amount of alcohol consumed after the appellant had ceased to drive or attempt to drive.

In his note the Sheriff-substitute goes on to state that there was another ground on which he would have been prepared to convict, namely, that the alcohol which the appellant had consumed while trying to repair his car had been consumed at a time when he was still driving or attempting to drive his car. I find it convenient to deal with this latter question first.

In stating that he would have been prepared to hold that the appellant had still for the purposes of section 1 (1) of the Act been driving his car right up to the moment when he sustained his head injury the Sheriff-substitute has relied on a number of cases in which the meaning of "driving or attempting to drive" within the meaning of section 2 (1) of the Act was considered by the Courts. In my opinion this was not a legitimate approach, as there is a marked difference between section 1 and section 2. Section 2 is a section of the Act which regulates procedure, whereas section 1 enacts the offence. It is impossible to construe section 2 (1) as relating only to cases where the car is actually moving, and in Pinner v. Everett a number of situations were referred to in which a person could be held to be driving or attempting to drive a car within the meaning of section 2 (1) although he might not even have been in the driving seat. It does not follow, however, that such an extended meaning of the words "driving or attempting to drive" can be given to the words used in section 1 (1) of the Act. I do not find it necessary for the purposes of the present case to decide how rigidly the words used in section 1 (1) fall to be construed, as I am satisfied that in the present case the circumstances were such that on no reasonable view could it be said that the appellant had been driving or attempting to drive his car within the meaning of section 1 (1) of the Act at any time after he overran the hedge. The Sheriff-substitute was prepared to hold that the fact that the appellant had the intention of resuming his journey would have justified him in finding that the appellant was still driving or attempting to drive his car. I cannot agree. In Pinner both Lord Guest and Lord Upjohn make it clear that in their view this is not a satisfactory test and I respectfully agree with what they said on this matter. In my opinion the Sheriff-substitute misdirected himself in applying this test. The other circumstances in the case, such as the fact that the car was immobilised and was in such a position that it had ultimately to be towed out of the hedge, all point to the conclusion that the appellant was no longer driving or attempting to drive his car after he overran the hedge, and it accordingly follows that the Sheriff-substitute would not have been entitled to convict the appellant on his alternative ground.

It is accordingly now necessary to consider what relevance, if any, can be attached to the consumption of alcohol after a motorist has ceased to be driving or attempting to drive a car prior to the sample of blood being taken. As your Lordships have said, this is a question which has previously been raised in the Scottish Courts, namely, in Wood v. Brown and in H. M. Advocate v. Laurie . In Wood v. Brown it was held that evidence that alcohol was consumed after driving had ceased was relevant and that the Sheriff-substitute ought to have considered the evidence tendered on this matter. In Laurie objection was taken to the Crown leading evidence designed to establish that alcohol consumed by the accused after he had ceased to drive would not have affected the amount of alcohol in his blood, as ascertained by the analysis, at any rate so as to bring it below the prescribed limit. The Lord Justice-Clerk (Lord Grant) in repelling the objection expressed the view that the evidence to which objection had been taken was relevant evidence which could be considered in differentiating between the alcohol consumed before driving ceased and the alcohol consumed afterwards, and that this had been clearly accepted in Wood. There is accordingly clear authority in Scotland that it is relevant to take into consideration any alcohol consumed by a motorist after he ceased to drive but before he was subjected to a blood test.

In the present case counsel for the appellant did not submit that we were bound to follow the case of Rowlands v. Hamilton, to which your Lordships have referred, and to hold that, as it had been established that there had been consumption of some alcohol after driving had ceased, there could not be a conviction; nor did he move that Wood v. Brown should be considered by a fuller Court. His submission was twofold. In the first place he maintained that the Sheriff-substitute had misdirected himself in holding that the onus of showing the effect of the alcohol consumed after driving had ceased was on the appellant, and not on the prosecution. Secondly, he maintained that, as it had been established that at least some alcohol had been consumed after driving ceased, doubt had been cast on whether the appellant had, while driving or attempting to drive, had more than the prescribed quantity of alcohol in his blood.

It is clear on the authorities both in Scotland and in England that the fact that an accused person has consumed alcohol between the time when he ceased to drive or attempt to drive a vehicle and the time at which the sample of blood is taken is relevant and that evidence thereof is competent. The certificate accordingly does not necessarily always establish that while driving or attempting to drive the motorist had in his blood the proportion of alcohol shown in the certificate. It would appear, however, that there is a difference between the two countries in regard to the effect which falls to be given to any such evidence. In England it has been held (Rowlands v. Hamilton ) that, if it is proved that during the period referred to any alcohol, however slight the quantity, has been consumed, there cannot be a conviction. In Scotland it has been held (Laurie) that it is open to the prosecution to prove that even without the alcohol consumed after driving ceased an accused person would still have had at the time of the test more than the prescribed limit of alcohol. It is also open to an accused person to show that on the balance of probability the alcohol which he had consumed after ceasing to drive was sufficient to bring the alcoholic content of his blood from a figure below the permitted limit to the figure shown on the certificate.

I appreciate the difficulty in which this Court is placed standing the decision of the House of Lords in Rowlands,but, like your Lordship in the chair and for the reasons given by your Lordship, I do not feel constrained to hold that proof of any post-driving alcohol must necessarily result in an acquittal. I also agree with what your Lordship in the chair has said on the question of onus. The prosecution starts with a presumption in its favour that an accused person had in his blood while driving the proportion of alcohol to blood which is shown on the certificate, but, if there is evidence in the case which shows that alcohol was consumed after driving ceased and before the test was made, that evidence, from whatever source it comes, may be used to show that it is doubtful whether the accused had more alcohol than the prescribed limit in his blood at the time when he was driving or attempting to drive. Equally that evidence may be relied on to show that even without the post-driving alcohol which had been consumed the proportion of alcohol in the blood would have been above the prescribed limit.

In the present case there is evidence that some alcohol was consumed after the appellant had ceased driving, but in the absence of any reliable evidence as to the quantity which was consumed, it is impossible to say what, if any, effect the post-driving alcohol may have had. In such circumstances the prosecution is entitled to rely on the statutory presumption in its favour, and the Sheriff-substitute was entitled to convict. I accordingly agree that the question in the case should be answered in the affirmative.