APPEAL COURT, HIGH COURT OF JUSTICIARY
Lady Paton Lord Carloway Lord Mackay of Drumadoon	[2010] HCJAC 79 Appeal No: XJ89/10 OPINION OF THE COURT delivered by LADY PATON in APPEAL BY STATED CASE by ROSEMARY JANE MITCHELL Appellant; against PROCURATOR FISCAL, PEEBLES Respondent: _______

Appellant: Brown; Wardlaw Stephenson Allan

Respondent: J Brodie QC, Advocate depute; Crown Agent

28 July 2010

Drink-driving offence

[1] On 28 October 2009, at the conclusion of a summary trial in Peebles Sheriff Court, the appellant was found guilty of driving with a reading of 70 micrograms of alcohol per 100 millilitres of breath - in other words, twice the legal limit. She was fined £700 and disqualified from driving for 18 months. She appeals against conviction, contending (i) that the sheriff erred in repelling a submission of no case to answer; and (ii) that no reasonable sheriff could, on the facts, have found guilt established beyond reasonable doubt.

The stated case

[2] The sheriff gives the following information in the stated case.

"In this case the appellant appeared on a complaint libelling a contravention of section 5(1)(a) of the Road Traffic Act 1988 by driving a motor car on the B7062 Innerleithen to Traquair Road on 15 June 2008 with a breath/alcohol reading of 70 µg. After trial on 24 June and 28 October 2009 I found the appellant guilty as libelled. Having heard her solicitor in mitigation, I fined the appellant £700 and disqualified her from driving for eighteen months. This appeal is taken against conviction, firstly on the ground that I repelled a no case to answer submission incorrectly, and secondly that no reasonable sheriff could have found the appellant's guilt proved beyond reasonable doubt. The sentence imposed is also appealed as excessive.

The essence of the no case to answer submission was that the Crown had to show the appellant had been driving at 9 pm, plus or minus 4 minutes, for the reading libelled, which had been derived from a back-calculation, to be proved. The Crown's evidence relevant to the time of driving was this:-

Paul McDougall, a passer-by who reported the appellant's driving to the police, was unsure of exactly when he had seen her in Innerleithen. He could "not be concrete on time". He had been heading home from his girlfriend's house, where he had been having a meal with her parents. He usually left there about 8 or 8.30 pm. That was about ten minutes walk from the locus, where he had seen a woman (the appellant) leave a car, walk to a shop, enter it, return to her car and drive off, apparently while under the influence of drink. He had dialled 999 on his mobile as she had driven away, giving the registration number. Police officers on mobile patrol in the locality received a message to trace the car about 9.04 pm. They were given its registration number, and the registered keeper's address. They lost about five or six minutes while their control centre located that address on a map for them. They made contact with the appellant at her home at about 9.10 or 9.15 pm. The bonnet of her car, which was parked there, was still warm, suggesting recent use.

In my view, these strands of evidence, if accepted, were, in combination, sufficient to support proof that the appellant had been driving at about 9 pm. The information that Mr McDougall had given the police, of a suspected drunk driver on the public road, would have prompted a speedy PNC check. By 9.04 pm officers on mobile patrol had been alerted to trace the vehicle. By 9.10 or 9.15 pm they located her recently used car at her house. Besides, Mr Sole's back-calculation was not thirled to driving at precisely 9 pm, because he was prepared to allow a tolerance of 0.1 hours either way. For these reasons I repelled the submission.

Having heard the defence evidence, I was in a position to find the following facts admitted or proved:

1. At about 9 pm on 15 June 2008 the appellant stopped her car at the mouth of Waverley Road, Innerleithen, some distance from the nearside kerb, its front at the white give-way line at the junction with High Street, and close to a zebra crossing.

2. The appellant left the driver's seat. She looked uneasy, walked very slowly, and appeared to be unsteady. She entered a shop in High Street, about 50 yards from the junction, emerged from it, and returned to her car with a bag containing a bottle of wine she had bought. She re-entered her car, turned left, and drove along High Street westwards.

3. Paul McDougall, a passer-by, who had observed her, formed the opinion that she was under the influence of drink, by reason of her awkward parking and her gait. As the appellant was driving off he made a 999 call on his mobile, reporting her registration number SK05VHJ, giving the direction in which she was travelling, and stating that "she was stoating about in the street" and "it looked like she had been drinking".

4. At 9.04 pm PCs Campbell and Brown, on uniformed mobile patrol heading towards Peebles, and just west of Innerleithen at the time, received a report about a drunk driver, with the registration number of the vehicle and the address of the registered keeper. At about 9.10 or 9.15 pm they arrived at the appellant's address. They saw her car, which bore the registration number given them, and checked its bonnet, which was still warm. The appellant's house is about 2 miles from the locus in Innerleithen.

5. They called at the house, spoke to the appellant, and advised her of the reason for their attendance. In response to a section 172 enquiry, she admitted she had been the driver. Indicating a wine glass, she said she had drunk some wine since she had got home. The officers took the glass, and returned its contents to a bottle of red wine from which the appellant said it had been poured. She said her husband had drunk from the bottle as well. The officers noted he had a glass of white wine.

6. At 9.40 pm the officers asked the appellant for a breath specimen. It was positive, and she was arrested. When cautioned she made no reply. She was taken to Peebles Police Station. At 10.22 pm her breath was tested by Intoximeter. The first reading was 101 µg and the second was 106 µg. She was served with a copy of the print-out, and cautioned and charged. She made no reply.

7. The amount of wine which had been drunk from the bottle was 326 mls. Back-calculation indicated that at or about 9 pm the appellant's breath/alcohol reading must have been 70 µg. That exceeded the prescribed limit of 35 µg of alcohol in 100 mls of breath.

The evidence in support of these findings came from Paul McDougall, from the two officers referred to, and from Stephen Sole, a forensic scientist, who had done the back calculation. I found the evidence of these witnesses to be credible and reliable.

The defence led evidence from the appellant, her partner Paul Graham, his daughter Rachel Graham, from Shona Guthrie the proprietor of the shop, and from Professor JK Mason. That was to the broad effect that the shop normally closed at or shortly after 8.30 pm, that the appellant had purchased a bottle of wine there at about 8 pm, had picked up Rachel Graham from the Peebles bus, and driven home. She had had nothing to drink before then. But she had started drinking red wine from one bottle in the living room which Mr Graham had opened for her, and from the newly purchased bottle which she had opened in the kitchen upstairs, to which she had repaired two or three times in the hour before the police arrived, drinking that wine from a whisky tumbler. In all she drank 639 mls of red wine. Between her return home and the arrival of the police she had given Rachel Graham a meal, and the family had spent some time together, when all the children had given Mr Graham Father's Day presents.

It is said that no reasonable sheriff could properly have found the Crown case proved beyond reasonable doubt, which is what I did. I did not find the Crown evidence to have been undermined by cross-examination. For the following reasons I did not find the defence evidence acceptable, and it did not cause me to have any doubts about the Crown case, and still does not.

Dealing firstly with the "family" evidence, I did not believe the appellant told the truth, to the police or in court. In particular, I did not believe she had not been drinking before going to Mrs Guthrie's shop in Innerleithen. I did not believe her evidence about the quantity of wine she claimed to have drunk. There were two reasons for this conclusion. Firstly, when the police arrived she was made aware of the purpose of their enquiries. When asked if she had had any alcohol to drink she replied "a glass of red wine". The glass she had was larger than normal wine glass size, but certainly not sufficient to contain 326 mls of wine. She also told the police that her cohabitee had drunk some of that wine. They contradicted that in their evidence. She did not mention that she had been fortifying herself during two or three trips to the kitchen upstairs, as was claimed in court. She did not point out that she had taken a further 313 ml from a bottle there, even though the police were obviously interested in the amount she had consumed. I thought her account was not credible on that basis. But secondly, it was wholly undermined by the evidence of Professor Mason, who was called on her behalf. He found a discrepancy of 31 µg between the calculated and the anticipated zero readings. He was of the view that this was rather more than could be attributed easily to the inherent inaccuracies of method. That pointed to the conclusion that the appellant had provided false and inaccurate information as to the amount she had consumed for the purposes of the exercise he had carried out. These two reasons led me to conclude that she had been untruthful, and of course she was stuck with that in her evidence.

I thought the reality had been this. When, on the arrival of the police, she pinned her colours to the mast of post-incident drinking, she may not have known that the "roadside" test would be positive, and she did not know that the subsequent Intoximeter test would produce such a high reading as it did. When she learned that, she must have realised the predicament she was in, and that the version of events she had given the police would not square with an explanation of post-incident drinking. She must have decided to give false information about her actual consumption in an endeavour to escape conviction. But she had been caught out.

Mr Graham had simply gone along with all that. I did not regard him as a person on whose word I would place any reliance. He tried to exaggerate the amount consumed from the bottle in the kitchen. He was over-assuredly defensive and at times aggressive in the way he gave evidence. I did not believe his statement that he saw no signs of the appellant having taken alcohol before she went out.

Rachel Graham's evidence did not sit too comfortably with all of that. She spoke of eating a meal when she got home, and making a 13-minute phone call to a friend. I found her explanation that she would not have used her mobile on a public service vehicle inherently unconvincing. She made no mention of the present-giving, and nothing about the appellant making regular visits to the kitchen, where she was eating, and topping up her alcohol intake.

Mrs Guthrie, the owner of the shop, was an entirely independent witness. I did not doubt her honesty, but the evidence she gave about when she usually closed the shop was understandably and inevitably quite general in its terms. She had no recollection of the appellant being in the shop on the date in question, and I thought there was some margin around the time of closing, depending on how busy or quiet things were.

Even if I had accepted the defence timings as accurate, I would have remained unable to accept Professor Mason's conclusions. That was because I did not accept the accuracy of the factual information about quantities consumed, on which they are based, and because of the discrepancy he fully recognised.

In combination that evidence was not sufficiently substantial to cause me to doubt the Crown version."

The sheriff put the following questions:

"1. On the evidence led, was I correct in repelling the no-case-to-answer submission?

2. On the facts stated was I entitled to convict the appellant of the charge as libelled?"

Submissions

[3] Counsel for the appellant stated that the appeal focused upon the time at which the appellant had been driving. There was insufficient evidence proving that she had been driving at about 9 pm (finding-in-fact 1). As the Crown case was periled upon proof that the appellant had been driving at that time, the conviction could not stand and should be quashed.

[4] The Advocate depute contended that the police officers' receipt of instructions arising from the 999 call was fixed at the certain time of 9.04 pm. That was a significant piece of evidence which, when taken with other circumstantial evidence, entitled the sheriff to make finding-in-fact 1. In any event, Mr Sole's report had a tolerance of six minutes either way. The case against the appellant had been proved beyond reasonable doubt, and the appeal should be refused.

Discussion

[5] In this case, the Crown did not use the presumption contained in section 15(2) of the Road Traffic Offenders Act 1988 (namely that the level of alcohol at the time of the offence was not less than in the specimen obtained), but relied upon circumstantial evidence.

[6] The first strand relied upon was the evidence of the passer-by in Innerleithen, Paul McDougall. He noticed the appellant parking badly. He saw her get out of her car and walk slowly and unsteadily towards the local shop. He then saw her re-emerge, get into her car, and drive off. He described her as "stoating about in the street". He concluded that she was drunk, and ought not to be driving. He was so concerned that, when she drove off, he made a 999 call to the police to report what he had seen, including the car registration number. When giving estimates of time in the course of his evidence, Mr McDougall said that he had just left his girlfriend's house (some ten minutes' walk from the locus), and that he usually left there at about 8 pm or 8.30 pm.

[7] The next strand was the evidence of two police officers who were on local mobile patrol just west of Innerleithen. At 9.04 pm they received instructions concerning an alleged drunk driver, with details of the car registration number, the registered keeper and the registered keeper's address. Having waited about five or six minutes for directions to that address, they called at the appellant's home (two miles from the locus) at about 9.10 pm or 9.15 pm. They noticed that the bonnet of the car with the reported registration number was still warm, suggesting recent use. The appellant admitted that she had been the driver. She said that since returning home she had drunk some red wine, and indicated a bottle and a wine glass. The police subsequently ascertained that 326 millilitres of red wine had been consumed from that bottle. No other bottle of wine was pointed out to the officers. The police noted that the appellant's partner Mr Paul Graham was drinking white wine.

[8] The third strand available to the sheriff was the evidence of a Crown forensic scientist, Mr Sole. He spoke about metabolic rates. On the assumption that the appellant drove home at about 9 pm, and that on arriving home she had drunk about 326 millilitres of red wine, he calculated her breath/alcohol reading between 8.54 pm and 9.06 pm as 70 micrograms of alcohol per 100 millilitres of breath (i.e. twice the legal limit).

Whether no case to answer

[9] When considering the submission of no case to answer, the sheriff was entitled to take the Crown evidence at its highest. The sheriff was also entitled to give more weight to some pieces of evidence than to others. Thus he was entitled to give weight to the evidence of the officers about receiving their instructions arising from the 999 call at 9.04 pm, and finding the car bonnet still warm at 9.10 or 9.15 pm. He was entitled to bear in mind the fact that the passer-by, Mr McDougall, said that he had made his 999 call as the appellant drove off from Innerleithen High Street, and that her house was about two miles away. He was entitled to form the view that there was circumstantial evidence available which, if accepted, was sufficient to prove that the appellant had been driving at about 9 pm, that following her return home the appellant's consumption of alcohol had not exceeded 326 millilitres of red wine, and, on the basis of the evidence of Mr Sole, that the appellant's breath/alcohol level when driving was 70 micrograms of alcohol per 100 millilitres of breath. Approaching the evidence in that way, it was open to the sheriff to conclude that there was a case to answer.

Whether, on the facts found, guilt was proved beyond reasonable doubt

[10] The appellant's defence, supported by her own and her family's evidence, and (to some extent) by the evidence of the shop-keeper Mrs Guthrie, was that she had driven the car at a much earlier time, at about 8 pm. On her return home at about 8.10 pm, she had cooked her daughter a meal. She had drunk not only the 326 millilitres of wine from the bottle seen by the police, but also "top-ups" from another bottle, such that she had drunk 639 millilitres in total of red wine after her return home. On the basis of that information, a forensic expert instructed by the defence (Professor J K Mason) estimated that the appellant was below the legal breath/alcohol limit when she was driving, although he commented that a discrepancy had emerged from his calculations which was not easily explicable from the normal margins of error arising in such calculations.

[11] We note that the sheriff did not find the appellant or her family credible or reliable, for the reasons given in the stated case, quoted in paragraph [2] above. The sheriff was in all the circumstances entitled to reach those views. The evidence of the shop-keeper did not exclude a closing-time slightly later than 8.30 pm, and in any event the witness could not remember the events of that particular evening. Finally, as Professor Mason's calculations and conclusions depended entirely upon the factual information supplied by the appellant and her family, whom the sheriff found incredible and unreliable, the sheriff was entitled to give the professor's report and conclusions little weight, a fortiori when the professor drew attention to a marked discrepancy emerging from his calculations - a discrepancy "rather more than can be attributed easily to the inherent inaccuracy of the method, and [one requiring] explanation". One view of that discrepancy might be that the information which the professor had been given could not be wholly accurate. In the result therefore the sheriff was entitled to rely upon the circumstantial evidence referred to in paragraphs [5] to [8] above, and to make the findings-in-fact that he did. Standing those findings-in-fact, the sheriff was, in our view, entitled to find guilt proved beyond reasonable doubt.

Decision

[12] For the reasons given above, we answer the questions posed by the sheriff in the affirmative, and refuse the appeal against conviction.