Director of Public Prosecutions v Ellery [2005] EWHC 2513 (Admin)

Case No CO/2614/2005[2005] EWHC 2513 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Venue Royal Courts of JusticeDate Thursday, 14th July 2005
Strand
London WC2
B E F O R E:
LORD JUSTICE KENNEDY
MR JUSTICE WALKER
Between
THE DIRECTOR OF PUBLIC PROSECUTIONSClaimant-v-
Between
ANDREW RICHARD ELLERYDefendant
Computer-Aided Transcript of the Stenograph Notes ofSmith Bernal Wordwave Limited190 Fleet Street London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
MR J BEAL (instructed by CPS, Truro TR1 2XG) appeared for CLAIMANTMR J ASHLEY-NORMAN (instructed by Ashtons, Truro, Cornwall TR1 2NR) appeared for DEFENDANT
J U D G M E N T
[1]MR JUSTICE WALKER: The Director of Public Prosecutions appeals against a decision of the West Cornwall Justices, sitting at Camborne Magistrates' Court, on 13th January 2005, dismissing a charge preferred against the respondent alleging that on 6th August 2004 he drove a motor vehicle, having consumed excess alcohol, contrary to section 5(1)(a) of the Road Traffic Act 1988.[2]The Justices record, in the case stated, that they found the following facts: (a) On the 6th August 2004 the respondent drove his vehicle, a silver Ford Galaxy, from his work to his home address between 1520 hours and 1540 hours having consumed: i) A quantity of alcohol at home the previous evening, namely; between 3 and 4 bottles of wine, shared between him and another, and possibly a brandy of indeterminate size. ii) A quantity of alcohol in a public house on the day in question, between 1500 hours and 1540 hours. b) A Police officer, acting on information received concerning a male who had been seen drinking and then driving, arrived at the respondent’s home, was invited in and subsequently carried out a breath test, which was positive. c) At the police station the respondent gave a lower intoxilyzer reading of 46 micrograms of alcohol in 100 millimetres of breath and accordingly was offered the statutory option to replace the sample with one of blood. d) At approximately 1800 hours Dr Akilo took a blood sample and the analysis was found to contain not less than 94 milligrams of alcohol per 100 millilitres of blood. (e) Expert analysis carried out by Dr Dolan indicated that if the respondent had consumed the amount of alcohol he stated after driving the vehicle; at the time of driving, the level of alcohol in his blood would have been anything between 74 and 109 milligrams with the likeliest reading being 93 milligrams."[3]The case stated does not record a formal finding of fact as to the respondent having drunk alcohol after driving. I will assume, for present purposes, that the Justices accepted what the respondent said which was that he had drunk a can of lager. That seems to be a necessary inference from the reasoning of the Justices later in the case stated. The Law[4]The relevant legal principles, as they were generally understood at the time this matter came before the Justices, were clear. I summarise what was said in the 21st Edition of Wilkinson's Road Traffic Offences 2003 at paragraph 4.299 and following. By section 7 of the Road Traffic Act 1988, a certificate of analysis obtained is to be taken into account in respect of the offence under section 5 and it may be evidence of the proportion of alcohol in a specimen. In the present case we are concerned with a specimen of blood. Under section 15 of the Road Traffic Offenders Act 1988, by section 15(2) it is to be assumed that the proportion of alcohol at the time of the offence is not less than that contained in the certificate of analysis. However, that assumption can be rebutted. Section 15(3) of the 1988 Road Traffic offenders Act provides that it is not to apply if the accused proves that:
"(a) he had consumed alcohol after he had ceased to drive ... and before he provided the specimen and (b) that had he not done so the proportion of alcohol ... would not have exceeded the prescribed limit."
[5]That onus, accordingly, is placed on the defendant and it is for him to establish, by properly admissible evidence, that he had consumed alcohol after the relevant time. It had been held that the effect of the statutory provisions operated to transfer the burden of proof on to the defendant in the case of Patterson v Charlton RTR [1985]18.[6]The respondent, however, submitted to the Justices that cases dealing with the position where the prosecutor relies upon that calculation should be applied in relation to the different facts which were before the Justices in this case. Despite advice from their clerk that the citations by the respondent were irrelevant, the Justices concluded that they could not convict unless the actual quantity of alcohol in the respondent's body at the time of driving was established beyond reasonable doubt. Accordingly, they acquitted.

The argument before us

[7]In a helpful skeleton argument Mr Beale, for the appellant, submitted that the Justices had taken the cases on that calculation out of context. They had misinterpreted the decision in Gumbley v Cunningham; Gould v Castle [1987] 3 All ER 733. That case was summarised in Wilkinson as indicating that Justices had to be careful not to convict unless they were sure on the basis of scientific and other evidence that the defendant had been over the limit at the time of the alleged offence. The Justices, said Mr Beal, failed to recognise that those cases involved the defendants being convicted on the basis of that calculations from:
"below the limits, specimens of blood and breath respectively."
[8]Therefore the prosecution in those cases were not able to rely upon the presumption that in our case we find in section 15(2) of the Road Traffic Offenders Act and in fact were seeking to call evidence that at the time of the commission of the offence the defendant's alcohol levels were higher than shown in the analysis or printout.[9]For the respondent, Mr Ashley-Norman did not seek to support the Justices’ reasoning on this aspect. For my part, I have no doubt that the Justices did indeed take what was said in the cases on that calculation out of context and their reasoning cannot stand. However, Mr Ashley-Norman sought in the court to rely upon a new point. This is that section 15(3), or at least some part of that subsection, should be read as imposing merely an evidential burden by virtue of the Human Rights Act 1988. He drew our attention first to a case which appears to be a very substantial obstacle in his path. That is R v Drummond [2002] 2 Cr App R 25. The court there held that the legislative interference with the presumption of innocence arising from the imposition of a legal burden of proof, in relation to section 15(3), was not only justified but was also no greater than necessary. Four reasons are identified in the headnote:
"(i) the offence did not require the court to ascertain the intent of the accused at all - conviction followed after a scientific test which was intended to be exact as possible; (ii) in most cases such a test was exact or, to the extent that it was less than exact, the inexactness would work in favour of the accused; (iii) it was the accused himself who, by drinking after the event, defeated the aim of the legislature by doing something which made the scientific test potentially unreliable; and (iv) the relevant scientific evidence to set against the result ascertained from the specimen of breath or blood was all within the knowledge (or means of access) of the accused rather than the Crown."
[10]Mr Ashley-Norman observed that the House of Lords had examined the question of reverse burdens both in the context of the road traffic legislation and in the context of terrorism legislation in Sheldrake v Director of Public Prosecutions and Attorney General's (No 4 of 2002)[2005] 1 All ER 237. It may be noted that in that case the House of Lords examined a different provision in the Road Traffic Act, which imposed, on the face of it, a legal burden under which a person accused of an offence of consuming alcohol, beyond the prescribed limit, might have a defence if he was able to prove that at the time he was alleged to have committed the offence the circumstances were such that there was no likelihood of his driving the vehicle whilst the proportion of alcohol in his breath, blood or urine remained likely to exceed the prescribed limit.[11]The House of Lords held in that case that while one could assume that this provision infringed the presumption of innocence, it was plainly directed to a legitimate object, which is the prevention of death, injury and damage caused by unfit drivers. That provision was held to meet the tests of acceptability. The burden placed on the defendant was not beyond reasonable limits nor was it arbitrary. The likelihood of driving was not an ingredient of the offence in question, despite the defence that was provided.[12]In those circumstances the House of Lords held it was not objectionable to criminalise a defendant’s conduct without requiring a prosecution to prove criminal intent. The defendant had a full opportunity to show that there was no likelihood of his driving. This was a matter so closely conditioned by his own knowledge and state of mind at the material time as to make it much more appropriate for him to prove, on the balance of probabilities, that he would not have been likely to drive, than for the prosecutor to prove beyond reasonable doubt that he would. That imposition of a legal burden did not go beyond what was necessary. Where a driver tried and failed to establish a defence under the statutory provision, the resulting conviction would not be unfair.[13]Undaunted Mr Ashely-Norman sought to persuade us that the reasoning of the House of Lords in Sheldrake was such that the conclusion in Drummond ought to be revisited. In particular, Mr Ashley-Norman drew our attention to paragraph 35 of the judgment of Longmore LJ in Drummond. Longmore LJ said this:
"It would, of course, be possible to say that the burden on the defendant is an evidential one but that he would not discharge that evidential burden unless he produced evidence relating to the potentially relevant matters we have set out. In a case depending on scientific questions and expert evidence that would not, in our view, be right. Mr Turner, [that was counsel for the appellant in that case] for obvious reasons, did not advance any such argument and it would diminish the difference between a persuasive burden and an evidential burden to vanishing point."
[14]At first sight it is difficult to see any inherent problem with the observations that are made at paragraph 35. Mr Ashley-Norman took us, however, to the speech of Lord Bingham in Sheldrake at paragraph 21. Having reviewed decisions of the European Court of Human Rights in paragraph 21, Lord Bingham stated that the Convention did not outlaw presumptions of fact or law, but required that these should be kept within reasonable limits and should not be arbitrary. It was open to states to define the constituent elements of a criminal offence, excluding the require of mens rea, but the substance and effect of any presumption adverse to a defendant must be examined and must be reasonable.[15]Relevant to any judgment on reasonableness or proportionality will be the opportunity given to the defendant to rebut the presumption, maintenance of the rights of the defence, flexibility and application of the presumption, retention by the court of a power to assess the evidence, the importance of what is at stake and the difficulty which a prosecutor may face in the absence of a presumption. In particular, Mr Ashley-Norman suggested that the approach taken in Drummond, by not adopting the distinction that was averted to in paragraph 35, lacked flexibility.[16]To my mind the answer to that is found in paragraph 31 of the judgment of Longmore LJ in Drummond. Longmore LJ there pointed out that, among other things, 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. Moreover, the relevant scientific evidence to set against the result ascertained from the specimen in question is all within the knowledge of means of access of the accused, rather than the crown. This evidence will include(i) the amount which the accused had to drink after the incident;(ii) what is called his blood breath ratio, which is important for calculating the rate at which his body absorbs alcohol;(iii) the rate at which his body eliminates alcohol overtime, and(iv) the accused's body weight.[17]I can see no basis for suggesting that there is any such lack of flexibility as should lead this court to conclude that the decision in the case of Drummond should be revisited. It seems to me that it is, as a matter of practical reality, entirely appropriate for the statutory regime to take all four of the factors I have identified together so that both on the scientific aspect, and on the amount which the accused actually had to drink after the incident, it is for the accused to bear a legal burden of proof. That burden of proof will, of course, only be on the balance of probabilities.[18]In the present case it is impossible, on the facts found by the Justices, to suggest that there was here any satisfaction by the respondent of a burden of proof on the balance of probabilities.[19]The question raised in the case stated is:
"Were we correct in accordance with the law and on the evidence we heard in reaching our decision and acquitting the defendant?"
[20]For the reasons I have given, which I should add are essentially the reasons advanced by Mr Beal orally in answer to Mr Ashley-Norman, I would answer that question no. I would accordingly remit the case to the Justices with a direction to convict.

LORD JUSTICE KENNEDY: I agree. It is important that Justices when preparing a case stated for the opinion of this court should try to formulate it in such a way as to lay before the court only the material which is necessary in order to deal with the question which they raise. In this case a good deal of evidence has been incorporated in the case stated which it is unnecessary to address.

Cited in 1 later judgment