Director of Public Prosecutions v Tooze [2007] EWHC 2186 (Admin)

[2007] EWHC 2186 (Admin)Case No CO/10440/2006
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Venue Royal Courts of JusticeDate Tuesday, 24 July 2007
Strand
London WC2A 2LL
B e f o r e:
LORD JUSTICE SEDLEY
MR JUSTICE NELSON
Between
DIRECTOR OF PUBLIC PROSECUTIONSClaimantv
Between
TOOZEDefendant
Computer-Aided Transcript of the Stenograph Notes ofWordWave International LimitedA Merrill Communications Company190 Fleet Street London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
Mr K Barker (instructed by Crown Prosecution Service) appeared for Claimant for The Defendant was not represented and did not attend
J U D G M E N T
[1]MR JUSTICE NELSON: The appellant prosecutor appeals against the decision of the Avon and Somerset Justices, sitting at Bristol Magistrates' Court on 14 September 2006, dismissing a charge against the respondent that he drove a motor vehicle having consumed excess alcohol contrary to Section 5 (1) (a) of the Road Traffic Act 1988.[2]The facts are that on 18 February 2006 a police officer attended The Warwick Arms public house, which was the respondent's home, following a complaint made by the staff of Pizza Hut where the respondent had been earlier in the evening. The respondent was arrested at 2300 hours in connection with the unrelated matter at Pizza Hut and conveyed to the police station at 0035 hours on the next morning, 19 February. He was further arrested for driving whilst unfit through drink, it being believed that he had driven from Pizza Hut back to his home. An evidential breath test produced a lower reading of 90 micrograms of alcohol per 100 millilitres of breath, the legal limit being 35 micrograms.[3]At the trial the respondent contended that he was not driving, indeed that he had returned from the Pizza Hut to his home on foot, and that if he was found to be driving the justices would have to consider Section 15 of the Road Traffic Offenders Act 1988 (which relates to a presumption that the alcohol reading at the time of the offence was not less than contained in the certificate of analysis) in the light of the fact that the respondent had, he said in evidence, consumed alcohol after he ceased to drive, namely up to three double vodkas and Red Bull on his return home from the Pizza Hut and before he was arrested.[4]Having been referred by the appellant to the case of Dawson v Lunn [1984] RTR 234, the justices were of the opinion that the certificate of analysis had to be set against the evidence of heavy drinking by the respondent in the 45 minutes following his return home, having driven from Pizza Hut; that on his own evidence as to the alcohol he had consumed that day, it was likely that the respondent was over the prescribed drink/drive limit when he drove, but that the assumption in Section 15 (2) of the 1988 Act could not be made on the basis of the evidence of post-driving consumption of alcohol because of the large amount of alcohol consumed by the respondent after driving, together with a considerable length of time before the breath test was undertaken. For those reasons the certificate of analysis could in no way, the magistrates stated, be an accurate reflection of the alcohol in the respondent's system at the time of the offence.[5]Accordingly the magistrates stated they were not sure beyond reasonable doubt that the respondent was over the limit at the time of the offence, and they therefore acquitted him of the charge. The respondent having been acquitted, the appellant prosecutor sought a case stated. In that case stated the magistrates made the following findings in paragraph 2 of the case:
"We heard the said information on the 6 and 14 of September 2006 and found the following facts: (a) That the respondent had driven the Alfa Romeo between his home at the Warwick Arms Public House and Pizza Hut on Two Mile Hill Road on the night of the 18 February 2006. (b) There was a gap of 2½ to 2¾ hours between the respondent having driven and the station breath test being undertaken. (c) That the respondent had drunk up to 3 double vodkas with Red Bull after he had driven and before the police arrived at the Warwick Arms."
[6]It is to be noted that in their recitation of the evidence the magistrates also note that the respondent had stated that he had begun drinking that day at around 1400 hours. He estimated that he had had three pints of Blackthorne cider before going to Pizza Hut and that he may have been drinking coke, mineral water or Blackthorne. He did not drink vodka and Red Bull until later on that night. That is what he had drunk on his return from Pizza Hut.[7]In their opinion, at paragraph 6 of the case, the magistrates stated that the certificate of analysis had to be set against the evidence of the heavy drinking by the respondent on his return to the public house, and made a specific finding that - "It was likely that the respondent was over the legal limit when he drove. The respondent had admitted drinking during the afternoon and early evening." The magistrates went on to express the opinion that - "The assumption contained in Section 15 (2) of the Act should not be made on the basis of the evidence of post-driving alcohol consumption in accordance with Section 15 (3) of the Act" and, because of the large amount of alcohol consumed and the considerable time before the breath test was undertaken, the certificate of analysis could not be an accurate reflection in any way of the alcohol in his system at the time of the offence. They therefore concluded as follows:
"Accordingly, we were not sure beyond reasonable doubt that the respondent was over the limit at the time of the offence, and we therefore acquitted him of the charge."
[8]Subsequent to the hearing, the clerk to the justices at Bristol Magistrates' Court was written to by the Crown Prosecution Service. They were asked questions to which they gave answers. The letter requesting answers was 20 September 2006 and the answer was on 26 September 2006. The relevant questions asked were these:(1) Did they apply the assumption contained in Section 15(2) of the Road Traffic Offenders Act 1988? (2) Did they find that that assumption should not be made in accordance with Section 15(3) of the Act? (3) If the answer to the second question is yes, did they apply the relevant law applicable to Section 15 (3) and in particular Dawson v Lunn?[9]In their answers to those questions the magistrates, through the clerk, replied yes, they had applied the assumption under Section 15 (2); yes, they had concluded that the assumption should not be made. Thirdly, they had considered the relevant case law and applied it but only in so far as it was obvious to the magistrates that the large amount of alcohol consumed by the defendant after driving, together with the considerable length of time before the station breath test was undertaken, meant the certificate of analysis could not in any way be an accurate reflection of the alcohol in his system at the time of the offence.[10]In addition to those matters, relating to what had happened, they were asked what standard of proof did they apply in coming to their conclusions that the assumption under Section 15 (2) should not be made. In answer to that question, the clerk to the justices replied as follows:
"The court accepts that the wrong standard of proof/test was applied, as set out in the justices' reasons (copy attached)."
[11]The consequence of the case stated, the opinion set out in the case stated and the answers to the request for information in the letter of 20 September 2006 made it abundantly clear that the magistrates did not apply the correct test. What they in fact did was effectively to leave the burden of proof upon the Crown when, in the circumstances, under the Act and the law, it should have passed to the defendant. The relevant law is set out in Section 15 of the Road Traffic Offenders Act 1988, sub-section (2) of which provides:
"Evidence of the proportion of alcohol or any drug in a specimen of breath, blood or urine provided by the accused shall, in all cases (including cases where the specimen was not provided in connection with the alleged offence), be taken into account and, subject to sub-section(3) below, it shall be assumed that the proportion of alcohol in the accused's breath, blood or urine at the time of the alleged offence was not less than in the specimen."
Section 15 (3) states:
"That assumption shall not be made if the accused proves - (a) that he had consumed alcohol before he provided the specimen and - (i) in relation to an offence under section 3A, after the time of the alleged offence, and (ii) otherwise, after he had ceased to drive, attempted to drive or be in charge of a vehicle on a road or other public place, and (b) that had he not done so the proportion of alcohol in his breath, blood or urine would not have exceeded the prescribed limit ..... "
[12]Clearly, first of all, the assumption would have been applicable on the facts of this case arising by virtue of Section 15 (2). And also - in view of the nature of the defence - the assumption required the accused to prove the matter set out in Section 15 (3), in other words, the burden of proof passed to him. Those provisions have been considered in various cases, in particular in Dawson v Lunn in which Lord Justice Goff adopted the test set out by Lord Widgery CJ in Pugsley v Hunter [1973] RTR 284. That states as follows:
"I am most reluctant to establish a rule which will be oppressive on defendants by requiring them to call, provide and pay for expert evidence in all cases of this kind, but I am eventually persuaded at the end of the argument that, unless the case really is an obvious one, unless the case is one where a layman can reliably and confidently say that the added liquor must explain the excess of alcohol, the only way in which a defendant can discharge the onus is by calling medical evidence. One will assume and hope that these cases will not be very frequent, but I reach the conclusion at the end of the case that where the facts are not obvious to a layman in the medical sense, it will be necessary for the defendant to call medical evidence in order to discharge the onus of proof which rests on him."
Lord Justice Goff (as he then was) adopted that passage, but with the qualification that scientific rather than medical evidence must have been what the Lord Chief Justice had in mind.[13]The section has been considered more recently by the Court of Appeal in R v Drummond [2002] EWCA Crim 527. In paragraph 31 of that judgment, when dealing with the submission that the burden on the defendant should be read down as an evidential burden rather than a persuasive burden,

Lord Justice Longmore said:

"The present case is, in our view, different from both Lambert and Carass in material respects. First, the offence of driving while over the legal limit is not an offence which requires the court to ascertain the intent of the accused at all. Conviction follows after a scientific test which is intended to be as exact as possible. Secondly, in most cases such test is exact or, to the extent it is less than exact, the inexactness will work in favour of the accused. Thirdly, it is the accused himself who, by drinking after the event, defeats the aim of the legislature by doing something which makes the scientific test potentially unreliable. There is a distinct danger that in many (perhaps the majority of cases) the accused will have taken alcohol after the event for the precise purpose of defeating the scientific test. Fourthly, the relevant scientific evidence to set against the result ascertained from the specimen of breath or blood is all within the knowledge (or means of access) of the accused rather than the Crown. This evidence will include: (1) the amount which the accused had to drink after the incident; (2) what is called his 'blood-breath ratio', important for calculating the rate at which his body absorbs alcohol; (3) the rate at which his body eliminates alcohol over time; (4) the accused's body weight."
[14]That passage and Lord Justice Longmore's judgment was approved in the case of Director of Public Prosecutions v Ellery [2005] EWHC Admin 2513.[15]The submissions on behalf of the appellant put forward to us by Mr Barker are that the justices simply accepted and rightly accepted that they had the burden of proof wrong. There can therefore be no doubt that an error of law was made and that the appeal must succeed. I am satisfied that this submission is correct.[16]The only question is whether it is necessary for the matter to go back for re-hearing or whether this is a case in which it can properly be said that the facts reveal no defence and therefore the matter must be remitted to the justices with a direction that they convict. It has been submitted to us, on behalf of the appellant, that on the findings which the justices made there is simply no scope for an acquittal when one looks in the opinion at 6 (b) where the justices found that it was likely that the respondent was over the legal limit when he drove based on the evidence that they had heard. That finding makes in inevitable that without scientific evidence, which the respondent did not call, he could not possibly satisfy the burden cast upon him under Section 15 (3) and in accordance with the authorities. They could, as my Lord, Lord Justice Sedley, said, only be in doubt as to the matter. They could certainly not state that they were satisfied, on that evidence, of the matters which the respondent needed to prove. It is my view that that is undoubtedly correct and that there is no proper basis upon which there is any material fact before the court which could lead to an acquittal. Indeed, on the justices' finding, it is inevitable that the respondent could not establish the burden of proof necessary under Section 15 (3).[17]The questions which had been posed by the justices in their case are matters upon which I do not consider that this court needs to provide an answer, especially in relation to the first two which essentially relate to general matters such as the evidence that should be appropriate in cases such as this. Those matters are established by what was set out in Dawson v Lunn and Drummond, which I have already set out in this judgment.[18]The third question - namely, "Have we exceeded our jurisdiction in applying the incorrect burden of proof when assessing the application of Section 15 (3) of the Act?" - is not correctly stated because it is not a matter of jurisdiction. It is simply that the justices made an error in law in applying the incorrect burden of proof. Accordingly as re-phrased - namely, did we apply the incorrect burden of proof when assessing the application of Section 15 (3) of the Act? - the answer to that question is yes.[19]Accordingly, in my judgment, the appeal should be allowed and the case should be remitted to the justices with a direction that they enter a conviction against the respondent for the offence of driving with excess alcohol.

LORD JUSTICE SEDLEY: I agree.

[21]Are there any other applications, Mr Barker?[22]MR BARKER: May I ask for two small corrections? Your Lordship referred to the respondent having been convicted before the case stated was sought. The respondent was acquitted.[23]MR JUSTICE NELSON: Yes. I am sorry, thank you.[24]MR BARKER: Secondly, in relation to the quotation of Section 15 (3) my Lord read out paragraph (a) (i), the actual one in this case is (ii) in relation to this particular offence driving with excess alcohol.

MR JUSTICE NELSON: Thank you.

[26]MR BARKER: I do not seek an order for costs.

LORD JUSTICE SEDLEY: Thank you.