Goldsmith v Director of Public Prosecutions [2009] EWHC 3010 (Admin)

[2009] EWHC 3010 (Admin)Case No CO/8985/2009
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Venue Royal Courts of JusticeDate Wednesday, 4th November 2009
Strand
London WC2A 2LL
B e f o r e:
LORD JUSTICE SULLIVAN
MR JUSTICE OPENSHAW
Between
THOMAS NEIL GOLDSMITHClaimantv
Between
DIRECTOR OF PUBLIC PROSECUTIONSDefendant
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)
Arthur Blake (instructed by Darbys) appeared for Claimant for The Defendant was not represented and did not attend
J U D G M E N T

LORD JUSTICE SULLIVAN:

[1]I will ask Mr Justice Openshaw to give the first judgment.[2]MR JUSTICE OPENSHAW: This is an appeal by way of case stated from the Oxford Magistrates' Court. It raises the question of whether a defendant who pleads guilty to an offence of driving with excess alcohol contrary to section 5(1)(a) of the Road Traffic Act 1988, and therefore admits that he was driving "over the limit", can seek a Newton hearing to contest the amount by which the prosecution allege he was over the limit, as he contends, or whether the court is bound by the certificate of analysis of the specimen provided, as the prosecution contends.[3]This is important because the Sentencing Guidelines Council has approved a recommended scale of penalties for such offences which has a sliding scale with the fine and disqualification increasing according to the extent to which the driver is over the prescribed limit and, in some cases with very high readings, even requiring a prison sentence. But first the facts.[4]On 1st September 2008 the appellant, Thomas Goldsmith, had been drinking in a public house. After he left the pub, he drove his Renault Clio motor car off the A418 Aylesbury Road at Scotsgrove in Oxfordshire and into the ditch. He abandoned his car there, was collected by friends and they went back to the pub, where he had some more to drink.[5]The police were called to the abandoned car and later traced the appellant to the pub, where he provided a positive breath test. He was arrested. At Aylesbury Police Station he later gave a specimen of breath. The lower of the two readings was 71 micrograms of alcohol in 100 millilitres of breath, which was the figure which appeared on the certificate.[6]The police made their own inquiries with the bar staff of the pub to establish how much he had had to drink after the accident. Having done so, they sought expert evidence to make a back calculation of the likely alcohol levels which he would have had at the time that he was driving. The expert was of the opinion that a likely reading when he was driving was 46 micrograms of alcohol in 100 millilitres of breath, still some way over the limit of 35 milligrams.[7]Following this, perhaps understandably, the police charged him with driving with excess alcohol on the basis that the level of alcohol at the time that he was driving was 46 micrograms of alcohol in 100 millilitres of breath.[8]The CPS did not agree with this approach. They later amended the charge to allege a reading of 71 in accordance with the certificate.[9]The appellant then appointed his own expert. On the basis of what the appellant claimed to have drunk before and after the accident, when he had those drinks and when he was driving, his expert reported that, on the basis that what the appellant had said that was true and reliable, a likely reading at the time of his driving was no more than 57 micrograms of alcohol in 100 millilitres of breath.[10]Following the receipt of this opinion, the appellant pleaded guilty to the charge, but he entered a basis of plea in which he accepted guilt but claimed that the level of alcohol at the time of driving was no more than 57 micrograms of alcohol in 100 millilitres of breath, as he had been advised by his expert. That basis of plea was not accepted by the prosecution and a date was appointed for a Newton hearing (see R v Newton [1982] 77 CrAppR 13) to try the issues so that the court could determine where the truth lay.[11]When the case came before the court on 28th April the CPS argued that the assumption provided by section 15(2) of the Road Traffic Act 1988 could not be displaced, even after guilt had been admitted. They contended that appellant was bound by the reading of 71 shown on the certificate and they argued, therefore, that the Newton hearing was misconceived.[12]They relied on three cases — Millard v DPP [1990] RTR 2001, Beauchamp-Thomson v DPP [1998] RTR 54 and Griffiths v DPP [2002] EWHC 792 (Admin) — each of which was a trial in which the defendant sought to undermine or contradict the assumption made by section 15(2) otherwise than by relying on section 15(3). In each case the court held that the assumption was not otherwise rebuttable.[13]The Deputy District Judge accepted this argument. She decided that she should not — indeed, could not — hold a Newton hearing since the assumption provided by section 15(2) applies "in all cases" and could only be rebutted where section 15(3) applies, which it did not. It followed that in her judgment the appellant was unable to challenge the reading of 71 and had to be sentenced on that basis. She therefore ordered that he be disqualified for 17 months, with a reduction if he went on the drink drivers' rehabilitation course. She fined him £180 and made him pay costs.[14]The appellant was aggrieved and sought to appeal by way of case stated. The question posed for this court is:
"Was [the Deputy District Judge] correct in deciding that the assumption provided by section 15(2) of the Road Traffic Act 1988 prevented [her] from sentencing the appellant on the basis of a lower reading than that provided by the evidential test where there had been post-driving consumption of alcohol?"
This is a complex and clumsy sentence, but the point in issue is clear.[15]Section 15 of the Road Traffic Offenders Act 1988 reads as follows:
"(1)This section and section 16 of this Act apply in respect of proceedings for an offence under section 4 or 5 of the Road Traffic Act 1988 (motor vehicles: drink and drugs); and expressions used in this section and section 16 of this Act have the same meaning as in sections 4 to 10 of that Act. (2)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, be taken into account and, subject to subsection (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. (3)If the proceedings are for an offence under section 5 of that Act or, where the accused is alleged to have been unfit through drink, for an offence under section 4 of that Act, that assumption shall not be made if the accused proves— (a) that he consumed alcohol after he had ceased to drive, attempt to drive or be in charge of a motor vehicle on a road or other public place and before he provided the specimen, 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 and, if the proceedings are for an offence under section 4 of that Act, would not have been such as to impair his ability to drive properly."
Subsections (4) and (5) are not relevant for this purpose.[16]The appellant, through his counsel, Mr Blake, has argued before us, as was argued before the magistrates, that the assumption in section 15(2) applies to trials, but only to trials, and has no relevance once guilt is established by plea or otherwise, when, he argues, the court can, and indeed should, come to its own conclusions on the evidence available, taking account of, even giving weight to, the readings, but ready to come to some other conclusion if the evidence plainly establishes that the reading must have been wrong. He argues that any other result could work greater injustice.[17]Let us take an example. Let us say that there is clear evidence that someone left work without having had a drink. He then goes to the pub and has one and a half pints of beer before driving off, sufficient, perhaps, just to put him over the limit, but not by very far. Then, like the appellant, he has an accident. Like the appellant, he leaves his car and goes back to the pub with his friends, where he has, say, four or five pints, or even more, before the police arrive.[18]The reading on the certificate taken after such a large consumption after the accident would be very high indeed. The appellant would have to plead guilty because he could not establish that he was not over the limit when hewas driving. To put it another way, he could not displace the assumption under section 15(2) because he could not prove the exception in section 15(3) applied. If the prosecution are right, he must be sentenced on the basis that he was driving with that very high reading, rather than the modest excess which the evidence establishes must have been the position.[19]This is not just. It is not fair. I do not accept that it is the law. The court should not be compelled to sentence upon a factual basis which is demonstrably false.[20]Furthermore, to my mind there are certain linguistic signposts within section 15 which make clear that the presumption applies only to contested trials. Section 15(1): this section applies "in respect of proceedings for an offence" under section 5. This is apt to describe a trial, but not apt to describe a hearing after a plea to determine sentence.[21]Furthermore, the assumption in subsection (2), although it says it applies "in all cases", is subject to the exception in subsection (3) which allows the defendant to set aside the assumption if he proves that he consumed alcohol after he ceased to drive and it was the alcohol taken after he ceased to drive which pushed him over the limit. The exception in subsection (3) is plainly relevant to trials, and only to trials, which strongly suggests that the presumption in subsection (2) also applies only to trials.[22]The cases of Millard, Beauchamp, Thomson and Griffiths, to which I have already referred, on which the prosecution rely are all trials and, in my judgment, take the matter no further. They are not authority for the proposition that after a plea of guilty a defendant cannot by other evidence demonstrate that, although he was over the limit when driving, he was not so far over the limit as the certified reading suggests. I am satisfied, therefore, that the assumption in section 15(2) applies only to trials. Once the defendant has pleaded guilty, once he has put forward an arguable case to suggest that his breath alcohol figure at the time of driving was significantly lower than the certified reading, then the issue as to the actual excess at the time of his driving can and should be resolved by holding a Newton hearing.[23]I would therefore answer the question posed "no" and direct that the case is remitted to Oxford Magistrates' Court for a Newton hearing. Of course, the magistrates will start with the reading on the certificate, and no doubt they may be sceptical that the appellant can truthfully or accurately remember how much he had to drink before and after the accident, when he had each drink and when it was that he drove the car. They may give weight to such discrepancies as there may be in differing accounts that he may have given to the police, to the experts and in evidence. They may consider, also, such other evidence as is put before them, but in these circumstances the appellant is entitled to a Newton hearing to determine the extent of his excess at the time of his driving and for him to be sentenced according to that finding of fact.

LORD JUSTICE SULLIVAN: I agree. It would be an affront to justice if a sentencer was compelled by reason of a statutory assumption to sentence a convicted defendant on a basis that was not merely known to the sentencer to be false but was known to be falsely adverse to the defendant.

[25]My Lord, Mr Justice Openshaw, has given one example where real injustice would be created by the approach to the section 15(2) assumption argued for before the Deputy District Judge by the CPS. One might ask what would have been the position in that example if the defendant had instructed an expert and the expert's evidence was that, carrying out the appropriate calculations, the likely reading at the time of the defendant's driving would have been 33 micrograms of alcohol in 100 millilitres of breath. On that basis, the defendant would have entered a not guilty plea.[26]If the evidence of the defendant's expert was challenged by the prosecution, and the prosecution had called their own expert, whose evidence was that the appropriate figure would have been not 33 but 42, so that an offence had been committed, the magistrates would have had to decide whether the defendant had discharged the evidential burden placed on him by section 15(3)(b). If the magistrates had concluded that they preferred the evidence of the prosecution's expert witness, and they were satisfied that the reading would probably have been 42 rather than 35, could it have been within the contemplation of Parliament that, having found the defendant guilty, the magistrates would then be compelled by reason of the assumption in section 15(2) to sentence the defendant on the basis of a figure far in excess of 42?[27]In my judgment, bearing in mind the mischief which the assumption was intended to cure, and considerations of elementary fairness, the answer to that question must be no.[28]For the reasons given by my Lord, Mr Justice Openshaw, the assumption in section 15(2) applies only to trials and does not compel a court to sentence a defendant upon a false basis.