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England and Wales High Court (Administrative Court) Decisions |
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You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Director of Public Prosecutions v Bolton [2009] EWHC 1502 (Admin) (04 June 2009) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2009/1502.html Cite as: [2009] EWHC 1502 (Admin) |
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QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Strand London WC2A 2LL |
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B e f o r e :
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THE QUEEN ON THE APPLICATION OF DIRECTOR OF PUBLIC PROSECUTIONS | Claimant | |
v | ||
BOLTON | Defendant |
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WordWave International Limited
A Merrill Communications Company
l65 Fleet Street London EC4A 2DY
Tel No: 020 7404 1400 Fax No: 020 7404 1424
(Official Shorthand Writers to the Court)
The Defendant did not attend and was not represented
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Crown Copyright ©
1. That on 22nd March 2007 the respondent drank three pints of lager topped up with lemonade between 6 and 11 pm.
2. That he then went to his partner's home.
3. That he left his partner's home at 11.50 pm and drove home, arriving at 12.15 am the following morning.
4. That he then drank one and a half pints of cider and a cup of tea with a small whiskey in it.
5. That the drink taken by him prior to his driving the car was such that "it would be obvious to any person that three pints of lager topped up with lemonade would not be sufficient alcohol over a 5 hours and 50 minutes period to put him over the prescribed limit when he ceased driving.
6. That the matter was so obvious to the court that medical evidence to prove this point was not required.
"(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."
Those are the key parts of the section for these purposes.
"In my judgment this case shows vividly the dangers of laymen, in other words those who are not scientifically qualified, dabbling as amateurs in science. This applies to all of us who sit on the bench, whether lawyers or lay magistrates. It shows the desirability, when faced with scientific matters, of having the assistance of those who are qualified to help us deal with those matters. If we stand back from this case, what do we see? We see the Justices proceeding on the basis of the defendant having drunk one pint of beer at 7.30 pm, having drunk a second pint of beer at about 10 pm, having drank a third pint of beer at about 11 pm and being, at 11.30 pm, 50 per cent over the permitted limit and then concluding, on the balance of probabilities, that the defendant had proved that the third pint was the crucial pint which had taken him over the limit. Those are the bare facts of the situation, as to which commonsense provides a most valuable check."
He went on to indicate that in that particular case his view was that "there was no evidence on which the Justices could reach the conclusion which they reached". He then went on to add:
"In cases of this kind I have no doubt that there are circumstances in which, as a matter of commonsense, laymen can reach a perfectly sensible conclusion unaided by scientific evidence. We need only to take the simple case of somebody who satisfies the Justices on the evidence that he had drunk only a small amount before driving, and that after ceasing to drive he had drunk a substantial quantity of alcohol. The Justices can then conclude, as laymen, reliably and confidently -- and I take those words from a judgment to which I am about to refer -- that the defendant has satisfied them, on the balance of probabilities, that he has consumed alcohol after ceasing to drive and that had he not done so the proportion of alcohol in his breath, or blood, or urine would not have exceeded the prescribed limit. But there must be cases where the Justices cannot sensibly draw that conclusion themselves unaided by expert evidence.
In those circumstances, in my judgment, they should take advantage of the guidance which was given by Lord Widgery CJ in Pugsley v Hunter [1973] RTR 284."
"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."
Having cited that passage, Robert Goff LJ continued:
"I respectfully adopt that passage but with this qualification. I have no doubt that Lord Widgery himself would have had in mind the possibility of scientific evidence other than medical evidence. In my judgment that passage is equally applicable to the defence which arises under section 10(2) of the Road Traffic Act 1972 as substituted."
"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. Second, 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."