DPP, R (on the application of) v Chambers

For the purposes of the statutory presumption concerning alcohol levels, the court must consider all evidence before the magistrates, not merely expert scenarios prepared on hypothetical instructions. An account given by the defendant to the police is evidence. A scenario supplied to an expert, without more, is only a hypothesis and is not evidence before the defendant gives evidence. Where the defendant bears the burden of proving that the statutory presumption is displaced, uncertainty in the evidence does not discharge that burden. The prosecution may therefore have a case to answer where the evidence is capable of supporting either a below-limit reading or uncertainty about the calculation.

This was a prosecutor’s appeal by case stated from the dismissal by Sutton Coldfield Magistrates’ Court of a charge under section 5 of the Road Traffic Act 1988. The respondent’s intoxilyzer reading was 124 micrograms of alcohol in 100 millilitres of breath. The magistrates accepted that the reading was above the prescribed limit but concluded that expert evidence raised a case capable of rebutting the statutory presumption concerning the level at the time of driving.

The central issues were whether the magistrates had considered all the evidence, whether a drinking scenario supplied to experts had any evidential status before the respondent gave evidence, and whether the evidence was capable of discharging the burden under section 15(3) of the Road Traffic Offenders Act 1988.

1. Appeal allowed. The magistrates’ decision was quashed and the matter was remitted to Sutton Coldfield Magistrates’ Court for rehearing before a differently constituted bench.
2. Under section 15(2) and (3) of the Road Traffic Offenders Act 1988, the breath specimen had to be taken into account and the statutory assumption applied unless the respondent proved, on the balance of probabilities, the matters specified in section 15(3).
3. The magistrates erred by considering only the two scenarios examined by the experts. They failed to take into account the respondent’s admission that she had consumed vodka as well as wine before the incident. That admission was evidence and had not been rejected.
4. The magistrates also erred by treating as evidence a further drinking scenario based on instructions given to the respondent’s expert. Before the respondent gave evidence, that scenario was merely a hypothesis. It was not equivalent to answers given in police interview or information recorded on the TF7 form.
5. The magistrates further erred in concluding that the evidence enabled the respondent to discharge the section 15(3) burden. The evidence either supported a conclusion that the burden had not been discharged, on the basis of an estimated reading of 65 micrograms, or left calculation difficulties unresolved. The respondent could not obtain the benefit of those difficulties.
6. The approach in Patterson v Charlton concerning the manner of remitting a case was not a binding principle. It was one possible way of resolving the procedural problem, and the court preferred a different order in the circumstances.

• Sutton Coldfield Magistrates’ Court: dismissed the excess-alcohol charge after accepting a submission of no case to answer.
• High Court (Administrative Court): allowed the prosecutor’s appeal by case stated, quashed the magistrates’ decision and remitted the matter for rehearing before a differently constituted bench.