Director of Public Prosecutions v Ellery

Where a defendant consumes alcohol after driving and before providing a specimen, the legal burden under section 15(3) of the Road Traffic Offenders Act 1988 remains compatible with the presumption of innocence. The defendant must prove, on the balance of probabilities, both that alcohol was consumed after driving and that, without it, the prescribed limit would not have been exceeded.

The regime is justified because the defendant’s conduct may make the scientific specimen unreliable, and the relevant evidence is principally within the defendant’s knowledge or means of access. Authorities concerning prosecutions based on calculations from specimens below the limit do not displace the statutory presumption where the prosecution relies on the certified analysis.

The Director of Public Prosecutions appealed by case stated against the decision of West Cornwall Justices at Camborne Magistrates’ Court, which acquitted the defendant of driving with excess alcohol contrary to section 5(1)(a) of the Road Traffic Act 1988.

The defendant’s blood specimen, taken after he had driven, contained at least 94 milligrams of alcohol per 100 millilitres. Expert evidence indicated that, depending on the defendant’s account of post-driving consumption, his level at the time of driving may have been below the prescribed limit. The Justices considered that the prosecution had to establish the actual quantity of alcohol in the defendant’s body when driving beyond reasonable doubt.

The central issues were the effect of the statutory presumption and whether the legal burden imposed by section 15(3) was compatible with the presumption of innocence.

1. The appeal was allowed. The Justices’ question was answered in the negative, and the case was remitted with a direction to convict.

2. Under sections 7 of the Road Traffic Act 1988 and 15(2) of the Road Traffic Offenders Act 1988, the certificate of analysis was to be taken into account and the proportion of alcohol at the time of the offence was presumed to be no less than the proportion shown by the certificate. Section 15(3) provided the defendant with a means of rebutting that assumption.

3. The Justices had wrongly treated authorities concerning calculations from specimens below the prescribed limit as requiring proof beyond reasonable doubt of the actual alcohol level when driving. Those authorities arose in a different context, where the prosecution could not rely on the statutory presumption.

4. The legal burden under section 15(3) was compatible with the presumption of innocence. The reasoning in R v Drummond [2002] 2 Cr App R 25 should not be revisited. The relevant considerations included that the defendant’s post-driving consumption could make the scientific test unreliable and that the evidence needed to challenge the specimen result was principally within the defendant’s knowledge or means of access.

5. The reasoning in Sheldrake v Director of Public Prosecutions and Attorney General’s (No 4 of 2002) [2005] 1 All ER 237 did not require a different conclusion. A legal burden may be proportionate where the statutory scheme pursues the legitimate object of preventing death, injury and damage caused by unfit drivers, gives the defendant a proper opportunity to rebut the presumption, and does not impose an arbitrary or excessive burden.

6. On the facts found, the defendant had not shown on the balance of probabilities that the statutory conditions in section 15(3) were satisfied. The acquittal therefore could not stand.

1. High Court (Administrative Court) — The Director of Public Prosecutions appealed by case stated against the acquittal by West Cornwall Justices sitting at Camborne Magistrates’ Court. The appeal was allowed and the case was remitted with a direction to convict.