Crown Prosecution Service v Thompson

For the statutory defence under section 5(2) of the Road Traffic Act 1988, the defendant must prove that there was no likelihood of driving while the proportion of alcohol remained above the prescribed limit. The relevant question is therefore prospective and concerns the period during which the defendant would still be over the limit. A subjective intention not to drive immediately, or to drive only when feeling fit, is not decisive. Intention may be relevant, but it must be assessed with the other evidence. In an appropriate case, evidence of intention alone might suffice if it establishes that the defendant would not drive until below the prescribed limit. The issue must be determined on the evidence in the individual case.

The Crown Prosecution Service appealed by way of case stated from the decision of St Helens Magistrates’ Court. The magistrates had dismissed an allegation that Paul Thompson had been in charge of a vehicle while unfit through drink, contrary to section 5(1)(b) of the Road Traffic Act 1988.

Mr Thompson had been found asleep in a company van with the keys in the ignition. He said that he had not intended to drive until he felt fit. The magistrates accepted that he had no intention of driving when he entered the vehicle or when he was awakened, but did not address whether there was any likelihood of his driving while still above the prescribed limit. The central issue was the proper application of the defence in section 5(2).

1. Appeal allowed. The magistrates’ decision was quashed and the matter was remitted for reconsideration on the evidence already heard.
2. The burden under section 5(2) of the Road Traffic Act 1988 rests on the defendant, who must prove the defence on the balance of probabilities. The statutory question is whether, at the relevant time, there was no likelihood of driving while the proportion of alcohol in the defendant’s breath, blood or urine remained likely to exceed the prescribed limit.
3. The magistrates had applied the wrong test. Their findings addressed Mr Thompson’s intention when he entered the vehicle and when he was awakened. They did not address whether he might drive at a later time while he remained over the limit. The relevant period is the period during which the defendant would in fact remain above the prescribed limit.
4. A defendant’s subjective intention is not decisive. It may be a relevant factor, but the court must consider the statutory likelihood of driving in the light of all the circumstances. Here, the evidence showed that Mr Thompson was affected by drink, was well above the prescribed level, intended to drive when he felt fit, did not know when he would fall below the limit, and produced no scientific evidence addressing that question.
5. There is no absolute rule that evidence of intention can never establish the defence. It might do so if supported by compelling circumstantial or expert evidence, or, in an appropriate case, if the defendant’s evidence showed that he would not drive until actually below the prescribed level. The issue remains one for the court on the facts of each case.
6. Lord Justice Hughes agreed that the magistrates had focused on the wrong time. Costs were ordered against the respondent, limited to £500.

• High Court (Administrative Court): On a case stated appeal, the court allowed the Crown Prosecution Service’s appeal, quashed the magistrates’ decision and remitted the matter for reconsideration.