Director of Public Prosecutions v Tooze

Under section 15 of the Road Traffic Offenders Act 1988, evidence from an accused’s breath, blood or urine specimen must be taken into account and the statutory assumption applies unless the accused proves the conditions in section 15(3). Where post-driving alcohol consumption is relied on, the accused bears the persuasive burden of proving that the prescribed limit would not have been exceeded without that consumption. In a non-obvious case, scientific evidence will ordinarily be required to discharge that burden. If the magistrates’ findings leave no evidential basis on which the burden could be discharged, the appellate court may direct a conviction rather than order a rehearing. Applying the wrong burden is an error of law, not a jurisdictional error.

The Director of Public Prosecutions appealed by case stated from the decision of Avon and Somerset Justices at Bristol Magistrates’ Court, which acquitted the respondent of driving with excess alcohol contrary to section 5(1)(a) of the Road Traffic Act 1988.

The magistrates found that the respondent had driven, that 2½ to 2¾ hours elapsed before the breath test, and that he had consumed up to three double vodkas with Red Bull after driving. They accepted that he was likely to have been over the legal limit when driving, but applied the wrong standard of proof when considering whether the statutory assumption under section 15(2) should be displaced under section 15(3). The central issues were the correct burden and whether the case should be remitted or a conviction directed.

1. Appeal allowed. The magistrates had accepted that they applied the wrong burden of proof when considering section 15(3) of the Road Traffic Offenders Act 1988. That was an error of law, not a question of jurisdiction.
2. Section 15(2) required the breath-test result to be taken into account and, subject to section 15(3), required it to be assumed that the proportion of alcohol at the time of the alleged offence was not less than that shown by the specimen. Since the respondent relied on post-driving consumption, section 15(3) placed the persuasive burden on him to prove that, without that consumption, the prescribed limit would not have been exceeded.
3. The approach in Dawson v Lunn [1984] RTR 234, adopting the test stated in Pugsley v Hunter [1973] RTR 284, and the reasoning in R v Drummond [2002] EWCA Crim 527, established that scientific evidence would ordinarily be necessary where the effect of post-driving alcohol was not obvious to a layperson.
4. The magistrates’ finding that the respondent was likely to have been over the limit when driving, together with the absence of scientific evidence, meant that he could not discharge the section 15(3) burden. There was no material fact capable of supporting an acquittal.
5. The case was remitted to the justices with a direction that they enter a conviction for driving with excess alcohol.

• High Court (Administrative Court): The Director of Public Prosecutions appealed by case stated against the acquittal by Avon and Somerset Justices sitting at Bristol Magistrates’ Court. The appeal was allowed, and the matter was remitted with a direction that the justices enter a conviction.