Goldsmith v Director of Public Prosecutions

The statutory assumption concerning alcohol levels in a specimen applies to a contested trial. It does not compel a court, after a guilty plea, to sentence on a certified reading which the evidence shows is falsely adverse to the defendant. Where the defendant admits being over the limit but advances an arguable case that the level at the time of driving was materially lower, the court can and should conduct a Newton hearing. The certificate remains the starting point, but sentence must reflect the factual finding about the level of excess when the defendant was driving.

Thomas Goldsmith appealed by way of case stated from Oxford Magistrates’ Court. He pleaded guilty to driving with excess alcohol contrary to section 5(1)(a) of the Road Traffic Act 1988, but disputed the extent of his excess because he had consumed further alcohol after driving and before providing a specimen.

The magistrates held that the assumption in section 15(2) of the Road Traffic Offenders Act 1988 bound them to sentence on the certified reading and refused a Newton hearing. The issue before the Divisional Court was whether that assumption prevented sentencing on a lower reading where post-driving consumption was alleged.

1. Appeal allowed. The court answered the stated question “no” and remitted the case to Oxford Magistrates’ Court for a Newton hearing.
2. Section 15(2) of the Road Traffic Offenders Act 1988 provides that the alcohol level in the specimen is assumed to represent the level at the time of the alleged offence, subject to section 15(3). The court held that this assumption applies to contested trials. It does not govern the sentencing hearing following a guilty plea.
3. The language and structure of section 15 supported that conclusion. Section 15(1) refers to proceedings for the offence, while the exception in section 15(3), concerning alcohol consumed after driving, is directed to determining guilt at trial. The authorities relied upon by the prosecution—Millard v DPP [1990] RTR 2001, Beauchamp-Thomson v DPP [1998] RTR 54, and Griffiths v DPP [2002] EWHC 792 (Admin)—were all trial decisions and did not establish the wider proposition advanced.
4. Once guilt has been admitted, an arguable case that the alcohol level when driving was significantly below the certified reading requires a Newton hearing: R v Newton [1982] 77 CrAppR 13. The magistrates must begin with the certificate but may assess the defendant’s account, inconsistencies, expert evidence and other relevant evidence.
5. It would be unjust to compel sentence on a factual basis known to be false and adverse to the defendant. The sentence must be based on the magistrates’ finding as to the actual level of excess when the driving occurred.

• High Court (Administrative Court): The appeal by way of case stated was allowed. The magistrates’ decision was set aside in substance, the stated question was answered “no”, and the case was remitted for a Newton hearing.
• Oxford Magistrates’ Court: The Deputy District Judge refused a Newton hearing and sentenced on the certified reading of 71 micrograms of alcohol per 100 millilitres of breath.