Director Of Public Prosecutions v Kelsey Christina Ridings

On a case stated appeal, a magistrates’ court commits a material error of law if it applies the criminal burden and standard of proof to a statutory defence which places a persuasive burden on the defendant to the civil standard.

Identifying the correct legal test is not enough: the reasoning and conclusions must show that the test was actually applied. A court’s factual findings do not cure conclusions which expressly give the defendant the benefit of reasonable doubt on the issue governed by the reverse burden. Where the error is clear, the case need not be returned for clarification.

The Director of Public Prosecutions appealed by way of case stated from the respondent’s acquittal by Tameside Magistrates’ Court on a charge of driving with excess alcohol, contrary to section 5(1)(a) of the Road Traffic Act 1988.

The magistrates found that the respondent was not over the limit when driving and later consumed two vodka and cokes. Their stated conclusions nevertheless said that the prosecution had not proved beyond reasonable doubt that she was over the limit at the relevant time. The central issue was whether the magistrates had applied the statutory presumption and reverse burden under sections 15(2) and 15(3) of the Act.

1. The appeal succeeded on the first ground. The magistrates’ acquittal was quashed and the case was remitted for a retrial before a differently constituted bench.

2. Sections 15(2) and 15(3) of the Road Traffic Act 1988 placed on the respondent a persuasive burden, discharged on the balance of probabilities, to establish that post-incident alcohol consumption accounted for the excess alcohol found in the breath specimen. The prosecution did not retain the burden of disproving that defence beyond reasonable doubt: R v Drummond [2002] EWCA Crim 527.

3. The stated case had to be read fairly, straightforwardly and as a whole. However, a decision-maker may identify the correct legal principle and then fail to apply it. The magistrates’ express conclusions that the prosecution had failed to prove the case beyond reasonable doubt, and that there was insufficient evidence to prove beyond reasonable doubt that the respondent was over the limit, showed that they had applied the criminal standard to the issue governed by the reverse burden.

4. The favourable factual findings did not establish that the civil standard had been applied. Findings of fact must be understood in the light of the burden and standard actually used. The magistrates’ adverse assessment of the respondent’s supporting witnesses, their favourable assessment of the prosecution witness, and their acknowledgment of error reinforced the conclusion that they had given the respondent the benefit of the doubt.

5. There was no need to remit the stated case for clarification. The conclusions were clear, and their conflict with the applicable law constituted the material error itself.

6. The court did not answer the second question or determine the argument concerning expert evidence and DPP v Dukolli [2009] EWHC 3097 (Admin), because the first ground was sufficient. The question of costs was left to the magistrates’ court should a subsequent conviction occur, applying the criminal costs regime and the guidance in Murphy v Media Protection Services Ltd [2012] EWHC 529 (Admin) and Dagenham LBC v Argos [2022] EWHC 2466 (Admin).

• High Court (Administrative Court): The appeal by way of case stated was allowed on the first ground. The acquittal by Tameside Magistrates’ Court on 6 October 2021 was quashed, and the case was remitted for retrial before a differently constituted bench.