[1986] R.T.R. 234 (1985) 149 J.P. 491 [1986] R.T.R. 234 (1985) 149 J.P.

491 [1986] R.T.R. 234 (Cite as: [1986] R.T.R. 234)

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*234 Dawson v Lunn

If a person( a ) drives a motor vehicle on a road after consuming so much alcohol that the proportion of it in his breath exceeds the prescribed limit he shall be guilty of an offence. Section 10(2) provides: [ as so substituted ]

Queen's Bench Division LJ Robert Goff, and McCullough November 30 1984 DrinkBlood alcoholDefence to charge of driving with excess blood-alcoholEvidence of alcohol consumption after driving ceasedProduction of page from medical journal to justices making calculation on basis of figures on page and concluding defence established on balance of probabilities Whether decision properWhether expert guidance necessary Road Traffic Act 1972 ss 6(1), 10(2) Transport Act 1981 s 25(3), Sch 8 Section 6(1) of the Road Traffic Act 1972 [ as substituted bysection 25(3) of, and Schedule 8 to, the Transport Act 1981 ] provides: No other case was cited in argument .

Evidence of the proportion of alcohol in a specimen of breath provided by the accused shall, in all cases, betaken into account, and it shall be assumed that the proportion of alcohol in the accused's breath at the time of the alleged offence was not less than in the specimen; but if the proceedings are for an offence under section 6 of this Act the assumption shall not be made if the accused proves( a ) that he consumed alcohol after he ceased to drive and ( b ) that had he not done so the proportion of alcohol in his breath would not have exceeded the prescribed limit Pugsley v Hunter [1973] RTR 284, DC applied .

Case stated by Justices sitting at Colchester On 6 May 1983 a charge was preferred by the prosecutor, Herbert Dawson, a police officer, against Alan Derek Lunn, that he at Colchester in the county of Essex at 11.06 p m, on 6 May 1983 did drive a motor vehicle, index number KVP 584P, on a road or public place called Balkerne Hill, after consuming such a quantity of alcohol that the proportion in his breath was 53 microgrammes of alcohol in 100 millilitres of breath, which exceeded the prescribed limit of 35 microgrammes in 100 millilitres of breath, contrary to section 6(1) of the Road Traffic Act 1972 as amended by the Transport Act 1981 . The justices heard the charge on 19 July 1983 and found the following facts. At 11 p m on 6 May 1983 the defendant dialled 999 and reported his vehicle had broken down on Balkerne Hill, Colchester. At 11.03 p m, the same day Police Constable Brough attended scene at Balkerne Hill, Colchester. The defendant approached the vehicle and was asked if he was the driver. He said that he was. The constable suspected the defendant of having been drinking. He had strong smell

of alcohol on his breath. His speech was slurred. He was asked if he had been drinking and he said that he had had a couple of pints about half an hour ago. When the defendant gave evidence it was noticed that he was very difficult to understand. His natural speech could be construed as slurred. Subsequently the defendant accompanied the constable to Colchester police station, where the defendant provided two specimens of breath for analysis at 23.24 hours under section 8 of the Road Traffic Act 1972 . The procedure was followed correctly and the lower reading of the two specimens was 53 microgrammes of alcohol in 100 millilitres of breath. The justices agreed that this equalled 122 milligrammes in blood. The defendant was then charged with the offence. He was in the Army and on the night of 6 May 1983 was on duty in the barracks. He was only allowed *235 two pints of beer while on duty. He had one pint of beer at 7.30 p m. Later he went to semi-official function at Maypole public house, Colchester, where officers present who would notice if he was drinking. He had one pint of beer between 9.45 p m and 10.25 p m, at this function. He left the function in his motor car which broke down on Balkerne Hill, Colchester. He went to the nearest public house to telephone the police and a garage. During the 10 minutes whilst in the public house, a friend purchased him a pint of beer, which the

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defendant drank between 10.50 p m, and 11 p m. The defendant left the public house shortly after 11 p m, to return to his motor car, where the police were waiting by his car. The defendant called a witness, Private Simms, who bought the defendant the pint of beer at 11 p m. The justices found the two defence witnesses more credible than the police witnesses. An extract from the British Medical Journal dated 21 November 1981 was produced to the court. This stated 1 pint = 30 milligrammes (copy attached herewith). Three other sections from this extract weighed heavily with the justices. One was the graph of concentrations, one was the phrase though there is a good deal of individual variation and the other was the table of alcohol content and peak blood concentration for beer. The table referred to showed that the peak blood concentration level did not progress linearly. 122mg/100ml was equivalent to three pints of beer, but nothing was stated as to the period of time over which it was drunk. If one subtracted the pint that was drunk at The Hole in the Wall public houseand only one pint was admitted; if the defence had wanted to lie they could haveit would bring the peak blood level concentration when the car was abandoned down to about 80mg/100ml which was so close to the legal limit when taking the individual variation into account. The justices were not referred to any case law by either the prosecutor or the defence. The justices were referred by the prosecutor to notes on the Transport Act 1981 prepared by N J Spencer, Clerk to the Justices, Dorchester as under: The decision of the House of Lords in Rowlands v Hamilton [1971] 1 All ER 1089; [1971] RTR 153 is overruled . The alcohol reading will still be validly admissible in evidence even though alcohol was consumed subsequent to the driving or attempting to drive. There will still be a partial hip flask defence. The accused will have to prove that the alcohol consumed subsequently would have taken him over the

limit. If the proceedings are for driving or attempting to drive whilst, he must prove that the alcohol without the subsequent consumption would not have been such as to impair his ability to drive properly. The burden of proof on the defendant and therefore will be on the balance of probabilities. The justices considered on the balance of probabilities that the drink which the defendant has consumed after ceasing to drive his motor vehicle was sufficient to take him over the limit and accordingly dismissed the charge. The prosecutor appealed. The question of law for the opinion of the court was whether the justices were right in dismissing the charge having regard to the provisions of section 10(2) of the Road Traffic Act 1972 as amended by the Transport Act 1981 , having regard to the evidence given by the defence which did not include any medical or other expert evidence. ANNEXURE [ Text and figures from photocopy of page from British Medical Journal volume 283, 21 November 1981 ] Alcohol concentrations and rate of removal. [ GRAPH ]

In health, alcohol is removed from the blood at a rate of about 15/mg/1OOml/h, though there is a good deal of individual variation. Metabolism is accelerated in heavy drinkers unless they have liver damage, when it may fall to less than a quarter of normal. Detectable blood concentrations are present for over eight hours after three pints of beer or three double spirits in normal people; in patients with liver damage concentrations may remain high for over 24 hours. *236

[Note: The following table/form is too wide to be printed on a single page. For meaningful review of its contents the table must be assembled with part numbers in ascending order from left to right. Row numbers, which are not part of the original data, have been added in the margins and can be used to align rows across the parts.] *********************************************************************** ************** This is piece: 1 *********************************************************************** 1 Beer (pints) Wine (glasses) Sherry (small glasses)

[1986] R.T.R. 234 (1985) 149 J.P. 491 [1986] R.T.R. 234 (1985) 149 J.P. 491 [1986] R.T.R. 234 (Cite as: [1986] R.T.R. 234)

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2 3 Alcohol content (g)

1 20

3 60

5 100

1 10

3 30

5 50

1 10

3 30

5 50

Peak 30 blood concentrat ion (mg/100m l)

120

200

15

50

100

20

60

120

*********************************************************************** ************** This is piece: 2 *********************************************************************** 1 2 3 4 Spirits (single measures) 1 10 20 2 20 40 6 60 120 12 120 140 through obstacles that were too narrow for their vehicles. At 80mg/100ml the risk of a road accident is more than doubled; at 160mg/100ml it increases more than ten fold. Dysarthria and ataxia occur at concentrations of 160200mg/100ml, when loss of consciousness may result. Concentrations above 400mg/100ml are commonly fatal, especially if a sedative drug is also taken. Representation

SKETCH

Effect on behaviour Alcohol has a euphoriant and disinhibiting effect, but even at low blood concentrations (around 30mg/100ml) the risk of accidental injury increases. In a simulated driving test, bus drivers with blood alcohol concentrations of 50mg/100ml thought they could drive A D Collins for the prosecutor. J J Boothby for the defendant

a police officer. JUDGMENT ROBERT GOFF LJ There is before the court an appeal by way of case stated by justices sitting at Colchester. This is a case concerned with an information laid under section 6(1) of the Road Traffic Act 1972 as amended, that the defendant, Alan Derek Lunn, at Colchester, at 11.06 p m on 6 May 1983, drove a motor vehicle in a public place after consuming alcohol above the permitted limit. The charge was dismissed by the justices. The appeal before us is therefore an appeal by the prosecutor, Herbert Dawson, The case raises a question relating to the defence which arises under section 10(2) of the Road Traffic Act 1972 , as amended. I think it best that I should set out the whole subsection in this judgment:

Evidence of the proportion of alcohol or any drug in a specimen of breath, blood or urine provided by the accused shall, in all cases, be taken into account, and it shall be assumed that the proportion of alcohol in the accused's breath, blood or urine at the time of the alleged offence was not less than in the specimen; but if the proceedings are for an offence under section 6 of this Act, or for an offence under section 5 of this Act in

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a case where the accused is alleged to have been unfit through drink, the assumption shall not be made if the accused proves( a ) that he consumed alcohol after he had ceased to drive, attempt to drive or be in charge of a motor vehicle on a road or other public place and before he provided the specimen; and ( b ) that had he not done so the proportion of alcohol in his breath, blood or urine would not have exceeded the prescribed limit and, if the proceedings are for an offence under section 5 of this Act, would not have been such as to impair his ability to drive properly. Of course, the burden of proof which rests on the accused under that provision is a burden of proving the required matters on the balance of probabilities. In the present case, on the facts found by the justices, the following events occurred. At 11 p m on 6 May 1983 the defendant dialled 999. He reported that his vehicle had broken down on Balkerne Hill, Colchester. Three minutes later Police Constable Brough attended the scene. He formed the opinion that the defendant had been drinking, whereupon the defendant said that he had a couple of pints about half an hour ago. He accompanied the constable to Colchester police station and provided two specimens of breath for analysis. The time is important. He did so at 23.24 hours that evening. The procedure was followed correctly and the lower reading of the two specimens was 53 microgrammes of alcohol in 100 millilitres of breath. That, as the justices found, amounts to the equivalent of 122 milligrammes in the blood. The defendant was then charged with the offence. The evidence of the defendant before the justices was that he was only allowed two pints of beer while on duty that evening because he was a serving soldier in the army, and he was *237 on duty that evening in the barracks. The defendant stated that he had one pint of beer at 7.30 p m. Later that evening he went to a semi-official function at the Maypole public house, Colchester, where officers would notice if he was drinking. He had a second pint of beer at that function between 9.45 p m and 10.25 p m. It was after that function that the defendant left in his motor vehicle which broke down on the Balkerne Hill, Colchester. He then went to the nearest public house to telephone the police and a garage. He said that during the 10 minutes he was in the public house a friend purchased a pint of beer for him which he drank between 10.50 p m and 11 p m. That was his third pint of beer. The defendant called a witness, Private Simms, who had bought the defendant the pint of beer that evening in the second public house, which is called the Hole in the Wall.

The defence then produced to the justices an extract from the British Medical Journal . This consists of one page from the journal, a photocopy of which has been exhibited to the case. It provided the basis for an argument advanced by the defendant to the effect that the third pint of beer, which on his account he had drunk at The Hole in the Wall, had been drunk by him after he had ceased to drive, and that had he not drunk that third pint of beer the proportion of alcohol in his breath or blood would not have exceeded the prescribed limit. The prosecutor did not apparently object to that document being admitted in evidence. On that extract from the British Medical Journal , there is, first of all, a table in the middle of the page. There is there set out, in relation to beer in pints, then to wine in glasses, then to sherry in small glasses and then to spirits in single measures, first of all the alcohol content of one, three or five of the individual measures in each case and, secondly, beneath the alcohol content, which is described as the peak blood concentration in milligrammes per 100 millilitres. If I may take as an example beer, because it is the relevant drink in this case, we can see in the table that under one pint of beer the alcohol content is 20 and the peak blood concentration is 20 milligrammes in 100 millilitres. Under three pints of beer the alcohol content is 60 whereas the peak blood concentration is 120. Above that table there is a graph. That graph purports to show what happens in terms of the concentration of alcohol in the blood if you consume three pints of beer or, alternatively, six half-pints of beer. Starting at a point which is designated nought, we see how the curve rises if three pints of beer are consumed at that point of time. Within a space of time which is not easily discernible on this small graph but must be, I think, three-quartersof-an-hour to an hour, we can see the curve rising to over 100 milligrammes per 100 millilitres and then gradually falling away over a period of just over eight hours, having fallen within four hours to something just above 50 milligrammes per 100 millilitres. There are also various statements in the exhibit, including in particular the following statement: In health, alcohol is removed from the blood at a rate of about 15 mg/100 ml, though there is a good deal of individual variation. Metabolism is accelerated in heavy drinkers unless they have liver damage, when it may fall to less than a quarter of normal. Detectable blood concentrations are present for over eight hours after three pints of beer or three double spirits in normal people There are other statements of a general nature.

[1986] R.T.R. 234 (1985) 149 J.P. 491 [1986] R.T.R. 234 (1985) 149 J.P. 491 [1986] R.T.R. 234 (Cite as: [1986] R.T.R. 234)

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That document was put in before the justices by the defence. As I have said, the prosecution did not apparently object. Faced with that document the justices struggled to do their best. This is what they have to say about it in the case: An extract from the British Medical Journal , dated 21 November 1981, was produced to the court. This stated 1 pint = 30 milligrammes Three other sections from this extract weighed heavily with us. One was the graph of concentrations, one was the phrase though there is a good deal of individual variation and the other was the table of alcohol content and peak blood concentration for beer. The table referred to showed that the peak blood concentration level did not progress linearly. 122mg/100ml was equivalent to three pints of beer, but nothing is stated as to the period of time over which it was drunk. If one subtracts the pint that was drunk at The Hole in the Wall public houseand only one pint was admitted; if the defence had wanted to lie they could haveit would bring the peak blood level concentration when the car was abandoned down to about 80mg/100ml which is so close to the legal limit when taking the individual variation into account. Having stated that view of the situation on the basis of that document they concluded that, *238 on the balance of probabilities, the drink which the defendant had consumed after ceasing to drive was sufficient to take him over the limit, and accordingly they dismissed the charge. In my judgment this case shows vividly the dangers of laymen, in other words those who are not scientifically qualified, dabbling as amateurs in science. This applies to all of us who sit on the bench, whether lawyers, or lay magistrates. It shows the desirability, when faced with scientific matters, of having the assistance of those who are qualified to help us to deal with those matters. If we stand back from this case, what do we see? We see the justices proceeding on the basis of the defendant having drunk one pint of beer at 7.30 p m, having drunk a second pint of beer at about 10 p m, having drunk a third pint of beer at about 11 pm and being, at 11.30 p m, 50 per cent over the permitted limit and then concluding, on the balance of probabilities, that the defendant had proved that the third pint was the crucial pint which had taken him over the limit. Those are the bare facts of the situation, as to which commonsense provides a most valuable check. Furthermore, if we look at the way in which they regarded the document in question, we can see that the document provides no basis for the conclusion which

they drew. There is absolutely no evidence on this document that after four hours had elapsedI speak of course of the time between 7.30 p m when the defendant, on his evidence, drank the first pint of beer and about 11.30 p m when the police officer carried out the check at the police stationthe first pint of beer should count for 30 milligrammes in the calculation which the justices carried out on the basis of the document. Furthermore, the calculation which they made on the basis of the document, on which they concluded that 122mg/100ml is equivalent to three pints of beer, and on which they founded their whole calculation, appears from the document (1) to relate to peak blood concentration and (2) to assume that all three pints of beer are drunk at once. There is no reason to assume that this was a case concerned with peak blood concentration, and the evidence was entirely contrary to the suggestion that the three pints of beer were drunk at once. These factors must, in my judgment, invalidate the conclusions which were drawn by the justices from this document. Indeed, on the face of this document, it appears that there are variations between individuals though these are not specified. It was impossible for the justices to know what those variations are or how they should be taken into account in any particular case. This document, as I have said, provides of itself no basis on which the justices could make any sensible conclusion upon the facts of the case before them. The fact that they found themselves in the difficulties which, in my judgment, they did, demonstrates most clearly the need in such circumstances for guidance by a scientist, somebody who was properly qualified, to assist them in evaluating the evidence before them in relation to the known scientific knowledge. It follows in my judgment that in this case there was no evidence on which the justices could reach the conclusion which they reached. Secondly, I am also satisfied that they misconstrued and misunderstood the document which was before them. That in itself is enough to invalidate their conclusion. But I wish to add this. In cases of this kind I have no doubt that there are circumstances in which, as a matter of commonsense, laymen can reach a perfectly sensible conclusion unaided by scientific evidence. We need only to take the simple case of somebody who satisfies the justices on the evidence that he had drunk only a small amount before driving, and that after ceasing to drive he had drunk a substantial quantity of alcohol. The justices can then conclude, as laymen, reliably and

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confidentlyand I take those words from a judgment to which I am about to referthat the defendant has satisfied them, on the balance of probabilities, that he has consumed alcohol after ceasing to drive and that had he not done so the proportion of alcohol in his breath, or blood, or urine would not have exceeded the prescribed limit. But there must be cases where the justices cannot sensibly draw that conclusion themselves unaided by expert evidence. In those circumstances, in my judgment, they should take advantage of the guidance which was given by Lord Widgery CJ in Pugsley v Hunter [1973] RTR 284 . That case was not concerned with the precise subject-matter of the case with which we are here concerned. It was concerned with the question of laced drinks, and special reasons in relation to *239 disqualification from driving as to the imposition of penalty points. But here we are concerned with a problem of a very similar kind, because in relation to special reasons, as in relation to the defence which arises under section 10(2) of the Road Traffic Act 1972 , the burden is on the accused; in each case the burden of proof which has to be discharged rests on the balance of probabilities, and in each case what has to be proved is that alcohol consumed at a certain time has had a certain effect.

scientific evidence other than medical evidence. In my judgment that passage is equally applicable to the defence which arises under section 10(2) of the Road Traffic Act 1972 as substituted. I would say that the case before us provides the most vivid illustration of the need of guidance of that kind in these cases, to prevent justices struggling with the unequal task of themselves interpreting scientific documents without the aid of those who are qualified to assist them in that interpretation. In those circumstances I turn to the question which was posed for our consideration in this case. It reads as follows: The question of law for the opinion of the court is whether the justices were right in dismissing the charge having regard to the provisions of section 10(2) of the Road Traffic Act 1972 as amended by the Transport Act 1981 , having regard to the evidence given by the defence which did not include any medical or other expert evidence. I, for my part, would answer that question in the negative. They were not right to do so. Furthermore, in my judgment, having regard to the evidence before the justices, there was only one conclusion open to them, and that was to conclude that the defendant had not discharged the burden of proof which rested on him under section 10(2) of the Act of 1972, and that their only course was to convict him of the offence. I would therefore remit the matter to the justices with a direction to convict. MCCULLOUGH J I agree. I think it is a pity that the prosecution did not object, as they should, to this document being put in evidence in these circumstances. Even on the basis of the document in question, the concentration of 122 milligrammes in the blood at 11.24 p m could not have been accounted for by the consumption of only three pintsthe first at 7.30 p m, a second at about 10 p m and a third at about 11 p m. Thus, speaking for myself, I do not see how the justices could have accepted the defence evidence that the defendant had consumed only the three pints which he admitted having drunk. I respectfully draw that comment to their attention when the matter comes before them again for sentence.Appeal

I, for my part, can see no material distinction between the two. In the case of special reasons, the conclusion which Lord Widgery CJ reached in Pugsley v Hunter [1973] RTR 284 is expressed in the following passage at pp290K291B:

I am most reluctant to establish a rule which will be oppressive on defendants by requiring them to call, provide and pay for expert evidence in all cases of this kind, but I am eventually persuaded at the end of the argument that, unless the case really is an obvious one, unless the case is one where a layman can reliably and confidently say that the added liquor must explain the excess of alcohol, the only way in which a defendant can discharge the onus is by calling medical evidence. One will assume and hope that these cases will not be very frequent, but I reach the conclusion at the end of the case that where the facts are not obvious to a layman in the medical sense, it will be necessary for the defendant to call medical evidence in order to discharge the onus of proof which rests on him. I respectfully adopt that passage but with this qualification. I have no doubt that Lord Widgery CJ himself would have had in mind the possibility of

[1986] R.T.R. 234 (1985) 149 J.P. 491 [1986] R.T.R. 234 (1985) 149 J.P. 491 [1986] R.T.R. 234 (Cite as: [1986] R.T.R. 234)

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allowed. Case remitted to the justices with a direction to convict Order for payment of prosecutor's costs out of central funds. Legal aid taxation of defendant's costs END OF DOCUMENT

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