- This is an appeal
by way of case stated from the Crown Court at Bristol which dismissed an appeal
by Lee Christopher Parker from his conviction by the magistrates of an offence
under section 5 of the Road Traffic Act 1988. The point raised is of importance.
The section provides for it being an offence to drive a motor vehicle after
consumption of so much alcohol that the proportion of alcohol in the breath,
blood or urine exceeded the prescribed limit. The statute also deals with
the way in which the prosecution may prove that offence including the taking
of samples at the police station, to the detailed provisions of which I will
return. The statute then provides, subject to an exception, that it will be
assumed that the quantity of alcohol at the time of driving is no less than
that in the sample taken at the police station. Two Court of Appeal authorities
have held that that assumption was irrebuttable and that the motorist was
thus not entitled to call evidence to establish that in fact when he or she
was driving the quantity of alcohol in breath, blood or urine was less than
the prescribed limit. It is argued on behalf of the motorist in this case
that in the light of the Convention on Human Rights and the Human Rights Act
1998, that the legislation should be construed as no longer providing for
an irrebuttable presumption.
- It is right to emphasise
that the Human Rights Act 1998, which established the Convention as part of
English law, was not in force at the time of the Crown Court decision or thus
obviously at the time of the decision before the magistrates. There can be
no question thus that at that time those courts were bound by the Court of
Appeal authorities interpreting the relevant legislation as providing for
an irrebuttable presumption.
- We, it should be
said, expressed some disquiet as to the position which was contended for by
both counsel. Mr Ford QC and Mr Garlick QC both submitted that the effect
of the Human Rights Act 1998, in particular section 22(4) and section 7(1)(b),
was that even though a decision may have been correct when reached prior to
the coming into force of the Act, an appeal taking place after the coming
into force of the Act must hold those decisions to be wrong, if the decisions
would have been wrong if taken after the coming into force of the Act. I have
to say that for my part I would have wanted persuasion that that was necessarily
the correct interpretation to place on the relevant sections of the Human
Rights Act, where what is being argued is that legislation should now be construed
differently following the coming into force of s 3 of the Human Rights Act
1998. Since however, as Mr Ford put it, the point in this case is bound to
arise in relation to decisions taken after the coming into force of the Act,
and since resolution of the point as soon as possible will assist, no further
time was spent debating this aspect.
- The point is of such
relevance to appeals now taking place I hope I shall be forgiven for setting
out shortly my anxieties. Looking at the wording of the Act I would suggest
that the position is very far from clear in a case such as the present. The
relevant provisions are as follows:-
s6. Acts of public authorities
is unlawful for a public authority to act in a way which is incompatible with
a Convention right.
(1) does not apply to an act if -
as the result of one or more provisions of primary legislation, the authority
could not have acted differently; or
in the case of one or more provisions of, or made under, primary legislation
which cannot be read or given effect in a way which is compatible with the
Convention rights, the authority was acting so as to give effect to or enforce
this section ‘public authority’ includes -
a court or tribunal, and
any person certain of whose functions are functions of a public nature, but
does not include either House of Parliament or a person exercising functions
in connection with proceedings in Parliament.
person who claims that a public authority has acted (or proposes to act) in
a way which is made unlawfull by section 6(1) may -
bring proceedings against the authority under this Act in the appropriate
court or tribunal, or
rely on the Convention right or rights concerned in any legal proceedings,
if he is (or would be) a victim of the unlawful act.
subsection (1)(b) ‘legal proceedings’ includes -
proceedings brought by or at the instigation of a public authority; and
an appeal against the decision of a court or tribunal.
s22. Short title, commencement,
application and extent
18, 20 and 21(5) and this section come into force on the passing of this Act.
other provisions of this Act come into force on such day as the Secretary
of State may by order appoint; and different days may be appointed for different
(b) of subsection (1) of section 7 applies to proceedings brought by or at
the instigation of a public authority whenever the act in question took place;
but otherwise that subsection does not apply to an act taking place before
the coming into force of that section.
- Section 22(4) applies
to s 7(1)(b) proceedings brought by a public authority (in this case the D.P.P.)
"whenever the act in question took place". Section 7(1)(b) allows
reliance on Convention rights ie acts made unlawful by s 6 in legal proceedings
- What is the act that
has taken place and which is said to be unlawful? It is not any act of the
D.P.P. as a public authority. It is the act of the court as a public authority
in refusing to admit evidence or acting on the irrebuttable assumption provided
for by the legislation. But, under the provisions of the primary legislation,
which at that time could not be interpreted with the aid of s 3, the court
was bound so to act and it was thus not acting unlawfully (see s 6(2)(a)).
What the appeal is about is that act of the court, and at present I do not
see why the appeal court is acting in a way which is incompatible with a Convention
right by holding that the original court, when it took the decision, was not
- If I understand the
speech of Lord Hobhouse of Woodborough in R v D.P.P., Ex p. Kebilene
 3 WLR 972 at 1008, he would have supported the above view. I accept
that Lord Steyn at p. 982D with whom Lord Slynn and Lord Cooke agreed, would
appear to favour a different view. But it seems to me that the point did not
directly arise for decision in that case. I also accept that Lord Woolf, with
some reluctance, might be said to have followed Lord Steyn’s view in R
v Lambert, Ali and Gordon Court of Appeal transcript 11 July 2000
paragraph 28. But it does not appear that it could be said in that case the
primary legislation compelled the court at first instance to act as it did.
- In any event I am
not clear that the point that would have arisen in this case has ever arisen
directly for decision and I would simply put down a marker as to whether the
concession in this case was rightly made and as to whether the position is
as clear as in some places it is being assumed. (See for example The Law of
Human Rights by Clayton and Tomlinson paragraph 3.75A).
- I must now however
approach the matter on the basis the concession was properly made.
The relevant legislation
- Let me set out first
the relevant sections of the legislation.
Road Traffic Act 1988
5 Driving or
being in charge of a motor vehicle with alcohol concentration above prescribed
(1) If a person -
(a) drives or attempts
to drive a motor vehicle on a road or other public place, or
(b) is in charge of
a motor vehicle on a road or other public place,
after consuming so much
alcohol that the proportion of it in his breath, blood or urine exceeds the
prescribed limit he is guilty of an offence.
6 Breath tests
(1) Where a constable
in uniform has reasonable cause to suspect -
(a) that a person
driving or attempting to drive or in charge of a motor vehicle on a road or
other public place has alcohol in his body or has committed a traffic offence
whilst the vehicle was in motion, or
(b) that a person
has been driving or attempting to drive or been in charge of a motor vehicle
on a road or other public place with alcohol in his body and that that
person still has alcohol in his body, or
(c) that a person
has been driving or attempting to drive or been in charge of a motor vehicle
on a road or other public place and has committed a traffic offence whilst
the vehicle was in motion,
he may, subject to section
9 of this Act, require him to provide a specimen of breath for a breath test.
7 Provision of specimens
(1) In the course of an
investigation into whether a person has committed an offence under [section
3A, 4] or 5 of this Act a constable may, subject to the following provisions
of this section and section 9 of this Act, require him -
(a) to provide two
specimens of breath for analysis by means of a device of a type approved
by the Secretary of State, or
(b) to provide a specimen
of blood or urine for a laboratory test.
8 Choice of specimens
(1) Subject to subsection
(2) below, of any two specimens of breath provided by any person in pursuance
of section 7 of this Act that with the lower proportion of alcohol in the
breath shall be used and the other shall be disregarded.
(2) If the specimen with
the lower proportion of alcohol contains no more than 50 microgrammes of alcohol
in 100 millilitres of breath, the person who provided it may claim that it
should be replaced by such specimen as may be required under section 7(4)
of this Act and, if he then provides such a specimen, neither specimen of
breath shall be used.
Road Traffic Offenders
s 15 Use of specimens
in proceedings for an offence under section 4 or 5 of the Road Traffic Act
(1) This section and section
16 of this Act apply in respect of proceedings for an offence under [sections
3A, 4 or 5 of the Road Traffic Act 1988 (driving offences connected with drink
or drugs)]; and expressions used in this section and section 16 of this Act
have the same meaning as in [sections 3A to 10] of that Act.
(2) 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 [(including cases where the specimen was not
provided in connection with the alleged offence)], be taken into account and,
subject to subsection (3) below, 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.
[(3) That assumption shall
not be made if the accused proves -
(a) that he consumed
alcohol before he provided the specimen and -
(i) in relation
to an offence under section 3A, after the time of the alleged
after he had ceased to drive, attempt to drive or be in charge of
a vehicle on a road or other public place, 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 it is alleged that he was
unfit to drive through drink, would not have been such as to impair his ability
to drive properly.]
- The notes in Halsbury’s
Statutes also accurately reflect decisions under the relevant legislation
prior to the coming into force of the Human Rights Act. Thus
"Evidence of the
proportion of alcohol ...shall ... be taken into account
a person is charged under the Road Traffic Act 1988 s 5 ante, and the specimen
provided by the person after a lapse of time shows an alcohol level below
the prescribed limit, the prosecution may adduce evidence to show, by means
of "back-calculation", ie by calculation of the amount of alcohol
eliminated in the period between driving and providing the specimen, that
the proportion of alcohol in the person’s breath, blood or urine was above
the prescribed limit when he was driving. However, the prosecution should
not seek to rely on evidence of back-calculation unless it is both easily
understood and clearly establishes the presence of excess alcohol at the time
when the defendant was driving (Gumbley v Cunningham  AC 281)".
Thereafter the notes continue
that in relation to the phrase "It shall be assumed that the proportion
of alcohol ... at the time of the alleged offence was not less than in the
specimen. This assumption is not rebuttable (Millard v DPP 
Crim LR 601), and back-calculation of the kind mentioned in the note "Evidence
of the proportion of alcohol ... shall ... be taken into account" above
is not available to the accused (Beauchamp-Thompson v DPP  Crim
- I should perhaps
add out of completeness that Beauchamp-Thompson v DPP was cited in
the House of Lords in Gumbley v Cunningham albeit it was not referred
to in the judgments.
Facts of this case
- The Appellant was
stopped by police at 23.48 hours on 12 February 1999 whilst driving his motor
vehicle on Winterstoke Road, Weston-Super-Mare. He was arrested following
a positive roadside breath test. [This test would be pursuant to s 6 above].
The subsequent breath analysis produced by the Lion intoximeter [taken pursuant
to s 7] showed the specimen with the lower proportion of alcohol to be in
excess of the prescribed limit but to contain less than 50 micrograms of alcohol
in 100 millilitres of breath. The Appellant consequently exercised his statutory
right [under s 8(2)] to provide a specimen of blood which was taken by a medical
practitioner at 00.55 hours. A subsequent analysis showed the specimen to
contain not less than 81 milligrams of alcohol in 100 millilitres of blood.
- The Appellant instructed
Dr Tabernor, a Senior Lecturer in Pharmacology at the University of Bristol.
The doctor concluded that the Appellant’s blood alcohol analysis was consistent
with his stated consumption of alcohol, namely two pints of lager. The report
further concluded that the Appellant’s blood alcohol level at the time of
driving the vehicle more than an hour earlier was unlikely to have exceeded
the statutory limit.
- Mr Garlick accepted
that if the court was concerned simply to construe the language of s 15 the
assumption would be irrebuttable. He made that concession not simply because
two previous Court of Appeal decisions so held but because he accepted that
the contrast between s 15(2) and s 15(3) and the words "not less than"
drove one irresistibly to that conclusion. However, he relied on s 3 of the
Human Rights Act 1998 which provides as follows:-
(1) "So far as
it is possible to do so, primary legislation and subordinate legislation must
be read and given effect in a way which is compatible with the Convention
(2) This section
(a) applies to
primary legislation and subordinate legislation whenever enacted;
(b) does not affect
the validity, continuing operation or enforcement of any incompatible
primary legislation; and
(c) does not affect
the validity, continuing operation or enforcement of any incompatible
subordinate legislation if (disregarding any possibility of revocation)
primary legislation prevents removal of the incompatibility".
- Mr Garlick’s submission
is that the Convention rights which have been infringed in this instance are
under Article 6 or more particularly Article 6(2). Article 6(1) provides:-
the determination of his civil rights and obligations or of any criminal charge
against him, everyone is entitled to a fair and public hearing within a reasonable
time by an independent and impartial tribunal established by law. Judgment
shall be pronounced publicly but the press and public may be excluded from
all or part of the trial in the interest of morals, public order or national
security in a democratic society, where the interests of juveniles or the
protection of the private life of the parties so require, or to the extent
strictly necessary in the opinion of the court in special circumstances where
publicity would prejudice the interests of justice".
Article 6(2) provides:-
charged with a criminal offence shall be presumed innocent until proved guilty
according to law".
- Mr Garlick then took
us to Salabiaku v France 13 EHRR 379. Mr Garlick submitted that the
principles which that case established were correctly reflected in the headnote
with which Mr Ford did not disagree.
"1. Criminal Proceedings:
presumption of innocence, strict liability.
(a) The Contracting
States are free in principle to establish a criminal offence on the basis
of an objective fact as such, irrespective of whether it resulted from
criminal intent or negligence. The applicant, however, was not convicted
for the mere possession of unlawfully imported prohibited goods, but for
smuggling such goods. A legal presumption of accountability was inferred
from their possession leading to a finding of guilt.
(b) The distinction
between a presumption of accountability and a presumption of guilt is
of a relative nature. Presumptions of fact or of law exist in many legal
systems and are not contrary to the Convention in principle. However,
the Contracting States are under an obligation to remain within reasonable
limits which take into account the importance of what is at stake and
which respect the rights of the defence. Article 6(2) does not merely
lay down a guarantee to be respected by the courts in the conduct of legal
proceedings and the words ‘according to the law are not to be construed
exclusively with reference to domestic law.
(c) The prosecution
had proved that the applicant had been in possession of the disputed goods.
The law, however, allowed the applicant to prove force majeure
and obtain his acquittal or to plead extenuating circumstances. French
courts enjoyed a genuine power of assessment in that field.
(d) Article 392(1)
of the Customs Code was applied in the applicant’s case in a manner
compatible with the presumption of innocence. The trial courts appeared
to have identified in the circumstances of the case an element of intent,
even though they were under no legal obligation to do so in order to convict".
- The important points
established by that case are that
(1) "according to
the law" is not to be construed exclusively with reference to domestic
law; the right to be presumed innocent is an entitlement enshrined as a fundamental
principle of the rule of law.
(2) Presumptions of fact
are not contrary to the Convention in principle but Contracting States must
remain within reasonable limits depending on the importance of what is at
(3) The court in France
had, so far as Salabiaku was concerned, applied his case in a manner
compatible with the presumption of innocence in that they did not automatically
rely on the presumption; this is a point much relied on by Mr Garlick.
- It is Mr Garlick’s
submission that it was unfair to prevent a defendant calling evidence to establish
the fact that, whilst he was driving or in charge of a motor vehicle, the
proportion of alcohol in his blood was lower than the prescribed limit. It
might lead to a conviction when in fact the accused was not guilty of the
offence. It was unfair in that the prosecution had the right to calculate
back in order to demonstrate guilt and there was not equality of arms unless
the defendant had the same right. Furthermore, the distinction drawn between
the motorist who had consumed alcohol after driving and thus brought himself
within s 15(3) placed the motorist who had merely consumed alcohol before
driving in an unfair position.
- Mr Garlick accordingly
submitted that since an infringement of human rights was involved ie an infringement
of the right to be presumed innocent until proved guilty, the court should
strive to construe s 15 in accordance with s 3 of the Human Rights Act 1998
as not containing an irrebuttable assumption. He submitted that with the assistance
of s 3 words should be read into s 15(2) to the effect that it shall be assumed
"unless proved to the contrary".
- Mr Garlick also submitted
that the point was important so far as sentence was concerned. He submitted
that it could make the difference as to whether a motorist would receive a
custodial sentence or not as to the quantity of alcohol in the blood at the
time that the motorist was driving. He submitted that the assumption meant
that the motorist could not call evidence to demonstrate that albeit a very
large quantity of alcohol had been consumed just prior to driving, the intention
of the motorist was to drive only a very short distance and before that alcohol
had any effect, and thus the penalty should be less.
- Mr Ford submitted
that only if one concluded that the irrebuttable assumption did infringe Article
6(2) would the court consider reading in the words as suggested by Mr Garlick.
Mr Ford submitted that the irrebuttable assumption did not infringe the presumption
of innocence when one took into account the nature of the offence and the
importance of what was at stake even having regard to the rights of a defendant
(see Salabiaku v France supra). He pointed out that when a driver consumed
alcohol post driving that did not represent a danger to the public, whereas
consuming alcohol before the driving has been commenced in such quantities
that albeit it may be at a level very close to the limit when the driver is
stopped is very much in excess of that limit by the time tests take place,
is something the law is entitled to protect the public against. He furthermore
submitted that there was no inequality of arms in that the whole object of
the legislation was to prevent drivers consuming alcohol in any great quantity
before driving and both the back-calculation by the prosecution and the irrebuttable
assumption achieved those objectives.
- The following seem
to me to be important points. The offence is concerned with preventing consumption
of quantities of alcohol which impair the ability of a driver to drive and
applies to "drivers" "persons attempting to drive" and
those "in charge of a motor vehicle". The practical position will
be that a driver has failed a breath test under s 6 of the Road Traffic Act
1988. That is some indication that the proportion of alcohol in the driver’s
blood at that stage exceeds the permitted limit. The legislation then provides
for testing at a police station which must take place some time after the
initial breath test. The fact that there is a delay in testing would, if a
driver has failed the breath test, normally be in favour of the driver if
the alcohol consumed prior to driving is already fully in the blood at the
time of the original breath test. By the time testing takes place at a police
station the limit may well not be contravened. If however the driver has consumed
alcohol immediately prior to driving and failed the breath test, the amount
of alcohol which will be found to be in his blood when tests are carried out
at a police station will be likely to exceed those present when he was actually
driving and before he was breath tested. It seems to lie ill in the motorist’s
mouth to say that he/she had consumed great quantities of alcohol immediately
prior to climbing into the driving seat of a motor car or before placing himself
in charge of a motor vehicle which would thus not have shown up on a breath
test carried out when the police originally stopped him/her but which then
do show up on a breath test carried out at a police station some little time
after the first test. The legislation is after all aimed at preventing consumption
of such quantities before a driver drives or takes charge of a motor vehicle.
- It seems to me that
since it is consumption before driving or being in charge of a motor vehicle
at which the offence is aimed, it is simply not to rebut the presumption of
innocence to assume that the quantity of alcohol shown up on the breath test
or the blood specimen carried out at the police station is the quantity which
the motorist has in his blood at the time that he would be driving or would
be in charge of a motor vehicle. Even if that were taking it too far, having
regard to the importance of what is at stake, the assumption is a reasonable
one and well within limits.
- There may be circumstances
in which the test at the police station shows a very high proportion of alcohol
in the blood or in the breath or in the urine where the motorist would wish
to mitigate the sentence by some form of explanation. That explanation might
be along the lines that the motorist was simply moving the motor vehicle under
some form of compulsion having drunk a large quantity of alcohol which the
motorist believed would not get into his blood in any quantity over the very
short period required to move the vehicle. As it would seem to me, there would
be no reason as Mr Ford submitted why those circumstances could not be brought
to the attention of the court as mitigating features or special circumstances
when the court came to consider the penalty. The assumption so far as the
offence was concerned would still have to be that the amount of alcohol in
the blood, breath or urine was as shown by the sample taken at the police
station but the circumstances if established might provide grounds of mitigation
in relation to the penalty.
- In any event the
position as it seems to me is as follows. The language of the section, as
conceded by Mr Garlick, provides for an irrebuttable assumption. In my view
there is no infringement of Convention rights by providing for such an irrebuttable
assumption in the context of this legislation as a whole. In those circumstances
s 15 can be read in accordance with its natural meaning compatibly with Convention
rights. In following the previous Court of Appeal authorities the magistrates
and the Crown Court were not only correct in this case but will be correct
hereafter. I would dismiss this appeal.
- I agree.