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Drunk driving: Standards of proof in criminal law

(a) Burden and Standard of Proof

Lesley was reported to the police for erratic driving. Breathalyser tests administered at her home and the police station shortly afterwards disclosed excess alcohol in her breath. Lesley was charged with driving a vehicle after consuming so much alcohol that the proportion of it in her breath exceeded the prescribed limit contrary to section 5(1)(a) of the Road Traffic Act 1988.

According to section 15(2) of the Road Traffic Offenders Act 1988, the prosecution can rely on the results of the breathalyser tests as these are taken to be ‘no less’ than the level of alcohol in Lesley’s breath at the time of the offence .[1]

Lesley wishes to rely upon section 15(3) which provides that the presumption in section 15(2) is not established if the defendant consumed alcohol after ceasing to drive and before providing a specimen of breath.[2] Lesley drank two glasses of wine at lunchtime prior to driving and consumed a further quantity of wine after returning home prior to being breathalysed. Therefore, if she had been breathalysed at the time of driving, she would not have been over the prescribed limit.[3]

Section 15(2) creates a presumption if favour of the results of the breathalyser test therefore the burden of proof shifts to the defendant to rebut this presumption.[4] Therefore, the burden of proof rests on Lesley and she must establish the elements of section 15(3); namely, that the latter consumption of alcohol influenced the breathalyser reading rendering it an inaccurate reflection of her alcohol consumption at the time of driving. The standard of proof required on a reversed onus is that balance of probabilities thus Lesley must prove that it was ‘more likely than not’ that the presumption in section 15(2) can be displaced.[5] This means that Lesley does not have to establish that less than the prescribed amount of alcohol was in her breath at the time of driving; what is required is that she establish that the readings were influenced by further consumption of alcohol after driving had ceased.[6]

(b) Compatibility with Presumption of Innocence

Section 15(2) creates a presumption that the level of alcohol in the defendant’s breath at the time of testing is no less than the level at the time of driving. This presumption is rebuttable with evidence to the contrary thus creating a reverse onus and placing a ‘burden on the defendant to prove some matter the effect of which is that he is not guilty of the offence charged’.[7]

This requirement effectively presumes the defendant’s guilt unless it can be disproved. This seems inconsistent with the presumption of innocence that is an axiomatic feature of the criminal justice system which provides that a person is presumed innocent unless their guilt is proven beyond all reasonable doubt.[8]

This raises particular problems since the enactment of the Human Rights Act 1998 which incorporates the rights contained in the European Convention on Human Rights into the law of England and Wales. Article 6(2) of the Convention protects the presumption of innocence within the right to a fair trial thus it appears that the reversal of the burden of proof interferes with this right. However, the European Court of Human Rights has held that Article 6(2) is not an absolute rule and that the presumption of innocence can be qualified.[9] This means that a reverse onus can be imposed if two criteria are satisfied: firstly, that it is in pursuance of a legitimate aim and, secondly, that it is a proportionate (no more than necessary)[10] means of achieving that aim.[11] As the application of the reversed onus arises in relation to a diverse range of offences, the courts have steadfastly refused to formulate a single rule for determining whether a reversed burden satisfies these criteria,[12] preferring to determine the compatibility of each offence as it becomes necessary to do so.[13]

The compatibility of section 15(2) with the presumption of innocence was addressed in Parker.[14] Here, it was held that the reversed onus was justified as the aim of section 5 of the Road Traffic Act 1988 was to encourage those who had consumed excess levels of alcohol to refrain from driving. Section 15(2) bases liability on the level of intoxication established after the defendant ceased to drive but this did not create unavoidable liability, merely a presumption which the defendant was at liberty, under section 15(3), to rebut.

Support for this approach came from the House of Lords in Sheldrake which concerned the reverse onus in section 5(2)[15] which provides a defence to being drunk in charge of a vehicle[16] if the defendant can establish there was no likelihood of him driving. Lord Bingham addressed the issue of compatibility of the reverse onus with Article 6(2) in relation to drink-driving offences, stating that the risk of death, injury and damage to property posed by driving following excessive consumption of alcohol justifies limitations placed upon the presumption of innocence. He went on to say that provided the defendant had a full opportunity to rebut the presumption (as provided by both section 5(2) and section 15(2)) then this limitation did not go beyond that which was necessary to uphold this legitimate aim so was not a disproportionate interference with the right to a fair trial.

(c) Admissibility of Expert Evidence

Lesley wishes to rely on evidence of Professor Truman to support her assertion that the level of alcohol in her breath at the time she was driving would not have exceeded the prescribed level.

Such expert evidence is admissible if the court accepts that the expert is able to provide information based upon scientific investigations, the interpretation of which is beyond the ordinary person. It was held in Turner that expert evidence should be called if the matter at hand is beyond the knowledge and experience of the court.[17] The issue of quantifying the precise level of alcohol in Lesley’s system some time prior to the breathalyser reading, complicated by the two-stage ingestion process, renders this situation suited to the introduction of expert evidence.

Lesley is charged with a summary offence so the relevant rules of admissibility of expert evidence are those relating to magistrates’ courts. The Magistrates Court (Advance Notice of Expert Evidence) Rules 1997 provide that the prosecution must be provided with a statement outlining Professor Truman’s findings and, as his evidence will be based on the results of his analysis, they must be given, upon request, an opportunity to examine the findings. It is accepted that experts may wish to make reference to the work of other eminent commentators in the field hence the rules relating to the admissibility of hearsay evidence are relaxed in order to facilitate reliance on the work of others.[18]

These rules on the general admissibility of expert evidence have to be taken in conjunction with specific rules relating to the measurement and impact of alcohol in drink driving cases. In Pugsley v. Hunter, it was held that if there is a dispute about the impact of an additional amount of alcohol and whether it would have rendered the defendant above the prescribed level to drive, this must be established as a matter of expert evidence.[19] As this case involves the question of whether the two glasses of wine taken with lunch several hours prior to driving would have taken Lesley beyond the prescribed limit if she had not then consumed half a bottle of wine after the incident occurred then this is clearly a situation in which expertise such as that of Professor Truman will be essential to the determination of the central issue in the case.

(d) Disclosure by the Defence

Sections 6C and 6D of the Criminal Procedure and Investigations Act 1996 requires that the defence must disclose to the prosecution the names and addresses of any expert witnesses that they have consulted but do not intend to call. During the enactment of these provisions, it was intended that these sections should require disclosure by the prosecution of unused expert reports but this was rejected on the basis that it would discourage defence teams from seeking expert evidence if it could be used against them if it was found to be unfavourable; they could effectively be gathering evidence that would damage their own case. On the basis of sections 6C and 6D, the defence solicitors must disclose Professor Ahmed’s name and address to the prosecution but need not provide a copy of his report. As the report itself will have been provided in confidence by Professor Ahmed, it is not open to the prosecution to compel the expert to provide a copy of the report as it is covered by professional privilege. Therefore, disclosure of Professor Ahmed’s name and address will not strengthen the prosecution case against Lesley. It will, however, enable the prosecution to attempt to rebut the evidence given by Professor Sir Roy Truman, which is being relied upon by the defence, by establishing that it is the view of only one expert when others were consulted.[20]

Word Count: 1500 words

Case List

Brown v. Stott [2003] 1 AC 681

Dawson v. Lunn [1986] RTR 234

Parker v. DPP [2001] RTR 240

Pugsley v. Hunter [1973] RTR 284

R v. Hunt [1987] AC 352

R v. Johnstone [2003] 1 WLR 1736

R v. Lambert [2002] 2 AC 545

R v. Turner [1975] QB 834

Salabiaku v. France (1988) 13 EHHR 379

Sheldrake v. DPP [2004] UKHL 43

Ward v. DPP [1990] RTR 201

Woolmington v. DPP [1935] AC 462

Bibliography

Allen, C., (2004) A Practical Guide to Evidence, London: Cavendish

Ashworth, A. and Pattenden, P., ‘Reliability, Hearsay Evidence and the English Criminal Trial’ [1986] Law Quarterly Review 102

Ashworth, A. and Redmayne, M., (2005) The Criminal Process, 3rd ed., Oxford: Oxford University Press

Dennis, I., ‘Reverse Onuses and the Presumption of Innocence: in Search of Principle’ [2005] Criminal Law Review 901

Keane, A., (2005) The Modern Law of Evidence, 6th ed., Oxford: Oxford University Press

Mahendra, B., ‘Expert Witness Evidence: a Case Law Update’ [2005] New Law Journal 155(7201) 1762

Redmayne, M., ‘Disclosure and its Discontents’ [2004] Criminal Law Review 441

Roberts, P. and Zuckerman, A., (2004) Principles of Criminal Evidence, Oxford: Oxford University Press

Tadros, V. and Tierney, S., ‘The Presumption of Innocence and the Human Rights Act’ [2004] Modern Law Review 402

1


Footnotes

[1] Ward v. DPP [1990] RTR 201

[2] Road Traffic Offenders Act 1988, section 15(3)(a)

[3] Road Traffic Offenders Act 1988, section 15(3)(b)

[4] Parker v. DPP [2001] RTR 240

[5] R v. Lambert [2002] 2 AC 545

[6] Dawson v. Lunn [1986] RTR 234

[7] Dennis, I., ‘Reverse Onuses and the Presumption of Innocence: in Search of Principle’ [2005] Criminal Law Review 901

[8] Woolmington v. DPP [1935] AC 462

[9] Salabiaku v. France (1988) 13 EHHR 379

[10] R v. Johnstone [2003] 1 WLR 1736

[11] Brown v. Stott [2003] 1 AC 681

[12] R v. Hunt [1987] AC 352; Sheldrake v. DPP [2004] UKHL 43

[13] R v. Lambert [2002] 2 AC 545; Sheldrake v. DPP [2004] UKHL 43

[14] Parker v. DPP [2001] RTR 240

[15] Road Traffic Act 1988, section 5(2)

[16] Road Traffic Act 1988, section 5(1)(b)

[17] R v. Turner [1975] QB 834

[18] Criminal Justice Act 2003, section 127

[19] Pugsley v. Hunter [1973] RTR 284

[20] Redmayne, M., ‘Disclosure and its Discontents’ [2004] Criminal Law Review 441, 453-4


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