Divisional Court

AuthorBen Fitzpatrick
DOI10.1177/002201830306700303
Publication Date01 June 2003
SubjectDivisional Court
Divisional
Court
Reverse Burden and Article 6(2)
of
the European
Convention on Human Rights: Drunk in Charge
Sheldrake vDPP [2003] EWHC 273, The Times (25
February
2003)
The appellant was convicted in
June
2001 of being in charge of a
motor
vehicle after consuming so
much
alcohol
that
the
proportion
of alcohol
in his
breath
exceeded
the
prescribed limit, contrary to s. 5(1) (b) of
the
Road TrafficAct 1988
('the
1988 Act'). In
July
2001 he was
sentenced
to
a
community
punishment
order
of 160 hours, his licence was
endorsed
with
10 penalty points
and
he
was
ordered
to pay costs of £395. The
justices stated a case for
the
opinion of
the
High Court in September
2001. In March 2002 this
court
suspended
the
operation
of
the
commu-
nity
punishment
order,
pending
the
appeal. The appeal
came
on
for
hearing
in October 2002 before
Latham
U
and
McCombe J,
who
were
unable to agree,
and
directed arehearing before a
three
judge
court.
The justices found
the
following facts ([2003] EWHC 273 at [6]):
i) On 9 February 2001,
the
appellant was found in his vehicle
in
apublic
place.
ii) The appellant was in charge of the vehicle whilst
the
proportion of
alcohol in his
breath
exceeded
the
prescribed limit.
iii) The lower of
the
two specimens of
breath
provided was 144 micro-
grammes of alcohol in 100 millilitres of breath.
iv) Albeit
the
appellant made claim
that
he
had
attempted
to
make
ar-
rangements for transport with a friend,
there
was no corroborative
evidence of this
...
and
on
the
appellant's
own
admission he
had
not
pursued
other
measures available, for example, calling a taxi.
v) Expert evidence revealed that based on an average rate of elimination
of alcohol,
the
appellant would
not
have
been
below
the
prescribed
alcohol limit until approximately
HAO
am on 10 February 2001.
Furthermore,
the
expert witness was of
the
opinion
that
the
appellant's
rate of elimination of alcohol was likely to be less speedy
than
the
average in so far as
the
appellant
had
not
consumed alcohol in
the
six
months
prior to this incident.
vi) The cold
weather
conditions prevailing at
that
time could well
have
increased
the
likelihood of his driving in
the
absence of
an
alternative
mode of transport.
Section 5 of
the
1988 Act provides:
(1)
If
a
person-
(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.
(2)
It
is a defence for a person charged
with
an offence
under
subsection
(1)(b) above to prove
that
at
the
time he is alleged to
have
committed
the
193

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