Jordan v Russell
| Jurisdiction | Scotland |
| Judgment Date | 09 March 1995 |
| Docket Number | No 14 |
| Date | 09 March 1995 |
| Court | High Court of Justiciary |
JC
LJ-G Hope, Lords Sutherland, Cullen
Evidence—Sufficiency—Road traffic offence—Driving whilst over legal limit of alcohol in blood—Conflicting analyses or Crown and defence of alcohol content in blood—Maltreatment of defence sample providing possible explanation for reduction in alcohol content in that compared to Crown sample—Whether sheriff entitled to look behind analyses to see how they had been carried out—Whether sheriff bound to have reasonable doubt and acquit—Whether sheriff erred in convicting
The pannel came to trial on a summary complaint with drunk driving in contravention of sec 5(1)(a) of the Road Traffic Act 1988. Two blood samples were produced by the pannel for analysis. The Crown analysis disclosed a blood alcohol content of 87 mgs per 100 mll. The defence sample, which had been analysed 11 days later, revealed the proportions as being 80 mgs of alcohol in 100 mll of blood. Both tests were in effect the same with the only real difference being that the defence system of analysis did not incorporate a 6 per cent error factor. No confirmatory test was carried out in the course of the defence analysis and there were no internals of checks to test quality control, unlike the checks effected in the course of the Crown analysis. Evidence of maltreatment of the defence sample such as by inadequate refrigeration, was led which could explain a reduction in the alcohol content of a sample but not an increase in it. However, there was no evidence that the defence sample had been maltreated. In these circumstances, the sheriff considered that he was entitled to look behind the analyses to see how they had been carried out and preferred the Crown analysis, the defence analysis failing to create a reasonable doubt concerning the guilt of the pannel. The pannel was accordingly convicted and appealed by way of stated case.
Held (1) that the question whether the proportion of alcohol in the pannel's blood was in excess of the prescribed limit was a question for the sheriff to determine upon the consideration of all the evidence; (2) that the sheriff was not bound to accept the result of the defence analysis nor was he bound to attach any weight to it for expert witnesses, however skilled or eminent, could give no more than evidence and could not usurp the function of the judge or jury, which was to form their own independent judgment based on the facts proved in evidence; (3) that the possibility of maltreatment of the pannel's sample, when taken with the absence of a confirmatory test, provided a sound basis for the sheriff's conclusion that he was entitled to reject the pannel's analysis; and (4) that, accordingly, the sheriff had been entitled to conclude that the Crown analysis truly reflected the alcohol content of the pannel's blood; and appeal refused.
Davie v Magistrates of EdinburghSC 1953 SC 34(dictum of Lord President Cooper at p 40) applied.
Timothy Richard Jordan was charged in the sheriffdom of Tayside, Central and Fife at Cupar at the instance of Edward B Russell, procurator fiscal there, on a summary complaint, the libel of which set forth that: On 17 March 1994, on a road or other public place, namely Crail-Peat Inn Road, Higham Toll, North East Fife District, you did drive a motor vehicle, namely motor car registered no F521 XOK after consuming so much alcohol that the proportion of it in your blood was 87 milligrammes of alcohol in 100 millilitres of blood which exceeded the prescribed limit, namely 80 milligrammes of alcohol in 100 millilitres of blood; contrary to sec 5(1)(a) of the Road Traffic Act 1988”.
The cause came to trial before the sheriff (C Smith). After trial, the sheriff found the pannel guilty as libelled.
The pannel thereafter requested of the sheriff that he state a case for the opinion of the High Court of Justiciary.
Case referred to:
Davie v Magistrates of EdinburghSC 1953 SC 34
In his note appended to his findings in fact, the sheriff set forth,inter alia, that: “The accused's argument at first sight was not unattractive, namely that if a reading favourable to the accused was in evidence, and was not seriously challenged, then it must provide a basis for that reasonable doubt which I must award to the appellant. On looking more closely at this however, it seems to me that the two analyses were really in the position of two sets put before me and spoken to in a sense by expert witnesses. As with a jury I should regard experts, not as a substitute for my own deliberations but as aids to them. I was therefore entitled to look behind the analyses to see exactly how they had been carried out. The Dundee system and the Glasgow system of gas chromatography were in effect the same. The only real difference was that the Glasgow system did not incorporate a 6 per cent error factor. When I...
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