R Christopher Clarke v Ipswich Crown Court
| Jurisdiction | England & Wales |
| Judge | Lord Justice Moses,Mrs Justice Gloster |
| Judgment Date | 24 January 2013 |
| Neutral Citation | [2013] EWHC 1129 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 24 January 2013 |
| Docket Number | CO/6171/2012 |
[2013] EWHC 1129 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Royal Courts of Justice
Strand
London WC2A 2LL
Lord Justice Moses
Mrs Justice Gloster
CO/6171/2012
Mr Simon Clarke (instructed by Tinkler Solicitors) appeared on behalf of the Claimant
Mr Paul Lodato (instructed by the Crown Prosecution Service) appeared on behalf of the Defendant
( )
I shall ask Gloster J to give the first judgment.
This is a claim for judicial review of a decision of the Crown Court at Ipswich (HHJ Holt sitting with two Justices on 12 April 2012) dismissing an appeal against the claimant's conviction by the Ipswich Magistrates' Court, on 14 October 2011, of an offence of driving a motor vehicle with alcohol concentration above the prescribed limit in breach of section 5 of the Road Traffic Act 1988.
Both before the Magistrates' Court and at the appeal in the Crown Court, the claimant sought to prove that he had consumed a substantial amount of alcohol after he had ceased to drive his vehicle and before giving the breath specimen, thereby attempting to displace the statutory assumption contained in section 15(2) of the Road Traffic Offenders Act 1988.
Leave was granted by Irwin J on 6 November 2012, having originally been refused by Ouseley J on 14 August 2012. The stated grounds for challenge of the Crown Court's decision were that the court acted irrationally and unreasonably, and in a manner which no properly directed Tribunal or Circuit Judge could act, in wrongly rejecting the evidence of Professor Denney, a leading expert in the science of alcohol absorption and back-calculations, on the basis that such evidence could be disregarded because of the unreliability of the claimant's evidence.
The claimant's case is that, regardless of any account given by the claimant as to his alcohol consumption on the evening in question, Professor Denney's scientific evidence conclusively established that at the relevant time when the CCTV camera showed the claimant leaving his car at 1.41 in the morning of Sunday 5, the claimant's breath alcohol content was not over the limit. In essence, therefore, the claimant is challenging the decision of the Crown Court refusing his appeal against conviction, on the basis that it should have reached a different conclusion as to what the evidence established, and particularly what the evidence of Professor Denney established.
Before I address the important question: whether in the circumstances of this case judicial review is the appropriate way to challenge the Crown Court's dismissal of the claimant's appeal against conviction, it is necessary briefly to set out the relevant facts. I do so making the comment that there is obviously no stated case before this court.
On Saturday, 4 December 2010, the claimant went out for the evening with a friend, a Mr Lee Stevens, to meet friends at a work function in Ipswich Town Centre. Both men went in the claimant's silver Honda Accord, which, according to the evidence, the claimant parked in town. At 1.44am on Sunday, 5 December, PC Horne discovered the claimant's car parked and partially obstructing the carriageway of Civic Drive, Ipswich. The vehicle was locked and the alarm correctly set. PC Horne determined that the vehicle was abandoned, apparently as it had broken down as a result of a failed clutch. CCTV showed that the claimant had left his vehicle a few minutes early at 1.41 hours at the latest.
The police made efforts to trace the owner or driver of the vehicle, which they managed to do, and at 2.19am PC Horne and another officer arrived at the claimant's home. The door was answered by the claimant eating toast. The claimant confirmed the vehicle was his and that it was in town. The evidence showed that PC Horne formed the view that the claimant was under the influence of alcohol, a fact which was not contested.
The officers asked to enter the claimant's home. They were allowed to do so. PC Horne asked for the car keys and said that he saw the claimant attempt to remove keys from his pocket and slide them down the back of the chair in which Mr Stevens was sitting. The keys were, however, retrieved by the officer. Later the claimant's premises were searched and no vodka bottle was found: a relevant factual point.
At 2.32am PC Horne administered a Preliminary Screening Breath Test using a Drager Device. This device provided a breath alcohol reading of 64ug of alcohol to 100ml of breath. The claimant was arrested and taken to Ipswich Police Station where further tests were conducted. These provided readings of 88ug to 100ml at 3:09am and 90ug to 100ml at 3.13am. When interviewed the following day the claimant provided, as was accepted, a dishonest account of his movements on the evening of 4/5 December, in effect saying that he had not driven that evening after he parked his car before the works party in town; he also said on that occasion that once he got home he had had vodka shots and beer.
At the trial before the Ipswich Justices, the claimant called his expert witness, Professor Ronald Denney. Professor Denney provided a back-calculation which suggested that the claimant, in Professor Denney's view, could not have been over the breath/alcohol limit at the last time he was driving the vehicle at about 1. 30 or 1.40am. Before the Magistrates' Court the claimant did not give evidence, his case being that based on Professor Denney's evidence, as a matter of scientific fact, the claimant could not have been intoxicated at the time of driving. The Justices convicted the claimant and he appealed to the Crown Court.
As a preliminary point the court were asked to determine the question as to whether Professor Denney would need to hear the claimant's account before he was able to give his opinion, or rather whether his approach was purely scientific, such that Professor Denney did not require to hear the claimant's account of his consumption. Having heard from Professor Denney, the court ruled that both the court and Professor Denney should hear the claimant's account prior to Professor Denney giving his evidence on the basis that the court was:
"…quite clear that Professor Denney is not able to back-calculate on the science alone to give the court a determinative reading. He, like the court, would need to hear from the defendant…"
before giving his opinion in evidence.
The claimant, in his evidence before the Crown Court, said that he had consumed two bottles of beer between 10pm and prior to returning to his vehicle with Mr Stevens at about 1.30am. His car had broken down and he had abandoned it in Civic Drive. He and Mr Stevens began to walk home, but then caught a taxi. Once home he and Mr Stevens began to drink heavily. He consumed a large quantity of vodka mixed with wine, swigging the mixture straight from the bottle. (I comment that this was contrary to the evidence that he had previously given in interview, namely that he had been consuming vodka shots when he got home.)
The claimant went on to say that he acted as he had when first seen by PC Horne at home because by then he was very drunk, and that he had lied in interview because he believed he was intoxicated at the time of driving his vehicle. Mr Stevens gave evidence which corroborated that of the claimant. The claimant also called his partner to give evidence; she told the court that she had known the claimant to mix her wine with vodka and drink the mixture as described by the claimant. She believed that she had taken the empty bottles, including an empty vodka bottle, to the recycling depot some four days, or so, prior to the incident, which was why there was no vodka bottle on the premises.
Professor Denney gave evidence. He produced two reports, as well as a graph showing the back-calculation. Contrary to the summary given by the claimant in his Statement of Facts, served for the purposes of his application for judicial review, it was clear from Professor Denney's evidence, in both cross-examination and re-examination, that he was not able to provide a...
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