R v Drummond (Andrew)
| Jurisdiction | England & Wales |
| Judge | Lord Justice Longmore |
| Judgment Date | 07 March 2002 |
| Neutral Citation | [2002] EWCA Crim 527 |
| Docket Number | Case No: 2001 00542 Z1 |
| Court | Court of Appeal (Criminal Division) |
| Date | 07 March 2002 |
[2002] EWCA Crim 527
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURT AT MAIDSTONE
His Honour Judge McKinnon
Royal Courts of Justice
Strand,
London, WC2A 2LL
Lord Justice Longmore
Mr Justice Johnson and
The Recorder of Manchester
(His Honour Judge Sir Rhys Davies QC)
Case No: 2001 00542 Z1
JAMES TURNER Esq QC for the Appellant
PHILIP ST. JOHN-STEVENS for the Respondent
MR JOHN PRINCE
This case raises the question whether the statutory provisions relating to what is known as the "hip flask" defence are compatible with the Human Rights Convention. If a defendant wishes to disprove the statutory assumption that the proportion of alcohol in his breath, blood or urine at the time of the alleged offence was not less than in any specimen provided by him in connection with the alleged offence, it is for him to prove that he consumed alcohol before providing the specimen but after the alleged offence and that, had he not done so, the proportion of alcohol in his breath, blood or urine would not have exceeded the prescribed limit of 35 micrograms of alcohol in 100 millilitres of breath. This appeal concerns section 3A of the Road Traffic Act 1988 dealing with causing death by careless driving while the proportion of alcohol in the body exceeded the prescribed limit but the point equally arises under sections 4 and 5 of the Act which deal with offences of driving while under the influence of drink and with breathalyser offences tried in the magistrates courts.
Section 3A of the Road Traffic Act 1988 provides as follows:—
3A.-(1) If a person causes the death of another person by driving a mechanically propelled vehicle on a road or other public place without due care and attention, or without reasonable consideration for other persons using the road or place, and –
(a) he is, at the time when he is driving, unfit to drive through drink or drugs, or
(b) he has consumed so much alcohol that the proportion of it in his breath, blood or urine at that time exceeds the prescribed limit, or
(c) he is, within 18 hours after that time, required to provide a specimen in pursuance of section 7 of this Act, but without reasonable excuse fails to provide it,
he is guilty of an offence.
(2) For the purposes of this section a person shall be taken to be unfit to drive at any time when his ability to drive properly is impaired.
(3) Subsection (1)(b) and (c) above shall not apply in relation to a person driving a mechanically propelled vehicle other than a motor vehicle.
Sections 4 and 5 of the Act then provide for the offence of driving while unfit through drink or drugs and driving over the legal limit respectively.
Section 15 of the Road Traffic Offenders Act 1988 relevantly provides as follows:—
15.-(1) This section and section 16 of this Act apply in respect of proceedings for an offence under section 3A, 4 or 5 of the Road Traffic Act 1988 (driving offences connected with drink or drugs); ……
(2) Evidence of the proportion of alcohol or any drug in any 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 offence, and
(ii) otherwise, after he had ceased to drive, attempt to drive or be in charge of 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……
On 22nd December 2000 in the Crown Court at Maidstone (before His Honour Judge McKinnon and a jury) the appellant was convicted by a majority verdict (10–2) of causing death by careless driving with excess alcohol (count 2). On 19th January 2001 he was sentenced to 5 years' imprisonment and was disqualified from driving for 5 years. He was acquitted on count 1, an alternative charge of causing death by dangerous driving.
He appeals on the Convention point by leave of the single Judge; leave was not granted for other grounds of appeal but they have been renewed. An application for leave to appeal against sentence was referred to the Full Court by the single judge.
It was alleged by the Crown that on 30th April 1999 the appellant, going north-west and under the influence of alcohol, struck a scooter, on which there was both a driver and a pregnant passenger, on the M20 near Farningham shortly before the junction with the M25. The passenger was killed and the driver was seriously injured. The defence contended that the Crown had not proved that it was the appellant's car which had initially collided with the scooter and, even if it had, had not proved that his driving was careless, let alone dangerous. Moreover, there was some evidence that the appellant suffered from night myopia and there would have been no reason for him to have been aware of this beforehand.
Alan Russ gave evidence that on Friday 30th April 1999 he set off from his home address with his girlfriend, Sharon Long, to attend a scooter rally in Morecambe. They travelled on his dark-green Vespa Piaggio scooter and kept to the slow lane in view of the fact that his girlfriend was 4 months pregnant. Both were wearing black helmets and boiler suits. The luggage was in a holdall strapped on with elasticated straps and the holdall hung over the back rest. Although the scooter had been serviced recently, the rear light was not working. They left Maidstone at about 9.30 pm and travelled along the M20 London-bound carriageway heading towards the Dartford Tunnel. It was fine and dry and, apart from being dark, visibility was otherwise good. The traffic was light and Russ remained in the inside lane keeping to under 50 mph. He could recall nothing else about the evening until he woke up in hospital to be told that his girlfriend and baby were dead. He had sustained a closed head injury resulting in a form of amnesia.
The emergency services arrived at the scene and the two victims, both of whom were unconscious, were taken to hospital. Russ had sustained a broken hip and leg. Sharon Long had received massive internal injuries from which she later died.
At 10.42 pm the appellant made a 999 call to the police identifying himself. He had, he said, fallen asleep at the wheel of his car, a Vauxhall Omega, and thought that he had hit 'somebody' on the M25.
He was arrested at 11.20 pm at his home in Halstead and was questioned about what had happened. He replied 'I have been on business in Paris. I am very tired as I've not been sleeping very well and I think I fell asleep and possibly hit something'. He told the officer that he had had a small bottle of wine with his meal on the train and pointing to a gin bottle said he had had gin on arrival at home. He did not know the precise amount of gin since his wife had poured the drinks. He provided a specimen of breath which proved positive and he was arrested. He was bailed to return to the station with consideration of his being reported for driving with excess alcohol.
He was taken to Tonbridge police station where at 12.02 he provided 2 samples of breath, both of which gave a reading of 76 mgs, more than twice the legal limit.
In interview, about a fortnight later, he told officers that once he had arrived home and saw the state of his car he began shaking. His wife asked him what was wrong and poured him a drink. He downed this in one go and she then gave him another one to calm him down. He told the officers that he had had 2 bottles of wine with his meal, they were quarter bottles, each of which he guessed contained 187 millilitres.
On 5th September 1999 he was informed that he would be reported for causing death by dangerous driving, failure to stop and failure to report an accident.
The Crown announced in Court in May 2000 that they were considering an additional charge under section 3A of the 1988 Act.
Dr McKinnon, a forensic scientist, gave evidence for the Crown that, on the basis of certain assumptions, set out in the appendix to his statement, two gins and two quarter bottles of wine would not have accounted for the breath/alcohol reading of 76 produced by the appellant. There were a number of variables such as the individual's body-weight, the proportion of fat in the body and his blood:breath ratio. A few people had a lower elimination rate and a few, higher, but 18 milligrams per cent per hour was the average rate. In cross-examination he said the average elimination rate used to be thought of as 15 milligrams per cent per hour but recent studies regarded it as 18 and not 15. It was a possibility that a small percentage of people had a very low blood:breath ratio and a low elimination rate. If the appellant's weight was 11 stone rather than the 12 stone upon which Dr McKinnon had based his calculations, it would make the actual breath test reading of 76 more in line with the appellant's account.
The Defence had retained what counsel described as a general expert but did not call him to give evidence.
The...
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