Recent Judicial Decisions
| Author | John Wood |
| Published date | 01 April 1988 |
| Date | 01 April 1988 |
| DOI | http://doi.org/10.1177/0032258X8806100212 |
| Subject Matter | Article |
PROFESSOR SIR
JOHN
WOOD, C.B.E., LL.M.
The University
of
Sheffield,
Legal Correspondent
of
the Police Journal
RECENT JUDICIAL DECISIONS
BACKCALCULATING
Gumbley v. Cunningham [1989] 2 WLR 1 House
of
Lords
Gumbley had been drinking in a public house. He left in his car with his
brother. He drove erratically for several miles and then collided with a
wall, at about 11.15 p.m, The police arrivedsome 20 minuteslater. There
was no evidence that the driver had braked. The driver refused to give a
specimen
of
his breath and he was arrested and taken to a police station.
By that time he felt ill and between 11.50 p.m. and 12.20 he vomited and
was taken to a nearby hospital. At 3.35
a.m,
with the consent
of
the doctor
in charge he provided aspecimen of blood. It showed not less than 59
milligrammes
of
alcohol per 100 millilitres.
The crucial figure, as is well known, is 80 milligrammes. But four
hours had passed since Gumbley had had the accident. The prosecution
brought evidence to show what his blood alcohol level would have been
at that time - the process
of
back-counting. This involvedseveralfactors.
The driver's age, weight and build. The likely rate
of
elimination
of
alcohol from the blood stream - estimated here at 10 to 25 milligrammes
per hour, 15 milligrammes being regarded as the most likely figure.
Two
conclusionswere drawn; that the likely level at the time
of
the accidentwas
120-130 milligrammes and that even if an unheard
of
rate
of
elimination
was taken, 6 milligrammes
per
hour, the level would still have been over
the prescribed limit.
The case was tried in the Birmingham Crown Court. An appeal was
heard in the Divisional Court and the certified point
of
importance came
before the House
of
Lords. It was whether under ss.6(1) and 10(2)
ofthe
RoadTraffic Act 1972, as amended, the prosecution can adduceevidence
other than by way of the specimen
of
breath or blood provided by the
accused in order to prove the alcohol level at the material time, that is to
say the time of driving. In plain language, was back-calculating permissible.
Lord Ackner dealt with this important point in a relatively short speech.
The evidence was not challenged. The statutory provisions used to
provide-in
s.1
(1)
ofthe
Road Safety Act 1967 - that the quantity
of
alcohol
had to be
'as
ascertained from a laboratory test'. This provision was
put
under stress by the hip flask defence -evidence by the defence that the
accusedhad drunk since driving, usually from a hip flask, hence the name
given to the defence. This defencewas considered by the House
of
Lords
in the leading case
of
Rowlands v. Hamilton [1971] 1 WLR 647 wherethe
prosecutionhadattempted to defeat the hip flask defenceby estimatingthe
amount
of
alcohol subsequently consumed by the driver and calculating
the likely level at the time he last drove. The
words'
as ascertained from
~':"il1989
146
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