Assumptions – Breath samples – Driving while over the limit – Newton hearings

Thomas Goldsmith v Director of Public Prosecutions: DC (Lord Justice Sullivan, Mr Justice Openshaw): 4 November 2009

The appellant (G) appealed by way of case stated against the district judge’s refusal to hold a Newton hearing to establish the factual basis on which he was to be sentenced for an offence of driving with excess alcohol.

G had been drinking in a public house. He left and drove his car off the road into a ditch. G abandoned the vehicle and returned to the public house, where he drank some more. The police traced G to the public house and he was arrested. At the police station, G gave a specimen of breath with a reading of 71mg of alcohol per 100ml of blood. The police performed a back-calculation to give an alcohol level at the time G had been driving, a figure of 46mg. G was charged with driving while over the limit on that basis. The prosecution did not agree and amended the charge to the original level of 71mg. G appointed his own expert who determined that, at the time of driving, G’s alcohol level was no more than 57mg. G pleaded guilty to the charge on that basis. The prosecution did not accept the basis of plea and a Newton hearing was arranged. At that hearing, the prosecution contended that the assumption in section 15(2) of the Road Traffic Offenders Act 1988, that a defendant’s level of alcohol was not less than that given in the specimen, could not be displaced even after guilt was admitted and G was thereby bound by the reading of 71mg, so that a Newton hearing was misconceived.

The district judge, having accepted that the section 15(2) assumption could not be displaced unless section 15(3) applied, abandoned the Newton hearing and sentenced G on the basis of the 71mg reading. The question posed for the High Court was whether the district judge was correct in deciding that the section 15(2) assumption prevented her from sentencing G on the basis of a lower reading than that provided by the evidential test where there had been post-driving consumption of alcohol. G contended that section 15(2) concerned trials, and only trials, and was not relevant once guilt was established by plea or otherwise. He submitted that the court should be permitted to reach its own conclusion if the evidence plainly established that a blood alcohol reading was wrong.

Held: (1) The court should not be compelled to sentence upon a factual basis which was demonstrably false. As section 15(3) was relevant only to trials, that strongly suggested that section 15(2) only concerned trials also. Previous authority to the effect that the section 15(2) presumption was irrebuttable had concerned only trials and had no application to the situation post-trial, Millard v DPP [1990] 91 Cr App R 108 QBD, Beauchamp-Thompson v DPP (Note) [1989] RTR 54 DC and Griffiths v DPP [2002] EWHC 792 (Admin), (2002) 166 JP 629 distinguished. Accordingly, the assumption in section 15(2) applied only to a trial. Once a defendant had pleaded guilty he was permitted to argue a case that his alcohol breath level was demonstrably lower than the certified reading, and the actual level could and should be resolved by a Newton hearing. The answer to the question posed was, accordingly, in the negative. G’s case would be remitted to a Newton hearing to establish the actual excess alcohol level and to sentence him accordingly.

(2) (Per Sullivan LJ) It would be an affront to justice if a sentencer was compelled, because of a statutory assumption, to sentence on a basis that was false and adverse to a defendant.

Appeal allowed.

Arthur Blake (instructed by Darbys LLP (Dudley)) for the appellant; no appearance or representation for the respondent.