Director of Public Prosecutions v Ellery

Director of Public Prosecutions v Ellery

The Justices erred in law by failing to apply the statutory presumption and by not placing the legal burden on the defendant to prove, on the balance of probabilities, that post-driving alcohol consumption accounted for the excess reading. The burden is a legal one and is justified and proportionate under the Human Rights Act 1998. The respondent did not satisfy this burden.

Parties
Claimant: Director of Public Prosecutions; Defendant: Andrew Richard Ellery
Jurisdiction
England and Wales
Judgment Date
14 July 2005
Procedural Posture
Criminal Appeal / Appeal From Magistrates' Court to High Court
Outcome
Appeal allowed; acquittal set aside; case remitted with direction to convict.
Legal Topics
Drink Driving, Burden of Proof, Reverse Burden, Human Rights
Criminal Law Road Traffic Law Drink Driving Burden of Proof Reverse Burden Human Rights

Case Brief

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Parties

Director of Public Prosecutions

Claimant

Andrew Richard Ellery

Defendant

Procedural Posture

Criminal Appeal / Appeal From Magistrates' Court to High Court

Legal Issues

  1. 1 Whether the Justices erred in law in acquitting the defendant by requiring the prosecution to prove the actual quantity of alcohol at the time of driving beyond reasonable doubt rather than applying the statutory presumption and burden under section 15 of the Road Traffic Offenders Act 1988.
  2. 2 Whether section 15(3) of the Road Traffic Offenders Act 1988 imposes a legal or evidential burden on the defendant, in light of the Human Rights Act 1998.

Ratio Decidendi

The Justices erred in law by failing to apply the statutory presumption and by not placing the legal burden on the defendant to prove, on the balance of probabilities, that post-driving alcohol consumption accounted for the excess reading. The burden is a legal one and is justified and proportionate under the Human Rights Act 1998. The respondent did not satisfy this burden.

Court Disposition

Appeal allowed; acquittal set aside; case remitted with direction to convict.

Orders

  • Case remitted to the Justices with a direction to convict the defendant.