In a recent case, M.A.J. Law successfully represented a young man charged with drug driving. It was an interesting case because so many obstacles were thrown in the defendant’s way by the police and the CPS. Our defence was also made more difficult because our client accepted smoking cannabis before driving!
Our client was pulled over by the police and was witnessed by the police as the driver of the car. He was also on a public road. The police believed that our client may be under the influence of drink or drugs. He was given an alcohol breath test which he passed. The police then considered that he was under the influence of some drug and he was placed in the back of the police car whilst the police searched his vehicle. The police believed he may have further drugs in his car as they claimed to have smelt cannabis. His car was searched and a quantity of cannabis was found. He was arrested and taken to the police station.
What the police did not realise was that our client had a small quantity of cannabis hidden in his pocket. Whilst he was sat in the police car he ate the cannabis, presumably because he did not want to be caught in possession of cannabis (a class B drug). This, of course, also enabled us to raise the defence of post driving consumption. In effect our defence was that our client was only over the drug drive limit because of the cannabis he consumed after driving. Had he not eaten the cannabis then he would have been under the limit of 2µg.
Our case was made more difficult by the fact that our client had admitted to the police that he had smoked cannabis some 3 hours prior to driving. He was interviewed at the police station without a solicitor being present and before we became involved with the case. We therefore had to show that the drugs consumed prior to driving would have produced a level in his blood that was under 2µg.
The Burden of Proof
As with any criminal case, the prosecution must prove guilt ‘beyond reasonable doubt’. In our client’s case, the Crown Prosecution Service (CPS) believed that the result of the blood test reflected the level of drugs in our client’s body at the time of driving, even though the blood specimen was not taken until some two hours after driving.
The Legal Presumption
With drink drive cases, there is an assumption made in law that the level of alcohol found in a breath, blood or urine specimen (taken at the police station) is the same as the amount in that person’s body at the time of driving. In reality this is rarely the true position because alcohol in the body (as with drugs) varies over time and is eventually eliminated. This assumption does not apply if the defence can raise some evidence of alcohol being consumed after driving but before the specimen was taken.
With drug drive cases, the prosecution position is made more difficult because the assumption does not apply. This means that the CPS cannot rely on the blood result as proof of the true drug reading at the time of driving. The CPS should ideally have evidence of the drug in the motorist’s body at the time of driving but, of course, this is not possible because under the new law only a blood specimen can be used as evidence, and the blood must be taken by a medical person at a police station or hospital. It is a fact, therefore, that every blood sample will be taken at some point after driving. The longer the time gap, the less credible the prosecution’s evidence.
This makes it more difficult to prove a case beyond reasonable doubt when it is claimed the drug was consumed after driving. As expected, the CPS took the view that our client had not consumed any cannabis after driving and was simply making it up to try and put a defence together.
In order to assist our case we obtained an expert report to calculate the levels of cannabis in our client’s blood before and after driving. Based on the amount of cannabis smoked before driving, this report confirmed that our client would have been under the limit. In addition, this report confirmed that the amount consumed after driving was responsible for placing him over the limit.
The expert concludes that the amount of cannabis consumed after our client had ceased to drive could have accounted for the evidential blood result provided by the prosecution.
The difficulty for any defence solicitor in such a case is convincing the court that the drug was consumed after driving. The CPS was of the view that nothing was consumed after he was stopped by the police and therefore all the cannabis in his blood must have been as a result of the drug smoked before he dove. The CPS also pointed to the fact that the MGDDA document made no reference to our client consuming drugs post driving.
The CPS was desperate to try and hinder our defence. Throughout the case the CPS had made several mistakes relating to the evidence and we used this to our advantage. The only chance the CPS had of winning this case was to try and convince the court that our client did not consume any drugs after driving. To this end, the CPS wanted to try and stop us using our expert report because it was extremely helpful to the defence. The CPS persuaded the Judge, just two days before the trial, that the expert report should not be allowed into evidence as it was “not relevant”. It is still something of a mystery as to why a Judge would regard an independent expert report as not being relevant to such a case; after all, nobody knew whether one, two or three cannabis joints would result in a reading of more than 2µg. Unfortunately, it is sometimes the case that the Magistrates’ Courts are a little too pro-prosecution!
At the trial in the Magistrates’ Court, the court would not allow the expert report to be presented into evidence because of the earlier ruling by the Judge. Consequently, there was nothing to show to the court what level of drug would have been produced from the cannabis consumed before or after driving. In addition, and possibly because there was no report, the court stated it did not believe our client consumed cannabis after driving. Consequently he was convicted.
We felt strongly that both the pre trial ruling and the trial decision was wrong. In our view there was no legal basis for the expert report to be deemed inadmissible, and the ruling that our client had not consumed drugs post driving went against the strength of the evidence. As a result, we lodged an appeal to the Crown Court.
An appeal takes place at the Crown Court most local to the trial court and is a complete re-hearing of the case. Judges in the Crown Court are also more senior, and more experienced, than Judges in the Magistrates’ Court. In the run-up to the appeal date we spent considerable time reviewing the evidence and preparing our case.
Marcus Johnstone, who was in charge of this case throughout, instructed a senior barrister to present the appeal. When the appeal took place, the Crown Court Judge decided that our expert report was indeed admissible and even went so far as to call the report ‘helpful’ to the court. During the hearing, our barrister cross-examined the police officers in order to show failures by the police. We also cross-examined the nurse who took the blood specimen and we were able to show failures in procedure.
The appeal court ruled that as the defence had raised the issue of post driving consumption, the obligation was then placed upon the prosecution to try and prove that the cannabis was not consumed after driving, or, if it was, that our client would nonetheless have been over the limit (because of the cannabis smoked before driving). The CPS had failed to obtain its own expert report to carry out calculations of drug levels based on our client’s stated consumption of cannabis.
Our client’s version of events was believed by the Judge and we won the appeal. We were also awarded costs from central funds.
Comments from M.A.J. Law Solicitors
This was an interesting case because it involved a defence of post driving consumption but where our client had already confirmed to the police that he had consumed cannabis before driving! What the defence had to do was try and establish that the amount consumed before driving would not have been enough to put our client over the limit, therefore the amount consumed after driving was responsible for the excess amount.
With drink drive cases, it is generally known that 2-3 pints of beer would put the average male at the drink drive limit. However, it is not yet known what amount of cannabis needs to be consumed before an individual reaches the drug drive limit. This is important when defending such cases because any amount of drug consumed after driving may result in the prosecution failing. It is also very difficult for the prosecution to prove the drug was not consumed after driving because it is understandable (and believable by a court) why a motorist would quickly eat any drugs on his person so as to avoid a separate charge of possession or supply.
With a defence of post driving consumption of alcohol (with drink drive cases), it can be difficult for the defence to show alcohol was in fact consumed after driving unless there was a reasonable amount of time that elapsed before the police arrived. If the police pull a motorist over at the roadside, the CPS will claim there was not enough time to drink anything. Also, the courts wonder, as possession of alcohol is not illegal, what has the motorist got to gain by drinking more alcohol after driving?
As noted above, this position is different with drug driving. It may take only a second to eat a pill or a bag of cannabis and therefore any motorist could claim to have consumed the drug before the police got to the car. Once the defence of post driving consumption is raised, it is for the CPS to disprove it – something it may find very difficult to do.
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