"Internet Law Book Reviews" Provided by Rob Jerrard LLB LLM
Director of Public Prosecutions v. Butterworth
Recent Judicial Decisions
Provided by Rob R. Jerrard, LLB, LLM
Breath Test PC need not Specify Offence
Director of Public Prosecutions v. Butterworth
(1994) The Times, July 22, House of Lords
In this case, the defendant had been charged under s.7(6) of the Road Traffic Act 1988 with failing to give a specimen, required by a constable in the course of an investigation which concerned an offence of being unfit to drive through drink or drugs under s.4 of the Act or of having excess alcohol contrary to s.5.
The Lords decided that it was not necessary to specify in the information whether the charge related to s.4 or s.5. They dismissed an appeal from the order of the Queen's Bench Divisional Court upholding a conviction of an offence under s.7(6).
Lord Slynn, giving judgment, said that an offence was committed under the 1988 Act by a person who was unfit to drive through drink or drugs (a) when driving or attempting to drive a motor vehicle on a road or other public place (s.4(1)), and (b) when in charge of a motor vehicle which was on a road or other public place (s.4(2)).
By s.5, a person who had consumed so much alcohol that the proportion of it in his breath, blood or urine exceeded the prescribed limit was guilty of an offence if (a) he drove, or attempted to drive, or (b) he was in charge of a motor vehicle on a road or other public place.
The defendant contended he had been wrongly charged, his defence was based on R. v. Courtie (1984) 148 JP 502; [1984] AC 463, where it was held that s.12(1) of the Sexual Offences Act 1956, by reason of s.3 of the Sexual Offences Act 1967, created two offences of buggery, one where there was consent, with a maximum of five years in prison, the other where there was no consent, with a maximum of 10 years.
That case was followed, it was said, in R. v. Shivpuri (1986) 150 JP 353; [1987] AC 1, and was applied in DPP v. Corcoran (Terence) (1993) 157 JP 154; [1993] 1 All ER 912, where, in a prosecution under s.7(6) of the 1988 Act, it was held that an information (which did not specify whether the specimen had been required in connexion with driving or being in charge of a vehicle) had been bad for duplicity.
Their Lordships had, however, been referred to cases which had gone the other way: R. v. Curran (1975) 139 JP 631; [1976] 1 WLR 87, which had not been cited in Corcoran; Roberts v. Griffiths [1978] RTR 362; and Shaw v. DPP (1993) 157 JP 1035; (1993) 97 Cr. App. R. 1.
The central test for the purpose of the offence under s.7(6) was whether the constable was carrying out an investigation into whether a person had committed an offence under s.4 or s.5 of the Act.
Leaving aside previous authority and the legislative history of s.7, that plainly meant an investigation into whether the person had committed any offence under s.4 or s.5.
It did not have to be shown that the constable had in his mind a specific offence under one of those sections, and that he was investigating that specific offence. It was not therefore necessary to specify in the charge which, if any, specific offences was being investigated by the constable.
The substance of the offence was the refusal in the course of a general investigation for the purposes of ss. 4 and 5. If the test was positive then it might be necessary to decide which, if any, of the substantive offences under s.4 or s.5 had been committed. To decide otherwise put an unnecessary burden on the constable of deciding, before he even knew whether the person was over the limit, what statutory offence he was investigating. He was entitled to investigate generally into an offence under s.4 or s.5.
To contend that if he had an open mind, and therefore no firm suspicion as to any specific offence, the s.7(6) offence had not been committed would be absurd.
That conclusion was in keeping with Curran, Roberts v. Griffiths, and Shaw. It was not inconsistent with Courtie or Shivpuri. They were both dealing with specific statutory provisions: in the one case with the Sexual Offences Acts 1956 and 1967, in the other with the Customs and Excise Management Act 1979. Each statute had to be considered separately to decide whether separate offences were created.
As a matter of construction of these particular statutory provisions, it was clear that the relevant offence was one of refusing to give a specimen in the course of an investigation as to whether an offence under s.4 or s.5 had been committed. Which offence it was said was committed was only relevant to the appropriate penalty.
It followed that Corcoran was wrongly decided. The charge here was accordingly not bad for duplicity.
Comment
This has finally settled a very important point of law which, when reported, caused such statements as, "legal loophole puts 100,000 drink-drive convictions at risk", (1992) The Times, June 29. Thankfully, by overruling Corcoran this pure technicality has been cured by their Lordships.