Regina v Woodward (Terence) (1994) The Times, 7th December, Court of Appeal was a prosecution for causing death by dangerous driving, The court held that evidence that the motorist had been drinking before driving was admissible, but mere consumption of alcohol in itself was insufficient to establish that he had consumed such a quantity of alcohol as might adversely affect a driver.

The facts were a motor car driven by the appellant with his girlfriend as passenger crossed on to the wrong side of the road and collided with a car coming in the opposite direction

Death and injury resulted. The scene was known as an accident blackspot. The appellant with his girlfriend and two other friends had been to a function where alcoholic drink was served.

Because he was injured no sample could be taken from him and there was no evidence about his alcohol level, the only evidence of his drinking came from the two friends, one of whom made a statement that the appellant was up at the bar a few times and must have had five or six pints of lager, while the other's statement was that she only saw the appellant drinking a couple of pints.

When it came to giving evidence before the jury neither of the friends gave evidence about the amount of drink the appellant had had. One said the appellant was not under the influence of drink.

Before the trial began the judge heard argument on whether evidence of the appellant's consumption of alcohol should be admitted. At that stage the Crown's application was based largely on witness's statements, "that the appellant must have had five or six pints of lager".

The trial judge ruled that evidence of the appellant's drinking that night should be admitted.

The first ground of appeal was that the judge was wrong in principle to admit such evidence.

The relevance to the offence of evidence that the defendant had taken drink was explained in R v McBride [1962] 2 QB 167 where a court of five judges had said that, in order to render admissible evidence about the drink taken by the driver, such evidence had to tend to "show that the amount of drink taken was such as would adversely affect a driver or, alternatively, that the driver was in fact adversely affected".

That principle had been applied in R v Thorpe [1972] 1 WLR 342. Neither McBride nor Thorpe, which had both been decided under the Road Traffic Acts of 1956, 1960 and 1972 of causing death by reckless or dangerous driving, had been overruled.

The court referred to R v Lawrence [1982] AC 510 and a series of decisions of the Court of Appeal. Section 1 of the 1988 Act, as amended by section 1 of the 1991 Act, provided that a person who drove a mechanically propelled vehicle dangerously on a road was guilty of an offence, and section 2A provided a definition of driving dangerously.

The offence of causing death by reckless driving had been abolished by the 1988 Act, as amended by the 1991 Act.

Their Lordships found the definition of dangerous driving in section 2A was entirely consistent with McBride.

In the Lordships' view. the trial judge in the present case was correct in holding that the principle laid down in McBride was still good law in relation to the new offence of dangerous driving or causing death by dangerous driving.

The witnesses to drinking not having come up to proof, at the end of the prosecution the evidence went no further than to show that the appellant had been seen with a glass in his hand and had been drinking. 0n the principles laid down in McBride that would not have amounted to relevant evidence.

It was was correct in saying that, when the witness failed to come up to proof, there was no evidence as to drink which was relevant to the jury's task. Mere consumption of alcohol in itself was insufficient. The jury would have had to be satisfied that the appellant had consumed such a quality of alcohol as might ad adversely affected a driver and of that there simply was no evidence.

In those circumstances it was incumbent on the trial judge to warn the jury against taking the appellant drinking into account because, if they did so, they could only be speculating.

The failure to give such a direction was in the circumstances of the case a material misdirection or non-direction

In the circumstances the appeal was allowed. Since the appellant had already served a substantial part of the sentence imposed on him, their Lordships had taken the view that this was not an appropriate case in which the order a retrial.