Definitions
| Pages | 435-480 |
| Author | Pauline M. Callow |
Chapter 8
Definitions
1. ATTEMPTING TO DRIVE
R v Farrance
(1978) 67 Cr App R 136, 19 December 1977, CA
A person sitting in the driving seat, attempting to start the car or to put it into
gear, or accelerating the engine so as to try to make the car go forward, is
attempting to drive it, even though some intervening factor (here a burnt out
clutch) prevents fulfilment of the attempt.
A person had been charged with attempting to drive with excess alcohol, contrary
to s 6(1), Road Traffic Act 1972. The clutch of the car he was driving had,
unknown to him, burnt out and the car stopped on a bend. The driver thought this
was a dangerous place to leave the vehicle, and he allowed it to run downhill,
backwards, and across the road until the wheels rested on the kerb, the car then
occupying almost half the road. He suffered from angina and could not push the
car. He accelerated the engine, hoping to be able to drive a short distance but the
car would not move. Police officers arrived and found the driver still in the driving
seat with the engine running. They suspected he had been drinking. A blood
specimen showed excess alcohol. He was convicted and appealed.
QUESTION(S) FOR THE COURT: Whether the appellant could be found guilty
of attempting to drive a car which the prosecution conceded was incapable of
being propelled by its engine and which, at the time of his arrest, was in a position
from which he could not move it unaided.
HELD: “… [This] case can be looked at in one of two ways; the first is that the
appellant was truly attempting to drive this car and that his attempt would have
been successful but for the intervention of a burnt out clutch. It is quite different
from the case of a man who attempts to steal from a pocket which is in fact empty
or from those who attempt to handle goods which are no longer stolen goods.
Those cases are fundamentally impossible. This is a clear case where all the
steps constituting an attempt are taken but frustrated by the intervention of a burnt
out clutch. …
“In this case, shortly afterwards, the police officer, having given the car a push,
was able to drive it down the hill although the motive power was no longer driving
the car. It is true that that particular method of driving the car was not possible for
the appellant because of his heart condition but there was no impossibility about
436 8. Definitions
driving the car in principle. He was prevented from driving it in the way which
he wanted to drive it because the clutch was burnt out, that alone prevented him
from doing so.
“… if somebody is sitting at the driving seat of a car either attempting to start it
or attempting to put it in gear or accelerating the engine so as to try to make the
car go forward, he is attempting to drive it and the fact that there is some
intervening factor which in the end will prevent him from fulfilling his attempt
does not prevent it from being an attempt to drive. It is quite different from the
case where the commission of the full offence is impossible from the very
beginning. In a case such as this there is simply an impediment similar to the
smallness of the tool which the burglar has, or the inadequacy of the quantity of
poison which the poisoner has, which prevents the driving from taking place.”
Appeal dismissed.
Kelly v Hogan
[1982] RTR 352, 11 March 1982, QBD
Sitting in the driving seat, inserting keys into the ignition, none of which fitted,
amounted to attempting to drive.
A person had been convicted of attempting to drive when unfit through drink,
contrary to s 5(1), Road Traffic Act 1972. Police officers came upon him sitting
in the driver’s seat of a vehicle, holding some keys. Unaware of the presence of
the officers, he inserted a key on two separate occasions but was unable to turn it
and start the engine. It was not known whether any of the keys fitted the vehicle.
One of the officers noticed that the man’s speech was slurred and his eyes glazed,
and that he was drunk. He appealed.
QUESTION(S) FOR THE COURT: Whether, on the facts found by the justices,
they could deduce that the defendant was attempting to drive.
HELD: “[It is submitted] that this is one of those cases where there could not be
a conviction for an attempt because the commission of the full offence was
impossible. [Referring to the judgment in R v Smith (Roger) [1975] AC 476,
quoting R v Donnelly [1970] NZLR 980, setting out] various categories of cases
which fell to be considered. The fourth and fifth categories were:
‘Fourth, he may … fail to complete the commission of the crime through
ineptitude, inefficiency or insufficient means. The jemmy which he has brought
with him may not be strong enough to force the window open. Fif th, he may find
that what he is proposing to do is after all impossible – not because of
insufficiency of means, but because it is for some reason physically not possible,
whatever means be adopted’.
“That case is authority for the proposition that where facts fall within the fourth
category, the offence can be committed. For my part, I am quite unable to see
what is the difference, in principle, between a jemmy carried by a burglar, who is
found not to be strong enough to open a window and an ignition key, carried by
Attempting to Drive 437
a drunken gentleman, who has it in mind to drive but who finds that whilst the
key is strong enough, it is the wrong shape.
“[Referring to R v Farrance, above] For my part, I think that this case is stronger
than … Farrance as it falls more clearly within the fourth category.”
Appeal dismissed.
Mason v DPP
[2009] EWHC 2198 (Admin), [2010] RTR 11, 15 July 2009, QBD (Admin)
The act of opening the car door was merely preparatory to driving and did not
amount to attempting to drive.
A person had been convicted of attempting to drive with excess alcohol in blood,
contrary to s 5(1)(a), Road Traffic Act 1988. Knowing he could be over the limit,
he opened the car door to get in and drive home, but was approached by a man
with a knife who demanded the keys from him and drove off in the vehicle. The
motorist appealed against conviction.
QUESTION(S) FOR THE COURT: Where a person with excess alcohol expresses
an intention to drive and opens the door of the vehicle, whether opening the door
is more than merely preparatory to the act of driving to justify a conviction of
attempting to drive.
HELD: “12. … s 3 of the [Criminal Attempts Act 1981 – a person is guilty of an
attempt … if, with intent to commit the relevant full offence, he does an act which
is more than merely preparatory to the commission of that offence] applies to the
offence of attempting to drive a motor vehicle under section 5(1)(a) of the 1988 Act.
The [question] was therefore … whether the facts as found were more than merely
preparatory to the commission of the full offence of driving with excess alcohol.
“20. The line is fine, … the appellant admitted his intention to drive the car, but
mens rea absent sufficient actus reus is not enough to constitute guilt …
“21. … the acts of the appellant … were not capable of being characterised as
more than merely preparatory. The appellant could not properly be convicted of
an offence under section 5(1)(a).”
Appeal allowed.
Moore v DPP
[2010] EWHC 1822 (Admin), [2010] RTR 36, 2 March 2010, QBD (Admin)
A defendant who was over the limit and drove about 90 metres on a private car
park, and would have driven onto the public road if he had not been stopped by
a police officer, was guilty of attempting to drive with excess alcohol.
A motorist had been charged with attempting to drive with excess alcohol,
contrary to s 5(1), Road Traffic Act 1988. He had been collecting his car from the
recreational facility in the Atomic Weapons Establishment at Aldermaston, an
area closed to the public. He asked a police officer manning the gate for
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