Definitions
| Author | Pauline M Callow |
| Pages | 410-449 |
CHAPTER 9: DEFINITIONS
Chapter 9
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
Attempting to Drive
was not possible for the appellant because of his heart condition but there was no impossibility about 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 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. Fifth, 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 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.
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CHAPTER 9: DEFINITIONS
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: “ … section 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.
“ … 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 … 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 section5(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 ninety 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 section 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 permission to do so. The officer drove the defendant to the place where his car was, but smelt alcohol on the defendant’s breath as he got out. The officer stopped the defendant as he was driving towards the open gate, but before he reached the public road. The defendant said he needed to drive someone home. He was arrested and breath analysis revealed excess alcohol. He was convicted and appealed.
Question(s) for the Court: Whether the offence of attempting to drive a motor vehicle on a road after consuming alcohol in excess of the prescribed limit could be committed when the vehicle was not on a road.
Held: “… there is no reason in law or logic why [the motorist] could not have been attempting to drive on a road simply by virtue of his having been driving …
Attempting to Drive
“I … am not persuaded that the critical distinction between driving and attempting to drive is the achievement of motion, and I therefore reject the argument … that, because the appellant was in fact driving … he could not have been attempting to drive. …
“… the appellant’s intention [to drive his friend home] was plainly relevant … The appellant … drove a distance of approximately 90m from the car park to the open gate on to the A340. Had the police officer at the gate not intervened, the appellant would have driven onto the public road … the fact that there was an intervening factor which in the end prevented the appellant from fulfilling his attempt does not prevent it from being an attempt to drive on a public road.
“Under the Criminal Attempts Act 1981, acts that are ‘merely preparatory’ are excluded from the ambit of an attempt to commit an offence. But all acts short of those necessary for the commission of the intended substantive offence are in some sense preparatory. The introduction of the qualifying adverb ‘merely’ in the Criminal Attempts Act must have been intended by Parliament to distinguish acts which, although preparatory, are sufficiently close to the final act or acts to be properly regarded as part of the execution of the defendant’s criminal course of conduct, from those which are not. All will turn on the facts of the case. On the uncontested facts...
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