DPP v Alderton
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE HARRISON |
| Judgment Date | 25 November 2003 |
| Neutral Citation | [2003] EWHC 2917 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 25 November 2003 |
| Docket Number | CO/4753/2003 |
[2003] EWHC 2917 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Royal Courts of Justice
Strand London WC2
Mr Justice Harrison
CO/4753/2003
MR J HALL (instructed by Crown Prosecution Service) appeared on behalf of the Appellant
MR R PYNE (instructed by Messrs Edward Hayes) appeared on behalf of the Respondent
This is an appeal by case stated from a decision of the Sussex Justices sitting at Chichester Magistrates' Court on 8th July 2003, when they acquitted the respondent of driving a motor vehicle having consumed so much alcohol that the proportion of it in his breath exceeded the prescribed limit, contrary to section 5(1)(a) of the Road Traffic Act 1988.
Section 5(1)(a) provides as follows:
"If a person—
(a) drives or attempts to drive a motor vehicle on a road or other public place, …
after consuming so much alcohol that the proportion of it in his breath, blood or urine exceeds the prescribed limit he is guilty of an offence."
The facts of the case, as found by the justices, are somewhat unusual. On Sunday 20th April 2003 at about 11.30pm two police officers went to Edith Cottages in Mill Road, West Ashling. Parked on the grass verge, which formed part of the road, outside the respondent's home, was a Vauxhall Astra motor car. The respondent was in the driving seat of that car, and he was the only occupant of the vehicle. There was a can of lager on the dashboard. It was raining and steam was rising from the vehicle's bonnet which felt warm to the police officer's touch. Both of the officers could smell alcohol on the respondent's breath and so they requested him to provide them, as indeed he did do, with a roadside breath specimen. That turned out to be positive.
The respondent was therefore arrested and conveyed to Chichester police station, where he provided two samples of breath for analysis. Both readings were 133 micrograms of alcohol in 100 millilitres of breath (i.e. about four times over the limit).
The respondent admitted that, prior to the arrival of the police, he had been sitting in the driver's seat of his car wheel spinning. That involved the engine running and the use of the accelerator, clutch and steering wheel, with the vehicle in gear and the handbrake on. He said that he had argued with his wife during the evening and had been physically assaulted by her, which was something that regularly happened and his usual response was to leave the house to allow both parties to calm down. He admitted that the wheel spinning was an expression of, and a release for, his anger, upset and frustration over his longstanding acceptance that his wife periodically physically attacked him, resulting in injuries.
The justices found as a fact that the respondent had no intention at any stage of moving the vehicle from the grass verge. The justices also found that the wheel spinning did not involve the vehicle moving its position at all, either forwards or backwards.
Those were the relevant facts found by the justices. It was contended at the hearing before the justices on behalf of the appellant that the wheel spinning amounted to driving of the motor vehicle. It was said that the respondent was using the vehicle's controls to direct the movement of the vehicle. It was contended on behalf of the respondent that some movement of the vehicle, either backwards or forwards, was necessary for the justices to find that the respondent was driving. It was not enough, it was said, that the front wheels were in motion. The respondent referred to a dictionary definition of the verb "to drive", namely to operate a vehicle controlling its direction and speed.
The justices were referred to the case of R v MacDonagh [1974] RTR 372, to which I will refer in a few moments. In the case stated, the justices said as follows:
"6. We were of the opinion that the respondent did not drive the motor vehicle by wheel spinning. We accept that the ratio of R -v—MacDonagh is that the essence of driving is the use of the driver's controls in order to direct the movement of the motor vehicle, however that movement is produced.
We were of the opinion that wheel spinning does not constitute such movement in the light of all the examples provided by Lord Widgery CJ in R -v—MacDonagh at page 374, paragraphs F and G. All of these examples involve some change in the position of the vehicle, with some actual distance covered by the vehicle. Here the vehicle remained throughout the wheel spinning in exactly the same position on the grass verge.
We were further of the opinion that the dictionary definition of the verb 'to drive' provided to us was a satisfactory one that reflected adequately and accurately the ordinary usage of the terms 'drive' and 'driving' in the English language, and that this definition requires some movement of the vehicle itself, rather than just of a component thereof. We note Lord Widgery CJ's caution that although the word 'drive' must be given a wide meaning, Courts must be alert to see that the net is not thrown so widely that it includes activities which cannot be said to be driving in any ordinary use of that word in the English language.
We therefore found that the Respondent had not driven the vehicle at the material time and dismissed the information."
The question posed by the justices for the opinion of the High Court is:
"Does the admitted wheel spinning constitute driving?"
I start by referring to the case of MacDonagh to which the justices had referred, because both parties before me accept that that case contains the two relevant tests that have to be applied in considering this issue. At page 375G-L, Lord Widgery CJ, giving the judgment of a five-man Court of Appeal, stated:
"The last case to which we would refer is Ames v MacLeod 1969 JC 1 where the facts were very close to those of the instant case. The accused, who was alleged to have been driving a motor car, had been walking beside it as it ran down a slight incline, and had steered it by placing his hand on the wheel. The car had run out of petrol. The Lord Justice-General thought that the question turned on whether the defendant was:
'in a substantial sense controlling the movement and direction of the car,'
and held that this test was satisfied. The other judges concurred. We respectfully agree that a person cannot be driving unless he satisfies the test adopted by the Court of Session, and we recognize the importance that this legislation should be given the same meaning in England as in Scotland. But we do not think that the test is exhaustive. It is still necessary to consider whether the activity in question can fall within the ordinary meaning of the word 'driving'.
Giving the words their ordinary meaning there must be a distinction between driving a car and pushing it. The dividing line will not always be easy to draw, and the distinction will often turn on the extent and degree to which the defendant was relying on the use of the driver's control."
Both parties agree that that passage includes the two relevant tests, namely whether the defendant was in a substantial sense controlling the movement and direction of the car and, secondly, whether the activity in question can fall within the ordinary meaning of the word "driving".
However, Mr Pyne on behalf of the respondent also relied on an earlier passage in the judgment of Lord Widgery CJ at page 374D:
"The Act does not define the word 'drive' and in its simplest meaning we think that it refers to a person using the driver's controls for the purpose of directing the movement of the vehicle. It matters not that the vehicle is not moving under its own power, or driven by the force of gravity, or even that it is being pushed by other well-wishers. The essence of driving is the use of the driver's controls in order to direct the movement, however that movement is produced.
There are an indefinite numbers of ways in which a person may control the movement of a motor vehicle, apart from the orthodox one of sitting in the driving seat and using the engine for propulsion. He may be coasting down a hill with the gears in neutral and the engine switched off; he may be steering a vehicle which is being towed by another. As has already been pointed out, he may be sitting in the driving seat while others push, or half sitting in the driving seat but keeping one foot on the road in order to induce the car to move. Finally, as in the present case, he may be standing in the road and himself pushing the car with or without using the steering wheel to direct it. Although the word 'drive' must be given a wide meaning, the courts must be alert to see that the net is not thrown so widely that it includes activities which cannot be said to be driving a motor vehicle in any ordinary use of that...
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