Drink/Drive: Charge, Wording, Fear of Aids and the Choice of Specimens
| Author | Rob R. Jerrard |
| Published date | 01 July 1993 |
| Date | 01 July 1993 |
| DOI | http://doi.org/10.1177/0032258X9306600304 |
| Subject Matter | Article |
ROB
R.
JERRARD
LL.B; LL.M. (Lond.)
DRINK/DRIVE: CHARGE,
WORDING, FEAR OF AIDS AND
THE CHOICE OF SPECIMENS
Since the advent
of
the drink/driving legislation many hundreds
of
cases
have been considered; in 1992 four particularly important cases were
reported.
In
Corcoran
v.
D.P.P.
(1992) The
Times,
July 8, the defendant had been
charged under s.7(6)
of
the Road TrafficAct 1988. Section 7(6) created
two offences of refusing to provide a specimen
of
breath for analysis (i)
when the defendant was alleged to have been driving a vehicle and (ii)
when the defendant was alleged to have been in charge
of
a vehicle.
The two offences carried different penalties and therefore, the court
said a charge under s.7(6) which did not distinguish the circumstances in
which the request was made had been bad for duplicity.
It seems that the defendant had been charged, "With failing without
reasonable cause to provideaspecimen
of
breath for analysis in the course
of
an investigation under section 4 or 5
of
since amendedby the 1991 Act. It is understood this was the Home Office
recommended wording, not necessarily followed by all police forces.
Some police forces use only one section in the wording
of
the charge.
Prosecuting authorities waited to see whether courts would allow a
technical point
of
drafting to enable defendants who had committed
substantiveoffencesto escape liability: that wait is now over; the next case
decided that
Corcoran
was decided per
incuriam.
The case in question, Shaw v.
D.P.P.
and
Others
(1992) The
Times,
November 23, concerned several appeals by way
of
case stated to the
Queen's
Bench Divisional Court. The charge wordings were similar to
Corcoran,
that is the informations charged a single omission or course
of
conduct, namely failure to provide aspecimen when requested to do so.
Lord Justice Watkins giving judgment said:
"Common sense would suggest that provided there was a bona fide
investigation into the existence of an offence under sA or s.5 of the
Road Traffic Act then the request was in s.7.
"Part
of
the investigationmight be to discoverwhetherthe person asked
for the specimen was driving or attempting to drive or in charge
of
a
vehicle while unfit or with more than the prescribed limit of alcohol in
his blood, breath or urine.
"At
the time the specimen was required, however, the investigating
officermight well have no or not sufficient evidence as to those matters
... until the investigation was complete.
"At
that stage the officer might well not know if they were investigating
an offence vis a vis the person of whom the request was being made
256 The Police Journal July 1993
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