House of Lords
| Published date | 01 July 1976 |
| DOI | 10.1177/002201837604000305 |
| Date | 01 July 1976 |
| Subject Matter | Article |
House
of
Lords
Comments
on
Cases
FAILURE
OF
NON-DRIVER
TO
PROVIDE
SPECIMEN
R. u. Curran
Once
again,
there
has
been
a
judicial
call
for
the
amendment
of
the
"ill
drafted"
provisions
of
the
Road
Traffic
Act
1972.
Section
5(2)
of
that
Act
provides
that
a
person
in charge
of
a
motor
vehicle
on a
road
or
other
public
place while
unfit
to
drive
through
drink
or
drugs
commits
an
offence.
He
can
be
arrested
without
a
warrant.
A
person
so
arrested
may
be
required
to
provide
a
specimen
of
blood
or
urine, if he has first
provided
a
specimen
of
breath
(which
proved
'positive')
or
failed to
provide
such
specimen
on
request.
In R. v. Curran (1976, 1W.L.R.
87),
the
appellant
was
found
drunk
sitting
in a
car
in a
street.
The
ignition
key
was
with
him.
He was
arrested
and
underwent
a
breath
test
which
was positive. He "refused
to
supply
a
specimen
of
blood
or
urine. He was
charged
with
being
in
charge
of
the
car
contrary
to s.5(2)
and
with
afailure to
provide
a
specimen
contrary
to s.9(3). His
defence
to
the
former
charge
was
that
there
was no
likelihood
of
his driving
while
under
the
influence
of
drink.
The
jury
accepted
this
argument,
under
s.5(3),
and
he was
acquitted.
He
then
argued
that,
since he was
not
in charge
of
the
car
when
arrested,
the
request
for
a
specimen
could
not
lawfully
be
made,
so
that
he
could
not
be guilty
of
an
offence
under
s.9(3).
This
argument
was
rejected
by
the
trial
judge,
who
directed
the
jury
to
convict.
This
direction
was
upheld
in
the
Court
of
Appeal
and
has
now
been
unanimously
approved
in
the
House
of
Lords.
Section
9
of
the
Act
of
1972,
makes
it an
offence
to fail
to
provide a
specimen,
without
reasonable
excuse, in
the
case
of
any
person
required
to
do
so
"in
pursuance
of
a
requirement
imposed
under
this
section".
The
section
applies
to
any
person
"who
has
been
arrested
under.
s.5(5)".
That
sub-section provides
that
"a
constable
may
arrest
without
warrant.a
person
committing
an
offence
under
this
section".
The
section
applies to a
person
who
is
in charge
of
a
motor
vehicle in
the
appropriate
circumstances
and.
place.
At
first sight,
therefore,
it
would
appear
that
the
relevant
statutory
provisions
could
not
be said
to
apply
to
the
appellant,
when
once
it
had
been
decided
that
he was
not
in
charge
of
or
driving
or
attempting
to
drive
the
car.'
But
it was
held
in Wiltshire
v. Barrett
(1966,1
Q.B.
312)
that,
where
a
constable
has
I
Indeed,
Lord
Hailsham confesses
that,
"if
one
looks
of
the
words
of
s.5(5),
the
arrest is
authorised,
on
the
grammatical
construction
of
the
words,
only
on
the
ground
that
an
offence
has, in
fact,
been
committed"
(p.
98
D).
164
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