Pinner v Everett

The Appellant was driving home about 1 a.m., and a police car happened to be following him. The police had no criticism of his driving but they saw that his rear number plate was not illuminated so they stopped him. What followed is set out in the Case Stated by the Justices after he had been convicted of failing without reasonable excuse to provide a specimen of blood or urine:

"( d) The Appellant brought his car to a halt in a normal and proper manner, and got out of his car. There was conversation between the Appellant and the Police Officers in the course of which the Appellant was told that his number plate was dirty and not illuminated and there was also a reference by the Police Officers to their duties in checking as a matter of routine on the identities of drivers of cars which might not belong to them.

( e) In the course of conversation with the Appellant the Police Officers noticed that his breath smelt of alcohol, and the Police Officers then had thereby reasonable cause to suspect the Appellant of having alcohol in his body.

( f) A constable in uniform requested the Appellant to provide a specimen of breath for a breath test.

( g) The Appellant protested that the Officers had no right to require him to provide a specimen of breath for a breath test since they had no cause to suspect him of having alcohol in his body while he was driving and since he had not committed a traffic offence or been involved in an accident.

( h) After some 20 minutes delay and after the Appellant had been told that if he did not provide a specimen of breath for a breath test he would be arrested, he agreed to do so.

( i) The device indicated that the proportion of alcohol in the Appellant's blood exceeded the prescribed limit. The Appellant was arrested and a further breath test at the Police Station gave the same indication.

( j) The Appellant was thereupon requested to provide a sample of blood or urine for a laboratory test and all the proper formalities required by subsections (1), (6) and (10) of section 3 of the Road Safety Act, 1967, were observed.

( k) The Appellant behaved completely normally and rationally while at the Police Station and fully understood the warnings given to him of the possible consequences of failure to provide a specimen of blood or urine.

( l) The Appellant in terms declined to provide a specimen of blood or urine, and we found no reasonable excuse for his failure to do so."

The question to be determined is whether in these circumstances the constable had any right to require the Appellant to take a breath test. If he had not then admittedly the conviction must be quashed. Whether he had that right depends on the proper interpretation of section 2 (1) of the Road Safety Act, 1967. This section authorises a constable to require "any person driving or attempting to drive a motor vehicle" to take such a test if the constable "has reasonable cause (a) to suspect him of having alcohol in his body.…"

In my view the crucial question is whether the Appellant was "driving or attempting to drive" when the constable requested him to provide a specimen of his breath. In this Act and in the principal Act, the Road Traffic Act, 1960, a clear distinction is made between a person driving or attempting to drive and a person in charge of a motor vehicle. The Appellant was certainly in charge of his car at the relevant time but was he then driving or attempting to drive it?

In determining the meaning of any word or phrase in a statute the first question to ask always is what is the natural or ordinary meaning of that word or phrase in its context in the statute? It is only when that meaning leads to some result which cannot reasonably be supposed to have been the intention of the legislature, that it is proper to look for some other possible meaning of the word or phrase. We have been warned again and again that it is wrong and dangerous to proceed by substituting some other words for the words of the statute.

The second point of law certified by the Court of Appeal in this case is "whether the requirement [of a breath test] can only be made of a person who, though no longer actually driving, can in general terms be described as the driver". I decline to answer that question. It asks me to choose between two phrases "actually driving" and "the driver", neither of which is to be found in the Act. It is in effect substituting "the driver" for the statutory words "person driving or attempting to drive". The two are not the same. A person can often be properly called the driver although for quite a long time he has neither been driving nor attempting to drive. Suppose several people go off for the day in a car to the seaside and only one is to do the driving: throughout their sojourn by the sea it would in ordinary parlance be proper to call that one person the driver, but it could not be said that throughout that period he was either driving or attempting to drive the car.

I must therefore consider in what circumstances a person can, by the ordinary usage of the English language, properly be said to be driving a car. Clearly the term cannot be limited to periods during which the car is in motion. Suppose the car is held up in a traffic jam and is stationary for five or ten minutes. No one would say that the driver is not driving the car during that period. He may have switched off the engine and be reading a book or a map; or he may have got out to clean his windscreen; and I do not think that it would make any difference if he got out to buy a paper from a newsvendor on the pavement. But, on the other hand, suppose the driver pulls up at the kerb and leaves his car to go shopping. I do not think that it could be said that he is driving the car while he is buying groceries. And I do not think that it would make any difference if he remained in the car while his passenger was doing the shopping: he would then not be driving but waiting for his passenger.

Can it, then, be said that to give this ordinary meaning to these words would defeat the manifest intention of Parliament? I do not think so. If a man stopped in a traffic jam is still driving so also he is still driving if stopped by a policeman, and it must then be a question of degree and of circumstances for how long thereafter he can properly be said to be still driving. The mere fact that he has got out of the car would not be enough.

But in the present case it would seem from the findings which I have quoted that an appreciable period of time must have elapsed before the police officers noticed the smell of alcohol, formed their suspicions, and required the breath test to be taken. During that period they were conversing with him about other matters which had nothing to do with his driving—the unilluminated number plates and a routine check on the identity of drivers. So the question is whether at the time when the breath test was required the Appellant could still fairly be said to be driving his car. I find this case to be very near the borderline but with some hesitation I am prepared to agree with the majority of your Lordships that the Appellant was then no longer driving his car within the ordinary meaning of the words.

I would allow this appeal.

After the Appellant was arrested he in terms declined to provide a specimen of blood or urine. The Magistrates found that he had no reasonable excuse for his failure to do so. His conviction (under section 3 of the Road Safety Act, 1967), was therefore unquestionably correct unless his arrest (under section 2) was not warranted. He...