R v Curran
| Jurisdiction | England & Wales |
| Judge | Lord Diplock,Lord Hailsham of St. Marylebone,Lord Kilbrandon,Lord Salmon,Lord Edmund-Davies |
| Judgment Date | 17 December 1975 |
| Judgment citation (vLex) | [1975] UKHL J1217-1 |
| Date | 17 December 1975 |
| Court | House of Lords |
[1975] UKHL J1217-1
House of Lords
Lord Diplock
Lord Hailsham of St. Marylebone
Lord Kilbrandon
Lord Salmon
Lord Edmund-Davies
Upon Report from the Appellate Committee, to whom was referred the Cause Comissioner of Police for the Metropolis against Curran (on Appeal from the Court of Appeal (Criminal Division)), That the Committee had heard Counsel, as well on Monday the 10th as on Tuesday the 11th, days of November last, upon the Petition and Appeal of John Curran of 190 Manal Way, Boreham Wood in the County of Hertfordshire, praying, That the matter of the Order set forth in the Schedule thereto, namely, an Order of Her Majesty's Court of Appeal (Criminal Division) of the 8th of May 1975, might be reviewed before Her Majesty the Queen, in Her Court of Parliament, and that the said Order might be reversed, varied or altered, or that the Petitioner might have such other relief in the premises as to Her Majesty the Queen in Her Court of Parliament, might seem meet; and Counsel having been heard on behalf of the Commissioner of Police for the Metropolis, the Respondent to the said Appeal; and due consideration had this day of what was offered on either side in this Cause:
It is Ordered and Adjudged, by the Lords Spiritual and Temporal in the Court of Parliament of Her Majesty the Queen assembled, That the said Order of Her Majesty's Court of Appeal (Criminal Division), of the 8th day of May 1975 complained of in the said Appeal, be, and the same is hereby, Affirmed, and that the said Petition and Appeal be, and the same is hereby, dismissed this House.
My Lords,
The appellant was found by a police constable sitting in a stationary car in a street. The ignition key was in the car with him and he was very drunk. In the reasonable belief that the appellant had committed an offence under section 5(2) of the Road Traffic Act 1972 of being a person in charge of a motor vehicle, which was on a road, when he was unfit to drive through drink, the constable arrested him and took him to a police station. After being given an opportunity to provide a specimen of breath for a breath test while at the police station, the appellant was required to provide a specimen of blood or urine. He refused to do so.
It should be said at the outset that there are three matters that are not in dispute: (1) that since the constable had reasonable grounds for his belief that the appellant had committed an offence under section 5(2), the arrest was lawful under section 5(5) (see Wiltshire v. Barrett [1966] 1 Q.B. 312): (2) that the requirement to provide a specimen of blood or urine for a laboratory test was lawfully made under section 9(1): and (3) that the appellant's failure to provide it was "without reasonable excuse" within the meaning of that expression in section 9(3), since he was neither physically nor mentally unable to provide a specimen nor would the provision of the specimen have entailed a substantial risk to his health (see: R. v. Lennard [1973] R.T.R. 252; R. v. John [1974] R.T.R. 332; Williams v. Osborne [1975] R.T.R. 181).
So there would appear to be an undefended case of an offence under section 9(3) of the Act which provides that:
"9(3) A person who, without reasonable excuse, fails to provide a specimen for a laboratory test in pursuance of a requirement imposed under this section shall be guilty of an offence."
The appellant was duly charged at Middlesex Crown Court on an indictment which contained two counts. The first was for an offence under section 5(2); the second for an offence under section 9(3). Upon his arraignment and in the absence of the jury a submission was made on his behalf to the judge. It was indicated that the appellant did not dispute that at the material time he was unfit to drive through drink and that in substance his defence to the charge under section 5(2) would be based on section 5(3) of the Act which provides:
"5(3) For the purposes of subsection (2) above a person shall be deemed not to have been in charge of a motor vehicle if he proves that at the material time the circumstances were such that there was no likelihood of his driving it so long as he remained unfit to drive through drink or drugs."
It was submitted that, upon the true construction of the Act, if the appellant were to be acquitted of the offence under section 5(2) upon the ground that at the material time he was not in charge or was to be deemed not to have been in charge of the motor vehicle, he was in law entitled also to be acquitted of the offence under section 9(3) of failing to provide a specimen for a laboratory test.
The judge rejected this submission. The trial proceeded upon both counts. The jury brought in a verdict of not guilty of the offence charged under section 5(2) and, in accordance with the ruling that he had previously given the judge directed the jury to find the appellant guilty of the offence charged under section 9(3). For this offence the appellant was sentenced to be fined £10, to be disqualified from driving for twelve months and to have his driving licence endorsed.
Against his conviction, though not against his sentence, the appellant appealed to the Court of Appeal upon a point of law raised by the judge's ruling. The Court of Appeal dismissed the appeal but granted the appellant leave to appeal to your Lordships' House. The point of law involved was certified as being:
"Whether the offence of failing without reasonable excuse to provide a specimen for a laboratory test contrary to section 9(3) of the Road Traffic Act 1972 can be established without establishing that the defendant was a person in charge of, or driving, or attempting to drive, a motor vehicle on a road or other public place."
My Lords, the answer to this question depends upon the true construction of the Road Traffic Act 1972. It is primarily a consolidation Act, and, while it incorporates certain amendments to give effect to recommendations of the Law Commission and the Scottish Law Commission, none of these amendments relates to any of the provisions of the Act that are relevant to the question of construction which is involved in the instant case. As has been recently emphasised by this House in Inland Revenue Commissioners v. Joiner it is the consolidation Act that your Lordships have to construe and if you find, as I do in the instant case, that the actual words are clear and unambiguous in their meaning it is not permissible to have recourse to the corresponding provisions in the earlier statute repealed by the consolidation Act and to treat any difference in their wording as capable of casting doubt upon what is clear and unambiguous language in the consolidation Act itself.
I start with a general observation about the content and structure of the Road Traffic Act 1972. It creates more than a hundred different statutory offences. The ingredients of each offence are stated in the particular section of the Act by which the offence is created. The mode of prosecution of each offence (viz., summarily or on indictment or both) is not dealt with in the particular section by which it is created, nor is the type of punishment that may be imposed upon conviction for that offence. These matters are left to be dealt with by Part I of Schedule 4 to the Act, which by Section 177 is made applicable to each of the offences created by those provisions of the Act that are specified in column 1 of that Part of the Schedule. That Part of the Schedule is in convenient tabular form. It sets out against the number of the particular section or subsection by which the offence is created, the mode of trial and the punishment that may be imposed upon a person convicted of that offence. It provides for four different types of punishment for effences with which it deals, viz., imprisonment, fine, disqualification from holding or obtaining a driving licence, and endorsement of the coviction on the offender's driving licence. Column 4 shows the maximum punishment by way of fine or imprisonment. Column 5 shows whether or not the court is obliged, or empowered at its discretion, to order disqualification from holding or obtaining a driving licence; and column 6 shows whether or not the court is obliged to order endorsement of the offender's driving licence. The reference in section 177(1) to "prosecution and punishment" as being the subject-matter of Part I of Schedule 4 makes it clear that disqualification and endorsement as well as fine and imprisonment are to be classified as "punishment" for the purposes of the Act—as indeed they are as a matter of common sense, and always have been for the purposes of the right of appeal against sentence under the Criminal Appeal Act 1907.
My second observation is that sections 8 and 9 of the Act create obligations upon the citizens of an unusual kind which had no precedent in English penal law when they were first introduced by the Road Safety Act 1967. What these sections provide is a procedure by which a person who is reasonably suspected by a policeman of having committed an offence under section 5 or section 6 can be required to provide material evidence in the form of a specimen of his blood or urine which may be used against him at his trial for an offence under either section, and without which, in the case of an offence under section 6, no prosecution could ever be brought against him. So the procedure under sections 8 and 9 applies to persons when they are suspects only. They may not in fact have committed the offence under section 5 or section 6 of which they are suspected; but if they have, their refusal to provide a specimen of blood or urine would prevent their being prosecuted for any offence under section 6 and would enhance their...
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