R v Sakhuja
| Jurisdiction | England & Wales |
| Judge | Lord Chancellor,Viscount Dilhorne,Lord Pearson,Lord Cross of Chelsea,Lord Salmon |
| Judgment Date | 19 April 1972 |
| Judgment citation (vLex) | [1972] UKHL J0419-1 |
| Date | 19 April 1972 |
| Court | House of Lords |
[1972] UKHL J0419-1
The Lord Chancellor
Viscount Dilhorne
Lord Pearson
Lord Cross of Chelsea
Lord Salmon
House of Lords
Upon Report from the Appellate Committee, to whom was referred the Cause Sakhuja against Allen, that the Committee had heard Counsel as well on Monday the 28th, as on Tuesday the 29th, days of February last, upon the Petition and Appeal of Surendra Kumar Sakhuja, of 259 Kingsway, Hove, in the County of East Sussex, 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 5th of March 1971, 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 Robert Allen, a Superintendent of Police of the Sussex Constabulary, 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 5th day of March 1971, 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,
Like many appeals under the Road Safety Act, 1967, this appeal is wholly without merits and, like many appeals wholly without merits, it has been conducted almost entirely at the public expense, since the Appellant is legally aided. However, the point is a contentious and arguable one, and if the case serves to reduce the confusion which seems to surround the first three sections of the Act and to clarify some of the authorities, these proceedings will have served a useful purpose.
The admitted facts are that the Appellant was driving in the streets of Hove with more than twice the permitted proportion of alcohol running through his veins. He was driving greatly in excess of the speed limit and this attracted the attention of a police car. When the police car drew up in front of him in order to cause him to stop, the Appellant escaped by driving away on the near side between the police car and the kerb. He evidently knew that he was being followed, but drove off home partly at speeds in excess of 50 m.p.h., partly on the off-side of the road and partly on the kerb. When he reached his home the police car also stopped. The Appellant got out and, on being approached by a police officer, was offensive and obstructive. His breath was redolent of alcohol. The police officer asked him to take a breath test. He refused and was again offensive, though he later agreed to the test, which was made and proved positive. He was arrested and, after the prescribed ritual had been accomplished, the blood test also proved positive (163 mgms per 100 mls). In consequence he was charged and elected to go for trial by jury. He gave evidence and called witnesses to give an account of the facts, some at least of which were evidently rejected by the jury. He was fined £75 and his licence was suspended for the minimum period of one year. He may well be thought to have got off lightly. I say nothing about the amount of the fine. But drivers who behave in this manner might well expect longer periods of disqualification than the minimum, since it is apparent that not merely have they drunk too much, but that their drink has affected their driving and behaviour to an extent which makes them a danger to the public, and to the police, whose business it is to apply and enforce the law, both a nuisance and a serious additional potential danger since their driving can lead, as in this case, to a chase. It is just this kind of driver that the Road Safety Act, 1967, was intended to keep off the roads and it may well be that Circuit judges and Recorders will do well to bear in mind that they have a discretion to impose longer periods of disqualification when bad driving and bad behaviour follow the drink. In this way they can differentiate between drivers whose excessive drinking is substantial and has led to actual danger and those where the drinking is only slightly above the limit and has not been accompanied by bad driving or bad behaviour. The judge certified for appeal and the Court of Appeal dismissed the appeal without calling upon the Crown, but certified for a point of law of general interest and gave leave to appeal to your Lordships' House.
At the trial, the Deputy Chairman had directed the jury that, if they accepted the prosecution evidence and believed that the requirement of a breath test had been made so soon as practicable after the suspected commission of a moving traffic offence, they should convict, even if they thought that technically the Appellant had ceased to be driving (a question of fact and degree) when the constable in uniform first approached him.
The question of general public importance certified by the Court of Appeal was:
"Whether, on the true construction of s. 2(1) of the Road Safety Act, 1967, in cases where a suspicion arises with respect to a person driving while his vehicle is in motion, that person, if immediately pursued by a constable in uniform, may be required to provide a specimen of breath for a breath test, notwithstanding that at the conclusion of the pursuit he is no longer a person driving or attempting to drive a motor vehicle on a road or other public place."
To this question I give the answer "yes".
Before I actually approach the point under discussion, I wish to say a few words on the structure and policy of the Road Safety Act, 1967, and the way in which its construction should be approached. Once the main scheme of the Act and the mischiefs it was intended to prevent are understood, many of the misunderstandings which have arisen will disappear.
The Act was designed to create two new offences, in both of which the prime ingredient was having in the blood more than a prescribed proportion of alcohol. The offences are respectively driving or attempting to drive a motor vehicle on a road or other public place (s. 1(1)), and being in charge of a motor vehicle on a road or other public place (s. 1 (2)), in each case after the consumption of alcohol in a quantity producing the excess of alcohol in the blood. It was part of the policy of the Act to differentiate sharply between the two offences. Not only are the penalties different, but, in contrast to the mandatory suspension for an offence under s. 1(1), the suspension under s. 1(2) is discretionary. In all proceedings under the Act it is important for the prosecution to establish whether the accused is alleged to have been driving or attempting to drive, or of having been in charge of a motor vehicle at the time of the offence. Owing to the curious way in which the first three sections of the Act have been drafted it would seem that in cases under s. 1(2) no breath test, and no arrest under s. 2, is possible, and that the only circumstances in which a conviction can be obtained are where there has been an arrest under s. 6(4) of the Road Traffic Act, 1960, when a conviction under s. 1(2) can be obtained if the subsequent blood or urine test is positive, or, when the defendant has, without reasonable excuse, failed to provide a sample of blood or urine, a conviction may be obtained under s. 3(3).
But under s. 1(1) the offence, which is committed at a point of time when the defendant is "driving or attempting to drive" (s. 1(1)) the motor vehicle on the road or other public place, can only be proved by reference to a state of affairs which can only exist, or be ascertained, at a much later period of time, and then only by reference to a particular type of test, a blood or urine test in a laboratory, applied to samples of blood or urine taken at a police station after an arrest. In other words, the offence under s. 1(1) is committed at the moment of driving or attempting to drive, but can only be proved by evidence of a particular kind relating to a state of the blood at a later moment, and ascertained by a test applied at a later moment still. (See s. 1(1) and s. 3.) The definition of the offence and the penalty are contained in s. 1(1). The prescribed method of proof is set out in s. 3.
Intermediate between the two points of time, viz., the commission of the offence on the road or other public place, and the obtaining of the evidence of its commission at the police station and the laboratory, are interposed the requirements of s.2. These provide for the first of two breath tests (s.2(1) and s.2(2)) and, if this proves positive, an arrest under s.2(4). The breath tests and the limitations on the circumstances in which they may be required are for the protection of the motorist from undue harassment even though he be driving or attempting to drive on a road or other public place. See, for instance, the observations of Lord Diplock in Webber v. Carey [1970] A.C. 1072 at 1092-3. The arrest which follows a positive test is partly to ensure that the ritual prescribed under s.3 is properly carried out, and partly to keep the motorist off the road. A lawful arrest under s.2 is a condition precedent to the carrying out of the procedure under s.3., (see Scott v. Baker [1969] 1 Q.B. 659) and from the language of s.2 it is clear that a lawful arrest can only be made where there has been a lawful requirement to take the breath test under s.2(1) or s.2(2). Indeed, though for this purpose it is irrelevant, as an additional safeguard, a second requirement for a further breath test must be made under s.31(1) before the final...
To continue reading
Request your trial
-
R v Reid (Philip)
...near the border line. 10 Pinner v. Everett has been considered in the recent decision of the House of Lords, Sakhuja v. Allen 1972 2 All England Reports 311. That was a case concerned, not with the time at which suspicion arose, but with the time at which the requirement was made. In the ......
- R v Masters
- R v Evans (Terence)
- R v Maidment
-
Part I - 'Adviser' Duties
...15 Section 962L. 16 Section 962L. 17 Section 962M. 18 Section 962N. 19 Section 962S. 20 Section 962J. 21 Section 962D. 22 Sakhuja v Allen [1973] AC 152. 23 Fisher v Hebburn Ltd (1960) 105 CLR 188. 24 RG 245.60 - The content of this article is intended to provide a general guide to the subje......
-
Recent Judicial Decisions
...theobserved commission of the offence, the pursuit and the arrest canfairly be regarded as one transaction. In RvSakhuja [1973] AC152, [1972] 2 All ER 311 the approach adopted by the courts inRvJones and Sasson vTaverner was approved by the Houseof Lords.In the present case, the Court of Ap......