Recent Judicial Decisions
| Author | J. C. Wood |
| Published date | 01 October 1975 |
| Date | 01 October 1975 |
| DOI | http://doi.org/10.1177/0032258X7504800408 |
| Subject Matter | Recent Judicial Decisions |
PROFESSOR
J.
C.
WOOD,
C.B.E.,
LL.M
The University of Sheffield
Legal Correspondent of The Police Journal
RECENT JUDICIAL DECISIONS
DRUNK
BUT
NOT
IN
CHARGE
R. v. Curran [1975] 1 W.L.R.876 Court of Appeal
Curran was found by police officers late at night, sitting in his
stationary motor car. The
car
keys were available. He had clearly
had a lot to drink. The police officers formed the view that he was
in charge of the car and he was arrested. The offence is set out
in s. 5(2) of the
Road
Traffic Act 1972, and s. 5(5) gives a
constable power of arrest without warrant.
It
has been clearly
established by Wiltshire v. Barrett [1966] 1 Q.B.312 that the
power is exercisable on reasonable suspicion. Once he is at a
police station the arrested person may, by s. 9 of the same Act,
be required to give a specimen for test. Section 9(3) makes failure
without reasonable cause an offence. Curran refused to provide
such a specimen. He was indicted with the two offences -
in charge of the car and he was arrested. The offence is set out
duce a specimen under s. 9(3). He was convicted on the second
count but not on the first. At the trial asubmission
had
been
made that the two counts must stand or fall together. This was
rejected and the jury directed so.
The
appeal was based on the
same point.
The argument was that a s. 9(3) sample offence can only be
committed if the accused was shown to have been either driving
or in charge at the appropriate time. Although the police pro-
cedure was correct, still a conviction for a sample offence cannot
be sustained without such evidence. The jury's verdict clearly
indicated
that
they were not satisfied on the driving or in charge
point. They seemed to think the provisions of s. 5(3) applied,
that is to say, there appeared to be no likelihood of his driving.
There are two cases on the point which conflict.
In
R. v.
position of Curran and the accused was said not to be responsible
for a sample crime. The point is strengthened by Sch. 4 in the
Road
Traffic Act 1972, which sets
out
punishments. On s. 9(3)
it says
"Where it is shown that at the relevant time the offender was
driving or attempting to drive
...
" and
October
1975 316
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