QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
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|DIRECTOR OF PUBLIC PROSECUTIONS||Appellant|
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MR R PYNE (instructed by Messrs Edward Hayes) appeared on behalf of the Respondent
Crown Copyright ©
"If a person
(a) drives or attempts to drive a motor vehicle on a road or other public place, ...
after consuming so much alcohol that the proportion of it in his breath, blood or urine exceeds the prescribed limit he is guilty of an offence."
"6. We were of the opinion that the respondent did not drive the motor vehicle by wheel spinning. We accept that the ratio of R -v- MacDonagh is that the essence of driving is the use of the driver's controls in order to direct the movement of the motor vehicle, however that movement is produced.
We were of the opinion that wheel spinning does not constitute such movement in the light of all the examples provided by Lord Widgery CJ in R -v- MacDonagh at page 374, paragraphs F and G. All of these examples involve some change in the position of the vehicle, with some actual distance covered by the vehicle. Here the vehicle remained throughout the wheel spinning in exactly the same position on the grass verge.
We were further of the opinion that the dictionary definition of the verb 'to drive' provided to us was a satisfactory one that reflected adequately and accurately the ordinary usage of the terms 'drive' and 'driving' in the English language, and that this definition requires some movement of the vehicle itself, rather than just of a component thereof. We note Lord Widgery CJ's caution that although the word 'drive' must be given a wide meaning, Courts must be alert to see that the net is not thrown so widely that it includes activities which cannot be said to be driving in any ordinary use of that word in the English language.
We therefore found that the Respondent had not driven the vehicle at the material time and dismissed the information."
"Does the admitted wheel spinning constitute driving?"
"The last case to which we would refer is Ames v MacLeod 1969 JC 1 where the facts were very close to those of the instant case. The accused, who was alleged to have been driving a motor car, had been walking beside it as it ran down a slight incline, and had steered it by placing his hand on the wheel. The car had run out of petrol. The Lord Justice-General thought that the question turned on whether the defendant was:
'in a substantial sense controlling the movement and direction of the car,'
and held that this test was satisfied. The other judges concurred. We respectfully agree that a person cannot be driving unless he satisfies the test adopted by the Court of Session, and we recognize the importance that this legislation should be given the same meaning in England as in Scotland. But we do not think that the test is exhaustive. It is still necessary to consider whether the activity in question can fall within the ordinary meaning of the word 'driving'.
Giving the words their ordinary meaning there must be a distinction between driving a car and pushing it. The dividing line will not always be easy to draw, and the distinction will often turn on the extent and degree to which the defendant was relying on the use of the driver's control."
"The Act does not define the word 'drive' and in its simplest meaning we think that it refers to a person using the driver's controls for the purpose of directing the movement of the vehicle. It matters not that the vehicle is not moving under its own power, or driven by the force of gravity, or even that it is being pushed by other well-wishers. The essence of driving is the use of the driver's controls in order to direct the movement, however that movement is produced.
There are an indefinite numbers of ways in which a person may control the movement of a motor vehicle, apart from the orthodox one of sitting in the driving seat and using the engine for propulsion. He may be coasting down a hill with the gears in neutral and the engine switched off; he may be steering a vehicle which is being towed by another. As has already been pointed out, he may be sitting in the driving seat while others push, or half sitting in the driving seat but keeping one foot on the road in order to induce the car to move. Finally, as in the present case, he may be standing in the road and himself pushing the car with or without using the steering wheel to direct it. Although the word 'drive' must be given a wide meaning, the courts must be alert to see that the net is not thrown so widely that it includes activities which cannot be said to be driving a motor vehicle in any ordinary use of that word in the English language."
That passage, of course, contains the various examples mentioned by Lord Widgery to which the justices referred in the case stated.
"In our view the situation in the present case is a rather unusual one, particularly because of the fact that the handbrake was defective and it required either that the car be in gear with the engine switched off or alternatively that the person in the driver's seat had to depress the footbrake and hold the footbrake down in order to prevent the car from moving. The position quite clearly, therefore, is that in the latter alternative in order to prevent movement of the car downhill there required to be a direct and continuing personal intervention on the part of the person in the driving seat. The fact that the engine was running at the time, that the appellant was the person in the driving seat, that the appellant had disengaged the gear in order to start the engine and as a consequence required to keep his foot on the footbrake, in our opinion go beyond mere preparation for driving, and the appellant has commenced driving even though there may have been no movement at all. The fact that there was movement at the end of the proceedings is a clear indication in our view that the appellant must have been driving because there would have been no movement but for the intervention on his part by disengaging the gear and using the footbrake. The correct test is to look at what the appellant was doing and not necessarily the result. For example, if the car had in fact rolled forward and hit another car perhaps a foot or two in front of it there can be no question but that the appellant would have been driving the car. The things that he was doing would have been exactly the same as he was doing in the present case. This shows that the question of movement of the car is not essential if the driver's activities have got beyond the stage of mere preparation for driving but have got to the stage when there is active intervention on his part to prevent movement and direction of the vehicle. In the somewhat unusual circumstances of this case we are quite satisfied that the appellant could be said to have been driving. In our view he was just as much driving as would be a person who in the course of proceeding along the road was stopped at a red traffic light, halted his vehicle, placed his foot on the footbrake and awaited the turning of the lights to green."
"I think that this is quite a different case from almost any of the other cases that have come before this court in recent years dealing with driving; they have all been cases where the person was consciously seeking some movement of the car in some way, and was thus driving. Here one has a man sitting in the driving seat, not intending to drive, and as far as I can see not intending to exercise any control over the vehicle, and accidentally his foot touches the accelerator and off goes the car. I content myself by saying I do not think that in any ordinary use of the word 'driving' that conduct would be included."
Mr Pyne relies on that case as showing that there should be an intention to drive.
"... the question of movement of the car is not essential if the driver's activities have got beyond the stage of mere preparation for driving but have got to the stage when there is active intervention on his part to prevent movement and direction of the vehicle."
In my view that applies to the present case, and it should not make any difference that there is no evidence as to whether the respondent actually put the handbrake on rather than simply allowed it to remain on. Mr Pyne accepted that, if there was an intention to prevent movement of the car, then the present case would be on all fours with Hoy v McFadyen.