England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT

		Sitting at: Manchester Civil Justice Centre 1 Bridge Street West Manchester M3 3FX
		15th July 2009

MR JUSTICE NICOL:

1. This is an appeal by way of case stated from a decision of Deputy District Judge Jebb, sitting in the Magistrates Court at Liverpool.
2. The appellant was convicted of an offence under the Road Traffic Act 1988, section 5(1)(a), of attempting to drive a motor vehicle after consuming so much alcohol that the proportion of it in his breath exceeded the prescribed limit.
3. He was sentenced to a 12-month community order, with a requirement of 100 hours of unpaid work. He was disqualified from driving for 15 months, but the possibility was left open of a reduction if he successfully completed a drink-drive rehabilitation course.
4. There were two other charges which the appellant faced, and I will refer to those in due course. The facts found by the Deputy District Judge, as set out in the case stated, were as follows:

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"(a) On 9 August 2008 Liam Mason telephoned the police to report that he had just been robbed. He told the police that as he opened the door of his Land Rover intending to drive it home he had been approached by a male with a knife who demanded that he hand over the keys to the vehicle which he had done and the man had driven off in his Land Rover.

(b) Liam Mason told the police that he had been with a friend of his called Kevin Burke at the time of the robbery.

(c) The police told Liam Mason in a phone call to come to a police station straight away. Mr Mason arrived at Wavertree Road police station just a few minutes after the police phone call had ended.

(d) The police officer who dealt with Mr Mason at the police station could smell alcohol on his breath and arrested him on suspicion of attempting to drive with excess alcohol.

(e) The police spoke with Kevin Burke and discovered that he had not been present at the time of the robbery and had not witnessed it. The police therefore also arrested Liam Mason on suspicion of perverting the course of public justice.

(f) the police performed the breathalyser procedure and the lowest reading was 68 microgrammes in 100 millilitres of breath, meaning Mr Mason was nearly twice the legal limit.

(g) When he was subsequently interviewed under caution by the police, Liam Mason made a certain admission. He admitted that he had lied to the police about Kevin Burke being present at the robbery. He was asked on a number of occasions what his intention had been prior to the robbery. In one reply he said: "I was wanting to get in the car and drive home drunk but, like, I didn't cos it got taken off." Toward the end of the interview the officer asked: "You said you were going to get in your car and drive it." Mr Mason replied "Yes, I was going." The officer then asked: "Knowing you would possibly be over the limit?" and Mr Mason replied "Yes."

h) The defendant chose not to give evidence at his trial after being warned through his solicitor of the possible adverse inference which might be drawn from a failure not to do so."

5. The Deputy District Judge then found as follows:

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"I was of the opinion that Liam Mason clearly attempted to drive his motor vehicle with excess alcohol. He had admitted to the police that he had been drinking just prior to going to his vehicle and that he intended to drive it home. He had unlocked the vehicle and was in the process of opening the door in order to carry out his expressed intention of driving home. It was only the unexpected intervention of the robbery that prevented Liam Mason from fulfilling his intention. Accordingly I convicted Liam Mason of the charge of attempting to drive his motor vehicle on a road or other public place after consuming so much alcohol the proportion of it in his breath exceeded the prescribed limit contrary to section 5(1)(a) of the Road Traffic Act 1988."

6. I said that the appellant faced two other charges. Neither has a direct bearing on the appeal, but I should mention them. The appellant was charged with an alternative to the offence under section 5(1)(a) of the Road Traffic Act, namely the offence under section 5(1)(b): that is, being in charge of a motor vehicle with excess alcohol.
7. Following the Deputy District Judge's finding in relation to the section 5(1)(a) charge, the stated case observes that the prosecution offered no evidence in respect of the section 5(1)(b) charge. That matter was then dismissed. The third charge was obstructing a police officer in relation to the lies told by the appellant about Kevin Burke having witnessed the robbery. The appellant had pleaded guilty to that charge at the earliest opportunity. For that matter, the Deputy District Judge imposed the same community order as for the section 5(1)(a) offence, the orders in each case to run concurrently.
8. The question posed by the deputy District Judge in the opinion of the High Court was as follows:

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"Where a defendant, having consumed alcohol in excess of the prescribed limit, expresses an intention to drive a motor vehicle and in furtherance of that intention proceeds to open the door of that motor vehicle, is the act of the defendant in opening the vehicle capable of being characterised as more than merely preparatory to the act of driving the vehicle and, accordingly, can the defendant properly be convicted of an attempt to drive the vehicle contrary to section 5(1)(a) of the Road Traffic Act 1988?"

9. I would respectfully wish to pay tribute to the clear way that the Deputy District Judge has set out the facts of the case and the question posed to the court. This has made my task much easier.
10. Section 5(1) of the Road Traffic Act 1988 provides as follows:

"(1) If a person —

(a) drives or attempts to drive a motor vehicle on a road or other public place, or

(b) is in charge of 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."

11. The Criminal Attempts Act 1981 Section 3 provides:

"l) Subsections (2) to (5) below shall have effect, subject to subsection (6) below and to any inconsistent provision in any other enactment, for the purpose of determining whether a person is guilty of an attempt under a special statutory provision.

(2) For the purposes of this Act an attempt under a special statutory provision is an offence which—

(a) is created by an enactment other than section 1 above, including an enactment passed after this Act; and

(b) is expressed as an offence of attempting to commit another offence (in this section referred to as "the relevant full offence").

(3) A person is guilty of an attempt under a special statutory provision if, with intent to commit the relevant full offence, he does an act which is more than merely preparatory to the commission of that offence."

12. There is nothing in section 5 of the Road Traffic Act 1988 to indicate a contrary Parliamentary intention. Thus it is clear that section 3 of the 1981 Act applies to the offence of attempting to drive a motor vehicle under section 5(1)(a) of the 1988 Act. The Deputy District Judge was therefore correct to ask himself whether the facts as found were more than merely preparatory to the commission of the full offence of driving with excess alcohol.
13. Mr Southey for the appellant refers to the case of R v Gulliver [1990] 3 All ER 882 in the Court of Appeal. There the defendant had been charged with attempted theft of his stake from a bookmaker at a greyhound racetrack. The dog which the appellant had backed was not doing well. During the race the appellant climbed on to a fence in front of the dogs and waved his hands. He was attempting to distract them. His hope and intention was that the stewards would declare "no race" because of his intervention. If a race was so declared, then bookmakers would be obliged to repay the stakes of those who had bet on the race. In that way he hoped to recover the stake which he would otherwise have lost.
14. The court concluded, on the facts, that he had not gone as far as attempting to steal his stake from the bookmaker. He had only done an act preparatory [to the offence]. At page 885 Lord Lane said this:

"It seems to us the words of the 1981 Act seek to steer a midway course. They do not provide, as they might have done, that the Eagleton test [in R v Eagleton [1843-60] All ER Rep 363, [1854] EngR 35 ]... is to be followed or that, as Lord Diplock suggested, the defendant must have reached a point from which it was impossible for him to retreat before the actus reus is proved.

On the other hand the words give perhaps as clear a guidance as is possible in the circumstances on the point of time at which [Mr Justice] Stephen's series of acts begins. It begins, in our view, when the merely preparatory acts come to an end and the defendant embarks on the crime proper. When that is will depend on the facts in any particular case."

The conviction in that case was quashed.

15. In R v Tony Campbell [1991] 93 Cr App R 350, the appellant was charged with attempting to rob a sub post office. He had been seen earlier by police lurking in the vicinity wearing a crash helmet and wearing sunglasses. He then returned a short while later. He was without the sunglasses but he was found to be carrying an imitation gun, and also a threatening note, which he intended to pass over to the cashier as part of a demand for money. This time he got to within one yard of the post office when he was arrested. He admitted his intention to rob. However, he appealed against the conviction on the grounds that the judge should have ruled that there was no case to go to the jury that he had attempted to rob the post office. The appeal was allowed.
16. At page 355 Watkins LJ said this:

"In order to effect a robbery it is equally beyond doubt it would have been quite impossible unless obviously he entered the post office, gone to the counter and made some kind of hostile act -directed, of course, at whoever was behind the counter and in a position to hand him money. A number of acts remained undone and the series of acts which he had already performed - namely, making his way from his home where he commenced to ride his motor cycle on a journey to a place near a post office, dismounting from the cycle walking towards the post office door - were clearly acts which were, in the judgment of this court, indicative of mere preparation even if he was still of a mind to rob the post office, of the commission that is of the offence of robbery. If a person, in circumstances such as this, has not even gained the place where he could be in a position to carry out the offence, it is extremely unlikely that it could ever be said that he had performed an act which would properly be said to be an attempt."

17. In the present case, Mr Southey for the appellant submits that, at the stage where the appellant had been robbed of his car, he had done no more than start to open the car door. At that stage, Mr Southey submits, the appellant cannot be said to have placed himself in the position to have committed the offence of "driving". Before he would, it would need at least to be in a place where he could start the car and he was not yet in that position.
18. Mr Choudhry for the respondent argues that the appellant had embarked on the transaction that amounts to the offence of driving. He takes that phrase from the case of R v Mansar Qadir and Asmar Khan (unreported, Court of Appeal, 25 July 1997, BAILII: [1997] EWCA Crim 1970) He submits that that is what the appellant had done in this case. He argues that these are questions of fact and degree for the trial court. Of course the facts of each case would be different. To that extent it is axiomatic that they will involve questions of fact and degree. However, whether a given set of facts are capable of amounting to an attempt to commit an offence rather than be merely a preparatory act is a question of law. Tony Campbell's case vividly illustrates the line between these two can be very fine. Nevertheless the court's conclusion that his acts were not capable of constituting an attempt meant that the conviction had to be quashed.
19. In this case, the substantive offence, or the "full offence", as it is referred to in the 1981 Act, is driving. In my view the appellant could not be said to have embarked on the "crime proper", in the language of Lord Lane, until he did something which was part of the actual process of putting the car in motion. Turning on the engine would have been such a step, but starting to open the door of the car in my view was not capable of being so.
20. The line is fine, but so it was in Tony Campbell. As in this case, what the appellant did was no more than an act preparatory. In Campbell, as in this case, the appellant certainly had the necessary mens rea. There the appellant admitted his intention to rob a post office. Here the appellant admitted his intention to drive the car, but mens rea absent sufficient actus reus is not enough to constitute guilt.
21. Accordingly, the answer to the question posed by the Deputy District Judge is that the acts of the appellant, as found by the magistrates court, were not capable of being characterised as more than merely preparatory. The appellant could not properly be convicted of an offence under section 5(1)(a). In my judgment the conviction must be quashed.
22. A person who is acquitted of an offence under section 5(l)(a) may be convicted of the alternative offence of being in charge of a motor vehicle under section 5(1)(b): see section 24 of the Road Traffic Offenders Act 1988. Had the Deputy District Judge in this case done no more than convict the appellant of the section 5(1)(a) charge without finally disposing of the section 5(1)(b) matter, I would have had no hesitation in remitting the case to the magistrates court, with a strong indication that the appellant was to be convicted of the section 5(1)(b) offence. Indeed Mr Southey accepted that, on the facts as found, that offence had been committed. However, our hands are tied. The Deputy District Judge dismissed the s.5(l)(b) charge. We have no power to re-open that matter.

Mr Justice Irwin:

23. I agree with the decision and reasoning of My Lord.

Order: Appeal allowed. Conviction quashed

MR SOUTHEY: My Lord, can I make an application for costs from central funds? The appellant is privately funded, and clearly he has succeeded. In those circumstances, I ask for our costs of the hearing below.

MR JUSTICE NICOL: Any submissions on that?

MR CHOUDHRY: No, my Lord.

MR JUSTICE NICOL: Mr Southey, do we have to fix a figure or can that be determined?

MR SOUTHEY : I think it can be.. .my understanding is that it can be determined

MR JUSTICE NICOL: I mean it's not like a civil case. It's...

MR SOUTHEY: No ... Yes, I have never heard of it not being done after the event.

MR JUSTICE NICOL : Well, thank you both for your help.