England and Wales High Court (Administrative Court) Decisions

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

		Royal Courts of Justice Strand London WC2A 2LL
		2 March 2010

1. MR JUSTICE OWEN: This is an appeal by way of case stated from a decision of Deputy District Judge Greaves sitting in the Local Justice Area of Berkshire at Newbury on 1st May 2008. On 14th December 2007 the appellant was charged with driving a motor vehicle on a public road having consumed alcohol in excess of the prescribed limit. On 7th January 2008 he was charged in the alternative with an offence of attempting to drive a motor vehicle on a public road, having consumed alcohol in excess of the prescribed limit on the same occasion.
2. The case came before the Deputy District Judge on 1st May 2008 when the prosecution proceeded on the alternative charge. The evidence called by the prosecution was succinctly summarised in the case stated in the following terms:

"The prosecution called PC Williams, who together with another officer was manning a gate in the perimeter fence of the AWE at Aldermaston, in the early hours of 14th December 2007. He stated that at the time the area inside the fence was not open to the public.

"He was approached by the appellant who requested that he be allowed to collect his car from the recreational facility within the fence. He drove the appellant to where his car was parked, about 100 metres from the gate. He smelt alcohol on the appellant's breath as he was leaving the car. PC Williams returned to the gate in the perimeter fence.

"He saw the appellant approaching the open gate in his car; he signalled for him to stop about 10 metres from the gate and about 15 metres from the A340 which was the only place he would have been able to drive to.

"A positive breath test was provided, the appellant was arrested and after caution he replied: 'I need to drive my friend home now'. In the police station he provided a positive sample for analysis and was charged.

"Under cross-examination PC Williams stated that the appellant said his friend was waiting now but the officer did not see anybody waiting outside the gates."

3. At the close of the prosecution case it was submitted on behalf of the appellant that there was no case to answer. The submission was rejected by the Deputy District Judge. Its rejection had two consequences. First, the appellant changed his plea to guilty and, secondly, the prosecution offered no evidence on the first charge, that of driving a motor vehicle on a public road having consumed alcohol in excess of the prescribed limit, with the result that the Deputy District Judge then entered a verdict of not guilty on that charge.
4. The questions posed for the opinion of the court by the Deputy District Judge are:

"1. Was I correct in concluding that the offence of attempting to drive a motor vehicle on a road after consuming alcohol in excess of the prescribed limit could be committed when the vehicle was not on a road?

2. Was I right to reject the submission of no case?"

The legal framework.

5. Under section 5(1) of the Road Traffic Act 1988 a person is guilty of an offence if he

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

"(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..."

6. Section 3 of the Criminal Attempts Act 1981 provides:

"(1) 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.

"(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."

7. It is submitted on behalf of the appellant that the Deputy District Judge erred in rejecting the submission of no case to answer and that the uncontested facts could not amount in law to an attempt to drive on a public road having consumed alcohol in excess of the prescribed limit.
8. There were three strands to the argument advanced on behalf of the appellant, although in his oral submissions Mr Elton acknowledged that they overlap to a considerable degree and in essence amount to a single submission. But he first argued that since the appellant was driving within the AWE precincts he could not have been attempting to drive on a road. In my judgment there is no reason in law or logic why he could not have been attempting to drive on a road simply by virtue of his having been driving within the AWE.
9. The second strand of the argument is that the difference between driving and attempting to drive has been held to be the attainment of motion. Mr Elton argued that, as on the agreed facts, the appellant did undoubtedly achieve motion, albeit within the grounds of the AWE, he cannot have been attempting to drive. He sought to base the argument on the decision of the Court of Appeal in R v Farrance (1978) 67 Cr App R 136, [1978] RTR 225. There are two points to be made in relation to that submission. First, Farrance does not in my judgment provide authority for the proposition that the distinction between driving and attempting to drive is the achievement of motion. The appellant was charged with attempting to the drive, and the facts were succinctly summarised in the headnote:

"The appellant suffered from angina pectoris which made strenuous physical exertion inadvisable. He drove his car uphill at the bend of a road when the car stopped because, unknown to him, the clutch had ceased to function properly. He allowed the car to run backwards and across the road until its rear wheels rested against the kerb on the far side. Sitting in the driver's seat he accelerated the engine in the hope that the clutch, which he then realised was defective, would allow the car to be driven a short distance. In fact the clutch had burnt out, so that the car could not be propelled by its engine and could not be moved by the appellant unaided."

10. The issue before the court was whether the defendant could be found guilty of attempting to drive a car which, as the prosecution conceded, was incapable of being propelled by its engine, and which at the time of his arrest was in a position from which he could not move it unaided. The court held that.

"If somebody is sitting at the driving seat of the car either attempting to start it or attempting to put it in gear or accelerating the engine to try to make the car go forward, he is attempting to drive it, and the fact that there is some intervening factor which in the end will prevent him from fulfilling his attempt does not prevent it from being an attempt to drive."

11. The issue before the court was not whether the appellant was driving or attempting to drive, but whether his acts could amount to an attempt to drive, notwithstanding that there was an intervening factor, namely the burnt out clutch that ultimately prevented him from setting the vehile in motion. Secondly, there is clear authority to the contrary in the decision of this court in DPP v Alderton [2003] EWHC 2917 (Admin), [2004] RTR 23. On the facts of that case:

"The defendant was seen by police officers in the driving seat of a stationary vehicle on the grass verge, which formed part of the road, outside the defendant's home. The defendant was breathalysed and was found to be over the prescribed limit. He admitted that, prior to the arrival of the police, he had been sitting in the driving seat of the vehicle 'wheels spinning', which involved the engine running and the use of the accelerator, clutch and steering wheel, with the vehicle in gear and the handbrake on. The Justices dismissed an information against the defendant for driving with excess alcohol ... Finding that the defendant had no intention at any stage of moving the vehicle from the verge and holding that wheels spinning did not constitute driving the vehicle as it did not move at all, either forwards or backwards."

12. The divisional court held, allowing the appeal:

"... first, a test of degree of control over the movement and direction of the vehicle, there was a sufficient degree of control being exercised by the defendant, by ensuring that the handbrake prevented the movement of the vehicle despite the fact that the wheels were turning, to say that the defendant was driving the vehicle; that, applying, secondly, a test of whether what was being done fell within the ordinary meaning of 'driving', a person wheel spinning could properly be said to be 'driving' a vehicle within the ordinary meaning of that word, in that a person wheel spinning was driving a vehicle in such a way as to seek to ensure that it did not go forward whilst its wheels were turning; and that, therefore, the justices erred in law in concluding that there had to be some movement of the vehicle before the defendant could be said to be driving it, and the case would be remitted to the justices with a direction to convict."

See also in this context Hoy v McFadyen [2000] SLT 1060, and in particular the passage cited by Harrison J in giving the judgment in Alderton:

"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".

13. Accordingly, I for my part am not persuaded that the critical distinction between driving and attempting to drive is the achievement of motion, and I therefore reject the argument advanced by Mr Elton that, because the appellant was in fact driving, albeit in the precincts of the AWE, he could not have been attempting to drive.
14. The third strand to the appellant's argument is that his action in driving his motor vehicle to within 10 metres of the open gate on to the A340 could not in law amount to an attempt to drive it on to a public road, and was at best merely preparatory. A preliminary point in this regard is that Mr Elton argued that as the offence is one of strict liability, it was not necessary for the prosecution to establish any intent, and the appellant's intention as declared to the officer who stopped him, that he needed to drive his friend home, was irrelevant. I do not agree. The evidence as to the appellant's declared intention was plainly relevant to the issue before the Deputy District Judge (see in that context section 3(3) of the 1981 Act). Secondly, Mr Elton argued that the action of the MOD policeman in stopping the appellant meant that the offence could not be committed. He developed the argument in the course of his oral submissions, advancing the proposition that the appellant needed the permission of those on duty at the gate before leaving the precincts of the AWE, and that driving up to the point at which he was stopped by those officers could not therefore amount to an attempt to drive on a road. The difficulty he faced with regard to that submission was that it was not borne out on the facts as found and as set out in the case stated. The Deputy District Judge found that the officer in question had been approached by the appellant who requested permission to collect his car. It is clear from the summary of the evidence that the officer gave his consent, not least because he drove the appellant to where his car was parked. There is nothing in the findings of fact to suggest that a further permission would have been required before the appellant could leave the precincts of the AWE .
15. But in further support of the submission Mr Elton sought to rely on the decision of this court in Mason v DPP [2009] EWHC 2198. In Mason the appellant was convicted of attempting to drive a motor vehicle after consuming alcohol, the proportion of it in his breath exceeded the prescribed limit. The charge arose in highly unusual circumstances. The appellant had 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 home, he had been approached by a male with a knife who demanded that he hand over the keys to the vehicle. He did so; and the man drove off in the Land Rover. He also said that at the time he had been with a friend.
16. The police told the appellant to come to a police station immediately. He arrived at a nearby police station minutes after the telephone call had ended. The police officer who dealt with him at the police station could smell alcohol on his breath, and therefore arrested him on suspicion of attempting to drive with excess alcohol. The police also spoke to the man with whom the appellant claimed to have been, and discovered that he had not been present at the time of the alleged robbery and had not witnessed it. The police therefore also arrested the appellant on suspicion of perverting the course of public justice. When subsequently interviewed under caution, the appellant was asked on a number of occasions what his intention had been prior to the alleged robbery. At one point he repiled: "I was wanting to get in the car and drive home drunk but, like, I didn't cos it got taken off". Towards 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 the appellant replied: "yes."
17. The Deputy District Judge concluded that the appellant clearly attempted to drive his motor vehicle with excess alcohol, having 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, and it was only the unexpected intervention of the robbery that prevented him from driving home. The Deputy District Judge therefore convicted the appellant.
18. The question posed for the opinion of the High Court was in the following terms:

"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."

19. Nicol J, in giving the substantive judgment of the court, said at paragraph 19 of his judgment:

"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 start, but starting to open the door of the car in my view was not capable of being so."

20. He went on to say that the line is fine; but he was satisfied that the actions of the appellant as found by the Deputy District Judge were not capable of being characterised as more than merely preparatory. In my judgment the decision simply demonstrates that the issue of whether the acts in question are capable of amounting to an attempt to commit an offence is highly fact sensitive. Thus, in contrast, in Shaw v Knill [1974] RTR 142, the divisional court, in a judgment given by Lord Widgery CJ, held that the following facts were capable in law of amounting to an offence of attempting to drive a motor vehicle on a road whilst disqualified:

"At approximately 10.40 pm on 23 November 1972 the defendant entered Bristol Omnibus Station car park at Marlborough Street and walked over to a motor cycle parked in the car park. He placed his haversack on the platform of the motor cycle and then pushed the motor cycle for a distance of approximately six yards towards the entrance of the car park, which abutted on to the public road. He was stopped approximately seven yards from the entrance and before he had left the car park. On being asked where he was going he stated that he wanted to go for a ride."

21. It was contended by the prosecutor that the defendant was guilty of the offence as charged, and that it did not matter that all the acts relied upon to constitute the attempt took place in the car park, which was not a public road.
22. This case is in my judgment closely analogous to Shaw v Knill. The appellant went to the car park at the AWE to collect his car in order, as he told the arresting officer, to drive his friend home. He then drove a distance of approximately 90 metres from the car park to the open gate on to the A340. Had the police officer at the gate not intervened, the appellant would have driven onto the public road. As the Court of Appeal held in Farrance, the fact that there was an intervening factor which in the end prevented the appellant from fulfilling his attempt does not prevent it from being an attempt to drive on a public road.
23. Under the Criminal Attempts Act 1981 acts that are "merely preparatory" are excluded from the ambit of an attempt to commit an offence. But all acts short of those necessary for the commission of the intended substantive offence are in some sense preparatory. The introduction of the qualifying adverb "merely" in the Criminal Attempts Act must have been intended by Parliament to distinguish acts which, although preparatory, are sufficiently close to the final act or acts to be properly regarded as part of the execution of the defendant's criminal course of conduct, from those which are not. All will turn on the facts of the case. On the uncontested facts of this case the Deputy District Judge was in my judgment entitled to conclude that the appellant's actions went beyond acts merely preparatory to the commission of the offence. I would therefore answer the questions posed in the case stated in the affirmative and dismiss the appeal.
24. LORD JUSTICE TOULSON: I agree, despite the attractive way in which Mr Elton has presented his arguments.
25. The law relating to attempts is not satisfactory. In 1962 the late Professor Sir John Smith noted that the then common law of attempts had been described as "more intricate and difficult of comprehension than any other branch of the criminal law" and that the solution to its problems, like La Belle Dame sans merci, has eluded many a zealous pursuer (J Smith, Two Problems in Criminal Attempts Re-examined [1962] Crim LR 135).
26. Nearly 20 years later Parliament intervened with the Criminal Attempts Act 1981. That Act followed the Law Commission's Report on Attempt and Impossibility in Relation to Attempt, Conspiracy and Incitement, LawCom 1980, No.102. The Act was a codifying and not a consolidating Act. As the long title to the Act states, it was intended to amend the law. An editorial note in Halsbury's statutes 4th edition, volume 12(1), 2008 reissue, page 884, explains the genesis of the words "merely preparatory" in section 1(1) of the Act which reads:

"If, with intent to commit an offence to which this section applies, a person does an act which is more than merely preparatory to the commission of the offence, he is guilty of attempting to commit the offence".

The editorial note reads:

"Subsection (1) does an act which is more than merely preparatory. The Law Commission in para 2.48 of its Report rejected the terms already used in reported cases to describe what acts were sufficiently proximate to the full offence to create liability as being too restrictive or ambiguous. It quoted Lord Reid's dictum in Haughton [1975] AC, 476, 499 that: "no words unless so general as to be virtually useless can be devised which will fit the immense variety of possible cases. Any attempted definition would, I am sure, do more harm than good. It must be left to common sense to determine in each case whether the accused has gone beyond mere preparation".

It is plain from the statutory language that the fact that an act is preparatory does not necessarily mean that it cannot constitute an attempt. Section 1(1) excludes acts which are 'merely' preparatory. Nearly 30 years later the Law Commission has reviewed the case law in this area in its Consultation Paper on Conspiracy Attempts LCCP No. 183. It is critical of the case law for an absence of clear consistent guidelines as to the application of the 'more than merely preparatory' test of proximity. It is indeed difficult if not impossible to reconcile all the decisions and some of them seem frankly rather surprising. That said, the Law Commission has offered its own interpretation of the test as follows:

14.4 D's merely preparatory acts are excluded from the ambit of the offence under the 1981 Act. However, it should have been clear from the wording of the 1981 Act that D may nonetheless be liable for attempt even though his or her own final act was not the last act necessary for the commission of the substantive offence and was still in some sense 'a preparatory act'. 14.5 To elaborate further, preparatory conduct by D which is sufficiently close to the final act to be properly regarded as part of the execution of D's plan can be an attempt. Such conduct is not merely preparatory but more than merely preparatory. It is, for want of a better expression, "executory". It is the preparatory conduct associated with the actual execution of D's plan when, as a matter of common sense, D can properly be said to be 'on the job'. In other words, it covers the steps immediately preceding the final act necessary to effect D's plan and bring about the commission of the intended offence".

27. I recognize that the phrase "on the job" is taken from authority but I confess that I do not find it very helpful. It is colourful but I find it difficult to know exactly what it means. It raises other questions as to when the job begins. If it is meant to suggest that the actus reus of the full offence must have commenced, I doubt whether it is correct. But with that qualification I think that the Law Commission's commentary comes as close as one can on the authorities to interpreting the expression "more than merely preparatory". I find particularly helpful the first and last sentences of paragraph 14.5:

"To elaborate further, preparatory conduct by D which is sufficiently close to the final act to be properly regarded as part of the execution of D's plan can be an attempt…In other words, it covers the steps immediately preceding the final act necessary to effect D's plan and bring about the commission of the intended offence."

28. Lord Reid's words remain wise, that no single formula can be found which will fit the immense variety of all possible cases, and ultimately it must be left to common sense to determine in each case whether the accused has gone beyond mere preparation.
29. For the reasons given by Owen J, I agree that the court below was entitled in the exercise of its common sense to determine in this case that the appellant's acts did go beyond mere preparation and, accordingly, I agree that the appeal should be dismissed.
30. MR HEPTONSTALL: Mr Moore was fined and a costs order imposed. In addition, a disqualification from driving for 12 months was imposed. That was suspended following the hearing of the appeal. I invite the court to activate that disqualification immediately.
31. LORD JUSTICE TOULSON: You cannot say anything about that?
32. MR ELTON: No, my Lord.
33. MR HEPTONSTALL: To assist with the activation of that I ask for a direction that Mr Moore should submit his driving licence to the magistrates' court within seven days.
34. MR ELTON: I suspect that it is still with the magistrates' court. If not it will be within 7 days.
35. MR HEPTONSTALL: I have an application for costs. A schedule has been prepared and submitted to the court. My learned friend has had sight of it. There is one amendment. My travel was at the off peak rate. The total should be 898.50.
36. MR ELTON: I am agreeable. I would ask for 30 days to pay the amount.
37. LORD JUSTICE TOULSON: It seems a reasonable figure.