HC Deb 17 July 1962 vol 663 cc377-89
Mr. Deputy-Speaker (Sir William Anstruther-Gray)

The Amendment in the name of the hon. Member for Crosby (Mr. Graham Page) in page 1, line 18, after "time" insert and proof that such proportion or quantity of alcohol which was contained in the blood or present in the body of the accused, ascertained as aforesaid, exceeded one hundred milligrams in one hundred millilitres shall be sufficient but not conclusive evidence that the ability of the accused to drive properly was for the time being impaired". is not selected, but it may be discussed with the Amendment in the name of the right hon. Member for Colne Valley (Mr. Glenvil Hall), in page 1, line 25, at end insert: (2) If it is proved that the accused at the time of his driving or attempting to drive or being in charge of a motor vehicle had more than such proportion or quantity of alcohol contained in his blood or present in his body as may be prescribed by regulations made by the Minister, such proof shall be conclusive evidence that the ability of the accused to drive properly was for the time being impaired.

Mr. Gresham Cooke

I beg to move, in page 1, line 25, at the end, to insert: Provided that there shall be evidence of inability to drive properly in addition to evidence relating to the proportion or quantity of alcohol or any drug present in the body of the accused. This Amendment was discussed in connection with another one to Clause 2 during the Committee stage of the Bill, and I feel strongly about it because I received certain assurances to which I shall refer in a few minutes. The point of the Amendment is this. Some of us fear (that when the breathalyser is put into action by the police when they think that a driver might be under the influence of alcohol, a nasty-minded policeman could, if he wished, go to the door of a public house and push the breathalyser into the face of a man coming out, before he had got into his motor car, and accuse him of being drunk and incapable of properly handling a motor car, and on that evidence have him prosecuted. Some of us are afraid of the position which arises in Sweden, which is almost a police State, where a man can be prosecuted solely on the amount of alcohol in the blood, without any relation to whether or not he can drive.

In Committee this Amendment was favourably received by the then Minister of State for the Home Department, who is now a right hon. and learned Gentleman, and whose absence tonight many of us deplore. At the end of the discussion on this Amendment my right hon. and learned Friend said: Regarding the second Amendment, having considered this matter very carefully and having listened to the interesting discussion this morning, I feel that I have a duty to ask my hon. Friend to withdraw it in order to enable me to consider the matter. The Chairman said: It is not a question of withdrawing the Amendment. The second Amendment has not been moved … The Minister of State said: As always, I am deeply grateful to you, Mr. Arbuthnot, and I think, therefore, that the correct position would be for me to say that if my hon. Friend should decide not to move the Amendment I would give an undertaking to consider the matter on Report in the hope —and it can only be a hope at his moment for reasons which I shall explain—that I may put down a Government Amendment on Report. Later my right hon. and learned Friend referred to this Amendment and said: We think that my hon. Friend and those who support him have made out a case which we must consider on this matter, bearing in mind that precedent in the road-traffic law— in spite of the fact that corroboration is very rarely required—and that these matters are generally left to the court. He went on: My hon. Friend the Member for Broms-grove (Mr. Dance) put it in a nutshell when he referred to the Swedish experiment and said that there was a chance that the police might abuse the power given to them. We all have the highest respect for the police and I never think it is very kind to them to give them a power which is easily abused. It is for those reasons that I should like to consider the Amendment further, for the weight of opinion in the Committee has been such that I should do so and I hope, therefore, that my hon. Friend will accept that explanation."—[OFFICIAL REPORT, Standing Committee E, 15th May, 1962; c. 168–70.] I did accept that explanation and obtained permission to withdraw the Amendment.

As I have said, my hon. Friends and I, along with other Members of the Committee, think that in the case of drivers alleged to be drunk there should be some corroborative evidence besides that purely of the breathalyser. I suggested that there should be some evidence of inability to drive, and that we should not get into the position that exists in Sweden, which is almost a police State in this respect, where one can be hauled up straight away by a policeman who has put a breathalyser in one's face, with no other evidence being produced.

That is why I thought it reasonable to move the Amendment, and why it was highly reasonable that the Minister of State should say that he would consider it and perhaps put down a similar Amendment on Report. I am sorry that that has not been done. In the light of that fact my hon. Friends and I thought that the matter should again be drawn to the attention of the Government.

Mr. Glenvil Hall

I hope that the House will not accept the Amendment. It would be a retrograde step. This is a road safety Bill. We agreed on that in Committee, and I think that every Member in the House realises that nearly every one of the Bill's provisions is designed to help to reduce the terrible toll on the roads. In existing legislation penalties are imposed on drivers who are unable to control their vehicles because they have had too much to drink. The Amendment would mean that a man could be drunk—I was going to say "as drunk as a lord", but, at any rate, completely drunk—and yet other corroborative evidence would have to be brought in addition to the fact that everybody knew, and could see, and the police could prove up to the hilt, that he was quite incapable of driving a vehicle owing to his having taken too much alcohol. That would be quite wrong.

I do not want to trespass upon another Amendment, but it is right to point out that here, for the first time, in Clause 2, we are making certain changes in the law to provide for certain tests of drunkenness, or being under the influence of drugs. If the Amendment is accepted it would nullify all that the Minister is trying to do in Clause 2.

I therefore hope that the House, without more ado, will reject the Amendment.

Mr. Crowder

I am extremely interested in the Amendment. This is a matter which the House should not let go too easily and too quickly. I must declare a certain interest in this sort of case, because I frequently have to try such cases as Recorder, and also appear either for the prosecution or the defence. The one thing that one always seeks to say to every jury is, "Everybody is affected by alcohol, however small the amount taken The important question is to what extent the person concerned is affected."

10.45 p.m.

One is aware of the hazards on the road today and one knows only too well that people can make mistakes. A split-second decision on the part of a driver may make all the difference in the world. One expects that if the co-ordination between a man's mind and his hand is affected in such a way that his judgment is not such as is required to drive on our roads today, he is not fit to be in charge of a car. But I would say this, and I think it is rather important. It does not matter how much a person has had to drink. What matters is the degree to which the alcohol or drug has affected his judgment and his powers of coordination between hand and eye.

A girl of 18 who has had a couple of glasses of sherry may not be fit to be on the road. But why should not a person ' who is accustomed to drink drive a car, if it can be shown that his mental capacity and co-ordination are such that that he has a perfect appreciation of his faculties?

Mr. Steele

He is the last person who should judge himself.

Mr. Crowder

I entirely agree. I would refer the hon. Gentleman to the dictum of Mr. Justice Byrne, probably the greatest criminal lawyer that this country has seen. He said that in such cases the real test is the driving.

Obviously, if a man is suspected of being under the influence of alcohol, he cannot be allowed to get in his car and turn it round twice in a road which is full of other vehicles. But in such cases it will nearly always be found that the evidence is about the driving, and it is on the driving that we should concentrate, in my view, rather than on the amount that a person has had to drink. There is all the difference in the world between the reactions of a man, a commercial traveller for example, who has had a busy day and has not had a meal but who has two or three whiskies—and whose driving may be deplorable—and a man who has spent an easy day, had a large meal and the same amount to drink. His driving may not be affected. It is the amount of drink which is the point of this Amendment.

Why should this House seek to impose a course of action on the juries and the courts? Why should this House have the temerity to dictate to the courts through the provisions of this Bill about how they should proceed? Every case which comes before the courts is peculiar in its own circumstances and I would trust the courts and the British juries.

Mr. Dick Taverne (Lincoln)

Surely the reason why the House should take the steps proposed in this Bill is that we want to deter people from driving if they have been drinking. If it is left to the driver to judge whether he is driving properly a large number of people will drink far more than is good for them if they propose to drive a motor vehicle, and far more than would enable them to drive properly.

It seems to me that the only way in which this problem can be tackled is by the adoption of a deterrent attitude towards the drunken motorists. The only way in which that can be established is to provide, for the first time, Chat the evidence of alcoholic content in the blood shall be taken into account. The effect of that would be that a great many people who have been in the habit of drinking will no longer drink before they drive. The present figures for accidents late at night suggest that there are a number of people who think that they are fit to drive when they are not, and rigorous measures must be taken against them. For those reasons, I strongly oppose the Amendment.

Mr. Ronald Bell

I rise to support my hon. Friend the Member for Twickenham (Mr. Gresham Cooke), who moved this Amendment. We had a debate on it in Committee, and a very interesting one it was. I think it right to say, perhaps, that the failure to put down an Amendment to this effect is not actually a breach of an undertaking given to the Committee because my right hon. and learned Friend, as he now is, who handled the matter in Committee did not finally commit himself to put down an Amendment to this effect.

I believe it is right to say that most of us took it for granted that this battle had been fought and won on its merits, and it was a great surprise to find at the last moment that an Amendment to this effect had not been put down by the Government. I do not say that we have been actually let down, but it is surprising and one would like to hear why this rather strange change of view has taken place since the Committee stage of the Bill.

I entirely agree with the hon. Member for Lincoln (Mr. Taverne) about the importance of strongly discouraging motorists from drinking before they drive. I certainly do not take any lax view about that. Indeed, for a great many years I have made it an invariable rule not to drink at all because I think it is much more prudent these days not to do so. At the same time, one really must try to fashion the law a great deal more carefully than we seem to be doing.

I have been rather alarmed in the course of the Bill to find this sort of general bludgeon attack on the motorist. When an hon. Member on either side of the House takes up the point that it is wrong indiscriminately to hit out at motorists there is almost an onslaught upon him. The argument is put that we ought to hit out indiscriminately and that something has to be done to stop the killing or maiming of thousands on the roads. That is not good enough.

Something, of course, must be done within reason to try to stop accidents, but that does not dispense us from the duty of drafting the law carefully, sensibly and moderately. Here, of course, we are introducing—and certainly in Committee I fully supported this—methods of testing the alcohol content of the blood. I think that absolutely right, but some of us are worried that having a certain amount of alcohol in the blood might develop into a separate driving offence, as it is in Sweden and, possibly, in some other countries.

I know that that is not the intention of Clause 2, but it could be the result. The Clause says that the court shall … have regard to any evidence which may be given … We have had a rather unfortunate experience of the way in which some phrases in the Road Traffic Act have developed. There is a real risk that "shall have regard" may come to be interpreted as governing words and that where a court is offered evidence of a high proportion of alcohol in the blood it will convict on that fact alone without there being any evidence at all of impairment to drive.

That is not the intention of Parliament. Indeed, that intention has been expressly disclaimed by the Government in Committee, and I presume here also. The argument in favour of the Amendment is that it has been put down as an additional safeguard. It may not be necessary. It may be that the courts will construe "shall have regard" simply as meaning that evidence of that kind may be taken into account but will not be treated as constituting the offence. If that happens, then the proviso becomes unnecessary, but can it do any harm? Is it not a good idea, if that is the agreed intention of all of us, to put the proviso in the Bill to make sure that nothing but that is the result, in view of our experience with the remarkable development of phrases such as "special reasons" in road traffic legislation?

That is the argument, which was fairly generally, but not universally accepted in Committee, and which seemed to be accepted by the Government. With all respect to the purists in these matters, I think that a proviso put in to make sure is not a bad idea when we are launching a brand-new experiment in the law. I hope that even at this late hour the Government will change their mind back to where it was a fortnight ago and will accept the Amendment

Dr. Alan Thompson (Dunfermline Burghs)

It seems to me that implicit in the arguments of hon. Members opposite is the idea of somebody drunk in charge of a car, spectacularly drunk, recognisably drunk by the jury and by the doctors. The argument in the minds of my hon. Friend the Member for Lincoln (Mr. Taverne) and others is based on the lesser charge—not drunk in the Harry Lauder sense of a man with a red nose staggering about the street, but a man with impaired ability. That is the more subtle thing to be checked rather than the dramatic and spectacular example of the man who is drunk in charge.

It is the problem of the impairment of ability, on which so much research has been done by Professor Drew and others, which seems to argue against the views of hon. Members opposite. It has bean said that the effects of alcohol differ from person to person. They differ from person to person in the sense of our recognising people as being drunk, but a good deal of research has shown thai they they do not differ from person to person in the impairing of certain small and marginal reactions. Professor Drew, in his controlled experiments, showed that almost everybody had impairment in muscular responses and in reaction times. There was less distinction in vision, hearing and touch, but those skills which are important to complex decisions, required when in a traffic jam or in avoiding an accident, are affected in everybody by the content of alcohol in the blood.

Obviously, the effect on the reaction depends to some extent on the concentration of alcohol; the more alcohol, the more impairment. But it also depends on the complexity of the decision. It is precisely in this situation, when a task becomes complex, for example, in avoiding a child who runs across the road, or in a difficult situation in a traffic jam, that the major hazard arises to public safety. It is perhaps true that some of our simple reactions are improved by alcohol. For instance, we see a dim light if we are drunk which we cannot always see when we are sober. We can sometimes hear voices more subtly when drunk than when sober. I am quoting the opinion of experts. The experts have found that one's knees jerk more rapidly in response to stimuli when one is drunk.

But as soon as we consider the more complicated responses everybody is adversely affected by alcohol. If we shine a light on someone to test his reactions, a drunken man may respond better than a sober man. But if we say, "Press a pedal if a red light shines", or "Press a pedal one minute after it shines", or "Press an accelerator pedal if a green light shines", we are introducing choice into the situation, and then everybody is affected adversely by the content of alcohol in the blood. In other words, as soon as we pass from simple to complicated responses, from simple reaction to choice or judgment, everybody's choice or judgment is adversely affected.

11.0 p.m.

I accept the point that some hardened drinkers might be very minimally affected in choice or judgment, but they are still affected. Their judgment might be affected in such a way that a clever lawyer, bringing a lot of other evidence before a jury partly composed of sympathetic motorists, might get the defendant off. I am sure that all hon. Members have been flooded as much as I have been by literature from various research institutions. The view of all the experts is that what alcohol affects is the central nervous system. By affecting that system it affects these elements of choice and judgment. This can be vary serious. When a small child runs across the road it does not matter how minimally the judgment is affected. I ask hon. Members to bear that in mind.

The further problem in this whole question is that offenders under the Clause are not the traditional criminals. They are law-abiding people—a company director, or a trade union official, or even an hon. Member of this House who has had too much to drink. They are not in the professional criminal classes and, therefore, there is tendency to require a lot of evidence to convict thorn. This is not our view. We do not think that there should be a lot of evidence to convict them. On matters so crucial to road safety, an objective scientific test, whether of breath, urine or blood, should be brought to the fore of our legislation. Law-abiding citizens, who do not burgle, commit murder or any other crime must know in advance that this crime of drinking when in charge of a car is a crime and is just as reprehensible as any other of the crimes in our calendar.

Mr. Marsh

Would my hon. Friend apply this just as strictly to drunken pedestrians?

Dr. Thompson

Perhaps, but that is not what we are discussing.

Mr. Ronald Bell

Is the hon. Member saying that amateur criminals should be convicted on a lower level of proof than professional criminals? That seems to be the burden of his argument.

Dr. Thompson

I am making the point that there is a tolerance by juries. Statistics show that where a sheriff or a magistrate convicts, he convicts more closely on the evidence whereas with the jury there is an element of sympathy, because juries often look round for reasons not to convict and a defence counsel will say, "We all do this all the time. These are rather unimportant sins". I am trying to tighten the provisions to obviate this evasion and to create the impression among members of the public that if they commit this offence they run up against the full rigour of the law.

The Joint Under-Secretary of State for the Home Department (Mr. Charles Fletcher-Cooke)

No one is sorrier than I am that my right hon. and learned Friend 'the Member for Huntingdonshire (Mr. Renton) is not here to answer the debate, not only because I spent over a year working very closely with him, but also because he worked very closely on this Bill, particularly in Committee and, I think, won golden opinions throughout. Since reference has been made to undertakings which he gave I might repeat their terms.

As I think my hon. Friend the Member for Buckinghamshire, South (Mr. Ronald Bell) said, the undertaking which he gave to reconsider this matter was in no more definite terms than these: … if my hon. Friend should decide not to move the Amendment I would give an undertaking to consider the matter on Report in the hope—and it can only be a hope at this moment for reasons which I shall explain —that I may put down a Government Amendment on Report. The hope is not fulfilled, but I do not think that the undertaking is breached.

My right horn, and learned Friend gave another undertaking in very definite terms that there would be no spot checks in the way my hon. Friend the Member for Twickenham (Mr. Gresham Cooke) fears. He said: As I told the Committee earlier, there is no question of spot checks being taken with breath-testing instruments. If any hon. Member has fears about it, I can give an assurance that that is not a practice which will arise. We should not countenance it."— [OFFICIAL REPORT, Standing Committee E, 15th May, 1962; c. 148–68.] That is about as firm an undertaking as one could reasonably ask for…

Mr. Gresham Cooke

And the Minister of State also said: It is for those reasons that I should like to consider the Amendment further, for the weight of opinion in the Committee has been such that I should do so and I hope, therefore, that my hon. Friend will accept that explanation."—[OFFICIAL REPORT, Standing Committee E, 15th May, 1962; c. 170.]

Mr. Fletcher-Cooke

I accept that, and my right hon. and learned Friend did, of course, consider it extremely carefully, along with my right hon. Friend, and came to the conclusion that it was not practicable to include an Amendment in the sense suggested by my hon. Friends tonight.

The chief burden of their complaint is that there is insufficient emphasis placed on the need to corroborate the instrument, the breathalyser, but, under the law as it is in the Bill, it is for the courts to determine whether the evidence in a particular case justifies an accused being convicted. The Bill does not, in that respect, make any innovation or difference. If the Bill made it an offence for a person to drive with more than a prescribed level or proportion of alcohol in the blood, the position would be different, and there might be substance in my hon. Friend's fears, but the Bill does not do that. Neither the amount of evidence nor the type of evidence which would justify conviction has been varied, and 'the Government are content to trust the juries in the courts to determine the law in the future as they have in the past, in the way my hon. Friend the Member for Rudslip-Northwood (Mr. Crowder) emphasised.

It may be argued that even if these assumptions are not justified, there would be no objection to inserting words which would, make it clear that a driver could not be convicted solely on the evidence of an alcohol test alone—that was the ex abundi caudelia argument—as it has been called—put forward by my hon. Friend the Member for Buckinghamshire, South and there are other objections of a general nature to such a course.

It is for the courts to determine in a particular case whether the evidence justifies a verdict that an offence under Section 6 of the 1960 Act caused by un-fitness to drive through drink or drugs has been committed. It is for the court to determine the weight to be attached to any particular evidence, including breathalyser evidence, and to determine whether the evidence of the prosecution justifies a conviction. It is inconsistent with the principles of English law of evidence in criminal cases to lay down in a Statute the amount of evidence required for conviction.

It is true that in certain statutes the law draws attention to the desirability of the evidence of potentially unreliable witnesses requiring corroboration in certain cases; as in the case of accomplices, or children of tender years. The Amendment would not be aimed at determining the alcohol test, but would require the inference to be drawn from that test to be supplemented by additional and independent evidence. That would be a departure from precedent. The Government have given careful consideration to the Amendment, but they are confident that the accused is not going to be prejudiced under the Bill as it stands, and they see decisive objections to the inclusion of words on the lines of the Amendment. I therefore hope that my hon. Friends will find it possible to withdraw the Amendment.

Amendment negatived.

Mr. Strauss

I beg to move, That further consideration of the Bill, as amended be adjourned. I move this Motion to find out what the Government have in mind about the remainder of Report stage. We have made very considerable progress today, but we still have a great deal to do. There are various highly controversial matters which have not yet been considered by the House. When I asked the Leader of the House, last Thursday, whether he really thought that it was possible to deal with Report and Third Reading in one day, he said that we would see how we got on but that he did not intend to ask the House to sit late.

If we are to deal with the remainder of the Report stage and with the Third Reading tonight, we shall obviously have to sit very late indeed. I therefore hope that the Government will agree to adjourn now and continue with the Bill on another day. I hope that the Minister of Transport will be able to give us information on this point which will be acceptable to both sides of the House.

Mr. Marples

Being Minister of Transport, I would not have said that we have made a considerable amount of progress, but a certain amount of progress: [HON. MEMBERS: "There is a speed limit".] But it has been enforced strictly. The contributions which have been made from both sides of the House have been made in all sincerity and I do not think that there has been any of what I would call filibustering, or time wasting, by any hon. Member who has spoken. Therefore, I have reason to hope that if we did adjourn now all the remaining Amendments plus the Third Reading could be taken in half a day of the Government's time.

I think that I am right in saying that that has been agreed through the usual channels. Some hon. Members refer to them differently, but I believe that we could get the remainder of this business through in half a day. If we could do that, I would agree to the Motion.

Question put and agreed to.

Bill, as amended (in the Standing Committee and on recommittal), to be further considered Tomorrow.