HL Deb 05 June 1961 vol 231 cc967-87

Amendments reported (according to Order).

Clause 2:

Evidence on charge of unfitness to drive

2.—(1) In any proceedings for an offence under the said section six, the court shall have regard to any evidence which may be given of the proportion or quantity of alcohol or of any drug which was contained in the blood or present in the body of the accused, as ascertained by analysis or measurement of a specimen of blood taken from him with his consent in the presence of a medical practitioner, or of urine or breath provided by him, at any material time; and if it is proved that the accused, when so requested at any such time, refused to consent to the taking of or to provide a specimen for analysis or measurement, his refusal may, unless reasonable cause therefor is shown, be treated as supporting any evidence given on behalf of the prosecution, or as rebutting any evidence given on behalf of the defence, with respect to his condition at that time.

2.54 p.m.

THE EARL OF DUNDEE moved in subsection (1) after the first "shall" to insert: (subject to subsection (4) of this section)

The noble Earl said: My Lords, in Committee on April 27 the noble Lord, Lord Taylor moved two Amendments which he suggested were connected with each other. The first one proposed that the Secretary of State shall make regulations prescribing the methods of collection of specimens of breath, blood and urine.

I said that the Government would consider this. The noble Lord, Lord Taylor, at that moment was the only occupant of the Benches opposite, but he was encouraged by some of my noble friends on this side of the House not to be content with Government consideration but to press the Amendment to a Division which was carried by your Lordships. In spite of this, the Government are still considering the case which was put by the noble Lord, Lord Taylor, on that first Amendment and it may be necessary at a later stage to move a Government Amendment to take out subsection (4), but, in view of the fact that it was rather peremptorily decided in the Division Lobby, I think it better for me at this stage of the Bill to say nothing further about it.

But the second Amendment, which the noble Lord, Lord Taylor, said was consequential on the first, although it was not strictly consequential, was that specimens of blood and urine in prescrbed containers shall be offered to the accused person. That Amendment I said I would accept in principle, and the noble Lord was good enough to say that he would agree to that, and he withdrew the Amendment. The Amendment which I now move is to give effect to the undertaking which I then gave. The only way in which it differs from the Committee Amendment put down by the noble Lord, Lord Taylor, is that it provides that the accused should be supplied with a specimen of blood or urine only if he asks for it and that the specimen should be so supplied in a prescribed container only if the accused so requires. I think it is reasonable to provide that the accused person should ask for a sample if he wants one, because otherwise, if the police were required to offer specimens of blood and urine to all accused persons whether they asked for them or not, the police might have to ensure that they could afterwards prove that an offer had been made in every case where the accused had not accepted the offer, in case the accused later alleged that the offer had never been made. Therefore, I think your Lordships will agree that it is reasonable to provide that it should be supplied to the accused person if he asks for it. I beg to move.

Amendment moved— Page 1, line 12, after ("shall") insert ("(subject to subsection (4) of this section)"). —(The Earl of Dundee.)

LORD LATHAM

My Lords, my noble friend Lord Taylor has asked me to express his regrets that he is unable to be in his place at this hour of the sitting. He also authorises me to say that, by and large, the Amendment now proposed meets the points that he had in mind, and he would like to express his appreciation of what has been done both by the noble Earl and by the noble Lord, Lord Chesham.

On Question, Amendment agreed to.

THE EARL OF DUNDEE

My Lords, on the Committee stage I agreed to accept an Amendment moved by the noble Lord, Lord Teynham to the effect that the samples of blood, urine, et cetera, taken from an accused person, should be taken in the presence of a medical practitioner. That Amendment was agreed to and it is now in the Bill as it stands at present. After I said it would be accepted the noble Lord, Lord Silkin said [OFFICIAL REPORT, Vol. 230 (No.71), col. 999]: Before the noble Earl is so obliging, does this mean that even where there is a medical practitioner carrying out the test there would have to be another medical practitioner present? I replied: Certainly not". Lord Silkin said: It could mean that. The noble Earl will no doubt look at it again. This Amendment, which leaves out "in the presence of" and inserts the word "by", is intended to meet that possible objection. I beg to move.

Amendment moved— Page 1, line 16, leave out ("in the presence of") and insert ("by").—(The Earl of Dundee.)

On Question, Amendment agreed to.

2.59 p.m.

LORD AIREDALE moved, in subsection (1), to leave out all words after the first "time", and to substitute: and the court may further have regard to any refusal of the accused without reasonable cause to consent to the taking of, or to provide, a specimen for analysis or measurement".

The noble Lord said: The purpose of this Amendment is to obviate the expression which appears in the latter part of subsection (1) that refusal to provide a specimen for analysis may be treated as supporting the prosecution or rebutting the defence. In my submission, it is not for Parliament to teach the courts how they are to treat particular pieces of evidence. It is much better, surely, to leave the courts free to treat the evidence before them in the only proper manner. Surely they may be safely left to discharge their duty in the proper way. To seek by Act of Parliament to tell the courts that this particular evidence is to be treated in this particular way smacks, in my opinion, of what the noble Lord, Lord Molson, called, in another connection, grandmotherly legislation.

No doubt it is perfectly in order and desirable in a particular case that Parliament shall say that such-and-such evidence shall be admissible; and my Amendment seeks to do that in this case. It says: "… the court may … have regard to any refusal of the accused … to consent to the taking of … a specimen for analysis …. The Amendment allows the court to "have regard to" that evidence, but leaves the court free to treat the evidence in the only proper manner in which it is to be treated; and in that way the Statute would not be seeking to tell the court how they are to treat the evidence. I am authorised to say that the noble Lord, Lord Douglas of Barloch, would have spoken in favour of this Amendment had he been able to be in his place this afternoon. I beg to move.

Amendment moved— Page 1, line 18, leave out from ("time") to the end of line 24, and insert the said new words.—(Lord Airedale.)

BARONESS SUMMERSKILL

My Lords, may I say one word before the noble Lord, Lord Conesford, and ask the noble Lord, Lord Airedale, to consider this point? This afternoon he has agreed to the Report stage of the Affiliation Proceedings (Blood Tests) Bill, which contained a principle similar to this. Why is it, therefore, that at this stage he objects to the same principle being embodied in this Bill?

LORD AIREDALE

Per incuriam.

THE LORD PRESIDENT OF THE COUNCIL AND MINISTER FOR SCIENCE (VISCOUNT HAILSHAM)

What does that mean?

LORD SILKIN

My Lords, when I first met this Amendment I thought that the noble Lord was trying merely to improve the language of the clause without affecting its meaning, but as he explained it I see that he really wishes to whittle the thing down. He wants the court to take into consideration the fact that the person has refused to allow a medical examination. The clause as it stands says that that is to be regarded as at any rate prima facie evidence that the person is guilty. I think that this is the clear issue between us. I hope that the House, subject to what I shall have to say in a moment about compulsory tests, will accept the view that, if the tests are not to be compulsory, a refusal without good ground is to be treated by the court as prima facie evidence of the guilt of the person, subject, of course, to all the other circumstances of the case.

LORD CONESFORD

My Lords, I cannot think that this Amendment is necessary for any of the reasons suggested by the noble Lord, Lord Airedale, who moved it. So far as I can see, in the words as they at present stand in the Bill there is nothing offensive at all to the court. It does not say that this evidence shall be conclusive; it says simply that the refusal may be treated as supporting any evidence, and then it states the point on which evidence of refusal is relevant. If the language of the Amendment were adopted it would not be at all clear what the relevance of this evidence would be. If the evidence is produced it must be produced as tending to show something. The Bill as it stands shows what makes the evidence relevant, and it does it in a way, it seems to me, which in no way prejudices the traditional view we take of the proper function of the court. I think the effect of the Amendment is this. There is a chance that, if the Amendment were adopted, after a time the court would come to the conclusion on the matter being raised and argued, and possibly going to appeal, that the words meant precisely what is in the Bill now; but if they did not, what they meant would be wholly obscure. The Bill as it stands shows clearly what evidence shall be relevant, and in no way binds the court to treat the thing as conclusive, because the words are "may be treated". I hope that the Government will abide by the words at present in the Bill.

VISCOUNT HAILSHAM

My Lords, I was invited to look at this question again on the Committee stage. We have done so, but with the result that we felt our drafting was as good as it could be made and ought not to be altered. The speech which T should have made to the noble Lord, Lord Airedale, has in fact been made—and put rather better—by my noble and learned friend Lord Conesford, and therefore I shall not trouble the House by repeating it. I think that the noble Lord, Lord Airedale, is make a mistake in saying that we are trying to dictate to the courts or instruct the courts as to how they should treat this evidence. We are stating what the courts may do in order to remove any possibility of doubt and pointing out that the evidence is relevant.

I think that if the noble Lord looks at the phrasing again he will see that all that has been done is to make it clear that the courts, notwithstanding the fact that submission to a test, as the Bill at present stands, is voluntary, may treat this evidence in this way; I have heard doubts—not shared, I may say, by me—expressed as to whether, if the test was truly voluntary, the courts could look at a refusal although it was unreasonable. We thought it was fair to make it plain beyond peradventure. The only effect, I think, of the Amendment of the noble Lord, Lord Airedale, would be, as my noble and learned friend said, to render obscure what the clause meant. But if it means anything, it is a slightly more mealy-mouthed way of saying what we have put more plainly into the Bill.

LORD AIREDALE

My Lords, I am obliged to the noble Lords who have spoken for what they have said. It is quite clear that noble Lords, on the whole, are against me. Accordingly, I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

3.9 p.m.

LORD CHESHAM moved, in subsection (1), after "requested" to insert "by a constable". The noble Lord said: My Lords, on Committee stage my noble friends Lord Teynham and Lord Somers moved a similar Amendment to this one. The object of their Amendment was to ensure that a request to provide a specimen for a chemical test was not made by anyone other than a policeman. I said at the time that I should like to look at it again with a view to putting down an Amendment on Report; and, my Lords, this is my Amendment. I hope that, in the form in which I have put it down, it will meet the views of the noble Lords concerned and of all noble Lords. It is almost exactly the same as that put down by my noble friend Lord Somers, but it uses the more usual word "constable", which is already taken to include a policeman of any rank.

I think it unlikely that the police will want to request a sample anywhere other than at a police station, but I should prefer not to have in the words suggested by my noble friend Lord Teynham, because of the possibility that a sample might be requested at a hospital. Indeed, in due course, with the possible future development of the breathalyser, there would seem no reason why it should not be used on the spot. I mentioned on Committee stage the possibility that the request might be made by a doctor or by a police matron, who would not be covered by the term; but, on reflection, I do not think that that is more than a rather remote contingency and it seems quite unnecessary to provide for it. I feel that, in almost any circumstances when a request for a sample is likely to be made, a policeman will probably be present; in which case, if the request was made by a doctor and was refused, the policeman could formally repeat it. Therefore, my Lords, I think that I this proviso that the police only should request samples is a reasonable one. I hope your Lordships will think so, too, and that this Amendment will be accepted. I beg to move.

Amendment moved— Page 1, line 19, after ("requested") insert ("by a constable").—(Lord Chesham.)

LORD TEYNHAM

I am very grateful to the noble Lord for this proposed Amendment, which I think meets the case.

On Question, Amendment agreed to.

3.12 p.m.

LORD SILKIN moved, after subsection (1) to insert: () If the accused refuses without reasonable cause shown to consent to the taking of, or to provide, a specimen for analysis or measurement as provided in subsection (1) of this section, he shall be guilty of an offence and shall be liable on summary conviction to a fine not exceeding one hundred pounds.

The noble Lord said: My Lords, this Amendment is a joint effort by myself and the noble Lord, Lord Elton, to put down something which would, we think, be workable to meet the case of those who feel that the tests should be compulsory and that, if a person does not agree to submit to a test, then he should be subject to a penalty. Noble Lords will remember that this point was fully discussed on Second Reading, and a number of noble Lords—a fairly high proportion of those who discussed this question at all—took the view that they did not like Clause 2, particularly as it stood: they had some doubts about the effect of a person refusing a voluntary examination, and they felt that, on the whole, it would be better that the examination should be compulsory.

I share that view, as I have said all along, subject to one point, which is that I must be satisfied that the tests were fairly reliable. I am not sure that I am entirely satisfied now; but if any notice is to be taken of a voluntary test the same question arises. If the results of this test are not reliable, it is just as dangerous to take it into account as in the case of a compulsory test. Noble Lords on the Front Bench have taken rather different views about the reliability of these tests. Some have been more certain than others; and I think my noble friend Lord Taylor, perhaps, has been most certain of all. He has said that the tests really are reliable and can be depended upon as fair evidence of the amount of alcohol in the blood or in the system, and it is on that assumption that I am moving this Amendment. If the noble and learned Viscount who I believe is to reply tells me that these tests are not reliable, or are not substantially reliable, then I shall have no justification for asking that they should be compulsory.

The case has been so full argued, both on Second Reading and on Committee stage, that I do not think I need argue it at any length this afternoon. Apart from the unsatisfactory drafting of the Amendment moved in Committee, the noble and learned Viscount gave two reasons why the principle could not be accepted. One was that it rather assumed that the facilities for testing were universal and were available all over the country, whereas that was not the case. He also went on to say that some of the equipment necessary was not even available in this country at all, and that it was perhaps premature to make the test compulsory. I would ask, if that is true, is it not equally premature to refer to voluntary tests, and to set up the whole paraphernalia of voluntary tests in this clause, when you have neither the equipment nor the facilities for carrying them out? If the noble and learned Viscount were to say that in answer to my Amendment, he would do far better to accept the Amendment of the noble Lord, Lord Teynham, and delete the clause, and to put in something else which would hereafter enable the Government, if they so desired, to make provision by Regulation for the carrying out of tests, whether they be voluntary or compulsory. On the whole, I think that that might be a more satisfactory course.

The noble and learned Viscount raised a second objection to the Amendment moved in Committee. He said that compulsory testing was not practicable because, as the Amendment then stood, it would involve using force and compelling people to submit to having their blood or urine taken, or their breath tested. I suppose some tests would be much easier than others; but at any rate I can see the objection to forcing people to give their blood, and possibly holding them down violently. I think the noble and learned Viscount suggested that that might be necessary in some cases. He himself suggested that it would be better to impose a penalty in case of refusal, and that is the way in which the present Amendment has been drawn. I think that, subject to the test being a satisfactory one, it should be universal and compulsory. I think it is the only way.

The noble Lord, Lord Airedale, although I did not agree with his Amendment, was really protesting against something which is inherently unsatisfactory: this suggestion in the Bill that a person who does not agree to be tested is for all practical purposes (I know that the language of the clause does not go as far as that; but it means for all practical purposes) to be regarded as guilty. At least, the onus is shifted so that he has to prove his innocence. The noble and learned Viscount shakes his head, but we are dealing with lay benches all over the country, and a lay bench, looking at this clause, will say to themselves, "Here is this man; he has been wobbling all over the place; he smells of drink; his speech is a little thick and incoherent; he refuses to be tested and gives no adequate reason for it. Of course he is guilty." And the last straw would be his refusal to be tested. It is invidious, and I think the most satisfactory way out of it is to make the test universal and compulsory. For those reasons, I beg to move this Amendment. But I will say to the noble Lord, Lord Teynham, that if he is prepared to take his Amendment to a Division, I shall be happy to support it. I beg to move.

Amendment moved— Page 1, line 24, at end, insert the said subsection.—(Lord Silkin.)

3.20 p.m.

LORD ELTON

My Lords, the thought behind this Amendment, as I think my noble friend obviously has made clear, is that we, I think in company with a considerable number of your Lordships, are anxious that there should be available to courts the best and most reliable evidence possible as to whether a suspect was or was not in fact guilty. Some of us tried to bring that about during the Committee stage by moving for a compulsory test. As I understood it, two main objections to a compulsory test were put forward by Government spokesmen, in particular by the noble Viscount who leads the House. The first was that a compulsory blood test might amount to something like a personal assault. I could not help thinking that there were some somewhat imaginative pictures of people—screaming victims—being held down. Many of us have been blood donors, and I am sure we have never seen anything of that sort during that process.

VISCOUNT HAILSHAM

My Lords, my noble friend does not overlook the fact that he is dealing with people who are not entirely sober.

LORD ELTON

Yes; I make allowance for that. I admit that one might get one in a thousand who had to be held down, but let us waive that point. The objection is that it was, or might be, regarded as involving something like an assault. The first object of this Amendment is to get round that difficulty. In Norway they get round it by one of their latest Acts, which I think was brought in last year and which provides that a person who refuses to co-operate with the doctor or to undergo a medical inspection automatically loes his driving licence for two years. If within five years of the first offence he is again found guilty of the same offence of refusing to undergo an inspection when suspected of being drunk in charge of a car, then he loses his licence permanently. I should have preferred something of that sort. But this Amendment, although it does not go as far as that, does put some pressure on the suspect to submit to one or other of the tests which the Government propound in this Bill.

There was, however, another objection, and one which interested me a good deal. It was put forward by the noble Viscount, and I am not sure I understood it. When I moved my Amendment for a compulsory test, the noble Viscount said [OFFICIAL REPORT, VOL 230 (No. 71), col. 982]: There simply is not the apparatus available, at the different hours of the night and day at which suspects are taken in, … All the noble Lord "— that is myself— is providing by this particular Amendment is that the police cannot get a conviction in cases of this kind, even though the clinical evidence and the evidence of behaviour is absolutely overwhelming, unless one of these scientific tests is taken—"; and he pointed out that it could not always be taken, because the apparatus is not available. What I want to know is: was not the noble Viscount then thinking in terms solely of the blood test? That objection may be valid in respect of blood tests—I say "may be", because they have had blood tests in Norway for more than 30 years; and anyone who has driven motor cars in Norway, as I have scores of times, knows that the distance between police stations may well be up to seven hours of driving along roads bordered by unguarded precipices. Yet they have blood tests in Norway, and I believe the explanation of it is that the police have the right to take the suspect not to a police station but to a doctor, and a doctor may perhaps be more readily available than a police station in that country, and I should have thought might be available in this country also. However, let us waive the blood test point.

The point I really wish to make is that here we have three possible tests put forward in the Bill. The urine test requires no apparatus whatever, except the bottle suitably prepared which can subsequently be despatched to a registered police laboratory. How can it be said, in a country which is proposing to advance with space exploration, that it is beyond the capacity of our administrators and scientists to provide that bottles should be available in every police station? How can it be said, in other words, that the test is not available? As regards the urine test, I am sorry that my noble friend Lord Silkin again reverted to the possibility that the test is not reliable, because I should have thought that anyone who had studied the Drew Report or the B.M.A. Report would have been persuaded that it is infinitely more reliable than any of our present methods, and is quite reliable enough for us to do what the Government are in fact proposing to do in this Bill—that is, to make it one of the means of testing the drunkenness of a suspect.

On May 11, as was reported in several newspapers, the Association of Police Surgeons had its annual general meeting, and they sent to Mr. Marples a telegram in the course of which they said: Specimens of urine serve equally well, and may be obtained without risk. The noble Lord is, of course, aware that for some eighteen years in Glasgow urine tests have been the order of the day. They have been found perfectly satisfactory. The vast majority of persons who have been examined have agreed to the test. The authorities have accepted it as just and fair. Out of 522 persons proceeded against on this basis during the year 1957, which is the latest year for which I have any exact information, only 25 were acquitted. Out of 494, 457 were fined or sent to prison.

In effect, this Amendment is simply designed to put some pressure—pretty feeble pressure, I think, in view of the known reluctance of justices to impose the fines which they may impose—on suspects to submit themselves to this test. Once we dispose of the argument that these facilities are not available, surely we are brought up against the fact that the test is used in Glasgow, and has been used for eighteen years, with complete success. If it can be used with success, it surely brings about what we all want to bring about, which is that the best possible evidence as to guilt or innocence should be available to the courts.

LORD TEYNHAM

My Lords, I am certainly against this Amendment, which seems to me to bring in a form of compulsion. If the noble Viscount the Leader of the House will allow me to quote his words—if he is not going to quote them himself—may I say that I think they meet the case extremely well. He said on the Committee stage, on this same part of the clause [OFFICIAL REPORT, Vol. 230 (No. 71), col. 1007]: It is a reasonable compromise between severity, which would involve the compulsory test of the kind I have resisted, and laxness, which would allow anybody to refuse a test without that fact being immediately in evidence at the trial. I entirely agree with those words. Then the noble Lord, Lord Douglas of Barloch, who I do not think is in the House, went further and said that the intention of the clause, as I understand it, is simply to allow the fact of the man having been asked for a test, and his refusal to undergo it, to be given in evidence. Surely that is sufficient. I certainly agree entirely with all those words.

3.29 p.m.

LORD DERWENT

My Lords, I opposed this Amendment when it was moved during the last stage of the Bill on the ground that it created an entirely new offence hitherto unknown, and I so argued on that basis. I will not weary your Lordships by doing the same thing again, but if I may take the argument which was put forward by the noble Lord, Lord Silkin, in moving the Amendment, I should like to use the same basis against it. First of all, may I say that my noble friend Lord Elton argued a large part of his case not on the clause as it stands but on how it might stand; and he has come down to one of the three types of testing for which the clause is asking.

The noble Lord, Lord Silkin, said that he was against the whole clause and not pressing this Amendment because at the moment testing was unsatisfactory—I think that is a fair way of putting what he said. I propose to go back to the conference of police surgeons, mentioned by my noble friend Lord Elton, about which I had a question down to-day. These surgeons are experts who deal with drunken drivers and test them now. May I quote, instead of the one sentence given by my noble friend, the last two paragraphs of the telegram from the conference? I will run them into each other, though there are some words in between.

Withdrawal of blood for the purpose of estimating the concentration of alcohol in the tissues is undesirable. Specimens of urine serve equally well, and may be obtained without risk.… It was further agreed that apparatus at present available for the examination of the breath for estimation of the alcohol content is complex, and its results are not sufficiently reliable to be acceptable by a court. I put it to the noble Lord, Lord Silkin, that the situation which he described that these three tests are in an insufficiently advanced state to be acceptable—certainly does not apply. I would hope that he may seek to withdraw his Amendment and follow my noble friend Lord Teynham into the Lobby, if my noble friend divides the House on a later Amendment.

LORD CONESFORD

My Lords, I hope that Her Majesty's Government will not accept this Amendment. It is to be noticed that the two noble Lords in whose name the Amendment stands take precisely opposite views on the merits of the clause. The noble Lord, Lord Silkin, has indicated that if there is a Division on the Motion to leave out the clause, he would support its omission. On the other hand, the noble Lord, Lord Elton, likes the clause and desires to strengthen it. I think it is worth pointing out that the two noble Lords are entirely opposed to one another.

LORD SILKIN

My Lords, may I put the noble Lord right? There is not the conflict that he is making out. I am in favour of the principle of testing. I have some doubt whether it is sufficiently advanced and I only want this clause omitted and something else put in its place—that is, power to the Government, when they feel the time is ripe, to provide for testing by regulation. It really amounts to the same thing.

LORD CONESFORD

My Lords, if I in any way misinterpreted the noble Lord, I am glad that he has put me right. I certainly think that scientific knowledge has made sufficient advances amply to justify the clause which Her Majesty's Government have inserted in this Bill. Let me say at once that this Amendment has not quite the objections to it that the previous Amendment for compulsory testing had.

In my submission, the argument against the present Amendment is simply this. It is not useful to create a new criminal offence, if the creation of that offence is wholly unnecessary for the purpose in view. The fact that a refusal of test without reasonable cause can be given in evidence, as it can under the part of the clause which we have already passed, means that there is an effective pressure to undergo the test, if there is no reasonable cause for refusing it. For that reason, to make a criminal offence of the refusal is wholly unnecessary for the purpose which the Government have in mind.

It is also worth observing, though I do not profess to have examined all the legal provisions applicable in countries where such tests are used, that in many of them they find it effective to provide for these tests without creating a new criminal offence out of refusal. On an earlier stage, I ventured to give the example of one State in the United States which provided that consent to undergo a test should be presumed in a driver who applied for a licence and, if the test were refused, as in the Norwegian example which the noble Lord, Lord Elton mentioned, there is a sanction of taking away the licence. There are other methods which can be used, but the short point is that there is no necessity at all for a criminal offence to effect the purpose which the Government have in mind. And since the creation of a new criminal offence is unnecessary, it is also, on that ground, undesirable.

VISCOUNT BRENTFORD

My Lords, as your Lordships know, I dislike all the contents of this clause. Nevertheless, I sincerely hope that the Government will not accept the Amendment we are now considering, because to my mind it makes a complete mockery of any sort of justice that we may be seeking to insert into this statutory provision. As I understand it, Clause 2 (1) gives any person who is charged with an offence under this clause the right to refuse his consent to this particular form of test. The Amendment says, in effect, "Yes, but if he exercises this right, which Parliament has given, to refuse his consent to this test, he shall be fined up to £100." That does not seem to me to be carrying out justice in any way at all. I do not see how we can give a person the right to withdraw his consent and then, if he does so, make him liable to a criminal conviction.

3.37 p.m.

VISCOUNT HAILSHAM

My Lords, the Government cannot accept this Amendment, and once more I will try to give our reasons for saying, with my noble and learned friend, that it is a wholly confusing proposal, which would achieve nothing worth achieving. We decided, and the House endorsed our decision on Committee stage, after careful consideration, not to create a new offence of having a definite percentage of alcohol in the blood. If we had taken a contrary decision on that point, there might have been some value in compulsory tests. But we decided, at any rate in the present state of development, that these tests were valuable in conjunction with the other evidence—for example, eccentricities of driving and behaviour and other clinical symptoms—in ascertaining the truth about the quantity of alcohol consumed. For that purpose they are as adequate and as reliable as other tests ordinarily used as evidence in the criminal courts. They are not absolutely conclusive or foolproof, but they are perfectly adequate by the standards by which we judge our criminal procedure.

What we decided to do, therefore, was to allow the use of these tests—in fact, they are used at the moment in certain parts of the country for this purpose—and to provide for what their effect would be. We recognised that an unreasonable refusal would be one of the circumstances to which a court could look to draw a proper inference against an accused person in a proper case. That is the purpose for which we are using these tests and in that context they are valuable.

On Committee stage, I pointed out to my noble friend Lord Elton that it is not only unpracticable but undesirable to insist upon a test in every case. Clinical evidence may be quite sufficient without it; and there may be reasons why, in a particular case, a test, whether of urine, of blood or of breath, cannot be made available at the right moment. Urine is easily the most commonly available, but there are subjects who find it impossible to produce a sample, and there may be difficulty in collecting from women when the only persons present are men. I am not as satisfied as my noble friend appears to be that the mere provision of some kind of bottle is good enough in order to satisfy the requirements of the test.

The points about universality that I made on Committee stage do not really arise in relation to this particular Amendment. The arguments that I presented were designed to meet a particular Amendment which my noble friend Lord Elton put forward on Committee stage, and which was not persisted in. I am bound to say that I do not understand the argument of the noble Lord, Lord Silkin, that either these tests ought to be applied in every case, whether necessary or not, or they should not be applied in any case. That seems to me to be a false dilemma. They are useful in probably a wider range of cases than they are used in at present, but I should not think that they ought to be used everywhere, or not at all. That would prevent a number of convictions where the evidence amply supported a conviction without any test.

The reasons we have felt impelled to accept against a compulsory test are, I should have thought, amply sufficient. First of all, there is the question of public opinion. I do not suppose that anybody who lived through the Committee stage in this House—and, indeed, nobody who has listened to the three or four speeches which have come from my noble friend in this House during this short debate—could fail to realise that we must have public opinion behind us if we are to carry confidence in the use of these tests by the police. I would say that it is plain beyond peradventure that, if we were to make it an offence to refuse to submit to a test, we should not have public opinion behind us to that degree necessary in the light of the speeches that we have heard in this House, which represent wide and powerful opinions outside this House.

But the ultimate and, to my mind, conclusive answer against the Amendment is that given by my noble and learned friend Lord Conesford. There was a modiæval philosopher who used the latin tag called "Occam's Razor": Entia non sunt multiplicanda praeter necessitatem. I should like an amendment of "Occam's Razor" to say: Crimina non sunt multiplicanda praeter necessitatem. The only effect of this Amendment is to create a new crime—it does not do anything else—and before we create a new crime we should at least discuss whether any advantage is obtained by anybody if we do so.

The answer, as my noble and learned friend pointed out, is that, in the context of the way in which these tests are being used, there is no advantage in creating a new crime, for this reason: that we have decided to use the tests as an aid to discovering whether a man is fit to drive, and to use a refusal as one of the relevant circumstances to be taken into account if he does in fact refuse. One of two circumstances must be true: either you could prove the substantive offence of being unfit to drive by reason of alcohol in the light of the refusal, as we propose to do, in which case nothing additional is gained by adding refusal as a second charge to the charge sheet, because the more serious offence will be proved; or alternatively, you cannot, in which case any court would be driven to assume that the accused person was innocent of the substantive offence, because he will not have been proved guilty, despite his refusal, in which case I cannot conceive of any court of just-minded magistrates imposing any significant penalty under the new clause. In other words, it is fundamentally a confused state of reasoning which has led my noble friend Lord Elton and the noble Lord, Lord Silkin, to propose compulsion in this particular case. For that reason, I would urge the House not to accept the Amendment.

3.45 p.m.

THE EARL OF ARRAN

My Lords, I do not like this Amendment. I think it goes too far. But since I have moved in the direction of the spirit behind it, this might be a good moment—

VISCOUNT HAILSHAM

I think I can possibly guess some part of what my noble friend is going to say, and I expect he would wish to speak on my noble friend Lord Teynham's Amendment, which has not yet been moved. I am not sure whether he would not find that a more appropriate occasion.

THE EARL OF ARRAN

I do not know whether it is appropriate for me to say so, but I have to get away.

VISCOUNT HAILSHAM

By all means; I am sorry.

THE EARL OF ARRAN

Your Lordships may remember that in Committee I suggested that these tests were somewhat misleading, and I accepted a challenge from the noble Viscount the Leader of the House to undergo further tests. These tests have now been made. I must confess that at the beginning there was some little dispute between the noble Viscount and myself as to what form the alcohol should take. The noble Viscount suggested, rather austerely, I thought, neat alcohol; but I pointed out to him that the most vicious drunkard would hardly ask for a double surgical spirit and soda. The noble Viscount, Lord Hailsham, smartly countered by saying that with a slice of lemon it tasted quite delicious.

The tests were taken at Scotland Yard, with a doctor from the Medical Research Council in attendance. Here I must stress the extreme courtesy of the police. What I thought would be a minor ordeal turned out to be the most pleasant and informative occasion. Samples were also given to the biochemist who took the previous test. I thought, however, that I should not rest content with purely chemical tests. Other noble Lords, and I myself, expressed concern in Committee about the undeniable fact that one man can absorb far greater quantities of alcohol than another without prejudice to his judgment. It therefore struck me as important that we should have not only evidence of the alcohol content in the system, but also a report from those present at my imbibings on the psychological reactions of the guinea pig and his general capacity or incapacity to drive. This report I also have. I propose, first of all, to give quite briefly the results of the biochemical tests, and I will then follow up with the witnesses' observation of my general condition. I hope, incidentally, that I shall be forgiven if I seem to be reading a great part of this speech, but we finished our tests and discussions only last night.

For the tests I had what I had before, a quarter bottle of whisky, having abstained from drinking alcohol for the previous twenty hours. The results, both from the police laboratory and from the biochemist, were in the last analysis—and I repeat in the last analysis—almost identical. But there was this difference: that when I had drunk nothing, the police reading was 00, but that from my friend the biochemist was 9. That is an important difference, your Lordships may say; and, indeed, it is. But the point is that the methods of distillation are different. In one, with no alcohol in the system, you get a zero reading straight away; and in the other you get a plus figure resulting from what is called the blank. But that figure is constant, and you subtract it automatically when you come to the final conclusion. Your Lordships may say that this makes a standard form of analysis desirable; and this may be so. But what matters is that the final results are the same.

My Lords, a biochemist attached to a hospital cannot afford to make mistakes. On his analysis may depend the life or death of human beings. And I am convinced that my friend does not make mistakes. I make this point most particularly, because in our earlier debate g noble Lord questioned his competence. I was sorry about this, and I would hope that the noble Lord in question would withdraw that remark. What we say in this House under privilege can be of deep consequence to individuals.

That point having been, I hope, satisfactorily cleared up, may I come to the second part of the Report, that which deals with my personal reactions to this large quantity of alcohol? On this the three observers are brief, but deeply informative. They say they were satisfied (1) that I showed evidence of being under the influence of alcohol, and (2), that in normal circumstances I should not be in any danger of being charged with being under the influence of alcohol to such an extent as to be incapable of having proper charge of a motor vehicle. Your Lordships might think that I am going to argue from this that it is safe for anyone to drive a motor car when having drunk a quarter of a bottle of whisky on an empty stomach. I am going to do no such thing. I am convinced that a young woman or a younger person, or someone less accustomed to alcohol than myself, would be quite unsafe after half that quantity.

What I am going to argue is that there is a possibility of injustice in these quasi-compulsory tests. You are going to penalise the man who is found after an accident to have large quantities of alcohol in his blood, though in fact he may be in full, or almost full possession of his faculties. You may let off a man or woman who, for the first time in his or her life, has had two double whiskies and is utterly incapable of driving, though the alcohol content in his blood may be small. For let us not deceive ourselves, juries and justices are going to be deeply impressed by these tests, and we can only hope that they will regard them as what they are—purely ancillary evidence.

I would say that in logic these tests cannot be defended. They may be factually and scientifically correct, but they do not take into consideration that most vital thing, human reaction and human element. My reason tells me that we should not have them. But, as I told your Lordships, I spent the day of the tests in Scotland Yard with people who know about death, accidental or contrived —policemen who, because of the grisly nature of their police duties, are not given to sentimentality. During the course of the day they told me much about road accidents, and they gave it as their confirmed view that drunken driving was one of the greatest single factors in road deaths to-day. I could not but be shocked and impressed. What finally settled it for me was when it was graphically pointed out that, had I seen the number of fine young bodies lying on the slab, mutilated and dead for no purpose, I should not only favour a statutory figure for the alcohol content of a driver's blood beyond which he should be declared incapable of driving, but I would demand that no one be allowed to drive if he had drunk any alcohol at all. An emotional argument if you like, my Lords, but from an unemotional man. And it convinced me. I think these tests may in the odd case lead to injustice, but they may save life and, therefore, I believe we must have them.

On Question, Amendment negatived.

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