HL Deb 28 November 1961 vol 235 cc1042-53

3.18 p.m.

Order of the Day for the House to be put into Committee read.

Moved, That the House do now resolve itself into Committee.—(Lord Chesham.)

On Question, Motion agreed to.

House in Committee accordingly.

[The LORD MERTHYR in the Chair.]

Clause 1:

Standard of unfitness to drive through drink, etc.

1. For the purposes of section six of the principal Act (which imposes penalties for driving, attempting to drive or being in charge of a motor vehicle while unfit to drive through drink or drugs) a person shall be taken to be unfit to drive if his ability to drive properly is for the time being impaired.

VISCOUNT BRENTFORD had given Notice of two Amendments, the first to leave out "properly", and the second to add at the end of the clause "to such an extent as to be likely to cause danger on the road". The noble Viscount said: I beg to move Amendment No. 1 on the Marshalled List. If it be to the pleasure of your Lordships, perhaps I could speak also to Amendment No. 2, as Amendment No. 1 and Amendment No. 2 hang entirely together. If I may refer to the effect of the Amendments, in the first place, they are in Clause 1. The first Amendment is to leave out the word "properly" from line 10 on page 1. The second Amendment is to insert additional words at the end of line 10, so that, if I may omit the words in brackets, the sentence would in fact read: For the purposes of section six of the principal Act … a person shall be taken to be unfit to drive if his ability to drive is for the time being impaired to such an extent as to be likely to cause danger on the road. I venture to put that before your Lordships so that you can obtain a complete picture.

I am very well aware indeed that this subject has previously been debated before your Lordships, and it is because of my realisation of that, and of the feeling that was expressed by your Lordships in the previous debate, that I have come to the attack on this question myself. I put it in that way because I did not on the last Road Traffic Bill take part in any debate on Clause 1. I am somewhat encouraged to reopen this matter by certain words which were used by my noble friend Lord Chesham during the Third Reading of the previous Bill, when he said that, if another place could not allocate time for the Bill, Her Majesty's Government would be able to study further the criticisms already made and introduce a new Bill based on that study.

This clause had considerable criticism in your Lordships' House, not least, may I say, from that very great authority on such a subject, my noble and learned friend Lord Denning. I am hopeful that the further consideration which the Government have given to those criticisms may lead my noble friend to express some sympathy for the Amendment which I am moving at the present time. I do not think that there is any dispute between us about the object this clause is trying to achieve—namely, to penalise a person who drives a car when drunk or under the influence of drink or drugs. The problem is to find the right words in which to express what we all seek to do. My submission is that this clause does not do it.

May I remind your Lordships of the recent history of the subject? Section 15 of the Road Traffic Act, 1930, created the offence (and, in passing, it strikes me as peculiar that it is Parliament that creates offences and citizens who commit them) of a person's being under the influence of drink or drugs to such an extent as to be incapable of having proper control of a vehicle. That, more or less, for better or worse, stood the test of time for about 30 years. Then the Government thought it might be improved upon and introduced a fresh definition under Section 6 of the Road Traffic Act, 1960. The offence created under that Act was driving or attempting to drive or being in charge of a motor vehicle whilst unfit to drive through drink or drugs. It will be seen that the expression, "proper control" has been dropped out. I think that that is significant, because Clause 1 of this Bill seeks to amend the definition I have just read by defining "unfit to drive" as being if the driver's ability to drive properly is for the time being impaired. Virtually what your Lordships are being asked to do is to go back to the 1930 Act and say whether what I think is a minor variation of phraseology to that Act is better. Frankly, I do not think that it will do. We are simply transferring a question of doubt from one series of words to another series of words.

There is great doubt now about what the offence really is. There is one school of thought, a legal school, which has been brought to my knowledge—it is not my own conception—and which says that under this clause it will be an offence to drive if there is any impairment of the ability to drive, whether or not the person concerned can drive properly. That seems to me to be something far and away beyond anything that the Government or any of your Lordships ever sought to put into the Bill at all. If one can drive properly, according to the common understanding of driving properly, whatever "properly" may be in legal definition, surely it cannot be an offence if one's driving is impaired. There are a great many benches and no few policemen who would claim that there are quite a number of motorists on the road who cannot drive properly, but whether or not the fact that they are unable to drive properly is because their ability to drive is impaired is a point which I think most benches would have very great difficulty in deciding.

The second way of construing these words, I am advised, is the way in which I think most of your Lordships would take them—namely, an offence is committed if the person's impairment to drive properly is through drink or drugs. If the impairment arises without drink or drugs, then the problem becomes exceedingly difficult, in the event of the second definition being held to be the right one. It would then appear that if someone's ability to drive was temporarily impaired at 11 o'clock in the morning, when no drink had been taken at all, but as a result of his having hiccoughs or something of that sort, he may be found to have committed an offence under this clause, as a result of which he would be convicted of committing an offence under Section 6 of the 1960 Act, which relates solely to driving when under the influence of drink. In these circumstances, I submit that the phraseology of this clause requires further consideration, if it has not already received this during the interval since it was previously before your Lordships' House.

One of the difficulties in construing the clause is defining the word "proper", the word which was dropped out of the 1930 definition, when a driver had to have his vehicle "under proper control". Now we are reinserting this word "proper" and I submit to your Lordships that it is going to be exceedingly difficult both for the police and the magistrates to arrive at any general understanding of what is proper driving in these circumstances. It is for that reason that I venture to submit to your Lordships an alternative, which may not be the best but which seems to be one which interprets your Lordships' meaning. This is the proposal that an offence shall be committed if a person is unfit to drive because his ability to drive is for the time being impaired to such an extent as to be likely to cause danger on the road. I mentioned this matter on Second Reading, when my wording was slightly different, and I was accused of having proposed words which would eliminate the possibility of a person's being charged if there was nobody else on the road except himself and he was a danger only to himself. I think that the words I propose in this Amendment overcome that difficulty. I assure my noble friend 'who is to reply for the Government that I am not in any way seeking to be obstructive in this matter. I am seeking to help the Government, and I think the whole motoring public, to achieve a practical solution to a problem which is exceedingly prevalent in all our minds and which we are very anxious to overcome.

Amendment moved— Page 1, line 10, leave out ("properly").— (Viscount Brentford.)

3.30 p.m.

VISCOUNT HAILSHAM

My noble friend, whose lucid explanation of his Amendment I can only praise, referred to a promise given by my noble friend Lord Chesham on the previous occasion that we would consider criticisms of the Bill made in Committee last time. None the less, I was a little surprised that he did not refer in greater detail to the course of the debate on this clause in Committee the last time. We resisted then an Amendment by the noble Lord, Lord Taylor, which would have had the effect of greatly increasing the liability of the motorist by inserting the words "in any degree" in our present definition; and we resisted an Amendment from the noble Lord, Lord Elton, who would have made a definite level of alcohol in the blood a criminal offence, again with a good deal of support from the Committee.

As a matter of fact, this particular Amendment also, with a variation in wording which is quite immaterial, was then proposed—although as my noble friend has quite rightly said he played no part in the debate. It was proposed by my noble friend Lord Teynham, who moved an Amendment to insert [OFFICIAL REPORT, Vol. 230 (No. 71), col. 970]: to such an extent as to be likely to cause danger to other road users, which I think is substantially the same. We were urged by the right reverend Prelate, the Lord Bishop of Chester, and from the Opposition side by the noble Earl, Lord Lucan, not to accept it; we were urged from behind us by the noble Lord, Lord Elton, not to accept it, and we were urged from an independent position by the noble Lord, Lord Amwell, not to accept it. When my noble friend Lord Teynham withdrew the Amendment, as he did, he did so in these words [col. 974]: … as I believe the general feeling of the Committee is against my Amendment, I beg leave to withdraw it. I find it a little difficult, therefore, to see how my noble friend should propose this Amendment this afternoon on the plea that the Government had undertaken, as they have, to consider the course of the discussion of the Bill on the previous occasion, because the only result which could have come from a consideration of what was said on this particular Amendment on the previous occasion would be to demonstrate that it was so unpopular with the Committee that it was withdrawn, on that ground, by my noble friend who proposed it.

I am bound to say that, having looked at it again, I have come to the conclusion that it is as objectionable now as it was then, and for the same reasons. The purpose of the new definition which is at present in Clause 1 is to make plain a situation which was considered to be unplain both under the terms of the 1930 Act and under the revised terms, to which my noble friend has drawn attention, of the 1960 Act. The original terms of the 1930 Act, so far as I remember them, were that the offence was committed if a person in charge of a vehicle or driving a vehicle was under the influence of drink or drugs to such an extent as to be incapable of exercising proper control of his vehicle. The new phraseology in the 1960 Act is "unfit to drive". Personally, I have never had any difficulty about either of those two definitions, and I think they mean the same thing. But those who have much better experience than I in exploring and administering this clause tell me, and the Government believe, that in actual practice, although magistrates with their acuter perception of such things find no difficulty, juries did, and still do, labour under the delusion that the word "incapable" in the first definition meant that the accused had to be drunk and incapable before he was convicted, and that the word "unfit" in the second definition implied a very high degree of incapability indeed.

It is for this reason that the new phraseology is introduced into Clause 1 of the Bill: that a person shall be taken to be unfit to drive if his ability to drive properly is for the time being impaired. This does not mean (and I say this with some degree of assurance, despite the fact that my noble and learned friend who normally occupies the Woolsack is sitting behind me) that his driving is impaired. The word which governs the sentence is "properly"; if his ability to drive properly is impaired. If he continues to be able to drive properly, the fact that he is not able to drive perfectly is immaterial. But if, in fact, by reason of drink or drugs, his ability to drive properly is impaired, the view of the Government is that he is committing an offence. This, in my view, has always been the law, and I can see no reason for accepting the view that these words are ambiguous or do not effect the improvement that I have tried to describe.

When I turn to the alternative version which is proposed by my noble friend, I am bound to say that I do not altogether accept the view, whatever the intention may have been, that the effect is the same as that which the Government and the House on the previous occasion desired to achieve, because my noble friend would insert the words, to such an extent as to be likely to cause danger on the road. Suppose a man is so drunk when in charge of a car that he cannot drive at all. I take it that he would not be committing an offence under this Amendment. How would we prove the offence? Let us face the actual realities of a prosecution if the Amendment were passed. It would be difficult, I think, to establish a case. The court would have to decide formally in each case whether the impairment was of such a kind that it would be likely to cause danger to other road users; and in addition to showing evidence on the question of impairment, one would need to have evidence of possible danger.

Our view is that a man should not be allowed to drive or to remain in charge of a vehicle if his ability to drive properly is impaired by drink or drugs. I find that quite simple. I find the alternative doubtful, difficult and unacceptable. No driver can be absolutely certain that he will not suddenly be faced with an unexpected situation which he will be unable or less able to cape with if he is driving under the influence of drink or drugs. The decision whether to drive or not is one that cannot be left to the individual. This is just the situation where a person's judgment of what the road conditions will be is likely to be less sound than if he were sober. Then, at the outset of the journey, conditions may seem to be safe, but he may well meet dangerous conditions which he cannot foresee. Have we to wait until those conditions exist before we can prosecute a person for the offence? My view is that this Amendment is not an improvement. Your Lordships examined the matter before, and were of the same opinion, and I would advise the Committee to remain of that opinion still.

On Question, Amendment negatived.

Clause 1 agreed to.

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, subject to subsection (4) of this section, 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 by 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 by a constable 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.

(4) Where the accused, at the time a specimen of blood or urine was taken from or provided by him, asked to be supplied with such a specimen, evidence of the proportion of alcohol or any drug found in the specimen shall not be admissible on behalf of the prosecution unless— (b) the other specimen or part was supplied to the accused.

VISCOUNT BRENTFORD moved, in subsection (1), after "constable" to insert "at a police station or hospital". The noble Viscount said: This is an Amendment which I can move quite shortly. It relates to the question of taking the evidence of unfitness to drive and to the application by a police constable to a driver to submit himself to a test. I ventured to put before your Lordships on Second Reading certain arguments with regard to this matter, and I will keep my remarks quite short now. The real problem, as I see it, is the seriousness of a driver's refusing to grant a police constable's request that he shall submit himself to a test, because of the provision in the clause that if the driver does refuse to submit to a test the court must have regard to any evidence to the effect that he has so refused.

It seems to me a matter of some doubt as to what the effect upon the court is likely to be when it has regard to this refusal. The question of a refusal by any driver to submit to a test is therefore going to be a matter of considerable importance in any subsequent proceedings. If it is going to be a matter of such importance, I am submitting to your Lordships that the importance of the decision which the driver takes should be made clear to him at the time. The way in which I illustrated the matter to your Lordships on Second Reading was that if, for instance, the request was made to him at what would be a material time, as is required under Clause 2-namely, at the time of the accident—the person in question might well be either so upset, so shocked, so indignant, so angry or so frustrated that his answer to the police constable might well not be an answer which he would have given had he had a greater opportunity to consider the import of the question and what it was likely to lead to.

The effect of this Amendment is simply and solely to try to make that element of importance in the question and the answer realised at the time when the question is asked and the answer is given. It seeks to do that by providing that the evidence as regards any refusal of a driver to submit to a test shall be given only if the request by the constable was made at a police station or a hospital. I cannot think that either of those two places are, in the circumstances, wrong places at which a request should be made, and I submit to your Lordships that it would be reasonable that the request should be made only at one of those two places. I beg to move.

Amendment moved— Page 1, line 19, after ("constable") insert ("at a police station or hospital").—(Viscount Brentford.)

LORD WALERAN

I should like to support my noble friend in this Amendment. It seems clear to me that if a young man is suddenly stopped by a police constable—and I have, because of my association with the police over a number of years, the greatest respect for their integrity—he may be a little woolly or put off and give the wrong answer. I think my noble friend's Amendment would give him, in those circumstances, a chance to go to the station, where he would be questioned, probably by the desk sergeant or the inspector on duty, and this would give him a fair chance of answering the question properly.

LORD CHESHAM

The noble Viscount, Lord Brentford, managed to be commendably short in moving his Amendment, and I think, or hope, that I can be equally as brief in my reply, which I should like to make in two sections. First of all, before I come on to the main point which the noble Viscount made—that is, the refusal of a test—I should like to deal as briefly as I can with the actual substance of the Amendment and the effect, as I see it, that it would have. At the present time, I am bound to admit that there is little in this matter about which the noble Viscount need worry, because the present practice is that the request for a specimen for test purposes is almost invariably made at a police station, and I do not think there are even many cases where it would occur at a hospital.

I do not believe that that is an adequate reason for accepting this Amendment, because in the future, certainly, and in certain circumstances otherwise, it is better not to allow the clause to become too rigid and inflexible. I am thinking of the possibility of an accident's happening in a remote area, where it might be convenient for all concerned for such a specimen to be provided in a nearby doctor's surgery or some completely suitable place. After all, a blood test is to be taken by a doctor, which is a safeguard in itself, as I think the noble Viscount will agree. As and when a reliable and accurate breathaliser or breath tester of some kind becomes available it would not be entirely right that its use should be limited to a police station or a hospital. I think it might be desirable to use it at the scene of the accident, because if it is reasonably possible to take the necessary specimen, in this case breath, at the time, it is more conclusive and probably is fairer to the accused.

I am not in a position to explain it at length to your Lordships, but if you have consumed a certain amount of alcohol there is a graph which can be drawn which shows that it has, first of all, an increasing, and then a dwindling, effect. So there is certainly a fifty-fifty possibility that such a procedure might well be in favour of the accused, because in a deferred test he might have more alcohol in his blood than he had at the time of the accident. Therefore I do not think that what is provided in the clause would be unfair.

On the question of a refusal of the test other than in the places that the noble Viscount wishes, when the accused is worried, upset, shocked, or in any of the other states the noble Viscount described, which he might well be after an accident or some shaking experience, I should have thought—but it is not for me to say—that it would be open and quite reasonable to the defendant to plead that that was a reasonable cause for refusing to submit to a test on the spot. As I say, I should have thought that it was perfectly reasonable that he could plead that. Accordingly, for those reasons, I cannot advise your Lordships to accept this Amendment.

EARL HOWE

Might I ask the noble Lord one question? I understand that there are three tests: the breathaliser, the blood test, and the urine test. Who decides which test is to be applied? Has the defendant any choice in the matter, or is it decided by the police officer, the doctor, or by whom?

LORD CHESHAM

It is up to the authorities at the station concerned, with a right for the defendant to object if he so wishes, if he has good reason for doing so. I would point out that it is very unlikely, except in the case of the breathaliser, which is not yet with us—I do not know when it is going to be, but it is not yet—that any of these tests will be taken on the spot, because a blood test will require a doctor, and I should have thought the other sort of test was rather impracticable on the spot.

LORD WALERAN

If I may speak again, with the permission of your Lordships, may I point out that the noble Lord has not answered my noble friend's question as to who decides whether it is a urine test or a blood test?

VISCOUNT HAILSHAM

I think, with respect, my noble friend did answer the question. What happens is that a suspect is either arrested or persuaded to come to the police station. The police authority proposes the test. It is open to the accused to refuse it, provided he is prepared to face the consequences provided for in Clause 2 or he could suggest an alternative test. If in fact the parties do not concur, a test will not take place.

VISCOUNT BRENTFORD

I should like to thank my noble friend for the reply which he has given to me and to say that I disagree with almost every word of it; but that, I feel, one would expect me to do. I will not detain your Lordships by canvassing the reasons why I disagree with it, but I should like to ask this: if it is the intention to use these tests in police stations, doctors' houses or hospitals, why not put it in the Bill? We are making provision for hypothetical circumstances, with the possibility of introducing scientific means which have not yet been tested; and it seems to me they may be used in circumstances and in a way we do not know, by people who are not identified. It really does seem to me to be exceedingly sloppy legislation, putting it mildly. But in the hope that the Government will consider the matter further at some later stage, I do not propose to press the Amendment at the present time. I think we shall give the Government an opportunity on a later occasion to reconsider the point, because I know it is a good point and they will fall for it in the end. I therefore beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

VISCOUNT HAILSHAM

Since it may be a convenient moment for my noble friend the Duke of Devonshire to make a statement in answer to a Private Notice Question, I beg to move that the House do resume.

Moved, That the House do now resume.— (Viscount Hailsham.)

On Question, Motion agreed to, and House resumed accordingly.