§ 3.24 p.m.
§ Order of the Day for the House to be put into Committee read.
§ Lord SHEPHERD
My Lords, in moving that the House do now resolve itself into Committee on the Road Safety Bill, may I seek the guidance of the House on the matter of timing? I understand there is an important and interesting debate to follow this piece of legislation. May I suggest that we adjourn consideration of this Committee stage at about five o'clock and that we should make a special effort at least to attain Clause 2 before doing so?
§ Moved, That the House do now resolve itself into Committee.—(Lord Shepherd.)
§ On Question, Motion agreed to.
§ House in Committee accordingly.
§ [The EARL OF LISTOWEL in the Chair.]
§ Clause 1:
§ Driving or being in charge with blood-alcohol concentration above the prescribed limit
§ 1.—(1) If a person drives or attempts to drive a motor vehicle on a road or other public place, having consumed alcohol in such a quantity that the proportion thereof in his blood, as ascertained from a laboratory test for which he subsequently provides a specimen under section 3 of this Act, exceeds the prescribed limit at the time he provides the specimen, he shall be liable—
- (a) on summary conviction, to a fine not exceeding£100 or to imprisonment for a term not exceeding four months or both or, in the case of a second or subsequent conviction, to a fine not exceeding £100 or to imprisonment for a term not exceeding six months or both;
§ (2) Without prejudice to the foregoing subsection, if a person is in charge of a motor vehicle on a road or other public place having consumed alcohol as aforesaid, he shall be liable—
- (a) on summary conviction, to a fine not exceeding £100 or imprisonment for a term not exceeding four months or both;
- (b) on conviction on indictment, to a fine or imprisonment for a term not exceeding twelve months or both.
§ (3) A person shall not be convicted under this section of being in charge of a motor vehicle if he proves that at the material time the circumstances were such that there was no likelihood of his driving it so long as there was any probability of his having alcohol in his blood in a proportion exceeding the prescribed limit.1080
§ Lord LINDGREN moved, in subsection (1)(a) to leave out "four" and insert "three". The noble Lord said: I think it will be for the convenience of the Committee if the three Amendments in my name on the Marshalled List are taken together; they all relate to the same purpose. The purpose of the Amendments is to remove the present right of a person charged to elect to go for trial at quarter sessions and by jury. The reason for moving the Amendment is that in these days when we are seeking to raise productivity the present system is a waste of time and money. Noble Lords will be aware that where the person elects to go for trial at quarter sessions there has to be a preliminary hearing at the petty sessional court at which depositions and evidence of all the witnesses, including the doctor, are taken, and then the presiding magistrate has to decide whether or not there is a case to answer. If he or she so decides, then the case goes to quarter sessions. That involves a considerable amount of time spent in clerical work behind the scenes by the magistrates' clerk; it involves the time of the magistrates and of witnesses; and, of course, time is money in all these instances. The whole procedure has again to be gone through at quarter sessions at an even greater cost than at the lower court.
§ What happens more often than not is that a person so charged goes to a solicitor and seeks to be advised as to the line of action he should take. Almost invariably the solicitor advises him to go for trial by jury and to have counsel at quarter sessions, because he is far more likely to get off there than he is at the petty sessional court. The theory is that in a jury of 12 good men and true, at least ten are more likely than not to say: "There, but for the grace of God, go I. "To support that good advice which solicitors give to their clients are the figures of cases taken by counsel at quarter sessions given by my noble friend Lady Wootton of Abinger during a Second Reading debate. She quoted figures of convictions relating to cases taken before the pettv sessional court by the magistrates and before the quarter sessions by a jury. The essence of my argument is whether or not we are going to modernise our general procedure and make it much more effective, whether we are to save time and money 1081 and still to make effective what is a big safety factor so far as road safety is concerned. I beg to move.
Page 1, line 16, leave out ("four") and insert ("three").—(Lord Lindgren.)
§ THE JOINT PARLIAMENTARY UNDER-SECRETARY OF STATE, HOME OFFICE (LORD STONHAM)
My noble friend Lord Lindgren based his case on two main points: first, that his Amendments are in the interests of productivity, in that if the case goes to a higher court the whole process before the magistrates has to be repeated; and, secondly,—and I think he would rate this as the more important leg of his argument—if the accused go to a higher court they are far more likely to get off. My noble friend says that when someone is charged in this way he goes to a solicitor who advises him to employ counsel, on the assumption, as I understand my noble friend, that ten members of the jury will be motorists who are likely to say: "There, but for the Grace of God, go I "It would seem to me perhaps a little exaggerated. In the mind of my noble friend there are a lot more alcoholics on a jury than I think occurs in reality. But certainly the figures he mentioned, which were quoted on Second Reading by my noble friend Lady Wootton of Abinger, are very impressive; namely, that the proportion acquitted by the magistrates' courts in 1965 was between 5 per cent. and 6 per cent. and the proportion acquitted in the higher court was 43 per cent.
I think it reasonable to assume that many people go to the higher court because there is a greater doubt about their case and because they have more reason to go. In any case, I would point out to my noble friend that if his Amendment were accepted a case might still go to jury trial although the accused would have no right to it. The manner of the trial would depend on the provisions of Section 18 of the Magistrates' Courts Act 1952, under which the magistrates' court can decide to try the case summarily on the application of the prosecution or, having commenced proceedings with a view to committal for trial, after considering representations by the prosecution or the defence. It will be agreed, I think, that the proposal to withdraw the right to 1082 trial by jury is a very serious one which cannot be undertaken lightly.
I would also mention that the penalties in the Bill are already laid down for the offence of driving while the ability to do so properly is impaired by alcohol; and it would seem paradoxical, to say the least, when the Government are trying to make the law more effective, to reduce the maximum sentence for the new offence which is no less serious. Ever since 1925 when the specific offence of being drunk in charge of a mechanicaly propelled vehicle was created, the accused has had a right to trial by jury. This new offence is no less serious than its predecessors. The evidence for the new offence which my noble friend did not mention is based on a laboratory report, and will be much less readily controvertible than that needed to prove the existing offence, and therefore there is much less likelihood of a need for the issue to be decided by a jury. There will still be room for dispute on matters of fact; for example, whether an accused was actually driving or was only in charge of the vehicle. Moreover, the statutory defence for a man prosecuted for the "in charge" offence is being changed under Clause 1(3) of the Bill, and those who avail themselves of this defence are likely to raise tricky points which may be much more appropriate for trial on indictment than for trial in a magistrates' court. It seems appropriate that the accused should continue to have the right to elect for trial by jury.
I submit that, under this Bill, if it is enacted as at present drafted, there is far less likelihood of acquittal by a jury in circumstances where there would be a conviction by magistrates. To secure a conviction it will, in general, be necessary only to prove to the jury that the accused's blood alcohol concentration exceeded the prescribed limit; whereas under the existing law the jury may acquit, however high the accused's blood alcohol concentration, if they think the evidence justifies this. I think my noble friend has failed to make out a case for the Amendment and that there is a great deal to be said against it. I hope that the Committee will not approve it.
§ 3.35 p.m.
I should like to put the other point of view to the Committee, and suggest that the noble Lord, Lord Lindgren, has made out his case.
1083 My only claim to address the Committee to-day is that for a considerable number of years I have been trying these cases, both at petty sessions and at quarter sessions. In that sense I am impartial as between one court and the other. I have a very strong view that this is the sort of offence which could properly be tried by petty sessions, except those cases under Section 18 of the Magistrates' Courts Act, which has already been mentioned, where they can and should be tried on indictment. The present facts are that in a great number of cases, where it is not really necessary to have trial by jury at all, the defendant elects trial for reasons already stated—especially in these days when legal aid is provided, and when so many people get legal aid that many defendants have little, if anything at all, to lose by claiming a trial by jury, except some little inconvenience and delay. In terms of cash they have almost nothing to lose.
I think Parliament ought to make up its mind whether these are, or are not, proper cases to be tried by a summary court. If Parliament says they are proper to be tried by petty sessions, the right to a trial by jury should be removed. If it is decided that these cases are, in general, not properly triable by petty sessions then all such cases should be tried on indictment. I do not think this mixture of the two is a good way to proceed. I should like to emphasise—and it is my main reason for intervening—the point made by the noble Lord, Lord Lindgren, about the cost of these cases. Having heard a good many of them, I am bound to say that I have been appalled by the cost which falls upon the taxpayer and the ratepayer as a result of a whole string of these cases going to juries. Your Lordships will appreciate that at quarter sessions the cost of a case is very much greater than at petty sessions, for a variety of reasons with which I will not trouble the Committee.
I should also like to emphasise a word used by the noble Lord, that doctors have so much of their time "wasted"—I use that word deliberately—on these cases. Having given evidence in the lower court they are summoned again, perhaps having to travel a great distance, to the quarter sessions. There, after waiting many hours for the case to be heard, or to be called 1084 as a witness, they have to go through it all again. Surely a doctor's time is valuable, and to-day there is such a great waste of it. It has been mentioned that four months is not a very long term of imprisonment. Nor is it, but in these cases sentences of imprisonment are seldom imposed. The number of times when a first offender, having been convicted on a charge of this kind is sentenced to a term of imprisonment, is practically nil. Indeed, a hardened offender would seldom be sent to prison; he would be fined heavily and disqualified for a considerable period. The point is of importance only when deciding whether an accused person should have the election of a trial by jury. If he is an old offender with several previous convictions, as we have already been told, he can be tried by a jury by indictment without having an election to do so. For these reasons—and I would emphasise the importance of the economic aspects—I am firmly of opinion that this Amendment ought to be inserted in the Bill.
§ VISCOUNT DILHORNE
I listened with the greatest interest to what the noble Lord, Lord Merthyr, had to say, but I am convinced that on this occasion, if this matter is pressed to a Division, I shall find myself in the same Lobby as the noble Lord, Lord Stonham. I suppose it is quite natural that those who sit as magistrates—and I never have done—should think that if they are competent to try one case, they are competent to try all cases where the charge is of that offence. Indeed, Lord Merthyr's real argument was that if magistrates are competent to try any particular charge in a magistrates' court, it is quite wrong that the accused should in any event have the right of election.
I do not think we ought to look at this from the point of view of magistrates. Benches vary a great deal. Some are good, and some not so good. Nor do I think that we ought to be governed by considerations of cost in determining whether or not an accused person should have the right to elect trial by jury. This is a very valuable right for an accused person. I do not accept the view that, because magistrates may convict more frequently than quarter sessions, it follows that those who are acquitted at quarter sessions are wrongfully acquitted.
1085 Where there is no dispute about the case, a man does not elect to go for trial. Where a man has confidence in the Bench before which he comes, he is less likely to elect to go for trial. But I, for one, should not like to see this valuable right taken away by the device proposed, that of reducing the maximum sentence of imprisonment which, under the Bill, magistrates can impose on a summary trial for this offence.
I think it is an important safeguard for the proper administration of justice that an accused person can elect to go for trial for certain categories of offence. I have no doubt that if this Amendment were accepted, we should get a whole series of amendments to the law trying to achieve that the right to elect to go for trial should be abolished in all cases where, if that right was not exercised, the magistrates could deal with the cases themselves. It may be very tiresome for a bench to be told by an accused person that he would prefer to be tried by a jury, but that is part of our system of justice, and it should not be nibbled away. I hope that the Government will stand firm on this.
§ LORD LEATHERLAND
Like my noble friend Lord Lindgren, I have been the chairman of a bench of magistrates for many years. One thing that I can say about benches of magistrates is that they constitute a very competent court, and I have rarely come away from a sitting of my court without feeling that justice has been thoroughly done to all the people who had come before us. I am conscious of the fact that frequently a defendant chooses to go for trial by jury because he knows that the members of the jury will be fellow motorists and will probably take a more sypathetic view of his case than would the justices. But in these days most justices are motorists also, so I do not think that too much weight can be attached to that argument.
The noble Lord, Lord Merthyr, said that an enormous amount of money was involved when cases were remitted to quarter sessions. That is so, but I should not like to see the day when justice will be meted out on the basis of the amount of money that can be spent. Any amount of money is worth spending if a person arraigned on a charge is to get justice.
1086 I feel that those who wish to be tried by jury should be able to avail themselves of that opportunity.
It is recognised that under this clause cases will not be so serious as those with which we have been dealing in our courts in the past, and that many of them will be adjudged on mathematics, on whether the count is over 80 or not. Nevertheless, there will be borderline cases where it will be possible to argue, and if a man wants to argue his case before a jury we arc striking at a fundamental right of British justice if we say to him that there is no jury before which he can go. It must be borne in mind that under this clause a defendant can be sent to prison. That is a serious matter. And if he is not sent to prison and fined on conviction, then he is exposed to a social stigma which will remain with him in the midst of his community for the rest of his life. If a man does not wish to go for trial, I am sure that he will get as good a standard of justice from the local bench as from quarter sessions. But if we want to nibble at this right of the British citizen to be tried by his peers, then let it be done by a special Jury Bill and not by this backstairs method. I am opposed to my noble friend's Amendment.
§ BARONESS WOOTTON OF ABINGER
I regret that I do not feel able to support my noble friend Lord Lindgren and the noble Lord, Lord Merthyr, on this Amendment. I feel that the right to elect trial by jury is of vital importance in a few disputed cases, as my noble friend Lord Leatherland and the noble and learned Viscount, Lord Dilhorne, have pointed out. I should have thought that the objections which were raised by the noble Lord, Lord Merthyr, are likely to become much less potent in future, if certain changes in procedure which are contemplated are introduced. They will simplify the process of commitment and also reduce the waste of time by introducing the automatic test by blood level. Persons who know that they have exceeded the level would be unlikely to enter pleas of not guilty, except where there was some doubt as to whether they were driving or other circumstances of that kind. Once this Bill becomes law, if the procedural changes contemplated come about I do not think that the attendance of the doctor would be required in the first court, and I doubt 1087 whether his attendance would be necessary in the second court. His evidence could probably be given by certificate.
§ LORD NUGENT OF GUILDFORD
I feel some sympathy with the noble Lord, Lord Lindgren, in his impatience with the many motorists in the past who have escaped conviction when they went to quarter sessions. We discussed this on Second Reading, and I quote again from the extract of the Metropolitan Police District quarter sessions that about one-third of the people who had more than 200 mgs, of alcohol in the blood were found not guilty. But this is the situation that exists now, and it is to be changed completely by this Bill, as the noble Baroness, Lady Wootton of Abinger, has just told us. Once the offence is defined as 80 mgs, of alcohol in the blood, the difficulty of securing a conviction disappears because, so long as the evidence is solid on that, the court will be satisfied and will convict.
I should have thought that the noble Lord's anxiety here is a little out of date, if I may say so. I feel that the Bill will really meet the case and, as other noble Lords have said, in most cases accused persons will accept their being dealt with in the magistrates' court because there is no point in going any further if it is already established that the blood alcohol is over the prescribed level. I hope that the noble Lord will not press this Amendment.
§ LORD LINDGREN
I am most grateful to noble Lords who have taken part in this debate. I must say that I am not altogether convinced. The noble and learned Viscount, Lord Dilhorne, suggested that benches vary. But lawyers vary, too. Judging by the way I have seen some of them abuse doctors in court when they were trying to get their clients off, on the basis that they could have hit their heads on the side of the car or something like that, I still believe that they will argue on the analysis of the alcohol content of blood.
LORD ST. OSWALD
The point that has been made throughout is that it is not lawyers who decide a case, but the jury.
§ LORD LINDGREN
The noble Lord is much more innocent than I had thought. The lawyer goes before the jury and plays on the jury. My contention is that, so far as a petty sessional court is concerned, where you have a bench of magistrates dealing with cases of this sort and general cases, week in and week out, and sometimes day in and day out, they are not quite so easily swayed by the oratorical powers of the defending solicitor or barrister. When it comes to abuse, I may say that sometimes lawyers do get abusive; and this may be why they are so effective in politics, because the poorer their case the more abusive they get. But in view of the desire of my noble friend to get on to a later debate, I will accede to the request and, with your Lordships' permission, withdraw the Amendment.
§ Amendment, by leave, withdrawn.
§ 3.51 p.m.
§ LORD RAGLAN moved, in subsection (3), to leave out "material". The noble Lord said: Your Lordships will have noticed a number of Amendments in the name of the noble Lord, Lord Airedale, and myself in an attempt to tidy up the wording of the Bill. I suggest that this Amendment may be a useful start. I submit that not only is a word superfluous here, but that the use of the word "material" in such sense is, so far as I can discover, without precedent legally, and if it is retained it should be defined in the Bill. I have been through as many legal dictionaries as I could find in your Lordships' House, and perhaps the best definition that I have found is the rather pompous one: that "material" means "of substantial import". I think your Lordships will agree that that meaning makes no sense here. In its meaning "of substantial import" one can have material alterations, material circumstances, material facts, material concealment of facts, material discomfort, material change, material error and so on. It is a word much used in the law of contract. But I have found no reference to "material time", and I very much doubt whether there can be such a thing.
If your Lordships look at page 30, line 25, of the Bill, you will see the phrase
"material particular" used four times, and used in its correct meaning—though whether it ever means very much is arguable. I would bring it to the notice of your Lordships that as far back as 1877, in a case of breach of promise to marry, where the Act required
material evidence in support of the promise of marriage",
Lord Justice Bramwell observed:
I rather fancy it has somewhere been said that the word 'material' makes no difference in the meaning of the section.
That was even when it was used correctly. If there was any need to have a phrase here, then surely it should read, "at the relevant time", or something of that sort. But "material" has no precedent and no clear meaning. I suggest that at best it is superfluous and at worst it may well be confusing. I beg to move.
Page 2, line 11, leave out ("material").—(Lard Raglan.)
§ LORD AIREDALE
I should like to support what the noble Lord, Lord Raglan, has said. I cannot think that the word "material" in this context adds anything whatever to the meaning of the subsection, and, therefore, I think it is better left out.
§ LORD STONHAM
I am grateful to my noble friend Lord Raglan, and to the noble Lord, Lord Airedale, not only for the thought that they have given to this Amendment but for the many Amendments standing in their names to the first two clauses, which is evidence of the most unremitting and careful examination of the Bill and which on some occasions a little later on—although not on this occasion—will be found to have produced a useful result. Whether it is possible to agree with my noble friend on any of his Amendments or not, I hope that I shall at least be able to satisfy him and the noble Lord, Lord Airedale, as we come to each Amendment.
My noble friend said that the word "material" is unnecessary. It is just as well to read the subsection to which it refers. It says:A person shall not be convicted under this section of being in charge of a motor vehicle if he proves that at the material time circumstances were such that there was no 1090 likelihood of his driving it so long as there was any probability of his having alcohol in his blood in a proportion exceeding the prescribed limit.My noble friend said that he had searched and been unable to find any comparable use of the word "material" in past legislation. He obviously overlooked the fact that the drafting of this provision follows exactly that of Section 6(2)(i) of the Road Traffic Act 1960. Both in this Bill and in the 1960 Act it relates to the defence of a person accused of being in charge of a motor vehicle after having consumed an undue amount of alcohol. So we have had this word "material" used in precisely this context for precisely the same offence for the last seven years, and apparently it has not caused difficulty to any court.
I submit, first of all, that since subsection (3) of Clause 1, which we now have under consideration, is parallel to the provisions of the second limb of Section 6(2) of the 1960 Act, it is desirable that the wording of the two provisions should be, so far as possible, identical. To introduce a difference in the wording of the two provisions might cause uncertainty as to the construction of both.
There is another answer to my noble friend, and it is that the word "material" does serve a useful purpose here. I submit that its effect is to limit the burden of proof on an accused person to proving what were the relevant circumstances at the time stated in the charge. If we accepted the Amendment moved by my noble friend, the burden of proof on an accused person would extend to the whole period when he was in charge of the motor vehicle. I hope that with that explanation my noble friend will feel able to withdraw the Amendment.
§ VISCOUNT DILHORNE
At first, when I heard the Amendment moved by the noble Lord, Lord Raglan, I thought there was nothing in it, but now, having heard the noble Lord, Lord Stonham, I am not at all sure that there is not a great deal more in it. First of all, the noble Lord, Lord Stonham, says that "the material time" means the time named in the charge. But, surely, the charge will not name the time, but the day, of the alleged offence. What bothers me are the subsequent words. It is quite true that you have the expression 1091 "at the material time" in a number of other Statutes. But here, as I read it (and the noble Lord read the subsection), the accused has to bein charge of a motor vehiclebut has a defence if he proves that "at the material time"—and that means, I suppose, the time when the accusation is made, to start off with—the circumstances were such that there was no likelihood of his driving it so long as there was any probability of his having alcohol in his blood in a proportion exceeding the prescribed limit.I should like to ask the noble Lord, Lord Stonham, what is the time within which such a probability can continue? It may be a matter of hours that there is still a probability of alcohol in one's blood exceeding a prescribed limit. May it, indeed, be a matter of 12 hours, or perhaps even the next day? Because if it does extend, or can extend, to that length of time does not all that time then become a "material" time? I hope I have made myself clear to the noble Lord, because I think the words:so long as there was any probability of his having alcohol in his blood in a proportion exceeding the prescribed limit.make the classifying of the words "material time" somewhat difficult. I should be very grateful if the noble Lord, when he comes to reply again, could indicate the sort of length of time that might conceivably be covered by the words I have just read out.
I have heard it said that someone can go to bed after a good dinner, get up the next morning and drive to his office after breakfast, and still be found to have alcohol in excess of the prescribed content in his blood. I should very much like to know whether that is a feasibility. Supposing that just before he goes to bed, after dining at home, he takes his car from opposite his front door in the street to put it in his garage, and is stopped on the way. What is the "material time" then? Is it the time he is actually stopped by the police, or do the words cover the whole period up to the next morning when, to establish his defence, he would have to say, "I am going to bed now and by the time I wake up there will be no probability of the alcohol in my blood exceeding the prescribed limit"? I think we need to explore this matter a little 1092 More in relation to the words "material time".
Surely the "material time" is the time at which the defendant was driving, or was attempting to drive.
§ VISCOUNT DILHORNE
May I draw the noble Lord's attention to the fact that the wording of the subsection does not use the word "driving"? It refers to the person "in charge".
I think the noble and learned Viscount is quite right. I was thinking of the driving section. I think that an adjective is required here, but I strongly suspect that the word "relevant" might be better than the word "material", in spite of the fact that the word "material" has been used hitherto. I wonder whether we could consider at a later stage inserting the word "relevant" instead of "material".
§ LORD CONESFORD
I should have thought that "material" clearly meant "relevant" in this particular case and has done so in the previous Statutes. The words "material time" are so familiar to the law that it would be a pity to omit the word "material" here. I have more sympathy with some of the subsequent Amendments, which I had thought might be taken together with this. But I cannot see that the word "material" in this particular sense will do any harm to anybody. It will be for the court to consider what was the material time, and, although I have no doubt that it will be held to be the relevant time, I cannot see why we should alter a phrase that is so familiar to the law.
§ 4.5 p.m.
§ LORD STONHAM
I, too, am of opinion that "material" in this sense is the equivalent of "relevant", and I cannot see that the substitution of the word "relevant" here would make the situation any more clear. Indeed, my noble friend, in moving the Amendment, urged that the word itself was redundant and that we did not need it: not that we needed another word, but that we did not need the word "material". Of course, we have in subsection (4) given a definition of the "relevant time".
The point the noble and learned Viscount asked me was about the charge. 1093 The charge will, in fact, specify the time as well as the day. We have to visualise the circumstances. A person is stopped because a constable has reason to believe that he has alcohol in his body. He is then subjected to a breath test, and if the test is sufficient to justify the constable's suspicion he is asked to go to the station and is given opportunities to undergo laboratory tests. Of course there will he no question of a charge until they are assured by the tests that the constable's suspicions are confirmed.
The noble and learned Viscount will also have noticed in the Bill that there is power to keep a person suspected of having committed this offence at a station until such time as a breath test shows that the alcohol content in his blood is below the prescribed level. Therefore his friend who goes home and has a meal and then goes out will be in no danger at all, because he will not be allowed to go home until it is safe for him to go.
§ VISCOUNT DILHORNE
I really cannot accept that, because that is assuming that everyone is kept in custody until another breath test has been applied. I am dealing here with the statutory defence which this subsection gives to an accused person. It provides the defence that he shall not he convicted, although in charge of a motor vehicle, if the circumstances were such that there was no likelihood of his driving it so long asthere was any probability of his having alcohol in his blood in a proportion exceeding the prescribed limit.That is the time period which I should like to have elucidated. How long could it be? If it is a long time, or indeed a short time, it would seem to be certainly in some respects a "material" time. I think we ought to have more elucidation as to how long that period is contemplated to be and might conceivably be. I am sure the noble Lord will appreciate that it has no reference at all to the case where a man has been charged in a police station and detained in custody until he has been released on satisfying a breath test. This is about the ingredients of the defence. Surely, too, when a man is charged on indictment with this offence, the indictment will specify the date of the alleged commission of the offence but not the precise hour.
§ LORD STONHAM
I cannot visualise the circumstances in which the noble and learned Viscount envisages a charge where a person is able to show that there was no likelihood of his driving the vehicle. We are in this clause talking about a person being in charge of a motor vehicle, and the clause does not bite unless the constable has reason to believe that the person in charge has taken more than the prescribed amount of alcohol or has it in his blood. That cannot be ascertained until there has been a breath test, and if the breath test shows that the alcohol content is below the limit the point does not arise. If the test when he goes to the station shows it to he above, then under the terms of the Bill as it now stands he will not be released until the alcohol content in his blood is below the prescribed amount.
§ VISCOUNT DILHORNE
I am very grateful to the noble Lord, because he has now convinced me that a man would be entitled to be acquitted of this offence if taken to a police station and kept in custody until he had passed the breathalyser test, because in those circumstances, he having been taken in charge by the police, there was no likelihood of his driving so long as there was any probability of his having alcohol in his blood in a proportion exceeding the prescribed limit. I am very grateful to the noble Lord.
§ LORD STONHAM
The noble and learned Viscount—I cannot think he is doing this through ignorance of the Bill—has left out all the other aspects. The accused person, if the breath test shows a level of alcohol above the limit, is invited to agree that a blood sample should be taken. Alternatively, he is invited to give a sample of urine. He is invited to give it and is then left for an hour, after which he is again invited to give a sample of urine. Finally, as a third limb—and by now he has been at the station for some time—he is again invited to give a sample of blood. In those circumstances a period of more than an hour will have elapsed before all the options have expired. The noble and learned Viscount will be aware of the possible serious consequences of refusals, and it is only at that point, after all these refusals, that the question of when the person should be allowed to leave the police station arises. Then, again, he 1095 would not be allowed to leave until the police were satisfied that the blood content was below the prescribed limit.
§ VISCOUNT DILHORNE
I will not pursue this matter, except to express gratitude to the noble Lord, Lord Stonham, for the light which he has thrown upon it. We are dealing here with a statutory defence and this particular subsection has nothing at all to do with any kind of test. However, the noble Lord has made it quite clear—and I am sure we are grateful—that the words "at the material time" refer to the time when the person was found in charge of the vehicle. If, having been found in charge of the vehicle, he is then taken by the police and kept in police custody until, in the police view, he is fit to drive, then it seems to me that he is bound to succeed on a defence under this subsection.
§ LORD RAGLAN
I am most grateful for the support of the noble and learned Viscount, Lord Dilhorne, and for the care taken by my noble friend Lord Stonham in replying. He said that this provision is already in the 1960 Act, but I do not think that makes it any better. My complaint is, as the argument between the noble Viscount and my noble friend has shown, that it could be made to mean almost anything one likes, and in fact nobody knows just what it means. I shall not press the Amendment to a Division, but I hope that in the light of the observations that have been made the Government will have a look at it again.
§ On Question, Amendment negatived.
§ LORD AIREDALE moved, in subsection (3), to leave out "the circumstances were such that". The noble Lord said: Subsection (3) of Clause 1 contains the expression "the circumstances were such that". I have a pet list of expressions which, whenever I come across any of them, always cause me to ask myself: "Does this mean anything at all?". This phrase, "the circumstances were such that" is on the short list. It seems that in this context it means nothing at all. I believe that if your Lordships will read this subsection through twice, once including the expression "the circumstances were such that", and then a second time but omitting those words, your Lordships 1096 will arrive at exactly the same meaning on both occasions. I beg to move the Amendment.
Page 2, line 11, leave out ("the circumstances were such that").—(Lord Airedale.)
§ LORD STONHAM
Here again, although it is a fact that does not impress my noble friend Lord Raglan, the wording we use in this subsection is exactly the same as the wording used in subsection (2)(i) of Section 6 of the Road Traffic Act 1960, which provides a similar defence for a person who is accused of being in charge of a motor vehicle while impaired by drink or drugs.
I think it is a point of substance that if one has had a form of words in another Act which has worked for a period of seven years, and it is still extremely relevant to the legislation under discussion, there would have to be a strong case for using a different form of words now. Another point is that the offence under Section 6 of the 1960 Act and under Clause 1 of this Bill overlap to a large extent, and as the defence for the person in charge of a motor vehicle set out in Section 6(2) is parallel to some extent to that set out in this Clause, we think it is important that the wording should be identical; and to introduce a different form of words might well cause uncertainty.
The noble Lord, Lord Airedale, mentioned in particular the word "circumstances". That word has been considered by the courts in the case of Morton v. Confer in 1963. That case shows that a court must look at all the circumstances and not merely at the intentions of the defendant. Therefore we feel it would be undesirable to effect a change of policy, not merely a deletion of what the noble Lord regarded as being unnecessary and redundant words. If they were deleted it would be a change of policy, because then the court could consider only the intentions of the defendant, and I did not understand that that was what the noble Lord had in mind. In view of that explanation I hope the noble Lord will agree that the words, however ugly they may seem to him, are necessary.
§ LORD ROYLE
With deep respect to my noble friend Lord Stonham, may I 1097 say that one does get a little impatient with this argument that because something is in another Act, however bad it may be, it must be continued into Acts for ever and a day.
§ LORD STONHAM
Is my noble friend saying that the Act which he has been administering in a court for seven years is bad?
§ LORD ROYLE
I agree that indeed there are many of them. For my sins, I am a member of the Joint Committee on Consolidation Bills and we are continually coming up against the problem of the language which is used in Acts of Parliament, which is clear to no-one, not even to noble Lords such as the noble and learned Viscount, Lord Dilhorne. The lawyers get a great living out of the crazy words which are used and the definitions which are included in Acts of Parliament. Surely the time has come now, and it may well be that this Amendment is the beginning, when we can start to simplify our Acts of Parliament and not have any superfluous words in them. I want to see the time when Acts of Parliament can be read by the man in the street and to some extent understood by him, and I get impatient at the view that something which is bad in another Act must be continued in a current Bill.
§ BARONESS WOOTTON OF ABINGER
I quite agree with my noble friend Lord Royle that it is no argument for keeping the words to say that they have been there for a long time, or even for such a short time as seven years; but I think these words have a certain philosophical import. If they are taken out, a man has to prove in his defence that there was no likelihood of his driving. How does he prove that? In two ways: he can prove (a) that he is not that kind of chap; or (b) that he was in a situation or circumstances where it would be very unlikely that he could perform that act. These words seem to me to restrict the defence to some extent, inasmuch as they require that it should be shown that there is something in the situation which is likely to prevent a man from driving—such, for instance, as the fact that he has given his ignition key to someone else. If the words were taken out, it could then be argued on the character of the man, which I think would be unfortunate.
§ LORD ELTON
I agree with the noble Lord, Lord Airedale, that his Amendment is English and the Bill as it stands is jargon, but I suggest that in that way we raise a fundamental issue. I am all for substituting the English language for jargon, and I should like to do so in many places besides the language of Bills. I should like to see it in Government Statements and in editorials. But if we start on an attempt to turn Bills into English we shall have a pretty big job on hand. We have spent three-quarters of an hour, we have had some charming lectures, particularly from the noble Baroness, Lady Wootton of Abinger. I am myself an ex-Don, and I have found myself almost back in my old haunts. But I wonder whether, if we take this on, we are not going to find that every Bill we discuss takes us about four times the usual allotment, and whether we ought not to grin and bear the jargon, because at any rate the lawyers know what it means and perhaps that ought to be good enough for us.
§ LORD CONESFORD
There have been occasions when I have attempted to make verbal points which I thought were necessary in the interests of clear and precise English, and I should not hesitate to do it again. I have great respect for the noble Lord, Lord Royle, but I think he was wrong in supposing that these words here had no effect of substance of which he would approve. I think the matter was stated correctly, as it so often is, by the noble Baroness, Lady Wootton of Abinger, and a decided case was mentioned by the noble Lord, Lord Stonham, in his first reply. If we were to leave out these words altogether what sort of defence could be raised? A man might simply conic and say that there was no probability, and, if he were believed, that would be sufficient proof. The words indicate that it is necessary to point to some external circumstances or facts as evidence, and therefore this is not mere jargon. It does, in my respectful submission, affect the meaning of what we are now discussing.
Therefore, though I think I am quite as enthusiastic as my old friend Lord Elton for the use of decent and precise English, I do not regard this particular case as an example where superfluous or unnecessary words have been used. I believe they are desirable to prevent the 1099 sort of construction to which the noble Lord, Lord Stonham, referred, and to give effect to this subsection. They may not be particularly elegant, but they are, I think, clear and they follow previous Statutes. For those reasons I support what the noble Baroness. Lady Wootton of Abinger has said, and support the Minister in his contention that the words here are correct.
§ LORD AIREDALE
As the noble Lord, Lord Elton, has said, we are proceeding rather slowly, and I think that on an Amendment of this rather limited scope I should be justified in pressing it only if the whole Committee were unanimously with me against the Government. As it is not, I beg leave to withdraw the Amendment.
§ Amendment, by leave, withdrawn.
§ 4.24 p.m.
§ LORD AIREDALE moved, in subsection (3), to leave out "so long as there was any probability of his" and insert "whilst". The noble Lord said: We now proceed to the next line of the Bill, line 12 on page 2, and your Lordships will observe that the first word of this line is "likelihood" and the last word of the line is "probability". I do not know whether Her Majesty's Government attach a different meaning to those two words. If the two separate words remain in the Bill, lawyers will undoubtedly seek to attach different meanings to them, because lawyers will say: "If Parliament had intended the same meaning by these two words they would not have used two different words but would have used the same word" If, therefore, the same meaning is intended, I suggest that we get rid of the word "probability" at the end of line 12. That phrase, "so long as there was any probability of his", is a rather cumbersome expression and might well be replaced by the single word "whilst". That would tidy it up and substitute one word for a cumbersome phrase. I beg to move.
Page 2, line 12, leave out ("so long as there was any probability of his") and insert ("whilst").—(Lord Airedale.)
§ LORD STONHAM
With the two previous Amendments I have pleaded in aid, first of all, that we have used the same words as were used in the 1960 1100 Act, and I have been so much impressed by what my noble friend Lord Royle said about that, that this time we have used different words. I very much regret, therefore, that, despite our reforming zeal, the wording used still has not met with the full approval of the noble Lord, Lord Airedale.
We have departed intentionally from the wording of the 1960 Act. Section 1 of the Road Traffic Act 1962 provided that a person shall be taken to be unfit to drive if his ability to drive properly is for the time being impaired. We have made this intentional change, because Section 6 of the earlier Act assumes that the length of time during which the ability of the person in charge would be impaired could be ascertained by a court. But there appears to have been no case dealing with this point, and it is reasonable to assume that it has not given any trouble.
If we accepted the noble Lord's Amendment, the duration of the time—and this is the point of substance—during which the person in charge of a motor vehicle had a blood-alcohol level above the prescribed limit might well become material to the issue of the case. The duration of the time could not be ascertained accurately, and there are two reasons for this. The first is that the rate of elimination of alcohol from the blood varies between different individuals, and indeed in the same individual at different times and in different circumstances, though the range of difference is not so great as the range of variation in the absorption of alcohol. The second reason is that the rate of elimination cannot be estimated until after the blood-alcohol concentration has reached its peak, in 15 to 90 minutes. The time of the peak will not be known. For these reasons, therefore, in this Bill we refer to the probability of a person "having alcohol in his blood in a proportion exceeding the prescribed limit".
The difference in wording in this respect between this Bill and Section 6(2)(i) of the 1960 Act reflects the difference between a scientifically ascertained quantity of alcohol in the blood by a laboratory test and a subjective assessment of a person's ability to drive properly as a result of consuming alcohol. The proportion of alcohol under this Bill, when it becomes an Act, can be ascertained only by 1101 means of a scientific test. There would be no such test on which a defendant could rely to prove his defence if the change in subsection (3) which the noble Lord's Amendment seeks were adopted. I hope I have made that clear. This time it is a point of substance, not just a matter of words. The different words are deliberate, and I hope your Lordships will agree that they meet the point.
§ LORD AIREDALE
Nobody could accuse the Minister of not taking the greatest trouble to answer these Amendments. I am afraid that I still feel that this, subsection is rather untidily worded, hut I will not press the matter, and I beg leave to withdraw the Amendment.
§ Amendment, by leave, withdrawn.
§ On Question, Whether Clause 1 shall stand part of the Bill?
§ 4.30 p.m.
VISCOUNT COLVILLE OF CULROSS
I wonder whether the noble Lord, Lord Stonham, if not to-day at any rate subsequently, could help me a little on subsection (5)? It seems to me, as I have understood the debate, that we are to have two offences, the original one under Section 6 of the 1960 Act and the new offence under Clause 1 of this Bill. I entirely appreciate that the defence set out in subsection (3), about which we have just been talking, is in effect the same as the defence set out in subsection (2) of Section 6 of the 1960 Act, except that hitherto there has been paragraph (ii) in the 1960 Act which this subsection in this Bill now seeks to remove.
In the first place, it does not seem to me that this is the right place to bring the two defences into line. Schedule 1 to this Bill amends Section 6(2) of the 1960 Act specifically, and if we want to bring the two defences into line, surely that is the place to do it. Secondly, if we are going to refer to the second limb of the defence in Section 6(2) of the principal Act, one thing is clear: that section does not make it an offence to be in charge of a motor vehicle, which appears to he the reading of the description of the part of the defence that we are dealing with here.
I hope that I make myself clear to the noble Lord. It seems to me that, as is so often the case in legislation, the words in brackets are attempting to set 1102 out in shorthand the effect of the words which are being dealt with. I do not think they do anything of the kind. If we want to deal with this, would it not be much better to deal with it in the Schedule, get it out of the way there, and not to have, as it seems to me, a rather misleading point to meet in this clause of the Bill. Other noble Lords may want to make a speech on the Question that the clause stand part, but I should like to draw the attention of the noble Lord to that matter.
§ LORD STONHAM
I am grateful to the noble Viscount for raising this matter. I confess that I have read this subsection at least twelve times, leaving out the words in brackets and putting them in. I have also studied the point about the second limb of the defence. I had not considered and, so far as I am aware, have not had any suggestion about, putting the section in Schedule 1. Certainly I will look at that, and at the same time will look at the other points that the noble Viscount has made. I am hound to confess that as a layman I think that there is some difficulty about the words in brackets. We will see whether we can clarify them.
§ LORD NUGENT OF GUILDFORD
As the noble Lord, Lord Shepherd, knows, I have given him notice that I wish to raise a debate on the Question that the clause stand part. Clause 1 is the principal clause of this Part of the Bill in defining the new offence of driving with more than the prescribed limit of alcohol in the blood. But due to the timetable that I know the noble Lord hopes we may be able to keep to-day, I do not intend to raise the debate now, but would wish to raise it on Clause 7, when we come to the definition of what is the prescribed limit. I trust that your Lordships will feel that this is a most important point, which it may be of general interest to your Lordships to debate, and that we should debate it sometime in the Committee stage.
§ Clause 1 agreed to.
§ Clause 2:
§ Breath tests
§ 2.—(l) A constable in uniform may require any person driving or attempting to drive a motor vehicle on a road or other public place to provide a specimen of breath for a breath test there or nearby, if the constable has reasonable cause— 1103
- (a) to suspect him of having alcohol in his body; or
- (b) to suspect him of having committed a traffic offence while the vehicle was in motion.
§ 4.35 p.m.
§ LORD AIREDALE
Line 29 uses the expression "there or nearby." I think the adverb "there" poses the question, where? If you search in this subsection for "where", I do not think you find the answer. I think the answer is, "at or near the place where the requirement is made." These, I think, are not elegant words, but I have taken them from the next succeeding subsection; so that, whoever objects to them, I hope it will not be Her Majesty's Government. I think this would improve this subsection, and I beg to move.
Page 2, line 29, leave out ("there or nearby") and insert ("at or near the place where the requirement is made").—(Lord Airedale.)
§ LORD RAGLAN
I should like to support my noble friend Lord Airedale in this Amendment. I think it is a useful Amendment, and it makes the meaning clearer.
§ LORD STONHAM
I am a fervent supporter of both noble Lords in their efforts to shorten the Bill by removing unnecessary words or changing the words for the purpose of greater clarification. But these two Amendments—I understand that we are considering Amendment No. 9 as well as Amendment No. 7—do not achieve that objective. The first Amendment lengthens the Bill by six words without, in my view, improving it in clarity. With regard to the other Amendment—
§ LORD AIREDALE
Could not we deal with Amendment No. 9 when we come to it, because I think it is quite a separate matter.
§ LORD STONHAM
If the noble Lord wishes, we shall deal with Amendment No. 9 separately. I had understood the noble Lord to make reference to Amendment No. 9 when he said:at or near the place where the requirement is made.I thought he read that out, and that is what made me think he was dealing 1104 with it. In my view, leaving out the words, "there or nearby" and inserting:at or near the place where the requirement is madedoes not add any clarification at all. It certainly does not make it any more clear to me. Perhaps we could insert the words that are proposed to be inserted and then see how it reads. It would read:A constable in uniform may require any person driving or attempting to drive a motor vehicle on a road or other public place to provide a specimen of breath for a breath test at or near the place where the requirement is made if the constable has reasonable cause—(a) to suspect him of having alcohol in his body…and so on. It seems to me that the words we have at present, "for a breath test there" mean at the spot where the constable confronts the person who is either driving or attempting to drive the vehicle. It is at that spot. Alternatively, if it is an inconvenient spot—there may be a great deal of traffic going by—and he wants the man to take a breath test, then he would do it as near as possible to that place—in other words, "nearby". For the life of me, I cannot see why it is not perfectly clear to say, "there or nearby", and whyat or near the place where the requirement is madeis any more clear. As it would mean adding more words, I hope that the noble Lord will agree to stick to the words we have.
VISCOUNT COLVILLE OF CULROSS
If you put "there or nearby" after "provide", I think it would be a great improvement.
§ LORD STONHAM
In other words, the noble Viscount is suggesting moving the position of the words "there or nearby". I will have a look at that suggestion.
§ LORD AIREDALE
I think we are in entire and absolute agreement about what sense we intend to convey. There is much substance in what the noble Viscount has just said. I would ask leave to withdraw the Amendment now, and perhaps we could all think about this before the next stage and possibly return to it then.
§ Amendment, by leave, withdrawn.1105
§ LORD SHEPHERD
I find myself in some difficulty. We are to have an important debate on a Motion in the name of the noble Lord, Lord Teynham, which I indicated to him and to your Lordships' House we should try to start at about five o'clock this afternoon. The next Amendment is one to which my noble friends attach considerable importance, and I am quite sure that there will be need for a debate upon it, which clearly we could not complete within 20 minutes. Unfortunately, the noble Lord, Lord Teynham, is not yet present in his place; therefore, one is in slight difficulties. I gather that if I keep talking for a few minutes it may be possible for the noble Lord to be here. I see that I am now able to move that the House do now resume.
§ Moved, That the House do now resume.—(Lord Shepherd.)
§ On Question, Motion agreed to, and House resumed accordingly.