ROAD SAFETY BILL (Hansard, 27 April 1967)

HL Deb 27 April 1967 vol 282 cc617-46 617

§ 3.21 p.m.

§ Report of Amendments received (according to Order).

§ Clause 2:

§ Breath tests

§ 2.—

§ (2) If an accident occurs owing to the presence of a motor vehicle on a road or other public place, a constable in uniform may require any person who he has reasonable cause to believe was driving or attempting to drive the vehicle at the time of the accident to provide a specimen of breath for a breath test—

(a) except while that person is at a hospital as a patient, either at or near the place where the requirement is made or, if the constable thinks fit, at a police station specified by the constable;

§ LORD CONESFORD moved, in subsection (1)(b), after "a" to insert "recent". The The noble Lord said: My Lords, the House may recall that when this Bill was being considered in Committee on April 11 I called attention to what I thought was a drafting defect in Clause 2(1)(b). If I may remind the House, subsection (1) enables a constable in uniform to require a person to provide a specimen of breath for a breath test, if the constable has reasonable cause, under paragraph (a): to suspect him of having alcohol in his body;"— or, under paragraph (b): to suspect him of having committed a traffic offence while the vehicle was in motion. Throughout the discussion on the clause, I think that all who took part assumed that the traffic offence mentioned in paragraph (b) was a recent traffic offence. It was not thought, for example, that the constable would be enabled under this subsection to require a breath test merely because he recognised the driver as a person who had been guilty of a speeding offence three years before. Nevertheless, there is nothing in paragraph (b) that indicates any such limitation.

§ The Amendment I have set down, to insert the word "recent", will make the paragraph mean, in my respectful submission, what everybody who took part in the debate assumed it already meant, but what, I think, it did not necessarily mean. It is, I think, little more than a drafting Amendment if the intention of the House was what I believed it to be. 618 I have therefore set down this simple Amendment which avoids the danger that I have pointed out and, I hope, effects its object adequately. If, however, the Minister, with the advice of Parliamentary draftsmen, informs the House that some other form of words would be more appropriate for the purpose, I shall, of course, be most happy to consider such an alternative. But the fact that he has not put anything else down, and the fact that the paragraph as it stands clearly has the defect to which I have drawn the attention of the House, makes me think that there is not much wrong with my Amendment. I beg to move.

§ Amendment moved— Page 2, line 32, after ("a") insert ("recent").—(Lord Conesford.)

§ VISCOUNT DILHORNE
My Lords, I entirely agree with my noble friend that the clause as it stands is defective and needs some further words added to it; but I am not at all happy that the word "recent" is a satisfactory word to insert. My noble friend referred to the commission of an offence three years before the application of the test. That is taking an extreme case. Let us take the case when the Chief Government Whip is driving home on his regular route, and one week is seen by a police constable to drive across the traffic lights when they are red. The next week, driving home at approximately the same time, he is stopped by a constable. Was the first offence a recent offence or was it not?
I think the "recent" is too imprecise; although I think it does carry out, to a greater extent than the Bill does now, what I believe to be the intention behind the Bill. I shall be grateful if the noble Lord will say exactly what that intention is, and if he does so I hope it will be found possible to find the appropriate words for including it in the Bill. If I interpret it correctly, what is intended is that if the police constable sees a person driving a car—that is, a car in motion—committing a traffic offence and stops him on that account, he will then be able to apply a breath test. If that is the intention I cannot myself see why it should not be expressed satisfactorily in this clause in perfectly ordinary language.
If on the other hand it is the intention, which I hope it is not, that a policeman who had seen the Chief Whip or myself, 619 the day before, committing a traffic offence—perfectly inadvertently, as it would be in both cases—should then have the right to stop us the next time he saw us leaving the car park here, and were to apply a breath test in full view of all the people of the Palace of Westminster, it would be very unfortunate. I do not think that that is the intention of the Bill. If it is what I first suggested, surely a different formula could be found to make it right to apply the breath test when a constable has stopped a motorist on suspicion of having committed, at that time, another offence while the vehicle was in motion. I notice that the Government have not put down an Amendment to deal with the awkward problem of whether a man who stops his car on a clearway has committed an offence while the vehicle is in motion; but I leave that for the moment.

§ LORD SHEPHERD
My Lords, the noble and learned Viscount has created a great deal of anxiety in my mind. He appears to be drawing the name of the Chief Whip to the attention of the police. I hope the noble and learned Viscount will assure me that he will not disclose to the police my normal route home. Initially, I had a great deal of sympathy, as did the Department, with the Amendment of the noble Lord, Lord Conesford. The Bill provides in Clause 2(1)(b) for a driver to be required to provide a specimen of breath for a breath test if the constable has reasonable cause … to suspect him of having committed a traffic offence while the vehicle was in motion. The words "was in motion" were put in to meet the views of those people who considered that we should not have a system of random tests and of checking people at public houses without any other cause. The noble Lord, Lord Conesford, in Committee and again today, said everyone has assumed it referred to a recent traffic offence. Of course, with the words as they now stand it need not be recent at all; as the noble Lord said it could be an offence of exceeding the speed limit three years ago. The Department and I have carefully considered the point raised by the noble Lord, and I agree with the noble and learned Viscount, Lord Dilhorne, that the words as drafted could have this interpretation and construction.
620 Perhaps I should state what the Government had in mind. The intention of Clause 2(1)(b) is that the power to require the driver to undergo a breath test is applicable from the moment when a constable first suspects that the driver has committed a moving offence; but it is not intended that the power should be there at that moment only. Clearly, the constable may need some time to catch and stop a driver or, if he is on foot, to arrange for a traffic constable in a motor car to apprehend the driver. It is therefore impossible to lay down a rigid time limit. I thought at one time that we could put in a limit of 12 hours or 24 hours, which would meet the point raised by the noble Lord, Lord Conesford, but even so it would be extremely arbitrary. In some cases the period would be too long and in some cases, perhaps, it would be too short. Certainly there would be anomalies. Also, it is not intended that the power should be operative for ever. There should be some relationship (and this I think should be stressed) between the commission of a moving traffic offence and the amount of alcohol found in a person's body when the test is made.
The noble Lord, Lord Conesford, has argued that the insertion of the word "recent", might help. The noble and learned Viscount, Lord Dilhorne, asked what was meant by "recent". One may read in a newspaper that Mr. So-and-so is recovering from a "recent" accident, and the accident may have occurred some three or four weeks previously. So far as I know, there is no legal definition of the word "recent". I am clear in my own mind that if the word were to be inserted in the clause we should be placing drivers in a worse position than they appear to be with the words now in the Bill. From the police point of view it is thought that there is no serious risk of the subsection being misconstrued. I assure noble Lords that my right honourable friend the Home Secretary will give express advice on this point to the chief constables, and even if the word "recent" is inserted similar advice will have to be given to them.
My Lords, the noble Lord has put his finger on a real difficulty. The reason we have not put down an Amendment is that so far we have not been able to find a suitable form of words. I am 621 still anxious to see whether there is a way to meet the point raised by the noble Lord. I would ask him to withdraw his Amendment now because the Department are still working on this matter, and it may well be, as I hope it will, that we shall be able to find some way of revising this part of the Bill to meet the point raised by the noble Lord, Lord Conesford. But I am bound to say that it is not going to be easy.

§ VISCONT DILHORNE
My Lords, may I put this question to the noble Lord, Lord Shepherd? Would he consider, instead of the formula used in subsection (1)(b), the inclusion of words to the effect that the test be applied after the driver has been stopped by a constable who has reasonable suspicion that he has committed a moving traffic offence.

§ LORD SHEPHERD
My Lords, I will certainly look at such words to see whether they are appropriate. But we have examined this matter carefully, and I know that the Department were working late last night to try to give me some good news to give to the noble Lord, Lord Conesford. At present we have not been able to find a solution, but if, recognising our difficulties—and perhaps recognising some of the weaknesses of his own proposal—the noble Lord is prepared to withdraw the Amendment, I will certainly continue to look at the matter and try to have something put down for Third Reading.

§ LORD CONESFORD
My Lords, the noble Lord, Lord Shepherd, is always so persuasive and reasonable that I certainly wish to meet him. Perhaps I made a mistake in not drafting my Amendment with the assistance of my noble and learned friend Lord Dilhorne. I can only say that I am quite certain that if my noble and learned friend were sitting judicially he would not be placed in as great difficulties if the word "recent" appeared in the clause as those in which he would be placed if that word were not there. Nevertheless, before asking leave to withdraw the Amendment I should like to put this point to the noble Lord, Lord Shepherd. Of course the word "recent" is inexact, but I think it would indicate to the courts the sort of thing at which they have to look, and would therefore be preferable to the words as they now stand in the Bill. I would say to the noble Lord, in asking leave to withdraw the 622 Amendment, that I do not think it will be at all satisfactory if Her Majesty's Government have not some Amendment to suggest on Third Reading. I should greatly prefer that it should be their Amendment, rather than mine, but I am sure that some Amendment is required. Having said that, I ask leave to withdraw the Amendment.

§ Amendment, by leave, withdrawn.

§ 3.38 p.m.

§ LORD AIREDALE moved, in subsection (2)(a), to leave out "if the constable thinks fit". The noble Lord said: My Lords, this is an Amendment to subsection (2), and it formed part of a longer Amendment which was moved during the Committee stage and withdrawn. Subsection (2) lays down three places where a constable may require a breath test to be taken after an accident has happened. They are, first, on the spot; secondly, at a hospital where the person is a patient; or, thirdly, at a police station. In the case of the police station only, the subsection includes the qualifying expression, "if the constable thinks fit". I should not think that, where a clause is permissive only and not mandatory, an expression such as, "if the constable thinks fit" could ever be very useful, because I cannot imagine any constable doing something which he did not think fit, unless he had to.

§ When we consider this particular context it is rather curious because the inference, surely, is that a constable may order a breath test on the spot, even if he does not think fit; he may order a test at a hospital, even if he does not think fit; but he may order a test at a police station only if he thinks fit. I do not understand the usefulness of the expression, "if the constable thinks fit" in this subsection. I received a very courteous reply to my longer Amendment moved during the Committee stage, but I did not get a reply to this point. I gave notice that I should put it down as a separate Amendment this afternoon, and I look forward to hearing the reply to this point. I beg to move.

§ Amendment moved— Page 2, line 42, leave out ("if the constable thinks fit").—(Lord Airedale.)

§ THE JOINT PARLIAMENTARY UNDER-SECRETARY OF STATE, HOME OFFICE (LORD STONHAM)
My Lords, as the noble Lord, Lord Airedale, 623 has mentioned, this Amendment consists of part of the words which were included in an Amendment which he moved during the Committee stage. He gave notice of his intention to raise this point again because he did not get the explanation for which he asked about the need for these words. It is rightly said that a test can take place on the spot or at a police station. That is why we have the words, "if the constable thinks fit." If we accepted the Amendment, subsection (2) would read thus: … a constable in uniform may require any person…to provide a specimen of breath for a breath test—…either at or near the place where the requirement is made or…at a police station specified by the constable;…". It would mean that the person concerned, and not the constable, would have the option whether a breath test should be taken on the spot or at a police station. We want—in fact, we insist—that the constable should have the option, and therefore the words that he wishes to leave out must be retained.
The Amendment is not merely a drafting Amendment. It would introduce a change of substance, and I think that the noble Lord himself would agree that such a change would be undesirable. A position could arise where a constable might be at the scene of an incident or accident and, not having breath-testing equipment, would have to wait for a motor patrol to come along before a breath test could be made on the spot. Therefore he would have to decide whether to do that or whether the test should take place at a police station. A constable working alone and without equipment might have to attend to the injured, or stay on the spot to direct traffic, or to do some other duty after an accident, and would therefore be unable to accompany the person concerned to a police station. If, therefore, the constable were not to retain the option, and it were left to the person concerned, as the noble Lord apparently desires, it might well be that he would never turn up at the police station and thus there would he no breath test. I hope the noble Lord will be satisfied, after my exposition, that these words are necessary and are in the right place.

624

§ LORD AIREDALE
My Lords, while I do not disagree with what the Minister has said, I cannot read into this subsection any option to the suspected person to say where he is to have his breath tested. I should have thought that the subsection as drafted clearly gives the option to the constable to say where the breath test is to be conducted. I think that the proper course would be to withdraw this Amendment now, but perhaps the Minister and I could discuss the point together before the next stage, because I cannot read into the subsection what he would like me to read into it. But I will not pursue the matter further. I beg leave to withdraw my Amendment.

§ Amendment, by leave, withdrawn.

§ LORD STONHAM
My Lords, I hope that it will be convenient to discuss Amendments Nos. 4 and 5 at the same time as this one, because they are on precisely the same point. They are drafting Amendments which arise in response to a point raised in Committee by the noble Lord, Lord Airedale, when I gave an undertaking to consider an alterative form of words to the expression "on a breath test". We propose instead, "in consequence of a breath test". I hope that the noble Lord will agree that this alters the offending words without altering the sense. I beg to move.

§ Amendment moved— Page 3, line 12, leave out ("on") and insert ("in consequence of").—(Lord Stonham.)

§ LORD AIREDALE
My Lords, I am grateful for what the Minister has said. I think that this Amendment makes a great improvement to the drafting.

§ On Question, Amendment agreed to.

§ Clause 3 [Laboratory tests]:

§ LORD STONHAM
My Lords, I beg to move Amendment No. 4.

§ Amendment moved— Page 3, line 41, leave out ("on") and insert ("in consequence of").—(Lord Stonham.)

§ On Question, Amendment agreed to.

§ LORD STONHAM
My Lords, I beg to move Amendment No. 5.

§ Amendment moved— Page 4, line 6, leave out ("on") and insert ("in consequence of").—(Lord Stonham.)

§ On Question, Amendment agreed to.

625

§ Clause 5:

§ Consequences of conviction of certain offences

of driving or being in charge

§ 5.—

§ (2) For the purposes of sections 5 and 7 of the 1962 Act (disqualification for holding a licence and endorsement of licences)—

(a) an offence under section 1(1) of this Act or an offence under section 3(3) of this Act which is punishable by virtue of paragraph (a) of the said subsection (3) shall be treated as if it were an offence under section 6(1) of the principal Act and accordingly as if it were an offence specified in part I of Schedule 1 to the 1962 Act (offences involving obligatory disqualification);

§ 3.45 p.m.

§ LORD NUGENT OF GUILDFORD moved, in subsection (2)(a), after "disqualification" to insert: unless in the case of a first offence under this Act the court is satisfied, having regard to all the circumstances, that there are grounds for mitigating the normal consequences of the conviction and thinks fit to order him to be disqualified for a shorter period or not to order him to be disqualified;".

§ The noble Lord said: My Lords, the purpose of this Amendment is to give the courts, in the case of the first offender convicted of driving with a blood alcohol level over the prescribed level of 80 mg., a discretion with regard to the 12 months' disqualification. As the Bill stands, the disqualification is automatic. I should recall that on Committee stage I withdrew this Amendment, when I was about to put it to the vote, at the request of the noble Lord, Lord Shepherd, on two grounds: first, to give time for consultations between Committee and Report stage; and, secondly, because, as the noble Lord put it to me, after seven o'clock votes were likely to be cast mainly on Party lines without the benefit of the large body of independent Peers who would be present to vote at an earlier hour.

§ On the first point, the noble Lord, Lord Shepherd, kindly arranged for me to see the Minister, but I regret to have to report that I was unable to persuade her of the wisdom of my Amendment to allow discretion to the courts. Therefore, there is no agreement between us. With regard to the second point which the noble Lord put to me, I recognise that discretion for the courts for first offenders is an important issue, on which the argument is evenly balanced on both sides, 626 and that it is in no way a Party matter—indeed, in another place there were votes from both sides, and possibly there will be in your Lordships' House, too. I believe that this is an issue on which your Lordships may wish to express a view and therefore I move the Amendment again.

§ The Bill does two important things in regard to drinking and driving. First, it fixes a statutory level of alcohol in the blood above which it would be an offence to drive. This is the first time our law has done so. The level of alcohol will be proved by laboratory analysis, which is provided for. It will have the great advantage of giving certainty in the event of a prosecution, and if the evidence given is satisfactory to the court a conviction will follow. It will replace the present situation in which all too often convictions are almost impossible to get. I very much welcome this innovation that the Government are making.

§ The second innovation, which is perhaps of equal importance, is the defining of the level of alcohol at which a driver is affected by drink at a much lower level than obtains at present. At present, the police do not normally prosecute at under 150 mg. of alcohol per ml. of blood, a level at which most people would be obviously drunk. The level in the Bill is 80 mg.—just over half of what is now recognised as being under the influence of drink. It is particularly with regard to this second major change that I suggest that the courts will need discretion in punishing a first offender in respect of the period of disqualification. As the Bill now stands, the courts will have discretion with regard to the amount of the fine, or, if imprisonment is ordered, with regard to the length of imprisonment, but disqualification for 12 months is automatic. The substance of the case for the Amendment is that this period of disqualification would be an unfairly heavy punishment, at least for some offenders in the early days, when many people will not be aware that they are committing an offence.

§ The level of 80 mg. was chosen by the Government, as they have told us, after consideration of the B.M.A. advice, and in the light of the Grand Rapids Survey. The Survey showed that accidents are nearly twice as likely to happen to a 627 driver with 80 mg. of alcohol in his blood; and the B.M.A. advised that the great majority of drivers would have their driving capacity impaired at that level. Everybody agrees with this. There would, of course, be a small minority who would not be affected; and perhaps that is an additional reason for caution.

§ Here it is perhaps relevant to recall a point that I made earlier; that is, the experience of other countries which have similarly set a statutory level. Although some have a level lower than the 80 mg. that the Government are proposing to set here, most have set a higher level. In particular, most of the countries with similar living conditions to our own have set limits of 100 to 150 mg. I am the first to recognise that it is a matter of judgment for the Government to decide at what level to set the offence, after weighing the medical evidence, on the one hand, and the sociological evidence, on the other, and what its probable effect will be. But I think it is fair to observe that the level of 80 mg. is rather low by comparison with foreign experience.

§ The medical evidence is clear and definite. It is certain that the procedure laid down in the Bill will secure conviction of offenders with more than 80 mg. of alcohol in the blood. But it is the sociological effect which I suggest cannot be clearly forecast. At present we have virtually no knowledge of the number of people who drive after reaching the 80 mg. level and, therefore, the measure of adjustment which must he made in the life of our people to conform with this new law. It is because I am concerned that it may be large that I am urging that the courts should have discretion with regard to disqualification of first offenders.

§ It is estimated that about 4 million people visit a public house once or twice a week, and then drive away, and an unkown number attend cocktail parties and drive home afterwards. It is on these occasions, when most people drink on an empty stomach, that they are most vulnerable. The B.M.A. estimate that an 11-stone man may reach 80 mg. by drinking two and a half pints of beer or two and a half whiskies on an empty stomach. This is a level which is often exceeded without any hint of intemperance by the person who has drunk it. Of the millions of people who visit public houses or cock 628 tail parties, there are probably tens of thousands, or probably more, who exceed this level and then drive home.

§ The Government recognise that there is a major education campaign to be undertaken to teach our people that 80 mg. means impairment of ability to drive, and as soon as the Bill is on the Statute Book they mean to undertake this campaign. This is much to be welcomed. But I suggest that this gives emphasis to the point I am trying to establish: that most people at the present time are unaware that this change in the law is about to happen, and they simply will not be aware that they are committing an offence when they drink to this level. Everybody knows that he should not drive when he is drunk; but 80 mg. is much below that level for the average person and, therefore, a completely new lesson has to be learned. To conform with this new law will require a big change in the social habits of many of our people, and in the early days of its operation there will inevitably be many people inadvertently breaking it and being brought before the courts in consequence. I am the first to accept that they should be punished, but I am sure that in some cases the courts will feel the need for discretion with regard to the period of disqualification.

§ The gravity of the offence, and the circumstances of the offender, will vary widely—they are bound to—over tens of thousands of cases which will come before the courts, and although disqualification will be right in most cases, one can think of various circumstances in which the courts might wish to have some power of discretion. We have mentioned before in our debates that an obvious factor with regard to disqualification is whether the offender earns his living by driving a vehicle—a lorry driver, a van driver or a commercial traveller—the offence pehaps being committed after work when he goes out with friends in the evening. Twelve months disqualification of a man who drives for a living will almost certainly mean the loss of his job. That is a very heavy additional penalty. The Government's answer to this argument has been that if he drives for a living he ought the better to understand the gravity of his offence and deserves the drastic extra penalty. Although this could be the right answer 629 in some cases, I suggest that in others it could be devastatingly wrong.

§ Let us take the case, by no means exceptional, of a young man who has committed this offence and whose job it is to drive the local delivery van. Let us suppose that he has a difficult home background and has already been involved in minor crime; he has been before the courts, and has been put on probation. With a great deal of trouble, the probation officer and friends have secured him a job as a van driver, and he is settling down to earn an honest living. If the court is obliged to sentence him to 12 months disqualification his job will be lost, and his prospects of getting another very small; and if he is in an area of the country where unemployment is high, his chances of getting another job will be nil. The effect of a sentence of 12 months disqualification on a young van driver in those circumstances would be calamitous; his confidence in the humanity of the authorities would be completely destroyed, and the efforts to help him to lead a useful life would be entirely lost.

§ Such cases are by no means exceptional, as noble Lords who sit on magistrates' benches will know. Inevitably, in the nature of things, the courts are concerned with the failures of life, and all too often these weaker characters come before them. The courts and the probation service are continually striving to correct these erring youngsters, to set their wandering feet on the path of earning an honest living and becoming useful members of the community. The courts usually show great understanding and sympathy in dealing with these cases, and exercise their discretion to the utmost to avoid handicapping by heavy punishment those who are obviously the weaker members of the community. Is not this the spirit which is moving our whole concept of the administration of justice today? In making our laws, and dealing with those who offend against them, we have a common responsibility to help the offenders to a rehabilitated life.

§ In this context, how can we be sure that 12 months disqualification for this offence, with the drastic implications involved, which at present is largely unknown, will be right in all circumstances? I suggest that it must be right to give the courts a measure of discretion here. 630 This is the whole spirit of our administration of justice to-day, and in that spirit I beg to move this Amendment.

§ Amendment moved— Page 6, line 29, after ("disqualification") insert the said words.—(Lord Nugent of Guildford.)

§ LORD SHEPHERD
My Lords, with your Lordships' permission I should like to follow the noble Lord and answer some of his points in detail, and also set out some of the difficulties that face the Government in deciding whether to accept the noble Lord's Amendment. First of all, I should like to express my deep appreciation to the noble Lord, Lord Nugent of Guildford, for not pressing this Amendment, or a similar Amendment, in Committee. Certainly that provided me with the opportunity later in the Committee stage of satisfying the noble Lord, I think, that the Government were right in setting the statutory limit for alcohol in the blood at a rate of 80 mg. per 100 ml. It also gave me an opportunity to consider very carefully all the points the noble Lord made, and again to examine all the papers and the statistics, which I should like to give to the House this afternoon, and certainly to discuss this matter with the Ministers and the officials.
I will disclose to the House that when I first saw this Bill I took the same view as Lord Nugent of Guildford does. But I have now changed my mind, because I have seen the weight of evidence that is available; and some of it I will give to the House this afternoon. First of all, may I say that the Amendment is defective, although it could be amended if the House were to accept it. But we could deal with that at a later stage. To-day we are not discussing—and I am sure Lord Nugent of Guildford will agree with me—a technical offence. We are discussing the penalty for one of the three most grave offences on the roads, to some perhaps the gravest of the three. One has only to see the effect of alcohol on the numbers of road accidents: when one looks at the growth of accidents which cause death and serious injury at Christmas time, one sees that they are really tragic figures. I will not give them now, but I will certainly make them available to any noble Lord who would wish to see them. But there can be no doubt as to the effect of alcohol on road accidents.
631 This Government, like previous Administrations, have sought, by legislation and by education, to reduce this toll. The present Government have certain advantages over the previous Administration. First of all, we see the workings of the 1962 Act. We now have available—which information was not available to the Conservative Administration—far greater knowledge of medical and scientific examinations on the effect of drink on drivers. Also, we have a Minister who is prepared to take a very unpopular decision. Let us be under no illusions, my Lords. The Bill will be very unpopular in the initial stages, but I believe that, as on the Continent, it will become accepted; we shall discipline ourselves to it, and we shall then wonder why we had taken so long to introduce this type of legislation. But let us get it perfectly clear in our minds that, whatever educational programmes we have, whatever expensive publicity campaigns we undertake, whatever forms of legislation we present, these will be utterly useless unless there is effective enforcement. And enforcement depends upon the certainty of conviction and a clear and understood penalty; and, my Lords, a penalty that is fair to all and applies to all.
I do not think there is any doubt that disqualification is the greatest deterrent. I have before me a speech of Sir Richard Nugent (as he then was), Member of Parliament for Guildford, who has just moved this Amendment. He said in another place, on February 28, 1962: The second innovation"— he was speaking of the 1962 Act— of great importance is, of course, in Clause 3, which will oblige courts to impose the penalty of disqualification much more often than they do at present. Once again, I think that this is right in principle. I agree with my right honourable friend the Minister that fines are not particularly effective with some people, and I am sure that it is right for us to try to encourage the concept that the driving licence is a privilege and that we ought to cherish it as such."—[OFFICIAL REPORT, Commons, 28/2/62, col. 1384.] I think most of us would agree that the licence is a privilege. I think it is right to say that this Bill is one of a series of pieces of legislation aimed at this.
In Section 15(1) of the 1930 Act we had what was then the definition of an 632 offence: being incapable of having a proper control of the vehicle. Subsection (2) laid down the penalty: obligatory disqualification, unless there were special reasons—and I will come to special reasons in a moment. We then had the 1962 Act, introduced by Mr. Marples. If I may say so, no one worked harder in the interests of road safety than did Mr. Marples, and he introduced this Act. In Section 1 we had a new definition, and we moved away from "incapable" to the word "impaired". He said, on February 28, 1962: Clause 1 therefore alters the definition of unfitness to drive to cover cases where there is a definite impairment of the driver's ability to drive properly."—[OFFICIAL REPORT, Commons, cols. 1362–63.] Section 2 provided for blood and urine tests. Here again, although there was in the definition a major change of law, the penalty of disqualification remained obligatory, with, again, the exception of special reasons. The weakness of the 1962 Act was, I suppose, that because of lack of firm agreement within the medical profession we were unable to define "impairment", and we therefore left it to the courts, where they had conflicting evidence. As the noble Lord, Lord Nugent of Guildford, has said, convictions were very rare where the blood content of alcohol was below 150 mg. We well know that there were acquittals in our courts when the accused had an alcohol concentration of 200 mg. or 250 mg.
The present Bill defines "impairment". We have defined it on the medical knowledge that is now available to us. Let there be no doubt about this: virtually everyone's driving ability is impaired at 80 mg. There may be some cases where one's ability is seriously impaired. The noble Lord, Lord Nugent of Guildford, suggested that there may be exceptions. We recognise that there are exceptions; but so far as I know there is no medical knowledge available to say who is the exception. There is not one of us who can say whether he is the exception to being impaired, or seriously impaired, at 180 mg.

A NOBLE LORD
80 mg.

§ LORD SHEPHERD
I beg your Lordships' pardon—80 mg. I think the House should be reminded again of the statistics 633 that we have. Where drivers have a concentration below 80 mg. they are responsible for some 10 per cent. of those accidents in which drink was a factor. But at 80 mg., and in excess of that, we move to a figure of some 90 per cent.
If I may, I will read to the House—because I see that the House is a good deal fuller than it was on the previous occasion—a report of the British Medical Association. They say: The recent evidence also shows that, though the degree of impairment and risk of accident involvement varies between different individuals at concentrations of alcohol in the blood up to 80 mg., the variable factors responsible for these differences are dominated by alcohol if the concentrations are in excess of this concentration… The report went on to say—and these are very significant words: The Committee feels that its previous conclusions concerning driving performances at concentrations of 100 and 150 milligrammes must now be qualified. There are very few persons in whom the impairment of ability to drive properly and an increased risk of being involved in an accident are not present to a significant extent with a blood alcohol concentration in excess of 80 milligrammes. I have read those words out deliberately in view of the fact that the noble Lord, Lord Nugent of Guildford, drew our attention to the fact that there are certain countries where the basis is higher than ours. In examining the papers I believe one could make a case for a statutory limit of 50, and not 80, milligrammes, but the Minister, after most anxious thought, decided to put it at 80 because we did not wish to set it too low and then have large numbers of persons committing a criminal offence. I think that in Committee the noble Lord, Lord Nugent of Guildford, accepted this view.
We are considering here a penalty for one of the most grave offences on the road; and it is not a technical offence. It is for Parliament is legislate, and certainly I think it is right to say—and we should support it—that there should be a continuing process of giving greater discretion to the courts. In those circumstances, however, it is right that we should consider how the courts exercise their discretion. Therefore I would draw your Lordships' attention to the other two grave offences—I refer particularly to the offences of dangerous driving and careless driving—and to the way in which the courts have exercised their discretion and 634 administered the penalties. The 1962 Act doubled the maximum fine, to £100. At that time, for careless driving the average fine in this country was some £6 19s. 0d.; in 1967—and bear in mind the changed value of money—the average fine was £10 10s. 0d. For the offence of dangerous driving, the average fine in 1960 was £15 13s. 0d., and in 1967 £19 19s. 0d.
Now let us consider the offence that is before us to-day, that of driving while one's ability is impaired by drink or drugs. In 1960 the average fine was £25; in 1967—again one must bear in mind the change in money values—it was £29. Disqualification has been obligatory, except where, in the court's view, there were "special reasons", and I think I should set out these "special reasons", so that the House will have in mind the amount of discretion that is available to the courts.
By Case Law the special reasons must relate to the offence and not to the offender. Only the courts can decide what are valid reasons, but on past form these special reasons have provided an escape. It is possible for a proportion of offenders against the present law successfully to plead special reasons. In 1965, magistrates' courts convicted 6,195 first offenders of being unfit to drive through drink or drugs. Of these, 141 were not disqualified at all, and at least 65 were disqualified for less than would have been the minimum period if there had been no special reasons. Thus at least 3 per cent. of the offenders were able to plead special reasons. Moreover, 74 second offenders were not disqualified for what would have been, without special reasons, the minimum period.
In the higher courts at least 43 out of the 815—or some 5 per cent.—first offenders had special reasons. A man can plead special reasons for committing this offence if he is saying, in effect, "No reasonable or responsible man would have done anything else in the circumstances". For example, in a case of drink or drugs a court may find that a man had special reason to commit the offence if he was driving to avert a calamity which could not be averted in any other way—for instance, if he was rushing a critically ill man to hospital when no other means of transport were available. In Committee the noble Lord, Lord Airedale, drew our attention to the hypothetical doctor 635 involved in an accident. Had that been the doctor's day off, and had he been called in an emergency, if no other means of transport was available and he took his car out on the road when his concentration of alcohol was in excess of 80 mg., I believe this would have been a special reason which he could plead in court.
I will give one last figure in connection with dangerous driving—and this was perhaps to me the most horrifying of the statistics that I have seen. Among the second convictions of dangerous driving within three years of the first offence, in England and Wales, 328 drivers were convicted of whom 154 were not disqualified. These figures are available in the Home Office statistics.
The Amendment moved by the noble Lord, Lord Nugent of Guildford, widens the discretion of the courts considerably. It provides that on a first offence a magistrate may take into account mitigating circumstances. Let us remember the gravity of this offence. So far as I know (and perhaps the noble Viscount, Lord Dilhorne, may help us later on), there is no definition of "mitigating circumstances". I believe that if this Amendment were accepted it would enable the court to decide the degree of impairment of a driver. It might well be that a driver would be before the court and found guilty of having a concentration in excess of 80 mg., but the court would be able to say: "This was a technical offence, but in our view this man's driving was not impaired". It may be said that is stretching the argument too far, but this was the argument that was put forward by a number of supporters of this Amendment in another place. I suggest that if Parliament says that a man's driving is impaired at 80 mg. then that should prevail, and it is not for the courts to overrule it.
Can we define "mitigating circumstances"? The noble Lord has taken, word for word, the drafting of the 1962 Act, so far as it applies to what is called the "totting-up" system—that is, where there have been three endorsable offences in three years. Those words were specifically devised for that Act because it was deemed reasonable—and I think rightly—that if a man was driving some 1,000 miles per week and committed 636 three trivial offences in three years, there would be a case for his putting forward mitigating circumstances.
Now let us see how the courts have administered the law in regard to these mitigating circumstances—because I think we must expect that the courts would apply the "mitigating circumstances" provision, if we put it into the Bill, as they have done under the 1962 Act. In fact 26 per cent. of the persons convicted under the 1962 Act were not disqualified. We have records of cases where courts have decided, on the most trivial grounds, not to disqualify. I will give some examples. A man who was about to take a motoring honeymoon pleaded mitigating circumstances, and he was not disqualified. A "pop" star was not disqualified because the effect of disqualification would be to cut his earnings by a third. A young man working in Blackburn, who travelled by car to Oxford each week-end to see his fiancée, was not disqualified on his third offence because to do so would ruin his wedding plans. It was not made clear why it was impossible to get from Blackburn to Oxford by public transport. Then a Nottingham businessman pleaded the extent of his business, and the courts did not disqualify him. It is true that there have been professional drivers who have not been disqualified, but others have. Therefore there is this anomaly.
May I say that if disqualification is to be a deterrent, clearly it must be uniformly applied and must appear to be just. I asked the Department whether they would carry out an exercise for me, having an imaginary man driving from Liverpool to Hull: in other words, cutting right across the country. These statistics may be of interest to the House. Let us assume that the driver already has two endorsements on his licence and he commits a third offence. Let us consider his chances of not being disqualified. On past figures, in Liverpool in 54 per cent. of cases he is unlikely to be disqualified. In Lancashire as a whole, the county through which he first travels, the proportion is 19 per cent. In Warrington it is a certainty that he will be disqualified. In Salford the figure is 56 per cent.; in Manchester, 45 per cent.; in Oldham, 5 per cent; in the West Riding, 16 per cent.; in Leeds he will be disqualified; in the East Riding the figure is 17 per cent.; and 637 in Hull 30 per cent. Those are his chances of not being disqualified on a third conviction in three years. That is in the North of England.
I now turn to the South. At Southend-on-Sea the figure is 19 per cent.; at Bournemouth 13 per cent.; at Eastbourne 45 per cent.; and at Brighton 12 per cent. To take another seaside area, in Blackpool the figure is 52 per cent. That, surely, is the grand lottery of all time. If disqualification is a deterrent, I hope that the House will agree with me that there must be a high degree of certainty in it.
The noble Lord, Lord Nugent of Guild-ford, spoke of the professional man and the van driver who may lose his job for driving when the proportion of alcohol in his blood exceeds 80 mg. I do not believe we should take a man's personal circumstances and put him in a special category in law. Perhaps the noble Lord, Lord Nugent of Guildford, may remember these words. They are not his words, but those of a colleague of his who was the Parliamentary Secretary to the Ministry of Transport. I agree with the words, which he used on February 28, 1962: We should clear our minds of cant about this. It seems that there is a fundamental confusion of thought, for the object of our concern is road safety and that is a paramount consideration. If what we are considering was the career of an airline pilot who, as a result of misbehaviour, negligence or dangeorus conduct was convicted of an offence, we would not for a moment say that he should not be disqualified from piloting an aircraft because it would mean that he would lose his livelihood. I cannot see any logical difference between the situation of an airline pilot and the situation of a professional driver of a lorry or public service vehicle on our roads."—[OFFICIAL REPORT, Commons: 28/2/62, col. 1472.] I believe that to be true especially when one sees the size of vehicles to-day and the speed at which they operate. They certainly need drivers with their wits about them, just as a pilot needs his.
The noble Lord said that the public will not know about the new rule. I informed the noble Lord in Committee that we intend to undertake a massive educational and publicity campaign. Of course there will be difficulties. Certainly there will be some hardship. Other countries have gone through this and have rapidly adjusted themselves to it. Quite soon the country will accept the rule that if you are going out and drink is 638 going to be available you do not take your car. I think we must get this firmly in our minds and in the minds of people throughout the country. That is the purpose of this piece of legislation.
I have spoken a great deal longer than I intended, but I thought I would again set out the gravity of the offence and the manner in which the courts are administering the law. I suggest to the House that we have no reason to believe that the courts will administer this particular Bill in a different way from the other legislation. That being so, if the Amendment were accepted, I believe that the value of the Bill would be lost. We must have the known limit; and that is set out in the Bill. I believe that we should have it known that conviction is more certain. We have the evidence through our laboratory tests, and we get away from all the conflicting evidence in the court. Therefore there must be the certainty of the penalty. I say to the noble Lord, Lord Nugent of Guildford, and to any of his colleagues who to-day support this Amendment, that if your Lordships pass this Amendment in regard to the offence of driving while impaired, the impairment being defined on the best medical advice offered to us, I believe you will be destroying all the good that this Bill can do in regard to a reduction of accidents.

§ 4.27 p.m.

§ VISCOUNT DILHORNE
My Lords, the noble Lord, Lord Shepherd has made a most interesting, indeed a most powerful, speech in resisting the Amendment moved by my noble friend. But in my view—and I listened to him with the greatest attention—a great many of the arguments he used were fallacious, and some of them were utterly misleading.

§ LORD SHEPHERD
My Lords, would the noble Viscount—

§ VISCOUNT DILHORNE
My Lords, I listened to the noble Lord without comment, although I felt inclined to comment. If he will allow me to develop my argument as I allowed him to develop his, it is conceivable that I shall be able to convince him. I shall give way when I have finished the sentence, and at least there will be a hope of convincing him that some of the arguments he advanced were in fact misleading and fallacious.

639

§ LORD SHEPHERD
My Lords, I hope that the noble Viscount will then tell the House the facts which he says were misleading.

§ VISCOUNT DILHORNE
My Lords, I said that the arguments advanced by the noble Lord were misleading, and I certainly would not make a statement of that kind without seeking to substantiate it. The noble Lord began by saying that the Amendment was defective. I must say that I cannot see in what respect the Amendment is defective; but I leave that point on one side, as he did. Then he said that the effect of alcohol on road accidents at Christmas time had shown really tragic figures. I believe there is some dispute as to the conclusions to be drawn from those figures. However that may be, I should like to make it clear at the outset that I am not one of those who regard anyone who drives when his faculties for driving are impaired by alcohol or drugs as deserving of sympathetic treatment or as not being guilty of a serious offence. I start with that, and I hope I carry the noble Lord with me.
But then he said that effective enforcement depended on certainty of conviction. Before you get to conviction, the effective enforcement of the law depends on the odds being against committing it and avoiding detection and arrest. The most important element about enforcement is that the odds against getting away with it should be reduced as much as possible.

§ LORD SHEPHERD
The Bill does that.

§ VISCOUNT DILHORNE
No, the Bill does nothing of the sort. The Bill does not provide any greater degree of enforcement in the chances of people being stopped and brought before the courts. That will depend on the police, and I hope that that will be the result. The effective enforcement of any of our criminal law depends in the first instance on the police. The second element is that where the guilt is proved there should be a conviction. There we are in agreement. But I disagree about the third point. It is surely not an essential element of effective enforcement that the penalty on conviction of a crime should always be the same. If that were so, then our courts are acting wrongly every single day. That was the main fallacy of 640 the noble Lord's argument: the assumption that for effective enforcement one must have a penalty—and I quote his words—"that is fair and is applied to all." That is to say, he is arguing that, although for this offence and other offences the courts have discretion to temper justice with mercy and to impose a penalty which they think is appropriate, for this offence they can do that in relation to imprisonment, they can do that in relation to the fine, but they cannot do it in relation to disqualification.
The noble Lord went on to make some telling quotations from speeches made by my noble friend and by Mr. Marples in another place, and I began to get rather anxious lest he should find something that I had inadvertently said. I am comforted by the fact that he did not. He then went on to give us the averages. He gave us the average fine for careless driving and said how it has increased; the average fine for dangerous driving, and so on. Nothing could be more misleading. I remember years ago Lord Simon, in the course of arguing a case, pointing out how misleading reference to averages could be. I remember his talking of an illness and the assertion that the average age at which it was suffered was 45 years of age, but that there were only two known instances, one of a man of 90 and the other of an infant under the age of one. Nothing could be more misleading than to talk about the average fine for careless driving. Careless driving may be a very trivial offence not warranting a heavy fine if justice is to be done.

§ LORD SHEPHERD
What about dangerous driving?

§ VISCOUNT DILHORNE
Dangerous driving varies in degree, too, and the averages there are just as misleading. The noble Lord has only to read the newspapers to see that in many cases nowadays the fines have substantially increased—and when I say "substantially", I mean it. I do not think we ought to found our decision on this issue on any argument based on averages of fines, or indeed on the averages of cases in which the courts have held that there have been special reasons for not disqualifying. Of course, if one takes the view, as does the noble Lord, that in every case there should be a disqualification, then it is wrong not to disqualify even if, although 641 the law allows it, there are special reasons for not disqualifying. That is what the law allows. The noble Lord's argument has no weight at all unless he says that under that law the courts which applied that law were wrong in the decisions which they made. He cannot say that, nor can my noble friend behind me, because they do not know the facts and one cannot just read the facts from Press reports. I am not in the least convinced about the numbers who have not been disqualified.
What is the real issue here? It is the issue whether Parliament takes away from the courts part of their normal function. Whatever the offence, it is normally the court's function to decide, having regard to all the circumstances, what are the appropriate penalties. I have always been against the imposition of automatic penalties in principle because, in my belief, automatic penalties can in a number of cases be excessive, unfair and unjust. But this Amendment is not concerned with removing the automatic penalties on a second or third offence. All we are concerned with here is the first offender. I would ask the noble Lord to bear that in mind.
When I was Lord Chancellor the training of magistrates was started. The noble and learned Lord the Lord Chancellor has made that compulsory, and the response of magistrates has been extraordinarily satisfactory. I think it is true to say that they have now a much greater, and indeed growing, appreciation of their duties and of the importance of them, and a greater knowledge of the considerations to apply in determining what is and what is not the proper sentence to impose. Quite apart from that, as the noble Lord I am sure knows, the Lord Chief Justice has held conferences, as have others, up and down the country giving guidance to magistrates amongst other things, as to sentencing.
I think that it is a very desirable feature, and I think that as a result the standard of administration of our justice in magistrates' courts has improved considerably. That is why I consider that it is a retrograde step now to deprive them of all discretion in this field in relation to the first offender. If they are not passing sufficiently adequate sentences according to the best public opinion, then surely the answer is not to 642 make it arbitrary justice by the imposition of automatic penalties but to seek, as the noble and learned Lord the Lord Chancellor is doing, and as his predecessors did, to improve the administration of that justice. Surely that is the right way to do it, and it is for that reason that I support this Amendment.
What harm can be done if this Amendment is carried? It may mean that in some cases—and I do not think there would be many because the view of the gravity of this offence has changed a good deal in recent years—conviction for having more than 80 mg. would not be followed by disqualification, although it might be right that that should be the consequence, and if the noble Lord were sitting adjudicating he might well take that view. But if he did, I feel sure that the financial penalty which would be imposed would be one which would impress the gravity of the offence very seriously indeed upon the offender. I should like to see the courts entrusted, as I think they ought to be, with that discretion. I do not like the use of the word formula, like "special reasons". As the noble Lord knows, those words give rise to considerable difficulties in the courts. The words of the Amendment give a very wide discretion where it is thought that there are mitigating circumstances. I should have thought that that was right, but I do not believe that would be generally or widely used.
As to the limit of 80 mg., the noble Lord devoted a great deal of his speech to justifying that limit. I am not competent to express any opinion on it. I hope it is right. I am ignorant of that subject, though I was comforted by my noble friend Lord Nugent of Guildford indicating that it required much more alcohol to raise the blood content of a large man to that limit than it did in the case of a smaller one. Be that as it may, this is a serious issue. In the past in this field we have entered into the practice of imposing automatic penalties and not leaving it to the courts. Personally, I think that it is undesirable as a general principle that a special case has to be made out for doing this. I do not think that a special case has been made out in relation to first offenders for an offence under this Bill and, therefore, if my noble friend presses this 643 Amendment to a Division I shall certainly give him my support.

§ 4.40 p.m.

§ LORD LINDGREN
My Lords, we have had two very different and distinctive speeches in favour of this Amendment. For my part, I much prefer the approach of the noble Lord, Lord Nugent of Guildford, to that of the noble and learned Viscount, Lord Dilhorne. If ever there were a statement which might be misleading it was that of the noble and learned Viscount, when he referred to "automatic penalties". There are no automatic penalties; the noble and learned Viscount knows that. There is a discretion, whether the case be in the magistrates' court or before a learned judge, because there is a range of penalties. I do not know of a single offence in which either the higher court or the lower court has to apply a fixed penalty. It has certain conditions which it has to follow. Therefore, if anybody has been misleading, it is the noble and learned Viscount.
Equally, one of the problems in so far as drink and driving are concerned concerns the legal profession. The manner in which lawyers have abused doctors who have been called by the police to give evidence is to my mind disgraceful. They have almost asserted that the doctor did not get his qualifications by examination. The noble Lord, Lord Nugent of Guildford, was quite right when he said that there had been a change in social habits. The motor car has changed social habits. It has affected whole spheres of activity. If there has been a change in social habits, in the extensive use of a vehicle which is liable to cause considerable damage and distress to others, even loss of life, then there ought to be a penalty in regard to it.
The noble Lord, Lord Nugent of Guildford, referred to cases where hardship might be caused, but there was hardship before we had the motor car. We had two legs, and there was the horse. I had a case before the Bench on which I sit where it was argued by learned counsel that the man should not be disqualified because he used his car for going to and from work. If one replies that other people have to go to work without having a motor car, they do not 644 like it. If a person has the responsibility of driving a car, then he also has the responsibility of seeing to it that, so far as possible, he uses that car effectively and without danger to others. I think it has been proved conclusively on medical grounds that the taking of drink beyond a certain limit when driving and controlling a car is dangerous to others. Therefore, one ought not to do it.
I agree entirely that disqualification is the highest penalty. A large number of people do not care if they are fined. What they are concerned about is losing the convenience and facility of being able to drive a car when and where they want to. If a person wants that privilege of citizenship in an affluent society, then he has a duty to conform to rules and regulations which will make the roads as safe as possible. I hope that the House will not accept this Amendment.

§ LORD MOLSON
My Lords, I think it has been accepted for a long time by public opinion that the penalties imposed by the courts upon persons guilty of dangerous driving have been too lenient. It has been the steady line of the Ministry of Transport over a number of years, regardless of which Party has been in power. I well remember in the middle of the 'fifties, when I was Parliamentary Secretary to the Ministry of Transport, we approached the then Lord Chancellor and asked him to take an opportunity of drawing the attention of magistrates to the desirability of imposing greater penalties.
If we follow the line of legislation, we see that Parliament has consistently endeavoured to give a lead to the courts to impose heavier penalties. It has done so by increasing the penalties which might be imposed; it has also done so by restricting, directly and by suggestion, the discretion of the courts to impose less severe penalties. After listening to the examples which have been given, I have no hesitation in saying that in many of those cases the decision of the court of magistrates was definitely wrong. It is in order to bring pressure to bear upon the magistrates to impose heavier penalties that I think this Amendment ought not to be accepted.
The position of Parliament in these matters is a difficult and delicate one. Of course, if one goes to the extreme of 645 requiring a very heavy penalty to be automatically imposed, the consequence is that the courts do not convict. That was the case in the 18th and early 19th centuries when a person was hanged for stealing anything in excess of 5s. or 6s. or something of that kind. We are not proposing anything of that kind; we are not going to that extreme. But it really is a serious matter when the courts use the discretion which has been given to them in an unduly large number of cases.
At the Committee stage, the noble Lord, Lord Stonham, gave us some examples of the penalties which had been imposed on persons driving while disqualified. There were 8,500 convictions for driving while disqualified, and in 4,500 of those cases the penalty was a fine only. Parliament laid it down in Section 110 of the Road Traffic Act, 1960, that: If a person disqualified for holding or obtaining a licence…while he is so disqualified drives on a road…shall be liable on summary conviction to imprisonment for a term not exceeding six months, or, if the court thinks that having regard to the special circumstances of the case a fine would be an adequate punishment for the offence, to a fine not exceeding fifty pounds… The clear indication given to the courts by Parliament was that in all normal cases when a person who had been disqualified was driving a car the penalty should be imprisonment. It was only in special cases justifying more lenient treatment that a fine might be substituted for imprisonment. But in 4,500 cases out of 8,500 the courts found that there were special circumstances. I cannot believe that that was in accordance with the intention of Parliament. I believe that it is due to the natural and excusable, but regrettable, tendency of magistrates' courts to deal too leniently with motoring offences.
The explanation of it is perfectly simple and not discreditable. It is that nearly all of us drive motor cars, and when a person is accused of an offence one is very apt to say, "There but for the grace of God go I". It is for Parliament to give a clear indication to the courts that, in a matter of this gravity, which every year involves many deaths and still more injuries, penalties should be more severe. I believe that the Bill as drafted is right. I do not think that the fact that a person is a professional driver of motor cars is any reason why he should not be dis 646 qualified. On the contrary, I should have thought that it was an additional reason for disqualification. Therefore, I regret I find myself unable to agree with the reasoning of my noble friends who have already spoken in support of the Amendment.