Road traffic update

This review examines decisions in recent road traffic law cases.-- ArrestThe police had set a trap and the defendant entered a car, the doors of which were secured automatically once the defendant was inside.

The police arrived on the scene within a few minutes and informed the defendant of his arrest.

On an appeal (Dawes v DPP [1994] The Times, 2 March), the Divisional Court held that the defendant had been arrested by being trapped inside the vehicle; in the circumstances the police had satisfactorily fulfilled their duty to inform him of the fact of his arrest and the grounds thereof as soon as was practicable.

Damage caused to the vehicle by the defendant in his efforts to escape amounted to aggravated vehicle-taking under s.12A(1) of the Theft Act 1968, by reference to s.12A(2)(d).-- BreathalyserThe controversy over whether it is necessary when charging an offence under s.7(6) of the Road Traffic Act 1988 (failing without reasonable excuse to provide a specimen of breath for analysis) to indicate whether the offence in respect of which the allegation is made is driving or attempting to drive rather than being in charge of the vehicle has now been settled.

It seemed to have been laid to rest by Shaw v DPP [1993] Gazette, 2 May, 26, where the Divisional Court ruled that s.7(6) was concerned with but a single offence and it was stated that the decision setting out the contrary view (Corcoran v DPP 1 All ER 912) had been decided per incuriam.

However, the matter again reached the Divisional Court in Butterworth v DPP [1994] RTR 181, and questions were certified for the attention of the House of Lords.

In the House, it was stated that Corcoran had been wrongly decided; the offence under s.7(6) was essentially that of refusing a requirement to provide a specimen and at the stage of seeking a breath test it was not necessary that the police should have decided under which provision a charge should be preferred if the motorist 'failed' the test.

Accordingly, it is now clear that an information which charges a failure to supply a specimen of breath but which does not state whether the motorist was driving the vehicle or was merely in charge of it is not bad for duplicity; further, the information need not disclose whether the motorist would have been charged under s.4 (driving, or being in charge, when under the influence) or s.5 (driving, or being in charge, with excess alcohol) (DPP v Butterworth [1994] 3 WLR 538).-- Careless drivingThe Traffic Signs Regulations and General Directions 1981 (SI 81/859) prescribe the prohibition against driving past a red traffic signal (reg 34).

Express provision is made (reg 34(1)(b)) for vehicles being used for police purposes, the driver of such a vehicle being required not to proceed beyond the stop line in a manner which would be likely to cause danger to the driver of any other vehicle proceeding in accordance with the light signals.

In such circumstances, the care required of a police driver (the absence of which would amount to driving without due care and att ention) is that prescribed by reg 34; there is no scope for the application of the doctrine of necessity of circumstances as a defence to a charge of careless driving (DPP v Harris [1994] The Times, 16 March).-- DisqualificationA driver was subjected to two orders of disqualification under s.29(1) of the Road Traffic Offenders Act 1988 ('totting-up') in respect of a single offence requiring mandatory disqualification (driving with excess alcohol).

The periods of disqualification were concurrent.

Within three years he was again convicted of an offence involving obligatory disqualification.

The Divisional Court has ruled that, in such cases, the two earlier orders should properly be regarded as a single order for the purposes of s.34(4)(b) of that Act, as substituted by the Road Traffic Act 1991, hence not as necessitating the period of disqualification to be lifted from 12 months to 24 months (Learmont v DPP [1994] The Times, 1 March).

The court left open the question of how it would treat orders for disqualification made on the same occasion in respect of different offences.Legal aid may be sought in appropriate circumstances by an applicant for the removal of a disqualification under s.42 of the Road Traffic Offenders Act 1988 (R v Recorder of Liverpool, ex p.

McCann [1994] The Times, 4 May).In a case of causing death by careless driving where the driver has excess alcohol in his or her body, a custodial sentence is normally appropriate and the length of sentence dependent on the extent of the carelessness and the extent by which the driver has exceeded the prescribed limit.

In a case where the driver (who had a previous conviction for driving with excess alcohol) was substantially over the limit and the alcohol affected his driving so as to be a cause of the incident which resulted in a death, the Court of Appeal refused to interfere with an order for seven years' disqualification (R v Deery [1994] Crim LR 468).-- Drink/drive offencesIt is no defence to a charge of driving or attempting to drive after having consumed excessive alcohol for the defendant to show that the alcohol had not been consumed by mouth (DPP v Johnson [1994] The Times, 15 March, where benzyl alcohol which had been injected into a patient by a doctor may have affected the amount of alcohol in the defendant's breath).

Where, however, a person is charged with being in charge of a vehicle after consuming excess alcohol (s.5(1)(b) of the Road Traffic Act 1988), a court is entitled when considering the statutory defence of there being no likelihood of driving (s.5(2)) to have regard to the fact that the vehicle was at the time wheel clamped and that there was little likelihood of the person in charge being able to secure its release (Drake v DPP [1994] The Times, 4 April).A motorist who was entitled to be offered the opportunity to provide a specimen for laboratory analysis in lieu of a specimen of breath alleged that an unrecorded conversation had taken place between her and the police in the course of the breathalyser procedure in which she had been dissuaded from exercising that right.

In such a case, the onus remains on the prosecution to prove beyond reasonable doubt that the correct procedure has been followed, and the motorist is not required to establish on the balance of probabilities either that the conversation had taken place or that it had had the effect alleged (Rush v DPP [1994] RTR 268).-- Driving testsDir 80/1263/EEC on the introduction of a Community driving licence does not require member states to conduct driving t ests on motorways when such are located within reach of test centres, nor does it require them to allow driving instruction to be given on motorways (Criminal Proceedings against Morais Case C 60/91) [1992] ECR I-2085).-- EvidenceA series of cases has shown that where oral evidence is given to the effect that a breath-testing device has calibrated and was working properly, such evidence may also be admitted as to the readings provided by that device (see DPP v Hutchings [1991] RTR 380).

The decisions in these cases were challenged in Thom v DPP [1994] RTR 11, but the earlier authorities were upheld by the Divisional Court and Owen v Chesters [1985] RTR 191 was explained.

The importance in such cases of ensuring that oral evidence is given as to the calibration of the breathalyser and its reliability was emphasised in Greenaway v DPP [1994] RTR 17; the driver in that case lost his appeal against conviction because the evidence of the police witness who had stated (at the trial) that all the readings showed that the breathalyser had been working properly was not challenged at that time.Fox v Chief Constable of Gwent [1986] AC 281 made it clear that a lawful arrest was not a pre-requisite of the admissibility of evidence of the result of a breath test taken at a police station.

That decision does not, however, discharge justices from exercising their discretion under s.78(1) of the Police and Criminal Evidence Act 1984 (admission of evidence which would have an adverse effect on the fairness of proceedings) wherever criticism is made of the conduct of the police and the circumstances surrounding a roadside breath test (Sharpe v DPP [1993] RTR 392).In proceedings for supplying a defective motor vehicle, if the prosecution adduces an expert report for the first time the defence is entitled to an adjournment for the purposes of obtaining the view of another expert even if the report which is adduced is said to be independent and is believed by the justices (R v Sunderland JJ, ex p.

Dryden [1994] The Times, 18 May).If it is intended to produce a computer print-out in court as evidence, the prosecution must show affirmatively that there has been no improper use of the computer and that it was operating correctly at the material time (Connolly v Lancashire CC [1994] RTR 79, a case concerning a computer-operated weighbridge, in which the court applied R v Shephard [1993] AC 380).

It is not sufficient to rely on the presumption 'omnia praesumuntur rite esse acta'.-- GLC lorry banGoods vehicles over a certain weight are banned from using restricted roads at night and at weekends by the Greater London (Restriction of Goods Vehicles) Traffic Order 1985 (GLC 85/343) unless permits are held.

A condition of the permits requires that any use made of a restricted road is kept to a minimum.

The failure to comply with this condition might result in the revocation of the permit; notwithstanding that sanction, non-compliance is also punishable as an offence under s.8(1) of the Road Traffic Regulation Act 1984 (Post Office v Richmond upon Thames LBC [1994] The Times, 17 May).

In the same case, the Divisional Court declined to condone the contravention on the ground that compliance with the requirement was in the particular circumstances unreasonable, in that it would require a substantial detour to avoid a short length of restricted road.-- Laboratory specimenWhere a police officer decides that a breath analysis device is not reliable and requires a specimen of blood which is provided and analysed, any prosecution ca n thereafter be based only on the analysis of blood and not on that of breath (McLellan v DPP [1993] RTR 401, applying a dictum of Glidewell LJ in Badkin v DPP [1988] RTR 401).

The Road Traffic Act 1988 does not, however, allow a specimen of breath to be supplied by a person who is in hospital; in such a case the police officer should advise the motorist why specimens of breath could not be taken and should then proceed with the procedure for taking specimens for laboratory analysis, ie inform the motorist that a specimen was required but that the police would decide whether it should be of blood or of urine, etc (DPP v Nesbitt [1994] The Times, 2 February).When a specimen of blood is divided into two parts and one part is handed to the motorist in a container, there is no requirement in law for that container itself to be inside an envelope; if an analyst is reluctant to analyse a specimen which is not provided in an envelope that is not a matter which in any way reflects on the adequacy of the provision of a suitable part specimen to the motorist (DPP v Snook [1993] Crim LR 883).Where a specimen for laboratory analysis is provided by a motorist in exercise of his statutory option, this is not a specimen which has been 'required' to be provided and hence there is no requirement that the police officer should warn the motorist that the failure to provide the specimen may result in a prosecution (cf s.7(7) of the Road Traffic Act 1988) (Hayes v DPP [1993] Crim LR 966).

In fact, the sanction for failing to provide a replacement specimen following the exercise of the statutory option is the use of the analysis of the original specimen of breath as evidence (ibid).That a fear of 'needles' might constitute medical reasons for refusing to supply a specimen of blood rather than one of urine was confirmed by the Divisional Court in R v Epping JJ, ex p.

Quy [1993] Crim LR 970.

In that case the driver had the right to opt to provide a replacement specimen for the specimen of breath with the lower reading; but the police officer insisted that the specimen should be of blood rather than of urine without having inquired further into the driver's expressed fear of needles.

In the circumstances, the driver had established a ground for not providing a specimen of blood which might constitute a medical reason, and the prosecution had no right thereafter to proceed on the basis of the analysis of breath.-- PracticeAn application for judicial review was successfully brought in proceedings for an offence under s.5 of the Road Traffic Act 1988 where the driver wanted to run the hip-flask defence, but, in breach of natural justice, he was refused an adjournment when two of his witnesses failed to appear (R v Bristol Magistrates' Court, ex p.

Rowley [1994] RTR 40).

The court was prepared to grant an order of certiorari even though the driver had abandoned an appeal to the Crown Court.

The court also declined to rule that R v Bradford JJ, ex p.

Wilkinson [1990] RTR 59 (also to the effect that an application for judicial review was not defeated by the existence of a right of appeal) had been decided per incuriam.-- Previous convictionsWhere a driver had been charged with reckless driving and he pleaded duress as a defence to that charge (the duress arising from a fear of the other driver concerned in the incident), the previous convictions of the other driver might have been material to the defence raised and the Court of Appeal quashed a conviction where evidence of the other driver's previous convictions had not been admitted ( R v Murray [1994] The Times, 24 June).-- Reasonable excuseAlthough medical evidence is normally required before a motorist can successfully raise a defence of mental or physical inability to provide sufficient breath for a specimen to be analysed, the absence of medical evidence is not necessarily fatal to such a defence (DPP v Crofton [1994] RTR 279).-- SentencingThe offence of aggravated vehicle-taking is concerned with the effects of the driving on others and the criminal responsibility of the driver of the vehicle and the passengers is comparable (R v Ore and Tandy [1994] Crim LR 304).

The sentence in such cases should not necessarily be determined by starting with the maximum and discounting to allow for the possibility of there being worse cases (ibid).A compensation order may not be made in consequence of a road traffic accident if compensation is payable by the Motor Insurers Bureau (s.35(3)(b)(ii) of the Powers of Criminal Courts Act 1973).

Accordingly, a payment of the amount representing the threshold below which the bureau would not make any payment (currently £175) was within the power of the sentencing court even though no larger sum was immediately due and payable by the bureau in respect of the accident (DPP v Scott [1994] The Times, 15 August).-- Special reasonsIf a driver pleads that he has tried his hardest to supply a specimen of breath and has failed to do so (for physical reasons) and the court rejects that plea as untenable on the evidence as a whole, the same plea cannot constitute a special reason for not disqualifying the driver (DPP v Daley (No.2) [1994] RTR 107).-- TachographsA goods vehicle, the maximum permissible weight of which (including any trailer or half-trailer) does not exceed 3.5 tonnes, does not need to be fitted with a tachograph (Reg (EEC) 3820/85, art 4(1), and Reg (EEC) 3821/85, art 3(1)).

The 'permissible maximum weight' of a vehicle is defined as its maximum authorised operating weight fully laden (Reg (EEC) 3820/85, art 1(6)).

That weight is the aggregate of the maximum gross weight as marked on the tractor and of the maximum gross weight as marked on the trailer in actual use (Small v DPP [1994] The Times, 11 April).

In calculating that aggregate, no regard should be given to the weight of any other trailer which the vehicle might be capable of drawing.-- Taxi licensingAn unreasonable condition which was attached to a taxi licence should be challenged by an appeal to the magistrates' court rather than by judicial review as the justices (if all proper parties were before the court) could amend the condition whereas the Divisional Court could not do so (R v Blackpool Borough Council, ex p.

Red Cab Taxis Ltd [1994] The Times, 13 May).-- Traffic signsThe Traffic Signs Regulations and General Directions 1994 (SI 94/1519) revoked and replaced the like-named regulations and general directions of 1981 on 12 August 1994.-- Unfitness to driveA driver who was a diabetic and who injected himself daily with insulin suffered a hypoglycaemic attack and crashed his vehicle.

He was charged with driving when unfit through drugs (s.4(1) of the Road Traffic Act 1988).

The Divisional Court quashed his conviction, not having been satisfied that there was sufficient expert evidence before the magistrate to entitle him to be sure beyond reasonable doubt that the attack had been induced by the insulin injection which the driver had taken some hours earlier, or that any failure on the part of the driver had caused the attack and there being evidence before the court th at (by reason of the difficulty in maintaining the appropriate blood-sugar balance) even a careful diabetic was liable to such attacks (R v Ealing Magistrates' Court, ex p.

Woodman [1994] RTR 189).-- Vehicle excise dutyBefore the offence of fraudulently using a vehicle excise licence can be established (eg use of an altered licence disc), the prosecution must show that the vehicle was being or had been used on a public road with such licence (R v Johnson [1994] The Times, 24 February).

The statutory provision (s.26(1)(c) of the Vehicles (Excise) Act 1971) should be strictly construed, and the offence is not made out merely by showing that the person who might use the vehicle had an intention to use it on a public road at some time in the future (Cook v Lanyon [1972] RTR 496 considered).On a charge of forging a tax disc, it is not necessary for the prosecution to prove an intention to deceive on the part of the defendant and the definition of 'forgery' in the Forgery and Counterfeiting Act 1981 is applicable (R v Macrae [1994] Crim LR 363).The Vehicles Excise and Registration Act 1994 repealed and replaced the Vehicles (Excise) Act 1994 on 1 September 1994.

The new Act is a consolidation measure, but it largely incorporates the 'temporary' provisions contained in sched 7 to the 1971 Act which in effect amended a number of the provisions of that Act throughout its existence.