Crown Prosecution Service v Bate [2004] EWHC 2811 (Admin)

Case No CO/4763/2004[2004] EWHC 2811 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Venue Royal Courts of JusticeDate Monday, 22nd November 2004
Strand
London WC2
B E F O R E:
LORD JUSTICE ROSE
(Vice President of the Court of Appeal, Criminal Division)
MR JUSTICE PITCHFORD
Between
CROWN PROSECUTION SERVICEAppellant-v-
Between
JOHN BATERespondent
Computer-Aided Transcript of the Stenograph Notes ofSmith Bernal Wordwave Limited190 Fleet Street London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
MR RHB MARTIN (instructed by the Crown Prosecution Service) appeared for CLAIMANTMR A DICKENS (instructed by Glaisyers) appeared for DEFENDANT
J U D G M E N T
[1]MR JUSTICE PITCHFORD: This is a prosecutor's appeal by way of case stated from a decision of the Birmingham Justices of 22nd July 2004 when they dismissed an information laid against the respondent under section 5(1)(b) Road Traffic Act 1988.[2]The facts found by the Justices were as follows. On 8th May 2004, the respondent drove his motor car, a Ford Focus, BV51 VUX, to Spencer Street in Birmingham. He parked about 30 yards from, and walked to, The Jewellers Arms public house. He there consumed alcohol until about 5.20 pm when he returned to his car. Police Constable Wickenden, who was driving past, saw the respondent approach his car with his car keys in his hand. He used the keys to open the driver's door and was observed to stumble as he did so. Police Constable Wickenden parked and walked to the Ford Focus.[3]When he arrived, the respondent was sitting in the driver's seat with the car keys in his hand, but the engine was not running. Police Constable Wickenden tapped the window, but there was no immediate response from inside. Then the respondent wound down the window and a conversation took place. It was clear that the respondent had been drinking. Two officers were summoned carrying breath test equipment. A roadside test was administered and the test was positive. The respondent was arrested and taken to Steelhouse Lane Police Station where the intoxilyzer procedure was carried out. The respondent's reading was 95 micrograms per one hundred millilitres of breath. The limit at the material time was 35.[4]Section 5 Road Traffic Act 1988 provides:
"(1) If a person ... "(b) is in charge of a motor vehicle on a road or other public place "after consuming so much alcohol that the proportion of it in his breath ... exceeds the prescribed limit he is guilty of an offence. "(2) It is a defence for a person charged with an offence under subsection 1(b) above to prove that at the time he is alleged to have committed the offence the circumstances were such that there was no likelihood of his driving the vehicle whilst the proportion of alcohol in his breath ... remained likely to exceed the prescribed limit."
[5]The Justices found that the respondent was not in charge of the vehicle and it is this finding which is challenged by the prosecutor.[6]Before they retired, the Justices received advice from their legal adviser. That advice was that the test whether the respondent was in charge of the vehicle was described at chapter 3, paragraph 1375, footnote 5, of Stone's Justices' Manual 2004. The footnote was a summary and paraphrase of guidance given by this court in DPP v Watkins [1989] QB 821 at page 831, considering Section 6 of the Road Traffic Act 1972, the predecessor of section 5 of the 1988 Act.[7]It is instructive, I think, to consider the passage in full, from the judgment of Taylor LJ, as he then was, at page 831(a):
"We have been greatly assisted by ... [counsel] ... They both accept that no hard and fast all-embracing test can be propounded as to the meaning of the phrase 'in charge'. "
Broadly there are two distinct classes of case. (1) If the defendant is the owner or lawful possessor of the vehicle or has recently driven it, he will have been in charge of it, and the question for the court will be whether he is still in charge or whether he has relinquished his charge ... Usually such a defendant will be prima facie in charge unless he has put the vehicle in someone else's charge. However he would not be so if in all the circumstances he has ceased to be in actual control and there is no realistic possibility of his resuming actual control while unfit, eg if he is at home in bed for the night, or if he is a great distance from the car or if it is taken by another. "(2) If the defendant is not the owner, the lawful possessor or recent driver but is sitting in the vehicle or is otherwise involved with it, the question for the court is, as here, whether he has assumed being in charge of it. In this class of case the defendant will be in charge if, whilst unfit, he is voluntarily in de facto control of the vehicle or if, in the circumstances, including his position, his intentions, and his actions, he may be expected imminently to assume control. Usually this will involve his having gained entry to the car and evinced an intention to take control of it. But gaining entry may not be necessary if he has manifested that intention in some other way, eg by stealing the keys of a car in circumstances which show he means presently to drive it. "The circumstances to be taken into account will vary infinitely but the following will usually be relevant:
"(i) Whether and where he is in the vehicle or how far he is from it. "(ii) What he is doing at the relevant time. "(iii) Whether he is in possession of a key that fits the ignition. "(iv) Whether there is evidence of an intention to take or assert control of the car by driving or otherwise. "(v) whether any other person is in, at or near the vehicle and if so, the like particulars in respect of that person. "
It will be for the court to consider all the above factors with any others which may be relevant and reach its decision as a question of fact and degree."[8]The motor car in the case being considered by the court on that occasion did not belong to the defendant, as Taylor LJ observed. He was sitting in a Mini motor car with a key in his hand marked "Honda". The Justices held that there was no case to answer. The court allowed the prosecutor's appeal. It was held that, once the prosecution had shown an assumption of control, the burden of proving that there was no likelihood of driving shifted to the defence. In ruling that the defendant had no case to answer, the Justices had reached a decision on the likelihood of driving prematurely.[9]Here, the Justices gave their reasons for finding that the respondent was not in charge of the vehicle at paragraph 7 of their statement of case:
"We were of the opinion that: "(a) The respondent was sat in the driver's seat of the vehicle and that he had the keys to the vehicle but they were not in the ignition. The respondent had no intention of taking or asserting control of the vehicle and therefore no intention to drive it. "(b) We therefore found that the Prosecution had failed to prove the respondent was in charge and therefore had failed to prove the case beyond reasonable doubt. We therefore dismiss the information."
[10]The factual findings which led to this conclusion are contained in paragraph 2 of the case, partly at (b) and partly at (c):
"(b)... The respondent's intention was to phone his wife when he left the public house, she would in turn telephone a local taxi firm and organise a taxi to collect the respondent and take him to his home address. The respondent regularly telephoned his wife for her to arrange a taxi to collect him. "(c)... The respondent went back to his car to collect a disabled parking sticker belonging to his daughter, which was in the side panel of the vehicle."
[11]The questions posed for the attention of this court are:
"In basing our opinion on 'insufficient proof to establish that the defendant intended to take or assert control of the vehicle', did we correctly apply the test laid down in DPP v Watkins?"
[12]Secondly:
"Was the decision in this case one which any reasonable bench of Magistrates, properly directed in law, could have reached?"
[13]It is clear that the Justices here, as in the case of Watkins, did not reach a consideration of the statutory defence. Counsel for the prosecutor submits that the Justices erred in their approach. On the facts as found, the respondent was self-evidently in charge of the vehicle. The Justices should then have go on to consider the statutory defence, and the findings which they made with regard to the respondent's intention would have been relevant to the statutory question whether or not there was a likelihood that he would drive the vehicle whilst unfit.[14]Had the statutory defence been examined by the Justices, the burden of proof was upon the respondent and the standard was the balance of probabilities. It is submitted that the Justices appear to have treated the likelihood of driving as an ingredient of the offence which the prosecution was required to prove to the criminal standard.[15]It will be observed from the passage in the judgment of Taylor LJ, to which I have referred, that one of several possible factors to be considered depending upon the factual matrix of the case before the Justices is whether there is evidence of an intention to take or assert control of the car by driving or otherwise. Proof of an intention to assert control may be sufficient, even if proof of overt acts of actual control is missing. For example, if a defendant tells his friends that he is going to drive home, that may well be sufficient evidence that he was in charge of his car when the only evidence of an overt act was that he walked out of the public house.[16]However, the weight to be attached to the circumstances envisaged by the court in Watkins will depend upon all the circumstances of the case. It is not necessary for the prosecution to establish to the criminal standard an intention to drive in order to prove an offence under section 5(1)(b) if the evidence otherwise establishes that the defendant is in charge of the vehicle. Being in charge is not synonymous with an intention to drive, but an intention to drive may prove that charge of the vehicle has not been relinquished.[17]At the conclusion of the judgment of Taylor LJ at page 833 A, in answering the third of the questions posed to the court, he said:
"The meaning of the phrase 'in charge' does necessitate a close connection between the defendant and the control of a motor vehicle in the way I have endeavoured to indicate in this judgment. It does not necessitate proof of the likelihood of the defendant driving the vehicle."
[18]It seems to me that the Justices erred in their approach. I accept the submission made on behalf of the prosecutor by Mr Martin that the Justices misunderstood, and therefore misapplied, the guidance to which they were referred. They applied one of the circumstances which the court should consider as though it was a separate ingredient of the offence that the prosecutor was required to prove.[19]On the findings of fact made by the Justices, the respondent manifestly was in charge of the vehicle. Far from relinquishing his charge he had, by entering and sitting in the vehicle, reasserted his charge. On the facts of this case, a judgment whether the respondent had an intention to drive would only have become material upon an examination of the statutory defence under section 5(2) and as my Lord, Rose LJ, observed in the course of argument, the issue at that stage for consideration under the subsection was not merely intention, but what was the likelihood of driving whilst unfit or over the statutory limit?[20]The burden of establishing the statutory defence rested upon the defendant and the standard was the balance of probabilities. As a result of the misapplication of the guidance, it seems to me that the Justices did not reach that stage. In my view, their approach was fatal to their decision to dismiss this information. I would answer both questions posed for our consideration in the negative and it would seem that the matter should be remitted for a hearing before a different bench of magistrates in due course.

LORD JUSTICE ROSE: I agree. It appears that the Justices may have confused the separate questions of whether the defendant was in charge and whether the statutory defence under section 5(2) was open to him. The uncontested evidence before the Justices was that the defendant was the owner of the car, and he was sitting in it with the ignition keys in his hand. From this, absent any suggestion that anyone else may have been in charge of the car, it seems to me that it should have been the inescapable conclusion that the defendant was in charge. In this respect the Justices were in error.

[22]However, the statutory defence under section 5(2) would have been open to the defendant if he had proved that there was no likelihood of his driving while he remained unfit. As appears from the case stated, the defendant was taking his daughter's disabled sticker out of the car and he regularly telephoned his wife to arrange for a taxi to take him home from this public house. These matters, no doubt with others, would be relevant to the likelihood required by section 5(2).[23]The Justices, however, did not address the question of likelihood. They considered the defendant's lack of intention to drive precluded him from being in charge. But, as I have said, likelihood, not intention, is what the statutory defence requires. In this respect also, the Justices fell into error.[24]Accordingly, as my Lord has indicated, the decision of the Justices will be quashed and the case will be remitted for rehearing before a different bench of Justices in accordance with the terms of the judgments of this court.[25]MR MARTIN: My Lord, I do not have any specific instructions to apply for costs. I do not think it is usual in cases such as this.

LORD JUSTICE ROSE: Did you say you think it is usual or not usual?

[27]MR MARTIN: I think it is probably not usual in cases of this nature for the Crown to apply for costs.

LORD JUSTICE ROSE: It sometimes depends on what the means of respondent are, but if you are not asking for costs we will certainly not make an order.

[29]MR MARTIN: In all the circumstances, I certainly do not ask for one.

LORD JUSTICE ROSE: Thank you very much.