Director of Public Prosecutions V. Watkins

ICLR: King’s/Queen’s Bench Division/1989/DIRECTOR OF PUBLIC PROSECUTIONS v. WATKINS – [1989] Q.B. 821

[1989] Q.B. 821

[QUEEN’S BENCH DIVISION]

DIRECTOR OF PUBLIC PROSECUTIONS v. WATKINS

 

1989 Jan. 23, 24; March 1

Taylor L.J. and Henry J.

 Road Traffic – Drunk in charge of motor vehicle – “In charge” – Defendant in driving seat of vehicle not owned by him – Defendant holding bunch of keys – No evidence that key in hand suitable to start engine – Whether defendant in charge – Whether likelihood of defendant driving car – Road Traffic Act 1972 (c. 20), ss. 5, 6 (as amended by Transport Act 1981 (c. 56), s. 25, Sch. 8)

 The defendant, who was drunk, was found in the driving seat of a Mini motor car, not owned by him, parked in the street in the early hours of the morning. He was holding a bunch of keys in his right hand, with one key marked “Honda” between his thumb and forefinger. The key could be inserted into the ignition but there was no evidence that it was capable of starting the engine. No inquiry was made as to whether the defendant had the owner’s permission to be in the vehicle. The defendant was charged with (1) being in charge of a motor vehicle whilst unfit through drink or drugs and (2) being in charge of a motor vehicle when the proportion of alcohol in his blood exceeded the prescribed limit, contrary to sections 5 and 6 of, and Schedule 4 to, the Road Traffic Act 1972,1 as amended. The justices found that, without evidence that the key would start the engine, the prosecution had failed to prove that the defendant was in charge of the vehicle and they dismissed both informations.

On appeal by the prosecution:-

Held, allowing the appeal, that a person, who was not the owner of a car, was in charge of the vehicle, within the meaning of sections 5 and 6 of the Road Traffic Act 1972, when unfit to drive if he acted in a manner that showed that he had assumed control or intended to assume control of the vehicle preparatory to driving it; that, once the prosecution had shown an assumption of control, the burden of proving that there was no likelihood of the vehicle being driven shifted to the defence; that the evidence of the defendant sitting in the driving seat of the car with a bunch of keys in his hand supported the inference that hehad intended to take control of the vehicle; that the uncertainty of the efficacy of the keys caused the justices to place the burden of proof of the likelihood of the defendant driving on the wrong party and to reach a premature conclusion; and that, therefore, the case would be remitted to the justices to continue the hearing (post, pp. 831C-E, 832C-G).

Haines v. Roberts [1953] 1 W.L.R. 309, D.C.; Crichton v. Burrell, 1951 S.L.T. 365 and Morton v. Confer [1963] 1 W.L.R. 763, D.C. considered.

The following cases are referred to in the judgment:

Blayney v. Knight [1975] R.T.R. 279; 60 Cr.App.R. 269, D.C.

Crichton v. Burrell, 1951 S.L.T. 365

 

1     Road Traffic Act 1972, s. 5, as amended: see post, pp. 828G – 829A.

 

[1989] Q.B. 821 Page  822

Director of Public Prosecutions v. Webb [1988] R.T.R. 374, D.C.

Fisher v. Kearton (1964) 108 S.J. 258, D.C.

Haines v. Roberts [1953] 1 W.L.R. 309; [1953] 1 All E.R. 344, D.C.

Morton v. Confer [1963] 1 W.L.R. 763; [1963] 2 All E.R. 765, D.C.

Northfield v. Pinder [1969] 2 Q.B. 7; [1969] 2 W.L.R. 50; [1968] 3 All E.R. 854, D.C.

Woodage v. Jones (No. 2) [1975] R.T.R. 119; 60 Cr.App.R. 260, D.C.

 

The following additional cases were cited in argument:

Dawson v. Procurator-Fiscal (unreported) 25 February 1976, High Court of Justiciary (Scot.)

Dean v. Wishart, 1952 S.L.T. 86

Ellis v. Smith [1962] 1 W.L.R. 1486; [1962] 3 All E.R. 954, D.C.

Hopper v. Stansfield (1950) 48 L.G.R. 641, D.C.

Jowett-Shooter v. Franklin [1949] 2 All E.R. 730, D.C.

Kelly v. Hogan [1982] R.T.R. 352, D.C.

Rex v. Hawkes (1931) 22 Cr.App.R. 172, C.C.A.

Sheldon v. Jones [1970] R.T.R. 38, D.C.

Walker v. Rountree [1963] N.I. 23

CASE STATED by North Westminster justices sitting at Wells Street.

On 13 February 1988, an information was preferred by police against the defendant, Steven Watkins, that he on 13 February 1988, at Noel Street, London W.1., was in charge of a motor vehicle on a road whilst unfit through drink or drugs, contrary to section 5 of and Schedule 4 to the Road Traffic Act 1972, as substituted by section 25 of and Schedule 8 to the Transport Act 1981, and on 13 February 1988 at Noel Street, London W.1., was in charge of a motor vehicle on a road or other public place when the proportion of alcohol in his blood exceeded the prescribed limit, contrary to section 6 of and Schedule 4 to the Road Traffic Act 1972, as substituted by section 25 of and Schedule 8 to the Transport Act 1981.

 

The justices heard the information on 25 April 1988 and found the facts as set out in the judgment of Taylor L.J., post, pp. 825C-E. The justices were of the opinion that the prosecution had failed to establish a prima facie case that the defendant was “in charge” of the motor vehicle, and accordingly found that there was no case to answer and dismissed both the charges.

 

The Director of Public Prosecutions appealed. The questions for the opinion of the High Court were (1) whether the justices were correct in finding no case to answer at the conclusion of the prosecution case on the ground that there was insufficient evidence thatthe defendant was in charge of a motor vehicle; (2) whether in determining at the conclusion of the prosecution case that there was insufficient evidence that the defendant was in charge of a motor vehicle, the justices were right to take into account (a)evidence that the car did not belong to the defendant and (b) doubts as to whether car keys found in his possession could in fact, start the car; (3) whether the meaning of the phrase “in charge” necessitated a close connection between a defendant and the control of, or likelihood of driving, a motor vehicle.

[1989] Q.B. 821 Page  823

 

Michael Birnbaum for the Crown. The question whether a person is “in charge” of a motor vehicle is essentially one of fact. In the present case the defendant was in the driving seat of a vehicle not owned by him. He was holding a bunch of keys in his right hand, with one marked “Honda” between the thumb and forefinger. This key was capable of being inserted into the ignition. A specimen of blood taken from the defendant after his arrest was found to contain not less than 188 milligrammes of alcohol in 100 millilitres of blood.

 

On those facts there was a prima facie case on which the justices could have concluded that the defendant was “in charge” of the vehicle within the meaning of sections 5 and 6 of the Road Traffic Act 1972, despite the fact that the vehicle was a Mini, that there was no evidence to show whether the key was capable of starting the engine, or that the defendant was in the vehicle with the owner’s permission.

 

The justices were wrong to dismiss the informations at the close of the prosecution case.

 

Nigel Pleming as amicus curiae. The words “in charge” are not defined in the Road Traffic Act 1972, nor in any other Act so far as can be discovered. The words suggest “responsibility for,” “in the care of” and also “control over.” They must be wider than, or different from, “driving or attempting to drive” in section 5(1) of the Act. However, in the absence of a statutory definition and, indeed, by the very nature of the phrase, whether or not a person is in charge of a motor vehicle on a road or in a public place is a question of fact.

 

Having said that, there is a clear and understandable distinction as to the proof required where a person is alleged to be in charge of his own vehicle and cases where he is alleged to be in charge of another person’s vehicle. Almost all the reported cases are examples of the former: see Woodage v. Jones (No. 2) [1975] R.T.R. 119; Ellis v. Smith [1962] 1 W.L.R. 1486; Hopper v. Stansfield (1950) 48 L.G.R. 641 and Haines v. Roberts [1953] 1 W.L.R. 309, among others. An example of the latter is to be found in the facts of this case. The Mini was not Watkin’s car. If it had been, notwithstanding the discrepancy of the key, there would be no basis for saying that the prosecution had failed to establish a prima facie case: see Walker v. Rountree [1963] N.I. 23. In Northfield v. Pinder [1969] 2 Q.B. 7, a drunken person was found trying to get into another person’s car thinking it was his own vehicle, which was parked nearby. In the judgment of Lord Parker C.J. it was never suggested that the defendant was “in charge” of the vehicle he had been attempting to enter: see also Director of Public Prosecutions v. Webb [1988] R.T.R. 374.

 

The following example may be helpful. A motorist drives to a party and parks his Honda motor car in the private driveway. After consuming far too much alcohol he leaves the party, walks into the roadway, climbs into an open Austin Mini, with which he has no connection, and the police arrive as he tries unsuccessfully to start the car. On the authorities he is, or remains, in charge of the Honda but that vehicle is not on a public road. It offends against common sense to say that he is in charge of the Austin Mini, even if he believes that it is his car. Of course he

[1989] Q.B. 821 Page  824

 

could be charged with attempting to drive, which carries mandatory disqualification: see Kelly v. Hogan [1982] R.T.R. 352.

 

In Wilkinson’s Road Traffic Offences, 13th ed. (1987), p. 203, it is said that the meaning of the phrase “in charge” has given rise to considerable difficulty and that there has been a difference of approach between the English and Scottish courts. In general the Scottish courts have required a close connection between the defendant and the control of, or likelihood of driving, the motor vehicle. The English courts have tended to work from the presumption that someone must be “in charge” of any motor vehicle which is parked on a road or in a public place and, prima facie, that person will be the person with the keys.

 

Some of the English cases supporting this contention have already been mentioned. In Woodage v. Jones (No. 2) [1975] R.T.R. 119, a driver who had left his car on a garage forecourt, after he had been stopped by other motorists and the police had been called, was held still to be “in charge” of his vehicle when arrested half a mile away as he had not put his vehicle into the charge of anyone else. In Ellis v. Smith [1962] 1 W.L.R. 1486, a bus driver who had left his bus on a road was held to be “in charge” after going off-duty as he had not handed the bus over to his relief driver.

 

The Scottish cases include Crichton v. Burrell, 1951 S.L.T. 365, where the owner of a motor car, who was in possession of an ignition key to the vehicle, was held not to be “in charge” when standing by the vehicle awaiting the return of a chauffeur who had driven the vehicle earlier and was going to drive him home. In Dean v. Wishart, 1952 S.L.T. 86, a motorist who had become incapably drunk and had been put into the back seat of his car by friends who had also removed the rotor arm to immobilise the vehicle, was held not to be “in charge” of the vehicle.

 

“In charge” does not equate with likely to drive the vehicle, otherwise the statutory defence under section 5(2) of the Act would be unnecessary. It will be considerably easier for the prosecution to establish a prima facie case where the accused is the owner of the vehicle or has some other proven connection, such as recently having driven the vehicle. Where the accused is not the owner and has no such connection other than his presence in the driving seat, the prosecution should be expected to prove something more, such as possession of a key capable of starting the vehicle, i.e. responsibility for or control of the vehicle. In the present case the magistrates were not wrong to take ownership into account, or doubts as to whether or not the key could start the car.

 

Turning to the questions posed by them (1) no view is taken on this question; (2) they were right to take both (a) and (b) into account; (3) they were wrong on this issue as being “in charge” does not necessitate the likelihood of driving. [Reference was also made to Jowett-Shooter v. Franklin [1949] 2 All E.R. 730, D.C.; Dawson v. Procurator-Fiscal (unreported) 25 February 1976, High Court of Justiciary (Scot.); Rex v. Hawkes (1931) 22 Cr.App.R. 172, C.C.A. and Sheldon v. Jones [1970] R.T.R. 38, D.C.]

Cur. adv. vult.

1 March. TAYLOR L.J. read the following judgment. In this case the

[1989] Q.B. 821 Page  825

 

Crown Prosecution Service appeal by way of case stated from a decision of the North Westminster magistrates sitting as a magistrates’ court at Wells Street on 25 April 1988.

 

The justices had before them two informations alleging that the defendant, Steven Watkins, (1) on 13 February 1988 at Noel Street, London, W.1., was in charge of a motor vehicle on a road whilst unfit through drink or drugs, contrary to section 5 of, and Schedule 4 to, the Road Traffic Act 1972, as substituted by section 25 of, and Schedule 8 to, the Transport Act 1981; and (2) on the same date at the same place was in charge of a motor vehicle on a road or other public place when the proportion of alcohol in his blood exceeded the prescribed limit contrary to section 6 of, and Schedule 4 to, the Road Traffic Act 1972, as substituted by section 25 of, and Schedule 8 to, the Transport Act 1981.

 

The justices found the following facts. (i) On 13 February 1988 at 12.10 a.m. two uniformed police officers found the defendant seated in the driver’s seat of a Mini motor car registration EKO 539Y. The defendant was drunk. (ii) The Mini was not owned by the defendant. There was no evidence that he was in the car with the owner’s permission. The police did not trace or contact the owner of the vehicle. (iii) The defendant was holding a bunch of keys in his right hand, with one key marked “Honda” held between his thumb and forefinger. The key could be inserted into the ignition of the Mini, but there was no evidence that it was capable of starting the engine. The lights were not switched on and the engine was not running. (iv) The defendant was arrested and taken to West End Central police station where he was required to give a specimen of blood. On analysis the specimen was shown to contain not less than 188 milligrammes of alcohol in 100 millilitres of blood.

 

On those facts the prosecutor contended that a prima facie case had been raised in support of the two informations. They relied on the fact that the defendant was seated in the car, he was drunk and he had a key in his possession which fitted the ignition. There was no evidence that the key would not start the car.

 

The defendant relied on the fact that the car did not belong to him. Although the key fitted the ignition, it bore the name of a different make of car, and the appellant had failed to prove that the key would start the engine. In those circumstances it was argued that there was no likelihood of the defendant driving the car away. Therefore there was no case to answer and the charges should be dismissed.

 

The justices upheld the defendant’s submission that there was no case to answer. They were of the opinion that the prosecution had failed to establish that the defendant was in charge of the vehicle and accordingly dismissed both charges. The question posed by the justices for the opinion of this court are: (i) Whether they were correct in finding no case to answer at the conclusion of the prosecution case on the grounds that there was insufficient evidence that the defendant was in charge of a motor vehicle. (ii) Whether in determining at the conclusion of the prosecution case that there was insufficient evidence

[1989] Q.B. 821 Page  826

 

that the defendant was in charge of a motor vehicle they were right to take into account: (a) evidence that the car did not belong to the defendant, and (b) doubts as to whether the car key found in his possession could in fact start the car. (iii) Whether the meaning of the phrase “in charge” necessitates a close connection between a defendant and the control of or a likelihood of driving a motor vehicle. Those last words are taken verbatim from Wilkinson’s Road Traffic Offences, 13th ed. (1987), p. 203.

 

There were two regrettable omissions by the police. First, they failed to discover from the owner whether the defendant had his permission to be in the car and for what purpose. Secondly, they failed to test whether the key in the defendant’s hand would in fact turn on the engine. The result is that the facts of this case have the unreality of a student examination problem. They raise in acute form the question: what must the prosecution prove to establish that a defendant is “in charge of a motor vehicle.”

 

That phrase has appeared in successive statutes since the Road Traffic Act 1930. There have been many reported cases in which differing, and often bizarre facts, have been said to fall on one or other side of the line, but no exhaustive definition has been given as to the scope of the phrase. Probably it cannot be. In a number of the cases the court has said that whether a person is “in charge” is a matter of fact and degree: see e.g. Fisher v. Kearton (1964) 108 S.J. 258; Woodage v. Jones (No. 2) [1975] R.T.R. 119, 124C-D; and most recently, Director of Public Prosecutions v. Webb [1988] R.T.R. 374, 379H.

 

Nevertheless, we have been invited to give what guidance we can as to the relevant criteria and considerations on the issue, “in charge” or no. In my judgment it would not be profitable to embark upon an exhaustive review of the many decided cases, most of which turn upon their special facts. But it may be helpful to examine such principles as have been applied in the light of statutory changes.

 

Even before the Road Traffic Act 1930 the phrase had been used in the Intoxicating Liquor (Licensing) Act 1872, section 12 of which provided, so far as is relevant:

 

“Every person …

 

who is drunk while in charge on any highway or other public place of any carriage, horse, cattle or steam engine … shall be liable to a penalty …”

 

The words “drunk while in charge on any highway,” and the application of the phrase to livestock as well as to carriages and steam engines, seems to have required physical proximity of the defendant on the highway sufficient to exercise control.

 

Section 15(1) of the Road Traffic Act 1930 defined an offence committed by any person who

“when in charge of, a motor vehicle on a road or other pubic place is under the influence of drink or a drug to such an extent as to be incapable of having proper control of the vehicle.”

 

 

Thus the geographical emphasis was put upon the position of the vehicle rather than on the defendant: see Director of Public Prosecutions v. Webb [1988] R.T.R. 374.

[1989] Q.B. 821 Page  827

 

The effect of that provision was held by the English courts to be that if a motor vehicle was on a road, he who had put it there was in charge of it unless and until he put it in the charge of someone else. In Haines v. Roberts [1953] 1 W.L.R. 309, a motor cyclist became drunk and incapable. His friends were in process of arranging for someone else to ride the motor cycle and for its drunken owner to be taken home. Nevertheless the owner, who was near the cycle, was held to be in charge. Lord Goddard C.J. said, at p. 311:

“How can it be said under those circumstances that the defendant was not in charge of the motor cycle? He had not put it into anybody else’s charge. It may be that, if a man goes to a public house and leaves his car outside or in the car park and, getting drunk, asks a friend to look after the car for him or to take it home, he has put it in charge of somebody else; but if he has not put it in charge of somebody else he is in charge until he does. His car is [away from home] … and he is in charge.”

 

 

That is a simple robust statement of principle but it can hardly be complete. For example, if a stranger were to take and drive the car away without the owner’s consent and were then to stop the car temporarily, remaining in the driving seat, he would doubtless be in charge of it even though the owner had not put him in charge.

 

In Scotland the approach has been different. In Crichton v. Burrell, 1951 S.L.T. 365, the defendant was arrested while standing beside his motor car under the influence of drink. The driving door of the car was open and the defendant possessed an effective ignition key. He had been driven earlier in the evening by a chauffeur who had a duplicate key and was waiting for the chauffeur to return to drive him home when arrested. He was convicted under section 15(1) of the Act of 1930 and appealed. Allowing the appeal the Lord Justice-General said, at p. 366:

“On these facts the only fair and just inference which I find it possible to draw is that for the whole of that evening and, in particular, at the time when the apprehension was effected, the person truly ‘in charge of’ that car within the meaning of section 15 of the Act was the chauffeur … and not the appellant at all … The appellant cannot be convicted because he might in strict legal theory have taken action which he is not proved to have intended to take, much less to have put into operation, the proved facts pointing plainly to the conclusion that he meant to do nothing of the kind. On a fair consideration of section 15 we know quite well what is meant by referring to a person who is driving or attempting to drive a car, and when the section goes on to refer also to a person ‘in charge of’ a car the reference must be to the person in de facto control, even thoughhe may not be at the time actually driving or attempting to drive. Any other reading and any attempt to include the owner merely because he was present, or because he had possession of a removable ignition key of a car which he had arranged to be driven by a chauffeur, would lead to extravagant results, some of which were instanced in the course of debate.”

 

Lord Keith said, at p. 367:

[1989] Q.B. 821 Page  828

“In my view the words ‘in charge of’ in section 15 of the Act mean being responsible for the control or driving of the car. They do not mean necessarily that the person concerned is driving or is attempting to drive. That is specially provided for in the section. A person may be convicted under this section if he is doing neither of these things, if, in fact, he is the person who is for the time being in control of the vehicle.”

 

These rival views are summarised as follows in Wilkinson’s Road Traffic Offences, 13th ed. (1987), p. 203:

“In general, the Scottish courts have required a close connection between the defendant and the control of, or likelihood of driving, the motor vehicle. The English courts have tended to work from the presumption that someone must be ‘in charge’ of any motor vehicle which is parked on a road or public place, and, prima facie, that person will be the person with the keys.”

 

Since the Act of 1930, there has been a number of statutes affecting this branch of the law. It is not necessary to set out their provisions in detail. For the purposes of this case they may be summarised as follows.

 

The provisions of section 15(1) of the Act of 1930 were in effect repeated in the Road Traffic Act 1956 by section 9. However for the first time that section provided a defence where the person charged could prove that at the material time the circumstances were such that there was no likelihood of his driving the vehicle so long as he remained unfit to drive. Both the English and Scottish cases cited above were decided when no such defence was available.

 

Section 6(2) of the Road Traffic Act 1960 re-enacted the provisions as in the Act of 1956. Section 1 of the Road Traffic Act 1962 altered the wording as to the test of unfitness through drink. The Road Safety Act 1967 introduced for the first time offences of driving, attempting to drive or being in charge of a motor vehicle with alcohol in the blood above a specified limit.

 

The present law is contained in the Road Traffic Act 1972, as amended by the Transport Act 1981. Section 5 of that Act deals with driving or being “in charge” when under the influence of drink or drugs. Section 6, re-enacting section 1 of the Act of 1967, deals with offences involving a blood alcohol level above the prescribed limit. The relevant terms of section 5 are as follows:

“(1) A person who, when driving or attempting to drive a motor vehicle on a road or other public place, is unfit to drive through drink or drugs shall be guilty of an offence. (2) Without prejudice to subsection (1) above, a person who, when in charge of a motor vehicle which is on a road or other public place, is unfit to drive through drink or drugs shall be guilty of an offence. (3) For the purposes of subsection (2) above a person shall be deemed not to have been in charge of a motor vehicle if he proves that at the material time the circumstances were such that there was no likelihood of his driving it so long as he remained unfit to drive through drink or drugs but in determining whether there was such a

 

[1989] Q.B. 821 Page  829

likelihood the court may disregard any injury to him and any damage to the vehicle.”

 

In regard to that section two broad propositions are clear. First, the offence of being “in charge” is the lowest in the scale of three charges relating to driving and drink. The two higher in the scale are driving and attempting to drive. Therefore a defendant can be “in charge” although neither driving nor attempting to drive. Clearly however the mischief aimed at is to prevent driving when unfit through drink. The offence of being “in charge” must therefore be intended to convict those who are not driving and have not yet done more than a preparatory act towards driving, but who in all the circumstances have already formed or may yet form the intention to drive the vehicle, and may try to drive it whilst still unfit.

 

Secondly, Parliament has thought it necessary, by a deeming provision, to provide that proof of no likelihood of driving whilst still unfit negatives being “in charge.” It must follow that but for that defence a person could be “in charge” notwithstanding there is no likelihood of his driving. Thus to establish that a person is prima facie “in charge” of a vehicle does not require proof of likelihood to drive it while still unfit. The burden is upon him once there is a prima facie case to show there was no such likelihood. If he discharges that burden, he is deemed not to have been “in charge.”

 

Accordingly, to raise a prima facie case, the prosecution have to prove some connection, which can be less than attempting to drive, between a person in the proscribed condition and a motor vehicle on a road or public place. The nature of that connection is the elusive element.

 

The test laid down in Haines v. Roberts [1953] 1 W.L.R. 309 has been criticised as being too strict. In Woodage v. Jones (No. 2) [1975] R.T.R. 119 the defendant had driven erratically, stopped his car and, when told the police were coming, walked away without locking the car. He was arrested at a phone box over half a mile away. He was unfit through drink. The issue in the case was the lawfulness of his arrest and the statutory defence under section 5(3) of the Act of 1972 was not raised. James L.J. cited the passage already quoted from the judgment of Lord Goddard C.J. in Haines v. Roberts, and went on, at p. 124:

“Those words express the view expressed in many of the cases that, once a person takes a vehicle on to the public road, he remains in charge of that vehicle until he has taken it off the road again unless some intervening act occurs whereby he puts it in the charge of someone else. Mr. Farquharson frankly concedes that,at the present day when circumstances are such that persons frequently have no option but to leave their vehicles parked on the public road at night, for example, because they have no means of taking it off the road to park it in a garage, some relaxation of the former rigid principle ought to be adopted. But there are limits to the relaxation and in every case it must be a matter of fact and degree whether a person is in charge of the vehicle.”

[1989] Q.B. 821 Page  830

It would seem that the court agreed with counsel’s concession that some relaxation of the rigid rule should be allowed. In my judgment that must be so. Otherwise the owner of a vehicle who parks it on the road near his home, drinks to excess and is later fast asleep in bed for the night would still be “incharge” of the vehicle and prima facie guilty of an offence. Even more absurdly, he would be “in charge” if he parked it at an airport or railway station, took the keys, and was drunk whilst away on holiday. No doubt since the statutory defence became available, he would be able in either of those instances to invoke it. But in my judgment the phrase is not so wide as to import even prima facie liability on those facts.

 

As to the statutory defence, two decisions should be mentioned. In Morton v. Confer [1963] 1 W.L.R. 763, the defendant was found by a constable at 10.50 p.m. slumped over the wheel of his car asleep. The constable woke the defendant who immediately switched on the ignition. He was unfit through drink. In evidence he stated he had drunk a great deal at a club which he left at 10 p.m. About a mile from home “the drinks hit him.” He immediately stopped and his intention was not to continue until he was fit. The justices accepted his evidence and dismissed the charge. The prosecutor’s appeal was allowed. Lord Parker C.J. said, at pp. 765, 766:

“In my judgment, the justices were not entitled to find that defence proved merely by an acceptance of what the defendant said. They would have to be satisfied further that not only was that his intention, but that there was no likelihood that that intention would be departed from. … the fact that the defendant, when awakened, automatically used the ignition key and switched on the ignition showed the danger of the justices accepting the intention …”

 

In Northfield v. Pinder [1968] 3 All E.R. 854, justices dismissed an information alleging the defendant was in charge of a motor vehicle having consumed alcohol above the prescribed limit. They found that between 9.10 p.m., when he was first seen, and 9.15 p.m., when he was arrested, the defendant was so drunk that he could not even find his vehicle or indeed stand up. They held there was therefore no likelihood of his driving while he remained unfit. Allowing the prosecutor’s appeal, Lord Parker C.J. said, at p. 857:

“It seems to me perfectly clear that, if one is judging the likelihood of his driving between 9.10 and 9.15 p.m., quite clearly there was no probability of his driving then because at that time, in that five minutes, he was hopelessly drunk, so incapable that he could not find his own car, get into it or do anything. But, in my judgment, that is not the end of the case, because he has to prove that, at the material time, the circumstances were such that there was no likelihood of his driving it, that is, in the future, so long as there was any probability of his having alcohol in his blood in a proportion exceeding the prescribed limit … The most normal way of proving that would be for him to prove that he had handed over the keys to somebody else, or that he had taken a room for the night realising that he was drunk, … but there was really no evidence here from

[1989] Q.B. 821 Page  831

which the justices could say that they were satisfied that, even if the worst effects of the alcohol wore off, he still would not drive until it had come down to the prescribed limit.”

 

We have been greatly assisted by Mr. Birnbaum on behalf of the appellant and Mr. Pleming who has appeared as amicus. 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. That is the class of case to which the rule in Haines v. Roberts [1953] 1 W.L.R. 309 was directed. 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, e.g. 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, hemay 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 some other way, e.g., 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.

 

It has been held that a person does not become in charge of a car merely because he sits himself in the driving seat against the will of the owner: see Blayney v. Knight [1975] R.T.R. 279. That case turned however on its very special facts. The defendant was one of three wishing to hire a taxi at a disco. A taxi arrived for someone else and the driver got out leaving his engine running and the driver’s door open. The defendant’s two friends got into the back of the taxi. The defendant tried to join them but could not open the rear door, so he got into the

[1989] Q.B. 821 Page  832

driver’s seat. The door was still open. The taxi driver returned and sought to eject the defendant. In the struggle the defendant’s foot accidentally operated the accelerator pedal and the car went forward injuring the taxi driver. The justices acquitted the defendant both of driving and of being in charge with excess alcohol. The Divisional Court upheld their decision. Lord Widgery C.J. said, at p. 284:

“I do not think that a person becomes in charge of a car merely because he seats himself in the driving seat against the will of the owner. Something very much more than that is required before one can properly attribute to an individual all the responsibility which nowadays attaches to someone in charge of a motor car … I think that this is an exceptional case, perhaps because the facts are so unusual …”

 

Apart from sitting in the driving seat, none of the criteria (i) to (iv) above pointed to the defendant in that case being in charge. Moreover, under (v) the taxi driver was clearly in charge of the vehicle when he stopped it with its engine running and in common sense remained so throughout.

 

In the present case the defendant was not only in the driving seat; he was holding one of a bunch of keys between his thumb and forefinger. Those facts support an inference that he intended to take control of the car by starting it. There was no evidence of any other person at or near the car. In my judgment there was sufficient to show either he was voluntarily in de facto control of the car or that he could be expected imminently to take such control. In those circumstances it was open to a reasonable bench of justices to conclude that he was in charge.

 

The justices stated that the prosecutor had failed to prove the key would start the car. Therefore they held there was no likelihood of the defendant driving and the prosecution had failed to establish a prima facie case.

 

But there was no burden of proof on the prosecution in regard to the likelihood of the defendant driving. The burden was upon him to establish that defence once a prima facie case of being in charge was made out against him. If he were to prove that the key in his hand would not turn on the engine, the justices might conclude he had proved the defence under section 5(3), and should therefore be deemed not to be in charge. So the justices’ approach to the uncertainty regarding the efficacy of the key put the burden of proof on the wrong party and their conclusion was premature.

 

I would therefore answer the questions posed by the justices as follows.

(1) No.

(2) In considering at the conclusion of the prosecution case whether there was sufficient evidence that the defendant was in charge of a motor vehicle, the justices were right to take into account evidence that the car did not belong to the defendant. They would have been right to take into account the presence of the key in the defendant’s hand as that would go to his intention. However they were wrong to take into account doubts as to whether the car keys found in his possession could

[1989] Q.B. 821 Page  833

in fact start the car, i.e. the absence of proof of the likelihood of his driving.

(3) 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 a likelihood of the defendant driving the vehicle.

 

I would therefore allow the appeal and remit the case to the justices to continue the hearing.

 

HENRY J. I agree.

Order accordingly.

Solicitors: Crown Prosecution Service, Inner London; Treasury Solicitor.

[Reported by JAMES KELLY, Esq., Barrister-at-Law]

 

 

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