Director of Public Prosecutions v Alderton

J U D G M E N T

1. MR JUSTICE HARRISON: This is an appeal by case stated from a decision of the Sussex Justices sitting at Chichester Magistrates' Court on 8th July 2003, when they acquitted the respondent of driving a motor vehicle having consumed so much alcohol that the proportion of it in his breath exceeded the prescribed limit, contrary to section 5(1)(a) of the Road Traffic Act 1988.

2. Section 5(1)(a) provides as follows:

"If a person—

(a) drives or attempts to drive a motor vehicle on a road or other public place, ...

after consuming so much alcohol that the proportion of it in his breath, blood or urine exceeds the prescribed limit he is guilty of an offence."

3. The facts of the case, as found by the justices, are somewhat unusual. On Sunday 20th April 2003 at about 11.30pm two police officers went to Edith Cottages in Mill Road, West Ashling. Parked on the grass verge, which formed part of the road, outside the respondent's home, was a Vauxhall Astra motor car. The respondent was in the driving seat of that car, and he was the only occupant of the vehicle. There was a can of lager on the dashboard. It was raining and steam was rising from the vehicle's bonnet which felt warm to the police officer's touch. Both of the officers could smell alcohol on the respondent's breath and so they requested him to provide them, as indeed he did do, with a roadside breath specimen. That turned out to be positive.

4. The respondent was therefore arrested and conveyed to Chichester police station, where he provided two samples of breath for analysis. Both readings were 133 micrograms of alcohol in 100 millilitres of breath (i.e. about four times over the limit).

5. The respondent admitted that, prior to the arrival of the police, he had been sitting in the driver's seat of his car wheel spinning. That involved the engine running and the use of the accelerator, clutch and steering wheel, with the vehicle in gear and the handbrake on. He said that he had argued with his wife during the evening and had been physically assaulted by her, which was something that regularly happened and his usual response was to leave the house to allow both parties to calm down. He admitted that the wheel spinning was an expression of, and a release for, his anger, upset and frustration over his longstanding acceptance that his wife periodically physically attacked him, resulting in injuries.

6. The justices found as a fact that the respondent had no intention at any stage of moving the vehicle from the grass verge. The justices also found that the wheel spinning did not involve the vehicle moving its position at all, either forwards or backwards.

7. Those were the relevant facts found by the justices. It was contended at the hearing before the justices on behalf of the appellant that the wheel spinning amounted to driving of the motor vehicle. It was said that the respondent was using the vehicle's controls to direct the movement of the vehicle. It was contended on behalf of the respondent that some movement of the vehicle, either backwards or forwards, was necessary for the justices to find that the respondent was driving. It was not enough, it was said, that the front wheels were in motion. The respondent referred to a dictionary definition of the verb "to drive", namely to operate a vehicle controlling its direction and speed.

8. The justices were referred to the case of R v MacDonagh [1974] RTR 372, to which I will refer in a few moments. In the case stated, the justices said as follows:

"6. We were of the opinion that the respondent did not drive the motor vehicle by wheel spinning. We accept that the ratio of R -v- MacDonagh is that the essence of driving is the use of the driver's controls in order to direct the movement of the motor vehicle, however that movement is produced.

We were of the opinion that wheel spinning does not constitute such movement in the light of all the examples provided by Lord Widgery CJ in R -v- MacDonagh at page 374, paragraphs F and G. All of these examples involve some change in the position of the vehicle, with some actual distance covered by the vehicle. Here the vehicle remained throughout the wheel spinning in exactly the same position on the grass verge.

We were further of the opinion that the dictionary definition of the verb 'to drive' provided to us was a satisfactory one that reflected adequately and accurately the ordinary usage of the terms 'drive' and 'driving' in the English language, and that this definition requires some movement of the vehicle itself, rather than just of a component thereof. We note Lord Widgery CJ's caution that although the word 'drive' must be given a wide meaning, Courts must be alert to see that the net is not thrown so widely that it includes activities which cannot be said to be driving in any ordinary use of that word in the English language.

We therefore found that the Respondent had not driven the vehicle at the material time and dismissed the information."

9. The question posed by the justices for the opinion of the High Court is:

"Does the admitted wheel spinning constitute driving?"

10. I start by referring to the case of MacDonagh to which the justices had referred, because both parties before me accept that that case contains the two relevant tests that have to be applied in considering this issue. At page 375G-L, Lord Widgery CJ, giving the judgment of a five-man Court of Appeal, stated:

"The last case to which we would refer is Ames v MacLeod 1969 JC 1 where the facts were very close to those of the instant case. The accused, who was alleged to have been driving a motor car, had been walking beside it as it ran down a slight incline, and had steered it by placing his hand on the wheel. The car had run out of petrol. The Lord Justice-General thought that the question turned on whether the defendant was:

'in a substantial sense controlling the movement and direction of the car,'

and held that this test was satisfied. The other judges concurred. We respectfully agree that a person cannot be driving unless he satisfies the test adopted by the Court of Session, and we recognize the importance that this legislation should be given the same meaning in England as in Scotland. But we do not think that the test is exhaustive. It is still necessary to consider whether the activity in question can fall within the ordinary meaning of the word 'driving'.

Giving the words their ordinary meaning there must be a distinction between driving a car and pushing it. The dividing line will not always be easy to draw, and the distinction will often turn on the extent and degree to which the defendant was relying on the use of the driver's control."

11. Both parties agree that that passage includes the two relevant tests, namely whether the defendant was in a substantial sense controlling the movement and direction of the car and, secondly, whether the activity in question can fall within the ordinary meaning of the word "driving".

12. However, Mr Pyne on behalf of the respondent also relied on an earlier passage in the judgment of Lord Widgery CJ at page 374D:

"The Act does not define the word 'drive' and in its simplest meaning we think that it refers to a person using the driver's controls for the purpose of directing the movement of the vehicle. It matters not that the vehicle is not moving under its own power, or driven by the force of gravity, or even that it is being pushed by other well-wishers. The essence of driving is the use of the driver's controls in order to direct the movement, however that movement is produced.

There are an indefinite numbers of ways in which a person may control the movement of a motor vehicle, apart from the orthodox one of sitting in the driving seat and using the engine for propulsion. He may be coasting down a hill with the gears in neutral and the engine switched off; he may be steering a vehicle which is being towed by another. As has already been pointed out, he may be sitting in the driving seat while others push, or half sitting in the driving seat but keeping one foot on the road in order to induce the car to move. Finally, as in the present case, he may be standing in the road and himself pushing the car with or without using the steering wheel to direct it. Although the word 'drive' must be given a wide meaning, the courts must be alert to see that the net is not thrown so widely that it includes activities which cannot be said to be driving a motor vehicle in any ordinary use of that word in the English language."

That passage, of course, contains the various examples mentioned by Lord Widgery to which the justices referred in the case stated.

13. Mr Hall, on behalf of the appellant, submitted that the first test relates to the degree of control over movement of the vehicle, not to whether or not the vehicle actually moves. He submitted that, in this case, all the controls were used. There was a high degree of control to ensure that the car did not move. He relied also on the case of Hoy v McFadyen [2000] SLR 1060. That is a Scottish case in the High Court of Justiciary where Lord Sutherland delivered the opinion of the court.

14. The facts of that case were that the accused was charged with driving whilst disqualified. He had been seen sitting in the driver's seat of a car and he had started the engine. Police officers had asked him to turn off the engine and, when he did so, the car lurched forward slightly. That was because the handbrake was defective and would not hold the car on a slope. In order to hold the car whilst the engine was running, the accused was obliged to sit with his feet on the footbrake. When the engine was switched off, the accused was required to leave the vehicle in gear. It was argued that driving required motion and that the minimal movement of the car after the police approached and asked him to turn off the engine was insufficient.

15. In giving the opinion of the court, Lord Sutherland stated at page 1062C:

"In our view the situation in the present case is a rather unusual one, particularly because of the fact that the handbrake was defective and it required either that the car be in gear with the engine switched off or alternatively that the person in the driver's seat had to depress the footbrake and hold the footbrake down in order to prevent the car from moving. The position quite clearly, therefore, is that in the latter alternative in order to prevent movement of the car downhill there required to be a direct and continuing personal intervention on the part of the person in the driving seat. The fact that the engine was running at the time, that the appellant was the person in the driving seat, that the appellant had disengaged the gear in order to start the engine and as a consequence required to keep his foot on the footbrake, in our opinion go beyond mere preparation for driving, and the appellant has commenced driving even though there may have been no movement at all. The fact that there was movement at the end of the proceedings is a clear indication in our view that the appellant must have been driving because there would have been no movement but for the intervention on his part by disengaging the gear and using the footbrake. The correct test is to look at what the appellant was doing and not necessarily the result. For example, if the car had in fact rolled forward and hit another car perhaps a foot or two in front of it there can be no question but that the appellant would have been driving the car. The things that he was doing would have been exactly the same as he was doing in the present case. This shows that the question of movement of the car is not essential if the driver's activities have got beyond the stage of mere preparation for driving but have got to the stage when there is active intervention on his part to prevent movement and direction of the vehicle. In the somewhat unusual circumstances of this case we are quite satisfied that the appellant could be said to have been driving. In our view he was just as much driving as would be a person who in the course of proceeding along the road was stopped at a red traffic light, halted his vehicle, placed his foot on the footbrake and awaited the turning of the lights to green."

16. I should mention that Mr Pyne, on behalf of the respondent, pointed out that, although the court in that case did refer to the case of Ames v MacLeod , it did not refer to the case of MacDonagh and therefore did not deal with the second test in MacDonagh , namely whether the activity came within the ordinary meaning of the word "driving".

17. Turning to that second test, Mr Hall submitted that, when considering the ordinary meaning of the verb "to drive", it must have been Parliament's intention that the Road Traffic Act should apply to prohibit someone over the alcohol limit having the kind of degree of control over a vehicle on a public road as was involved in this case, or indeed to prohibit a person of young age, of say ten, involving himself in this sort of activity. He submitted that this provision of the Road Traffic Act ought to apply as a matter of common sense to this situation. There was, he submitted, a very real risk that, whilst wheel spinning, the vehicle would move which would constitute a danger to road users and pedestrians.

18. Mr Pyne, on the other hand, says that public policy requires some actual movement of the vehicle. There must be shown, he said, to be an intention for the vehicle to move. He submitted that the case of MacDonagh shows that the control that is required relates to the movement of the vehicle rather than anything else. Furthermore, that case adds the element of purpose and intention. He submits that having the handbrake on is not controlling the movement of the vehicle. The vehicle is not being controlled until the handbrake is off. He also mentioned that there was no evidence that the handbrake had been touched by the respondent in this case.

19. He placed some reliance on the case of Blayney v Knight [1975] RTR 279. The facts of that case were that the driver of a car left it momentarily, during which time the defendant went and sat in the driver's seat. When the driver returned, he attempted to remove the defendant and, in the ensuing struggle, the defendant's foot accidentally depressed the accelerator causing the car to move off suddenly, the defendant not having intended to drive. Nevertheless, the driver was thrown to the ground and the car ran over his legs. At page 284B Lord Widgery CJ said:

"I think that this is quite a different case from almost any of the other cases that have come before this court in recent years dealing with driving; they have all been cases where the person was consciously seeking some movement of the car in some way, and was thus driving. Here one has a man sitting in the driving seat, not intending to drive, and as far as I can see not intending to exercise any control over the vehicle, and accidentally his foot touches the accelerator and off goes the car. I content myself by saying I do not think that in any ordinary use of the word 'driving' that conduct would be included."

Mr Pyne relies on that case as showing that there should be an intention to drive.

20. Mr Hall, on the other hand, points out that, in that case, the defendant was not intending to exercise any control over the vehicle, his foot had accidentally gone on the accelerator, whereas in the present case the respondent had deliberately pressed the accelerator, causing the wheels to turn.

21. So far as the second test is concerned, Mr Pyne submitted that the justices were entitled to find that the case failed what he described as the common sense test. A bystander seeing what had happened would not say that the respondent was driving. He would say that he was wheel spinning. Mr Pyne submitted that common sense requires that there should be some movement of the vehicle to come within the meaning of the word "driving". He points out that there are other criminal and civil remedies available to control this sort of activity. He agreed that it was a narrow distinction between wheel spinning with no movement of the vehicle and wheel spinning with a little movement, which he accepts would constitute driving.

22. In my view, that is too nice a distinction. It seems to me to be unrealistic to draw such a fine distinction when the whole of the car is in motion, save for a movement of the car restricted by the handbrake. It is certainly right to say that all the examples given by Lord Widgery in the case of MacDonagh -- and indeed most of the decided cases on this subject -- do involve actual movement of the vehicle. But it is important to remember that each case must depend on its own facts. This is, I am told, the first case of its kind (i.e. wheel spinning) that has come before the court.

23. In dealing with the first test in MacDonagh , namely the degree of control over the movement and direction of the vehicle, I consider that the respondent was controlling the movement and direction of the vehicle by preventing it going forwards by virtue of the handbrake being on. I do not accept Mr Pyne's submission that having the handbrake on was not controlling the movement of the vehicle. It seems to me that the whole purpose of having the handbrake on was to prevent the car moving whilst the wheels were moving. It matters not whether he put the handbrake on himself or whether it was already on. The whole purpose of the exercise was that it should be on whilst the respondent was doing what he was doing. He was, in effect, using all the controls of the car -- the clutch, the accelerator and the steering wheel -- and the wheels were turning. The whole vehicle was in motion, save only for the handbrake preventing movement of the car backwards or forwards. The fact that there was no movement of the car due to the handbrake does not, in my judgment, prevent it being said that the respondent was driving the car. I gain some support for that conclusion from the case of Hoy v McFadyen . The only real difference between that case and this case was that in this case it was the handbrake preventing movement of the car and in that case it was the footbrake preventing the movement of the car. I have already quoted from the relevant part of the opinion of the court. I just repeat the following conclusion:

"... the question of movement of the car is not essential if the driver's activities have got beyond the stage of mere preparation for driving but have got to the stage when there is active intervention on his part to prevent movement and direction of the vehicle."

In my view that applies to the present case, and it should not make any difference that there is no evidence as to whether the respondent actually put the handbrake on rather than simply allowed it to remain on. Mr Pyne accepted that, if there was an intention to prevent movement of the car, then the present case would be on all fours with Hoy v McFadyen .

24. In my view, there was plainly an intention by the respondent to prevent movement of the car, and it matters not that the purpose of the wheel spinning was for the respondent to vent his anger. Indeed, as Mr Hall said, the present case is stronger on the facts than Hoy v McFadyen because in the latter case the gear was not engaged, the wheels were still and the accelerator was not being used.

25. I therefore conclude that the first test in MacDonagh was satisfied in that there was a sufficient degree of control over the movement and direction of the vehicle being exercised by the respondent by ensuring that the handbrake prevented movement of the car despite the fact that the wheels were turning.

26. I come then to the second test, namely whether what was being done would fall within the ordinary meaning of the word "driving". I accept of course that that was not a matter addressed in Hoy v McFadyen , although one would suspect that if the court had thought that its conclusion offended against the ordinary meaning of the word "driving", it would have said so.

27. As a matter of public policy, it seems to me desirable that this sort of activity of wheel spinning on a public road, which is potentially dangerous to road users and pedestrians, should come within the purview of section 5(1)(a) of the Road Traffic Act 1988. But I stress that I do not base my decision on that aspect because it seems to me, as a matter of general impression, that a person wheel spinning, as in this case, can properly be said to be driving the vehicle within the ordinary meaning of that word. In my judgment, a person wheel spinning is driving a vehicle in such a way as to seek to ensure that it does not go forward whilst its wheels are turning.

28. I therefore conclude that the justices erred in law in concluding that there had to be some movement of the vehicle before the respondent could be said to be driving it. Each case will depend on its own facts. But in my judgment, on the facts of this case, the respondent was driving the vehicle and was therefore guilty of the offence of driving a motor vehicle having consumed so much alcohol that the proportion of it in his breath exceeded the prescribed limit, contrary to section 5(1)(a) of the Road Traffic Act 1988.

29. Turning to the question posed for the opinion of the court in the case stated, namely does the admitted wheel spinning constitute driving, the answer in my judgment is "yes". I therefore remit the case back to the justices with a direction to convict.

30. MR HALL: %?