Law Report: Road traffic charge wrongly alleged two offences: Director of Public Prosecutions v Corcoran: Queen's Bench Divisional Court (Lord Justice McCowan and Mr Justice Pill), 23 June 1992

An information charging a person with an offence under section 7(6) of the Road Traffic Act 1988 of failing, without reasonable excuse, to provide a specimen of breath must specify whether the specimen was required when the person was driving or attempting to drive a vehicle or when the person was in charge of a vehicle. A charge under section 7(6) which does not specify in which circumstances the specimen was required and includes both circumstances contains two offences and is bad for duplicity.

The Divisional Court dismissed the prosecution's appeal by way of case stated by South Sefton justices from the justices' decision that an information charging the defendant, Terence Michael Corcoran, with an offence under section 7(6) of the Road Traffic Act 1988 was bad for duplicity.

The Divisional Court refused to certify a point of law of general public importance; the prosecution therefore cannot appeal to the House of Lords.

Section 4 of the 1988 Act provides: '(1) A person who, when driving or attempting to drive a motor vehicle . . . is unfit to drive through drink or drugs, is guilty of an offence.

(2) . . . a person who, when in charge of a motor vehicle . . . is unfit to drive through drink or drugs, is guilty of an offence.'

Section 5 provides: '(1) If a person - (a) drives or attempts to drive a motor vehicle . . . or (b) is in charge of a motor vehicle . . . after consuming so much alcohol that the proportion of it in his breath . . . exceeds the prescribed limit, he is guilty of an offence.'

Section 7 provides: '(1) In the course of an investigation into whether a person has committed an offence under section 4 or 5 of this Act, a constable may . . . require him - (a) to provide two specimens of breath for analysis . . . (6) A person who, without reasonable excuse, fails to provide a specimen when required to do so in pursuance of the section is guilty of an offence.'

Uniformed police officers saw a BMW motorcar being driven erratically and followed the car, which accelerated away.

The car was driven into a driveway and the defendant left it from the driver's door. No other persons were in the car.

The officers found that the defendant's breath smelt of intoxicants and they suspected that he had committed an offence of driving with excess alcohol in his body.

He was requested to go to the police vehicle and provide a specimen of breath for analysis.

The defendant failed to provide the specimen.

An information was preferred against the defendant that he, in the course of an investigation whether he had committed an offence under section 4 or 5 of the Road Traffic Act 1988, did, without reasonable excuse, fail to provide a specimen of breath for analysis in pursuance of a requirement by a constable under section 7, contrary to section 7(6).

At the close of the prosecution case, the justices decided that the offence of failing to provide a specimen under section 7(6) created two offences, one of failing to provide a specimen after driving and one after being in charge of a motor vehicle and that since the information did not specify the purpose for which the specimen was required, it contained two offences and was therefore duplicitous.

They dismissed the information.

The prosecutor appealed. The questions for the opinion of the Divisional Court were: (1) whether a charge under section 7(6) created two offences depending on whether the defendant was alleged to have been driving a vehicle or in charge of a vehicle at the time a request for a specimen was made; and (2) whether a charge under section 7(6) which did not distinguish the purpose for which the request was made was therefore bad for duplicity.

Stuart Baker (CPS) for the prosecutor; Alison Hewitt (Moore Sexton Bibby, Liverpool) for the defendant.

MR JUSTICE PILL said that sections 4(1) and 5(1)(a) dealt with persons who were driving or attempting to drive a motor vehicle, whereas sections 4(2) and 5(1)(b) dealt with persons in charge of a motor vehicle.

The sentencing powers of justices on a section 7(6) offence depended on the offence being investigated. Heavier sentences could be imposed in the case of a section 4(1) or 5(1)(a) offence and disqualification was obligatory.

In R v Courtie (1984) AC 463, 471, Lord Diplock in the House of Lords, dealing with the Sexual Offences Act 1967, said that separate offences were created where the punishment prescribed varied according to the existence or absence of particular factual ingredients.

Mr Baker submitted that where the factual ingredient went only to punishment, there was no duplicity and that in the present situation there was only one type of misconduct and that was the failure to provide a specimen.

Miss Hewitt submitted that whether or not the defendant was driving was a material fact and ingredient and that should be charged and decided on the trial of the issue of conviction and not at the stage of sentence.

Mr Baker also submitted that no injustice had been done in the present case since it was made plain by the prosecutor that what was being alleged was that the defendant had driven.

In his Lordship's judgment the charge was bad for duplicity. There were two offences. Lord Diplock's statement in Courtie covered the present situation.

There must be a single rule covering the point and its application could not depend on whether the defendant had been given notice of how the prosecution put their case. The appeal would be dismissed.

LORD JUSTICE McCOWAN agreed.

Ying Hui Tan, Barrister