Crown Prosecution Service v Bate

For the offence of being in charge of a vehicle while over the prescribed alcohol limit, proof of an intention to drive is not an essential ingredient. The question whether a person is in charge is distinct from the statutory defence, which asks whether there was no likelihood of driving while unfit or over the limit. The court must assess the whole factual matrix, including the person’s position, conduct, possession of keys and any evidence of an intention to take or assert control. Once the prosecution establishes that the defendant was in charge, the statutory defence is for the defendant to prove on the balance of probabilities.

The Crown Prosecution Service appealed by way of case stated against the dismissal by Birmingham Justices of an information under section 5(1)(b) of the Road Traffic Act 1988. The respondent had consumed alcohol, returned to his car, entered it and sat in the driver’s seat with the keys in his hand, although the engine was not running.

The Justices found that he was not in charge because he had no intention of taking or asserting control. They did not consider the statutory defence under section 5(2). The central issues were whether they had correctly applied DPP v Watkins and whether their decision was one which a properly directed bench could reasonably reach.

1. Appeal allowed. The Justices’ decision was quashed and the matter was remitted for rehearing before a different bench.

2. The expression “in charge” requires a close connection between the defendant and control of the vehicle, but it does not require proof of the likelihood of driving. The question is one of fact and degree, determined by considering all relevant circumstances. These may include the defendant’s position in relation to the vehicle, conduct at the relevant time, possession of a key, intention to take or assert control, and the presence and conduct of others.

3. An intention to drive may be evidence that charge has not been relinquished, but it is not synonymous with being in charge. Proof of an intention to assert control may suffice even where overt acts of control are absent.

4. The issue of likelihood belongs to the statutory defence under section 5(2) of the Road Traffic Act 1988. The defendant bears the burden of proving, on the balance of probabilities, that there was no likelihood of driving while the proportion of alcohol remained over the prescribed limit. The Justices had wrongly treated lack of intention to drive as negating the offence and had thereby failed to reach the statutory defence.

5. On the facts found, the respondent was manifestly in charge: he owned the car, entered it, sat in the driver’s seat and held the ignition keys. His proposed taxi arrangements and purpose in returning to the car were matters relevant to the statutory defence, not to whether he was in charge.

• High Court (Administrative Court): The prosecutor’s appeal by way of case stated was allowed. The Birmingham Justices’ dismissal was quashed and the case was remitted for rehearing before a different bench.