Mason v Director of Public Prosecutions (Rev 1)

For an attempt to drive with excess alcohol, the defendant must have done an act which was more than merely preparatory to driving. Intention to drive, even when clearly established, is insufficient without the necessary actus reus.

The question whether conduct is capable of amounting to an attempt is one of law, although its application depends on the facts and degree of each case. The defendant does not embark on the crime proper until doing something forming part of the actual process of putting the vehicle in motion. Opening the vehicle door is preparatory; turning on the engine would be capable of crossing the statutory threshold.

The claimant appealed by way of case stated from his conviction by Deputy District Judge Gale in the magistrates’ court. He had reported that his Land Rover had been stolen at knifepoint, having stated that he had been with another person. When he attended the police station shortly afterwards, officers detected alcohol on his breath. He admitted that he had intended to drive home while over the limit, but said that the vehicle had been taken before he could do so.

The Deputy District Judge convicted him of attempting to drive a motor vehicle with excess alcohol contrary to section 5(1)(a) of the Road Traffic Act 1988. The alternative charge of being in charge of a vehicle under section 5(1)(b) was dismissed. The central issue was whether opening the vehicle door, in furtherance of an intention to drive, was capable of being more than merely preparatory.

1. The appeal was allowed and the conviction under section 5(1)(a) of the Road Traffic Act 1988 was quashed.

2. Section 3 of the Criminal Attempts Act 1981 applied to an attempt under section 5(1)(a). The statutory question was therefore whether, with intent to commit the full offence of driving with excess alcohol, the claimant had done an act more than merely preparatory to that offence.

3. The question whether particular conduct was capable of constituting an attempt was one of law, although the answer in each case depended on the facts and degree. The court applied the approach in R v Gulliver [1990] 3 All ER 882, under which the crime proper begins when merely preparatory acts end and the defendant embarks upon the offence itself.

4. In the context of attempted driving, the defendant could not be said to have embarked on the crime proper until doing something forming part of the actual process of putting the vehicle in motion. Turning on the engine would be such a step. Opening the vehicle door was not.

5. The reasoning was consistent with R v Tony Campbell [1991] 93 Cr App R 350. In that case, conduct directed towards a post office remained preparatory despite an admitted intention to rob. Similarly, the claimant’s clear intention to drive did not establish an attempt without sufficient actus reus.

6. Although the facts might have supported conviction for being in charge of a vehicle under section 5(1)(b), the alternative charge had already been dismissed. The court had no power to reopen it.

• Magistrates’ court: Deputy District Judge Gale convicted the claimant of attempting to drive with excess alcohol under section 5(1)(a) of the Road Traffic Act 1988 and dismissed the alternative section 5(1)(b) charge.
• High Court (Administrative Court): The appeal by case stated was allowed. The conviction was quashed.