362 / 736
process before anyone could be arrested should depend
on a positive reading from a scientific device.
" I don't think it intended that the arrest should be
made as a result of a test in circumstances, when, accord
ing to the manufacturers, the device might not give an
accurate reading ".
Director of Public Prosecutions v. Carey—(1969) 3 All
ER 1662.
BREATH TESTS OFF ROAD VALID
20. If a breath test could not be required of a motorist
who had turned a few feet off the highway, it would open
up the chances of a new form of " cops and robbers "
chases, Lord Justice Sachs stated, when the Court of
Appeal (Lord Justice Sachs, Mr. Justice Hinchcliffe and
Mr. Justice James) gave reasons for having allowed an
appeal against conviction of Edward Mervyn Jones, of
Wells, for driving contrary to section I (l) of the Road
Safety Act, 1967, with a proportion of 99 milligrames
of alcohol in 100 millimetres of his blood.
" It is not the law that a motorist merely by turning a
few feet off a highway can stultify police action and
escape being required to give a breath test, when that
action would otherwise be proper under the statute ".
The appellant had been convicted in April in Brecon
Quarter Sessions.
His Lordship said that there were no merits in favour
of the appellant, who, just before stopping in the drive
of his house, had manifestly been driving with an excess
proportion of alcohol in his blood. The only issue was
whehther a constable in uniform was entitled to require
the appellant to provide a specimen of breath for a
breath test under section 2 (i), which had to be fully
considered.
The appellant had been driving excessively fast on a
winding road, followed by a police car. He stopped in his
drive with the bumpers two or three feet in from the
road and,
as
the officer approached,
the appellant
switched off the engine. The ignition key was still in
the dashboard. As the appellant started to get out the
officer noticed that his breath smelt of alcohol and,
although he agreed to take a breath test, he failed to
do so and was arrested.
The sole defence point raised at trial was that he was
no longer a person driving.
The issue of whether an accused was driving at a
relevant time was one of the facts that had to be left
to the jury unless an admission had been made—with a
proper direction, if there was evidence fit to go to them.
The deputy chairman had been misled by counsel into
error in decidng the question was one of aw.
His Lordship said that there was no reason for apply
ing a less degree of reasonableness to
the 1967 Act
provisions than to those of other statutes. Both as a
matter of reasonable approach and on well-established
authority a " requirement" under section 2 (i) could be
made off the road so long as it was made in the course
of a chain of action following sufficiently closely on an
observed driving on the road. A motorist merely by
turning a few feet off a highway could not stultify police
action and escape being required to give a breath test,
when the action could otherwise be proper.
" The contrary view would result in absurdities; for
it would entail that any driver who sees himself followed
by the police has only to drive fast enough to get off the
road and on to the nearst piece of private property to
escape the consequences which the Act intended ".
(Regina v. Jones, Times, 5th December 1969).
PRECIS OF UNREPORTED IRISH CASES
With a view to facilitating easy reference and
consultation by members, it is hoped to publish
a separate eight page leaflet supplement of precis
of recent unreported Irish decisions with the
February issue of the Gazette.
APPRENTICES' FORUM
Absolute Liability in Running Down Actions
The Apprentices' Debating Society
recently
sponsored a debate on the motion " That the
theory of absolute liability in running down actions
should be implemented in Irish Law ". The six
guest speakers, all ex-auditors of the Society,
covered the practical aspects of the debate quite
extensively.
There was almost unanimous criticism of the
unreliability of the civil hearing as it is practised
at present. Mr. Bruce St. John Blake described
its effect as being " nothing more than a lottery ".
Referring to the question of evidence, Mr. John
Buckley said the existing system needed modern
isation and suggested that evidence taken at a
criminal trial as to who was responsible for an
accident should be admitted at the civil hearing
as a time saving measure.
Mr. Blake and Mr. Patrick Kilroy urged that
absolute liability be introduced here as a matter
of social justice. Mr. Kilroy said that by permit
ting the use of vehicles on the roads, society
thereby had an obligation to compensate its own
members who were injured as a result. He stated
that this principle is finding increasing favour in
most European countries.
Opposition speakers emphasised the problem
of insurance presented by the application of the
theory. Mr. Michael O'Mahony remarked that the
report of the New South Wales Commission pin
pointed but could not seem
to overcome the
difficulty of ensuring that compensation should not
be so high as to make it easy for a claimant not
to have to return to work.
A suggestion was made that the system at pre
sent in operation under the German Civil Code
might suitably be adopted here This scheme per
mits claims to be made on insurance companies
up to a limited amount without production of a
Court order, while any additional sum can be
recouped by instituting proceedings (see Gazette
August-September 1966).
In his summing up, the Chairman, Senator
Professor John M, Kelly, doubted whether the
principle of social justice on which the theory is
based overrides the priciple of natural justice
that a motorist should not be obliged to contri
bute, through increased insurance, to the cost of
79