A person operating the controls of a motor vehicle so that the wheels were spinning without any forward or backward movement was driving the vehicle for the purposes of s.5(1)(a) Road Traffic Act 1988.Appeal by prosecutor ('P') by way of case stated against the decision of Chichester Magistrates' Court on 8 July 2003 to acquit the respondent ('R') of driving a motor vehicle whilst the proportion of alcohol in his breath exceeded the prescribed limit contrary to s.5(1)(a) Road Traffic Act 1988. R had operated the controls of a car on a grass verge so that the wheels were spinning without the car moving. He produced positive breath tests at the roadside and at the police station. The magistrates' court held that he was not driving the car for the purposes of s.5(1)(a) of the Act. On appeal P argued that: (i) in reliance on R v Mcdonagh (1974) RTR 372 the test as to whether a person was driving was: (a) whether they were, in a substantial sense, controlling the movement or direction of the movement of the vehicle; and (b) whether their conduct fell within the ordinary meaning of the word 'driving'; (ii) for the wheels of the car to have spun, the engine was required to have and had been on and the clutch to have been engaged; (iii) the only reason that the car had not moved forward was that the handbrake had been applied; and (iv) by analogy with the Scottish case of Hoy v Mc Faddyn (2000) SLR 1060, R had been controlling the movement of the vehicle by a continuing intervention that went beyond mere preparation for driving.HELD: (1) R had admitted that in his case he was not driving but that had there been the slightest movement of the vehicle he would have been driving. That was too nice a distinction and one that was unrealistic to draw. (2) In relation to the first test in Mcdonagh (supra) it was clear that R had been controlling the movement and direction of the car by preventing the car's movement forwards through the application of the handbrake. The purpose was to prevent forward movement whilst spinning the wheels. It did not matter whether R had applied the handbrake himself or whether it had already been applied. The absence of forward movement did not prevent the conclusion that R was driving. Accordingly R had done more than merely prepare to drive, there was a sufficient degree of control over the movement and direction of the car and the first test in McDonagh was satisfied (Hoy (supra) considered). (3) In relation to the second test in McDonagh, as matter of public policy the activity of wheelspinning on a public road should fall within the purview of s.5(1)(a) of the Act. However, the court did not base its decision on that factor. Rather, as a matter of general impression a person who stopped the forward movement of a car whilst spinning its wheels was driving. Accordingly, the second test was satisfied. (4) In those circumstances, the magistrates' court had erred in holding that R had not been driving and the matter would be remitted back.Appeal allowed.

[2003] EWHC 2917 (Admin)

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