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1. The issues in this case arise out of a Case Stated by Judge Michael White of the Circuit Court pursuant to Section 16 of the Courts of Justice Act, 1947. The Case Stated itself arises out of proceedings against the above named Defendant in which the offence alleged is of being in charge of a motor vehicle with intent to drive when he had in his body a quantity of alcohol in excess of that stipulated by law, contrary to Section 50 (3) of the Road Traffic Act 1961 as amended. He had been convicted of the offence in the District Court and the case is now before the Circuit Court on appeal by way of rehearing.

2. The facts and circumstances of the case are set out in the case stated as are the specific questions of law posited by the learned Circuit Court Judge for determination by the Supreme Court. For the sake of convenience I will quote the relevant parts of the case stated:-

3. At the conclusion of the Case Stated the learned Circuit Court Judge stated that having heard submissions of the parties he “ was of the opinion that the statute only allowed me to consider the intention of the Defendant only as and from the time garda found the Defendant in the car .” He then went on to set out the questions of law in respect of which the case was stated:

4. Counsel on behalf of the D.P.P. submitted that the first question which arose was whether the Defendant could be found to be “ in charge ” of the motor car in question and from what point in time he may be considered to have been “ in charge ” of the vehicle. The expression “in charge” is not defined in the Act and whether a person is “in charge” of a motor car at a particular time is a question of fact to be determined from the circumstances of the individual case. Counsel submitted that in this case, having regard to the facts as found and set out in the Case stated the evidence before the Circuit Court was that the Defendant, having been found by the garda member in the driver’s seat with the keys in the ignition had obviously entered the car earlier and, on his own admission involuntarily fallen asleep. He submitted that the Defendant must or may be found to have been in charge of the motor car from the time he got into the car and that he remained in charge of the car up and including the time when the garda member arrived and woke him up. The fact that he had fallen asleep in the meantime did not alter the fact that he was a person in charge of the motor car within the meaning of Section 50 of the Act, as amended. In support of this submission Counsel relied on an English decision in D.P.P. -v- Watkins [1989] R.T.R. 324 at 321 in which it was held “ If the Defendant is the owner or lawful possessor of the vehicle or has recently driven it, he will have been in charge of it and the question for the Court will be whether he is still in charge or whether he has relinquished his charge ... Usually such a Defendant will be prima facie in charge unless he has put the vehicle in someone else's charge. However, he would not be so if in all the circumstances he has ceased to be in actual control and there is no realistic possibility of his resuming actual control while unfit e.g. If he is at home in bed on the night or if he is a great distance from the car or if it is taken by another” Counsel submitted that in this case it may and ought to be properly inferred that the Defendant was the lawful possessor of the vehicle and/or had recently driven it. This is supported by the fact that the lights were on in the car when it was observed by the Prosecuting Garda. The Defendant was in the driver’s seat and the keys were in the ignition and had been turned “ two clicks ” towards full ignition. There was no basis on which it could be inferred that he had relinquished possession to any other person. In conclusion, it was submitted, that in these circumstances the learned Circuit Judge ought to conclude that the Defendant was “ in charge ” of the vehicle at the time the prosecuting garda came upon the scene and found him in the motor car.

5. Secondly, Counsel for the D.P.P. addressed the question as to whether the Defendant could be found to be in charge of the car “ with intent to drive ”. First of all Counsel

6. Counsel for the Defendant submitted that the offence alleged must be established to have been committed at a particular point of time. This is evidenced by the requirement of the subsection that a person is guilty where the concentration of alcohol exceeds the permitted limit “ within three hours after so being in charge .” Counsel submitted that in this case the only point in time when the offence could be alleged to have been committed is at the point when the investigating garda came upon the Defendant and found him asleep in the car. If no particular point in time can be identified at which the Defendants could be said to be in charge it would be impossible to determine the issue whether or not the concentration of alcohol in the Defendant’s urine exceeded the permitted level within a period of three hours. Although Section 50 (8) of the 1961 Act, as inserted by Section 11 of the 1994 Act, creates a presumption to the effect that a Defendant is presumed to have intended to drive, this presumption is defeated by the fact that the Defendant was asleep. Since he was asleep the Defendant cannot have had an intention to drive. The two questions posed in the case stated should be answered firstly, by holding that the learned Circuit Judge was not entitled to conclude that the Defendant was in charge of the vehicle in a public place with intent to drive because the evidence does not indicate any such intent and secondly the learned Circuit Judge should not consider the intentions of the Defendant before he went to asleep since no point in time has been established at which those intentions are to be considered. Furthermore, it was submitted the intention to drive must be an immediate one.

7. There are two elements in the first question. Firstly, whether, on the facts, the learned Circuit Judge is entitled to hold that the Defendant was in charge of the vehicle and secondly, if so, is he entitled to hold that there was an intent to drive.

8. These issues fall to be considered in the context of the point in time in respect of which it may be open to the Circuit Judge to hold that the offence alleged was committed. In the terms of Section 50 (2) of the Act the offence is committed when a person who is in charge of a vehicle with intent to drive has in his body an impermissible quantity of alcohol “ within three hours after so being in charge ”. Self-evidently therefore if the court of trial is satisfied that a Defendant was in charge of a vehicle with intent to drive at any point in time during that three hour period then it must convict for the offence. For the sake of convenience I use the term “ satisfied” as shorthand for satisfied beyond reasonable doubt. In practical terms, on the facts of this case (including the undisputed fact that the Defendant was found to have an impermissible level of alcohol in his body within three hours of the garda member finding him in the car) it means that the learned Circuit judge must be satisfied that the Defendant was in charge with intent to drive at some point during the period from when the garda member observed the Defendant in the car and arrested him.

9. Counsel for the Defendant, understandably, did not really take issue with the submission on behalf of the D.P.P. that the Defendant, on the facts of this case may be considered at all material times to have been in charge of the vehicle. He focussed his submissions on the contention that since the Defendant was asleep when found by the garda there could have been no intent to drive. However, since the first question as posed by the learned High Court Judge raises the question of whether the Defendant may be found to have been ‘ in charge’ of the vehicle and having regard to the facts of the case as a whole I think I should make some limited reference to this point.

10. The notion of ‘in charge’ of a vehicle is a very general one and will fall to be applied in a wide variety of circumstances or combination of circumstances. There is no statutory definition. The words of the section must be given their ordinary and natural meaning and the term “ in charge ” of a vehicle must be applied in a common sense way. Interestingly, there are no authorities on the interpretation of this phrase, which would seem to indicate that the courts which have to apply this section, in particular the District Court, have not found any substantial difficulty in applying its terms. Nor is there a reported decision on ‘being in charge’ of a carriage while drunk contrary to the Licensing Act 1872. That said it must also be said that the application of the section in question to a person found asleep in the motor vehicle was raised in a previous Case Stated but which, for various reasons was not proceeded with to final decision.

11. Evidently, a great deal depends on the facts of the particular case and for that reason I do not think it wise nor indeed possible to prescribe a set of criteria which would provide an answer in all cases for the question, “ Was the Defendant in charge of the motor vehicle.?” The English authorities which relate to this issue are at best of a limited value since the relevant English statute has quite a different structure to that of the Road Traffic Act 1961, as amended, although the particular citation relied upon by the D.P.P. from D.P.P. -v- Watkins (cited above), is helpful. In that case it was also acknowledged that “ ... no hard and fast all-embracing test can be propounded as to the meaning of the phrase, in charge” In the circumstances I think it is appropriate to confine myself to making just a few observations on the general notion of “ in charge ” of a vehicle and then deal with the particular facts of the case as set out in the case stated. Being in charge of a vehicle has connotations of having possession or control or being in a position to exercise possession or control. Since the offence is one of being in charge with intent to drive there must be some proximity or close connection between the circumstances in which a Defendant is found to ‘be in charge’ and the vehicle itself. A person does not have to be in a vehicle in order to be in charge of it. On the other hand if he was in his home watching television this would normally be too remote to regard such a person, on any common sense view, in charge of a motor vehicle parked outside, within the meaning of the section.

12. I turn to consider the factual circumstances of this case. Where a person is found alone in a car, occupying the drivers seat, with the keys of the car in the ignition (leaving aside for the moment the question of such a person being asleep) it seems to me that prima-facie he may be considered to be in charge of the motor car. Of course I do not mean to say that all these ingredients are essential since in particular circumstances a person may be “ in charge ” even if he does not have the keys or if he is outside the motor car but in the circumstances which I have indicated prima-facie that would be the case. In this case all those circumstances were present and more. The car was parked on the hard shoulder of the Navan Road with its lights on and the ignition key was turned “two clicks” towards the ignition. The Defendant was alone in the car. His evidence was that he had fallen asleep involuntarily and was asleep when found by the garda. On those facts the Plaintiff was clearly in possession of the car at the time when the garda member found him. I take the view that he was ‘in charge’ of it within the meaning of the section. If a driver on a long journey pulls into a lay-by and takes a nap before continuing his journey I not think that he can be considered to have ceased to being in charge of the car during the period when he was asleep. The fact that in this case the Defendant fell asleep involuntarily does not, to my mind, alter the position. Nor is there any evidence, in the words of D.P.P. -v- Watkins as cited above that, having entered the car he had “relinquished his charge”. On the facts set out in the case stated the Circuit Judge is entitled to hold that the Defendant was in charge of the motor car when Garda Kinneen arrived on the scene.

13. The submission of Counsel on behalf of the Defendant was to the effect that even if the Defendant was at all material times in charge of the motor vehicle he could not, when found by Garda Kinneen, have had an intention to drive because he was asleep. Whatever intention he may have had when he got into the car could not have been present due to the fact that he had fallen involuntarily asleep.

14. Intention is a sense of purpose as to future action. The fact that a person who is charge of a car falls asleep, even involuntarily, does not mean that a purpose for which he is in the car has been abandoned, that an intention has ceased to exist. Returning to the analogy of a driver who pulls into a lay-by to rest during a long journey, the fact that the driver falls asleep during that rest, voluntarily or otherwise, does not mean that he has abandoned his intention to drive or that it ceases to exist.

15. I conclude, therefore, that if the Court is satisfied that the Defendant was in charge of the motor vehicle as charged, the presumption of intention to drive pursuant to subsection 8 of section 50 arises. It is then for the Defendant to show to the contrary so as to raise a reasonable doubt in the mind of the trial judge. In deciding the issue it is open to the Circuit Judge to consider his intentions prior to the Defendant falling asleep.

16. It was also submitted by Counsel on behalf of the Defendant that the intention to drive must be an immediate intention.

17. I do not consider there is anything in this section which lends itself to such an interpretation. On the contrary, if one compares Section 50 (8) as enacted by the 1964 Act with subsection 4 of Section 50 of the 1961 Act which it replaced, it would appear that the legislature had very much the opposite intention. Subsection 4 of Section 50 of the 1961 Act provided as follows (with emphasis added): -

18. As will be seen from subsection 4 (a) a Defendant could displace the presumption if he showed that there was no likelihood of his driving the vehicle “so long as he remained unfit to drive”. In contrast subsection 8 of Section 50 now inserted into the 1961 Act requires a Defendant to show that he did not intend to drive the vehicle in order to rebut the presumption contained in the subsection. It is not sufficient to show only that he did not intend to drive while he was unfit or during any particular period of time. That could only have been a deliberate alteration on the part of the legislature. It appears that Section 50 as it now stands seeks to create an offence of strict, or at least stricter, liability. The mischief which the legislature appears to have in mind are persons unfit to drive due to the consumption of alcohol who are in charge of a motor vehicle and have an intention to drive. That is to say, that it is an offence for a person to be in charge of a motor vehicle while at the same time having an intent to drive when he has in his body a level of alcohol prohibited by statute. Thus, it would not be a defence for a Defendant to admit that he was in charge of a motor vehicle with intent to drive while unfit due to the consumption of alcohol but did not intend to drive for 3 ½ hours, 6hrs or as the case may be. The Statute makes it an offence for such an unfit person to be in charge of a motor vehicle with the requisite intent.

19. Of course there may be particular circumstances where such a person contemplates driving the motor vehicle at some time in the future, and it would be an extreme interpretation of the Section and even an absurd one if, in all such circumstances, such a situation was to be treated as an “ intent to drive ” within the meaning of the section.

20. If a car owner left his house solely for the purpose of getting something from the boot of his car parked on the street outside when he was under the influence of alcohol he may be considered to be ‘in charge’ of the motor vehicle but the fact that he intended to drive to work the following day would not mean that he was in charge ‘ with intent to drive , within the meaning of the section. There I think the intention would be too remote to fall within the section. The relevant provisions of Section 50 creates an inextricable link between being in charge and the intention to drive. In the example given the sole purpose is to retrieve something from the car with the intention of leaving the car and returning to his house. There could not be said to be present in his mind an intention to drive while in charge of the car. There is an intent to relinquish or abandon his charge without driving. The link between being in charge of a vehicle and the intent to drive must mean that in the circumstances in which the Defendant is found to be in charge he has an intention, at some point, while in charge, to drive the motor vehicle. It is that intention which does not have to be immediate or an intention to do so within a particular time-frame. As in all cases of this nature there is a myriad combination of circumstances which can be conjured up on hypothetical basis. It is really a question of applying the terms of the relevant subsection to the facts of each case according to their ordinary and everyday meaning.

21. Having regard to the foregoing I would answer the two questions posed by the learned Circuit Judge as follows: -