Schedule 21: Power of immigration officers: further provision Section 56: Drugs and driving
668.Subsection (1) introduces an offence of driving, attempting to drive or being in charge of a motor vehicle with a specified controlled drug in the blood or urine in excess of the specified limit for that drug. The new offence is inserted as a new section 5A in the Road Traffic Act 1988 (“the 1988 Act”). A “controlled drug” is defined in section 11 of the 1988 Act, as amended by subsection (2)(a), by reference to the Misuse of Drugs Act 1971 (“MD Act”). The definition of a controlled drug is set out in section 2 of the MD Act, which in turn refers to drugs listed in Schedule 2 to that Act (and also to drugs subject to temporary control by virtue of the making of a temporary class drug order). Legal controls apply over controlled drugs to prevent them being misused, for example being obtained or supplied illegally.
669.It is already an offence under section 4 of the 1988 Act to drive whilst impaired by drugs (or alcohol), and the section 4 offence will remain in place alongside the new offence. Unlike the section 4 offence, the new offence will not require proof of impairment. In this respect it is similar to the offence in section 5 of the 1988 Act of driving, attempting to drive or being in charge of a motor vehicle with an alcohol concentration above the prescribed limit. The penalties available for the new offence, set out in subsection (4) (which amends Part 1 of Schedule 2 to the Road Traffic Offenders Act 1988), are the same as those for the offence in section 5 of the 1988 Act (i.e. the penalties set out in Schedule 2 to the Road Traffic Offenders Act 1988 as increased, for England and Wales, by certain provisions of the Criminal Justice Act 2003 which are not yet in force).
670.New section 5A(8) of the 1988 Act introduces a regulation-making power (exercisable by the Secretary of State in relation to England and Wales and by the Scottish Ministers in relation to Scotland) to specify which controlled drugs are covered by the offence, and the specified limit in relation to each. Such regulations will be subject to the affirmative resolution procedure (by virtue of the amendment to section 195 of the 1988 Act made by subsection (3)). There is already a requirement in section 195(2) and (2A) of the 1988 Act to consult before making regulations under the 1988 Act.
671.New section 5A(2) of the 1988 Act allows for different specified limits to be set for different controlled drugs. Specified limits could be set based on evidence of the road safety risk posed by driving after taking the drug, or based on an approach whereby it is not acceptable to drive after taking any appreciable amount of the drug (or somewhere in between). New section 5A(9) provides that specified limits could be zero, though this does not mean that limits would in fact be set at zero.
672.New section 5A(3) of the 1988 Act provides for a defence if a specified controlled drug is prescribed or supplied in accordance with the MD Act and taken in accordance with medical advice. The offence in section 4 of the 1988 Act would continue to be used to deal with those whose driving is impaired by specified controlled drugs taken in such circumstances. It would also continue to be used to deal with those whose driving is impaired by drugs which are not specified for the purposes of the offence (including other prescribed drugs and ‘legal highs’). New section 5A(4) of the 1988 Act provides that the defence is not available if medical advice about not driving for a certain period of time after taking the drug has not been followed.
673.New section 5A(6) of the 1988 Act provides for a defence for someone who is accused of being in charge of a motor vehicle with a specified controlled drug in the blood or urine above the specified limit for that drug, if it can be shown that there was no likelihood of the person driving the vehicle while over the specified limit. This is similar to the defence in section 5(2) of the 1988 Act.
674.Subsections (5) and (6) make transitional provision for the period before the coming into force of certain provisions of the Criminal Justice Act 2003 that increase, for England and Wales, the maximum terms of imprisonment for summary offences.
675.Subsection (7) introduces Schedule 22.