The Gazette 1974

either intoxicating drink or a drug. As S. 50 of the 1961 Act contemplates only one offence—unfit to drive—it would be unreasonable to hold that two separate offences are created by S. 49. Those sections effectively show that the words "intoxicating liquor or a drug" was to indicate the range of causation for the incrimin- ating capacity, not to effect a subdivision into two distinct offences. The lack of particularity in referring vaguely to "intoxicating liquor or a drug" is in accor- dance with the legislative intent. Although it would be desirable for a Justice in cases under Sections 49, 50 and 51. to identify whether an accused was convicted or acquitted for driving as a result of intoxicating liquor or a drug, it is not essential, owing to the statutory definition, to do so. The majority of the Court (Henchy and Griffin JJ.) accordingly held that the conviction in this case was for a single offence, not invalid for uncertainty or duplicity. Accordingly they allowed the appeal and the cause shown, and discharged the conditional order of Certiorari. Walsh J., dissenting but affirming Finlay and Gan- non JJ., would have dismissed the appeal. It is clear that the definition of "unfit to drive" is a mere term of art limited to unfitness due to either the influtnee of intoxicating liquor or of a drug. It is to be noted that in Section 49 the Oireachtas did not provide that a person shall not drive, or attempt to drive, a mechani- cally propelled vehicle while he is unfit to drive, and then define "unfit to drive". One should note that the Section 15 (1) of the English Road Traffic Act 1930, unlike the Irish Act of 1935, did not use the words "intoxicated" or "intoxicating". In the People v. Blogh (1958) I.R. 91, the Court, as did the English Courts, held that a person who drives a vehicle in a public place "at a speed or in a manner" which was dan- gerous to the public, created two offences, distinguish- ing between "the dangerous manner" and "the dan- gerous speed"; the wording was not changed in the 1961 Act, but the single offence of dangerous driving was specifically created by Section 51 of the 1968 Act. The words "under the influence of intoxicating liquor or a drug" are not merely adjectival. A person cannot be incapable by reason of the fact that the consumption of intoxicating liquor was self-induced. But drugs are of two types—(a) those that are medical, and (b) the result of taking drugs would be the result of addiction to drugs. In the case of medicinal drugs, the taking of drugs is not necessarily self-induced. It is an excep- tionally serious thing for a person to have been con- victed in terms which leave it uncertain as to whether this incapacity was due to drink or drugs. It is the duty of the Justice to apply his mind not merely to the incapacity, but basically to the cause of the incapacity. If the Justice is not sure under which capacity resulting from the combined effects of taking drink and drugs he is to convict, or he can convict in respect of the one of them as he would regard as being the immediate cause. If, as in this case, the conviction is bad on the face of it because of duplicity, the proper course is to send the case back to the District Court to have a correct order made. Accordingly, the conviction should be quashed, but the case should be returned to the Justice to make a proper order. [The State ( McGr oddy ) v. District Justice Carf, Supreme Court (Walsh, Henchy, and Griffin JJ.)> Separate Judgments by each Judge; unreported; 1 August, 1974.]

Irish Life, by losing the right to possession, cannot by assigning to the defendants, give them a right of pos- session. The defendants, by taking a transfer of the freehold, cannot give themselves any better right to possession than they themselves had, before the transfer was effected. The decision of O'Keeffe P. granting a perpetual injunction to the plaintiff restraining the defendants from taking possession of the specified plot was accordingly affirmed, and the appeal was dis- missed. Henchy J., dissenting, would have allowed the appeal and would have held : (1) By never paying rent, the plaintiff is not entitled to the leasehold interest. (2) The plaintiff is not now entitled to the fee simple in the plot; by making the lease of November 1947 for 999 years, the owners of the fee simple put the plot out of their reach for the duration of the lease, and consequently the earliest date at which the Statute of Limitations would have begun to run against them would be the 5th November, 1970. (3) The defendants are ultimately entitled to the fee simple in the plot subject to the right of a plain- tiff, who is not a squatter, to retain possession of it until the expiration of the lease, i.e. 999 years from 1947. The principle that a tenant cannot derogate from his grant does not apply to a squat- ter. (4) The defendants have become entitled, since the merger of the lease in the freehold in 1970 to a right to recover possession of the plot. [Perry v. Woodfarm Homes Ltd.; Supreme Court (Walsh and Griffin JJ., Henchy J. dissenting); Separate judgments by each Judge; unreported; 1 August 1974.] A conviction for driving a motor car while under the influence of intoxicating liquor or of a drug constitutes a single offence. In February, 1973, the accused was charged under S. 49 of the Road Traffic Act, 1961, with driving a motor car while under the influence of intoxicating liquor or of a drug to such an extent as to be incapable of having proper control of the vehicle. The District Justice convicted the defendant, and fined him £10 or one months imprisonment. In July 1973, Finlay J. granted a conditional order of certiorari to quash the conviction, on the ground that the order for conviction was bad for duplicity. On 1 October 1973 Gannon J. made absolute the conditional order and disallowed the cause shown, on the same ground. The Attorney- General appealed on the ground that the complaint against the accused charged one offence only and con- sequently there was a valid order of conviction. The net question is whether to drive under the effect of intoxicating liquor is one offence, and whether to drive under the influence of drink is a separate offence. In Thomson v. Knights (1947) K.B. 336, a Queen's Bench Divisional Court held that a charge under a similarly worded section in the English Road Traffic Act consisted only of one offence. The accused contends that, in order to secure a prosecution for an offence under the Irish Section, the prosecution would have to prove that the incapacity resulted either from intoxicating liquor or from a drug. It is to be noted that tests like blood tests were not envisaged in 1961 and consequently prosecution under the section were foredoomed to failure if the incapacity resulted from

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