Last December, I devoted issue number seven of Free Life Commentary to explaining why drinking and driving should not be a crime. I am now returning to this theme.

I do so not because I am short of material. Being a libertarian activist in modern England is rather like getting to the top level in one of the more violent computer games: you are running low on ammunition and energy, and the enemy is rushing at you from all directions in greatly increased numbers. My reason is that I seem to be winning this argument.

For the past three years, I have been the only person in the country willing to go on air and oppose the general hysteria over drinking and driving. My media database records 25 appearances since November 1994, most of them against spokesmen from the Campaign Against Drinking and Driving. This is a movement run by people for whom I have much respect. Unlike the sordid liars of the anti-tobacco lobby, men like Ron Jessup and Graham Buxton believe what they are saying. In various ways, they have been made to suffer by drunken drivers, and their object is to reduce the chances that others will suffer as they have. For this reason, I am always polite to them. With the exception of someone called Harry Capes, who fell to insulting me last Wednesday evening on a BBC Radio programme called Late Night North, they are polite to me.

And they are losing. During the past few months, they have been less confident in their arguments than they used to be. Sensing this, the programme hosts have started putting difficult questions of their own.

Of course, winning an argument does not lead immediately to changes in the law. If it did, drugs would have been relegalised a long time ago, and handguns would never have been banned in the first place. Where drinking and driving is concerned, there are too many vested interests to overcome, and too great a mass of prejudice built up in the public mind. Even so, unless the argument is won, there can be no prospect of changes in the law. Being just one person, without any burning commitment in the issue, and without a penny of funding, I think I can be proud of what I have done.

For this reason, I feel inclined to share my latest thoughts on drinking and driving with the thousand direct subscribers to Free Life Commentary and with the further but unknown thousands who read me on the newsgroups and discussion lists.

Drinking and Driving: What I Believe

I do not approve of drinking and driving. A motor car in careless hands is a very dangerous thing; and though I doubt some claims about the degree of impairment, I do accept that drivers who drink beyond a certain level become careless. I never drink and drive. Those drivers who lack my sense of responsibility earn my contempt. Those who go on to cause damage to the lives and property of others earn my utter condemnation.

My disagreement with the established point of view lies not in whether drinking and driving ought to be deterred. It lies instead over the means by which deterrence ought to be achieved.

Deterrence by Prior Restraint

For at least the past 30 years, deterrence has lain in prior restraint—in the setting and enforcing of strict upper limits on how much alcohol someone may drink before getting into a car. The present limit—pardon the metricism—is 80 milligrammes of alcohol in 100 millilitres of blood, or about two English pints of beer at normal strength. Under the Road Traffic Act 1988, the Police have the right to test any driver who has been lawfully stopped. This obviously covers drivers who have been involved in an accident. It also covers those who have been stopped on suspicion of any offence.

Turning to punishments, the normal penalty for driving or attempting to drive while under the influence of drink or drugs is six months imprisonment, or a fine up to level 5, or both. Disqualification and endorsement are obligatory unless "special reasons" are adduced in court. And the vehicle may be forfeited. For being in charge of a vehicle while over the limit—this may mean having been caught at the wheel of a stationary car with the keys in the ignition—the maximum penalty is three months imprisonment, or a fine, or both.

Deterrence by Punishment

I disagree with this entire approach. If I had my way, drinking and driving would not in itself be a crime. It would be possible for a person to drink a bottle of whisky, get into a car and drive away - and the authorities would have no power to stop this.

Punishment would only come if an accident was caused. But it would then be very severe punishment. There would be no more of those cases we read about in the newspapers, where a driver kills three children on a zebra crossing, tests at three times above the legal limit, and gets away with a one year driving ban and a suspended sentence. I want to see the Offences Against the Person Act 1861 applied to traffic accidents. Causing death by dangerous driving would then not carry a maximum penalty of ten years imprisonment plus fine, as it now does. it would instead be classified as negligent homicide, or manslaughter, the maximum penalty for which is imprisonment for life. Where sufficiently gross negligence could be proved, I would see the offence classified as murder, for which imprisonment for life is now the mandatory punishment—and for which I would like to see the death penalty restored.

In this scheme of deterrence, drivers would still be tested for alcohol after an accident. But they would be tested only after an accident, and a positive result could only be used as evidence in a prosecution for crimes against life or property to prove the degree of negligence, and therefore to determine the level of punishment.

The Success of Prior Restraint

It may be asked what benefit would be gained from substituting my scheme for the one already in place. After all, prior restraint does appear to have worked. I have before me the Drinking and Driving Statistics issued in September 1997 by the Department of the Environment, Transport and the Regions. These show that in 1979, there were 1,643 "fatal casualties in accidents where one driver or rider was over the legal limit". By 1985, this number had fallen to 1,040, by 1990 to 760, and by 1996 to 540. Since then, it has almost certainly fallen again. Some of this reduction may be due to the public awareness campaigns. Much of it, though, must be due to the fear of punishment if caught over the limit in charge of a car.

The Costs of Prior Restraint

The answer is that criminal laws are not to be judged simply in terms of the benefits derived from them. We need also to look at the costs they impose. Laws that on first inspection seem beneficial often turn out on balance to be far less so. This is the case with prior restraint in drinking and driving. It has succeeded in forcing down the number of alcohol- related road deaths. But it has done so at costs that are both exorbitant and unnecessary. Consider:

First, the present law is in itself a breach of this country's liberal traditions, and is conducive to further breaches. To be stopped, on no probable cause, and forced to explain ourselves to the authorities—and even sometimes to provide specimens from our own bodies for inspection and recording -is a violation of our liberty. Until a time still within living memory, the Common Law was emphatic in its prohibition of searches and seizures, except by judicial warrant and on evidence of some specific criminal behaviour.

The Road Traffic Acts abolish this prohibition partly by defining as crimes behaviour that is not an attack on life or property, and partly by encouraging indiscriminate searches to uncover such behaviour. The Acts may disallow drivers from being stopped without probable cause. Plainly, however, drivers are so stopped. Of the 781,000 breath tests administered in England and Wales during 1996, 87 per cent—that is, 680,000—were negative. The overwhelming majority of these must have been victims of some unofficial policy to stop every tenth car, or every blue car, or every car with a number place ending in a vowel, or whatever.

And this is an unavoidable consequence of the law. At the present alcohol limit, there is seldom any visible impairment of driving ability—indeed, most drink-related accidents are caused by drivers far in excess of the limit. For the law to be effectively enforced, the Police must stop drivers virtually at random. If the limit is lowered—as the Campaign Against Drinking and Driving is now demanding—the number of tests and the number proving negative must both rise still further.

Moreover, once set, despotic precedents are always extended. The present law puts us to the authorities as a child is to its guardian. No matter how friendly, or efficient, or honest the enforcement may be, the law breaks us into the notion that we have a duty of accountability to the authorities, and that this is for our own good. But to be obliged to stop our cars and provide a specimen is no different in principle from being made to carry identity cards and produce them on demand, or having to provide a set of our house keys to the Police, so they can more easily check us from time to time to see if we are receiving stolen goods or hiding bodies under the floorboards—or from being electronically tagged, so the authorities can see where we are at any given time.

In spite of having much reduced the number of alcohol-related road deaths, the present law is flatly in contradiction to a thousand years of English constitutional development. It is instead the mark of a police state.

Second, the law involves a waste of the tax payers' money. Of those 680,000 negative tests in 1996, let us suppose that each one cost £10 of Police time. That brings a direct cost to the tax payers of nearly £7 million.

Turning to waste less easily quantified, every officer assigned to looking for drivers over the limit is one officer fewer to catch real criminals. This is specially the case at Christmas, which has lately become carnival a time for burglars and muggers. There are fewer officers around to deter them, and fewer to go looking for them after the event.

Third, the law has a double agenda, one open, the other hidden; and pursuit of the latter compromises pursuit of the former. Years of propaganda about the horrors of drinking and driving have tended to obscure the fact that alcohol is not the only cause of driving impairment. Rather as I have, most people have come to attach notions of extreme immorality to drinking before driving. Few such notions are attached to driving while tired or stressed, or after drinking lots of tea or coffee, or while in desperate need of a pee. Yet these are often at least as dangerous as driving slightly above the legal alcohol limit.

And they are ignored. Even if some of these causes of accidents are naturally hard to measure, some effort could be made at least to acknowledge their existence. None is made. The spokesman for the Department of the Environment, Transport and the Regions thought at first I was joking when I called last week to ask for statistics on caffeine-related road deaths. Then, after I had insisted, he came back with an explanation that no such statistics were gathered, and that there were no plans to start gathering them.

This indicates that much of the propaganda against drinking and driving has nothing to do with reducing injuries to life and property, and everything to do with making it harder to enjoy a drink in good company. Macaulay once said of the 17th century puritans that they hated bearbaiting not because it gave pain to the bear, but because it gave pleasure to the spectators. His epigram applies equally well to the modern puritans, who bray about the horrors of driving after half a pint of lager while refusing even to consider the effects of half a gallon of black coffee.

Now, if these were the unavoidable costs of preventing thousands of road deaths, there might be a case for the present law. Though it is not a case that I would accept, I could understand the willingness of others to accept it. But this is not so. People who reply to my talk about civil liberties with talk about the civil liberty to stay alive are missing the point. By returning to our old tradition of deterrence by punishment, exactly the same legitimate object could be achieved—of ensuring that drivers only took to the roads while in a reasonably fit state to drive. It could be done without turning the Police into a British Gestapo, and without stopping seven sober drivers in order to find one who is slightly over the limit—and without letting entirely just concerns about road safety be hijacked by closet prohibitionists.

Objections

I never get time to say all the above on air. That is the nature of broadcasting. But I usually do get the main points across. If they are not accepted, it is most often for two reasons:

First, people often doubt if punishment after the event can have as much deterring power as prior restraint. I cannot say for sure that it would; and I am at a disadvantage in arguing against a scheme of deterrence that does work in spite of what I see as its high costs.

Sometimes, I reply that people generally do avoid breaking laws where obedience does not involve going against fundamental desires or principles, and where the punishment is sufficiently heavy. Let causing death by dangerous driving be treated as manslaughter, and there would be no need of breathalysers and intoximeters.

More often, I make the point indirectly. Whenever I do a call-in programme, there is always at least one tearful caller lined up to say: "I lost my sixteen year old daughter to a drunken driver. She was coming home after celebrating her exam results. What do you have to say about that?" My response is to ask what punishment this foul beast received. The answer commonly involves something about a £500 fine. My answer to this is to explain how under my scheme of deterrence, that driver would still be rotting in prison - or might even be rotting underground if I had my way with the restoration of the death penalty for murder. This always silences further questions of the same kind. I suspect it also satisfies most listeners.

Second, many people cannot see the point in laws that only come into action after something terrible has already happened. As an extreme example, take Harry Capes of the Campaign Against Drinking and Driving. He came on air against me the other evening, and spent the last minute of the programme insisting over and over that I was "provoking" criminal acts with my view of what the law ought to be. He seemed genuinely outraged that I was denying any place for prior restraint.

However, that is what the law must be like in a free country. It must be essentially passive. It must leave people to go about their business, free of inspection and control, and do nothing even when it is plain that some of them are up to no good. It must act only after a crime has been committed against life or property, and must then hit out very severely—so far as possible deterring the lawbreakers from misbehaving again by the weight of punishment, and deterring others from similar misbehaviour by the example of punishment.

This is not terribly efficient, I grant. But the reason for that lies in the limited value of law. It is not a magic wand, able to solve whatever problem it is waved over. It is the immaterial equivalent of a baseball bat—effective, though best used not very often. To demand otherwise of the law—to insist on a role for it in preventing crimes—is to think like the citizen of a slave state.

I have spent more time in waiting rooms and VIP lounges with spokesmen from the Campaign Against Drinking and Driving than I have in studios. In this time, I have discovered that they are not professional health fascists interested in advancing an agenda of control. They are ordinary people brought into public life by extraordinary misfortunes. One of them even shares my dislike of the European Union and its assault on our native traditions.

This being so, I want to end by calling on the Campaign Against Drinking and Driving to continue its work by more British means. Instead of pressing for lower alcohol limits, let it seek an improvement in road safety by pressing for the recovery of freedom and responsibility. Instead of demanding "unfettered discretion" for the Police to enforce the commands of a European-style police state, let it demand a return to our old system of real punishments for real crimes in a free country.