England and Wales Court of Appeal (Criminal Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
THE COURT OF APPEAL (CRIMINAL DIVISION)

		Royal Courts of Justice The Strand London WC2
		21 December 1994

LORD JUSTICE NEILL:

On 21 June 1994 in the Central Criminal Court the appellant Ian Beckford was convicted of causing death by careless driving when under the influence of drink or drugs. Sentence was then adjourned. On 12 July 1994 the appellant was sentenced to two years imprisonment and was disqualified from driving for a period of seven years.

He now appeals against conviction by leave of the single judge.

The Facts

At about 5 am on 13 November 1992 the appellant was driving a Mini Metro car (BLB 964Y) when the car collided with the square concrete block at the end of the crash wall and barrier on the south side of the eastern approach to the Bow fly-over. The Bow fly-over is a dual carriageway in east London with two traffic lanes in each direction. The concrete block is adjacent to the side refuge which separates the slip road and the main carriageway on the south eastern side of the fly-over.

Dionne Thompson, who was a passenger in the front seat of the car, was killed in the collision.

The owner of the car was Mr Theo Campbell. He had bought it in September 1992 and in October he had left it with Mr Malcolm Small to carry out repairs. On the evening of 12 November Mr Small and the appellant went in the car to two clubs. They were accompanied by two young women Miss Thompson and Miss Sharon Bubb. On leaving the second club Mr Small walked home and the car was left with the appellant. The appellant was driving the car home with Miss Thompson in the front passenger seat and with Miss Bubb and another man, Mr Cecil Campbell, in the back when the collision occurred.

An ambulance was called to the scene of the crash and the occupants of the car were taken to hospital. There the appellant received treatment for a large cut which he had sustained and which required 37 stitches. Both the ambulance men who attended the scene said that the appellant was suffering from shock. According to the Doctor who examined him at the hospital he said that he had had "a few pints of alcohol".

The police officers who first attended the scene in response to an emergency call were PC Kyte and PC James. We shall have to refer to their evidence in more detail later. At this stage it is sufficient to note:

(a) That after speaking to the appellant and noticing the smell of intoxicating liquor on his breath PC Kyte arrested the appellant as being unfit to drive through drink or drugs.

(b) That PC James looked at the steering mechanism and thought that there was some damage to the steering lock. He was heard to remark "the ignition barrel's been done."

A little later PC Kendrick arrived at the scene. He examined the car and the road surface. He found no braking marks on the road, however, which might have indicated that the steering wheel had locked, nor did he find any marks which might have indicated that the car had mounted the curb or any other signs of anything which might have contributed to the collision. He did not check the steering lock. Following his examination he gave instructions for the removal of the vehicle to the garage company which was usually instructed by the police. The vehicle was later removed to a warehouse occupied by the garage company.

On 19 November 1992 the vehicle was inspected by Dr Lambourne of the Metropolitan Police Laboratory. Dr Lambourne was a specialist in the investigation of road accidents and had worked at the Police Laboratory for 20 years. From his examination he reached the following conclusions:

(a) That the impact had occurred directly to the front and to the near side of the vehicle, that is, directly in front of the passenger in the front seat.

(b) That the impact speed had been between 35 mph and 45 mph.

(c) That before the impact the car had been travelling in the nearside lane, that is, in the lane at the beginning of the slip road leading down from the fly-over.

(d) That there was damage to the front offside wheel which indicated that before the impact the vehicle had struck the kerb between the slip road and the main road over the fly-over; this damage supported his conclusion that the vehicle approached the barrier from the slip road rather than from the main road.

On the following day, 20 November, the car was inspected by PC Croucher, who was an advanced accident investigator. At the time

of his examination he did not have the car key in his possession because the key had been retained at the police station. He did notice, however, that the ignition switch appeared to have been forced and that where the key entered the ignition switch the switch had been mangled. Nevertheless he found that the internal mechanism of the ignition barrel was intact, though he did not take it apart.

He had not been told beforehand of the comment by PC James on 13 November that the "ignition barrel had been done". He also found that owing to the extensive damage to the vehicle it was impossible to remove the steering which had locked solid.

Mr Beckford was not charged until 10 May 1993 when summonses were issued against him. By that time, however, the garage had made arrangements for the disposal of the car and it had been scrapped. It was discovered later that it was scrapped on 17 December 1992. It is clear that the police had not given any authority for the car to be destroyed but on the other hand they had given no instructions for it to be preserved. It was the practice of the garage company to dispose of vehicles unless they were asked to keep them.

Mr Beckford was committed for trial on 17 September 1993.

The Trial

The case for the prosecution at the trial was that Mr Beckford, having spent an evening with his friends and having during the evening consumed a quantity of alcohol had probably fallen asleep when driving home and that it was in these circumstances that the car had mounted the kerb between the slip road and the main road

and had collided with the concrete block at the end of the barrier.

The case for Mr Beckford on the other hand was that there was no or no sufficient evidence that he was unfit to drive because of drink and that the most probable explanation was that the vehicle had crashed because the steering lock had locked in a straight ahead position. It was also Mr Beckford's case that just before the impact the car had been on the main road and not on the slip road, and that because of the locking of the steering wheel Mr Beckford had been unable to steer the vehicle round the bend at the beginning of the fly-over. Mr Beckford did not give evidence at the trial, however, and the suggestion that the steering had locked was based in the main on the evidence of Mr Ronald Harrison, a consultant automobile engineer and motor claims assessor of many years experience, who was called on behalf of the Defence.

At the outset of the trial counsel for Mr Beckford submitted that the proceedings should be stayed as an abuse of the process of the court or alternatively that all the prosecution evidence should be excluded under section 78 of The Police and Criminal Evidence Act 1984 (the 1984 Act). It was submitted that if the car had not been scrapped it might have provided vital evidence for the defence, and that accordingly it was unfair for the prosecution to be allowed to proceed with the case when the defence had had no opportunity to examine the car or to discover whether there was a defect in it.

The judge rejected the submission, taking the view that Mr Beckford would not suffer serious prejudice if the trial continued and that it was for the jury to decide the issue.

The trial then proceeded. When PC Kyte came to give evidence, however, counsel for Mr Beckford made a further submission. He referred to a number of PC Kyte's questions to Mr Beckford; including the following:

"Q. Have you been drinking?

A. Yes.

Q. How much have you had to drink?

A. A few pints.

Q. How many?

A. Three."

Counsel submitted that these questions had been asked in breach of paragraph 10(1) of the Code of Practice and that they should be excluded under section 76 or section 78 of the 1984 Act. The judge rejected this submission. He expressed his conclusion as follows:

"I do not find that there were grounds to suspect that an offence had been committed until the defendant said that he had had three drinks, three pints; and it is from the answers really that he should have cautioned him about the drink."

Later in the trial, at the conclusion of the evidence for the Crown, it was submitted that there was no case to answer. It was said that there was insufficient evidence that Mr Beckford was unfit to drive through drink and insufficient evidence that he was driving without due care and attention. This submission too was rejected by the judge.

As has already been mentioned Mr Beckford himself did not give evidence at the trial. Mr Harrison, however, gave evidence as to the conclusions which he had reached having looked at the statements from the witnesses and having examined the photographs of the scene which had been taken by the police. Mr Harrison of course had not been able to examine the vehicle which had been destroyed long before he was instructed. He had, however, produced a detailed report dated 9 January 1994 and a further report dated 24 April 1994. We can summarise the main features of Mr Harrison's evidence as follows:

(1) He had been a traffic investigator for many years and had also previously served as a police officer and as a coroner's officer in the accident investigation department.

(2) In the course of his career he had had the following experience of steering wheel locking:

(a) In 1973 or 1974 he had attended an accident in Portsmouth when a Mini coupe had failed to make a left hand bend. He found on examination that the steering wheel was locked in the dead ahead position. He had removed the steering column and the steering lock and found that a wedge in the steering had become partially engaged.

(b) On another occasion he examined an Austin Metro which had failed its MOT test because of bad tyres. He found that the steering wheel had locked. On removing the steering lock he found that the pin or wedge in the lock was not returning to its central position.

(c) He had had similar experiences with an Audi and a minibus.

(3) On 20 March 1994 he went to the scene of the collision. Having visited the scene and having inspected photographs he expressed the opinion that the vehicle had approached the point of impact from the main road leading on to the fly-over, and not from the slip road.

(4) He said that he attributed the cause of the accident to a mechanical failure. In his opinion the general surface of the road as well as the manhole cover in the second lane of the main road could have caused the steering wheel to lock.

In the course of their evidence some of the prosecution witnesses were cross-examined about the possibility of a car's steering becoming locked while it was being driven. PC Kendrick agreed in cross-examination that if the pin in the steering lock came out the steering would become locked. PC Croucher said that he had never come across a case of a steering wheel becoming locked while a vehicle was in motion and that he did not think that that was possible because the pin in the steering wheel lock only came out when the key was removed. He said that such locking was "an unlikely thing to happen."

Dr Lambourne too was asked in cross-examination about the possibility of the steering wheel becoming locked. He said that in his 21 years experience he had not come across any case where the steering wheel had locked when the vehicle was in motion. He further said that he doubted whether a damaged ignition lock would affect the steering column lock.

At the conclusion of the trial, which lasted from Tuesday 14 June 1994 to Tuesday 21 June 1994, Mr Beckford was convicted by the unanimous verdict of the jury. On 12 July he was sentenced to 2 years imprisonment.

The Appeal

In this court, counsel for Mr Beckford advanced three grounds of appeal. Before turning to the main ground it will be convenient to deal shortly with the other grounds.

It was submitted that the judge should have excluded the evidence given by PC Kyte that Mr Beckford had admitted at the scene that he had had "about three pints". It was submitted that the questioning at this stage was a clear breach of the Code of Practice and that the evidence should have been excluded.

We have already referred to the judge's ruling on this matter. As PC Kyte explained in his evidence the fact that alcohol can be detected on the breath might mean that only a small amount has been consumed. We consider that the judge was entitled to conclude that it was not until Mr Beckford had admitted that he had drunk about three pints that the police officer was required to administer a caution. We would therefore reject this ground of appeal.

It was further submitted that the judge was wrong to fail to accede to the submission that there was no case to answer. It was said that there was insufficient evidence of unfitness to drive.

We have no doubt at all that the judge was correct in coming to the conclusion that there was a case for the jury to consider.

We come therefore to the principal ground of appeal which merits very careful consideration.

It was submitted that the judge was wrong in law in failing to stay the proceedings at the beginning of the trial on the ground of abuse of process or alternatively to exclude the whole of the prosecution evidence in accordance with section 78 of the 1984 Act.

This submission would appear to incorporate the further argument that in the circumstances the conviction was unsafe and unsatisfactory. We propose to consider this ground of appeal under the general heading "whether the proceedings should have been stayed".

Whether The Proceedings Should Have Been Stayed

It is not in dispute that in certain circumstances the court has power to stay a criminal prosecution. The question for consideration is whether such circumstances exist in the present case.

The constitutional principle which underlies the jurisdiction to stay proceedings is that the courts have the power and the duty to protect the law by protecting its own purposes and functions. In the words of Lord Devlin in Connelly v DPP [1964] AC 1254 at 1354 the courts have "an inescapable duty to secure fair treatment for those who come or are brought before them."

The jurisdiction to stay can be exercised in many different circumstances. Nevertheless two main strands can be detected in the authorities:

(a) Cases where the court concludes that the defendant cannot receive a fair trial;

(b) Cases where the court concludes that it would be unfair for the defendant to be tried.

In some cases of course the two categories may overlap.

A useful statement of the law, which covers part of the

ground, is to be found in the judgment of Sir Roger Ormrod in R v

Derby Crown Court, ex parte Brooks (1984) 80 Cr App R 164 where he

said at 168:

"The power to stop a prosecution arises only when it is an abuse of the process of the court. It may be an abuse of process if either

(a) The prosecution have manipulated or misused the process of the court so as to deprive the defendant of the protection provided by the law or to take unfair advantage of a technicality, or

(b) On the balance of probability the defendant has been, or will be, prejudiced in the preparation or conduct of his defence by delay on the part of the prosecution which is unjustifiable ... The ultimate objective of the discretionary power is to ensure that there should be a fair trial according to law, which involves fairness to both the defendant and the prosecution."

It is now clear, however, that the power to ensure that there should be a fair trial according to law does not exhaust the jurisdiction. Thus in R v Horseferry Road Court, ex parte Bennett [1994] AC 42 the House of Lords held that the court had jurisdiction

to enquire into the circumstances under which a person appearing before the court had been brought within the jurisdiction and, if satisfied that there had been a disregard of extradition procedures, to stay the prosecution as an abuse of process. As Lord Griffiths made clear in his speech at page 61H there was no suggestion that the appellant in that case could not have a fair trial, nor could it have been suggested that it would have been unfair to try him if he had been returned to the country through the proper extradition procedures. Lord Griffiths continued:

"If the court is to have the power to interfere with the prosecution in the present circumstances it must be because the judiciary accept the responsibility for the maintenance of the rule of law that embraces a willingness to oversee executive action and to refuse to countenance behaviour that threatens either basic human rights or the rule of law. I have no doubt that the judiciary should accept this responsibility in the field of criminal law."

This concept of fairness runs as a thread throughout the cases. Thus it was held by the Divisional Court in R v Croydon Justices, ex parte Dean (1993) 98 Cr App R 76, that the prosecution of a person who had received a promise or representation from the police that he would not be prosecuted was capable of amounting to an abuse or misuse of process. So too in Chu Piu-Wing v Attorney General [1984] HKLR 411 where the Court of Appeal in Hong Kong allowed an appeal against conviction for contempt of court for refusing to obey a subpoena on the ground that the witness had been assured by the Independent Commission Against Corruption that he

would not be required to give evidence.

In order to do justice to the arguments for the appellant in the present case it is necessary to consider the question of fairness generally and to examine (a) the possibility of a fair trial both at the stage when counsel made his submission on the opening day and also with hindsight to see whether the conviction was unsafe or unsatisfactory, and also (b) whether it was fair to bring the appellant to trial when through no fault of Mr Beckford himself the car had been destroyed before he was charged and long before any expert instructed on his behalf could have examined it. At the same time it is necessary to remember that though it is alleged that the police were careless or even grossly negligent in allowing the car to be destroyed there is no suggestion of bad faith against the prosecuting authorities. It is also necessary to bear in mind that the court must not only protect the fairness of its process but also ensure that those who are properly before the court and who can receive a fair trial should be tried according to law.

As I ventured to point out in R v Bow Street Magistrate, ex parte DPP (1992) 95 Cr AppR9at16, though the underlying principles are clear, the law is still in a stage of development. The circumstances of each case require separate consideration.

In the course of the argument in the present case we were referred to the decision of the Court of Appeal, Criminal Division, in R v Gajree (20 September 1994) (unreported). In that case the appellant, who had been convicted of rape, had not been arrested until about four years after the alleged offence had taken place. The Court of Appeal quashed the conviction as unsafe and unsatisfactory because the appellant had been deprived of evidence which might otherwise have been available to him. In particular the Court of Appeal was impressed by the fact that because of the delay the appellant was unable to have the carpet examined on which, it was alleged, there had been seminal stains, and also had not been able to produce plans or photographs of the layout of the shop where the incident was alleged to have taken place because the premises had been seriously damaged by fire. It is further to be noted that in Gajree there had been very substantial delay before the prosecution was instituted and that, as appears from the transcript, there was "absolutely no corroboration" of the complainant's evidence

It was submitted on behalf of Mr Beckford that his case was comparable with that of the appellant in Gajree. In support of this submission reliance was placed on the fact that the evidence of police officers established that there was some damage to the barrel into which the ignition key was inserted. The extent of this damage, however, was never fully examined before the car was destroyed. As a result of the negligent omission by the police to ensure the preservation of the car Mr Beckford had been deprived of the opportunity of having the car examined by Mr Harrison, and thus of any evidence of the results of that examination.

As we said earlier each case has to be considered on its own facts. In the present case there was no evidence that either Mr Beckford or anyone else had ever experienced any difficulty with steering the car. There were no marks on the road to indicate that the wheels had locked or even that the brakes had been applied.

Moreover, Mr Harrison's hypothesis was based on his belief that before the impact the car had been in the traffic lane leading onto the fly-over and had then veered to the left. The prosecution witnesses on the other hand were of the opinion that before the impact the car had been on the inside lane which led to the slip road. Moreover, it is of importance that none of the prosecution witnesses who were asked about the matter had had any experience of a steering lock becoming locked while a vehicle was in motion.

It is to be hoped that procedures have been put in place to ensure that cars are not scrapped before express permission has been given by the police and that permission will never be given where serious criminal charges are to be brought which may involve the possibility of some mechanical defect in a car. On the facts of the present case, however, we do not consider that the absence of the car affected the fairness of the trial. The judge dealt at length and with care with the evidence of Mr Harrison. The jury had the opportunity to evaluate that evidence including Mr Harrison's theory that the vehicle had come from the second lane. In the course of his summing up (21E) the judge reminded the jury of Dr Lambourne's answer to a question, which had come from the jury, as to whether the vehicle could have come from the right. Dr Lambourne's answer was:

"I think it is very unlikely that the vehicle came from the right because the damage would have been to the other side. Perhaps there is a very small chance, but it is most unlikely."

We have come to the conclusion that the judge was correct in ruling that the prosecution should proceed. We have also come to the conclusion that there are no sufficient grounds for setting the verdict aside as being unsafe or unsatisfactory.

For these reasons the appeal is dismissed.

MR ROSS TAYLOR: May it please your Lordships, I cannot, on listening to the judgment, see any grounds for applying to your Lordships for certifying a point. Would your Lordships forgive me, having only just listened to it, and grant me liberty to apply at a later stage should I seek to do so?

LORD JUSTICE NEILL: How much time do you want, because obviously time limits are important? You would wish to do that right at the beginning of next term, would you?

MR ROSS TAYLOR: Yes.

LORD JUSTICE NEILL: Do you want 21 days?

MR ROSS TAYLOR: I would be very grateful, yes.

LORD JUSTICE NEILL: So be it, yes.