England and Wales Court of Appeal (Criminal Division) Decisions

Royal Courts of Justice

The Strand

London WC2

Friday 4th October 1995

B E F O R E :

LORD JUSTICE STUART-SMITH

MR JUSTICE MANTELL

and

MR JUSTICE MOSES

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R E G I N A

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STEPHEN JOHN JAMES

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Computer Aided Transcript of the Stenograph Notes of

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MR H BAKER appeared on behalf of the Appellant

MR D HARRIS appeared on behalf of the Crown

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JUDGMENT

( As Approved by the Court )

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Crown Copyright

Friday 4th October 1996

JUDGMENT

LORD JUSTICE STUART-SMITH: I will ask Mr Justice Moses to give the judgment of the Court.

MR JUSTICE MOSES: On 22nd April 1996, at Newport Crown Court, the appellant pleaded guilty to driving without due care and attention. That plea was not acceptable to the Crown. There was, on the indictment, one count, and one count only, namely that of dangerous driving. He was then tried for the dangerous driving and acquitted by the jury. It is not necessary for me, for purposes of this judgment, to elaborate on the facts of the case, and perhaps desirable not to. The appellant was driving a Kawasaki 1,000 CC motorbike, and perhaps this Court can be forgiven for observing that if he goes on riding his motorcycle like that he will have to face a higher authority than this Court.

However, having been acquitted of dangerous driving, he was then sentenced on his plea of driving without due care and attention. It is conceded that the court had no jurisdiction to deal with him for driving without due care and attention. He had not been convicted of any offence on the indictment, and it is said, and we agree, that learned judge was, therefore, wrong to proceed to sentence at all. The plea to the indictment, the lesser plea having not been accepted, was one of not guilty. It is, therefore, clear that the qualified plea must be treated as withdrawn and as a nullity. If authority is needed for such a proposition, it can be found in the case of Hazeltine (1967) 51 Cr.App.R. 351. That was a case where a plea of unlawful wounding was tendered but the charge, and the sole charge on the indictment, was one of wounding with intent. The principle was clearly laid out by this Court and has been followed, for example, in cases such as Notman [1994] Crim.L.R. 518.

In those circumstances, the plea to careless driving should have been treated as withdrawn. There was, as we have said, no power in the court to proceed to sentence him once the jury had acquitted him of the sole count on the indictment, namely that of dangerous driving. In those circumstances we must allow the appeal.

LORD JUSTICE STUART-SMITH: You want your fine back?

MR BAKER: My Lord, I repeat my unattractive application, asking for the two installments of fines that were paid.

LORD JUSTICE STUART-SMITH: Whether it is unattractive it may be right.

MR JUSTICE MOSES: What happens about the licence and disqualification?

MR BAKER: The disqualification will have to be quashed.

MR JUSTICE MOSES: He will have to get a clean licence because otherwise it will stay on there.

MR BAKER: Yes.

LORD JUSTICE STUART-SMITH: You can have your fine back.

MR BAKER: Thank you very much.