England and Wales Court of Appeal (Criminal Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE BASILDON CROWN COURT
HIS HONOUR JUDGE CLEGG

		Royal Courts of Justice Strand, London, WC2A 2LL
		2nd December 2004

Lord Justice Auld:

1. On 4^th April 2003, before HHJ Clegg and a jury in the Crown Court at Basildon, Victor Coates and Martin Graves were convicted of offences charged separately against each of them on the same indictment, all arising out of a fatal road traffic accident on 14^th December 1999 involving an articulated heavy goods vehicle driven by Coates in the course of his employment by Graves.
2. Coates was convicted of causing death by dangerous driving (count 9) and was sentenced to 4 years’' imprisonment and disqualified from driving for 6 years. He had earlier pleaded guilty to three other offences in the indictment of making or causing to be made a false entry on a record sheet contrary to section 99(5) of the Transport Act 1968 (counts 5,6 and 8), namely falsifying his vehicle’'s tachograph record so as to conceal the true number of his working hours. He was sentenced to 6 months’' imprisonment on each of those three counts, the sentences to be served concurrently inter se and with the sentence of 4 years imprisonment.
3. Graves was convicted of manslaughter (count 10), for which he was sentenced to 4 years’' imprisonment, and of four offences of making or causing to be made a false entry on a tachograph record sheet (counts 1 – 4), in respect of which he was sentenced to 12 months imprisonment on each count, the sentences to be served concurrently inter se and with the sentence of 4 years’' imprisonment.
4. They each appeal against conviction with limited leave granted by the single judge, and Coates also appeals, if necessary and with leave against sentence limited to the period of disqualification.
5. The circumstances giving rise to the prosecution and the respective cases for the prosecution and defences may be summarised as follows. Graves owned and operated a haulage firm based at Felixstowe and employed Coates as one of his heavy goods vehicle drivers. Each of the firm’'s vehicles, including an articulated lorry driven by Coates, was fitted with a tachograph, which, as is well known, is a device for recording the number and pattern of a driver’'s working hours. Graves’' firm drew work for its drivers from freight forwarding firms quite independent of it that operated “"activity centres”", whose function was to allocate jobs and routes to drivers of haulage firms using their services.
6. About midnight on 14^th December 1999 Coates, having made a delivery at Watford, was driving his lorry north along the A12, en route to his home base at Felixstowe. When he was in the vicinity of the Marks Tey fly-over, where the A 12 was a dual three-lane unlit road, he was driving in the near-side lane at about 50 m.p.h. (The prosecution evidence at trial showed that he had then had a working day of some 20 hours.) Just over a kilometre north of the fly-over his lorry collided with a car that had broken down in front of him in the same lane. The driver of the car, Lee Fitt, who had just got out of it, was killed instantly. His girl friend, Miss Sarah Norman, who had been a passenger in the car and had remained in it, suffered only minor injuries.
7. The prosecution case against Coates was that he had fallen asleep at the wheel out of exhaustion after working a 20 hour day and had thus caused Lee Fitt’'s death by dangerous driving (count 9). The prosecution case against Graves, who also drove one of his firm’'s vehicles, was that he negligently caused or permitted his drivers, in particular, Coates, to falsify their tachograph records to enable them to work longer than the permitted driving hours (i.e. more than 18 in every 24 without a rest of 8 consecutive hours) and become so tired when driving that they were a danger to other road users. The case was that such conduct was so flagrant a breach of his duty of care to other road users that it amounted to gross or criminal negligence, which in this instance was a substantial cause of the death of Lee Fitt and amounted to his manslaughter.
8. Coates, in his defence, denied having fallen asleep at the wheel of his lorry or of having lost control of it in any other way so as to cause the death of Lee Fitt. And it was submitted on his behalf that, on the evidence, the jury could not be sure that he had done either. In a written statement provided to the police – he did not give evidence because he was medically unfit to do so – he stated that, very shortly before the accident, he had had a brief sleep in his cab on the slip road off the A 12 at Marks Tey and near to the Parish Hall, and had then rejoined the carriageway. He stated that he had been keeping a proper lookout when suddenly he had seen the stationary car, unlit, in his path; he had braked hard but had had no chance of stopping before colliding with it. Mr Peter Birts QC, who appeared for him at trial and on this appeal, argued at trial that the true cause Lee Fitt’'s death was his act of leaving the stationary car and moving into the path of Coates’' lorry when it was close upon him. One of the charges of falsifying his tachograph to which he had pleaded guilty (count 8) related to the day in question.
9. Before considering the appellants’' respective grounds of appeal, we should give some indication of the different nature of the issues and evidence in relation to each appellant at this joint trial and to its lengthy progress. As to Coates, the principal issue was whether, as the prosecution contended, he fell asleep at the wheel and collided with a plainly obvious vehicle, which had been flashing its hazard lights for some 500 metres before it lost power and came to a halt in the nearside of the carriageway in front of him, or whether as Coates contended, he had been faced with an unexpected emergency as the car, albeit showing side lights, suddenly lost power and stopped in his path, its hazard light having been put on by the deceased only seconds beforehand. That issue turned in part on what the tachograph in Coates’' lorry showed but also, and more importantly, on the evidence of lay and expert witnesses as to the accident itself.
10. The issues in Graves’' case were factually connected with those of Coates but were quite different. They were two-fold. First, whatever his culpability, if any, for his drivers, including Coates, driving when they were so tired as to be dangerous to other road users, he could not be guilty of manslaughter if the jury did not convict Coates of causing death by dangerous driving; so he supported Coates’' defence. Second, if the jury were to convict Coates of causing death by dangerous driving, he denied any culpability that would justify the charge of manslaughter (count 10). He claimed to have taken reasonable care to ensure that his drivers kept within their permitted working hours. In the light of the evidence produced by the prosecution on that issue, he acknowledged that all save one of them had been falsifying their tachograph records, but he maintained that he had been unaware of it at the time. He also denied having falsified his own tachograph records so as to give a bad example to his drivers, as alleged by the prosecution. He stated that he left the routing of his vehicles to the “"activity”" centres, and that on the odd occasion when a centre gave one of his drivers a job that could not be completed within the permitted hours he would question it with the centre. He denied responsibility for Coates having worked some 20 hours immediately before the fatal accident, and stated that he need not have returned from Watford to Felixstowe that night, he could and should have rested at Watford before starting on the return journey.
11. Before returning in more detail to the case against Coates, and to a lesser extent, the issues for determination in the case against Graves, we should give some account of the lengthy progress of the case as a whole.
12. Surprisingly, no-one appears to have considered that this potentially unwieldy case required a case management conference to determine precisely what was and was not in issue and what evidence was required or could be dispensed with. There were two defence case statements served on behalf of Graves which, read together, suggested that everything might be in issue, but neither is signed or dated. One way or another, it did not become known to the prosecution until the trial started that Graves required proof of everything in the prosecution case against him. Apparently, in ignorance of that information, the prosecution had previously agreed with the defence estimate that the trial would last six to eight weeks.
13. The prosecution had apparently prepared schedules of the evidence, in particular of the evidence against Graves in the expectation that they would be agreed, only to learn at the start of trial that they were not agreed. This was at least in part due to inadequate and late disclosure by the prosecution of un-used material, resulting in the preparation of faulty prosecution schedules, which, as a result the defence could not agree before trial. The problem continued after the commencement of trial with the service by the prosecution of much additional evidence, some of it formerly delayed disclosed un-used material, and with the production of further documents by Graves in the course of his cross-examination. That a prosecution of such importance and potential weight of evidence could reach trial without adequate forethought and identification by the parties and by the Court as to the precise matters and evidence that were to be in issue at trial is a matter of dismay to this Court. We had thought that such primitive pre-trial preparation in cases of such consequence was a matter of history. In the result, the lack of proper preparation on both sides, and of proper oversight of it by the Court, has been to engender much trouble and, we venture to suggest, much unnecessary delay and expense to both sides.
14. There had, however, been a preliminary hearing on 28^th June, over two months before the start of the trial, at which Mr Edward Jenkins QC, who then led Mr Miles Bennett on behalf of Graves, unsuccessfully submitted, with the support of Mr Birts on behalf of Coates, that the tachograph counts against Graves were improperly joined with the count of manslaughter. No such submission or any application for separate trials was made by Mr Birts on behalf of Coates, since he accepted – and still does - that the cases against the two men were sufficiently connected to render any such submission or application hopeless.
15. The trial formally started on 2^nd September 2002 when the jury was empanelled. But for practical purposes, it did not start until 9^th September when Sir Derek Spencer QC for the prosecution began his opening speech.
16. Sir Derek’'s opening took three days, interrupted on 10^th September with a view of the accident scene. Between 12^th and 18^th September the prosecution called its evidence against Coates as to the accident, including eye-witness, police and expert evidence. Apart from issues relating Coates’' health, the first as to whether the diabetes from which he suffered might have been causative of the accident and the second as to his fitness to give evidence, it concluded the entire prosecution against him on 3^rd October. From that date the jury were entirely engaged in hearing the evidence against and for Graves on the charges of manslaughter and falsification of tachograph records, save for the brief recall of Professor Horne, a “"sleep”" expert, and some evidence read on Coates’' behalf on 20^th December 2002 from residents of Marks Tey as to the the practice of lorry drivers stopping in the area to rest at night,
17. During that period, in mid December 2002 Mr Jenkins had submitted unsuccessfully to the Judge that Graves had no case to answer on the charge of manslaughter, and Mr Birts, supported by Mr Jenkins had, equally unsuccessfully applied to the Judge to stay the prosecution of Coates on the charge of causing death by dangerous driving, and hence of Graves also, on the charge of manslaughter, as an abuse of process and as a violation, even without proof of prejudice, of Coates’' Article 6 right to a fair trial within a reasonable time.
18. On the latter submission, Mr Birts submitted that the delay that had elapsed between the hearing of the evidence about the accident and the end of January – the time then thought to be the earliest when the jury would retire to consider Coates’' case - would deprive him of a fair trial because by then they would have forgotten or have a poor recollection of it, in particular of the demeanour of the witnesses. He stressed that demeanour was important since there were critical issues of credibility of crucial prosecution witnesses. As part of his application, he criticised the prosecution for allowing the case against Graves to become disproportionate in its length to that against Coates.
19. The Judge rejected the application, holding that the delay was not due to any fault of the prosecution, but to the complexity of the case against Graves, a case that could not have been tried separately from that of Coates, because proof of Graves’' guilt of manslaughter depended on proof of Coates’' guilt of causing death by dangerous driving as a result of him having fallen asleep at the wheel. He pointed out that, on such issues in respect of which prosecution eye-witnesses had been challenged, it was not their credibility, but their accuracy that was in issue, a matter on which recollection of their demeanour in the witness box would not be of such importance. He held that there were sufficient safeguards within the trial process to remove or ameliorate any such prejudice that would otherwise lead to the delay giving rise to in an unfair trial. And, he added that there could be some advantage in the delay to Coates, in that some of the raw emotion in the minds of the jury that would inevitably have been engendered by the harrowing details of the accident and the obvious distress of some of the witnesses might by then have dissipated. As to Article 6 entitlement to a fair trial within a reasonable time, he referred to the high threshold, identified by the House of Lords in Dyer v. Watson [2002] 3 WLR 1488E, PC, necessary to require the prosecution to indicate a good reason or reasons for the delay. He held that that threshold had not been reached here, and added that, even if it had, the reasons for the delay were wholly unavoidable and justifiable.
20. Coates, who had been very unwell with diabetes and heart trouble before the hearing, and whose condition deteriorated in the course of the trial, did not give evidence because the Judge ruled, after hearing medical evidence, that he was unfit to do so.
21. The trial then proceeded in stops and starts for another three months before the Judge finally summed the case up against both men and sent the jury out to consider their verdicts. The first major stop was a break of nearly a month over the Christmas holiday, considerably extended by three bereavements, one suffered by a juror and by two of the leading counsel, until the latter half of January when Graves began to give evidence. His evidence took up most of February, during which he was examined and cross-examined in great detail about the way in which he ran his business and about the documentation relating to his and nine of his drivers’' driving work over a six months’' period from June to December 1999. On completion of his evidence at the end of February 2003 there was then an adjournment of about a week whilst the Judge and counsel considered respectively his proposed directions to the jury and their closing speeches. Closing speeches began on 12^th, and concluded on 18^th, March. The Judge took over a week to sum-up the case, starting on 21^st, and concluding on 31^st March, when he sent the jury out to consider their verdicts. Four days later, on 4^th April, the jury returned their verdicts of guilty.
22. Thus, the whole trial took over seven months from start to finish, and the evidence during the last three months of it had been devoted entirely to the case against and for Graves as to his manner and the adequacy of his supervision and control of his drivers’' working hours over a six month period. None of that, of course, bore on the important charge that Coates contested, the charge of causing death by dangerous driving.
23. We turn now, in a little more detail, to the prosecution case and evidence against each of the appellants,
24. First, as to Coates, the evidence consisted of four main elements: 1) his tachograph records, or the lack of them, and other evidence of his lorry’'s movements on the day leading up to the fatal accident; 2) eye-witnesses to the accident; 3) expert evidence as to the accident; and 4) the written statement provided by him some time after the event.
25. As to the tachograph and other evidence of his movements on the day leading up to the accident, it showed that he probably left in his lorry for Felixstowe Docks at about 3 a.m. to pick up a loaded container for Dunstable, arriving at the Docks no later than 4 a.m. to pick up the container. He delivered that load to Dunstable where the container was unpacked. Then, after a short break, he drove to Dagenham with the now empty container to pick up a load for return to Felixstowe Docks, where he arrived in mid afternoon. He then picked up his third job for the day, a loaded container for delivery to Watford.
26. Coates left Felixstowe with that load at about 5 p.m. The journey was tracked on his tachograph until about 6p.m. when its record was consistent with him having pulled off the A12 southbound into a lay-by at Kelvedon. There, as Coates acknowledged by his plea of guilty to count 8, he removed the tachograph chart and drove on with the load to Watford. Because of the removal of the chart, it was not possible to identify the time of his arrival there or of his departure for the return journey to Felixstowe. Given the time of the accident on the return journey up the A12, there was a six hours period during which he must have been driving for about three hours. On that evidence the prosecution alleged that from 3 a.m. until the crash just after midnight, he had worked for more than the permitted hours, had not had sufficient sleep and was exhausted.
27. As to the accident, the deceased’'s girl friend, Miss Norman gave the following account in evidence. The deceased, Lee Fitt had been driving her north along the A12 in his car, when the engine began to cause trouble. They had pulled into a lay-by, which other evidence indicated was 500 metres short of the point where the accident was to occur, and he had activated the car’'s hazard lights. After a short while they set off again, still with the hazard lights, as well as their ordinary front and rear lights, operating. The engine seemed to be all right for a short time, but then juddered and stopped, and they coasted to a halt in the nearside lane, with the hazard and ordinary lights still operating.
28. The next and last thing that Miss Norman remembered was the deceased putting the handbrake on, releasing the bonnet catch and starting to open the driver’'s door. She thought that they were half on and off the carriageway. But skid marks from the rear tyre observed after the accident showed that they had come to a stop completely on the carriageway. Fortunately, she sustained only minor injuries. One of the two people who had comforted her at the scene, a Mr Eaton, heard her say that the deceased had been angry with his faltering car and had hit the steering wheel, that he had put the hazard lights on and pulled over, that he got out to fix the car and that then there was an almighty bang. A police officer who took her to hospital noted her as saying that they had carried on from the lay-by with the hazard lights on.
29. There was also evidence from a lorry driver, a Mr Gorey, whose vehicle had a speed limiter set at 56 m.p.h., who was travelling on the A12 in the same direction as Coates. He gave the following account in evidence. As he approached the Marks Tey flyover he caught up with what he maintained, despite challenge, was Coates’' lorry. He pulled out to overtake it, but it started to speed up and pull away from him. He caught it up again by the lay-by and pulled out again into the middle lane to overtake it. His cab was about level with the rear of Coates’' lorry when it hit a car in front of it. He saw no brake lights on Coates’' vehicle just before impact and both lorries pulled up in a safe position beyond the accident scene. Seemingly, he had not noticed any hazard lights in front of him as he approached the stalled car, but it may be that he was unsighted by Coates’' lorry to his left and in front of him. Inconsistently with his evidence, he had told the police immediately after the accident, that Coates had slammed his brakes on hard causing his vehicle to jack-knife. However, the absence of skid marks in the nearside lane tended to support his evidence of no sudden braking by Coates. Gorey also said in his witness statement that Coates had told him that he had just started from the Witham area and had made some comments about whether or not there were lights on the car – Mr Gorey could not remember more exactly what Coates had said because he had been more concerned with searching the car and the surrounding area.
30. Another witness, a Mr Wignall, who came on the scene shortly afterwards heard Coates say that the car had not been showing hazard lights. Two others said that Coates had said it was not showing any lights, and one of them, a Mr Bonning, said that he had added that he had just started driving after a stop. When the police arrived, it was immediately apparent that at the time of the accident he had been driving without a tachograph chart. Coates told one of them that he had set out at 4 a.m. the previous day and had stopped at 6 p.m. in the Marks Tey slip road, and that when he had left it he had suddenly seen the car in front of h him with no lights and someone pushing it. His account then and later, coupled with his denial when it was put to him that he had fallen asleep at the wheel, was inconsistent with the prosecution case.
31. The prosecution also called a number of expert witnesses as to causation of the accident. They included PC Goold, an accident reconstruction expert who calculated that from the Marks Tey slip road to the scene of the accident was just over a kilometre and that the driver of a vehicle travelling that stretch of road at about 50 m.p.h. would have had some 53 seconds to notice the broken down car in front of him. He said that, on his examination of the wrecked car, the hazard warning lights had been switched on and so had the main lights, in dipped position. Another expert, a Mr Selzer, who examined the bulbs from the nearside rear light assembly, said that the rear and hazard lights had been illuminated at the time of impact, but not the brake lights. PC Goold noted that there were no signs on the road of Mr Coates having braked heavily at the last moment to take avoiding action.
32. Professor Horne, the sleep expert, gave evidence that was posited on PC Goold’'s calculation that Mr Coates had been driving at about 50 m.p.h. over a distance of about 1,200 metres during which the deceased’'s car was in his view, that he ran straight into the back of it, despite the fact that its rear lights were lit and that over some of that distance – if not all of it – also its hazard warning lights. Given that speed, he must, as a matter of calculation, have been able to see the deceased’'s car for about 53 seconds before he hit it. On that basis, Professor Horne spoke of three possibilities for Coates’' failure to respond to the presence of the deceased’'s vehicle in front of him: distraction for some reason or another for nearly a minute, a black-out; or that he had fallen asleep at the wheel.
33. Professor Horne’'s view, in the absence of any other explanation, was that Coates had fallen asleep because he was tired and already sleepy as a result of his long working day. He gave the following reasons: 1) sleep does not occur spontaneously from an alert state; 2) where a person falls asleep for less than a minute or two, research had shown that he does not remember it or of having felt sleepy immediately before doing so, which, if correct, could explain Coates’' denial that he had fallen asleep at the wheel; 3) regardless of working and resting patterns, people are more prone to fall asleep late at night or during the small hours of the morning; and 4) where a person falls asleep at the wheel, his vehicle may not slow down, much depends on whether the return spring on the accelerator pedal is sufficiently strong to overcome the relaxed muscles of the leg. He added that inattention to an obvious hazard ahead for 5 to 7 seconds indicated some level of unconsciousness, but if it was for as long as 14 seconds it certainly denoted sleep.
34. As to Gorey’'s evidence that Coates’' lorry had accelerated away from him as he was about to overtake it by the Marks Tey fly-over, Professor Horne said that sleepy drivers sometimes accelerated to keep themselves awake, but that Coates could not have been asleep for 53 seconds and have kept the lorry on the road. The best estimate he could give of the length of time for which, on his view of sleep as the culprit, was that Coates must have been asleep for more than 7 seconds before impact.
35. Coates was naturally very upset by the accident. He was taken to a police station, and in the afternoon of the following day the police interviewed him under caution in the presence of his solicitor. He admitted that he had been the driver of the lorry involved in the accident, but declined to answer any further material questions, saying that he was too traumatised and that he would make a statement in court. The police attempted to interview him under caution again on 14^th March 2000, but again, he declined to answer their questions. However, he did on that occasion provide them with a 7 page written statement setting out his side of the matter as we have summarised it in paragraph 8 of this judgment, a statement that was copied for the jury.
36. In that statement, Coates gave the following account. On the day in question, he had delivered two loads from Felixstowe, one to Dunstable and then, after a return to Felixstowe to pick up the second load, one to Watford. On his return trip from Watford to Felixstowe he had stopped for a rest period at about 6 p.m. in a lay-by on the slip road off the A12 at Marks Tey. He slept until about midnight and then, with his dipped headlights on, drove back on to the A12 to continue his journey to Felixstowe. Once on the A12 he joined the northbound traffic, but remained on the nearside lane. He was conscious of a vehicle moving partially alongside him in the middle lane as though to overtake. As he passed a lay-by on his left he “"caught a glimpse of something in the nearside lane, although it was not within … [his] headlights at the time”" He checked his rear view mirrors and started to brake, but then eased off the brakes because it was freezing. “"At that moment a … [car] came into … [his] dipped headlights. It was stationary in the nearside lane, it was not showing any lights … [H]e braked hard again … very hard to try to avoid colliding with the rear of the vehicle … [but] was unable to stop and … hit the rear of the vehicle.”"
37. The issue in the prosecution case against Graves for manslaughter was quite different from that against Coates for causing death by dangerous driving. As we have said, it was whether he had operated his business in such a manner as to cause or encourage his drivers, including Coates, consistently to drive for longer than the permitted daily hours so as to cause them to drive when they were so tired that they endangered other road users. The way in which the prosecution sought to establish this case was by a comprehensive analysis and deployment before the jury of some 300 tachograph journey sheets, each of which covered up to three journeys a day, over a period of six months from 1^st June 2002 to the day of the fatal accident, 13^th December 2002. Because Graves maintained that the tachograph records were a true record of what they showed, the prosecution also put before the jury an “"audit trail”" of other documents and records to establish their falsity. These included his diary, which the prosecution described as a portable traffic sheet which gave him an at-a-glance daily picture of his and his drivers’' jobs, his and their weekly running sheets, vehicle movement logs and gate passes from delivery sites and port print-outs from Felixstowe and paper work from the various “"activity centres”" as to the direction of deliveries and collection of container loads. All of these were said to confirm Graves’' own records in his diary of excessive working hours regularly undertaken by him and his drivers.
38. Graves sought to challenge this evidence in great detail, job by job, effectively requiring the prosecution to reconstruct each driver’'s journey on which it relied to present a picture of routine disregard by him and his drivers of the permitted driving hours. As to the allegations that he had falsified his own tachograph records, the case put on his behalf was that they were accurate and that the prosecution’'s audit trail of documents suggesting otherwise was unreliable, thus necessitating a detailed analysis of the audit trail for each journey. As to the allegation against him of manslaughter, Graves’'s case was, as we have said, that he had not known that any of his drivers were falsifiying their tachograph records, and that even where there was proof of such falsification, they had had opportunities for sleep and, thus, were not so tired as to be a danger to other road users.
39. The prosecution’'s case was that all this evidence demonstrated widespread working “"off tachograph chart”" by Graves and all his drivers – some more than others - of which he knew and which he instructed and/or encouraged. There was also evidence of his direct involvement in the fateful job that took Coates from Felixstowe to Dunstable, Dagenham and Watford, and to undertake the return to Felixstowe all on the same day on 13^th/14, albeit that Graves denied having required Coates to make the return journey that night.
40. As we have said, Graves gave evidence for over a month in January and February 2003. He accepted by this stage that, on the face of the documents, there appeared to have been much working in excess of permitted working hours by his drivers, nine of whom, including Coates, had pleaded guilty to various charges of falsifying their tachograph charts. But he denied that the documents, when properly interpreted and after making allowance for the fallibility of those making the entries, applied to his own driving or that they always accurately recorded the working activity of his drivers. He also denied having known at the time of his drivers’', in particular Coates’', excessive driving hours and falsification of their charts. He maintained that he had been so busy driving himself that he had had to entrust to the “"activity centres”" the day to day allocation of work to his drivers, and that he had trusted the centres not to set them tasks that would involve more than the permitted daily working hours.
41. The Judge began his summing-up on 21^st March, which took six days, and the jury retired on 31^st March, returning their verdicts four days later on 4^th April. As we have already noted, a case that had been estimated to take six to eight weeks, had extended to over seven months.
42. The Judge, in his summing-up to the jury, dealt with the cases against and for each accused separately. He dealt first with Coates, which took him just over a day. The remainder of the five days was taken up with a close analysis of the evidence, much of it documentary, peculiar to Graves’' case. Looked at as a whole, and in relation to the different issues arising in the cases against and for each accused, the Judge’'s directions and summing-up were well constructed, comprehensive and accurate in their detail. Mr Birts volunteered in his submissions to the Court that, but for the length of the trial and the bulk of it given over to the case of Graves, namely the last six of the seven months of it, he would not have felt able to found the appeal on behalf of Coates on any criticism of the Judge’'s directions and summing-up in relation to his case.

Coates’' Appeal

43. Coates’' main complaint about his conviction of causing death by dangerous driving relates to the length of the trial, which he maintains was unfair to him. The first two grounds of appeal expressing that complaint and the other grounds on which the single judge also gave leave, need to be considered together. As Mr Birts has conceded, if Coates does not succeed on the delay point, the others do not have a life of their own.

1 and 2 – Excessive length of trial

44. The first two grounds arise essentially out of the same complaint, namely that Coates’' trial on the single charge of causing death by dangerous driving was an abuse of process and unfairly prejudicial to him because the Judge allowed the wider case against Graves to last so long that the evidence and the issues in Coates’' case became obscured and were effectively beyond the recall of the jury by the time they came to consider their verdicts. Mr Birts submitted that the Judge should have stopped the case against Coates on his application at the end of the prosecution case for a stay for abuse of process and/or for violation of his Article 6 right to a fair trial within a reasonable time, an application, as we have noted, made long after the prosecution had concluded putting its accident and expert evidence to the jury.
45. Mr Birts developed that complaint by reminding the Court that the main issue in the case against Coates was whether, as the prosecution contended, he had fallen asleep at the wheel and had collided with a plainly obvious vehicle that had been flashing its hazard lights for some 500 metres before it lost power and came to a halt in the nearside of the carriageway in front of him, or whether as Coates maintained, he had been faced with an unexpected emergency as the car, albeit showing side lights, had suddenly lost power and stopped in his path, its hazard lights having been put on by the deceased only seconds beforehand. That, he said, was the sharp issue, on which there had been important cross-examination of lay and expert witnesses, whose reliability, indicated by their demeanour as well as the substance of their evidence, the jury had had to put aside for over five months after the close of the prosecution case until the start of closing speeches and the summing-up. He maintained that such lapse of time in a prosecution for causing death by dangerous driving resulted from the prosecution’'s over elaborate presentation of its case and the Judge’'s mismanagement or failure of control of the trial so as to result in an abuse of the process of the court and a violation of Coates’' Article 6 right to a fair trial.
46. Mr Birts’' complaint, supported by Mr Bennett, was thus double-barrelled, aimed at the prosecution as well as the Judge. As to the prosecution, he referred to its duty in a potentially long case to ensure that its case remains manageable, including, where appropriate, periodical review of the evidence to decide how much of it, even though relevant, might be withheld in the interests of clarity, as recognised by this Court in R v Kellard & Ors [1995] 2 Cr App R 134; R v Chaaban, The Times 9 May 2003; and R v Jisl & Tekin The Times, 19 Aprtil 2004, Transcript, paras. 113-120. He said that such a precept has particular importance in a joint trial like this, so as to ensure that the case of one defendant is not obscured by over-elaboration of the case relating to the other. He contended that the prosecution, having successfully resisted Graves’' application for severance of the counts in the indictment charged against him, should have ensured that the case against him did not develop disproportionately so as unfairly to prejudice Coates. He suggested that the prosecution did not need to rely on such a voluminous body of evidence to establish wide scale interference by Graves’' drivers with their tachograph records. The same result could have been achieved by more selectivity in the form of sample periods or of fewer drivers, thereby significantly reducing the number journeys that had to be investigated and the evidence put before the jury.
47. Mr Birts also suggested that there was no reason to tie the case against Coates to that against Graves since they were entirely separate, save to the extent that Graves’' conviction for manslaughter might depend on Coates’' conviction for causing death by dangerous driving. Even with that contingent dependency, he pointed out that at no point in the case and evidence against Graves was the accident evidence on which the issue of Coates’' guilt turned, directly considered. The jury’'s task, for all those months between the end of October 2002 and late March 2003, apart from the brief recall of Professor Horne, was with the voluminous and highly detailed tachograph evidence against Graves. In making those points, Mr Birts acknowledged that he had not applied to the Judge to order separate trials; he explained that he had not done so because their respective subject matters were, in his view, sufficiently connected to make such an application hopeless. However, he added that the agreed time estimate for the joint trial had been 6-8 weeks, which, at that stage, he had had no reason to doubt.
48. As to the Judge, Mr Birts complained that he had failed to manage the trial sufficiently rigorously so as to reduce that disproportionate delay. He had allowed some six months to elapse between the ending of the evidence against Coates and the retirement of the jury. Mr Birts acknowledged that the there were some reasons for the delay that were beyond the control of the Judge, notably Graves’' determination to challenge and test the accuracy or applicability of each of the hundreds of documented deliveries on which the prosecution had chosen to rely, the long break over Christmas and the bereavements. However, he submitted that he could have done more than he did to control or limit the case against Graves and that a reasonable observer could only conclude that Coates could not have had, or be seen to have had, a fair trial and that his defence must have been prejudiced by the effect of the passage of time on the jury’'s recollection of the evidence, of the issues raised in cross-examination and of the demeanour of the witnesses.
49. Alternatively, and in the absence of such prejudice, he relied upon Coates’' Article 6.1 right to a fair trial “"within a reasonable time”", violation of which does not depend upon the proof of prejudice, referring the Court to Porter v Magill [2002] 2 WLR 37, HL, applying Darmarlingum v The State [2001] 1 WLR 2303; Dyer v Watson [2002] 3 WLR 1488, and A-G’'s Reference No. 2 [2004] 2 WLR 2001, at paras. 22 and 24. He maintained that the delay in the course of the trial reached the high threshold of which Lord Hope spoke in Dyer, at paragraph 85 of his speech, requiring explanation by the prosecution, and that explanation here was lacking for the reasons he had advanced.
50. Sir Derek Spencer QC’'s primary submission on the issue of delay was that Coates has failed to establish that the lapse of time between the evidence relating to his case, whatever the causes of it, had prejudiced him to the extent that his conviction was unsafe or his trial otherwise unfair. In addition, he submitted that there was no substance in any of the grounds of appeal advanced on behalf of Coates, whether considered individually or cumulatively with that of delay.
51. As to delay, Sir Derek put forward a number of reasons for what he suggested was unavoidable delay: 1) the nature and conduct of Graves’' defence, which was to challenge or seek to explain or qualify the detailed documentary evidence in relation to every one of his and his drivers’' jobs upon which the prosecution relied in support of its case against him; 2) the issue of Coates’' diabetes, raised on his behalf in the fifth week of the trial; 3) the finding of a large number of drivers’' traffic sheets in early November 2002 which, until then, all parties thought had been destroyed; 4) the issue whether Coates was fit to give evidence; 5) the Christmas break; 6) the bereavements suffered by a juror and two of the leading counsel; 7) Graves’' pattern of producing new documents relevant to his defence during his cross-examination; 8) the Judge’'s wish to take a careful note; and 9) interruptions or delays caused by other court commitments of the Judge or late arrival by the appellants due to transport problems.
52. Sir Derek added that the problem of delay for Coates could not, with justice, have been solved by separate trials because joint trial was necessary because, as Mr Birts had acknowledged, a conviction of Coates of causing death by dangerous driving was a pre-condition of conviction of Graves of manslaughter, and any application for separate trials would not have succeeded. Nor, given the necessity for a joint trial, would it, he submitted, have been a logical or helpful way of presenting the prosecution case against the two men to present the evidence about the accident after, instead of before, all the evidence all the evidence relating to the case against Graves.
53. As to the third possibility canvassed by Mr Birts in his submissions, that the prosecution could have been more selective in the evidence upon which it chose to rely in support of its case against Graves, Sir Derek said that greater selectivity would have simply played into the hands of Graves, given the sort of defence he was conducting of putting the prosecution to proof of every detail of its case.
54. Sir Derek added that, in any event, Coates suffered no serious prejudice to his defence because of the length of time taken up with Graves’' case. The issue in Coates’' case was simple and quite different from that in the case of Graves, namely whether he ran into the back of a stationary vehicle showing hazard lights on a long, straight stretch of road when he knew that he was dangerously tired because he had been driving excessive hours. The evidence about that had been self-contained and much of it highly memorable. Moreover, the critical evidence as to the cause of the accident depended principally, not upon eye-witnesses, but upon the evidence of the two experts, Goold, who reconstructed the accident, and Selzer, who said that his examination of the bulbs of the car showed that the hazard and rear lights had been on at the time of the accident. Such evidence, Sir Derek said, would not have suffered from delay between the giving of it and an accurate reminder of it by the judge in his summing-up. And as to the demeanour of the eye-witnesses, notably Miss Norman and Gorey, the defence challenge was not as to their honesty but as to the reliability of their memory, not a matter on which the jury’'s recollection or lack of it as to demeanour would throw much light. And, as to the Article 6.1 entitlement to a fair trial within a reasonable time regardless of any issue of prejudice, he maintained that this case did not approach the high threshold established in Dyer, and that, in any event, for the reasons he has given, is adequately explained.
55. The Judge considered all these matters in his ruling on 16^th December 2002 rejecting Mr Birts’' application on behalf of Groves, supported by Mr Jenkins for Graves, for a stay. He observed, with regard to the volume of evidence being adduced against Graves, that it was the very routine nature of his and his drivers’' infringements of the working time provision that gave strength to the prosecution case that he was well aware of what his drivers were up to and did nothing to prevent it. And, as he also observed in the same ruling, the prosecution had no control over the way in which Graves’' defence was conducted, namely to challenge, as he was entitled, not only the accuracy of the records of hundreds of journeys, but also to introduce in cross-examination, for the purpose of comparison, many other journeys not forming part of the prosecution case. Nor, as the Judge added, could the problem have been solved by trying Coates separately from Graves, because it was a pre-requisite of Graves’' guilt of manslaughter that Coates had fallen asleep at the wheel.
56. As to Mr Birts’' concern for the jury having to grapple with issues of credibility and the difficulty of recalling the demeanour of prosecution eye- witnesses of the accident long after they had given their evidence, the Judge pointed out, as has Sir Derek, that only two of the eye witnesses, Miss Norman and Gorey, had their evidence challenged as inaccurate. And it had not been suggested to either of them that they were lying, simply that they may have been honestly mistaken. So their demeanour in giving evidence was of little consequence. As to these matters on which the accuracy of their evidence was challenged, we can do no better than quote the Judge’'s words in his ruling:

“"1. ….The evidence relied upon as tending to undermine the accuracy of Miss Norman’'s assertion as to when the deceased put his hazard lights on comes from Mr Eaton to whom she made a number of remarks just after the accident which were inconsistent with her testimony. Mercifully those remarks were reduced to writing shortly after the event and have now been adduced in evidence. The jury will be reminded of this important evidence and its potential effect in the summing-up and no doubt in counsel’'s speeches as well. As for Mr Gorey, the principal plank upon which the accuracy or otherwise of his evidence depends is his assertion that at one point Mr Coates’' lorry was able to extend the gap between itself and Mr Gorey’'s lorry to about half a mile. From the expert evidence of Mr Goole, this plainly cannot be correct. Again the jury will be reminded of this. Mr Gorey’'s demeanour – which was one of distress – can have no bearing on such a finding.”"

“"2. All the evidence concerning the fatal accident was given in a logical sequence and within one discrete period of time. It was not dotted about the place, and therefore is easier to remember and comprehend. Furthermore because of its dramatic nature, it was memorable. …

3. The expert evidence was indeed complex and may be difficult to remember in detail. However, there was no real challenge to any of it. It was a matter of seeing if the experts would concede additional alternative explanations from unassailable scientific facts. This is not the sort of evidence that will suffer by way of effluxion of time. Indeed such evidence often acquires additional clarity when it is summarised by counsel in their final address and by the judge in his summing-up. Only then can it be seen in the context of all the evidence.

4. Finally the jury have a video of the locus in quo and the driver’'s view on the approach to it. Additionally they have had a view themselves.”"

57. Finally, the Judge turned to the Article 6.1 right to a fair trial within a reasonable time. He held that the delay “"on its face and without more”" did not give grounds for real concern that the right had been violated, and that, even if it did, the prosecution had by their explanation, satisfied him that “"the reasons for the delay were wholly unavoidable and justifiable”".
58. In our view, the ruling of the Judge and the submissions of Sir Derek on this issue should prevail. There was undoubtedly an imbalance between the complexity and length of the issues in the respective cases of the appellants. Separate trial was impossible, because the principal charge against each of them, causing death by dangerous driving in the case of Coates, and manslaughter in respect of the same matter in the case of Graves, were inextricably tied together. Unless Coates was convicted of the former offence Graves could not be guilty of the latter. And an important part of the case against Graves for manslaughter was the evidence, whether or not charged by discrete offences, of causing or encouraging widespread false recording by his drivers of their working hours. As Mr Birts acknowledged, the two cases had to be tried together. And, as Mr Birts also acknowledged, neither the prosecution nor the Judge was master of the manner in which Graves conducted his defence, one, to which he was entitled, of putting the prosecution to proof of everything in sight. Nor was either master of the unfortunate lengthy delay over and beyond the Christmas period during which the holiday break and bereavements contributed to a full month’'s delay. Other causes of delay to the jury’'s work, for various submissions of law and other commitments of the Judge from time to time are often the stuff of long cases.
59. Logically, the first question is the last one addressed by counsel and the Judge, namely whether the delay in the trial in itself, regardless of the explanation for it, was of such a length that in the circumstances, it reached the high threshold necessary to require an explanation. In posing the question in that way, there is obviously some scope for overlap in considering the first Dyer question, whether “"the delay is one which “"on its face and without more”" give grounds for real concern, and the second Dyer question or step, consideration of the “"detailed facts and circumstances”" of the case. The very notion of delay is – must be – relative to the nature of the case, including the volume and complexity of its evidence. The starting point at which to look at the high threshold will depend on whether it is, say, a case of careless driving or, for example, a long and complex fraudulent trading case involving more than one defendant. Given the nature of this prosecution, with the imbalance as between the cases of each appellant as to volume and complexity of the evidence and the need for them to be tried together, we do not see how it could be said with confidence that looking at this case “"and without more”", that the delay to the conclusion of Coates’' case gives grounds for real concern.
60. We should add that the circumstance of which Coates complains - lack of evidential or other mention of his case for long periods in the course of the trial – is not unusual in long, complex cases against more than one defendant, where each faces different charges or a single charge in which they are alleged to have had quite distinct roles. Counsel and the Judge are there to put the whole case to the jury at the end of the trial and to remind them of the evidence and its focus on each of the defendants. That is their function. Juries are expected to – and do – cope with it.
61. Even if we were wrong in our view that the delay did not attain the high Dyer threshold, we would have to move on to the second and/or third Dyer questions, namely as to the detailed facts and circumstances and whether there is any explanation and justification for the apparently excessive lapse of time. For the reasons given by the Judge and by Sir Derek that we have summarised, we are of the view that the circumstances and explanation given do justify the delay. In summary, as we have indicated, the inherent difficulties in the necessary joint trial could not have been mitigated to Coates’' advantage without disregard of the public interest in prosecuting these offences and/or of Graves right to a fair trial of the issues that he wished to raise. If systematic disregard by Graves of the permitted working time provisions and encouragement of his drivers to behave likewise were to provide a basis for the manslaughter charge, it was necessary for the prosecution to establish a broad period of conduct by which to identify and assess the culpability of his behaviour for Coates’' dangerous driving causing Lee Fitt’'s death. This was especially so, given Graves’'s apparent determination to challenge each and every instance of unlawful driving upon which the prosecution relied.
62. It would not have helped, but harmed, the jury’'s understanding of the case against and for both men on the principal charge that each faced, if the evidence against Coates on that issue had been left to the end of several months of detailed documentary examination of the driving patterns of Graves and his drivers. And it would not have been fair to the prosecution, given the manner of Graves’' defence, for the prosecution, at the behest of the Judge or otherwise, to have curtailed or been more selective about its evidence against him, or to Graves, given what was at stake for him, for the Judge to have attempted to curtail his counsel’' probing of the prosecution case. All of those are, in our view, clearly explicable and justifiable reasons for the delay to the outcome of the trial for Coates, with the result that the reasonable time requirement in Article 6.1 was not violated.
63. That leaves the position at common law and the question whether the delay significantly prejudiced Coates’' trial so as to render his trial unfair and conviction unsafe on that account. For the reasons given by the Judge in the passage that we have set out from his judgment and by Sir Derek in his submissions on this issue, we are satisfied that on the discrete and relatively simple issue for the jury in his case, he suffered no such prejudice. The evidence about the fatal incident was put before the jury in one self-contained block, it turned largely on expert rather than eye-witness evidence, and to the extent that it turned the evidence of eye-witnesses, such challenge as there was went to the reliability of their memories, not their veracity. Recalling their demeanour in the witness box when under questioning was not, therefore, a task for this jury. Their task was to assess the evidence overall, in particular the expert evidence and the extent to which it served as a cross-check for that of the eye-witnesses. As we have indicated, they had all the help that they needed for the task in the Judge’'s well constructed summing-up, with its meticulously careful and clearly expressed reminder to them of all the relevant evidence against and for the defence.
64. Accordingly, we reject these two - the most critical - grounds of appeal of both appellants.
65. Although, as Mr Birts acknowledged, the remaining grounds of appeal were in effect little more than make-weights for the two that we have rejected, we shall deal with each of them shortly.

3 – Bias in the summing-up

66. Mr Birts submitted, by reference to the judgment of this Court in R v Ojinnak & Ors (unreported, 10^th November 2003) that the Judge’'s summing-up of the against and for Coates was unfair in that it unduly sought to bolster the prosecution evidence and was inadequate in its treatment of evidence and points that favoured the defence. He said that the inadequacy of the Judge’'s treatment of the defence case was particularly unfortunate given that Coates had not given evidence.
67. As to bolstering of the evidence of prosecution witnesses, Mr Birts referred in particular to the Judge’'s practice of identifying for the jury the respects in which the evidence of certain prosecution witnesses, Miss Norman and Gorey in particular, was supported by other prosecution evidence, some uncontroversial, but some controversial. He suggested that the Judge, in so doing, impliedly commended those witnesses to the jury as consistent and reliable. He also took issue with the way in which the Judge treated the evidence of Professor Horne, the sleep expert, when put alongside the defence case that Coates had taken rest and was not sleepy at the time of the accident. We do not deal with the detail of those complaints; they amounted in the main to the suggested failure of the Judge to put against his evidence the possibility that Miss Norman may have been wrong as to the time when Lee Fitt first put the hazard lights on, and also the case for the appellant that he had ample rest on the day before the accident and that he was not sleepy at the time of it.
68. Sir Derek’'s reply to these complaints was that the Judge’'s summing-up fairly reflected the evidence and the issues that the jury had to decide. As to the suggestions that the Judge unfairly bolstered prosecution evidence, he said that, in pointing out the respects in which the evidence of Miss Norman and Gorey was supported by other evidence, he was doing no more than reflecting the evidence. As to the evidence of Professor Horne, he said that the Judge accurately summarised it and that its effect, when put alongside other evidence, was a matter for them. And as to the suggestion that the Judge had unfairly failed to put the defence adequately, he observed that though Coates gave no evidence, he reminded the jury of Coates’'s entitlement to put the prosecution to proof and of his written statement shortly after the accident, of which the jury had copies.
69. In our view, there is little substance in the complaints in this ground, certainly insufficient to mount a case - whether considered on their own or in conjunction with any of the other grounds – for unsafety of the conviction. As to the suggestion of bolstering the prosecution case, we have looked at the various candidates for this identified by Mr Birts in his submissions. We agree with Sir Derek that his comments fairly reflected the evidence and left the issues raised by it to the jury. As to the complaint that the Judge did not put the defence adequately, we also disagree. The Judge was, of course, hampered by Coates’' inability to give evidence. However, early in his summing-up, he directed the jury, with some emphasis, on Coates’' entitlement to put the prosecution to proof of the central thesis in its case that he had fallen asleep at the wheel and also of his positive defence as set out in his written statement that he had been well rested before the accident and was driving alertly, only to be presented at the last moment with an unlit stationary car directly in his path. The Judge went on, when dealing with each prosecution witness, to remind the jury of the defence case as put to the witness by Mr Birts in cross-examination. Towards the end of that part of his summing-up dealing with Coates, he summarised the points made by Mr Birts in cross-examination and in his closing speech. And, as to Coates written statement, the Judge not only summarised it in the passage towards the beginning of his summing-up to which we have referred, he gave them appropriate directions as to its weight, correctly telling them that it was evidence upon which they could act when considering his case, but that it did have the same weight as sworn testimony. And he invited them to read it carefully.

4 - Causation

70. The fourth ground on which the single judge gave leave was that the Judge, in his summing-up, did not put Coates’' case on causation adequately to the jury, namely that the deceased’'s act in getting out of the car and moving into the path of following traffic may have been the sole cause of death. Mr Birts submitted, albeit softly, that the Judge should have directed the jury not to convict Coates unless they were sure that the deceased’'s action was not the sole cause of his death.
71. There is no merit in this ground. The Judge directed the jury correctly and adequately on the issue of causation in the following words by reference to written questions he had, with the agreement of counsel, given to the jury:

“"Second question: Can we be sure that Coates’' dangerous driving was a cause of Lee Fitt’'s death? An important matter next in brackets: it need not be the sole cause, but it must have been something that contributed to his death in a way that was more than minimal. There is something that I want to say about that. Now, in this case you may say with some justification that even if we did find that the immediate cause of the accident was Mr Coates continuing to drive when he knew he was nodding off, Lee Fitt might never have died had he not got out of his car without first looking to see if it was safe to do so. Would that be sufficient to break the causative link? The answer is, ‘'No’' because the dangerous driving need not be the sole cause, or even the main cause of death. It simply has to have been something which contributed to Lee Fitt’'s death in a way that was more than just minimal. …”"

72. Later, Mr Birts and Mr Jenkins invited him to go further and direct the jury specifically that if they thought that the deceased’'s action in getting out of the car may have been wholly causative of his death, there could be no liability on Coates. The Judge declined to give that directions observing, correctly in our view, that such a direction would have to pre-suppose that Coates had not been driving dangerously at the material time. We agree with Sir Derek that there was no evidence that would have justified a direction in those terms, namely that they could find that the deceased may have been the sole author of his own misfortune.

5 – Judge’'s failure to warn jury of effect of passage of time on memory

73. The fifth ground on which the single judge granted leave was the Judge’'s failure to warn the jury of the effect of the passage of time on memory, notwithstanding Mr Birts’' and Mr Jenkins’' invitation to him to do so. He and Mr Bennett submitted that the Judge should have directed them that, insofar as they might consider that their memory of the evidence or demeanour of a witness was incomplete or insufficient to make a finding of fact against Coates, they should not do so. The Judge’'s failure to do so, they suggested, ran the risk that the jury might have been over-dependent on the speeches of counsel and of the summing-up of the Judge as to the content of the evidence and thus unable to give a verdict according to the evidence. He added, much in the same vein, that due to the length of the case, the jury would have had real difficulty in adequately recalling and assessing the reliability of the evidence of the witnesses as to the accident, however detailed the summing-up. He referred, in particular, to Miss Norman’'s evidence as to when the deceased had put on the hazard lights and to Gorey’'s various statements as to whether Coates had braked immediately before the accident.
74. Sir Derek’'s response was the same as that of the Judge. He said that there was no need for him to give any specific warning as to the effect of delay on the evidence relating to the charge against Coates of causing death by dangerous driving. The issue, he said, was not engaged because there was no evidence that the eye-witnesses’' accounts had been affected by the passage of time when compared with what they had said at the scene or in their witness statements. We agree.
75. Accordingly, we dismiss Coates’' appeal against his conviction of causing death by dangerous driving.

Graves’' appeal against conviction

76. The single judge granted Graves leave to appeal against the conviction of manslaughter only if and insofar as his culpability stands or falls with the conviction of Coates for causing death by dangerous driving. The Judge directed the jury that they could not convict Graves of manslaughter unless they convicted Coates of causing death by dangerous driving on the basis that he fell asleep at the wheel because he was dangerously sleepy because of having driven in excess of the permitted hours.
77. Mr Bennett made the obvious point which had prompted the single judge to grant Graves leave to appeal against his conviction of manslaughter, namely that if Coates’' conviction for causing death by dangerous driving was unsafe, so also would be Graves’' conviction for manslaughter.
78. As we have held that Coates’'s conviction was safe and have dismissed his appeal against conviction, there is accordingly no basis for allowing the appeal of Graves on that basis, which is the only one available to him. Accordingly, we dismiss it.
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