England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2
		20th May 2005

1. MR JUSTICE DAVID STEEL: The appellant is aged 27. On 17th September 2004, in the Crown Court at Lewes, before His Honour Judge Niblett and a jury, he was convicted of causing death by dangerous driving. On 1st November he was sentenced to 3 years' imprisonment, disqualified from driving for 5 years and ordered to take an extended retest. In addition he pleaded guilty to using a vehicle without insurance for which his licence was endorsed. No verdict was given on an alternative count to that which he was convicted, namely causing death by careless driving when unfit through drink or drugs. He appeals against conviction by leave of the Single Judge.
2. The heart of this appeal relates to a ruling made at the beginning of the trial permitting the Crown to adduce evidence of consumption of cocaine by the appellant. But it is desirable to outline what emerged during the course of the trial.
3. At about 22.45 hours on 30th September 2003 the appellant was driving a car along Carew Road in Eastbourne. He had a passenger who was a friend in the passenger seat. As he drove along the appellant lost control of the vehicle and it collided with a parked car. The passenger side of the vehicle bore the force of the impact and as a result his passenger suffered multiple injuries.
4. After this accident the appellant almost immediately drove to Eastbourne District General Hospital, where he arrived at about 10.50. He told a security officer that his "mate" was trapped in the car and needed help. The appellant was clearly very distressed. His passenger was inside the car, still alive and moaning. He was removed and treated but he died some 2 hours later.
5. A police officer examined the vehicle and concluded (and there was no controversy about it), that there was no fault or defect which caused or contributed to the collision.
6. The prosecution case was that having taken cocaine, the appellant caused the death of the passenger by driving a motorcar dangerously. The defence case was simply that the appellant's driving was not dangerous and he had not consumed cocaine immediately prior to the incident.
7. Evidence relating to reconstruction of the accident was provided both by the Crown and the defence. A police constable who was a traffic officer and collision investigator examined the scene. He reported that, at the relevant junction, between Mill Gap Road and Carew Road the road surface was raised creating a bump. He found two sets of tyre scuff marks in Carew Road, which he concluded were made by a vehicle starting to slide sideways, indicating that the driver had lost control of the vehicle. The pattern of these two separate sets of skid marks indicated a vessel spinning out of control. The result had been that the front passenger side of the appellant's car had collided with the rear of a stationary Volkswagen, which in turn was forced to move on impact into a telegraph pole and then into its final resting position.
8. The conclusion of the officer was that the first set of tracks revealed that the car had been travelling at 49 miles per hour, plus or minus 10% ie a minimum of 44 miles per hour. In crossexamination, he expressed the opinion that the loss of control was caused by excessive speed, together with the bump in the road.
9. The defence called a Douglas Wragge as a consultant engineer who also examined the scene and the vehicle. He agreed there was no apparent fault or defect which caused or contributed to the collision.
10. So far as the scuff marks were concerned, it was his opinion that there was an equal chance or possibility of the first set of marks being made by a different car. Otherwise his evidence was to similar a fact as that adduced on behalf of the Crown. There was also evidence relating to the question of impairment through drugs or alcohol and medical evidence.
11. The Crown called a Police Constable Allcorn who gave evidence that he spoke to the appellant at hospital. The appellant agreed that he had been the driver. He was clearly concerned about his passenger. The police officer described how the appellant's manner changed from being morose to animated, excitable and talkative. He said he detected the smell of alcohol on the appellant's breath and tried to obtain a sample. But he was unable to do so because of the appellant's distressed state.
12. A Dr Sparkes, a forensic medical examiner, gave evidence that he took a blood sample from the appellant at the police station. This was about 3 hours after the accident. The appellant was compliant but was clearly suffering from acute stress reaction. The symptoms being that he was subdued, preoccupied, shaking and breaking down in tears from time to time. Indeed, at one point, he was physically sick. He did not display any signs of irritability and he was not on the face of it dopey. Dr Sparkes concluded in fact that the appellant was not fit for interview at that time.
13. There was a statement from Dr Chatterton, a forensic toxicologist, which was read it analysed the appellant's blood sample that had been taken by Dr Sparkes. No alcohol was detected but screening tests gave positive indications for the presence of cannabis and cocaine. We will revert, in a moment, to the detail of his discussion of the significance of those findings.
14. The defence evidence included the calling of Dr Christopher Williams, a consultant neuropsychologist, who gave evidence that following the incident the appellant was suffering from preimposed traumatic amnesia, in particular, covering the period of seconds prior to impact and seconds thereafter. The appellant, in his judgement, suffered from acute reaction to the trauma of collision. This explained his behaviour at the hospital and the police station after the accident.
15. In interview, the appellant denied driving whilst under the influence of cocaine. He initially denied ever using cocaine but subsequently admitted he had taken the drug previously.
16. The appellant gave evidence at the trial. He referred to the fact that he had been prescribed antidepressant drugs that he was taking from time to time. He had borrowed the vehicle from a friend. He had driven that vehicle before and was familiar with Carew Road having driven on it on numerous occasions. On the day in question, he had left work at 6.30 and met a friend for a drink. He had taken cocaine by snorting and cannabis by smoking at a party the previous Saturday night/Sunday morning, the incident having taken place on the following Tuesday. The impact of cocaine on him as he described it made him jovial, chatty and in a good mood. He occasionally had taken cannabis and cocaine previously. He did not take any substance after the party and certainly not on the Monday or the Tuesday.
17. In cross examination, he accepted that he had lied to the police in his first interview. He denied ever using cocaine because it was not a particularly clever thing to do. He could not explain why there were traces of cocaine in his blood. He had taken the drug five to six times previously. It made it talkative and erased his fears. He would never take it shortly before driving a car. He did not think it would affect his driving but would not take the risk. He would not take cocaine the night before work because it would affect his faculties. He was a competent driver. It was possible that he was driving at 44 miles per hour. If so, that was too fast.
18. The grounds of this appeal on which the Single Judge gave leave relate to a decision of the judge to allow the Crown to adduce the evidence of cocaine being identified in the appellant's blood sample. This application took place at the beginning of the trial, or perhaps immediately after the Crown's opening.
19. In support of the application to exclude the evidence of the trial, and indeed in support of this appeal, the appellant relies on the decision of this Court in R v Woodward [1995] 2 Cr App R 388. That case concerned a charge of causing death by dangerous driving. The appellant driver was injured in the accident, and accordingly no specimen of breath, blood or urine was taken. The primary evidence of drinking came from two statements that were within the prosecution file from two friends of the appellant who had been to the same function that he had attended and who spoke of the appellant having drunk variously between 2 and 6 pints of lager. At the outset of the trial leave was given to the prosecution to adduce that evidence. But in the event the two friends did not come up to proof. The only evidence adduced at the trial was that the appellant had been seen with a glass in his hand. The appellant did not give evidence. In his summingup the judge reminded the jury that the appellant had consumed alcohol, but did not instruct them to disregard that fact.
20. This Court held, firstly, that on a prosecution for causing death by dangerous driving, the fact that the driver was adversely affected by alcohol was a relevant circumstance in determining whether he was driving dangerously. Secondly, although the evidence had, on the facts of that case, been properly admitted, since the evidence at the trial went no further than to show the applicant had had a glass in his hand and had been drinking to some unidentified extent the judge should have told the jury to disregard those facts.
21. As regards to the first proposition, the Court in Woodward was referred back to a decision of this Court in McBride (1961) 45 Cr App R 262, where a Court of five judges had been assembled and a reserved judgment was given by Ashworth J, which contained the following passage at page 392:

"'...if a driver is adversely affected by drink, this fact is a circumstance relevant to the issue whether he was driving dangerously. Evidence to this effect is of probative value and is admissible in law. In the application of this principle two further points should be noticed. In the first place, the mere fact that the driver had had drink is not of itself relevance: in order to render evidence as to the drink taken by the driver admissible, such evidence must tend to show that the amount of drink taken was such as would adversely affect a driver or, alternatively, that the driver was in fact adversely affected. Secondly, there remains in the court an overriding discretion to exclude such evidence if, in the opinion of the Court its prejudicial effect outweighs its probative value.'"

The decision in McBride was followed in R v Thorpe (1972) 56 Cr App R, where at page 296, the Chief Justice, Lord Widgery, after quoting the passage we have just quoted from McBride went on to say:

"The principle which is enshrined in that paragraph is quite clearly this. It would be prejudicial and not probative for the prosecution to seek to show merely that the accused had been in a publichouse on the evening in question or had been seen with a glass of beer in his hand. If evidence of that kind were allowed to be admitted, it might prejudice the mind of the jury and it would have no probative value at all. What this Court was saying in McBRIDE (supra) was that such evidence is not admissible unless it goes far enough to show that the quantity of alcohol taken is such that it may have some effect on the way in which the man drives."

These decisions under earlier legislation in the same field were held nonetheless to apply to the statutory offence with which the present appellant was charged. The conclusion of the Court in R v Woodward is set out at page 396:

"At the stage when the ruling was given, the learned judge had before him the witness statement of Mr Kingsland. When that witness came to give evidence, however, he did not come up to proof. As already pointed out, neither he Marion Huxter gave any evidence as to the amount drunk by the appellant over the evening. There was no breath or blood test, nor was there any other evidence of what the appellant had consumed. Accordingly, at the end of the prosecution case the evidence went no further than to show that the appellant had been seen with a glass in his hand and had been drinking. On the principles laid down in McBride that would not have amounted to relevant evidence. No application was made to the trial judge to discharge the jury. The appellant did not give evidence, so when the learned judge came to sum up, there was still no relevant admissible evidence with regard to drink.

Mr Francis's second ground of appeal is that in those circumstances it was incumbent upon the learned judge to give the jury a clear direction. He ought to have told them that such evidence as they had had of the appellant's drinking was irrelevant to the issues before them and that they should put it out of their minds. The learned judge did not do that."

22. For the purposes of the application before the trial in the present case, the Crown relied on the forensic analysis of the blood sample taken by Dr Sparkes, which was, taken some 3 hours after the accident. Whilst no alcohol was detected, the screening tests gave positive indication for the presence of both cannabis and cocaine. The prosecution did not propose to suggest that the defendant was, or might have been under the influence of cannabis at the material time, albeit he had admitted that he had consumed such on the preceding Saturday night. It was however the prosecution's intention to seek to admit the material relating to the presence of cocaine and its potential impact. The significance of the cocaine indicator was spelt out in a report of Dr Chatterton, to which we have already briefly referred. In that report, which in due course was read at the trial and was not challenged, the author, having referred to the indication of cocaine, commented that it was not accurately quantified as there was insufficient blood sample remaining for any such test. But so far as cocaine was concerned, he went on:

"Cocaine is a Class A controlled drug. The forensic science service can detect unchanged cocaine in blood samples typically for 3 to 6 hours after use depending on the dose and the method of drug administration. Cocaine is a drug of addiction and is abused by either inhalation through the nose or smoking form of cocaine known as crack. Cocaine is rapidly and extensively metabolised in the human body and therefore the presence of unchanged cocaine in the blood sample demonstrates the recent use of this drug by him. Cocaine is a powerful stimulant drug that can produce hyperactive and feelings of euphoria, selfconfidence and strength. Larger doses induce delusions, paranoia, acute anxiety and a tendency to be violent or aggressive. Persons under the influence of cocaine may experienced blurred vision and demonstrate increased risk taking behaviour. The stimulant effects of cocaine typically last for half to 1 hour after which there may be a strong compulsion to take more of the drug. After the stimulant effects of the drug have worn off the user may exhibit signs of irritability and drowsiness. Cocaine may therefore adversely affect a person's ability to properly drive a mechanically propelled vehicle."

His conclusion was simply this:

"These experimental finding demonstrate that [the appellant] had used cocaine and cannabis at some time prior to the alleged incident. Each of these drugs has the capacity to impair driving ability. The combined use of these drugs may exacerbate their individual effects."

23. In this appeal, the appellant place strong emphasis on the fact that there was no quantitative analysis nor expert expression of opinion as to the actual impact on the defendant's driving ability rather than the potential impact. In his initial interview the appellant admitted consuming cannabis on the Saturday night but denied taking cocaine. This, despite the fact that it had been disclosed to him that the sample taken by Dr Sharpe had revealed traces of both cannabis and cocaine.
24. When that was put to him, he replied:

"Well that's impossible that's absolutely impossible.

Is it?

Yes, I wouldn't take cocaine."

Then he was asked a few questions later:

"Let's assume it breaks down in 6 hours, it would have meant you'd taken cocaine two-and-a-half prior to the crash.

No, that is ridiculous.

Have you ever taken cocaine?

I have done in the past, not then, absolutely not. Explain to me then how it is found in your blood sample.

I don't know. I really don't. Hopefully you can tell me that."

25. A page later in the interview, however, he admitted that he, in the past, had taken cocaine.

"When was the last you took any cocaine?

Probably the weekend actually truthfully probably the weekend.

So we're talking 36 hours before.

I'm much as a loss to you to come up with that."

The interview then went on to consider the implications of admission.

26. Against that background it was accordingly the defence's submission before the trial, at the time when the application to exclude the evidence was made, that the situation that had been revealed fell squarely within the scope of the decisions in McBride, Thorpe and Woodward ; namely the mere fact that a drug had been taken was no more than prejudicial. Absent material demonstrating that the quantity of the drug was such as to show that the appellant would be adversely affected, it was inadmissible.
27. The prosecution contended, firstly that the decision in Woodward was distinguishable because cocaine was illegal and alcohol was not. Secondly, the law recognised a level of permissible drinking on the basis that the risk of material impact on driving skills, at low levels of alcohol consumption, were very small. Per contra, no such allowance was or could be made for a Class A drug which had the effects which Dr Chatterton described in his report. Thirdly, that the evidence supported the proposition that the appellant had recently ingested cocaine and, accordingly, was likely to have been adversely affected in his ability to drive.
28. The judge accepted the Crown's submissions. In our judgment, he was right to do so. Whilst we are not persuaded that the mere fact that cocaine is an illegal drug is of any direct significance, an issue for the jury was whether the appellant was adversely affected by drugs. If the jury were duly persuaded, it was in turn a fact relevant to the issue of whether he had driven dangerously (and, of course, fully relevant to the second count of causing death by careless driving under the influence of drugs).
29. The material available at the beginning of the trial, when this application was made, indeed the material which was in due course adduced by the prosecution, was, firstly, to the effect that the appellant had taken cocaine, secondly, that he had taken it shortly before the accident, thirdly, that he had lied about the timing of this, and fourthly, that the drug, whilst shortlasting had a tendency or a capacity to impair driving ability.
30. In short, in our judgment, the mere fact that he had taken a drug, very shortly before the incident, if such could be established by the prosecution, was potentially relevant. The whole purpose of taking a drug of the kind that is identified in the blood sample would have been to achieve a material impact, albeit short lived. Quantification of the precise amount of cocaine consumed would not take matters any further.
31. In our judgment, therefore, the Crown were correct in asserting that the jury was entitled to view the consumption of the cocaine per se as relevant to the issue of driving dangerously, in contrast to perhaps modest consumption of alcohol. Indeed it is notable, albeit irrelevant for the purposes of considering admissibility of the evidence, that such a view is shared by the appellant himself. He had taken cocaine on earlier occasions and as we recorded, he recorded it as making him jovial, chatty and in a good mood. When he was invited to consider whether he had been lying in saying that he had not taken cocaine shortly before the incident, he said this, as recorded in the summingup:

"As far as cocaine was concerned, he was challenged by Mr Shay and he said: 'I cannot explain why there were traces of cocaine found in my blood. At first I denied to the police ever taking cocaine because it was not particularly clever thing to do. I agree I initially lied to the police but then I told the truth and later admitted it.' He said he had taken cocaine maybe five or six times in his life, it just makes him talkative and erases his fears; he snorted it. He has never taken cocaine shortly before driving a car. He would never have done so. He cannot imagine, he told you, that it would make any difference when driving a car but he wouldn't want to risk it. 'I should imagine' he said 'it would depend on the quantity taken', but it has never happened to him so he doesn't know. He wouldn't have taken cocaine that night because he was working the next morning, and the reason he would not have done so, he told you, is because it would have affected his faculties."

32. In all these circumstances the decision of the trial judge to admit the evidence relating to presence of cocaine in the blood sample of the appellant was fully justified and correct. Accordingly there is nothing in this appeal and it must be dismissed.