England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2
		Thursday, 27th January 2005

1. LORD JUSTICE AULD: On 19th April 2004, before His Honour Judge Medawar QC and a jury in the Crown Court at Snaresbrook, the appellant was convicted of causing death by dangerous driving. On 14th May 2004 the judge dealt with him by way of sentence by ordering an absolute discharge and the endorsement of six penalty points on his driving licence. He made no order for disqualification for special reasons. He also ordered the appellant to pay £500 towards the prosecution costs.
2. The appellant appeals against conviction by leave of the single judge.
3. There was little, if any, dispute about the facts. On 23rd April 2003 the appellant, in the course of his employment as a lorry driver, was driving a 7.5 ton lorry in Roman Way en route to the Isle of Dogs. Whilst stationary at one point a woman, unknown to him and without any invitation, opened the nearside door of his cab and climbed in. According to the appellant's uncontradicted and unchallenged account in interview and evidence, she was clearly a prostitute and was pressing her services upon him. He rejected her offers by saying "no" and told her to get out of his cab. She did not do so, immediately at any rate, and persisted with her offers. He began to drive on slowly. Then she began to shout at him to let her out.
4. He stopped very shortly at a junction. She got out hurriedly, taking a book of his as she went, and leaving the nearside door of is cab open. He could not reach the door from his position in the driver's seat to close it, but because he wanted to get away from her, he drove off, making a left hand turn at the junction. In his hurry he appears not to have made a wide enough turn and the trailer of his lorry cut across the corner, knocking the woman, who was still close to the kerb, and ran her over. She died almost immediately. Someone shouted out "stop" to him and he did so. When he got out, he saw the woman lying partially on the pavement bleeding. He then realised for the first time that his lorry had struck her.
5. To the police officers who attended the scene he gave the account which we have indicated as to how the woman got into and out of his cab; an account that was broadly supported by a number of eyewitnesses. Some of them described the woman as very unsteady as she got out and kicking out and banging in a bad temper at the nearside of the lorry as it began its move around the corner.
6. On the following day the appellant gave the same but a fuller account in a police interview, including the statement:

"I took a wide corner. I thought I'd enough room. I wanted to get away from her. I didn't want to harm her in any way."

As we have indicated, he gave the same account at his trial in evidence.

7. The single ground of appeal is that the judge, in directing the jury as to the meaning of causing death by dangerous driving, and in putting to them as a possible alternative, careless driving, failed to distinguish clearly between the meaning of dangerous driving and careless driving. In his initial direction to the jury on the law on this matter the judge drew attention to the distinction between the two, and properly described it. He said:

"Where driving is to be criticised, a distinction is to be drawn between careless driving and dangerous driving. The one may encompass a foolish act, or an error of judgment and that might be careless. The other may encompass driving which was reckless, or gravely irresponsible, or driving in a way in which an onlooker could call wicked and that may amount to dangerous driving.

It has been said that dangerous driving is a deliberate choice of a course of driving whereby danger arises.

The primary question for you will be: are you sure that this was the position here? If not, then you go on to consider whether or not what the defendant did amounted to careless driving rather than dangerous driving."

8. Having drawn that broadly accurate distinction between the two qualities of driving, he then set out to describe more fully what the law means by the expression "dangerous driving", but in doing so he failed to have regard to the structure and words of section 2A of the Road Traffic Act 1988, which requires proof of two distinct but complementary constituents to establish the charge: (1) that the driving falls far below what would be expected of a competent and careful driver; and, (2), that it would be obvious to a competent and careful driver that driving in that way would be dangerous.
9. It is clear from the words of that provision that, in respect of both of those constituents, the Act sets a high threshold. But this is how the judge put it in his second direction as to the meaning and distinction:

"A person who causes the death of another person by driving a mechanically propelled vehicle dangerously on a road, or other public place is guilty of an offence. If the defendant was not exercising the degree of care and attention that a reasonable competent and prudent driver would exercise in the circumstances, he should be found 'guilty'. It is a question of fact for you. If the circumstances show that his driving was not inconsistent with that of a reasonably prudent driver, he should be acquitted.

This is because Parliament has provided that a person is to be regarded as driving dangerously if and only if the way he drives falls far below what would be expected of a competent and careful driver and it would be obvious to a competent and careful driver that driving in that way would be dangerous and 'dangerous' refers to the danger of injury to any person and in determining what would be expected of or obvious to a competent and careful driver in a particular case. Regard should be had not only to the circumstances of which he could be expected to be aware, but also to any circumstances shown to have been within the knowledge of the accused."

10. It can be seen from those words that he watered down the first constituent of dangerousness, namely the quality of the driving falling far below that of a careful and competent driver, to one, essentially, of careless driving. Further, in his introduction of the second constituent, the obviousness of the danger, the words "This is because" could have misled the jury into taking it as an explanation of the first constituent rather than as an additional requiremen,t, and seemingly referable to careless and not dangerous driving.
11. The judge might possibly have retrieved the position at this stage of his summing-up by returning yet again to the definition and distinction between the two, careless and dangerous driving, this time succinctly and clearly. He said:

"... if you are sure that his driving fell far below what would be expected of a competent and careful driver in the same circumstances, and that it would be obvious to such a competent and careful driver, that driving in the way would be dangerous, then it is open to you to convict.

Should you be of the view that his driving was careless rather than dangerous, then the proper verdict would be 'not guilty as charged', but 'guilty of careless driving'. It is entirely a matter for you."

12. So those were three directions at an early stage of his summing-up, and, as events were to prove it, is plain the various directions left the jury confused. After they had retired, and had been considering their verdict for nearly an hour and a half, they sent the judge a note asking for written clarification of the difference between careless and dangerous driving.
13. The judge, unaccountably, refused to give them clarification in writing, saying to them that it was just not appropriate to do so. He then proceeded to repeat to them the second of his three earlier directions, the inaccurate and confusing one, almost word for word. Unfortunately he did not repeat to them his earlier third and possibly remedial correct direction, thus leaving the inaccuracy and scope for confusion that clearly prompted the jury's question for written clarification.
14. In our view, the jury's conviction of the appellant of causing death by dangerous driving is plainly unsafe, having regard to the judge's serious misdirection of them as to the law, certainly as he left it in his answer to their question for clarification. That answer can only have undone the possibly remedial third direction given earlier in the summing-up and could not have helped by way of clarification to correct the uncertainty in which his earlier directions, taken together, must have left the jury.
15. In the circumstances, it may have made no difference that the judge insisted on confining the jury to his oral directions on this critical issue for their determination. However, there should be a greater chance of a judge getting his directions right, and for a jury to understand them if the law on the point is causing them difficulty, as well as being critical to their decision, for him to attempt to clarify the matter in writing. It would have been a matter of moments for the judge to have done so here. When juries ask for such help, we consider that a judge should do what he can to give it. It may, as we have said, have made no difference, but perhaps, in the writing of the direction, the judge might have been alerted to the error and to the confusion that it had caused.
16. For all those reasons we quash the conviction, and, having received submissions from both counsel, we substitute a conviction for careless driving. That leaves only the question of penalty. The least penalty that the judge could have ordered he ordered on the charge of causing death by dangerous driving was one of absolute discharge, and we do not disturb that. As to the endorsement of the appellant's licence with six penalty points, it seems to us that it would be proper in the circumstances to reduce it to three. There is no other order.