England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice The Strand London WC2A 2LL
		12 June 2006

Monday 12 June 2006

LORD JUSTICE MOSES:

1. This is an appeal against convictions for causing death by dangerous driving and dangerous driving which raises the issue as to whether the judge, at the invitation of the defence, ought to have left the statutory alternative of careless driving for the jury to consider.
2. The facts of this case make terrifying reading. Its consequences were tragic. No one hearing about this case can be other than appalled at the consequences of what took place on a summer's day in July 2004 at Sandown Beach on the Isle of Wight. Those facts, tragic as they are, made it all the more important that both prosecuting counsel and the judge should have studiously exercised a rigorous approach to the law lest the jury be unduly influenced by the tragic circumstances of the case.
3. The appellant, an unqualified, learner driver, aged 45, had chosen to buy a BMW motor car some time shortly before the killing of a young child. He chose to drive it unsupervised and in circumstances where his own driving instructor had described him as an incompetent driver who would need at least 40 more lessons in order to be able to drive properly on a public road, unsupervised.
4. On 24 July 2004, the appellant, unsupervised and under a provisional licence, drove his BMW containing passengers. He approached a car park by the sea wall of Sandown Beach. A number of cars which were parked there clearly showed the position he ought to have adopted by a kerb that de-marked the sea wall from the beach where the victim, his father, and others, were no doubt enjoying themselves. The appellant drove the car towards the car bay, but, for reasons to which we will turn in a moment, failed to stop at the appropriate place. With his engine revving, he caused the vehicle to rise up over a concrete kerb 20cm in height and then descend a sharp incline down onto the beach. There beneath was the Youngs' two year old firstborn child. The BMW killed that child and seriously injured his father because, having landed on the beach, the vehicle continued to be revved up with the appellant's foot on the accelerator, making even worse the injuries of the father. The front passenger wheel had gone over his stomach and his right arm became trapped in the rear wheel arch.
5. A number of witnesses described not only the sight of the vehicle flying over the kerb above the sea wall and down the sea wall, but also the revving noise of the vehicle. The vehicle continued to make that revving noise, notwithstanding that it had landed on the beach.
6. The appellant said that what had happened was that, at the kerb where he was supposed to park, his foot had slipped from the automatic brake onto the accelerator. Those familiar with automatic vehicles in general, and this vehicle in particular, will be aware that there is a substantial foot brake and an accelerator pedal set apart from that foot brake.
7. Expert evidence, particularly that of the crash investigator, observed the lack of marks, the absence of which would be expected since the vehicle was travelling slowly. The evidence was that the vehicle's speed was at or below 10mph. Given the power of the vehicle and the height of the rise of the kerb, it would not require a speed of any significance to cause the vehicle to rise up over the edge.
8. The appellant gave evidence in relation to his driving of the vehicle. He was faced with evidence not only of an earlier incident when an independent driver had witnessed his incompetence when driving on a hill, but also of his driving instructor who spoke of the atmosphere within the vehicle sometimes being "very fraught". The appellant's driving was below average. He was easily confused, a slow learner, and would require at least another 40 lessons.
9. All of that evidence was material in relation to the questions which arose under section 2A of the Road Traffic Act 1988. Section 2A so far as relevant provides:

"(1) A person is to be regarded as driving dangerously if and only if --

(a) the way he drives falls far below what would be expected of a competent and careful driver, and

(b) it would be obvious to a competent and careful driver that driving in that way would be dangerous.

....

(3) In subsection (1) above 'dangerous' refers to danger either of injury to any person or of serious damage to property; and in determining for the purposes of subsection (1) what would be expected of, or obvious to, a competent and careful driver in a particular case, regard shall be had not only to circumstances of which he (the notional competent and careful driver) could be expected to be aware but also to any circumstances shown to have been within the knowledge of the accused."

As will be well know, the test of dangerous driving is an objective test that requires a jury to look not only at the quality of the driving (see subsection (1)(a)), but also the foreseeable consequences of that driving (see subsection (1)(b)).

10. In the instant case Mr Bryan, who has appeared on behalf of the appellant in this appeal and has argued the case with conspicuous skill and tact, also appeared for the appellant at the trial. He sought to argue before the trial judge that the statutory alternative of careless driving ought to be left to the jury. He wished to argue that the driving on this occasion, bearing in mind the very short distances, the time in which the mistake would have taken to have had effect (namely about two-thirds of a second), and the low speed, that the jury ought to convict, if at all, on the basis that the appellant had fallen below that which would be expected of a competent and careful driver, but not far below that standard -- in other words, he was guilty only of careless driving.
11. In a ruling which required careful analysis it is difficult to identify the reasons for which the judge came to the conclusion that the alternative ought not to be left to the jury. Counsel for the Crown, whilst accepting that for the second count which related to the driving on the beach there might be a more realistic alternative of careless driving, rejected the idea that careless driving was an alternative on the first count on the basis that it would be almost an insult to those who had lost their beloved son.
12. We readily appreciate those sentiments, but, as Mr Bartlett fairly accepted in argument, that is not a reason known to the law for failing to leave an alternative. These cases of causing death by dangerous driving are fraught with emotion and a sense of tragedy. It is all the more important, therefore, for the judge carefully to analyse whether the facts disclose, as a realistic issue, the alternative of careless driving on the basis that the standard of driving was not as bad as that for which the prosecution contended.
13. Whilst the judge's ruling appears to be only provisional, it is difficult to identify precisely the reason for his refusal to leave the alternative to the jury. It may be that it was for the inadmissible reason that the alternative was too trivial. One can readily understand that, having not left that alternative on count 1, it would be confusing to leave the alternative on count 2, since the one piece of driving was part and parcel of the other, but it is difficult to see what was in the judge's mind, particularly since at the end of his ruling he seems to have made it clear to defence counsel that he would allow further argument and reconsider the matter before speeches and summing-up. He did neither.
14. We therefore must consider whether the judge ought to have left the alternative to the jury. The principles upon which a judge in such circumstances ought to leave an alternative should by now be abundantly plain. They have been dealt with by the House of Lords in R v Maxwell (1990) 91 Cr App R 61, in the speech of Lord Ackner and, with one important qualification, his endorsement of that which fell from Mustill LJ (as he then was) in R v Fairbanks (1986) 83 Cr App R 251, 255-256. Importantly in this case the question was whether careless driving was a live issue. It was not a live issue in the well-known case of R v Hart [2003] EWCA Crim 1268, where the issue for the jury was whether the driver, whose driving over a crash barrier led to multiple deaths when in collision with an express train, was or was not asleep. It was not a live issue in R v Dunne [2003] EWCA Crim 2975, where the issue was whether or not to drive over cones onto a lane in which traffic was travelling in the opposite direction was dangerous.
15. In our judgment it was an issue in this case. There was a live issue as to whether the quality of the driving going over the kerb fell far below the standard of a competent and careful driver, or only just below. Mr Bartlett, on behalf of the prosecution, sought to suggest that once it was admitted, as it was by the appellant, that his foot had slipped from the brake onto the accelerator, a verdict of dangerous driving was inevitable. That submission was based upon the decision of this court in Attorney General's Reference No 4 of 2000 [2001] 2 Cr App R 417. However, the question in that case, as identified by Lord Woolf CJ at paragraphs 1 and 2, was whether a person may be said to be driving when he places his foot on an accelerator in the mistaken belief that he is putting his foot on the brake. The Court of Appeal answered that question at paragraph 16 by pointing out that the driving was as a result of conscious body movements, even though it led to the mistaken pressing of the wrong pedal. It was therefore not involuntary; the driver was driving. The Lord Chief Justice said at paragraph 21 that it is clear that if a driver unintentionally presses the accelerator when he means to press the brake, that will be no defence to a charge of dangerous driving. But those dicta must be read in the context of the question that had been asked of the court. The court was not asked to deal with the difference between "careless" and "dangerous" driving. Thus that is no authority for the proposition advanced by the Crown in the instant case.
16. We take the view that there was a live issue as to the quality of the appellant's driving. In those circumstances the alternative ought to have been left to the jury. But that is not dispositive of the matter. As Lord Ackner made clear in Maxwell, the question is not simply whether the alternative ought to have been left, but whether the jury may have convicted out of a reluctance to see the appellant get away with what on any view was, as Lord Ackner described it, disgraceful conduct (see page 68 of Maxwell supra). In making those comments, Lord Ackner, with whom all the rest of their Lordships agreed, specifically disagreed with Mustill LJ in the Court of Appeal who had said that solid grounds must be identified before the Court of Appeal will interfere. The test, as Lord Ackner put it, was as follows:

"What is required in any particular case where the judge fails to leave an alternative offence to the jury is that the court, before interfering with the verdict, must be satisfied that the jury may have convicted out of a reluctance to see the defendant get clean away with what on any view was disgraceful conduct."

17. We are aware in cases such as this of how tense the atmosphere is in a court; all the more so where the victim is a 2 year old child playing on the beach. We, therefore, must be acutely aware of the risk that the jury may have been reluctant to acquit the appellant altogether. But aware as we are of the risks particularly prevalent in a case such as this, we are satisfied that there was no risk in this case of the jury being impelled into a verdict of causing death by dangerous driving by the fact that the alternative of careless driving was not, as it ought to have been, left to them. We say this for two reasons in the context of the facts of this case. First, the judge made it quite clear to the jury, not only right at the outset of his summing-up but also in his written directions, that they should not convict merely because there was no alternative between dangerous driving and a verdict of not guilty. He said right at the outset that they must not be influenced by their sympathy and emotion in the case, and he directed them that they should find the appellant not guilty if they were not sure his driving fell far below the standard of a competent and careful driver "however reprehensible his driving may have been". He reiterated that in written directions that were before them when the jury had retired to consider their verdict.
18. Secondly, we should refer to the course this trial took. The judge gave a provisional ruling, but invited Mr Bryan to make further submissions before he addressed the jury, which he would reconsider. Somewhat surprisingly, he never gave Mr Bryan that opportunity. But Mr Bryan, sensibly, and acting properly on behalf of the appellant, did address the jury on the alternative of careless driving. The judge never specifically told the jury that Mr Bryan was wrong to do so, still less interrupted him whilst he made those submissions. On the contrary, he said to the jury that if they wanted any further directions they could ask for them. In our view it is inconceivable that the jury, had they thought careless driving a realistic alternative, had they been troubled for one moment about whether the standard of driving fell far below that of the competent and careful driver, would not have at least asked for further directions in the light of Mr Bryan's submissions. They did not. That is a further reason why we are convinced that there was no risk in the instant case of the jury being impelled into a verdict of dangerous driving in the absence of the alternative being left to them. Indeed in the circumstances of this case, faced with the evidence of the revving before the vehicle ever hit the kerb, and the fact that no evasive or braking action appears to have been taken once the vehicle hit the kerb, notwithstanding the slow speed at which it was travelling, we are not at all surprised that that was the approach of the jury, aggravated as it must have been with the powerful evidence of the deliberate choice of the appellant to drive in his own vehicle when he was incompetent to do so.
19. In those circumstances, and for these reasons, whilst we agree with Mr Bryan that the alternative ought to have been left to the jury, we are quite satisfied that the verdicts were safe. For those reasons the appeal against conviction is dismissed.

(The court was addressed in relation to the appeal against sentence)

20. The appellant, who has no previous convictions, was sentenced on count 1 (causing death by dangerous driving) to eight years' imprisonment, on count 2 (dangerous driving) to twelve months' imprisonment concurrent, and on count 3 (unlawful wounding) to three years' imprisonment concurrent, making a total of eight years' imprisonment. He was disqualified from driving for a period of ten years. He appeals against the sentence of eight years' imprisonment by leave of the single judge.
21. It is unnecessary to identify the facts further than we have already found it necessary for the purposes of the appeal against conviction.
22. The decision of this court in R v Cooksley [2004] 1 Cr App R(S) 1, places this case, as is accepted by both the defence and the Crown, within "intermediate culpability". In other words, it was an offence involving a momentary or short period of bad driving or error of judgment, aggravated by a habitually unacceptable standard of driving (factor (j)), the death of one victim and serious injury to another (factor (n)). In Cooksley the court said that the starting point for offences of intermediate culpability should be two to three years, but where more than one of the factors were present, five years could be appropriate (see paragraph 23). The decision in Cooksley is not, of course, a statute. A court is bound to have regard to the gravity of the particular factors within the categories identified in paragraph 15. Moreover, the court must have regard to the fact that, since Cooksley, the legislature has increased the maximum penalty for causing death by dangerous driving. But, as has been said in more than one case, that increase in the maximum by 40% should not lead to a systematic increase of each sentence for causing death by dangerous driving by 40% (see R v Gray [2006] 1 Cr App R 21 at page 126). As Maurice Kay LJ points out, the maximum was focused upon the most serious offences, but he acknowledged, as we do, that an inevitable consequence of an increase will mean a general tendency to an increase in sentencing for this type of offence.
23. We take the view that a sentence of eight years in the interests of consistency cannot be justified. This, we acknowledge, will be hard for the victim's family to accept. No sentence of imprisonment can begin to reflect the tragedy which they have suffered, still less compensate them for their loss which we can only begin to understand. It is even harder for the victim's family, once a lengthy sentence has been passed, to have to accept a revisiting of the facts by way of an appeal and then a reduction in sentence. All of that we acknowledge. We were not there to hear those appalling facts which the appellant chose to dispute before the jury. But, nevertheless, we hope that the family can appreciate that consistency is an important feature in the sentencing process and that sentences of eight years and above are reserved for the category of "higher culpability" into which this case did not, on any view, fall.
24. In our judgment, having regard to the general increase in sentences for offences of this sort since Cooksley as a result of the change in the statutory maximum, and, of greater significance, the particularly serious feature of the appellant's habitual driving unsupervised when unqualified and wholly unskilled to do so was a bad example of factor (j). He chose to buy and drive this powerful motor car. He knew that he had to stop at the kerb, but he drove so badly as to drive over the edge and kill this young child.
25. In those circumstances we take the view that the appropriate sentence was not one of eight years but one of six years' imprisonment. The period of disqualification, against which there is no appeal, remains. To that limited extent this appeal is allowed.