England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2
		Tuesday, 18th July 2006

1. THE VICE PRESIDENT: In this case the appellant pleaded guilty to five counts of causing death by dangerous driving on 18th October 2005. On 9th November 2005 he was sentenced to five years' imprisonment concurrent on each count and was disqualified from driving for seven years.
2. He appeals to this court against the sentence of imprisonment with leave of the single judge.
3. As is so often the case in offences of causing death by dangerous driving the court was faced with an extremely difficult sentencing exercise. In this case, on the one hand, there was, as can be appreciated by the number of counts, tragedy of significant proportions in that five people died. On the other hand, the appellant who was the driver of the bus which caused the tragedy is a 51 year old man with no previous convictions and in respect of whom no question of irresponsible driving has arisen either in the past, or, as we shall see, to a significant extent, in relation to the driving itself in this case.
4. The facts were that just after 5.00 p.m. on Easter Sunday 11th April 2004, the appellant had driven his Volvo double decker bus to a bus stop outside a Funfair known as Fantasy Island, Sea Lane, Ingoldmells. He let off passengers and then took on board other passengers. At the time as is apparent from video camera recordings, which we have seen, the area was extremely busy as one might imagine from the nature of the day in question. Families were walking to and fro, crossing the road, and in fact going in front of the bus within the lay -by itself.
5. As he came to close the doors the appellant moved off and almost immediately struck a Simon Keyworth, who was indeed in the bus lay -by area, with significant force. He did not stop. The evidence was clear that he accelerated. He went through traffic lights controlling a pedestrian crossing whilst people were in the process of crossing. He collided with a BMW motor car that was stationary in the road and passing on its nearside, mounted the crowded pavement, before regaining the carriageway and eventually only coming to a halt some 22 seconds after leaving the bus stop having travelled some 170 metres.
6. The consequence of that driving over that period was that a husband and wife were killed (they were in their early 30s), and a mother and two of her children were killed. The children were at the time aged five and just a few months, the latter being in a pushchair. The father of those children received serious injuries. One of his kidneys and his spleen had to be removed. He now suffers from severe depression and has had repeated flashbacks to the incident. Many others were injured.
7. How did that terrible accident happen? It is now accepted, and indeed was for the purposes of the trial, that the reason that this occurred was that the appellant, when he stopped the bus, applied the handbrake. It was an automatic bus with, therefore, two pedals, an accelerator and a brake. Whilst it was stationary he left the gearbox in drive. That meant that the bus was held only by the handbrake. The moment that the handbrake was released the bus was bound to move forward. His practice - - and it is apparently a practice adopted by many drivers - - was to place his foot on the footbrake as he released the handbrake in order to restrain the bus before allowing it to move off. On this occasion he made the tragic error of putting his foot on the accelerator as he released the handbrake. As a result, the bus moved forward, unsurprisingly. It was in those circumstances that he first hit the victim Simon Keyworth.
8. At that point passengers in the bus shouted at the driver to stop, but it is apparent that he did not stop, the reason being that he believed that he had in fact got his foot on the brake, instead of, as was the case, the accelerator. He continued to believe that he had his foot on the brake as is clear from the fact that the passengers in the bus heard him say "the brake has failed". He continued to be of that view until after it would appear he had mounted the pavement and mowed down the victims who were killed. At that point, or thereabouts, he realised that his foot was not on the brake, applied the brake and brought the bus to a halt. By then, of course, the damage had been done. It would appear that the period over which he operated the bus under the misapprehension that he had his foot on the accelerator was some 16 seconds or thereabouts.
9. In order to assist the court in determining how best to view the driving in those circumstances the trial judge was provided with expert reports, in particular, on behalf of the appellant, from a Mr Dean Southall, who described what had happened after the bus moved off as classically exemplifying a panic state in the driver, so that he behaved in a way which was predictable in the sense that he remained under the delusion about the fact that his foot was on the brake and not the accelerator for a period of time which was not unexpected.
10. The judge, when considering that aspect of the case, said this at page 12C ff of the sentencing remarks:

"In relation to the issue of pedal confusion I have read the reports of Dean Southall and of Dr Koch. It's perhaps an issue more apparent than real because there is no question here that what occurred was that you failed correctly to identify the pedals and that you pressed the accelerator from the time of the bus stop when you should have pressed the brake. What happened thereafter was panic and the effect of panic and the two experts consider the effect of hyper -vigilance and how that can affect people. According to Dr Koch - - and this to me makes sense - - hyper -vigilance affects many people in many different ways. It has been said this morning that the response to hyper -vigilance can be as many as there are drivers. Mr Southall concludes that there was nothing any driver could do other than to take the course which you did under the state of hyper -vigilance and panic in which you then were.

The prosecution do not accept that all drivers would have reacted in the same way in response to your pedal error. Dr Koch concluded, having considered responses of approximately 10,000 people in relation to this part of the case, that your error persisted for 16 seconds and was an extreme consequence of pedal confusion."

11. This court, differently constituted, considered this appeal last week and asked for further assistance from counsel as to what the situation was as between the appellant and the respondent in relation to this and related aspects of the case. An agreed note has been provided for the court in the following terms:

"A. At the sentencing hearing before Dame Heather Steel, and prior to the facts being opened by the prosecution, two issues, as identified by the basis of plea, were raised by the prosecution.

1. The issue was raised as to whether the unintended acceleration occurred at the time that the bus first pulled away from the kerb or at or after the collision with Simon Keyworth. The appellant's counsel indicated that he was content that the appellant should be sentenced on the basis that the pedal error occurred at the outset, as the bus initially pulled off.

2. The prosecution indicated that they did not accept the contention of Mr Dean Southall that, from the time that he was in a 'panic state' until he brought it [the bus] to a halt some 160 metres further down Sea Lane, Mr Topasna did all that he, or any driver in the hyper -vigilant state engendered by panic, could be expected to do to control the vehicle. In an exchange with defence counsel, Her Ladyship clarified the way in which she proposed to deal with the issue, as now reflected in paragraph 12C to 13B of the transcript of the sentencing remarks, and defence counsel indicated that he did not seek an issue trial on that point."

12. It follows that the sentencing judge, it is accepted, was entitled to approach this matter on the basis that the period over which this appellant persisted in his belief as to the fact that the brakes had failed was at or beyond the limits of what would be expected of a careful driver.
13. The facts that we have related make it plain why this was a particularly difficult sentencing exercise. This does not fall into the category of cases where there has been any significant period of bad or irresponsible driving. It does not have any of the usual aggravating features, such as drink, or, in itself, excessive speed. This is a case where the cause of the incident was an error made by the appellant in identifying the difference between his brake pedal and his accelerator. That, in the circumstances, amounted to dangerous driving in itself. This has to be put in the context of a driver controlling a very large vehicle in an area which was clearly extremely busy with pedestrian traffic. It was a situation, accordingly, which required the greatest vigilance. The way in which the appellant dealt with the crisis with which he was confronted was in itself, as described by the judge, an extreme consequence of pedal confusion. And last, but not least, the consequences have been devastating. This is a case where the court was bound to take into account the substantial loss of life which was occasioned by this tragic error.
14. The sentencing judge, as one would expect, confronted with the difficulties of the sentencing exercise in this case, expressed her reasons for passing the sentence that she did in extremely careful terms. The sentencing remarks go for approximately 25 pages. She described the background, and clearly and accurately described it. She indicated that she was proposing to give to the appellant full credit for the plea of guilty that he entered, even though, in fact, it was a plea entered after the failure of legal submissions.
15. Having related the facts of the accident and indicated the credit that she was prepared to given, she then turned to the authorities. Not surprisingly the first authority that she referred to was the case of Cooksley [2003] EWCA Crim 996, [2004] 1 Cr App R(S) 1. That was a case in which this court, presided over by the then Lord Chief Justice, considered the proposals made by the Sentencing Advisory Panel as to sentencing in cases of dangerous driving.
16. She records that at paragraph 13 of that judgment the Lord Chief Justice stated:

"The key problem for a sentencer dealing with this offence is the tension between the outcome of the offence, which is inevitably the death of at least one victim, and the degree of the offender's culpability. Culpability must be the dominant factor when the offence involves no intention to kill or injure."

17. She then identified the four categories into which the Sentencing Advisory Panel had divided the offences of dangerous driving: that is those where there are no aggravating circumstances; secondly, those where there is intermediate culpability; thirdly, where there is higher culpability; and, fourthly, where there is the most serious culpability.
18. So far as the factors to be considered when determining the level into which to place the particular offence, or offences, the court set out in paragraph 15 of the judgment the aggravating and mitigating factors. It is clear that in the present case in relation to aggravating factors the only ones of significant relevance are (l) and (m), which relate to the consequences of the driving in relation to the numbers killed or injured.
19. The sentencing judge having then reflected on the fact that since the case of Cooksley the law had changed and the maximum sentence had been increased to 14 years, concluded that these particular offences fell into what she described as the most serious category of offence, which was in Cooksley recommended to have as a starting point a sentence of six years' imprisonment. She then went on in relation to the quality of driving itself:

"... your driving on that day demonstrates that you were not without a substantial degree of blame. I accept totally that you suffered from panic which was brought about by the pedal confusion. Mr Howat tells me - - and I accept - - that you have always accepted that you were morally responsible for what took place and it is important here to recognise that there was no outside factor which caused you to drive as you did. You were on that day totally the author of your own misfortune. Ensuing panic resulted totally from your own action in pressing the wrong pedal and also from the initial collision. I accept that the initial error of judgment was no more than that - - to press the wrong pedal - - but here I have to take into account that that error was persisted in and the fault lies particularly in your case in that you continued to accelerate throughout the journey of 146 metres over a time period of 16 seconds until you finally braked. It may very well be - - and I accept that it was - - that you believed that your brakes had gone, but it is clear that you were sufficiently in control of the bus to be able to steer the bus to avoid, or try to avoid, the BMW. There was here, it is quite clear, no use of the handbrake, the footbrake or any attempt to put the vehicle into neutral. The only time the brake was applied, as is quite clear, was as the bus finally came to a standstill. Otherwise you did nothing. That panic had persisted for an extraordinarily long time.

On any view, the initial collision with Mr Keyworth was dangerous. He was very close to the bus, in the lay -by at but bus stop and clearly visible as the bus set off. It cannot be gainsaid that you could and should have seen him and avoided him.

Having struck him and knocked him down, you failed to respond to the shouts of the passengers. It is impossible to accept that you were not aware of that collision with Mr Keyworth. You continued to press the wrong pedal, the bus continued to accelerate and your course of driving became increasingly dangerous. You failed totally to consider the safety of your passengers who were in your care or your responsibility to other road users and pedestrians. The prosecution accept that your failure to act may have been due to panic but the prosecution case is that 16 seconds, during which the bus was accelerating, was unusually long. 22 second for the whole journey is a long time. 176 metres, in the circumstances of this case, is a long journey. For 146 metres of that journey the bus was under acceleration.

The culpability here, even with all the available mitigation and the inevitable sympathy that anyone hearing this case must feel for you as well as for the families of the victims and all those who have been affected, is substantial. The principal determining factor in sentencing is your culpability. I'm satisfied that this also brings the case into the most serious category. You are an experienced bus driver and, even taking panic into account, it is astonishing that you did not react more quickly to avoid the devastation that you caused."

20. She then went on to repeat that the starting point was therefore six years, but, bearing in mind the other matters to which she had referred, the appropriate sentence would have been some seven and a half years' concurrent for each of the five offences and because of the plea of guilty she accordingly reduced it to a sentence of five years' imprisonment.
21. On behalf of the appellant the main point made is that the judge was wrong to place this case in the category of highest culpability. It is submitted that, in truth, this was a case of intermediate culpability as to which the Panel stated, as recorded in paragraph 23 of Cooksley by the Lord Chief Justice:

"An offence involving a momentary dangerous error of judgment or a short period of bad driving may be aggravated by a habitually unacceptable standard of driving on the part of the offender (factors (j) or (k)) by the death of more than one victim or serious injury to the others victims (factors (l) and (m)) or by the offender's irresponsible behaviour at the time of the offence (factors (m) to (p)). The presence of one or more of these features could indicate a sentence within the higher range, up to three years."

22. The Lord Chief Justice in the same paragraph then went on:

"Accordingly, our starting point is two to three years. We do, however, qualify the Panel's advice to this extent that we foresee circumstances, particularly where there is more than one of the factors present referred to above where five years could be appropriate if, for example, there is more than one victim. Unfortunately, because of the range of the variety of facts it is not possible to provide more precise guidelines."

23. It is important to remember that Cooksley, whilst providing valuable assistance to sentencers in determining where in the spectrum of sentencing a particular case falls, was, and remains, a guideline case. It is therefore of assistance to a sentencer but it is not prescriptive.
24. It may be that in one sense there is justification in the submission that this case could be looked at as a case of intermediate culpability with aggravating features, the aggravating features being, it seems to us, the matters identified by the sentencing judge in relation to the period over which the appellant remained of the view that he was applying the brake without appreciating that it was, in truth, the accelerator, but, perhaps most important, the multiple deaths and injuries which ensued.
25. As can be seen from the way in which the Lord Chief Justice approached the way in which one should look at cases in such circumstances, it seems to us that, even if this is to be placed in the intermediate category, bearing in mind the increase in sentences since the case of Cooksley, the judge's conclusion that seven and a half years was the appropriate figure to apply after trial cannot, in itself, be considered manifestly excessive. But it seems to us that, equally, the sentencing judge was entitled to decide that the case should more appropriately be placed, because of the factors to which we have referred, in the most serious category. It matters not. Once again, clearly if that is the right categorisation, seven and a half years cannot, in all the circumstances and for the reasons we have given, be considered a manifestly excessive sentence after trial. In those circumstances, whichever way one approaches the sentence which was imposed so carefully in this case by Dame Heather Steel, we cannot say that there is any justification for the conclusion that the sentence was manifestly excessive. Accordingly, we dismiss this appeal.