England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2A 2LL
		Tuesday, 17th November 2009

1. SIR ANTHONY MAY: Gino Mari is now aged 24.
2. On 4th December 2008 he appeared in the Crown Court at Harrow before His Honour Judge Moss and a jury, when he was convicted of causing death by dangerous driving contrary to section 1 of the Road Traffic Act 1988. He thereupon pleaded guilty to failing to stop after an incident and driving without a licence and without insurance. The judge gave no separate penalty for those offences. His licence was duly endorsed for each offence and on 10th January 2009 he was sentenced for the death by dangerous driving offence to 3 years' imprisonment. He was disqualified from driving for 5 years and until he passed an appropriate driving test. He was also, but not relevant to this appeal, sentenced for breach of a suspended sentence, which had arisen from an offence of burglary in the St Albans Crown Court in February 2007, to which he was sentenced to 4 months' imprisonment to run concurrently with the dangerous driving term of imprisonment. He appeals to this court against conviction by leave of the single judge on one of the two grounds that were advanced in his application.
3. Just after midnight on 15th July 2007 there was a bad road traffic accident on the Squires Lane junction with Avondale Road, in North London. The night was clear and the conditions for driving were good. Squires Lane and associated side roads are subject to a 30-mile per hour speed limit. The appellant was driving a Vauxhall Omega car in Squires Lane. A Mr Wightman was driving a Vauxhall Carlton car in Avondale Road. Mr Wightman came to the T-junction between Avondale Lane and Squires Lane and attempted to turn right into Squires Lane. As he did so his car was hit by the appellant's car driving at speed, and it resulted in a fatal collision. Mr Wightman was not wearing a seat belt. He was thrown from the car. He hit his head on the pavement and of those injuries thus caused he subsequently died.
4. The appellant did not stay at the scene of the accident, as he should have in law done. He left immediately but he handed himself in to the police a few days later, when he found that Mr Wightman had died.
5. Police who arrived at the scene of this accident took photographs. They are clear photographs and they are before the court. They show Squires Lane as a well lit single carriageway street, with cars parked on either side.
6. Squires Lane runs in a generally westerly direction and Avondale Road joins it at right angles from the south. Towards this junction, as you approach it in Squires Lane from the east travelling westwards, there is an area of cross hatching in the centre of Squires Lane, leading to a small traffic island.
7. A traffic reconstruction expert who gave a report and drew a plan of the accident showed that the visibility to the driver turning right from Avondale Road into Squires Lane was restricted by parked vehicles.
8. The point of impact between the two Vauxhall cars was approximately between the offside front of the appellant's Omega car, with the offside towards the rear of Mr Wightman's Carlton. The impact was very considerable and the damage severe. The Carlton had rotated several times after the impact before coming to rest on the northern side of Squires Lane, impacting with some force against a lamppost.
9. There was a number of witnesses who gave evidence at this trial, although nobody actually saw the collision itself. One or more of these witness heard it. Mr Lobb was driving in Squires Lane, when he saw what must have been Mr Wightman's car in Avondale Road. The car was not indicating although Mr Lobb believed that it was intending to turn right. It was edging forward but Mr Lobb himself continued as Mr Wightman was not far enough into Squires Lane to require him to stop. He then saw the appellant's car coming in the opposite direction at speed. He did not estimate a speed but knew that it was fast. He then heard a loud crash.
10. Fiona Austin had seen the appellant's car a few moments earlier than the collision when he failed to give way to her car at a mini roundabout coming into Squires Lane. She estimated that the appellant's car was doing in excess of 50 miles per hour and she had to brake hard to avoid a collision. She did not see the collision or hear it, but noticed glass on the road and she noticed the appellant leaving his car. Her passenger, Claire Rooney, recalled Fiona Austin having to brake hard to avoid a silver car colliding with them at the mini roundabout where they had right of way.
11. The appellant went to the police station on 25th July 2007 and was arrested. He was interviewed, during the course of which he admitted driving the vehicle at a speed of between 60 and 65 miles per hour. He had no licence or insurance and he had, during the preceding evening or night had two pints of lager and a glass of red wine. Mr Wightman's blood was analysed and he was found to be marginally over the legal limit for driving of 80 micrograms in 100 milligrams of blood.
12. As we say, the appellant admitted in his police interview that he had been driving at 60 - 65 miles per hour in a 30-mile per hour area. He said that he was on his way home. His account of the accident during his interview was as follows:

"I was coming down the road gone past the roundabout and coming up and I see the car cos by there was my car and the lights were on and I can see his car lights but I was still coming down but he has pulled out a bit. I thought I slow down but he didn't pull out so I carried on going and when I got a bit closer he pulled out. By then I slammed my brakes and it's just gone bang."

13. As to the amount of alcohol which the appellant had consumed, as we say he had told the police that he had consumed 2 pints of lager and a glass of wine before the collision.
14. The prosecution, after an adjournment, obtained expert evidence which concluded that his blood alcohol level would not have exceeded the prescribed limit at the time of the collision. In those circumstances, submissions were made to the court by Mr Earnshaw, on behalf of the appellant, that the evidence contained in his police interview of what he had consumed by way of alcohol should be excluded as being prejudicial. The judge rejected that submission, as we shall describe in a moment, and as a result of that there was included in written admissions, signed by counsel for each party, an admission that, on the account given by the appellant in his interview with the police about the quantity of alcohol he had drunk before the collision, his blood alcohol level would have been below the legal limit. Accordingly the evidence deriving from the appellant himself as to the amount of alcohol he had consumed went as evidence before the jury as part of his interview, and there was the admitted fact that his alcohol level would have been below the legal limit.
15. As we say, a submission was made on his behalf that evidence of his alcohol consumption should have been excluded. The judge rejected the submission. It is submitted on this appeal that he was wrong to do so. Later, a submission was made at the close of the case for the Crown that there was no proper case to go to the jury. The judge rejected this submission and it was a ground of appeal which the appellant advanced but which the single judge did not grant leave to pursue, that the judge was wrong to do so. The appellant did not give evidence.
16. The single issue for the jury was whether they were sure that the appellant's driving was dangerous. Beyond comment on the judge's direction as to the appellant's drinking, which it is of course contended should not have been in evidence, no criticism was made of the summing-up nor of the judge's directions of law.
17. The appellant's main forensic case was and is that speed alone cannot establish a case of dangerous driving. The judge accepted that and so directed the jury. But he said that, when speeding is part of an overall scenario, that would entitle the jury to conclude that it was part of the behaviour of the defendant that was dangerous, then of course they might take it into account. The judge pointed to the evidence of the three witnesses whose attention was drawn to the car by its speed. The appellant, driving at 60 miles per hour or more had failed to give way to Fiona Austin at the mini roundabout. The jury should take account of the nature of the road, a quiet suburban road with a 30-mile per hour speed limit in a residential area, with cars parked on each side of it, obscuring or partly obscuring the view of a driver from the side road. The question for the jury was whether the driving was not just fast but dangerously so.
18. The judge's direction to the jury about their approach to the appellant not having given evidence was unexceptionable. He suggested that it was questionable whether the jury would get much help from the fact that the appellant had left the scene of the accident without waiting for the police to arrive.
19. The application to exclude the evidence of the appellant's driving, including the fact that his blood alcohol was below the legal limit points to the decision of this court in R v Woodward (1995) 2 Cr App R 388, where at the outset of the trial for causing death by dangerous driving, leave had been given to the prosecution to adduce the evidence of the appellant's alcohol consumption before the accident. Neither of the two friends who were to give this evidence gave evidence in the event of the amount of drink that the appellant had consumed and the evidence given went no further than showing that the appellant had been seen drinking with a glass in his hand. The court held, allowing Woodward's appeal, that firstly, on a prosecution of causing death by dangerous driving contrary to section 1 of the Road Traffic Act 1988 the fact that the driver was adversely effected by alcohol was a relevant circumstance in determining whether he was driving dangerously. Second, in the case before the court, although the evidence had been properly admitted at the outset, the facts at the trial went no further than to show that the appellant had a glass in his hand had been drinking and the judge should have told the jury to disregard the appellant's drinking. Accordingly there was a material misdirection.
20. In the course of giving the judgment of the court, and having explained that the evidence which it was anticipated would be given had not in fact been given, the Lord Chief Justice, Lord Taylor said this on page 397:

"In our view, Mr Francis is correct in saying that when Mr Kingland failed to come up to proof there was no evidence as to drink which was relevant to the jury's task. Mere consumption of alcohol in itself was insufficient. The jury would had to be satisfied that the appellant had consumed such a quantity of alcohol as might adversely affect a driver and of that there simply was no evidence."

21. Mr Earnshaw submits in the present case that the judge was wrong not to exclude the appellant's evidence given in interview as to what he had been drinking. His submission rests on the proposition that evidence had shown and it became an admitted fact that the appellant's blood alcohol level was not at the time of the collision above the legal limit. As we understand his submission, Mr Earnshaw has to go this far. He submits that if in a case of death by dangerous driving there is evidence of the driver having consumed alcohol, but it is shown that his blood alcohol was below the legal limit, the evidence is inadmissible, without evidence that the alcohol would have been likely to affect his driving adversely. He tended, did Mr Earnshaw, to go further than that and to submit that evidence of any consumption of alcohol, which does not reach the legal limit is ipso facto inadmissible and he submits that admitting evidence of this kind, in a case of causing death by dangerous driving, would be unfairly prejudicial, as he submits it was in the present case.
22. We do not accept this submission. It is common knowledge that drinking alcohol may affect people's reactions and ability to drive carefully. The so-called legal limit is a limit which determines whether a particular statutory offence is committed. It does not determine whether alcohol which has been consumed did or could affect a person's ability to drive carefully. Here, as a clear distinction from the case of Woodward, there was an admission in interview that the appellant had consumed a particular and significant quantity of alcohol, that is to say 2 pints of lager and a glass of wine.
23. In those circumstances the decision in our judgment of the judge to admit this evidence was entirely correct and is not open to challenge in this court. What the judge said when he admitted the evidence was as follows:

"My ruling is that the jury can hear about the alcohol because it seems to offend common sense that, in this particular case, they are unaware of the totality of any alcohol consumption by the defendant. We all know; we all think we know; we all hope we know what alcohol does when you drive after consuming it. The jury will not be allowed to speculate because they will be told that he was probably under the legal limit. But the legal limit is one thing: the capacity and reaction when you drive after consuming is another ...

If the jury don't know that the defendant had been drinking alcohol, then it seems to me that we are shielding them from important information which, in the present day and age, given the news coverage of all sorts of similar incidents, they are perfectly well able to assess."

As we say, the distinction between this case and Woodward is clear. In Woodward there was no evidence as to the amount of alcohol which the appellant in that case had consumed.

24. In this case there was such evidence it was clear. Whereas there was no expert evidence to attempt to determine or to measure the effect that that alcohol may have had on the appellant's driving, it was a precise factual piece of evidence which the jury were properly able to assess as part of the evidence as a whole, in determining whether the appellant's driving was dangerous or not.
25. When asked how he would apply his submission to various possible facts, Mr Earnshaw got into understandable trouble. It would be recalled that his submission tended to go so far as to say that any consumption of alcohol which does not reach the legal limit is ipso facto inadmissible. What however my Lord asked: if the evidence was that the blood alcohol level was not 80 but 79 micrograms per 100 milligrams of blood, or by contrast if it was 81 rather than 80, would the 79 be inadmissible but the 81 admissible? What if somebody said that they had consumed a very small quantity of wine several hours before the accident may have occurred?
26. There was no clear answer that Mr Earnshaw gave to those questions. Of course, the reason was that the 80 limit for driving is not, as we say, there to determine absolutely whether the alcohol may or may not have affected a person's ability to drive. It is there for a specific statutory purpose of a different nature. Accordingly, in our judgment, this evidence was properly admitted and the appeal fails. We should say in passing that the appellant's second ground of appeal, that is to say that the judge should have acceded to a submission of no case at the close of the prosecution case but did not do so was in effect withdrawn by Mr Earnshaw because he conceded two things. Firstly, that if the evidence of the alcohol was correctly admitted, then the basis for the submission of no case really fell away. Secondly, because this was and plainly was not a case where the case for the prosecution depended and depended only on the speed of the appellant's driving. The judge correctly directed the jury that speed alone was not sufficient to found a prosecution for death by dangerous driving, but he went on to point out that this was a case where it was not evidence of speed alone upon which the prosecution relied. They relied, as we have indicated, on the general circumstances including the nature of the road, the fact that it was a single carriageway in a residential area with cars parked on either side of the road, obscuring or partly obscuring the vision of people entering from the side road and that, in those circumstances, it was plainly a case which was fit to go to the jury on the footing that the evidence adduced by the prosecution was capable of supporting a case of death by dangerous driving. In our judgment, this conviction is safe and the appeal is dismissed.