England and Wales Court of Appeal (Criminal Division) Decisions

IN THE HIGH COURT OF JUSTICE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURT AT WINCHESTER
MR RECORDER N. ATKINSON Q.C.
T20097141

		Royal Courts of Justice Strand, London, WC2A 2LL
		06/07/2010

Lord Justice Hooper :

1. At the conclusion of the hearing we announced our decision that the appeal against conviction succeeded and that we would not order a retrial. The application for leave to refer the sentence passed on the appellant then became academic.
2. On 5^th day of December Christopher Love, a young man with a learner's licence, was driving his car, a Renault Clio, around a bend on the A30 when he lost control killing himself and a passenger and very seriously injuring the driver of another car. In the front passenger seat of the car was Paul Martin ("Martin") who, as a qualified driver, had earlier, albeit reluctantly, accepted a request by Christopher Love to accompany him in the car. Martin, now 34 years old, was not a professional instructor and had no previous convictions.
3. Martin was convicted (Mr Recorder N Atkinson QC and a jury) after a trial of three offences committed on 5th December 2008. Count 2 alleged that he had aided, abetted, counselled and procured Christopher Love to cause the death of Christopher Love by driving a Renault Clio dangerously on the A30 near East Stour, Dorset. Count 2 alleged that he had aided and abetted etc Christopher Love to cause the death of Steven Upshall by driving the same car dangerously on the same road. Count 3 alleged that he had aided and abetted etc Christopher Love to inflict grievous bodily harm on Christopher Oliver, contrary to section 20 of the Offences against the Person Act 1861. A co-defendant in another car was charged with causing the deaths of Christopher Love and Steven Upshall by driving another car, a Citroen Saxo, dangerously on the same stretch of road and with inflicting grievous bodily harm on Christopher Oliver. The case against the co-defendant was that he and Love were racing, in other words driving in a competitive manner and that, as a principal, the co-defendant had caused the deaths and the injuries. The jury disagreed and the co-defendant faces a retrial in the near future. No doubt the judge conducting the retrial will want to consider those charges with care. We heard no argument about them.
4. The procedural history of this case is very unusual.
5. The Attorney General applied for leave to refer the sentence of 18 months imprisonment passed on Martin as unduly lenient. Whilst preparing the reference Mr Edis QC, to whom we are very grateful, realised that count 2 disclosed no offence known to law. The offence of causing death by dangerous driving requires the defendant to have caused the death of another. Thus there was, in this respect, no offence committed by the principal which Martin could aid and abet. Mr Edis invited Mr Tabiner who appeared for Martin to make an application for leave to appeal the conviction on count 1 out of time. This Mr Tabiner did.
6. Both the Court, on pre-reading the reference, and Mr Edis became concerned about how the other two counts had been left to the jury. Mr Edis wanted to know how the case had been put in order to be able to formulate the reference. The Court was also concerned that, if no-one involved in the case had realised that count 2 charged no offence known to law, that other things might also have gone wrong.
7. The contents of the summing-up when it arrived shortly before the hearing unfortunately did not put those preliminary concerns to rest.
8. It was important to resolve all issues as soon as possible. Martin was due to be released from prison on electronic curfew in the near future. The retrial was likewise due to start in the near future.
9. At the start of the proceedings we heard from Mr Edis shortly on the issue of the reference and then adjourned the application for a reference whilst we heard the application for leave to appeal count 1 and any other application Mr Tabiner might make orally (he had by then put nothing in writing about the other two counts). Mr Tabiner then sought leave to appeal counts 1 and 3 on the grounds of misdirection. That application was granted, together with the necessary extension of time.
10. We start by describing the fatal accident. It took place on a left hand bend on a hill. The speed limit was 60 mph. The Clio driven by Christopher Love was following the Saxo driven by the co-defendant.
11. About 150 yards before the scene of the accident the road was straight and five witnesses, who had just left a public house, heard the cars approach and were, they said, so frightened by the noise which they were making that they walked back away from the road until they had passed. They described the vehicles when they came into view as "like a rally car, going hell for leather" and said that there was only a car length or two between them. They each described the speed of the vehicles as being very high. The Saxo was ahead of the Clio and, according to one witness, the Clio was catching up the Saxo. These witnesses were all experienced drivers. The Saxo had had its exhaust modified and the Clio its air filter removed which all experts agreed would make it sound louder than normal.
12. There was much evidence about the speed of the Clio at the moment immediately preceding the accident. The experts agreed that maximum speed at which the corner could be taken safely and on the correct side of the road (and there was no evidence that the Clio was not on the correct side) was between 56 and 62 mph. They were able to conclude from what happened to the car at the time of the accident that if the Clio was following the corner on the correct side of the road, then it was not exceeding a safe speed to take the corner. A passenger in the Saxo noted that the speed of the Saxo on the bend was 50 mph (he gave evidence of much greater speeds earlier in the journey that evening). The Saxo driver and passengers did not know that the accident had taken place and to that extent must have been some distance ahead of the Clio on the bend. Mr Tabiner submitted that the jury could not have been sure that the speed of the Clio was in excess of 50 mph. Mr Hiddleston argued that although the passenger in the Clio may have accurately described the speed of the Saxo, the Clio may have been going faster to catch it up. Mr Hiddleston accepted that the jury could not have been sure that the speed of the Clio was in excess of 60 mph. Unfortunately the Recorder did not bring together all the evidence about speed at and very shortly before the accident as he should have done to the extent to which excess speed was being said to form part of the dangerous driving.
13. There was no doubt that the front offside tyre of the Clio was over-inflated by 47% (possibly we were told by a confusion at some time before that evening between imperial and metric measuring of tyre pressure). Admission 2 was in these words:

Over-inflation of the front off-side tyre by 47% combined with under inflation of the rear off-side tyre will cause over-steer.

14. It was not the prosecution's case that Martin (nor indeed Christopher Love) was or could reasonably have been aware of the over-inflation.
15. It was the defence case that the over inflation had caused the Clio to take the corner more tightly than Christopher Love was intending and put the Clio at risk of hitting the verge. His error was to correct the line of the Clio by over-steering to the right. In doing that he lost control of the car and went on to the opposite side of the road. There the car "took off" and collided head on with an oncoming vehicle. This vehicle was driven by Christopher Oliver. Both Christopher Love and Steven Upshall in the Clio were killed.
16. Mr Hiddleston accepted that the jury could not properly have been sure that the over and under-inflation did not cause Christopher Love to steer to the right to avoid the verge.
17. Mr Hiddleston submitted to us that Christopher Love's driving was dangerous because (so the jury were entitled to find) he was trying to catch up the vehicle in front and, albeit driving at less than the speed limit, this caused him to over steer. Mr Hiddleston accepted that the same jury that convicted Martin could not be sure that Howell was racing.
18. The Recorder did not analyse, as he should have done, what the jury had to be sure about in order to reach the conclusion that Christopher Love was driving dangerously. That has caused us considerable difficulty in resolving the issues in the appeal.
19. It was the prosecution's case that the appellant's guilt depended upon proving that, over the last 150-200 yards, the driving of Christopher Love was such that the appellant should have intervened to stop Christopher Love from driving. Whilst it may be that the prosecution could have put the case that the earlier bad driving of Christopher Love (which involved amongst other things high speeds and stupid manoeuvres) was such that the jury could be sure that appellant foresaw that Christopher Love was likely to drive dangerously during the journey, that was not how the prosecution put their case. We stress the words "may be" because we heard no argument on the point.
20. The appellant's case both in interview and in evidence was that although he had warned Christopher Love earlier about his driving, it had not occurred to him that the driving just preceding the fatal accident was such as to call for any warning.
21. We turn to the directions given to the jury. Notwithstanding that this was a complex case on both the facts and the law, there was no discussion of the ingredients of the offences of aiding and abetting the dangerous driving and the section 20 offence. There should have been and there probably should have been written directions. Indeed if there had been such a discussion, one hopes that it would have been realised by someone that count 1 disclosed no offence known to law.
22. The Recorder reminded the jury that they were concerned with the driving on the bend:

There is evidence you have heard earlier in the hours preceding the fatal crash, clearly evidence of driving, of varying qualities which you may draw conclusions as to the quality and whether those different incidents amounted to dangerous driving, but the crucial driv[ing] you are concerned with is the driving at the time of the crash on that hill. It is relevant that you heard evidence about driving earlier, but it is the evidence at the time of the crash that you are concerned with, whether that was dangerous driving at that time.

23. He went on to say a few sentences later:

But of course, we are one removed from the driver, because we do not have Mr Love in the dock, so we then have to consider whether or not on the evidence you have heard, you can be satisfied that there was dangerous driving and that it was a cause of the death. Although the whole issue of how the car handled and how it came about that a crash occurred is something that you have heard much evidence about and will want to consider.

24. The Recorder then proceeded to deal with Count 3, the section 20 offence.

Mr Oliver, the driver of the Honda survived this crash with very severe injuries. The indictment contains two counts that relate to him [the other count concerned the co-defendant] and those are the ones that are referred to as, under legislation, the Offences Against the Person Act in 1861, creating an offence which is concerned with a person unlawfully, maliciously, inflicting grievous bodily harm upon another. That's how they commit that offence. Now, I mention 1861, because it is rather archaic English. What it means is really serious harm and the prosecution have suggested to you there would not be any issue and indeed, neither have defence counsel suggested that Mr Oliver suffered anything other than really serious bodily harm. What you are concerned with again, with him, is the causation. How it came about and the role that either of these Defendants had in that happening. And it is not suggested that they intended to injure him, but were they reckless in causing him really serious harm? Was, as a result of dangerous driving and the way the vehicles were, one or other of these Defendants were involved in the driving that evening, was it and could it be foreseen that harm could be done and yet they went on and took the risk to other road users?

It would be sufficient that they recognise some physical harm, not necessarily the extent of it. So the position is that you would have to be satisfied that some injury might result from the deliberate acts of the Defendants and yet they ignored that possibility and the prosecution does not have to prove that the Defendant in those circumstances anticipated the extent or the gravity of the injury that would result, but merely they took the risk recklessly, that injury could result.

25. Mr Hiddleston did not seek to argue that this was a sufficient direction. It mixes objective and subjective foresight and foresight by a driver that harm to another could be done is insufficient without at least an identification of those ingredients of the dangerous driving about which the jury could properly be sure.
26. The Recorder continued:

Now another ingredient in these offences that apply on three of the counts, of the six counts, is what is referred to as aiding and abetting and by coincidence the legislation that created that offence of aiding and abetting somebody to commit an offence, was also enacted in 1861. A person aids and abets, counsels or procures the commission of an offence, will be liable to be tried for that offence, in essence. Aiding and abetting describes action of a person who is present at the time of the commission of an offence and takes some part in it, participates. This concerns the First Defendant [Martin] on this indictment. Now we are not concerned, you have heard evidence about it, because it is relevant, for example you have heard about the, his participation or and his acting as a qualified driver sitting in the front passenger seat when the cars are going to East Noyle, approaching 100 miles an hour or whatever it was. What you are concerned with once again, is what happened at the scene of the deaths and injury. The First Defendant was a qualified, accompanying driver. You have to be satisfied that the car was being driven dangerously by Mr Love and the Defendant, the First Defendant should have stopped the driver doing so.

If he did not do so, then he would be aiding Mr Love in that dangerous, aiding and abetting him in that dangerous driving. Aiding and abetting, as I say, at the time of the crash. ...

27. In this passage the Recorder tells the jury that they were concerned with what happened at the scene of the accident, described by him in another passage as "those few fatal seconds", that they had to be sure that Christopher Love was driving dangerously, that Martin "should have stopped the driver doing so" and that if he did not he would be aiding and abetting.
28. Mr Hiddleston did not argue that these directions were sufficient, nor the directions which the Recorder gave the next day:

I remind you, members of the jury, I think for the last time I mention this, that the question, the issue of the dangerous driving relates to the time of the accident itself and you having to be sure about that. That it was a cause of the collision and in relation, that relates to the death of those, the counts that deal with death by dangerous driving and in relation to the injuries. Of course, in relation to this Defendant, you are concerned with whether or not he foresaw the loss of control and you have to be sure that having foreseen that, a deliberate act and yet he ignored it, and the collision occurs and the prosecution then do not have to show you that the Defendant anticipated the extent or gravity of the injuries to the man who was injured, but merely that injury could result from his conduct, but as another element in that particular offence you have to be sure of, that the loss of control was effectively foreseen by the supervising driver.

29. Counsel agreed that this was an improvement on what had been said the day before but still it was not sufficient. The Recorder is here asking the jury to be sure that Martin foresaw the loss of control.
30. Prior to the appeal the Court drafted some possible directions for a case like this one not depending upon any defect in the car but on the manner of driving, when:

i) it is not the prosecution's case that the qualified supervising driver D anticipated the likelihood that the driver P would drive dangerously in advance of him driving dangerously; and

ii) D's liability is based on his failure to act when under a duty by reason of his position as the qualified driver to do so (rather than active encouragement).

31. They were sent to counsel and, subject to one matter, they did not attract disapproval.
32. On a charge of aiding and abetting causing death by dangerous driving in these circumstances:

You must be sure that P committed the offence of causing death by dangerous driving and-

(i) D knew that the driver, P, was driving in a manner which D knew fell far below the standard of the a competent and careful driver;

(ii) D, knowing that he had an opportunity to stop P from driving in that manner, deliberately did not take that opportunity;

(iii) by not taking that opportunity D intended to assist or encourage P to drive in this manner and D did in fact by his presence and failure to intervene encourage P to drive dangerously;

(iv) D foresaw that someone might be killed by P driving in this manner.

33. Mr Edis queried (iv). Not being relevant to the outcome of this appeal, we did not hear any argument about (iv). If the required mens rea of the aider and abettor involves some knowledge or foresight of the death, then (iv) might be sufficient. On proof of (i), (ii) and (iii) D would be guilty of aiding and abetting dangerous driving and applying Powell and English [1999] AC 1 he could (arguably) be guilty of aiding and abetting causing death by dangerous driving if he has this foresight. We leave this matter to be decided on another day with the help hopefully of academic comment and those responsible in the Judicial Studies Board for drafting suggested judicial directions. We make it clear that we are not deciding that a direction along the lines of that included in (iv) is required.
34. In drafting these possible directions we have had in mind the general principles of aiding and abetting, the decision in Webster [2006] EWCA Crimn415 and an unreported case cited in Archbold 2010 para. 32.19.
35. We also drafted what could be an appropriate direction where a qualified driver in the circumstances we have outlined is charged with aiding and abetting the commission of a section 20 offence by the driver:

You must be sure that P committed the section 20 offence and

(i) D knew that P was driving in a manner likely to cause some harm to another;

(ii) D, knowing that he had an opportunity to stop P from driving in that manner, deliberately did not take that opportunity; and

(iii) by not taking that opportunity D intended to assist or encourage P to drive in this manner and D did in fact by his presence and failure to intervene encourage P to drive in this manner.

36. Whether or not our suggested directions are correct, there can be no doubt, and this was not disputed, that the directions given by the Recorder were, with respect, woefully inadequate. Mr Hiddleston sought to argue that a jury, approaching the case from the perspective of what had occurred earlier (and not in the way that the prosecution had in fact put its case), would have inevitably found the appellant guilty. We do not accept that this court should now examine the safety of the conviction from the perspective of what had happened earlier and, in any event, even if we did approach the case in this way, we cannot possibly say that the jury's verdict would necessarily have been the same.
37. We give brief reasons for not ordering a retrial. Assuming that a jury could be sure (as this jury must have been) that Christopher Love was driving dangerously and had caused the death of Steven Upshall and the severe injury to Christopher Oliver, we have grave doubts whether a jury directed could properly convict Martin as an aider and abettor in the way in which the prosecution put its case. If Christopher Love was driving within the speed limit on the bend (and the jury could not be sure that he was not) and given that Christopher Love may have steered to the right because of the over and under-inflation which was not known to the appellant (and the jury could not be sure that he steered to the right for some other reason), then it is very difficult to see how a jury could be sure that all the ingredients of aiding and abetting had been proved.