England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURT AT SWANSEA
His Honour Judge H. Davies Q.C.
T20110620

		Royal Courts of Justice Strand, London, WC2A 2LL
		16/04/2013

Lord Justice Leveson :

1. On 22 May 2012, in the Crown Court at Swansea before His Honour Judge Davies Q.C. and a jury, Darryl Howard Morris was convicted of dangerous driving. He was later sentenced to a community order involving 180 hours of unpaid work, disqualified from driving for a period of 12 months and ordered thereafter to undertake an extended driving test. He now appeals against conviction by leave of the single judge.
2. The facts fall within a very small compass. The appellant was a taxi driver and, at about 3.30 am on 12 March 2011, he accepted a fare consisting of four young men (including Martin Walters) who emerged from Aspers Casino in Swansea, having spent the evening together. They had been drinking and were quite noisy. They arranged to be taken to the Brynhyfryd area, it being intention of the four men that there would be more than one drop off point. One of them (Jamie Thompkins) said that he specifically told the appellant when they got into the taxi that there would be two destinations.
3. As instructed, the appellant drove to Eaton Road in Landore, Swansea and stopped. Three of the men alighted and started walking away at a fast speed (two were chasing each other, the third was trying to catch up). That left Jamie Thompkins in the taxi: he intended to pay the fare. Meanwhile, however, the appellant did not realise that he still had a passenger in the cab and to stop what he thought was an evasion of the fare, he drove his taxi onto the pavement and caused Martin Walters, at the front of the group, to fall to the ground and suffer a broken ankle: there was an issue about the way in which that injury was sustained.
4. After the incident, the police were called; they were unable to interview the four men (due to their state of intoxication) and only a very basic investigation was undertaken: there was no independent evidence of Martin Walter's position after the collision and the taxi had, in any event, been moved.
5. The case for the prosecution was that the appellant deliberately drove his taxi onto the pavement at speed, revving the engine, and pursued the pedestrians, driving into Mr Walters and causing him to fall under the taxi: this was dangerous driving and the appellant had acted unreasonably in all the circumstances and had used unreasonable force in any event, regardless of what had occurred. The defence case was that although he had not looked back into the taxi (a seven seater) to check that all four passengers had alighted and thus had not realised that one had remained, he believed that they had shared an intention of making off without payment of the fare. He drove the taxi onto the pavement to prevent them from making off and/or to assist in their lawful arrest (in the absence of a constable); he had done so at a slow speed to block the escape of his erstwhile passengers whereupon Mr Walters had fallen over the bonnet of the car and to the ground: that had caused his injuries. Those actions, it was contended, were reasonable.
6. The appellant also relied on his previous good character; he called evidence in support of his positive character traits and professional driving skills. During the course of the evidence, he spoke of 6-8 previous occasions when passengers had run off without paying the fare which had led to him running after them. He admitted, however, that on one previous occasion, in Llanelli, he had driven onto the pavement.
7. Before considering the issue of dangerous (or alternatively careless) driving, it was common ground that the jury had to consider the general defence contained within s. 3(1) of the Criminal Law Act 1967 which provides:

"A person may use such force as is reasonable in the circumstances in the prevention of crime, or in effecting or assisting in the lawful arrest of offenders or suspected offenders or of persons unlawfully at large."

8. An issue arose as to which limbs of this provision should be left to the jury. Miss Waters, for the appellant, argued that the jury should be directed to consider whether the appellant was seeking to prevent crime, prior to considering the alternative, namely whether he was assisting in the lawful arrest of offenders. The judge ruled that the only defence that could be left to the jury was the latter: the appellant could not have been preventing a crime under the first limb of s. 3(1) because the offence of making off without payment was made out (and completed) when Mr Walters and his friends alighted from the taxi.
9. Miss Waters challenges that ruling and also criticises the way in which the learned judge used the appellant's admission that he had previously driven on the pavement in order to modify the good character direction which he gave.

The Directions as to the Defence

10. In carefully prepared directions (copies of which were provided to the jury), amongst other directions, the judge dealt with the use of force in effecting the lawful arrest of a suspected offender in this way:

"6. The first issue for you to resolve, therefore, is whether the prosecution has proved, so that you are sure, that the defendant was arresting Martin Walters unlawfully when he used his taxi to stop him going where he wanted to go.

An arrest of Martin Walters by the defendant would have been lawful if and only if:

(a) either (1) Martin Walters was in the act of making off without payment or (2) if he was not doing so the defendant had reasonable grounds to suspect that he was doing so and

(b) it appeared to the defendant that it was not reasonably practicable for a constable to make the arrest instead of him and

(c) the defendant had reasonable grounds to believe that it was necessary to arrest Martin Walters to prevent him making off before a constable could assume responsibility for him.

8. If it was lawful for the defendant to arrest Martin Walters then he was entitled to use such force as was reasonable in effecting such an arrest.

9. If you are sure that it was not lawful for the defendant to arrest Martin Walters then it is not necessary for you to decide any question about whether the degree of force used was reasonable and you will proceed to decide whether the prosecution have proved an offence of dangerous or careless driving without further reference to the concept of the use of force to effect a lawful arrest.

10. If you think it was or may have been lawful for the defendant to arrest Martin Walters, the question whether the degree of force he used was reasonable in the circumstances is to be decided by reference to the circumstances as you find the defendant genuinely believed them to be, even if his belief was mistaken and even if it was an unreasonable one.

11. Reasonable force means proportionate force. The degree of force the defendant used would be reasonable if it was proportionate in the circumstances as the defendant believed them to be. So the degree of force the defendant used would not be reasonable if it was disproportionate in the circumstances as the defendant believed them to be.

12. Remember that a person using such force in order to effect the lawful arrest of a suspected offender may not be able to weigh up to a nicety the exact measure of any necessary action.

13. Remember too that if the defendant was using only such force as he believed was necessary to effect the lawful arrest of a suspected offender, that would be strong evidence that the force he used was reasonable in the circumstances.

14. If you think that it was or that it may have been lawful for the defendant to arrest Martin Walters then you will proceed to decide whether the prosecution have proved an offence of dangerous or careless driving in the light of the fact that a person effecting a lawful arrest may do so using such force as is reasonable in the circumstances as he believes them to be."

11. This direction accurately deals with the effect of the provisions of s. 24A of the Police and Criminal Evidence Act 1984 and s. 76 of the Criminal Justice and Immigration Act 2008 and, so far as it goes, is not contentious. The issue, however, is whether it goes far enough. In particular, assuming that Mr Walters had not in fact made off, or was not making off, without payment (and the appellant accepted that the fourth passenger remained in the vehicle and did not, in the event, contend that his passengers were guilty of that offence), it required the appellant to have reasonable grounds to suspect that they were.
12. The argument advanced by Miss Waters is that it should have been left to the jury to decide whether the appellant genuinely (however unreasonably) believed that his passengers were in the act of making off without payment, in which event, the jury should then have been directed to consider the degree of force used, again by reference to the appellant's genuine belief.
13. The reason for the judge's rejection of that approach is essentially to be gained from a consideration of Attwood [2011] RTR 173 which decided that dangerous driving to force another car to stop some time after an alleged accident could not be justified as preventing the crime of failing to stop after an accident since any offence of failing to stop was already by then complete. The parallel is not, of course, exact because the requirement to stop follows immediately on the accident; there is no room for a driver who knows that he or she has been involved in an accident to take time (and distance) before complying with the obligation.
14. Nearer to these facts, but to like effect, is Aziz (1993) Crim LR 708. Two passengers in a taxi asked to be taken some 13 miles; on arrival, they refused to pay the £15 fare asserting that it was only 4 miles for which they would pay £4. The taxi driver's controller confirmed the fare in the hearing of the passengers and suggested that the driver take them to the police station if they would not pay. The passengers then falsely claimed to be police officers so the driver said that he would take them back to their hotel but, en route, decided to go to the police station. One passenger tore the radio lead from its socket and tried to engage reverse gear; the driver pulled into a petrol filling station and asked the attendant to call the police. The same passenger released the central locking and they both ran away. The taxi driver drove after them and caught the other passenger after half a mile and told him to get back into the taxi to await the police, which he did. The passenger was charged with making off without payment.
15. Making off without payment is defined by s. 3 of the Theft Act 1978 and is committed by a person "knowing that payment on the spot for …. service done … dishonestly makes off without having paid as required or expected and with intent to avoid payment". "Payment on the spot" includes "payment at the time … in respect of which service has been provided". It was contended that making off involved a departure from the spot where payment was required, namely the end of the journey, so that the jury should have been directed to consider whether the requirement for payment had ceased because the taxi driver had announced his intention of taking the passengers back to the hotel where the journey had started.
16. This court rejected that argument, concluding that the words "dishonestly makes off without payment" were not qualified in any way; the words "makes off" involved a departure without paying from the place where payment would normally be made. In the case of a taxi, payment might be made while sitting in the taxi or standing by the window. In this case, payment was requested whilst the fares were still in the cab when it became apparent that the fare was disputed. The fact that the taxi driver drove off to the police station, or somewhere else, locking the door, did not mean that when the defendant ran off he could not be making off without having paid, dishonestly intending to avoid payment. It was for the jury to say on the evidence whether the offence was made out. It was the time at which he made off which was critical at which he had to have formed the intention to avoid payment.
17. To apply the words "in the case of a taxi, payment might be made while sitting in the taxi or standing by the window" too literally would be to misunderstand the legislation. Thus, if a passenger were to explain (honestly) to the taxi driver that he had to enter his house in order to obtain the fare, the moment for payment would be deferred for him to do so. A decision not to return to the taxi would mean that, from that moment, the passenger is making off without payment. The taxi driver would never be in a position to know precisely when the passenger decided not to pay and, in our judgment, must be able to follow the passenger to challenge him in an attempt to prevent the commission of the offence.
18. The same principle can be applied in relation to a restaurant bill. If a diner approached the reception, credit card in hand, was distracted and then walked away, the owner of the restaurant would not know whether (or, if so, when) a decision had been made dishonestly to make off without payment. It would be reasonable for him to follow the diner and stop him on the basis that he was seeking to prevent the commission of the offence of making off or (alternatively) reminding the diner that he had forgotten to pay. He should not thereby risk a complaint of assault. The fact is that a restaurant owner (or a taxi driver) should not be required to make an accurate assumption of the intention of the person who has not, in fact, paid the bill or fare: he needs to be able to find out all the while as the person involved is 'making off'.
19. The use of reasonable force in self defence or in defence of another person is lawful. The essence of these defences is the honestly held belief of the defendant as to the facts (but not the law: see Jones [2007] AC 137 per Lord Bingham at paragraph 24 and Lord Hoffmann at paragraph 72). In relation to use of force in the prevention of crime (such as to prevent an unlawful attack on another), the defence is afforded by s. 3 of the Criminal Law Act 1967. If honest belief affords a defence under s. 3 in those circumstances, it must equally do so a person who claims to have used reasonable force to prevent the commission of a crime other than a crime of violence against another.
20. Accordingly, if, as the appellant contended in this case, he honestly believed that the men were making off without payment, he was entitled to use reasonable force in order to prevent the commission of that offence; the jury would thus be required to consider whether driving onto the pavement (howsoever that occurred) was the reasonable exercise of the use of force. The difficulty with the way in which the judge put the case was that his direction required the jury to consider whether the appellant had reasonable grounds to believe that it was necessary to arrest Mr Walters to prevent him making off before a constable could assume responsibility for him. If they concluded that he did not have reasonable grounds (perhaps because he should have realised the fourth man was still in the cab), they never get to the question of the use of reasonable force.
21. The learned judge did not deal with the possibility that the jury could conclude that the appellant was acting to prevent crime because he concluded, as a matter of law, that once the passengers had moved away from the window of the taxi (ie where they should have paid the fare), they had 'made off'. He thereby failed to ensure that the jury focussed on what the appellant honestly (i.e. genuinely) believed were the facts before using their conclusions as to that belief to go on to decide whether he may have had reasonable grounds for suspecting that an offence was being committed (or had been committed such that he had a reasonable belief that an arrest was necessary) and crucially, whether the force used may have been reasonable. This approach is consistent with Faraj [2007] EWCA Crim 1033.
22. In the circumstances, we accept the submission that there was an error of law in the direction of law that the jury were given. Although we have real reservations about the question whether a jury properly directed could ever have concluded that the use of force in this case was or may have been reasonable and, thus, that the offence of dangerous driving was not made out, in the light of the failure to focus on the honest belief of the appellant, we conclude that the conviction is unsafe.
23. In the circumstances, we do not deal with the second ground of appeal concerning character, save only to observe that the appellant relied on his good driving skills and (albeit arguably not in the context of a Lucas direction) cannot complain if the judge refers adversely to his admission that there had been a previous occasion when he had driven onto the pavement to prevent a passenger from making off.
24. In the circumstances, this conviction is quashed. An application was made for a retrial on the grounds that taxi drivers have a particular responsibility in relation to their driving and the safety of the public is paramount. Having said that, however, the appellant has completed the unpaid work ordered and almost completed the period of disqualification. Although the quashing of his conviction will mean that he is entitled to the return of his driving licence with no question of any re-test, rather than order a re-trial, it seems to us that the better course is not to do so but to refer the facts of the case to the relevant licensing authority.