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
		8th October 2014

Wednesday 8^th October 2014

LORD JUSTICE PITCHFORD:

1. This is an appeal against conviction and sentence brought with the leave of the single judge.
2. On 24^th April 2014, following a trial at Swindon Crown Court before His Honour Judge Mousley QC and a jury, the appellant was convicted of causing the death of Thomas Ford by careless driving, contrary to section 2B of the Road Traffic Act 1988. On 15^th May he was sentenced to a community order with an unpaid work requirement of 300 hours to be completed within twelve months and a curfew requirement for three months. He was disqualified from driving for a period of 18 months.
3. The grounds of appeal against conviction are first that the judge should have acceded to a submission of no case to answer at the close of the prosecution case, and second that the judge misdirected the jury in law and failed adequately to remind them what was the defence case.
4. The fatal accident occurred at about 5.07pm on Monday 26^th November 2012 in Valley Road, Corsham, Wiltshire, close to its junction with Spackman Lane. The evening was turning dark and the street lamps were illuminated. Visibility was good. There had been some rain and the road surface was damp. That did not, however, affect the handling of any vehicle. The road was well-known to the appellant and to the two principal lay witnesses who gave evidence at trial. It was the subject of a 30mph speed restriction.
5. We shall describe the circumstances of the accident adopting the appellant's direction of travel. He was returning a Class 2 17 ton Seddon Atkinson twin-axle flat-bed lorry southwards along Valley Road to his employer's depot in Leafield Way, Corsham. The lorry was empty because the appellant had made his last delivery about an hour or so before. He approached the scene of the accident at about 38mph. In the distance, on the appellant's off-side of the road, was the junction with Spackman Lane.
6. Thomas Ford was an 89 year old retired gentleman in good health for his age. He was active, but he used a walking stick from time to time. He was somewhat deaf and wore hearing aids. Mr Ford was walking home. On this evening he had with him his walking stick. When he came to the mouth of Spackman Lane he stopped at the white lines dividing it from Valley Road. He then started to cross.
7. An issue in the trial was where Mr Ford was when the appellant first noticed him. The appellant did not give evidence at his trial, but he gave full replies to questions asked of him in interview.
8. At the scene of the accident the appellant said: "I was coming along this road. There was a man started crossing. As I started braking, the lorry skidded. He carried on walking as I hit him on his left side…"
9. At page 2 of his interview under caution, the appellant said:

"Well, I was going down Valley Road and the traffic was busy because it was five o'clock onwards, and the old man was crossing the road and I could see he was crossing. … he was an old man and he nearly … got across. He scurried along the road. He couldn't run because he was an 89 year old – I later found that out – and he scurried along the road and he was about 2ft off the other side of the road and I hit him …"

At page 17 of the interview record, in which Police Constable Fry asked the questions, appeared the following passage:

"Q. And thinking about the view ahead of you as you're looking towards Spackman Lane, was it a good view of the road ahead that you had or was it obstructed in any way?

A. No, there was a good view.

Q. And earlier on you mentioned about the pedestrian, can you try and remember at what point you first became aware of this pedestrian?

A. He was on the other side of the road crossing, going across the other side of the road and I saw him when he started crossing the other side of the road and as soon as I saw him I just started braking because I though, for some reason I thought he was going to carry on going, because he hadn't seen me. He was just, he wanted to get across quickly.

Q. And you said he was on the other side of the road. When you first saw him was he actually in the carriageway or was he on the … grass verge and … pavement? Are you able to say whereabouts he was when you first saw him …?

A. No, he was on the road. He'd started to cross from the right-hand side of the road and he was half way across the other side.

Q. And that's the point you first became aware of him, first saw him?

A. Yeah, I just had to brake and then …"

At page 19 the appellant said:

"When he was half way across the other side of the road I saw him and I just started braking. Then when he got to the middle of the road he started scurrying across. He must have heard the brakes. He didn't see me. He was too interested in getting to the other side of the road."

The appellant was asked whether he had used his horn to sound a warning of his approach. He replied:

"No, I didn't use it.

Q. Did you think about using it?

A. Yes, but I was too interested in stopping the vehicle. I was worried as well."

At page 21 of the interview record, the appellant was asked to mark various positions on a photograph of the scene. He marked the letter "A" at the point where he said he first saw Mr Ford. That position was not halfway across the offside carriageway, as he had previously indicated, but on the kerb line at the junction between Spackman Lane and Valley Road. He said that he had started to brake when Mr Ford had crossed to the centre of the offside lane.

10. Mr Peter Brown was driving along Valley Road in the opposite direction, that is to say northwards. He saw Mr Ford in the middle of the entrance to Spackman Lane. He said that he could see ahead Mr Ford crossing the road at a pace slightly faster than a walk – almost a jog – and Mr Ford did not stop. According to Mr Brown, Mr Ford's speed did not change. As Mr Brown viewed the scene ahead of him, it was unnecessary for him to adjust his speed because Mr Ford would be able safely to pass in front of him. However, the appellant's lorry was approaching from the opposite direction. Mr Ford continued to cross into his opposite lane and the lorry collided with Mr Ford in its own carriageway. It looked to Mr Brown as though Mr Ford had continued to cross because he was unaware of the lorry.
11. Travelling behind the appellant's lorry in the same direction was Mrs Chandler. She was driving at a distance of about 50 metres behind the lorry. She said that she was able to see Mr Ford from her vantage point when he was three-quarters of the way across the oncoming lane. It is a matter of plain inference, the lorry cab being higher in the air than the car that Mrs Chandler was driving, that the appellant would have had a more panoramic view of the road ahead of him than she did.
12. There was tachograph evidence. The speed of the lorry at impact was 14mph. The vehicle had slowed from 38mph (the speed at which it was being driven approximately 100 to 120 metres before the point of impact) to 27mph before it was braked sharply and continuously until the point of impact. It was not possible to tell from the tachograph evidence whether the gradual slowing from 38mph to 27mph was braking or natural deceleration under the gears.
13. There was a report from a vehicle examiner, Police Constable Fair. The lorry was in good condition. Under emergency braking from a speed of 27mph the vehicle could stop in 10.4 metres in 1.7 seconds. Mr Ford had covered a distance of just over 7 metres across the road before the point of impact. A joint expert report was prepared by Police Constable Fair and Mr Robert Hawthorn. They reported their agreement that most drivers are able to react in a time of less than two seconds. Thus, from a speed of 27mph the reaction and braking time together could be as high as 3.7 seconds. There was, however, no evidence of the speed at which Mr Ford was walking. They pointed to some research which indicated that the average walking speed for a person over the age of 60 might be 1.2 metres per second (or 2.8mph). They assessed that if Mr Ford was almost jogging, he might have been travelling at 2.5 metres per second (or 5mph). A calculation given to the jury was that if the appellant saw Mr Ford when he was at the Spackman Lane kerb, he would have been able to stop the lorry before the impact, provided that Mr Ford was walking at a speed of 1.92 metres per second or less. If, on the other hand, he was walking faster than this, assuming a reaction time of 2 seconds, he could not have stopped the vehicle before the point of impact. However, as the experts said in their report, these times and distances could only be regarded as approximations. We note that they were based upon a stopping time and distance. In fact, the impact took place when the lorry was travelling at 14mph.
14. These figures made certain assumptions: first, that the appellant first saw Mr Ford when he was stationary in the mouth of Spackman Lane; second, that the lorry was at that moment travelling at 27mph; and third, that the appellant's reaction time was 2 seconds. The calculations do not attempt to demonstrate where the lorry was when heavy braking commenced.
15. At the close of the prosecution case, Mr Dixey made a submission on behalf of the appellant that there was no case to answer. In effect, he relied upon the joint expert report that demonstrated the real possibility that, even if the appellant had seen Mr Ford before he set off across the road (an assumption that Mr Dixey was prepared to make on behalf of the appellant), he could not reasonably have avoided the collision.
16. Mr Gabb responded on behalf of the prosecution that there was an issue of fact as to when it was the appellant had first observed Mr Ford. Was it when he was at the kerb, or was it when he was halfway across the offside carriageway? If the latter, then the appellant was not paying sufficient attention. If the former, he had time to sound his horn to warn the pedestrian, but did not do so. There was other evasive action that would have been open to him. Mr Gabb submitted that these were matters for the jury to resolve.
17. We agree. In our judgment the case was properly left to the jury. It was not enough for Mr Dixey to make concessions on the appellant's behalf and then to set up an argument by one route of which it may have been open to the jury to acquit. The question for the judge at the close of the prosecution case was whether there was evidence upon which the jury could properly convict. In our judgment, it was plainly open to the jury to conclude that, contrary to the concession made by Mr Dixey, the appellant had not seen the pedestrian until it was too late to avoid the collision.
18. The appellant chose not to give evidence. That decision is explained by Mr Dixey as follows: since Mr Ford was undoubtedly there to be seen, then the jury had to approach the issue whether the appellant was guilty of the offence on that basis, and he could not assist by giving evidence as to whether or not he had, in fact, seen him.
19. Mr Dixey has the following criticisms to make about the judge's summing-up to the jury. First, he submits that the fact that the lorry was travelling at 100 to 120 metres before the point of collision at 38mph, and therefore in excess of the speed limit, was simply not relevant. The jury should have received a direction to that effect. We disagree. No objection was made when this evidence was introduced before the jury, and it certainly formed the background to the collision that took place. The jury were made aware of the tachograph evidence which demonstrated that, in his approach towards the Spackman Lane junction, the appellant had slowed down. This was evidence as to which the jury were properly directed.
20. Secondly, the appellant complains that the judge's direction to the jury as to the use that might be made of his interview with the police was inaccurate in law. The judge said this:

"Although what he said to the police when he was questioned is evidence of his reaction when he was questioned by the police, it is not capable of being evidence in the case. It is simply his assertions made by him on an occasion when he was questioned by the police, but not when he was giving evidence. So give what he said to the police the weight that you think is appropriate, but bear in mind that it has not been subjected to cross-examination or scrutiny in the courtroom before you; so in that sense it is not evidence."

21. Mr Gabb, on behalf of the prosecution, accepts that this was a direction that was not strictly correct in law. Since the interview contained both admissions and assertions, it is what has become known in the courts as a "mixed statement". Assertions made in a mixed statement are admissible in evidence, but juries are regularly directed that, while admissible, they may not have the same effect as evidence given under oath in court: first, because it is not an account given under oath; and secondly, because it has not been subjected to cross-examination. Accordingly, the judge's direction to the jury in this respect was not strictly accurate.
22. We have, therefore, to consider the question whether the inaccuracy may have had any effect upon the safety of the jury's verdict.
23. It is quite apparent that the principal issue that arose from the appellant's interview was where his vehicle was situated when he had first noticed Mr Ford; and secondly, what, if any, precautions he had taken to warn Mr Ford of his approach. The appellant had chosen not to give evidence as to the first question or the latter. The jury were therefore in the position of having to consider contradictory accounts of where he was when he first saw Mr Ford. The prosecution relied on the inconsistencies. The jury was not deprived of a consistent account from the appellant,
24. Secondly, it was conceded by the appellant that he had not sounded any warning to the pedestrian ahead of him. Even if the judge had given the strictly accurate direction of law to which we have referred, we cannot see that the appellant's position could have been in any way improved. As Mr Dixey properly said, and as the judge reminded the jury, the appellant did not dispute the evidence that had been given by witnesses on behalf of the prosecution. The judge put it this way:

"His defence relies upon the interpretation of the evidence and it is his defence that you cannot be sure that the interpretation which the Crown invite you to draw is the only one to be drawn."

25. Mr Dixey encapsulated his argument in a nutshell with the following words:

"The jury could not be sure that Mr Ford was not walking at 2 to 2.5 metres per second across the road. If he was, then the accident could not have been avoided."

26. Highlighted in the schedule of times and distances for the jury were the times and distances which applied if Mr Ford was walking at a speed greater than 2 metres per second. We cannot accept that the jury could have been under any misapprehension as to the interpretation on which the appellant relied in putting forward his defence that he acted as a prudent driver would have done on the occasion of the fatal collision. We do not accept that it was necessary for the judge to spell it out, the jury having just heard the argument from Mr Dixey minutes before. Nor do we consider that the judge's inaccurate statement of law as to the effect of the interview could have had any material effect upon their judgment of that argument.

27. We have already pointed out the weaknesses and assumptions upon which the experts' schedule was based. In our judgment it was well open to the jury to reach one of the two conclusions to which Mr Gabb had invited them: either the appellant saw Mr Ford when it was too late; or he had seen him within ample time within which to sound a warning and failed to do so. On either basis a conviction for this offence was justified.

27. The grounds of appeal do not, in our view, have substance. Accordingly, the appeal against conviction is dismissed.
28. We turn to consider the question of sentence. While Mr Dixey in his written Advice pointed out that the sentence imposed by the learned judge was at the top end of the range for a category of offence of this kind, in oral argument he informed the court that he did not intend to challenge the sentence imposed, since the appellant had served all 300 hours of the unpaid work requirement of the community order.
29. We regard that fact as an important consideration in a correct assessment of the punishment which it was necessary to inflict upon the appellant for the offence he had committed.
30. Mr Dixey has rightly drawn our attention to the fact that in cases where disqualification for twelve months is obligatory, but where the offence is at the lower end of the scale of seriousness, it is not appropriate to delay the rehabilitation of the offender by taking away his ability to earn a living for any longer than is absolutely necessary. There is no evidence before us that the appellant has been deprived of a living as a result of his disqualification from driving. He has, however, had to find an alternative, which amounts to signing on with an agency with the hope of a prospect of obtaining some labouring work.
31. In our judgment it was not essential that the appellant should be disqualified from driving for a period as long as 18 months. He was otherwise punished to quite a significant degree. We take the view that once he has completed a full twelve month period of disqualification he should be given access to a driving licence since his normal employment depends upon it.
32. For that reason, and because he has demonstrated his strict performance of the requirements of the order, we are prepared to say that an 18 month disqualification was too long and we will substitute a period of twelve months.
33. Accordingly, to that extent the appeal against sentence succeeds.