QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Strand, London, WC2A 2LL |
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B e f o r e :
And
MR JUSTICE LANE
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ADRIAN JONES |
Appellant |
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CROWN PROSECUTION SERVICE |
Respondent |
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CROYDON CROWN COURT |
Interested Party |
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Simon Heptonstall (instructed by the Crown Prosecution Service, Appeals and Review Unit) for the Respondent
Hearing date: 16 October 2019
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Crown Copyright ©
Lord Justice Hamblen:
Introduction
(i) When the Crown Court determines an appeal against conviction, does it have the power under section 48 of the Senior Courts Act 1981 to re-determine the sentence de novo of matters where the appeal has been unsuccessful, in circumstances where another Crown Court has sentenced on those matters on a committal for sentence, heard prior to the appeal?
(ii) Can an offence of careless driving be established based upon the physical condition of a person when driving?
The factual and procedural background
(i) Dangerous Driving on 5 November 2016, contrary to section 2 of the Road Traffic Act 1988 (Triable either way offence).(ii) Failing to provide a specimen of blood for analysis on 5 November 2016, contrary to section 7(2) of the Road Traffic Act 1988 (summary only offence)
(iii) Driving with no insurance on 5 November 2016 (summary only offence).
(i) Dangerous Driving – 9 months' imprisonment suspended for 18 months(ii) Failing to provide a specimen – 1 month's imprisonment consecutive suspended for 18 months.
(iii) No insurance – Licence endorsed, no separate penalty.
The facts found by the Crown Court in relation to the careless driving
"8. The Court could not be sure that the accident was caused solely as a result of the driving of the defendant. However, the defendant's evidence was that he attended a 'wake' following the funeral of his ex-partner's friend, who was tragically killed in a motor bike accident. He did not know anyone present. Outside this event, Mr Jones was attacked as seen on CCTV by a number of males. He sustained head injuries, one wound to his forehead and one to the back of his head. He lost consciousness, having fallen to the floor. It was shortly afterwards that he got into the car and drove off. Blood was "pouring" down his face from his head wounds whilst he was driving.
9. The Court found that the "reasonably prudent" driver would not have driven in these circumstances and when in his physical condition. Therefore, the defendant was found to be driving carelessly."
Question 1 – The extent of the Crown Court's power under section 48 of the Senior Courts Act 1981 ("the 1981 Act")
"Section 48 Appeals to Crown Court.
(1) The Crown Court may, in the course of hearing any appeal, correct any error or mistake in the order or judgment incorporating the decision which is the subject of the appeal.
(2) On the termination of the hearing of an appeal the Crown Court—
(a) may confirm, reverse or vary any part of the decision appealed against, including a determination not to impose a separate penalty in respect of an offence; or
(b) may remit the matter with its opinion thereon to the authority whose decision is appealed against; or
(c) may make such other order in the matter as the court thinks just, and by such order exercise any power which the said authority might have exercised.
(3) Subsection (2) has effect subject to any enactment relating to any such appeal which expressly limits or restricts the powers of the court on the appeal.
(4) Subject to section 11(6) of the Criminal Appeal Act 1995, if the appeal is against a conviction or a sentence, the preceding provisions of this section shall be construed as including power to award any punishment, whether more or less severe than that awarded by the magistrates' court whose decision is appealed against, if that is a punishment which that magistrates' court might have awarded.
(5) This section applies whether or not the appeal is against the whole of the decision.
(6) In this section "sentence" includes any order made by a court when dealing with an offender…"
''In considering the proper interpretation of the section, it seems to me important to bear in mind that the Crown Court, when it is exercising its jurisdiction, is re-hearing the matter de novo. Whether it is dealing with conviction or sentence, the Crown Court looks at the matter afresh.''
"In my view one is forced back to the meaning of the words to which I made reference, "the decision which is the subject of the appeal." So far as those words are concerned, it is quite clear from section 48 itself that the decision which is the subject of an appeal cannot mean merely a decision to convict or a decision to sentence. Even on Miss Lang's submission it includes both a decision to convict and then the decision to impose a sentence. It is my view that the word "decision" as used in section 48 is being used in a wide sense. I regard it as clear from the wording of section 48 as a whole that what was intended by the words to which I have referred (which are not in my view words of art) was that the Crown Court should have the right to confirm, reverse or vary the whole of the decision made by the Magistrates' court on the occasion on which the conviction or sentence which was the subject expressly of the appeal was made. Therefore, although a defendant chooses only to appeal against part of the decision, namely, a particular conviction or a particular sentence, the Crown Court has jurisdiction in respect of all the matters which were then before the court."
Question 2 – Careless Driving
"Careless and inconsiderate driving
3. If a person drives a mechanically propelled vehicle on a road or other public place without due care and attention, or without reasonable consideration for other persons using the road or place, he is guilty of an offence"
"…
(2) A person is to be regarded as driving without due care and attention if (and only if) the way he drives falls below what would be expected of a competent and careful driver.
(3) In determining for the purposes of subsection (2) above what would be expected of a careful and competent driver in a particular case, regard shall be had not only to the circumstances of which he could be expected to be aware but also to any circumstances shown to have been within the knowledge of the accused."
"(1) For the purposes of sections 1 and 2 above a person is to be regarded as driving dangerously if (and, subject to subsection (2) below, only if)—
(a) the way he drives falls far below what would be expected of a competent and careful driver, and
(b) it would be obvious to a competent and careful driver that driving in that way would be dangerous.
(2) A person is also to be regarded as driving dangerously for the purposes of Sections 1 and 2 above if it would be obvious to a competent and careful driver that driving the vehicle in its current state would be dangerous.
(3) In subsections (1) and (2) above "dangerous" refers to danger either of injury to any person or of serious damage to property; and in determining for the purposes of those subsections what would be expected of, or obvious to, a competent and careful driver in a particular case, regard shall be had not only to the circumstances of which he could be expected to be aware but also to any circumstances shown to have been within the knowledge of the accused."
"10. The question thus arises as to whether it is sufficient, in order to prove the offence of aiding and abetting causing death by dangerous driving to prove knowledge of the intoxicated state of the driver at the time permission is given. That question turns on whether a driver can be guilty of dangerous driving when the reason for danger is the state of the driver rather than the manner of his driving.
11. In order to determine whether the drunken condition of a driver is, of itself, sufficient to establish the offence of dangerous driving, it is as well to start with the wording of the statute itself. Section 2A poses two questions:—
1. Did the defendant's driving fall far below the standard of a competent and careful driver? and
2. Would it have been obvious to a careful and competent driver that driving in that way would be dangerous?
It is of note that Section 2A underlines the proposition that those two questions provide the limitations of the offence in the use of the words "only if". Those statutory questions direct attention only to the manner of driving in their references in both (a) and (b) to the way he drives and that way.
12. Section 2A(2) provides an additional test in the use of the words also to be regarded . Section 2A(2) plainly refers to the defective state of the vehicle and not to the defective state of the driver.
13. If the argument finished there it would be plain that Section 2A(1) refers only to the manner of driving. The extension of the definition of dangerous driving in Section 2A(2) is limited to the dangerous consequences of driving a defective vehicle. There is nothing in the wording of the statute to justify extending the offence to danger occasioned merely by reason of the defective condition of the driver."
"It is of note that section 3ZA underlines the proposition that the question provides the limitations of the offence in the use of the words "only if". The statutory question directs attention only to the manner of driving in its reference to the way he drives."
"The fact (if it be so) that an accused has ingested a large quantity of alcoholic drink is a circumstance within the knowledge of the accused. Accordingly, the statute requires that "regard shall be had" to it."
Lord Taylor CJ also relied upon section 2A(2), observing that:
"It would be strange if Parliament intended to make driving a vehicle in a dangerously defective state an offence under the section but not driving when the driver is in a dangerously defective state due to drink." (see page 85(g)).
"…the closely drafted definition of "dangerous driving" does not permit proof of that offence to be limited to the danger occasioned by the condition of the driver."
"17. ….Firstly, the wording of the statute excludes such a possibility. Section 2A(1) refers only to the manner of driving. The definition is broadened by Section 2A(2) which eschews reference to the state of the driver and is confined to the defective condition of the vehicle. Section 2A(3) permits regard to circumstances which may well include the condition of the driver. But that condition is not dispositive of the question whether the person was driving dangerously. His condition will, by virtue of subsection (3) be relevant to whether there was danger of injury or serious damage but no more.
18. Secondly, the authority on which the prosecution relied is not authority for the proposition that dangerous driving may be established merely by reference to the condition of the driver. The sentence on which the prosecution relied must be read in the context of the decision as a whole. That case decided that evidence of drink taken before driving was admissible. It did not decide that evidence of drinking before driving was sufficient to prove the offence. Although, the Lord Chief Justice's reference to the statute has been praised as improving on the law laid down by Parliament but criticised for misreading that law (see e.g. Archbold News Issue 2, 1 March 1995 and Smith & Hogan 11th Edn., page 1014), that single sentence is not the basis of the decision. The decision in R v Marison [1996 Crim. L.R. 909] which followed Woodward can be regarded as a decision that the defence of automatism was not available to an hypoglycaemic driver who clearly drove in a dangerous manner when he drove the vehicle on to the wrong side of the road. It was not, in any event, the subject of any submissions before us.
19. Thirdly, despite the recommendation in the Road Traffic Law Review Report (1988) the White Paper, The Road User and The Law (1989), Cm. 576 paragraph 2.9 demonstrated that the Government was not prepared to accept the recommendation that a new "very bad" driving offence should include reference to unfit drivers. It is unnecessary, in order to make that good, to refer to Hansard extracts in the House of Lords in relation to the Road Traffic Bill."
It is not sufficient merely to rely on the condition of the driver in order to prove the offence of careless driving or of causing death by careless driving. The condition of the driver is relevant and admissible. But it does not determine whether the way in which the defendant drove was careless.
Conclusion
(i) The conviction determination for careless driving is reversed and the conviction quashed.(ii) The sentence for failing to provide a specimen is varied so as to be a £10 fine with 1 day's imprisonment in default, deemed served and licence endorsed.
(iii) The disqualification period, which now attaches to the failing to provide a specimen, is varied and reduced to 12 months.
(iv) The Crown Court's order to reverse the requirement to take an extended re-test is affirmed.
Mr Justice Lane: