England and Wales High Court (King's Bench Division) Decisions

LORD GODDARD C.J. The decision of the justices in these cases seems so startling that one is bound to ask oneself whether it was a decision to which any reasonable bench of magistrates could come. Here are two motor lorries, in each case of very considerable weight, hurtling along the road at a pace which is found in each case to be over forty miles an hour, passing other vehicles without giving signals, only reducing very slightly in one case at a bend, negotiating narrow bridges and so forth, and it is said that that is not a case of dangerous driving. It is remarkable that the justices in certain parts of Cheshire seem to hold rather strange views on the subject of dangerous driving and also to pay singularly little attention to the decisions of this court, for Kingman v. Seager [1938] 1 KB 397 and Durnell v. Scott 83 Sol Jo1 96 were both cases which came from Cheshire, in both cases the magistrates had dismissed the informations, and in both cases this court remitted the informations, not for further hearing, but with a direction to convict, and it is difficult, without going meticulously into small details, to see any distinction at all between the facts in the present cases and the facts in those two previous cases.

It is said that this court is bound by the findings of fact set out in the cases by the magistrates. It is true that this court does not sit as a general court of appeal against magistrates' decisions in the same way as quarter sessions. In this court we only sit to review the magistrates' decisions on points of law, being bound by the facts which they have found, provided always that there is evidence on which they could come to the conclusions of fact at which they have arrived. Mr. Parker, who has intervened in this case as amicus curiæ to enable the court to have the benefit of a full argument on each side, concedes that if magistrates come to a decision to which no reasonable bench of magistrates, applying their minds to proper considerations and giving themselves proper directions, could come, then this court can interfere, because the position is exactly the same as if the magistrates had come to a decision of fact without evidence to support it. Sometimes it has been said of the verdict of a jury given in those circumstances, that it is perverse, and I should have no hesitation in applying that term to the decisions of magistrates which are arrived at without evidence to support them.

The first case to which it is necessary to refer is Kingman v. Seager [1938] 1 KB 397. The present cases come from the Bucklow Division of Cheshire where the magistrates sit at Knutsford. Kingman v. Seager [1938] 1 KB 397 was concerned with an appeal from a court of summary jurisdiction sitting at Middlewich in Cheshire. The facts in that case were very similar to the facts in the present cases. One can find certain small distinctions; for instance, in that case the lorry was driven over a cross road at about forty miles an hour. Though there was not a "cross road" in either of the two cases we are considering there were converging roads, which makes very little difference. Again, in the present cases there were farm entrances, whereas I do not think there were any farm entrances in Kingman's case [1938] 1 KB 397. However, the court in that case had no difficulty in reversing the decision of the magistrates, who had found that there was no offence committed, and sent the case back with a direction to convict. The headnote in Kingman's case [1938] 1 KB 397 is as follows: "The offence of dangerous driving under the Road Traffic Act 1930, s. 11, sub-s. 1, is complete if potential danger to traffic which might reasonably be expected to be on the road is proved, it being unnecessary to establish actual danger to any member of the public." Looking at that headnote alone it might be said that that case can be distinguished on the grounds that the magistrates only considered the question whether persons were actually put into danger and not the question of potential danger by reason of the amount of traffic which might reasonably be expected to be on the road. However, when one reads the judgment of the court carefully it is obvious that the court was sending the case back to the magistrates to convict, because in their opinion the decision to which they came was one to which no reasonable bench of magistrates could come. If the court had been dealing with the case merely on the ground that the magistrates had not considered whether there was potential danger, they would have remitted the case to the magistrates for further hearing. The court would have said: "You have found here there was no actual danger, but that is not enough. You have to consider whether, considering the traffic which might reasonably be expected, though not actually present, there was potential danger." But the court did not do that, but sent the case back with a direction to find that the offence was proved and that there was to be a conviction.

There are expressions of opinion in the judgments in that case, which, taken by themselves, might be understood as meaning that wherever the magistrates find excessive speed then they must find dangerous driving. I think that those expressions of opinion go rather far unless the facts and circumstances of that case are clearly borne in mind, and that neither the court, nor any member of it, meant to lay that down as universally applicable, for this reason, that there are many cases in which it would be perfectly safe, apart from any question of danger to the surface of the road, to drive a heavy motor vehicle almost at any rate of speed. If you are crossing Dartmoor or a moor in Yorkshire where you can see for miles, there are no hedges on either side of the road and perhaps the only other vehicle within twenty miles is the police car that is chasing you in your lorry, of course there is no danger to the public, and it would be quite unreasonable then to say you are driving at a speed which is dangerous to the public or in a manner which is dangerous to the public or recklessly, having regard to the amount of traffic, because there is not only no traffic but it would not be reasonable to expect any traffic thereabouts. If the traffic does appear and you do not slow up in your lorry, then a different set of considerations may apply.

I think that what was meant in the judgments in Kingman's case [1938] 1 KB 397, and particularly in the judgment of Humphreys J., was that when you take all the circumstances of the case into consideration, speed alone can be decisive. Supposing, for instance, you are driving on an arterial road, say the Great West Road going out of London, or any of the main roads surrounding London or in London; it is obvious that you can be driving there at a pace which in itself must be a danger to the public. I think it is clear that the court, in remitting the case for a conviction in Kingman v. Seager [1938] 1 KB 397, were doing so because they thought that the finding of the magistrates was perverse, though that is not stated in terms.

When we come to consider Durnell v. Scott 83 Sol Jo1 96, we find that it came from the neighbouring petty sessional division of Sandbach. In that case the justices gave their decision in precisely the same words as the justices of Middlewich gave their decision in Kingman v. Seager [1938] 1 KB 397, with the exception that they were careful in Durnell v. Scott 83 Sol Jo1 96 to add to their decision, which was given after the judgment in Kingman v. Seager [1938] 1 KB 397, the words: "We did not think there was in fact danger to the public either on the road or which might reasonably have been expected on the road." They put that in, I suppose, hoping thereby to distinguish the case from the previous decision, but this court nevertheless sent the case back to them with a direction to convict, obviously, when one reads the judgments, because the court came to the conclusion that no reasonably-minded bench of magistrates could come to that decision.

In the present cases the justices of the Bucklow division have found that there were two lorry drivers hurtling down this main road at a speed approaching fifty miles an hour, giving no signals and charging at narrow bridges and so forth. There is no finding that this road is a place where one can see for miles on either side and all down the road, and it is not likely that you would find such a road in that part of Cheshire. The justices have left the court with the fact that this is a main arterial road which carries a great volume of traffic between the great manufacturing towns of the north, the Potteries and London, and in spite of these two previous decisions and in spite of the fact that it had been shown that the addition of the words in regard to potential danger had not saved the magistrates' decision in Durnell v. Scott 83 Sol Jo1 96, for some reason or other the justices in these cases have proceeded to set out their decision in terms which are copied word for word from the case of Durnell v. Scott 83 Sol Jo1 96. One feels obliged to say that the magistrates appear to be acting in a somewhat contumacious manner.

Magistrates have to remember that their courts are all inferior to this court and they are under the jurisdiction of this court, and if they persist in disregarding decisions given previously by this court on a set of facts which cannot be distinguished from the facts which are before them in any particular case, then they are guilty of a grave dereliction of duty, because it is their duty to obey the rulings of this court. If they do not obey the rulings of this court and persist in giving decisions which are contrary to the judgments of this court, they will find themselves in serious trouble.

In the present cases I take exactly the same view as the court has done in the two previous cases. In my opinion, it is impossible to say that a reasonably-minded bench of justices, having facts such as these before them, could come to a decision that no offence has been committed and these cases should go back to the magistrates with an intimation that the offences have been proved and with a direction to convict in both cases.

I want to say one other word as to the judgment which I gave in Kingman v. Seager [1938] 1 KB 397. Having read it again I can quite appreciate that that judgment might be read as amounting to this, that the only question that need be considered in a prosecution for driving at a speed dangerous to the public is the speed itself. If it conveys that impression to the reader, then, of course, it is wrong. I did not intend to say that, and I do not think I am reported as saying quite that. What I did say was [1938] 1 KB 397 at 400: "I understand the finding of the justices to mean that a speed cannot be `dangerous' unless some element of actual danger is proved." I added: "That is wrong. The danger to which the section refers is to be found in the speed itself." I there had in mind the language of the section, which I think may be read so far as is necessary for the purpose of these cases as follows: "If any person drives a motor vehicle on a road at a speed which is dangerous to the public having regard to all the circumstances, etc., then he is guilty of an offence." What I wanted to convey was that the manner in which the driver was driving becomes immaterial. He may be convicted because he is driving too fast and only because he is driving too fast, but, of course, there must be taken into consideration all the circumstances of the case, because a speed which is too fast on one road in certain circumstances may not be dangerous at all when driving on another road in other circumstances. I also had in mind the peculiar finding of the magistrates in that case. They said in their case that they had taken into consideration the fact that the vehicle was in good condition, having only one week previously been returned by the makers after being reconditioned, and, in stating their decision, they used the words: "In view of the condition of the vehicle, the type of road, and the situation of the occurrence, the speed was not in fact dangerous to the public." What I intended to convey was that the question of the condition of the vehicle was immaterial. All that had to be looked at was the speed, and I still hold the view that there may be speeds proved which must in themselves be dangerous to the persons who use the high road. I do not think anyone can say what is or is not the speed that comes within that category; but that a person driving along any road in England at one hundred miles an hour would be driving at a speed dangerous to the public would, I think, be admitted by everybody, and the offence, amongst other offences, created by this section is driving at a speed which is dangerous actually or potentially having regard to all the circumstances of the case.