Scottish High Court of Justiciary Decisons

At advising on 24th October 1979, the opinion of the Court was delivered by the Lord Justice-General.

LORD JUSTICE-GENERAL (Emslie).—In this appeal by the Crown this Court is required for the first time to consider section 2 of the Road Traffic Act 1972 as that section has been amended by the Criminal Law Act 1977, section 50. Before the amendment the section read as follows—"If a person drives a motor vehicle on a road recklessly, or at a speed or in a manner which is dangerous to the public, having regard to all the circumstances of the case, including the nature, condition and use of the road, and the amount of traffic which is actually at the time, or which might reasonably be expected to be, on the road, he shall be guilty of an offence." It now reads—"A person who drives a motor vehicle on a road recklessly shall be guilty of an offence"

At the hearing before us the appellant and the respondent joined issue on the proper interpretation of this section and in particular as to the test to be applied by a Judge or a jury in determining whether the offence created by section 2 in its amended form has been established by the prosecutor.

These questions come before us in this way. The respondent went to trial in the Sheriff Court at Jedburgh upon a summary complaint in which he was charged in these terms—"that on 11th September 1978 on the Kelso to Ednam Road and Edenside Road, Kelso, District of Roxburgh, you did drive a motor vehicle, namely a motor cycle, recklessly and at a place where a child on his way to or from school was seeking to cross the road, and having been required to stop said motor cycle by a school crossing patrol in uniform, and exhibiting a prescribed sign, did fail to stop said motor cycle: Contrary to the Road Traffic Act 1972, section 2"

After trial the Sheriff acquitted the respondent. According to the Crown the Sheriff in so doing misdirected himself as to the meaning and implications for the prosecutor of section 2 as amended. The particular submission was that although the Sheriff appears to have found in fact that the respondent drove his motor cycle with a high degree of negligence in all the circumstances of the case he acquitted the respondent only because on his construction of section 2 in its new form he concluded that no person can be convicted of driving "recklessly" unless it is shown (a) that he knew that there were material risks in driving in a particular manner, and (b) that he deliberately decided to drive in that manner regardless of the possible consequences. In short, it was contended, the Sheriff applied what has been called a subjective test. Upon the assumption that the Sheriff so directed himself we shall now come to the competing submissions.

For the Crown the submission can be stated shortly. There is no doubt that the question whether a person has committed the offence created by section 3 of the Act, i.e., of driving a motor vehicle on a road without due care and attention or without reasonable consideration for other persons using the road, must be answered by the application of an objective test. A Judge or a jury, accordingly, must simply ask themselves whether the particular act of driving established in evidence demonstrated a want on the part of the driver of that degree of care and attention or consideration for other persons to be expected of a competent and careful driver. In considering a charge brought under sections 1 and 2 of the Act in their unamended form (and such a charge normally included the word "recklessly" as well as the succeeding words "or at a speed or in a manner, etc") the simple task of a Judge or a jury was to consider the act of driving proved and ask themselves, quite objectively, whether it was driving which, by reason of speed or otherwise, was in their judgment dangerous to the public having regard to all the circumstances of the case including those specially mentioned in the sections. In its amended form there is nothing in the language of section 2 (and similar considerations apply to section 1 as amended) to indicate an intention on the part of Parliament that the test to be applied is no longer to be objective. The word "reckless" in its ordinary meaning is well understood. The adverb "recklessly" is an adverb of manner qualifying the verb "drives." In its context it plainly means a piece of driving which, judged objectively, is eloquent of a high degree of negligence—much more than a mere want of due care and attention—and supports the inference that material risks were deliberately courted or that these risks which ought to have been obvious to any observant and careful driver were not noticed by reason of gross inattention. Driving "recklessly" accordingly, is driving which demonstrates a gross degree of carelessness in the face of evident dangers.

For the respondent counsel resolutely defended the proposition that no man can be said to drive "recklessly" unless it is shown that he actually knew of certain material risks in driving in a particular way and nevertheless elected to drive in that way with complete indifference to the possible consequences.

We have no difficulty in reaching the conclusion that the Crown submission must receive effect. There is nothing in the language of section 2 as amended to suggest an intention on the part of Parliament to penalise thereunder only a course of driving embarked upon wilfully or deliberately in the face of known risks of a material kind. Inquiry into the state of knowledge of a particular driver accused of the offence created by the section as amended, and into his intention at the time, is not required at all. The statute directs attention to the quality of the driving in fact but not to the state of mind or the intention of the driver. If it were otherwise, the section, and indeed section 1, would virtually become inoperable in all but the rarest of instances. Neither is the skill or capacity of the particular driver in issue: the offence can be committed whether or not the event is followed or demonstrated by a casualty. All that is in issue and all that Parliament requires the court or the jury to consider and determine is the degree to which the driver in question falls below the standard to be expected of a careful and competent driver in all the circumstances of the particular case, and whether the degree is such as properly to attach in the judgment of court or jury the epithet or label of "reckless." Section 2, as its language plainly, we think, suggests, requires a judgment to be made quite objectively of a particular course of driving in proved circumstances, and what the Court or a jury has to decide, using its common sense, is whether that course of driving in these circumstances had the grave quality of recklessness. Judges and juries will readily understand, and juries might well be reminded, that before they can apply the adverb "recklessly" to the driving in question they must find that it fell far below the standard of driving expected of the competent and careful driver and that it occurred either in the face of obvious and material dangers which were or should have been observed, appreciated and guarded against, or in circumstances which showed a complete disregard for any potential dangers which might result from the way in which the vehicle was being driven. It will be understood that in reaching a decision upon the critical issue a Judge or jury will be entitled to have regard to any explanation offered by the accused driver designed to show that his driving in the particular circumstances did not possess the quality of recklessness at the material time.

We ought, we think, to mention that in the course of his submission the learned Advocate-Depute drew our attention to a passage in Wilkinson's Road Traffic Offences, (9th ed.), at p. 287 where the author suggests that in respect of the offence now defined by section 2, as amended, a court will require to consider a driver's state of mind. With that suggested construction we profoundly disagree. The author also declares that the following definition proposed by the Law Commission (of England) is perhaps as satisfactory as any other—

"A person is reckless if

1. (a) knowing that there is a risk that an event may result from his conduct or that a circumstance may exist, he takes that risk, and

2. (b) it is unnecessary for him to take it having regard to the degree and nature of the risk which he knows to be present."

The author goes on to say "The test in (a) is subjective and the test of necessity of (b) is objective." It will be appreciated from what we have said that the section is concerned with the quality of a proved course of driving and that there is nothing in its language to indicate that that quality is to be assessed otherwise than objectively. We cannot accordingly approve of the definition as an aid in deciding whether a section 2 offence has been committed. Apart from this it appears to us that the editor falls into the error of failing to appreciate that the proposed definition is apparently intended, as it says, to define a reckless person. What this statute is defining or seeking to define is a manner of driving—a very different matter. The Law Commission's definition is, in any event, one which, if it did not confuse a Judge, would bemuse most juries. Finally, we have only to add that, although we were very properly referred to the English cases of R. v. Clancy 1979 R.T.R. 312 and R. v. Davis (William) 1979 R.T.R. 316, it is evident that in neither was the Court of Appeal called upon to decide whether the relevant test in respect of a section 2 offence is in whole, or even in part, subjective, and, indeed, there is much in the opinion delivered in the latter case by Geoffrey Lane L.J. (as he then was) to indicate that, as we think, the approach must be totally objective.

In light of our decision so far on the meaning and intendment of section 2, the remaining question is how to dispose of this appeal. We have assumed the application of a subjective test by the Sheriff, but apart from two references to the importance of the driver's "intention" or "wicked intention" it is by no means clear upon a fair reading of his Note as a whole that he misdirected himself at all. In particular it is by no means clear that he applied any test but an objective one. For the avoidance of doubt, however, we have decided to remit the case to the Sheriff to tell us whether in light of this opinion he would have found the respondent not guilty. We are certainly not prepared to say on the facts found that he was bound to convict.