Appellant: F Connor, Advocate; John Pryde & Co, Edinburgh

Respondent: A Prentice, Solicitor/Advocate; Crown Agent

26 October 2011

[1] The appellant pled guilty at Dumfries Sheriff Court to charges of having, on 27 July 2010, used and driven a motor vehicle while uninsured and disqualified from driving in contravention of the Road Traffic Act 1988, section 143(1) and (2) and the Road Traffic Act 1988, section 103(1)(b). After trial he was also found guilty by the jury of a third charge, namely that:

"On 27 July 2010 on a road, namely A74(M) Glasgow to Carlisle road, south bound carriageway, he did cause the death of Raju Gurbaskh Singh by driving a mechanically propelled vehicle, namely motor van registered number KN03 VLR and at the time you were driving, the circumstances were such that you were committing an offence under section 103(1)(b) (driving while disqualified) and section 143 (using motor vehicle while uninsured against third party risks) of the aftermentioned Act; CONTRARY to the Road Traffic Act 1988, section 3 ZB."

The appellant appealed against conviction and sentence in relation to the last mentioned charge and against sentence in relation to charge 2.

[2] The circumstances in which the offences arose were as follows. On the 27 July 2010, in the hours of darkness, the appellant had been driving a vehicle on the south bound carriageway of the M74 motorway. He had been one of a team of caterers who had been engaged to cater for a wedding in Glasgow. He was on his way back home with others to Birmingham. He took over the driving of the vehicle in question because the person designated to drive it had felt tired.

[3] The deceased had been a guest at that wedding. He, too, resided in England and was being driven back there along with other family members. An argument had apparently developed between himself and members of the family travelling in the car with him. He got out of the car with the intention, apparently, to walk home to Wallsend. He found himself on the south bound carriageway of M74. The deceased was wearing a Rolex watch at the time.

[4] At a point when the appellant was driving his vehicle at a speed no more than 60 miles per hour his vehicle was felt to collide with something. The passengers in the vehicle thought that it had hit an animal on the road. The appellant pulled the vehicle on to the hard shoulder. A lorry driver, driving on the same section of the roadway, at the same time on the night in question, noticed a van in front of him swerve from one lane to another. The lorry driver then heard five loud thuds and he thought he had driven over a deer or a stag. Other drivers on the road at about the same time that night spoke to seeing or going over something lying on the road. Most of these drivers got out of their vehicles to check what had happened. They discovered limbs and other body parts. Police officers were called and came to the scene. The body parts were those of the deceased. A post mortem held that the deceased's death was caused by multiple vehicles colliding with him. A major scene of crime investigation was carried out by the police. A Rolex watch was found near the vehicle which the appellant had been driving.

[5] A collision investigation police officer, PC Parker, gave evidence at the appellant's trial. He had carried out an inspection of the locus. He had examined the appellant's van. He found what he considered to be human hair embedded in the front of the van. It was his opinion that the appellant's vehicle had collided with a human body. The epicentre of the collision was too high up for it to have been a deer or some other animal which had collided with the appellant's vehicle. If the vehicle had been travelling at 50 to 60 miles per hour at the collision, there would have been massive injuries to the person concerned. That person would have been propelled on to the carriageway. There were no signs of dead or injured animals at or about the locus. A piece of metal trim found on the carriageway fitted the appellant's van. A dent on the vehicle was consistent with the deceased's watch strap shattering and being projected on to the carriageway in a line consistent with the direction of travel of the body. The location of the body parts and blood was consistent with the body having been propelled on to the carriageway from its collision with the van. As well as giving the evidence just outlined, Police Constable Parker told the court that he had examined the body at the locus. A mark on the wrist of the deceased was consistent with the deceased having worn the watch, the face of which was recovered from the scene. The dent in the van corresponded to the space between the two prongs on the watch face to which the shattered strap had been attached. Another police officer, PC Alan Hope who was an advanced collision investigator also attended the scene of the accident and he spoke to examining the deceased's skull and noticing that there was a missing tuft of hair from the deceased's hair. Most significantly, the police officers who completed the collision investigation report, and then gave evidence at the trial, were of the opinion from the measurements they took, and the markings on the vehicle, that the deceased had been hit by the appellant's vehicle when the deceased was upright. The examination of other vehicles which had stopped at the locus indicated that these vehicles had run over the deceased's body when the body was lying on the road, which contrasted with the evidence as to his position when it was hit by the appellant's vehicle.

[6] The live issue at the trial was whether the appellant had caused the death of the deceased in terms of section 3 ZB of the Road Traffic Act 1988. In Regina v Williams [2011] 1 WLR 588 the Court of Appeal held that the offence in question could be committed without any fault or other blameworthy conduct on the part of the accused in relation to his driving of the vehicle and that the simple question to be decided at trial was whether the death had been caused by driving while without insurance or without a licence or disqualified. The court also held that the meaning of "cause" in section 3ZB was to be determined in the context of the intention of Parliament which was that it should bear the same meaning as it did in the offence of causing death by dangerous driving, contrary to section 1 of the 1988 Act; and that, accordingly, it was sufficient that the accused's driving was a cause of the death which was more than minute or negligible. In the present case the focus was on whether the Crown had proved, to the requisite standard, that the deceased had been alive at the time the appellant's vehicle collided with him, whatever may have happened to him prior to or after that incident.

Appeal against conviction

[7] The original grounds of appeal against conviction, lodged on behalf of the appellant, were five in number. The first of these was that the Sheriff was wrong to have rejected a submission of no case to answer. That ground of appeal was not, in the event, insisted upon at the hearing before this court. Nor was the second ground of appeal which alleged a misdirection by the Sheriff as to how the police evidence might be regarded by the jury. The remaining grounds of appeal against conviction which were advanced before this court (Nos. 3 to 5) involved criticisms of directions given by the Sheriff in his charge to the jury. It should be noted that the Sheriff in his charge in a number of places made it plain to the jury that , in the first place, the Crown case was a circumstantial one and, secondly, that their task was to consider whether the combination of facts and circumstances presented to them pointed, beyond reasonable doubt, to the appellant having caused the deceased's death or materially contributed to it. We should at this point note that the words "materially contributed to," in our opinion, do not equate with what was said by the Court of Appeal in the Williams case cited supra, where the court said, as has been noted, that it was sufficient that the accused's driving was a cause of the death which was more than minute or negligible. We consider the Court of Appeal's approach to be correct but the wording chosen by the Sheriff caused no prejudice to the appellant and, indeed, no criticism was made of it before this court. Issue, however, was taken with a remark made by the Sheriff at page 20 of his charge where he said

"It must be obvious to anyone that if someone's body is run over by a number of heavy goods vehicles, then he is unlikely to survive. We do not have any direct evidence as to whether, the deceased, was dead at the point of any collision, assuming you were to find the accused collided with the deceased, beyond reasonable doubt. You do not need to know that or make a finding about that".

The complaint about the passage, made by counsel for the appellant in her submissions, was that it might have confused the jury because it failed to make clear that for them to convict the appellant on the charge in question they would require to be satisfied that the deceased was alive at the point of collision with the appellant's vehicle. We are not persuaded that there was any real force in this point. It would, in our view, be perfectly obvious to the jury that they could not find the appellant guilty of causing the death of an already dead person. In the passage in question, it seems to us, that the Sheriff was merely trying to say that, in the context of evidence of the deceased being hit by a significant number of vehicles, it was not necessary for them to make a finding which was the final vehicle to hit the deceased before he died, or whether he was hit by several vehicles while alive. It was sufficient for them to find that he was alive when hit by the appellant's vehicle. The passage is not elegantly phrased, but when it is read in the context of how the case was conducted, and how the Sheriff set out matters elsewhere in his charge, we do not consider that it amounted to a material misdirection.

[8] Counsel then proceeded to criticise the words used by the Sheriff in his direction at page 16 of his charge which were to the following effect:

"The driving must have caused the death in the sense that 'but for' the accused being on the road, Mr Singh would not have been killed. And if you think about it, ladies and gentlemen, the accused should not have been on the road, he was not allowed to drive."

That last remark, it was submitted, could have presented what was described as "the erroneous impression" that it was sufficient evidence of the appellant's guilt in terms of charge 3 that he had been driving illegally on the road and that, as such, that involved a material misdirection by the Sheriff. We have no hesitation in rejecting this submission. At several places in his charge the Sheriff made it perfectly plain to the jury that to convict on charge 3 they had to be satisfied that the appellant had caused or materially contributed to the deceased's death by colliding with him. Immediately after the words "allowed to drive" the Sheriff continued "But that does not end the matter" and he then proceeded to give his directions on causation. We are of the view that the jury would have been left in no doubt that it was not sufficient to find that the appellant had been driving illegally to convict him on this charge. They knew that he was accepting that he driven illegally, having been advised in the Sheriff's charge at page 14, in the following terms;

"The first element is that the accused was driving while disqualified or uninsured. Now you can be satisfied on that because he has pled guilty of those matters in relation to charges (1) and (2)."

[9] The last submission made by Counsel in support of the appeal against conviction was in the event somewhat lightly pressed by her. It was that, having regard to the evidence, no reasonable jury, properly directed, could have reached the conclusion that the deceased's death would not have occurred had the appellant not been on the road.

[10] This submission, in fact, seemed at stages to be in substance a repetition of the attack on the Sheriff's directions with which we have already dealt. In any event we had no hesitation in rejecting this submission as there was clearly, in our view, sufficient credible and reliable evidence before the jury for them to hold that, beyond a reasonable doubt, the deceased's death had been caused by the appellant.

[11] In the foregoing circumstances the appeal against conviction is refused, there having been no miscarriage of justice in this case.

Appeal against sentence

[12] In respect of charge 1, using a vehicle while uninsured, the Sheriff fined the appellant £500. In respect of charge 2, driving while disqualified, the Sheriff sentenced the appellant to 12 months' imprisonment. In respect of charge 3 the Sheriff sentenced the appellant to 18 months' imprisonment, the two periods of imprisonment to run concurrently and to date as from 28 July 2010. The court also disqualified the appellant from holding or obtaining a driving license for three years in respect of charge 2 and for four years in respect of charge 3, these periods to run concurrently. The appellant was ordered to resit the extended test of competence to drive.

[13] The maximum sentence in respect of a contravention of section 3ZB is two years. In his report to this court the Sheriff pointed out that this was the appellant's second conviction for driving while disqualified, his earlier conviction for that offence having been in 2008 when he was disqualified from driving for three years. The appellant also, it was noted, had two previous convictions under section 5(1)(a) of the 1988 Act. Those previous convictions the Sheriff regarded as aggravating factors. The Sheriff, furthermore, informed this court in his report that he took as an aggravating factor the fact that the appellant was working at the time of the accident. There had been no suggestion that this had been an isolated incident done for some compelling reason of mercy or helping another in distress. Another aggravating factor, according to the Sheriff, was that the appellant was driving at night, on a motorway, since the consequences, he said, of incidents on the motorway are always potentially more serious. He then added "the fact Mr Williams and Mr Gilfedder were on the hard shoulder to investigate what happened and warn other drivers, shows pedestrians might have good reason to be on the motorway at night". The Sheriff did not consider that it was for him to diminish the appellant's culpability by attaching some blame to the deceased. He had regard to the victim impact statement from the deceased's wife and the devastating impact the death had had on the deceased's family.

[14] In addressing the question of sentence, counsel for the appellant pointed out that the appellant had submitted a section 76 letter in respect of charges 1 and 2. It was always his intention to plead guilty to charges 1 and 2. No discount appeared to have been made in respect of the period of imprisonment imposed for the conviction on charge 2. Instead the maximum sentence had been imposed in respect of that charge.

[15] With regard to the sentence imposed in respect of charge 3, counsel for the appellant submitted that this was excessive. The appellant had been driving, on the night in question, to provide relief for a colleague who at that time was tired. It was difficult to understand, in that situation, at least, why the Sheriff appeared to consider that since the driving was being done in the course of working, that was an aggravating factor. Moreover the Sheriff appeared to consider that a further aggravating factor was that the appellant, although there was no criticism at all of his standard of driving, was driving illegally on the motorway where it might be anticipated there would be pedestrians. Counsel submitted that, on the contrary, it was less foreseeable that there would be pedestrians walking in the manner of the deceased on a motorway in the hours of darkness than say walking in a city street in broad daylight. The deceased himself was obviously engaged in a very dangerous activity by walking on the carriageway of a motorway. The appellant had demonstrated very deep remorse from the time of the accident. He had been in custody for six months until granted interim liberation. He has a wife and two children. He is involved in the care of the children. He has been offered employment.

[16] The offence created by section 3 ZB of the 1988 Act has been the subject of some formidable criticism - compare R v Williams at paras.15 to 17, since it is sufficient for its commission that there is a factual causal link between the driver being unlawfully on the road and the fatality, the nature and quality of the driving being irrelevant. It has been said that the "mismatch between fault and consequences is striking". Sentencing in respect of this offence may not prove an easy task for the sentencing judge in any particular case. We are satisfied that in the present case the only truly aggravating factors were the appellant's previous convictions, in particular, in respect of road traffic offending. We agree with counsel for the appellant that the fact of the driving being done while the appellant was temporarily carrying out some work and that it was being carried out on a motorway should not have been regarded as aggravating factors. In all the circumstances we consider that the appropriate sentence in respect of charge 3 should have been 12 months. We will accordingly quash the sentence imposed in relation to charge 3 of 18 months and reduce it to 12 months.

[17] We are also of the opinion that the appellant was entitled to a discount in the sentence imposed in relation to charge 2 given his guilty plea in respect thereof. We consider that in this case the discount should have been one quarter. We will accordingly quash the sentence of 12 months imposed in respect of charge 2 and substitute therefore 9 months. Both sentences of 12 and 9 months will run concurrently, from 28 July 2010.