Scottish High Court of Justiciary Decisons

HIGH COURT OF JUSTICIARY

[2016] HCJ 47

IND2014-3747

NOTE BY LORD STEWART

in causa

HER MAJESTY’S ADVOCATE

against

NATHANIEL DAVID COOPER

Accused;

______________

Crown:  Brown QC, AD; Crown Agent

Accused:  Moggach, advocate; Lindsay & Kirk solicitors, Aberdeen

10 May 2016

[1]        Nathaniel David Cooper and Kylie Elizabeth Johnston were charged with causing death by dangerous driving contrary to section 1 of the Road Traffic Act 1988. The charge alleged that on 21 July 2013 on a road or other public place including the access road to the East Balthangie caravan park and at East Balthangie caravan park Cumineston, Turriff, Aberdeenshire:

“… you Nathaniel David Cooper and Kylie Elizabeth Johnston did cause the death of Andrew Harry Mackay… by driving a mechanically propelled vehicle… dangerously… and at the said… East Balthangie access road you Nathaniel David Cooper while sitting in the driver’s seat, did move the seat back and away from the steering wheel and foot pedals and you Kylie Elizabeth Johnston without holding a licence authorising you to drive… did move over from the front passenger seat and sit in front of and on the lap of you Nathaniel David Cooper and you did both drive said motor vehicle along the said access road and into the said East Balthangie caravan park, fail to keep proper control of said motor vehicle, cause said motor vehicle to accelerate, lose control of said motor vehicle whereby said motor vehicle was caused to leave the pathway, cross an area of grass, drive through a fence and collide with said Andrew Harry Mackay and a caravan in front of which he was then standing whereby the said fence, motor vehicle and caravan were all damaged and said Andrew Harry Mackay was so severely injured that he died: contrary to the Road Traffic Act 1988 section 1.”

Ms Johnston pled guilty at a preliminary hearing and was cited as a prosecution witness against Mr Cooper. Mr Cooper’s trial took place in the High Court at Aberdeen over five days Tuesday 7 to Friday 10 April and Monday 13 April 2015. Mr Cooper did not give evidence but he gave a full account at his police interview and the audio-video recording of the interview was put in evidence. The jury returned a majority verdict of guilty under deletion of the words “did move the seat back and away from the steering wheel and foot pedals”.  

[2]        As the case was presented to the jury by counsel the issue was whether Mr Cooper was “driving” the vehicle, a Daihatsu Terios 4 x 4 manual gear change, within the meaning of section 1 of the 1988 Act. Much of the evidence was agreed or was uncontested. A factual point of controversy was whether Mr Cooper operated the vehicle’s controls, in particular the steering wheel, the brakes and the accelerator, to any extent at the material time.

[3]        The couple were in an on-off relationship. They had taken their child E, two years old, and Mr Cooper’s son F, four years old, for a weekend camping at East Balthangie. After a day out in the car they had returned to the caravan park and then decided to go out again to the nearest petrol station to buy cigarettes and sweets. On the way back from the petrol station Mr Cooper gave Ms Johnston control of the steering wheel while she was sitting in the front passenger seat and he worked the pedals from the driver’s seat. He was at the ready to correct her steering and when other vehicles approached he took over the steering again. When they turned into the access road to the caravan site he stopped the car and asked her whether she wanted to “have a go” sitting on his lap in the driver’s seat. The engine was still running with the handbrake on and the gears in neutral. Ms Johnston sat on Mr Cooper’s lap. She stalled a couple of times when trying to move off. The first time Mr Cooper restarted the engine. She then succeeded in moving off under Mr Cooper’s directions, letting off the handbrake and using the clutch and accelerator.

[4]        The car belonged to Mr Cooper. He had a driving licence and was insured to drive the car. Ms Johnston did not have a driving licence and was not insured to drive the car. She had never driven Mr Cooper’s car before. Mr Cooper told the police that he understood Ms Johnston to have driven her brother’s car “down some roads or something”: he did not know when or where. Ms Johnston denied this. Mr Cooper told the police afterwards that what he had done was not “appropriate”:

“She’s not enough experience or nothing, no experience at all. I thought she’d maybe had with saying she had with her brother but obviously with what’s happened she hadn’t. Stupid daft mistake.”

Mr Cooper explained to the police why he asked Ms Johnston to sit on his lap:

“I said with it being a private road you’ll be alright down here and I said to her just keep it in first gear so she said okay so she jumped on me cause then I thought maybe that was safer. I can reach the pedals if I needed to… I said well if you can go down the road, but only in first gear and take it steady and listen to what I’m telling you and I’d like to be sat here just in case obviously I can try and stop it but I couldn’t when it happened.”

On Mr Cooper’s own account to the police his vision was compromised with Ms Johnston sitting on his lap. The car travelled between 250 and 500 metres on the access road before reaching the entrance to the caravan park. The car stayed in first gear all the way and probably did not travel at more than about 10 mph.

[5]        The route into the caravan park takes a 90 degree left turn off the access road, passes between a shed on the left and the end of the toilet block on the right; after passing the end of the toilet block the route takes a 90 degree right turn round the end of the toilet block and proceeds straight ahead over a gravelled area onto the grass where the travelling caravan stances and tent pitches are located to the right hand side. Things began to go wrong at the end of the toilet block. The driver’s side of the car passed close to the toilet block. Ms Johnston, on her own account, “panicked”. Instead of turning immediately right into the park, the car headed towards a static caravan on the grass opposite the toilet block and then arced right through 180 degrees on a course that took it back across the gravelled area and onto the grass park towards the static caravan belonging to Mr Mackay. The car crashed through the wooden fence in front of Mr Mackay’s caravan, ran Mr Mackay down as he stepped out of his caravan to get some fresh air and crashed into his caravan. Mr Mackay had been cutting up onions as he prepared to cook the evening meal for himself and his partner. He had gone outside because his eyes were stinging and tearful.

[6]        The jury heard from the police accident investigator that the speed at impact was about 20 mph. The investigator found signs of acceleration in the marks on the gravel and the grass and in the striation around the circumference of the tyres. Mr Cooper told the police that the engine had revved up. He speculated or purported to speculate that Ms Johnston had depressed the accelerator instead of the brake or had got her foot stuck between the accelerator and the brake. According to Ms Johnston she and Mr Cooper got their feet mixed up fighting for the brake. Mr Cooper told the police:

“I was trying to get through to the pedals but I couldn’t feel the pedals or anything... I was like trying to get through and get in but obviously I had my seat too far back so she could sit and I couldn’t really move with her sat on me and I couldn’t get to the pedals.”

Ms Johnston’s evidence was that Mr Cooper grabbed the steering wheel and that she let go as the car passed the corner of the toilet block; and that Mr Cooper had turned the car to the right. The police accident investigator told defence counsel that the marks on the gravel did not evidence a sudden movement to the right.

[7]        Counsel agreed that the case was unique so far as their researches went-the advocate depute is the editor of the current edition of Wheatley’s Road Traffic Law in Scotland. Counsel referred me to a number of authorities on the meaning of “driving”. Two of the reported cases discuss two persons sharing control of vehicles with one on them leaning over from the front passenger seat: but none of the cases features two people in the driver’s seat, one sitting on the other’s lap; and none of the cases involves a co-driver who does not actually operate any of the controls. In his speech to the jury the advocate depute submitted that a vehicle can be driven by two persons at the same time. It is possible, he said, to be guilty of dangerous driving by doing nothing-imagine a driver falling asleep; or a driver driving on a motorway and climbing into the back seat leaving the car to steer itself. Mr Moggach for the defence told the jury that the test of whether someone is driving is whether that person is “in a substantial sense controlling the movement and direction of the vehicle”. He submitted that the only evidence that Mr Cooper was controlling the vehicle came from Ms Johnston: the evidence was uncorroborated; and that, anyway, Ms Johnston’s evidence should be rejected because it was incredible and unreliable.

[8]        For my directions I drew on the cases cited by counsel and some other cases noted in the textbook passages to which counsel referred me [Wilkinson’s Road Traffic Offences 26^th edn (London 2013), §§ 1.89-1.109; A Brown ed, Wheatley’s Road Traffic Law in Scotland  5^th edn (Hayward’s Heath, 2014), 15-17, 32-53, 72-75]. For the purposes of this note I have inserted the references into the following extracts from my directions to the jury: 

“Even if you find the driving to be dangerous you cannot convict unless you are satisfied beyond reasonable doubt by corroborated evidence that the accused was actually party to the dangerous driving in the sense that he contributed substantially to it at the material time.

As Mr Moggach [defence counsel] correctly submits this is not a case of ‘causing or permitting’ an unqualified driver to take control. There are statutory offences of that sort but that is not what is alleged here.

Nor is it a case of ‘being in charge’ of a motor vehicle while something unlawful is happening. There are statutory offences of that sort but that is not what it is alleged here.

Nor is it a case of culpable homicide or other criminally reckless conduct at common law. There are crimes of that sort but that is not what is alleged here.

Still less, as Mr Moggach correctly tells you, is it anything to do with common law negligence which might found a claim for compensation. If there is a claim for compensation, that claim will be decided elsewhere with different and less stringent rules of evidence.

The Crown has alleged dangerous driving by the accused contrary to section 1 of the 1988 Act and that is what the Crown has to prove before there can be a conviction. The Crown is not seeking an alternative verdict of any kind.

Ladies and gentlemen ‘driving’, as you might expect, is normally said to mean controlling the movement, the speed and the direction of the vehicle. In a standard manual gear change motor car such as you are dealing with here that would normally involve being in the driving seat and actually working the controls namely the ignition switch, the gear lever, the hand brake, the accelerator, the footbrake, the clutch and the steering wheel or at least some of them. I emphasise ‘normally’.

The ways in which the movement, speed and direction of a vehicle can be controlled are said to be infinite [Regina v McDonagh [1974] RTR 372]. Driving has been held to include, for certain purposes, sitting in the driving seat of a towed vehicle using just the steering wheel and the brakes [Regina  v McDonagh [1974] RTR 372; R (Traves) v DPP [2005] EWHC 1482]. Depending on circumstances, driving can include coasting in a vehicle without power for a short distance even though the engine is off and the steering locked [McArthur v Valentine 1990 JC 146]. It has included pushing a vehicle which has run out of fuel while standing outside the vehicle and leaning in with one hand on the steering wheel [Ames v MacLeod 1969 JC 1].

The case law establishes, as the advocate depute has correctly told you, that a vehicle can have more than one driver at the same time [Langman v Valentine [1952] 2 All ER 803; Tyler v Whatmore [1978] RTR 83]. The reported cases are about the front seat passenger leaning over and working the steering wheel while the person in the driving seat works the pedals.

Driving involves the intention to control the movement, direction and speed of the vehicle. If someone intends to drive they may be a driver even though they have got the wrong keys and the most they can do is to release the hand brake and let the car coast [Burgoyne v Phillips [1983] RTR 49]. Grabbing the steering wheel from the passenger seat in an unintentional reflex action has been decided not to constitute driving because there is no intention to drive [Jones v Pratt [1983] RTR 54]. Equally, operating the controls by accident is not driving because there is no intention to drive [Blayney v Knight [1975] RTR 279].

Whether or not someone is driving or is the driver is said to be a question of fact and degree [McArthur v Valentine 1990 JC 146].

In cases where a vehicle goes out of control I direct you that it is open to think that the question is not so much about who has operated the controls as who has failed to operate the controls. A leading Scottish case defines driving in terms of the extent of the individual’s ‘powers of intervention with the movement and direction of the vehicle’ [Ames v MacLeod 1969 JC 1]. I direct you that if a person who is in the driver’s seat of a moving vehicle with the intention of having or taking control of the vehicle puts it beyond his or her power to actually control the vehicle that does not necessarily prevent them being classed as a driver.” 

[9]        In discussing the application of the rules of evidence to this case I directed the jury in the following terms:

“… The allegation that the Crown seeks to prove in line 27-this is important-is that both were driving and that they did ‘fail to keep proper control of said motor vehicle, cause said vehicle to accelerate, lose control of said motor vehicle…’ You can either take a precise view of the matter as urged on you by Mr Moggach (with a degree of justification from the case law) to the effect that there is no evidence or no acceptable evidence that the accused was to a substantial extent in control of the movement, direction or speed of the vehicle; and if you were persuaded of all that you would be bound to acquit. The accused, Mr Moggach says, “abdicated his role of driver in favour of Ms Johnston”. He was not driving within the meaning of the Road Traffic Act.

Or you can take the broader view urged on you by the advocate depute which amounts as I understand it to saying that the accused was and continued to be the default driver, allowing some freedom to Ms Johnston under his directions but always ready, he thought, to take over if need be and certainly with the intention that that is how the arrangement should work.

If you take the more precise view of ‘driving’ contended for by Mr Moggach you have to consider what evidence is available to support the contention that Mr Cooper operated the controls of the vehicle. What positive part if any did the accused play in failing to keep proper control, causing the vehicle to accelerate and in losing control of the vehicle?

The allegation is that the vehicle accelerated. The marks on both the ground and the tyres support that, you may think, on the evidence given by PC Neil Thomson the accident investigator. Did this happen as it was going towards, and turning away from the static caravan on the left? That is for you to decide. The accused says or implies that it was Ms Johnston who caused the vehicle to accelerate. At one point you may think he said, it’s a matter for you, “it seemed to rev up quick”: but in any event there is no evidence whatsoever that the accused was responsible for working the accelerator at that point.

What about steering? You may think that there was evidence from Ms Johnston that the accused helped to turn the car off the access road and repeated evidence from her that the accused took or grabbed the steering wheel at the toilet block. Do you remember Mr Moggach asking in cross-examination-it is entirely a matter for your recollection: ‘Did he say anything when you almost hit the toilet block?’ Answer: ‘That’s when he grabbed the steering wheel.’ It is a matter for your recollection: did she say at one point that this was because she was turning it too slowly? And did she imply that this was after passing the toilet block; that this was about turning to the right so as to avoid the static caravan on the left and to go into the park? Did she demonstrate the steering wheel being turned to take the car to the right? If this is true, the accused may well, on Ms Johnston’s evidence, have turned the car onto the course that led to the death of Mr MacKay.

The accused has never been asked about this directly: but in his police interview you may think that he stated that he did not steer the car and could not steer the car because of the position of the seat and the position of Ms Johnston. He repeatedly referred, you may think, to Ms Johnston steering the car towards one caravan then the other. At one point you may think he said: ‘I can remember steering away from the caravan.’ If so, it would be open to treat this as an admission. Equally the remark you might think, in its context, is open to interpretation, simply meaning that the car was ‘steering away from the caravan’. At another point he was asked, you may recollect, when describing veering towards the static caravan on the left and then veering away from it: ‘Who was doing the turning?’Answer: ‘Kylie was doing everything. I just sat on.’ And you may think that he said he couldn’t get to the pedals or the steering wheel.

On the other hand you may recollect, it is a matter for you, that he said about the start of this bit of the journey that he worked the ignition with Ms Johnston sitting on his knee. And of course you may remember, it is a matter for you, the accused telling the police: ‘... So she jumped on me ‘cause then I thought maybe that was safer, I can reach the pedals if I needed to...’ If he could reach the ignition and the pedals, has he satisfied you that he could not reach the steering wheel?

But even if you assess the accused to be lying about not being able to reach the steering wheel, that does not mean that the opposite is true. And the question is: where, if you discount the possible admission, is the corroboration that he actively steered the vehicle?

Mr Moggach concedes that there is sufficient evidence, meaning that there is corroborated evidence if you accept it and if you take the evidence at its highest, to prove the charge against the accused. But he is not specific. The advocate depute has not told you in clear terms where you should look for corroboration. I have pondered the matter. I have reached the conclusion, though you may well think it a thin case in this aspect, that if you accept Kylie Johnston’s evidence about who was steering and turning to the right it would be open to you to accept that the marks on the ground as explained by PC Neil Thomson are consistent with Ms Johnston’s evidence and therefore corroborative of it. Let me emphasise: before you can reach a conclusion based on that evidence you would have to reject the accused’s evidence about not steering; and you would have to take account of PC Thomson’s evidence I think, elicited by Mr Moggach in cross examination, it is a matter for you, that the marks so far as they show the track of the vehicle on the gravel and the grass, do not evidence, a sudden movement to the right. You may or may not be left with a reasonable doubt on that point. It is a matter for you.

So much for the positive aspect of failing to keep proper control and of loss of control by accelerating and steering on the fatal course-what about the negative aspect and in particular the delay, failure or omission to apply the brakes. You may think that there is no evidence that the vehicle braked, no evidence from the accident investigator and no evidence from either of the people in the driving seat that they successfully worked the brake pedal.

If Ms Johnston is to be believed it would be open to conclude that she and the accused were getting their feet mixed up. She was trying to find the brake but his feet were in the way. As for Mr Cooper, you may recollect him telling the police:

‘I was trying to get through to the pedals but I couldn’t feel the pedals or anything... I was like trying to get through and get in but obviously I had my seat too far back so she could sit and I couldn’t really move with her sat on me and I couldn’t get to the pedals.’

It is entirely a matter for your recollection and assessment.

If you adopt the approach to the question of driving contended for by Mr Moggach, it is certainly correct as Mr Moggach states that unless you accept the evidence of Ms Johnston in its essentials you cannot convict. And Mr Moggach has given you a number of reasons for rejecting her evidence, pointing both to her demeanour and to certain possible contradictions in what she said.

If you take the broader approach contended for by the advocate depute you would wish to factor in the following points he founded on which go beyond who precisely had their hands or their feet on the controls at the particular time: it was the accused’s car and he was the only qualified driver; the journey on which he had set out was not yet complete and he intended to get his car back to the caravan site; it was admittedly his idea that Ms Johnston should ‘have a go’ under his directions or supervision; he remained in the driving seat with the intention of accessing the controls; he intended that he would take over if need be. You are reminded that he told the police:

‘I said... take it steady and listen to what I’m telling you and I’d like to be sat here just in case obviously, I can try and stop it. But I couldn’t when it happened.’

When it came to the bit on Mr Cooper’s account he tried to take over but found, he says, that it was physically impossible. Is this how you recollect and assess the evidence? It is entirely a matter for you.

If you take the view that Mr Cooper was driving you have to consider whether his driving was dangerous. It is open to you to take into account the admissions made by him to the police that he meant to be able to reach the controls but found that Kylie Johnston-whom he had put on his lap-obstructed him; that his view out of the windscreen was compromised; that he knew Ms Johnston was unqualified and had never driven his car before; that, even if he is telling the truth about her reported previous driving, he had no certain knowledge of her skill and experience; he had earlier seen another caravan coming in and he knew there would be more people and possibly children around; he knew to be careful at the toilet block corner where there might be people. It’s open to you to take these things into account depending on your recollection and assessment of the evidence.”

[10]      The jury took one hour to reach their verdict. By a majority they returned a verdict of guilty under deletion, as already stated, of the words “did move the seat back and away from the steering wheel and foot pedals”. They did not delete the words “cause said motor vehicle to accelerate”. Of course causing the vehicle to accelerate could be seen as both a function of depressing the accelerator and as a function of not depressing the brake pedal. I think the verdict is consistent with the broader view, contended for by the Crown, of what constitutes driving within the meaning of section 1 of the Road Traffic Act 1988.