Hilary
Term
[2016] UKSC 5
On appeal from: [2014]
EWCA Crim 829
JUDGMENT
R v Taylor (Appellant)
before
Lord Neuberger, President
Lady Hale, Deputy
President
Lord Mance
Lord Sumption
Lord Carnwath
Lord Hughes
Lord Toulson
JUDGMENT GIVEN ON
3 February 2016
Heard on 15 December 2015
|
Appellant
Andrew McGee
(Instructed by
Trinity Advocates)
|
|
Respondent
Steven Kovats QC
Duncan Atkinson
(Instructed by
Crown Prosecution Service Appeals and Review Unit)
|
LORD SUMPTION: (with whom
Lord Neuberger, Lady Hale, Lord Mance, Lord Carnwath, Lord Hughes and Lord
Toulson agree)
1.
This is an appeal by leave of the Court of Appeal on a point of law
arising in the course of the trial of the appellant, Jack Taylor, in the Crown
Court at Exeter for aggravated vehicle taking, contrary to section 12A of the
Theft Act 1968.
The facts
2.
The facts can be shortly stated. On the evening of 23 June 2012, the
appellant, who was in Exmouth, took a Ford Transit Tipper truck from a friend,
David Marriott, in order to collect another friend from Exeter. The truck
belonged to Marriott’s employer, and the Crown alleges that it was taken
without the owner’s consent. Having picked up the friend, the appellant was
driving back to Exmouth when he collided on a bend in a narrow country lane
with a scooter driven by Steven Davidson-Hackett. The scooter slid under the
wheels of the truck, and Davidson-Hackett was killed. The appellant was later
found to be over the drink drive limit. He was also uninsured. But the Crown,
after a careful investigation of the accident, accepts that there was no
evidence on which a jury could be sure that the manner of his driving was at
fault or open to criticism.
The statutory framework
3.
Section 12 of the Theft Act provides that a person shall be guilty of an
offence if
“without having the consent of the
owner or other lawful authority, he takes any conveyance for his own or
another’s use or, knowing that any conveyance has been taken without such
authority, drives it or allows himself to be carried in or on it.”
This a summary
offence carrying a maximum sentence of six months imprisonment.
4.
There are a number of offences of varying degrees of gravity which may
be committed by drivers whose manner of driving causes death, injury or damage.
At the relevant time, they included manslaughter, causing death by dangerous
driving, causing death by careless or inconsiderate driving, dangerous driving,
careless or inconsiderate driving, causing death by careless driving when under
the influence of drink or drugs, and various other offences involving drink or
drugs. All of these offences require mens rea, generally provided by the
absence of due care. The appellant was not charged with any of them, and in the
light of the agreed facts about the manner of his driving, he could not have
been convicted of any of them. Instead, he was charged with aggravated vehicle
taking contrary to section 12A of the Theft Act 1968.
5.
Section 12A of the Theft Act was inserted by section 1 of the Aggravated
Vehicle Taking Act 1992. It provides so far as relevant, as follows:
“12A Aggravated vehicle-taking
(1) Subject to subsection
(3) below, a person is guilty of aggravated taking of a vehicle if -
(a) he commits an offence
under section 12(1) above (in this section referred to as a ‘basic offence’) in
relation to a mechanically propelled vehicle; and
(b) it is proved that, at
any time after the vehicle was unlawfully taken (whether by him or another) and
before it was recovered, the vehicle was driven, or injury or damage was
caused, in one or more of the circumstances set out in paragraphs (a) to (d) of
subsection (2) below.
(2) The circumstances
referred to in subsection (1)(b) above are -
(a) that the vehicle was
driven dangerously on a road or other public place;
(b) that, owing to the
driving of the vehicle, an accident occurred by which injury was caused to any
person;
(c) that, owing to the
driving of the vehicle, an accident occurred by which damage was caused to any
property, other than the vehicle;
(d) that damage was caused
to the vehicle.
(3) A person is not guilty
of an offence under this section if he proves that, as regards any such proven
driving, injury or damage as is referred to in subsection (1)(b) above, either -
(a) the driving, accident
or damage referred to in subsection (2) above occurred before he committed the
basic offence; or
(b) he was neither in nor
on nor in the immediate vicinity of the vehicle when that driving, accident or
damage occurred.”
At the time when
section 12A was enacted, it carried a maximum sentence of two years’
imprisonment, or five years if the accident caused the death of the victim. The
five years was increased by section 285(1) of the Criminal Justice Act 2003 to
14 years.
6.
The Crown contends that the only element of fault required for the
offence under section 12A(2)(b) is the unauthorised taking of the vehicle, and
that no further fault on the part of the defendant need be proved in relation
to the occurrence of the accident.
The proceedings
7.
The appellant was charged on an indictment containing five counts. Of
these Counts 1, 2 and 5 can for present purposes be ignored. Count 1 related to
a previous occasion; Count 2 related only to David Marriot; and the Crown
decided not to proceed on Count 5. That left only Count 3, which charged him
with aggravated vehicle taking; and Count 4, which charged him jointly with
Marriott with causing the death of Mr Davidson-Hackett while driving uninsured,
contrary to section 3ZB of the Road Traffic Act 1988 (as inserted by section
21(1) of the Road Safety Act 2006).
8.
On 31 July 2013, the Supreme Court gave judgment in R v Hughes
[2013] 1 WLR 2461, holding that an offence under section 3ZB of the Road
Traffic Act 1988 required proof that there was some element of fault in the
defendant’s control of the vehicle, which contributed in a more than minimal
way to the victim’s death.
9.
The case came before the Recorder of Exeter (His Honour Judge Gilbert
QC) on 13 January 2014. At the opening of the case, an application was made on
behalf of both defendants to vacate Count 4 in the light of the decision in Hughes.
After an adjournment overnight, the Crown accepted that there was no fault in
the manner of Mr Taylor’s driving and announced that they would offer no
evidence on Count 4. A verdict of Not Guilty was accordingly directed on that
count.
10.
The question then arose whether the decision in Hughes also ruled
out a conviction on Count 3. The Recorder was invited by both parties to rule
on this point. The Crown sought to distinguish Hughes. It relied on the
decision of the Court of Appeal (Criminal Division) in R v Marsh [1997]
1 Cr App R 67 as authority for the proposition that there was no element of
fault in the offence of aggravated vehicle taking. The Recorder decided that
point against them. He ruled that fault had to be proved in relation to the
accident. The Crown asked for leave to appeal his ruling on the count of
aggravated vehicle taking, and the proceedings were adjourned until the appeal
had been disposed of.
11.
The appeal was heard on 9 April 2014 by the Court of Appeal (Criminal
Division) (Pitchford LJ, Sweeney J and HHJ Bourne-Arton). They allowed the
appeal on the ground that Marsh remained binding authority, but
certified a question of general public importance and gave leave to appeal to
the Supreme Court. The certified question was as follows:
“Is an offence contrary to
section12A(1) and 2(b) of the Theft Act 1968 committed when, following the
basic offence and before recovery of the vehicle, the defendant drove the
vehicle, and without fault in the manner of his driving the vehicle was
involved in an accident which caused injury to a person.”
The authorities
12.
Three cases are directly in point, R v Marsh [1997] 1 Cr App R
67, R v Williams [2011] 1 WLR 588, and R v Hughes [2013] 1 WLR 2461.
13.
The facts of Marsh were in the relevant respects
indistinguishable from those of the present case, except that the injury to the
victim was not fatal. Like the present case, it turned on the meaning of the
words “owing to the driving of the vehicle, an accident occurred by which
injury was caused to any person” in section 12A(2)(b). The Court of Appeal
ruled that fault in relation to the accident was not an element of the offence.
The judgment of the court was delivered by Laws J. He held that the only
relevant requirement of the subsection was that the driving of the vehicle
should have been the cause of the accident, and that it was not legitimate to
imply words which would require proof that the manner of the driving was
the cause of the accident. He pointed out that section 12A(2)(a) expressly
required that the vehicle should have been driven dangerously, but that no
corresponding requirement of fault could be found in subsections (b), (c) or
(d). He therefore concluded that once it was established that the basic offence
of taking the vehicle had been committed, no further element of fault was
required.
14.
In Williams, the offence charged was causing death by driving
when unlicensed, disqualified or uninsured, contrary to section 3ZB of the Road
Traffic Act 1988. The statute provided that a person committed an offence if,
being unlicensed, uninsured or disqualified, he “causes the death of another
person by driving a motor vehicle on a road”. (The reference to disqualified
drivers has since been removed, and separate offences created to cover them.)
The facts were that the defendant was driving through Swansea, without a
licence or insurance, when a pedestrian crossed the central reservation and
stepped in front of his car. On the facts, the accident was entirely the fault
of the pedestrian. Nevertheless, the trial judge ruled that fault was not an
element of the offence, and the defendant was convicted. His ruling was upheld
by the Court of Appeal. They considered, at para 14, that “the approach of this
court in Marsh applies even more clearly to the offence under section
3ZB of the 1988 Act”.
15.
In Hughes, where the same offence was charged, the facts were
remarkable. Mr Hughes was driving his family’s camper van, when a vehicle
approached in the other direction, veering all over both sides of the road. The
other driver, a Mr Dickinson, was overtired, having driven a long distance, and
high on heroin. There was a collision in which Mr Dickinson was killed. It was
common ground that Mr Hughes’ driving was faultless and that there was nothing
that he could have done to avoid the accident. But he was driving without a
licence or insurance, and was prosecuted under section 3ZB for causing Mr
Dickinson’s death. The trial judge ruled that he had not committed the offence
because he had not “caused” the death. The Court of Appeal [2011] 4 All ER 761
overturned the ruling, once again applying Marsh. It held, as it had
done in Williams, that “the approach of this court in Marsh
applies even more clearly to the offence under section 3ZB.”
16.
The decision was reversed in the Supreme Court. The judgment of the
court was delivered by Lord Hughes and Lord Toulson. They started by drawing
attention to the consequences of the Court of Appeal’s decision at para 9:
“The difficulty, however, exposed
by the present case and others like it is that instead of Mr Hughes being
punished for what he did wrong, namely for failing to pay his share of the cost
of compensation for injuries to innocent persons, he is indicted and liable to
be punished for an offence of homicide, when the deceased, Mr Dickinson, was
not an innocent victim and could never have recovered any compensation if he
had survived injured. A further difficulty is that since using a car uninsured
is an offence of strict liability, it is an offence which may well be committed
not only by the likes of Mr Hughes, who deliberately fail to take out
insurance, but also by those who overlook a renewal notice, or who find
themselves uninsured because of an office mistake by brokers, or because they
have driven someone else’s car when both they and the owner believed there was
valid insurance but in fact there was not, for example because a condition in
the policy had been overlooked. If the ruling in the present case is correct,
all such persons will be guilty of a very serious offence of causing death by
driving if a fatal collision ensues, even if they could have done nothing to
avoid it. Has Parliament used language which unambiguously has such far
reaching effects?”
17.
The argument of the Crown, as summarised at para 15 of the judgment, was
that the object of the enactment was to “impose criminal liability for a death
if it involved the presence of the defendant at the wheel of a car on the road
where he had no business to be”. This court’s reasons for rejecting that
argument in Hughes may be summarised as follows:
(1)
The statutory requirement that the driving should cause the death was
not satisfied if all that could be shown was that the accident would not have
happened if the uninsured driver of the car had not been on the road. The fact
that the car was on the road was a precondition of the accident, and perhaps
the occasion for it, but was not the effective cause or even one among a number
of effective causes:
“By the test of common sense,
whilst the driving by Mr Hughes created the opportunity for his car to be run
into by Mr Dickinson, what brought about the latter’s death was his own
dangerous driving under the influence of drugs. It was a matter of the merest
chance that what he hit when he veered onto the wrong side of the road for the
last of several times was the oncoming vehicle which Mr Hughes was driving. He
might just as easily have gone off the road and hit a tree, in which case
nobody would suggest that his death was caused by the planting of the tree,
although that too would have been a sine qua non.” (para 25)
(2)
In the absence of a test of effective causation, the offence would be
committed even in a case where the casualty resulted from the deliberate act of
the victim, as in the case of the suicide or attempted murder considered in
para 16 of the judgment.
(3)
The culpability of the defendant’s conduct in taking the vehicle in the
first place could not logically constitute the mens rea appropriate to
an offence the essence of which that it caused a man’s injury or death.
“To say that he is responsible
because he ought not to have been on the road is to confuse criminal
responsibility for the serious offence of being uninsured with criminal
responsibility for the infinitely more serious offence of killing another
person.” (para 17)
(4)
The fact that there were other offences which were unquestionably
fault-based, including the offence of causing death by careless or
inconsiderate driving, which was created by the same statute, did not mean that
there was no element of fault in the offence of causing death while driving
unlicensed or uninsured. It was not uncommon for the elements of different
offences to overlap, and for particular offences to add little to those which
already exist.
(5)
The gravity of any offence of homicide, and the potential severity of
the penalties, meant that if Parliament intended these consequences to follow
in a case where the conduct of the defendant had not caused the death, it must
make its intention unequivocally clear, not least so that the court could be
satisfied that the legislators had confronted the moral dilemma with knowledge
of the consequences.
Should we depart from Hughes?
18.
The Crown’s primary case on this appeal was that the decision in Hughes
should be overruled under Practice Statement (Judicial Precedent) [1966] 1 WLR
1234. The main point urged in support of this course was that that the Crown
had conceded in Hughes that the absence of fault could not be irrelevant
in all circumstances. It is correct that when taxed with some of the more
extreme consequences of the Crown’s case, Counsel beat a tactical retreat on this
point. He accepted that the defendant could not be convicted if the death was
due to the deliberate act of the deceased. As Lord Hughes and Lord Toulson
pointed out (para 16), “once that is accepted, it is difficult to see where
else a line is to be drawn than by following the normal approach to causation
taken by the common law”. Counsel submitted that the exception could be
rationalised on the ground that the deliberate act of the victim broke the
chain of causation. But as the judgment points out, that presupposes that there
is a chain of causation to be broken. What is clear is that the concession did
not displace the need for argument or analysis. It simply exposed the weakness
of the Crown’s case. Lord Hughes and Lord Toulson dealt with the matter as an
issue of principle. It is difficult to imagine that their conclusion or their
reasons would have been any different if the Crown had stuck to its original,
extreme position.
19.
In those circumstances, the only basis on which it could be right to
depart from the decision now is that the court as presently constituted takes a
different view. A mere difference of opinion can rarely justify departing from
an earlier decision of this court. I can see nothing in the present case which
could justify our taking such a course, and I would decline to do so.
Can Hughes be distinguished?
20.
The next question is whether, on the footing that Hughes is
binding for what it decides, it can be distinguished. The Supreme Court left
open the question how far its reasoning could be applied to the offence under
section 12A of the Theft Act and it expressed no view on the correctness of the
decision in Marsh. This was because there were differences between the
offences created by section 3ZB of the Road Traffic Act 1988 and section 12A of
the Theft Act 1968 and differences in the statutory language which created
them.
21.
Four differences are, at least potentially relevant:
(1)
Unlike driving while unlicensed or uninsured, which are offences of
strict liability, section 12A of the Theft Act requires that the defendant
should have committed the “basic offence” of taking the vehicle without
consent. That is not an offence of strict liability. Under section 12(1)
knowledge of the absence of authority is an essential element.
(2)
Although aggravated vehicle-taking carries a higher sentence if the
vehicle is involved in a fatal accident, the death of the victim is not an
element of the offence. This is not therefore strictly speaking an offence of
homicide.
(3)
The offence under section 3ZB is causing the death of another person “by
driving a motor vehicle on a road.” By comparison, it can be argued that the
driving is merely incidental to the offence of aggravated vehicle-taking as
defined in section 12A of the Theft Act. The dangerous driving, personal injury
or damage to property which constitute the first three aggravating
circumstances must have occurred after the taking of the vehicle and before its
recovery, but there is no requirement that the defendant should have been
driving it, provided that he was party to the taking of the vehicle and was in
or in the immediate vicinity of the vehicle when the driving, accident or
damage occurred. He may have been a passenger or standing by the kerbside.
Indeed, in the circumstances referred to in section 12A(2)(d) (“that damage was
caused to the vehicle”) it is not even necessary that the vehicle should have
been driven at the time of the damage. These considerations might be taken to
suggest that it is the harm rather than the driving which is the gravamen of
the offence.
(4)
Section 12A(3) makes special defences available in two specific cases
where the defendant could not be held responsible, namely where the damage
occurred before he took the vehicle and where he was neither in nor in the
vicinity of the vehicle at the relevant time. This would arguably have been
unnecessary if the offence was subject to a more general requirement of fault.
22.
I shall return to these factors below. For present purposes it is enough
to observe that the essential point made in Hughes is common to both
offences. The phrase “caused the death of another person by driving a motor
vehicle on a road”. (section 3ZB of the Road Traffic Act 1988) and the phrase
“owing to the driving of the vehicle, an accident occurred by which injury was
caused to any person” (section 12A(2)(b) of the Theft Act 1968) both posit a
direct causal connection between the driving and the injury. If the requirement
of causation is satisfied by the mere fact that the taking of the vehicle
accounted for its being in the place where the accident occurred, then all of
the anomalous consequences which this court regarded as extraordinary in Hughes
apply equally to the offence under section 12A. It means that the defendant is
liable to be convicted and sentenced to a long period of imprisonment on
account of an aggravating factor for which he bears no responsibility.
Strict liability
23.
This brings me to the fundamental reason why in my opinion this appeal
must succeed, and why I would have taken the same view even if I had felt able
to distinguish the language of section 12A of the Theft Act or depart from the
reasoning in Hughes. The Crown’s argument effectively invites the court
to treat the section as imposing strict liability for the aggravating factors
which differentiate this offence from the basic offence under section 12, in
circumstances where that course is neither necessary nor warranted by the
language of the Act.
24.
“The full definition of every crime”, said Stephen J in R v Tolson
(1889) 23 QBD 168, 187, “contains expressly or by implication a proposition as
to a state of mind”. The reason was stated in the same case by Wills J, at pp
171-172:
“It is, however, undoubtedly a
principle of English criminal law, that ordinarily speaking a crime is not
committed if the mind of the person doing the act in question be innocent. ‘It
is a principle of natural justice and of our law’ says Lord Kenyon, CJ, ‘that actus
non facit reum, nisi mens sit rea. The intent and act must both concur to
constitute the crime’: Fowler v Padget (1798) 7 TR 509, 514.”
25.
The leading modern case to this effect is Sweet v Parsley [1970] AC 132, in which the rule was reaffirmed by the House of Lords after a period
in which it had been somewhat inconstantly applied. Lord Reid expressed the
general principle at p 149:
“it is firmly established by a
host of authorities that mens rea is an essential ingredient of every offence
unless some reason can be found for holding that that is not necessary. It is
also firmly established that the fact that other sections of the Act expressly
require mens rea, for example because they contain the word ‘knowingly’, is not
in itself sufficient to justify a decision that a section which is silent as to
mens rea creates an absolute offence. In the absence of a clear indication in
the Act that an offence is intended to be an absolute offence, it is necessary
to go outside the Act and examine all relevant circumstances in order to
establish that this must have been the intention of Parliament. I say ‘must
have been’ because it is a universal principle that if a penal provision is
reasonably capable of two interpretations, that interpretation which is most
favourable to the accused must be adopted.”
26.
The rule was never absolute, even in late Victorian England, when Tolson
was decided. But in general a criminal offence will require proof of mens rea
unless strict liability is either required by the clear language of the act or
necessary for the achievement of its purpose. Cases in the latter category
usually involve regulatory statutes. Wills J, immediately after the passage
which I have quoted, gave as examples “bye-laws … regulating the width of
thoroughfares, the height of buildings, the thickness of walls, and a variety
of other matters necessary for the general welfare, health, or convenience”.
Such legislation generally has two characteristic features. The first is that
its requirements are founded on collective convenience rather than moral
imperatives. Lord Reed in Sweet v Parsley called such offences
“quasi-criminal”. But, as he observed at p 149, where the offence carries a
significant moral stigma, it is necessary to consider “whether, in a case of
this gravity, the public interest really requires that an innocent person
should be prevented from proving his innocence in order that fewer guilty men
may escape”. The second characteristic feature of offences of strict liability
is that, although fault in the actual commission of the offence may be
unnecessary, there are nonetheless positive steps that the prospect of criminal
liability may cause people to take in order to prevent the offence from
occurring. Lord Diplock put the point concisely in the same case, at p 163:
“Where penal provisions are of
general application to the conduct of ordinary citizens in the course of their
everyday life the presumption is that the standard of care required of them in
informing themselves of facts which would make their conduct unlawful, is that
of the familiar common law duty of care. But where the subject-matter of a
statute is the regulation of a particular activity involving potential danger
to public health, safety or morals in which citizens have a choice as to
whether they participate or not, the court may feel driven to infer an
intention of Parliament to impose by penal sanctions a higher duty of care on
those who choose to participate and to place upon them an obligation to take
whatever measures may be necessary to prevent the prohibited act, without
regard to those considerations of cost or business practicability which play a
part in the determination of what would be required of them in order to fulfil
the ordinary common law duty of care. But such an inference is not lightly
to be drawn, nor is there any room for it unless there is something that the
person on whom the obligation is imposed can do directly or indirectly, by
supervision or inspection, by improvement of his business methods or by
exhorting those whom he may be expected to influence or control, which will
promote the observance of the obligation.” (emphasis added)
The main reason why
the House of Lords declined to hold Miss Sweet strictly liable for the fact
that her tenants kept cannabis in the rooms which she let out to them was that
there were no reasonable steps which she could have taken to stop them doing it
or discover that they had: see in particular pp 150F-H (Lord Reid), 154-5 (Lord
Morris), 157B-D (Lord Pearce).
Section 12A
27.
The first point to be made about section 12A of the Theft Act is that it
is in no sense a regulatory or “quasi-criminal” enactment. Aggravated
vehicle-taking is a serious crime. Driving offences causing serious injury or
damage are a source of growing public concern. The aggravating factors which
differentiate the section 12A offence from the basic offence expose the defendant
to a maximum sentence of 14 years imprisonment, the same as for causing death
by dangerous driving. Although the death of the victim is not strictly speaking
an element of the offence, the increased maximum sentence for cases where
someone has been killed reflects the real stigma associated with it. Even where
the only damage is to property, the maximum sentence is two years.
28.
The one respect in which section 12A imposes strict liability is that
the offence may be committed not only by the driver but by anyone else who was
party to the basic offence under section 12(1) and is in or in the immediate
vicinity of the vehicle at the time of the dangerous driving, injury or damage.
That emerges unequivocally from the statutory language. But it is important to
note that it is also a rational response to the mischief of the enactment,
which has close analogies to the principle underlying cases of strict liability
identified by Lord Diplock in Sweet v Parsley. The Act treats someone
who has been party to the taking of a vehicle without authority as having
control over it thereafter. He is in a position to take positive steps to
ensure that it is driven safely and not in a manner which causes personal
injury or damage to property. That is the rationale of the proviso that he must
have been in or in the immediate vicinity of the vehicle at the time when the
dangerous driving, injury or damage occurred. His responsibility continues to
be engaged while he is present.
29.
However, it is one thing for the legislature to make a person who has
taken a car without authority responsible for the fault of another person who
drives it in his presence. It is another thing altogether to make him
responsible for personal injury or damage which could not have been prevented,
because it occurred without fault or was entirely the fault of the victim. That
would be a sufficiently remarkable extension of the scope of the strict
liability to require clear language, such as the draftsman has actually
employed to impose liability on a taker who is not the driver. There is no such
language in section 12A. Of the four aggravating circumstances identified in
subsection (2), (a) expressly imports a requirement of fault (the car must have
been driven dangerously), while (b), (c) and (d) contain nothing which
expressly excludes such a requirement. As Lord Reid explained in Sweet v
Parsley, at p 149D-E, this difference cannot itself be enough to make (b),
(c) and (d) operate independent of fault. On the contrary, in the case of (b)
and (c), it is implicit in the requirement that the accident must have occurred
“owing to the driving of the vehicle”, that there will have been something wrong
with the driving. As this court pointed out in Hughes, the driving
cannot be said to have caused the accident if it merely explained how the
vehicle came to be in the place where the accident occurred.
Application to the facts
30.
It follows from the admitted absence of fault in the driving of the
vehicle that the driving did not cause the death of Mr Davidson-Hackett.
31.
The Crown ran an alternative argument to the effect that excess of
alcohol in the appellant’s blood at the time of the accident constituted
sufficient fault to go to the jury. This was said to be because “if he had been
sober he would not have been driving at all, [and] the fatal accident would not
have happened”. To my mind this argument is misconceived. The relevant fault is
the fault in the driving which is necessary to establish the causal connection
between the driving and the accident. The fact that the appellant had excess
alcohol in his blood establishes that he was guilty of the summary offence
under section 5(1)(a) of the Road Traffic Act 1988, but not that this
circumstance had anything to do with the accident. On the agreed facts, it had
none. I need not therefore comment on the oddity of the suggestion that he was
only driving his friend back to Exmouth because he had drunk too much and would
not have driven if he had been sober.
Disposition
32.
I would express the test applicable in this case in the same terms as
Lord Hughes and Lord Toulson expressed it in Hughes at para 36. There
must be “at least some act or omission in the control of the car, which
involves some element of fault, whether amounting to careless/inconsiderate
driving or not, and which contributes in some more than minimal way to the
death”.
33.
For these reasons I would allow the appeal and answer the certified
question “No”.
