Attorney General's Reference (No. 4 of 2000); R v GC
| Jurisdiction | England & Wales |
| Judge | 1. THE LORD CHIEF JUSTICE,22. MR LAPRELL,23. THE LORD CHIEF JUSTICE,24. MR LAPRELL |
| Judgment Date | 19 March 2001 |
| Neutral Citation | [2001] EWCA Crim 780 |
| Court | Court of Appeal (Criminal Division) |
| Docket Number | No. 2000/04724/R2 |
| Date | 19 March 2001 |
[2001] EWCA Crim 780
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand
London WC2
The Lord Chief Justice of England and Wales
(The Lord Woolf of Barnes)
Mr Justice Douglas Brown and
Mr Justice Astill
No. 2000/04724/R2
MR DAVID PERRY appeared on behalf of the ATTORNEY GENERAL
MR M D LAPRELL appeared on behalf of THE ACQUITTED OFFENDER
Monday 19 March 2001
This is an Attorney General's Reference under section 36 of the Criminal Justice Act 1972. The point that the Attorney General refers to this court is in relation to the actus reus of the offence of dangerous driving. It is in these terms:
"Whether a person is driving a vehicle for the purposes of sections 1 and 2A of the Road Traffic Act 1988 when, by a voluntary act, using the controls of the vehicle, he causes it to move and in particular whether a person is driving a vehicle when he, by a voluntary act, causes it to move by putting his foot on the accelerator in the mistaken belief that he was in fact putting his foot on the brake."
Although the question for the opinion of this court is put in those terms, that question has to be seen in the context of this case. In particular, we are grateful for the skilful arguments of Mr Laprell, who also appeared in the court below. He contends that in the circumstances of this case the act of the defendant was not voluntary.The summary of the facts, which are not disputed, is set out in the reference as follows:
"(i) …. shortly after 1.00pm on Tuesday 1 December 1998 'GC' drove a singe decked Dennis Dart Super Low Floor vehicle into the bus station and positioned the vehicle at a service stand, Stand D.
(ii) The vehicle had been in service for about twelve months.
(iii) A number of passengers boarded the vehicle and there was evidence to suggest that GC was anxious to leave the bus station because he was running late. He was overheard to say to one passenger, 'Hurry up, hurry up, I'm ten minutes late.'
(iv) At the time of departure, at about 1.20pm, the vehicle was required to be manoeuvred sharply to the right out of the service bay to avoid the rear of another vehicle positioned at Stand C.
(v) Some witnesses described the movement of the vehicle as being slow and deliberate followed by an acceleration. Other witnesses described a rapid and uncomfortable acceleration from a stationary position within the confines of the service bay at Stand D. The acceleration occurred shortly after the last passenger had boarded the vehicle.
(vi) The vehicle travelled across a pedestrian island where it struck a number of pedestrians and continued until it came to a halt in a street outside the bus station, having travelled a distance of just over 100 metres.
(vii) N and J, two pedestrians, suffered fatal injuries in the incident.
(viii) The physical evidence found at the scene, and from an examination of the vehicle, indicated that it had followed a south-easterly course from Stand D directly across the pedestrian island. This manoeuvre involved 'direct driver input from the initial right turn [which was] required to negotiate the vehicle out of a service bay followed by centralising the steering wheel to a forward position.' Evidence provided by tyre 'wheel spin' marks indicated that the vehicle was accelerating as it passed over the pedestrian island.
(ix) The vehicle, operated by Stagecoach Limited, was examined and there was no evidence to indicate mechanical failure.
(x) The examination revealed that the vehicle was propelled by a rear mounted diesel engine which was controlled by a series of mechanical linkages to an accelerator pedal housed within the driver's control area. The engine output was transferred to the rear road wheels by a fully automatic four speed gearbox. The footbrake was located within the driver's control area, bolted to the floor as an individual unit next to the accelerator pedal. In tests conducted using the vehicle's engine, the application of the accelerator pedal provided an immediate controlled response, and release of pedal pressure returned the engine to an idle speed. There was no evidence to indicate a surge of uncontrolled acceleration, and there was no evidence to show any defect in the throttle controls.
(xi) It was apparent that the vehicle was equipped with a number of independent operating systems which would, if selected by the driver from within his control area, have impeded or prevented the vehicle's forward propulsion. The systems were:
(a) applying the brake pedal;
(b) applying the parking brake;
(c)moving the gear transmission toneutral;
(d) switching off the ignition;
(e)switching off the isolator switch on the driver control panel which disconnects the electricity supply to the vehicle.
(xii) In the opinion of an expert accident investigator the sudden acceleration of the vehicle had been induced by a direct mechanical action as a result of the driver pressing the vehicle's accelerator pedal.
(xiii) In the course of the investigation into the incident, the police were provided with evidence from an engineer involved in the design of Dart Passenger Carrying Vehicles.
(xiv) The expert provided evidence that in 1991, following a number of incidents concerning alleged power surges on Dart Vehicles, London Buses Limited commissioned a report from the Cranfield Institute of Technology.
(xv) This report …. concluded that there was no evidence to support the claims that mechanical malfunction caused a power surge in any of the cases under investigation, and the most likely explanation was that the driver had pressed the throttle pedal instead of the brake pedal.
(xvi) The report indicated that 75% of the incidents under investigation occurred when a driver moved from a stationary position and when the drivers were unfamiliar with the pedal locations. The report also noted that the pedal positions on the Dennis Dart were closer to the steering column than on the majority of public service vehicles.
(xvii) As a result of the report, in October 1993 a service bulletin was issued by the manufacturers advising of the dangers associated with inadvertently pressing the accelerator pedal instead of the pedal brake.
(xviii) In 1994 the Motor Industry Research Association was commissioned by the manufacturers, and London Buses Limited, to examine cab ergonomics in greater detail.
(xix) The report which followed (London Buses Limited, Drivers' Cab Ergonomics Final Report 12 January 1994) found that the pedal arrangement on the Dennis Dart was not dissimilar to that on the remainder of the London Bus Fleet. The report did, however, suggest a revised driver's position be introduced which involved moving the pedals forward to allow a driver to adopt a more reclined driving position.
(xx) Following the incident on 1 December 1998 Dart commissioned ICE Ergonomics Ltd ('ICE') to examine the vehicle cab design. On 4 May 1999 ICE concluded that the foot pedal control layout on the Dennis Dart may increase the potential for an unintended acceleration incident.
(xxi) GC was interviewed under caution in the presence of his solicitor on 23 December 1998 and 9 February 1999.
(xxii) In the first interview GC stated that after the passengers had got on to the bus, he had closed the doors. He then checked before moving off, and as the bus glided forward 'it just took off'. He had passed his driving test in 1970 and had been licensed to drive passenger vehicles since 1975. He had been employed as a bus driver for at least 10 years. He was in good health. He usually drove minibuses with manual gearboxes. He had received familiarisation training on the vehicle and had previously driven a Dennis Dart, though only on one occasion a long time before the incident. He stated that he had been quite happy with the floor layout of the pedals. On the day of the incident he had started work at shortly after 10.00am. He had driven four round trips. As he pulled away from the stand the vehicle gained momentum and 'shot away'.
(xxiii) In the second interview GC repeated his assertion that the vehicle seemed to 'shoot away' and could give no explanation for the accident."
In March 2000, GC appeared before the Crown Court. After hearing legal argument at the end of the prosecution case, the judge acceded to a submission of 'no case to answer'. He directed the jury to return a verdict of not guilty on both counts of causing death by dangerous driving on the indictment. The judge's decision was that the Crown had failed to prove the actus reus of the offences, because they had failed to establish a deliberate act done by GC which was directed by a mind conscious of that act.
The offence of causing death by dangerous driving is contained in the Road Traffic Act 1988. Section 1 of that Act provides:
"A person who causes the death of another person by driving a mechanically propelled vehicle dangerously on a road or other public place is guilty of an offence."
Section 2A of the Road Traffic Act sets out the meaning of "dangerous driving":
"(1) For the purposes of sections 1 and 2 above a person is to be regarded as driving dangerously if (and, subject to subsection (2) below, only if) —
(a) the way he drives falls far below what would be expected of a competent and careful driver, and
(b) it would be obvious to a competent and careful driver that driving in that way would be dangerous.
(2) A person is also to be regarded as driving dangerously for the purposes of sections 1 and 2 above if it would be obvious to a competent and careful driver that driving the vehicle in its current state would be dangerous.
(3) In subsections (1) and (2) above...
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