Divisional Court
| Published date | 01 February 1991 |
| Date | 01 February 1991 |
| DOI | http://doi.org/10.1177/002201839105500101 |
| Subject Matter | Divisional Court |
DIVISIONAL
COURT
DIRECTION ON ALTERNATIVE OFFENCE
R v Jeavons
Where a defendant is charged with reckless driving contrary to s 2
of the Road Traffic Act 1972 (now s 2 of the Road Traffic Act
1988), when is it proper for the judge to invite the jury to consider
the possibility of an acquittal of that offence, but a conviction of
driving without due care and attention contrary to s 3? In Rv
Fairbanks
[1986]
1 WLR 1202, a conviction of causing death by
reckless driving was quashed on the ground that the judge's failure
to put the alternative of the lesser offence before the jury was a
material irregularity, since there was evidence to support a convic-
tion of the lesser offence, on the case as presented by the
prosecution and there was evidence that the driving and speed
were such as to support a lesser charge than that of reckless
driving. In RvMaxwell
[1988]
1 WLR 1265, however, the appeal
against conviction of the graver charge was dismissed, on the
ground that the judge's duty, when a viable alternative offence is
disclosed, is simply 'to use his powers so that the issues left to the
jury fairly reflected the issues raised during the trial'. In an attempt
to reconcile these two pronouncements, the court in R v Jeavons
[1990]
RTR
263 stated its conclusions thus: 'The judge's task is to
see that the issues are laid before the jury clearly and that the
indictment covers the offence or offences which the facts disclose' .
It added, however, that 'it is equally his task to see that irrelevant
allegations and irrelevant charges are excluded'. The questions,
therefore, are, when is an alternative offence 'irrelevant?' and
when may it confuse the jury to have heard it mentioned?
In R v Jeavons, the appellant was alleged to have been racing
with a co-defendant on roads in a built-up area. The co-defendant
had knocked down and killed a pedestrian who was on a pedestrian
crossing. The co-defendant pleaded guilty, but the appellant
claimed that, although he was travelling at 40 mph in a 30 mph
area, he was not racing, that he had seen the deceased and that
1
Journal
of
Criminal
Law
he had avoided him without having to take any 'avoiding action'
to do so. Indeed, he asserted to the police (although he did not
give any evidence at his trial) that he had not known that there
had been an accident until they told him of it some days later.
The trial judge declined to put the alternative offence of careless
driving to the jury. The main ground of appeal was that that ruling
was wrong in law. Lord Lane CJ, however, pointed
out
that there
was really only one issue in the case: was the defendant guilty of
competitive driving?
If
he was, he was guilty of reckless driving;
if not, he was guilty of nothing more than driving in excess of the
applicable speed limit, with no adverse consequences and no
possibility of adverse consequences, since he had seen and avoided
the pedestrian. Thus, his own story made it clear that 'there was
not the remotest ground for an allegation of careless driving'. The
court stated that it would have exercised its discretion exactly as
the judge had done.
The
conviction was neither unsafe nor
unsatisfactory. Two reasons support that conclusion: the evidence
showed that careless driving was not an alternative, on the facts,
and a direction on it would have distracted the jury from its
determination of the only issue, that of competitive driving.
DOUBLE JEOPARDY
R v Forest
of
Dean JJ, ex pFarley
The offence of causing death by reckless driving and the offence
of driving with excess alcohol may obviously overlap, since the
allegation of recklessness may consist of or arise out of nothing
more than the consumption of the alcohol. When this is so, the
relation between the two charges and the manner in, and time at,
which they are preferred are obviously matters of vital importance
to the defendant. In R v Forest
of
Dean JJ, ex pFarley
[1990]
RTR
228, the applicant for judicial review had consumed alcohol
and, in driving a vehicle on a road, had failed to negotiate abend
and thus overturned the car, killing a passenger. He claimed that,
before calling the police, he had consumed alcohol. The breath
tests taken some time later showed him to be below the prescribed
limit, but back-calculation showed him to be beyond it at the time
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