Milton v DPP
| Jurisdiction | England & Wales |
| Judge | Lady Justice Smith,Mr Justice Gross |
| Judgment Date | 16 March 2007 |
| Neutral Citation | [2007] EWHC 532 (Admin) |
| Docket Number | Case No: C0/9802/2006 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 16 March 2007 |
[2007] EWHC 532 (Admin)
Lady Justice Smith
Mr Justice Gross
Case No: C0/9802/2006
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
John McGuinness QC & Alexandra Healy (instructed by O'Gorman & Co ) for the Claimant
Patrick Sullivan (instructed by The Crown Prosecution Service, West Mercia)
Hearing date: 6 March 2007
Introduction
This appeal is concerned with the question of if, in determining whether a driver has been guilty of driving dangerously contrary to Section 2 of the Road Traffic Act 1988 as amended by the Road Traffic Act 1991 (referred to hereafter as the RTA), it is permissible to take account of the driver's personal driving skills. It is an appeal by way of case stated against the decision of District Judge Peter Wallis sitting at the Magistrates' Court in Ludlow, in August 2006, when he convicted the appellant of dangerous driving. Notwithstanding the serious nature of that offence, the district judge gave the appellant an absolute discharge and found that there were special reasons why he should not be disqualified from driving.
The Factual Background
The facts of the case are unusual and have given rise to prolonged litigation. On the evening of 4 th December 2003, the appellant, PC Milton, who is a Grade I advanced police driver with the West Mercia Constabulary, came on duty to find that he had been assigned to drive an unmarked Vauxhall Vectra, with which he was unfamiliar. In accordance with the advice he had been given during his training as an advanced driver, he took the opportunity during his tour of duty to familiarize himself with the vehicle's handling characteristics. In the early hours of the morning of 5 th December, he drove on the M54 motorway at an average speed of 148 mph; he drove on the A5 trunk road at an average speed of 114 mph and he drove within a built up area at an average speed of over 60 mph. It goes without saying that all these average speeds were grossly in excess of the speed limits for the roads in question.
The Proceedings
PC Milton was charged with dangerous driving and exceeding the speed limit. The case came before District Judge Morgan in April 2005. He acquitted the appellant of the speeding offences on the ground that the statutory defence under Section 87 of the Road Traffic Regulations Act 1987 was made out, in that the vehicle was being driven for police purposes. I need say no more about the speeding offences. DJ Morgan also acquitted PC Milton of dangerous driving. The DPP appealed to this court (Hallett LJ and Owen J) on case stated and, in February 2006, the appeal was allowed. The court held that DJ Morgan had misdirected himself in law. The dangerous driving charge was remitted to the Ludlow Magistrates Court and came on for rehearing before DJ Wallis.
At the end of the hearing, DJ Wallis gave a detailed reasoned judgment in which he convicted the appellant of the charge.
The Statement of Case
The statement of case closely reflects that reasoned judgment. Both are models of clarity. Having set out the background, the district judge explained that the evidence against PC Milton came almost entirely from an in-car video system which provided a forward view of the road ahead of the vehicle as well as an indication of its speed. The district judge was able to use this material to form his view as to the dangerousness of the appellant's driving. He described what he saw on the video as follows:
"2(ii) There was unchallenged evidence, for example, of an average speed of 148 mph attained by the car driven by PC Milton at shortly after 0300 on the M54. The video record shows that during the course of the journey PC Milton overtook some other vehicles. The difference between the speed of those vehicles and that of PC Milton's vehicle was great indeed, and no additional warning of his presence, other than his vehicle's headlights was given.
(iii) A little while later (at around 0309) PC Milton was recorded as travelling at an average speed of 114 mph along the A5 towards Telford. The road was a single carriageway and had a number of trees positioned close to it, particularly on its nearside. On the offside of the road there appeared to be a crash barrier, also positioned close to the road. In the event of the unexpected his 'avoidance' options given the nature of the road and its environs and the excessive speed at which he was travelling were severely limited. Additionally, there were junctions at various points on both sides of the road. At one point PC Milton's vehicle approached a junction with a filter lane to the right and junctions to both left and right. Despite the 'SLOW' markings clearly visible on the road his vehicle passed through the junction at a very high speed, 'straightening' the road by crossing chevron markings indicating the filter lanes.
(iv) A little later still (at around 0313) in St Georges Road and Wrekin Drive, despite clearly marked signs and road markings indicating a 30mph speed limit and despite the built-up nature of the environs, PC Milton registered an average speed of more than 60mph, and speeds well in excess of that were revealed by the video record."
Section 2 of the RTA makes it an offence to drive dangerously. Section 2A(1) of the RTA provides that a person is to be regarded as driving dangerously 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."
At that stage and without citing Section 2A(3), to which I will shortly come, the district judge observed that the test to be applied in determining whether the driving in question was dangerous was clearly objective in nature. He then referred, without more ado, to the White Paper (The Road User and the Law [CM 576]) which had preceded the 1991 amendment of the RTA 1988 to its present form. He observed, as indeed appeared to be the case, that the Government's intention, as set out in the White Paper, was that the standard of driving should be judged in absolute terms, taking no account of factors such as inexperience, age or disability (though such factors would be relevant to sentence).
The district judge emphasized that the test he must apply was wholly objective by reference to the case of R v Collins (Lezlie) [1997] RTR 439 in which the Court of Appeal (Criminal Division) had stressed that the test for dangerous driving under Section 2A(1) was an objective test. In that case, a Grade 1 advanced police driver had driven very fast in pursuit of a stolen car. He crossed a junction at high speed and collided with another vehicle causing two deaths. He gave evidence that he believed that the police were controlling traffic at that junction and that it was safe for him to cross it at speed. The Court of Appeal held that his belief about the safety of what he was doing was irrelevant to the issue of guilt because the test was an objective one.
The district judge also referred to the judgment of Hallett LJ in the DPP v Milton [2006] EWHC 242, where she stressed that the test under Section 2A(1) was wholly objective. The court allowed the appeal against DJ Morgan's decision to acquit because it appeared that the judge had taken into account PC Milton's belief that it was safe for him to drive at high speed because he was extremely familiar with the roads. In effect, the judge had allowed a subjective consideration to enter into his thinking; that was an error of law. Thus, District Judge Wallis was quite clear that the test he had to apply was wholly objective.
At paragraph 6(v) of the case, DJ Wallis turned to consider section 2A(3), which lies at the heart of this appeal. For the sake of completeness I propose to set out section 2A(2) as well as section 2A(3).
"2A(2): A person is also to be regarded as driving dangerously for the purposes of Sections 1 (causing death by dangerous driving) and 2 (dangerous driving) above if it would be obvious to a competent and careful driver that driving the vehicle in its current state would be dangerous.
2A(3): In subsections (1) and (2) above, "dangerous" refers to danger either of injury to any person or of serious damage to property; and in determining for the purposes of those subsections what would be expected of, or obvious to, a competent and careful driver in a particular case, regard shall be had not only to the circumstances of which he could be expected to be aware but also to any circumstances shown to have been within the knowledge of the accused."
After setting out subsection (3), the district judge continued:
"Section 2A(3) of the 1988 Act provides that in determining what would be expected of, or obvious to, a competent and careful driver in a particular case, regard should be had not only to the circumstances of which he (the mythical competent and careful driver) could be expected to be aware, but also to any circumstances shown to have been within the knowledge of the accused. Thus, for example, if a person decides to drive a vehicle which, whilst not obviously in a dangerous condition, is nevertheless known to him to possess a dangerous defect, he runs the risk of being convicted on the basis of that knowledge. Similarly, the driving of a vehicle where it is the driver who is in a dangerously defective state may amount to dangerous driving on the authority of R v Marison [1997] RTR 457 (driver prone to hypoglycaemic attacks) and R v Woodward [1995]...
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