R Sophie Wilkinson (Claimant) Hm Coroner for the Greater and Another (Defendant) Wendy Livesley (Interested Party)
| Jurisdiction | England & Wales |
| Judge | Mr Justice Foskett,HHJ Peter Thornton QC |
| Judgment Date | 11 October 2012 |
| Neutral Citation | [2012] EWHC 2755 (Admin) |
| Docket Number | Case No: CO/8483/2011 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 11 October 2012 |
[2012] EWHC 2755 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
The Honourable Mr Justice Foskett
His Honour Judge Peter Thornton QC
Case No: CO/8483/2011
James Maxwell-Scott (instructed by Hill Dickinson LLP) for the Claimant
Alison Hewitt (instructed by Stockport Legal Services) for the Defendant
The Interested Party was not represented
Hearing date: 30 th July 2012
Mr Justice Foskett and
Introduction
This is the judgment of the Court to which each member has contributed.
This case raises the issue of whether evidence of the commission of the criminal offence of causing death by careless driving contrary to section 2B of the Road Traffic Act 1988 is capable of justifying a verdict of "unlawful killing" at an inquest. There is a divergence of view on the issue amongst coroners and it is an issue that needs to be resolved.
The matter comes before the court by way of judicial review of the verdict of unlawful killing to which we will refer below, the essential basis of the challenge being that the defendant (the coroner) misdirected the jury by leaving it open to them to return such a verdict if they were sure that the offence of causing death by careless driving had been committed. Permission to apply for judicial review was given by Stadlen J.
Although not raised directly for decision in this case, on one view of the issue identified above, it is inevitable that our decision will affect also the question of whether the offence of causing death by dangerous driving can amount to "unlawful killing" within the coroner jurisdiction. We will return to this at paragraph 71 below.
The circumstances of the death in the present case
On Monday 21 December 2009 Dennis Livesley (DL), a vehicle recovery technician, attended the scene of an accident at the Junction 7 and 8 divergence of the M60 motorway. A Volvo S40 motor car had struck the central reservation barrier. The police had moved the Volvo to the hard shoulder and DL attended with a view to removing it from the scene. While standing at the rear of the Volvo, he was struck by a VW Golf motor car driven by the claimant. Sadly, he died from his injuries.
There is no doubt that the road conditions that day were very poor. There had been snow and ice on the road and there had been an accident at precisely the same location earlier in the day when a vehicle had skidded on a patch of ice.
It is equally not in doubt that the claimant's car had spun out of control. The issue was why that occurred.
The police investigations
The circumstances surrounding DL's death were investigated by the police. Statements were taken from the only eye witness, an experienced driver himself, and there was a detailed accident investigation report from a police officer from the Greater Manchester Police Forensic Collision Reconstruction Unit as well as statements from the driver of the other vehicle that had skidded and police and Highways Agency officers who had driven that stretch of the motorway that day.
The Crown Prosecution Service (CPS) considered the evidence carefully and in a fully reasoned letter to DL's widow dated 8 June 2010 explained why the decision had been made not to prosecute the claimant for any offence arising from the incident. The reasons appear from the following two paragraphs of that letter:
"There had already been an accident at that precise location earlier that day. Your husband had attended to assist the driver of the vehicle who had been involved in that crash. There was no suggestion that that other driver had done anything wrong. What is very clear is that the road conditions were poor. There was snow and ice on the hard shoulder of the motorway and witnesses describe the main carriageway is being slippy (sic). In order to succeed with a prosecution against Sophie Wilkinson we would have to prove, so that a court could be sure, that her standard of driving fell below that which would be expected of a reasonable motorist. We have spoken, at length, to the only person who saw the collision. He can only say that when he first saw Miss Wilkinson's car it was spinning and out of control. He cannot assist us to discover how she came to lose control of her vehicle. There is no evidence that her speed was excessive for the conditions.
We know that she was not using a mobile phone at the time of the accident and there is no evidence that she was distracted by anything within her car. The defence will ask the court to assume that she had hit a patch of ice, as had the other driver earlier, and that what happened after that was something over which she had no control. As it would be impossible to argue against that submission she would, inevitably, be acquitted."
The inquest proceedings
An inquest was opened by the defendant with a jury on 9 May 2011. On 12 May 2011 at the conclusion of the evidence (which included evidence from the claimant) the coroner referred the case back to the CPS. We have not seen the letter he sent to the CPS, but we anticipate that he asked that the case be reviewed in the light of the evidence given at the inquest.
The CPS reconsidered its earlier decision in the light of the evidence given, but did not alter it. The letter to the defendant was detailed, but the essence can be seen from the following two paragraphs in its conclusion:
"[The eye witness] was unable to state categorically that he had seen the vehicle driven by [the claimant] on the hatch markings; he indicated that he had not seen her overtake him. He was also unsure of the exact position of his own vehicle in relation to the chevrons. The contradictions between his account in his statement, pre-trial interview and account at the inquest mean that a court could not be satisfied [the claimant] had driven across the chevrons. Witnesses confirm the road was icy. Indeed, a similar accident had occurred on the same slip road. This had caused [the driver of that vehicle] to lose control of his vehicle around an hour before. The prosecution is unable to say that the manner of [the claimant's] driving caused the accident and fell below the standards of a reasonable and prudent driver due to the road conditions at the time.
Under all the circumstances of the case a court could not be sure to the criminal standard and therefore there is not a realistic prospect of a conviction."
The inquest resumed before the jury on 15 June 2011. The coroner left three possible short form verdicts to the jury: unlawful killing, accident or open verdict.
In his summing up the coroner left the verdict of unlawful killing to the jury on the basis that they could return this verdict if it was proved to the criminal standard that there was sufficient evidence for a conviction of either manslaughter, causing death by dangerous driving or causing death by careless driving. So far as a possible verdict of manslaughter was concerned, he directed the jury that the relevant type of manslaughter was "gross negligence manslaughter" which involved the existence of a duty of care that every road user owes to all other road users and a "grossly negligent breach of that duty so as to amount to the crime of homicide leading to death".
The following day the jury returned a verdict of unlawful killing, with no further details given. In the circumstances, it is clear that the only basis upon which such a verdict could justifiably have been returned was that there was evidence that made the jury sure that there had been a sufficient degree of careless driving by the claimant to cause DL's death. In our judgment, there was no evidence that would have supported such a verdict based upon manslaughter or dangerous driving.
Following the verdict the Chief Crown Prosecutor for the CPS in the North West of England appointed a senior prosecutor to conduct a case review in the light of the evidence given at the inquest. On 1 September 2011 the CPS confirmed that the decision not to prosecute the claimant remained unaltered. We have not seen the reasons given, but apprehend they were essentially as before.
As we have indicated, the essential issue is whether the coroner was right to leave to the jury the issue of unlawful killing based upon the suggestion that DL's death was caused by careless driving.
The coroner invited submissions on the issue without the jury being present before his summing up: Counsel for DL's family submitted that the jury should be invited to consider the possibility of a verdict of "unlawful killing" whereas the Claimant's solicitor submitted the contrary. The coroner reserved his decision in order to consider it carefully. We do not have a transcript of the arguments and we do not have a transcript of any reasons given by the coroner for adopting the submissions made on behalf of the family. However, he directed the jury along the lines we have indicated, his reasons (as expressed in the witness statement prepared for these proceedings) being essentially that a verdict of "unlawful killing" is capable of embracing a situation where a person has been "killed" by another person, that other person in the process being guilty of a criminal offence causing death. His view was that where a deceased's death has arisen from the commission of a criminal offence, then it can properly be described as "unlawful killing" and that such a description is...
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