R v Barnes (Anthony)
| Jurisdiction | England & Wales |
| Judge | LADY JUSTICE HALLETT |
| Judgment Date | 03 October 2008 |
| Neutral Citation | [2008] EWCA Crim 2726 |
| Date | 03 October 2008 |
| Court | Court of Appeal (Criminal Division) |
| Docket Number | No: 200803969 D1 |
[2008] EWCA Crim 2726
IN THE COURT OF APPEAL CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2A 2LL
Lady Justice Hallett
Mr Justice Hedley
Recorder Of Cardiff
(sitting As A Judge Of The Court Of Appeal Criminal Division
No: 200803969 D1
Mr I Bridge appeared on behalf of the Appellant
Mr W Carter appeared on behalf of the Crown
(As approved)
Anthony Barnes is a 34 year-old man of previous good character. On 17 June 2007 he was engaged with a friend, an off-duty police officer called Mr Brad Wilson, in moving furniture and ladders between various properties in the Peterborough area. They made a number of trips, during one of which they left behind ropes which they had used to secure their loads. When it came to moving an old and heavy sofa from Hampton Vale, therefore, they had nothing with which to tie it down. However, they did their best to manoeuvre it into the appellant's Mitsubishi Triton truck, the back of which had been removed and the sofa was wedged into the load area.
Both the appellant and Mr Wilson said that they thought that the load was secure, but at least one prosecution witness who followed the Mitsubishi disagreed. A Miss Ferguson, who found herself driving behind the appellant, remarked to her passenger at the time that the sofa was likely to fall off. She described the sofa banging in a way which should have made it obvious to the driver it was working loose.
The appellant's journey took them along the A1139, a dual carriageway with a speed limit of 70 miles per hour. The road conditions were good, and the appellant's speed was estimated variously at between 50 and 60 miles per hour. A short distance along the road the sofa suddenly flew out of the back of the truck, probably taken into the air by the wind. It landed on the inside lane of the dual carriageway.
The appellant and Mr Wilson said they had been conscious of the fact that the sofa might come loose and had been watching it carefully. They had ensured that there was no distracting noise in the cab. When they realised the sofa was missing they stopped some 105 metres further on in the inside lane. We have been provided with photographs of the scene by Mr Bridge, who appeared on behalf of the appellant. The appellant seems to have parked as best he could with his nearside wheels off the carriageway. He put on his hazard lights, and his passenger, Mr Wilson, got out to try to retrieve the sofa from the carriageway.
A number of vehicles came upon the sofa in the carriageway and tried to avoid it. They included a motorcyclist, a Mr Darren Wildman. He successfully avoided the sofa, but having done so, he must have been distracted or turned to warn others behind him. In so doing, he either failed to see the appellant's stationary vehicle at all or failed to see it in time. A matter of seconds after the Mitsubishi had stopped, Mr Wildman drove into the back of it. Tragically he died at the scene. The appellant was charged with causing death by dangerous driving.
By the time the matter came on for trial, the issues between the parties had narrowed to two: (1) whether or not the vehicle was in a dangerous condition because of its load; and (2) whether or not the appellant's driving was a cause of Mr Wildman's untimely death.
At the close of the prosecution case, Mr Bridge submitted that the case should be withdrawn from the jury. He submitted that neither of the two elements had been established. He submitted that there was insufficient evidence that it would have been obvious to a competent and careful driver that driving the vehicle when loaded as it was would be dangerous. He reminded the judge that at the outset of the journey, there was nothing to suggest to the appellant or Mr Wilson that the load was dangerous, that they had done their best to load the sofa carefully and they had checked it. Further Mr Bridge claimed that the Crown had failed to prove that the appellant's actions were more than a de minimis cause of death. On his case there was clear evidence that the principal, if not the only, cause of this tragic accident was that Mr Wildman was not looking where he was going for a significant length of time whilst riding his motorcycle at a relatively high speed. Mr Bridge invited the judge to note that a number of other vehicles had not only passed the sofa, but had also passed the appellant's car and had not collided with it.
The trial judge, HHJ Enright, disagreed with Mr Bridge's submissions. He agreed with the submissions of Mr Carter, for the Crown, that there was sufficient evidence upon which a reasonable jury could properly convict. He found there was sufficient evidence that it would have been obvious to a competent and careful driver that driving a vehicle with the sofa untied and merely wedged in the back of the truck was dangerous and that it was properly open to the jury to find that the appellant's driving was at least a cause of Mr Wildman's death.
The jury at Peterborough Crown Court retired to consider their verdict at 12.30 or so on Friday 11 July 2008. At quarter past 1 they sent a message asking for a dictionary. Because the court was adjourned for the luncheon period, that question was never answered. The court reconvened at 8 minutes past 2, when the judge and counsel were informed that the jury had reached a verdict. The verdict was guilty, and six days later, HHJ Enright sentenced the appellant to two years' imprisonment. He was also disqualified from driving and ordered to take an extended retest.
Mr Barnes appeals against conviction by leave of the single judge, who also referred Mr Barnes' application for leave to appeal against sentence to the full court. Before considering the grounds of appeal in detail, we would wish to observe this: Mr Bridge argued that this was a complex case and one that required a great deal from the judge by way of assistance. We accept that this may have been a difficult and sensitive case for counsel to conduct, but we do not accept that it was anywhere near as complex factually as Mr Bridge suggested. To our mind, as tragic a case as this was, the issues were straightforward. The only significant factual dispute was whether or not there were any obvious warning signs that the sofa was unstable, as the appellant drove along the road, which would have alerted a competent and careful driver to the danger. We shall now turn to each of the grounds of appeal in turn.
The first ground is that HHJ Enright erred in refusing the submission of no case to answer, and in particular that he was wrong to find that there was evidence upon which a jury could conclude that the appellant's dangerous driving caused Mr Wildman's death. Mr Bridge relied principally on the decision of this court in Skelton [1995] Crim LR 635, of which we have a transcript of the judgment delivered on 25 November 1994 (94/2914/W5). Mr Bridge relied upon the following principle (see page 10 of the transcript per Sedley J):
“…the dangerous driving must have played a part, not simply in creating the occasion of the fatal accident but in bringing it about.”
Albeit the judge directed the jury in accordance with this principle, Mr Bridge argued the judge himself never properly addressed this question. Had he done so, he would have felt obliged to withdraw the case from the jury. We disagree. In our judgment, this was a case very properly left to the jury. We accept Mr Bridge may have had at his disposal many very powerful arguments, but it was for the jury to decide whether or not they found the prosecution witnesses and, in particular, Miss Ferguson reliable and accurate. If they did, they were entitled to conclude that the appellant was driving a truck with a heavy load at or over 50 miles per hour along a busy road where the speed limit was 70 miles per hour. On Miss Ferguson's version of events, the sofa was obviously working itself free as he drove along. It must have been banging noisily in the back of the Mitsubishi. If so the appellant could and should have driven in a different fashion, or he should have stopped earlier than he did. Instead, he continued on his journey until his load fell off and into the path of oncoming vehicles. He stopped with his vehicle still partly on the carriageway. His actions made both the Mitsubishi and the sofa immediate hazards to oncoming traffic.
The jury was entitled to find that the appellant put other road users at risk by driving dangerously. He drove with a load which was insecure. Had he not done so the sofa would not have fallen off, and Mr Wildman would not have been forced to drive round it. He would not have been distracted by it or turned to warn others coming behind him. The appellant's car would not have been stopped in the carriageway and Mr Wildman would not have driven into the back of it. Whatever criticisms, Mr Bridge could properly make of Mr Wildman's driving, in our judgment all those circumstances are such that it was open to the jury to find that his dangerous driving played more than a minimal role in bringing about the accident and the death.
We turn therefore to the further criticisms made of the judge by Mr Bridge. The second ground of appeal is that the judge, it is said, failed adequately to sum up the law in respect of causation. The judge summed up the law in this way:
“Now the words 'thereby caused the death'. You have to be sure the dangerous driving was a cause of death, not the only cause of death or the main cause of death, but a cause of death which was more than just...
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