R v Boswell

JurisdictionEngland & Wales
CourtCourt of Appeal (Criminal Division)
JudgeTHE LORD CHIEF JUSTICE
Judgment Date19 June 1984
Judgment citation (vLex)[1984] EWCA Crim J0619-2
Docket NumberNo. 1744/B/84, No. 594/B/84, No. 2684/C/84 and No. 2702/B/84

[1984] EWCA Crim J0619-2

IN THE COURT OF APPEAL

CRIMINAL DIVISION

Royal Courts of Justice

Before:

The Lord Chief Justice of England (Lord Lane)

Mr. Justice Michael Davies

and

Mr. Justice Kennedy

No. 1744/B/84, No. 594/B/84, No. 2684/C/84 and No. 2702/B/84

Regina
and
James Thomas Boswell
Regina
and
Jeffrey Terrance Elliott
Regina
and
Frederick Daley
Regina
and
Robert Andrew Rafferty

MR. P.R. MORRELL appeared on behalf of the Appellant Boswell.

MR. J. WOOD appeared on behalf of the Applicant Elliott.

MR. E. MONEY appeared on behalf of the Appellant Daley.

MR. A. ROBERTSON appeared on behalf of the Appellant Rafferty.

THE LORD CHIEF JUSTICE
1

The Court has determined to deal with these appeals and this application together as they raise similar issues, and it is thought to be a convenient moment in order to express the views of this Court on this type of offence.

2

It is clear from the cases which have been cited to us, and others with which the Court is familiar, that there is a great divergence of views amongst sentencers as to the correct approach to be adopted to cases of causing death by reckless driving and reckless driving itself.

3

The offence is contained in section 1 of the Road Traffic Act 1972, as substituted by section.50(1) of the Criminal Law Act 1977, and the material provision runs as follows: "For sections 1 and 2 of the Road Traffic Act 1972 (causing death by reckless or dangerous driving, and reckless and dangerous driving generally) there shall be substituted –(1) A person who causes the death of another person by driving a motor vehicle on a road recklessly shall be guilty of an offence. (2) A person who drives a motor vehicle on a road recklessly shall be guilty of an offence."

4

On indictment the punishment is up to five years' imprisonment coupled with obligatory disqualification and endorsement, and those provisions are to be found in section 177 of the Road Traffic Act 1972 and Schedule 4, as set out in Archbold Criminal Pleading Evidence and Practice, paragraph 20-332. The kindred offence of motor manslaughter at common law carries a maximum penalty of course of life imprisonment. In the case of Seymour (1983) 77 Cr. App. R. 215, the House of Lords analysed the distinction between those two offences, a distinction which is, to say the least, very tenuous.

5

In 1973 this Court laid down certain guidelines on the subject in the case of Guilfoyle (1973) 57 Cr. App. R. 549, to which we have been properly referred this morning. The passage which is material to today's cases runs as follows: Lord Justice Lawton giving the judgment of the Court said this: "Cases of this kind fall into two broad categories; first, those in which the accident has arisen through momentary inattention or misjudgment, and, secondly, those in which the accused has driven in a manner which has shown a selfish disregard for the safety of other road users or of his passengers, or with a degree of recklessness. A sub-division of this category is provided by the cases in which an accident has been caused or contributed to by the accused's consumption of alcohol or drugs.

6

"Offenders too, can be put into categories. A substantial number have good driving records, a fair number have driving records which reveal a propensity to disregard speed restrictions, road signs or to drive carelessly, and a few have records which show that they have no regard whatsoever for either the traffic law or the lives and safety of other road users.

7

"In the judgment of this Court an offender who has been convicted because of momentary inattention or misjudgment and who has a good driving record should normally be fined and disqualified from driving or obtaining "a driving licence for the minimum statutory period or a period not greatly exceeding it, unless, of course, there are special reasons for not disqualifying. If his driving record is indifferent, the period of disqualification should be longer, say two to four years, and, if it is bad, he should be put off the road for a long time.

8

"For those who have caused a fatal accident through a selfish disregard for the safety of other road users or their passengers or who have driven recklessly, a custodial sentence with a long period of disqualification may well be appropriate, and, if this kind of driving is coupled with a bad driving record, the period of disqualification should be such as will relieve the public of a potential danger for a very long time indeed.

9

That judgment was delivered at a time of course before the 1977 amendment to the Act had been brought into force and before the amendment had, so to speak, abolished the category of causing death by dangerous driving and made it necessary for the prosecution to prove nothing less than recklessness. The offence was then causing death either by reckless driving or dangerous driving. The maximum term of imprisonment, be it noted was at that stage two years.

10

What reckless means in the context of this statute was authoritatively settled by the House of Lords in the case of Lawrence (1981) 73 Cr. App. R. 1, and it is necessary to read a passage in which Lord Diplock in his speech is setting out the test for recklessness: "In my view, an appropriate instruction to the jury on what is meant by driving recklessly would be that they must be satisfied of two things: First, that the defendant was in fact driving the vehicle in such a manner as to create an obvious and serious risk of causing physical injury to some other person who might happen to be using the road or of doing substantial damage to property; and secondly, that in driving in that manner the defendant did so without having given any thought to the possibility of there being any such risk or, having "recognised that there was some risk involved had nonetheless gone on to take it.

11

"It is for the jury to decide whether the risk created by the manner in which the vehicle was being driven was both obvious and serious and, in deciding this, they may apply the standard of the ordinary prudent motorist as represented by themselves.

12

"If satisfied that an obvious and serious risk was created by the manner of the defendant's driving, the jury are entitled to infer that he was in one or other of the states of mind required to constitute the offence and will probably do so; but regard must be given to any explanation he gives as to his state of mind which may displace the inference."

13

Thus it is clear that anyone who is guilty of causing death by reckless driving must fall into the more serious category as set out by Lord Justice Lawton in his judgment in Guilfoyle. To be guilty the defendant must have created an obvious and serious risk of injury to person or damage to property and must either have given no thought to the possibility of that obvious risk, or have seen the risk and nevertheless decided to run it, although he had seen it.

14

It is not possible – it needs hardly to be said – to say in advance what the proper sentence should be in any particular case. However the duty of the Court is to reflect the concern of Parliament and also, which is sometimes forgotten, to reflect the concern of the public about these matters.

15

The criminal statistics on the subject of causing death by reckless driving in the light of proceedings in the Crown Court in the years 1982, 1981 and 1980, produce some interesting, and to some extent unexpected, results. There is no need to go into the precise figures. It is sufficient to give the overall effect of what those statistics show.

16

First of all it is an offence almost exclusively committed by males. The number of female defendants convicted is Minimal. Roughly speaking there are 200 people per year over these three years falling to be sentenced for this particular offence, and the majority of those did not receive a custodial sentence at all. Of those who did, the large majority received sentences of six months or under and almost all of them received sentences of twelve months or under.

17

Those figures seem to us to show that the offence is regarded by the Courts as less serious than in fact it is: less serious than Parliament intended it to be and less serious than the public in general regard it. It is a trite observation, and I make no apologies for making it, that the motor car is a potentially lethal instrument. Any driver who fails to realise that what he is doing at the wheel is creating a risk when to any ordinary person such risk would be obvious, or, even worse, sees the risk and nevertheless takes a chance on avoiding disaster and so kills, is prima facie deserving of severe punishment. In our view such punishment should in many cases involve immediate loss of liberty.

18

One may perhaps pause for a moment to consider what factors in the driving may tend to aggravate the offence, and what factors tend to mitigate it. The following, amongst others, may be regarded as aggravating features: first of all, the consumption of alcohol or drugs, and that may range from a couple of drinks to what was described by the Court in Wheatley (1982) 4 Cr. App. E. (S) 371, as a "motorised pub crawl". Secondly, the driver who races: competitive driving against another Vehicle on the public highway; grossly excessive speed; showing off. Thirdly, the driver who disregards warnings from his passengers, a feature which occurs quite frequently in this type of offence. Fourthly, prolonged, persistent and deliberate course of very bad driving – one of the cases today illustrates that ~ a person who over a lengthy stretch of road ignores traffic signals, jumps red lights, passing other vehicles on the wrong side, driving with excessive speed, driving on the pavement and so...

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