R v Conway
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE WOOLF |
| Judgment Date | 28 July 1988 |
| Judgment citation (vLex) | [1988] EWCA Crim J0728-1 |
| Docket Number | No. 2065/C1/88 |
| Court | Court of Appeal (Criminal Division) |
| Date | 28 July 1988 |
[1988] EWCA Crim J0728-1
Lord Justice Woolf
Mr. Justice McCullough
and
Mr. Justice Auld
No. 2065/C1/88
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
MR. J. PERRY appeared as Counsel on behalf of the Appellant.
MR. M. TORRANCE appeared as Counsel on behalf of the Crown.
This is an appeal by Francis Gerald Conway against his conviction at the Crown Court at Reading on 30th March, 1988, of reckless driving contrary to s. 2 of the Road Traffic Act, 1972. He was sentenced to six months' imprisonment and disqualified from driving for 18 months. He was granted leave to appeal against conviction, but his application for leave to appeal against his sentence was refused and has not been renewed.
The appeal has been ably argued on behalf of the appellant by Mr. Perry, who did not appear in the court below. His argument does not accord precisely with the grounds of appeal. The notice of appeal contains two grounds. The first can be summarised as alleging that on the evidence before the Jury the defence of necessity was raised and the jury should have been, but were not, directed as to that defence. The second ground of appeal is that the jury should have been, but were not, directed that they should first of all consider whether or not the appellant's manner of driving was reckless and, if so, that they should then go on to consider whether they believed the appellant bona fide believed he was acting in an emergency to save the life of his passenger and, if so, whether the manner of driving would be reasonable in the circumstances, and as to the extent that a bona fide belief could operate as a defence.
In relation to the second ground of appeal Mr. Perry submitted that to establish that driving was reckless involves establishing that the defendant took an unreasonable risk, and that there could be circumstances in a case such as the present which would justify what would otherwise be reckless driving. Whether or not it was justified would depend on whether the risk was one which a reasonably prudent man would have taken to avoid what he, the defendant, believe was an emergency giving rise to a probability of serious harm to his passengers or himself.
Not surprisingly, Mr. Perry did not submit that on the direction which was given to the jury the appellant was not properly convicted. The prosecution evidence was that on the day in question, 6th July, 1987, two police officers were on duty in an unmarked police vehicle when they saw the appellant's motor car parked. The appellant was in the driving seat, there was a passenger in the front seat, and another passenger, named Giulio Tonna, in the rear seat. Tonna was known to the police officers as being the subject of a bench warrant and, having seen him in the appellant's car, they pulled their vehicle up alongside his car, blocking the vehicle, and one of the police officers leaned over towards the appellant, showed him his warrant card, and said to him: "Police; wait there I want to have a word with your passenger." He then walked to the rear passenger door of the Rover to speak to Tonna, when he heard Tonna shout: "Go, I am wanted", and, subsequently, "It's the Old Bill, go, I am wanted", at which the appellant drove off at speed. The police officers followed and saw the appellant's car being driven in a way which would undoubtedly normally be regarded as reckless. The appellant's car performed a four-wheel skid around a corner, and drove down a very narrow road, in which there were cars parked on both sides, at speeds in excess of 40 miles per hour. At one stage a car had to move on to the footway to avoid a collision. The appellant approached a junction on the wrong side of the road, forcing another car to swerve on to the pavement to avoid a collision. He also turned sharp left at a junction without stopping, cutting directly in front of a car on the nearside, causing that car to perform an emergency stop, and drove through a "No Entry" sign round a blind corner and along a one-way street until forced to stop by traffic coming in the opposite direction. He was then apprehended by the officers, but Tonna was no longer in the car, and when asked what he was doing he indicated that he wanted to avoid the police catching Tonna.
The appellant's evidence, which was supported by his witnesses, who included his passengers, differed substantially as to detail from that of the prosecution witnesses. The effect of the defence evidence is accurately summarised in the grounds of appeal, as follows:
"A few weeks before the 6th July Tonna had been in a vehicle when another man was shot by a 12-bore shotgun and severely injured and on that occasion Tonna was chased and narrowly escaped. That this event had occurred was not disputed by the prosecution. The appellant understood that Tonna was the main target and intended victim of that incident.
"Immediately before the alleged reckless driving, two young men in civilian clothes came running towards the vehicle and Tonna then screamed hysterically 'drive off. The men never identified themselves as police officers, and the appellant drove off because he feared a fatal attack on Tonna. When he drove off the two persons whom he assumed to be intended attackers gave chase in a motor vehicle. It was only after he had dropped off Tonna and ceased driving that he realised the persons were police officers. At all times during the chase he had believed the two men were potential assassins. He did, however, deny many of the details of the alleged reckless driving, maintaining that although he drove at excessive speeds he did not carry out many of the dangerous manoeuvres alleged by the police. He accepted that nevertheless, were it not for the believed emergency, his manner of driving might well have been reckless. He was however petrified, and when he saw the 'No Entry' sign he took no notice because he was in a panic."
It is not suggested that the judge did not sum up the evidence fairly. He reviewed the evidence, including that evidence given by the appellant and his witnesses, in a way to which no objection is taken. He also directed the jury about the elements of the offence of reckless driving in accordance with the speech of Lord Diplock in R. v. Lawrence, (1982) A.C. 510, and it is not suggested that, but for the special circumstances which were alleged by the defence to exist, his direction as to the law would not have been adequate. However, because of those circumstances Mr. Perry submits that the jury should have been given an additional direction. He says:
"The jury should be directed to consider whether the prosecution had proved beyond reasonable doubt that the appellant did not believe that he was acting in an emergency to save Tonna from serious bodily injury.
"If the jury found that the appellant so believed or may have so believed the jury should be directed to consider whether the manner of the appellant's driving was justified or excused having regard to the circumstances in which he drove."
Although Mr. Perry in his careful and helpful submissions was anxious not to put forward any proposition which was wider than was absolutely necessary for the purposes of this appeal, it appears from this suggested direction that what he is contending for is a defence of necessity based upon subjective belief which would justify what would otherwise amount to reckless driving. In doing this he is departing from the approach which was adopted by counsel who appeared for the appellant in the Crown Court. In submissions made at the end of the evidence and prior to the summing-up counsel accepted that it would be "impossible to run the defence of necessity in this particular case", and that the judge was not required to leave it to the jury. However, he contended that the jury none the less could consider whether the appellant's explanation was reasonable and, if it was, find him not guilty.
The judge, in our view, correctly rejected this contention, It appears from the transcript of the interchange between the judge and counsel that it was also accepted that this case could not be distinguished from R. v. Denton, (1987) Cr. App. R. 246. In Denton the trial judge refused to leave to the jury the defence of necessity, on facts which bear some similarity to those in this case, and the Court dismissed the appeal. In giving the judgment of the Court Caulfield J., having indicated that the Court had been referred to a number of authorities on the subject of necessity, went on to say:
"In view of our ultimate decision it is not necessary to review, still less to comment, on the law of this alleged defence of necessity. This is so because this court takes the view that even if necessity as a defence can be raised in a charge of reckless driving, it certainly could not be raised on the facts relied upon by the appellant in his defence. The appellant did not assert that he had to take risks of causing harm to others to escape from his pursuers or that he had to drive recklessly or that he did not give the nature of his driving a...
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