R v Fairbanks
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE MUSTILL |
| Judgment Date | 25 June 1986 |
| Judgment citation (vLex) | [1986] EWCA Crim J0625-4 |
| Court | Court of Appeal (Criminal Division) |
| Docket Number | No. 449/E/86 |
| Date | 25 June 1986 |
[1986] EWCA Crim J0625-4
Lord Justice Mustill
Mr. Justice Hodgson
and
Mr. Justice Wood
No. 449/E/86
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
MR. G. JONES appeared on behalf of the Appellant.
MR. B. WALTON appeared on behalf of the Crown.
Mr. Justice Hodgson, who is away on circuit, has seen this judgment in draft and agrees with it. This is the judgment of the Court.
On 16th July 1984 Mr. Arthur Coad was driving a container lorry along the road between St. Cleer and Liskeard in Cornwall. This is a typical Cornish unclassified road, narrow and winding, with the line of sight obscured at corners by thick vegetation. The road was narrow by comparison with the width of the vehicle, 16 ft. as against 7 ft. 11 ins., at the place with which this appeal is concerned.
Mr. Coad knew the road well, and was aware that at a certain point it not only narrowed but took a serpentine course: and indeed the narrowing was marked by a road sign. He therefore slowed down and proceeded with caution. Emerging from the second of the two bends he saw a line of vehicles driving in the opposite direction. Sensibly he recognised the possibility of trouble and stopped to allow the vehicles safe passage, pulling right into the side of the road just after the bend. He checked his mirror and saw nothing behind him.
Some of the other vehicles did pass safely, but unhappily trouble then materialised in the shape of a mini saloon motor car driven by John Fairbanks with two passengers on board. This car was travelling in the same direction as the lorry and was moving at what was, on any view of the evidence, a very brisk speed, given the width and configuration of the road. This car passed through the bends and came on the lorry just at the point when a Bedford van was passing through the gap between the lorry and the offside of the road. The car ran headlong into the van, and knocked it backwards. The van and its driver escaped serious injury, but the mini was badly damaged and one of its young passengers was killed.
In due course Fairbanks was tried before the Crown Court at Bodmin on a single count alleging that he had caused the death of the passenger by driving recklessly.
At the trial the case for the prosecution was that Fairbanks had been driving much too fast: perhaps as far as 60 or 70 miles per hour. One has only to glance at the photographs of the road to see that if the evidence to this effect was accepted, there were solid grounds for a verdict of guilty. On the other hand the defence made considerable headway, both in cross-examination of the prosecution's witnesses and with evidence called on its own behalf, and there was material upon which the jury could properly have concluded that the speed might well have been much lower than the prosecution had suggested. On this view a verdict of guilty on the count of reckless driving was problematical, whatever the position might have been as regards the lesser offence of driving without due care and attention. That was how the matter stood at the conclusion of the evidence.
Counsel then addressed the jury. The case for the prosecution remained as it had been throughout the trial: namely that there was sufficient evidence to convict Fairbanks of the offence as charged. No mention was made of the possibility that the jury might return a verdict of driving without due care and attention. By contrast counsel for the defence maintained that although the jury might perhaps be sure that the driving was careless, they could not be sure that it was reckless.
This prompted an exchange between counsel and the learned Recorder. Counsel for the defence naturally recognised that the jury might be unwilling to acquit his client altogether, and wished them to be given the opportunity of marking his bad driving by convicting him of the lesser offence. He therefore submitted that this alternative should be left to the jury. Counsel for the prosecution equally naturally did not wish the jury to have any encouragement to take an easy escape from a difficult decision. They should be compelled to face squarely the question of reckless driving, without being distracted by the lesser offence.
The learned Recorder preferred the approach of the prosecution. He did not direct the jury that they had the power to find the defendant guilty of the lesser offence. On the contrary he said: "The prosecution are not asking you to convict the defendant of speeds of 35 or 40 miles an hour. They are not asking you to convict him of careless driving. They are asking you to convict him of rank bad driving, not careless driving."
It appears however that the observations of counsel for the defence in his closing address had made some impression, for after a retirement of 90 minutes the jury returned with the following question: "Would it be possible to define the term 'reckless' as opposed to any other categories of bad driving?"
The learned Recorder replied: "Well, I hope in summing this case up to you I made it clear I wanted you to look at one aspect alone of the driving, and that is, was it reckless? I invited you to put out of your minds altogether, and I do so...
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