R v H
| Jurisdiction | England & Wales |
| Judge | Lord Justice Hooper |
| Judgment Date | 17 June 2011 |
| Neutral Citation | [2011] EWCA Crim 1508 |
| Docket Number | Case No: 2010 3990 C5 |
| Court | Court of Appeal (Criminal Division) |
| Date | 17 June 2011 |
[2011] EWCA Crim 1508
IN THE HIGH COURT OF JUSTICE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURT SITTING AT NEWCASTLE UPON TYNE
HHJ HODSON
T20100832
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Hooper
Mr Justice Holroyde
and
RECORDER OF HULL His Honour Judge Mettyear
(SITTING AS A JUDGE OF THE COURT OF APPEAL CRIMINAL DIVISION)
Case No: 2010 3990 C5
Ms. S. Whitehouse appeared for the Appellant.
Mr. C. J. Knox appeared for the Respondent.
Hearing date: 5 th November 2010
The respondent was charged with two offences of causing the death of Mr James Dickinson by driving whilst uninsured, count 1, and driving whilst unlicensed, count 2 contrary to section 3ZB of the Road Traffic Act 1988. 1
The Recorder of Newcastle, His Honour Judge David Hodson, ruled, on an agreed factual basis, that "as a matter of law a jury could not reasonably be directed that in any real sense the defendant was a cause of" the death of Mr Dickinson. The prosecution seek leave to appeal this ruling, generally known as a "terminating ruling". 2 We grant leave.
Section 3ZB created a new offence which was inserted into the Road Traffic Act 1988 by the Road Safety Act 2006, section 21(1). Section 3ZB came into force in August 2008. It provides:
A person is guilty of an offence under this section if he causes the death of another person by driving a motor vehicle on a road and, at the time when he is driving, the circumstances are such that he is committing an offence under—
(a) section 87(1) of this Act (driving otherwise than in accordance with a licence),
(b) section 103(1)(b) of this Act (driving while disqualified), or
(c) section 143 of this Act (using motor vehicle while uninsured or unsecured against third party risks).
The offence may be tried summarily or on indictment. Schedule 2 of the Road Traffic Offenders Act 1988 provides that the sentence for the offence if tried on indictment is a maximum sentence of 2 years' imprisonment, obligatory disqualification and obligatory endorsement with between 3 and 11 points.
The offence against section 87(1) (driving without a licence or otherwise than in accordance with a licence) is punishable summarily only by a fine and, in certain circumstances, discretionary disqualification and obligatory endorsement. The offence against section 103(1)(b) (driving while disqualified) is punishable summarily with six months' imprisonment, discretionary disqualification and obligatory endorsement. The offence against section 143 (using motor vehicle while uninsured or unsecured against third party risks) is punishable summarily only by a fine, discretionary disqualification and obligatory endorsement.
The Crown Prosecution Service now seek leave to appeal the ruling of the Recorder of Newcastle, HHJ Hodson, that, on the agreed facts, a jury could not properly find that the respondent was a cause of the death.
The issue in the case is whether a person commits the offence contrary to section 3ZB if his manner of driving is faultless and the death has nothing at all to do with the manner of his driving.
The appellant CPS submits that the offence is committed in these circumstances. The respondent submits that it is not.
There is no dispute that the respondent was committing an offence against section 87(1) in that he did not have a licence to drive and an offence against section 143 in that he was uninsured to drive.
There is no dispute that the respondent's manner of driving was faultless and the death had nothing at all to do with the manner of his driving.
There is no dispute that the deceased's manner of driving was dangerous. If Mr Dickinson had survived and if the respondent and/or a member of his family in the vehicle with him had died, then, in our view, Mr Dickinson would have been guilty of causing death by dangerous driving and would have received a very substantial term of imprisonment. The maximum sentence for causing death by dangerous driving is one of 14 years' imprisonment.
The facts
Shortly after 4.30pm on 25 October 2009, the respondent was driving his van in an easterly direction along the A69, near Ridley Hall, Bardon Mill, Northumberland, when his van was involved in a collision with a Honda motor car being driven in the opposite direction by Mr James Dickinson. Mr Dickinson sustained extensive serious injuries as a consequence of the collision, and died that evening as a result of those injuries.
At the point of the collision, the road is a single carriageway divided by white centre lines, and is subject to the national speed limit. At the time of the collision, the visibility was good, although it was just starting to get dark, and the road surface was wet.
Mr Dickinson worked night shifts at a power station in Largs, on the west coast of Scotland. Mr Dickinson had worked 8 consecutive 12-hour night shifts from 17 October until 25 October 2009, the final night shift finishing at 8 am on 25 October. He was due to recommence work at 7 pm that day, and was on his way back to work at the time the collision occurred. A camera had picked up Mr Dickinson driving South to North in the Tyne Tunnel at 3.54 pm that afternoon. By the time of the accident, he had already driven that day some 200 miles, with some 200 miles to go. This would indicate a planned journey of some 400 miles.
Mr Andrew Clatworthy, a toxicologist, found that Mr Dickinson had used heroin shortly before the collision. Mr Clatworthy found that the level of free morphine in Mr Dickinson's blood was one which could be considered toxic, and that he was "almost certainly" under the influence of heroin at the time of the collision. The side effects of morphine include drowsiness, inability to concentrate and a lack of co-ordination. Mr Dickinson was also found to have methadone, benzodiazepine and other drugs in his system which were not prescribed drugs.
As a result of the morphine and the lack of sleep, Mr Dickinson was driving erratically. One witness to this was Ms Susanne Robinson, who was travelling along the A69 in a westerly direction, behind Mr Dickinson. She witnessed his Honda weaving from side to the road, crossing the white lines at the nearside of the road, and crossing the central white lines by about 1 foot. The Honda did this consistently for 2 miles immediately prior to the collision.
On one occasion, a vehicle travelling in an easterly direction and in the eastbound lane had to swerve to avoid a collision with the Honda. Mr Dickinson appeared to take no deliberate evasive action. Rather, he veered back into his own lane simply as a result of the pattern of sweeps he was conducting. Ms Robinson estimates the speed of the Honda as varying between 45 and 55mph. She says that due to the unsafe manner in which Mr Dickinson was driving, she kept her distance behind the Honda. Both Ms Robinson and her mother, a front-seat passenger in Ms Robinson's car, assumed that Mr Dickinson was intoxicated.
By contrast, the respondent's manner of driving was without fault. He was driving at a steady speed of 45 to 55mph. He had been driving his wife and two children back home from a motor sports event.
Immediately prior to the collision, Mr Dickinson went around a left hand bend in his own lane, but on exiting the corner swept to the right into the eastbound (i.e. the wrong) lane. As the respondent's van approached, the Honda veered to the left, but seconds later it drifted back across the centre line, about one third of the way into the eastbound lane.
The respondent did all he could to avoid the hazard posed by Mr Dickinson's car by steering to his left in the direction of the nearside of the eastbound lane. Mr Dickinson on the other hand, although in the eastbound lane, failed to take any evasive action. The two vehicles collided, offside to offside, and the impact sent the Honda back into the westbound carriageway, where it came to rest on the verge some 60 metres beyond the collision point.
The respondent's van tipped onto its two nearside wheels and then completely onto its nearside. With its nearside on the road it slid across the westbound carriageway and onto the verge.
In terms of civil law, Mr Dickinson was 100% responsible for causing the accident and the respondent was not in any way at fault for the death.
Once the respondent's van came to rest on its side, the respondent managed to free himself from the van. With the assistance of other road users, he was then able to get his family, suspended by their seat belts, out of the van. The respondent suffered bruising and soreness as a result of the collision, and his wife and youngest son have since suffered panic attacks
Mr Dickinson sustained several serious injuries, and never recovered consciousness after the accident. He was already in cardiac arrest on arrival at hospital, and died shortly thereafter.
If Mr Dickinson had survived the accident and the respondent's son and/or wife had been killed in the accident, Mr Dickinson would be guilty of causing their deaths by dangerous driving and, on the prosecution's interpretation of the law, the respondent would have caused their deaths and be guilty of the offence under section 3ZB.
The respondent's lack of licence and insurance
The respondent has never been the holder of a full driving licence, and at the time of the collision was uninsured to drive. The respondent readily admitted in interview that he was uninsured, and in failing to obtain insurance had " been pretty stupid".
However, at the time of the collision, the respondent, so he says, believed that he held a licence. It appears that he had previously held a provisional licence, which was revoked 10 years ago for medical reasons. However, he...
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