R v McKenzie
| Jurisdiction | England & Wales |
| Judge | Lord Justice Toulson |
| Judgment Date | 11 April 2008 |
| Neutral Citation | [2008] EWCA Crim 758 |
| Docket Number | Case No: 200702277 C4 |
| Court | Court of Appeal (Criminal Division) |
| Date | 11 April 2008 |
[2008] EWCA Crim 758
Lord Justice Toulson
Mr Justice Penry-Davey And
Mr Justice Simon
Case No: 200702277 C4
T2006 7171
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM EXETER CROWN COURT
His Honour Judge McKintosh
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr D Sapiecha for the Appellant
Mr N Gerasimidis for the Respondent
Hearing dates: 12 March 2008
Thursday 27 April 2006 was a bright spring day. Shortly before 8am Police Sergeant Paul Hutchinson was travelling to work on his motorcycle. He was aged 36. His route took him southwards along the B3180 Exmouth Road. The road surface was dry and visibility was good, but the road has some bends and rises. He came to a junction called Tipton Cross. This is a staggered crossroads. From the viewpoint of traffic travelling in his direction there was a left-hand turning into Oak Road and just beyond it a right-hand turning. Before he reached the junction there was a right-hand bend and brow of a rise, which limited his visibility to oncoming traffic to about 100 metres from the centre of the junction. There were large trees on either side of the road, some in leaf, and the morning sun would have created dappled shading across the road. The speed limit at the junction was 60mph. Road markings showed that the B3180 had priority. Mr Hutchinson was intending to carry straight on.
Travelling in the opposite direction was the appellant. He was driving a blue Ford Escort van. He turned right at the junction into Oak Lane across Mr Hutchinson's line of travel. The motorcycle hit the nearside of the Ford Escort and Mr Hutchinson was thrown from it suffering fatal injuries.
There were three eye witnesses. Mr Michael Kellow was driving a green Mitsubishi Shogun behind the appellant's Ford Escort. Mr Kellow was a former bank manager who ran a window cleaning business. Mr Neil Blackmore was driving a Seat Leon. He was behind the Mitsubishi. Mr Blackmore was a landscape architect. The third eye witness was the appellant. The accounts of the independent witnesses and of the appellant were very different.
According to Mr Kellow's and Mr Blackmore's witness statements and evidence at the trial, the appellant pulled right across Mr Hutchinson's path without warning. He did not use his indicator and they did not see brake lights come on. They only saw the motorcycle momentarily before the accident.
The appellant's account in interview by the police and in his evidence was that as he approached the junction he indicated right and slowed to a stop. He saw the motorcyclist come over the brow of the hill just about as he was stopping. He judged that he could turn without causing any risk to the motorcyclist and began to turn, but as he was completing his turn he felt a bang against the side of the van.
The appellant was charged with causing the death of Mr Hutchinson by dangerous driving. At Exeter Crown Court he pleaded guilty before the jury to careless driving but denied that he was guilty of dangerous driving.
The issue was stark and simple. If the evidence of the independent eye witnesses was correct, the appellant had in reality no defence. If the jury judged that the appellant's account was correct or might be correct, the prosecution's case was more difficult. The jury might have doubt whether his conduct was so far below the standards of a competent and careful driver as to amount to dangerous driving.
On the evidence, the case against the appellant was formidable. Mr Kellow and Mr Blackmore were not only independent witnesses but they gave detailed statements within days after the accident when the events were fresh in their minds. Their statements were not identical but were consistent on the important points and there was no suggestion that either of them influenced the other. Furthermore there were obvious difficulties in the appellant's account of the accident, if the motorcyclist had been as far away as the appellant claimed when the appellant turned right. The motorcyclist would not only have had to cover the distance in a very short time but he must also have inexplicably failed to see the van crossing in front of him. At the trial both parties called experts, who agreed that the motorcycle was upright with its front wheel still rotating at the time when it hit the van and that the motorcyclist could not have put on emergency braking. It was also common ground from forensic examination of the scene that in turning right the appellant had significantly cut the corner, which would be surprising if he had pulled up and stopped at the junction as he claimed.
The appellant was convicted and now appeals against his conviction with leave of the full court. The appeal arises because, despite the simplicity of the issue and the strength of the evidence, the prosecution sought to fortify its case by introducing evidence of past bad driving on the part of the appellant under the bad character provisions of the Criminal Justice Act 2003.
The trial began on Monday 26 March 2007. The trial judge was His Honour Judge McKintosh. On the Thursday of the previous week the prosecution applied to the resident judge, His Honour Judge Cottle, for leave to adduce evidence from no fewer than 10 witnesses about past bad driving on the part of the appellant. The criticisms made by them were a mixture of the general and the particular. None of the particular incidents which were alleged had resulted in a prosecution and a number of them were some years old.
In the course of the argument the judge rightly said that the trial should not be turned into a trial about how the appellant had driven on previous occasions. But he concluded that the prosecution should be entitled to adduce evidence of previous examples which were “indicative of a propensity to drive in a chancy way” as distinct, for example, from allegations of simple speeding (which he considered irrelevant since there was no allegation that the appellant was driving at an excessive speed at the time of the fatal accident). He did not give a formal judgment but the effect as understood by the parties was to permit the prosecution to call 2 witnesses as to his previous driving, Jane Wakefield and Ellen Stokes. Each gave evidence at the trial.
Miss Wakefield was a driving instructor. She had given the appellant 4 or 5 driving lessons in 2001, i.e. 5 years before the accident. He would then have been aged 20. She described his driving as generally aggressive and over-confident, and she said that he used to approach junctions too fast. She accepted in cross-examination that she had never thought it necessary to stop the lesson and take over driving. She also gave evidence of an event in September or October 2005 when she said that she noticed him driving his van and saw him join a major road at a difficult junction without properly slowing down or looking. The appellant denied that any such incident occurred and there was an identification issue which led to the judge giving a Turnbull direction.
Miss Stokes had been the appellant's girlfriend until about 3 years before the accident. She gave evidence of an occasion when the appellant overtook a line of about 12 vehicles following a tractor, cut in front of the tractor and immediately turned sharp left, much to the tractor driver's annoyance. The appellant's version of the incident was that there were fewer cars behind the tractor and that he managed the turn quite safely.
Miss Stokes also said that he used habitually to drive too fast when returning to his home, which was at the top of a long steep hill with a bend and cars parked on both sides. She said that the speed limit was 30mph limit and that at the top there was only room for one car, but that the defendant used to drive at 50mph and that there would have been a collision if anything had been coming the other way. She estimated that this must have happened about 100 times. In cross-examination she accepted that his speed might have been 40mph rather than 50mph, but it was certainly more than 30mph. She also agreed that if she had felt that his driving was dangerous she would not have travelled with him.
At the hearing of the appeal Mr Sapiecha submitted that the evidence of Miss Wakefield and Miss Stokes was inadmissible and prejudicial to a fair trial. He reminded the court that the statutory definition of dangerous driving in s 2A of the Road Traffic Act 1988 (that a person is to be regarded as driving dangerously if the way he drives falls far below what would be expected of a competent and careful driver, and it would be obvious to a competent and careful driver that driving in that way would be dangerous) sets an objective test: DPP v Milton [2006] RTR 21. He submitted that in deciding whether the appellant's manoeuvre in turning right at Tipton Cross on the morning of the fatal accident satisfied that test it was irrelevant how poor his driving may have been on other occasions and in other circumstances. To entertain allegations of past bad driving was both a distraction and unfair. He drew a distinction between the present case and offences where the very nature of the enterprise is criminal, such as theft. Driving is not an unlawful enterprise in itself, and, although motorists may vary in their usual degree of skill and care, it is characteristic of the motoring population at large from time to time to fall below the proper standard. It is therefore dangerous to use allegations of past bad driving as an aid in deciding whether a...
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