R v Seymour (Edward)
| Jurisdiction | England & Wales |
| Judge | Lord Diplock,Lord Fraser of Tullybelton,Lord Roskill,Lord Bridge of Harwich,Lord Templeman |
| Judgment Date | 21 July 1983 |
| Judgment citation (vLex) | [1983] UKHL J0721-1 |
| Date | 21 July 1983 |
| Court | House of Lords |
[1983] UKHL J0721-1
House of Lords
Lord Diplock
Lord Fraser of Tullybelton
Lord Roskill
Lord Bridge of Harwich
Lord Templeman
My Lords,
I have had the advantage of reading in draft the speech of my noble and learned friend, Lord Roskill. I agree with it, and for the reasons he gives I would dismiss this appeal.
My Lords,
I have had the advantage of reading in draft the speech of my noble and learned friend, Lord Roskill. I agree that, for the reasons stated by him, the appeal should be refused.
But I wish to refer to the difference which the appeal has brought to light between the practice in the courts of England and Wales and that in the courts of Scotland with regard to prosecutions for causing death by reckless driving of motor vehicles, in cases which are regarded as particularly bad. In England and Wales the practice is to prosecute the driver on a charge of manslaughter, but not to charge the statutory offence of causing death by reckless driving, contrary to the Road Traffic Act 1972 section 1, as amended by the Criminal Law Act 1977 section 50. In Scotland the practice is to prosecute on one charge of culpable homicide, or alternatively of the statutory offence, leaving the jury (if it decides to convict) to decide whether to do so on the first or second alternative. The fact that there is such a difference between the procedure in the two jurisdictions is perhaps surprising, as there is no relevant difference between the crimes of manslaughter and culpable homicide, and the statutory offence is laid down by the same Act in both countries.
Lord Roskill has explained the logical reasons why the English practice, at least since the passing of the Criminal Law Act 1977, has been to prosecute only for one or other of the common law or the statutory offences. I have no intention of criticising the English practice, as it is applied in England, but there are in my opinion good reasons why the Scottish practice should continue as it is in Scotland.
The Scottish practice was settled in Dunn v. H.M. Advocate 1960 J.C. 55 where the accused had been tried on an indictment which charged culpable homicide and the statutory offence as alternatives, and had been convicted of culpable homicide. At that time, the statutory offence was that created by the Road Traffic Act 1956 section 8(1) (driving "recklessly or at a speed or in a manner which is dangerous to the public"). As the degree of negligence which constitutes dangerous driving is less than that which constitutes reckless driving, the statutory offence in that form was clearly less serious than the common law crime of culpable homicide, which requires recklessness. But it is plain that neither the trial judge (Lord Guest) nor the Lord Justice Clerk (Lord Thomson), who delivered the only reasoned opinion in the High Court of Justiciary, based the distinction on the use of the word "dangerous". Accordingly the amendment made by the Act of 1977, which deleted dangerous driving from the statutory offence leaving it consisting only of driving recklessly, has not affected the practice, which continues to be that in cases which appear to the prosecutor to be particularly bad cases, culpable homicide and the statutory offence are charged alternatively. At least one case has been prosecuted in that way since 1977—see H.M. Advocate v. Earnshaw, tried at Ayr on 22nd May 1981 (reported only on another point on appeal in 1982 S.L.T. 179).
The Scottish practice can, in my view, be justified on the ground that, when Parliament created the statutory offence of reckless driving, it left the common law crimes of culpable homicide, and manslaughter, in existence. This House decided in Reg. v. Governor of Holloway ex parte Jennings [1982] 3 W.L.R. 450 that the crime of manslaughter had not been impliedly repealed and the decision is in principle applicable to culpable homicide in Scotland. But in Jennings, supra, Lord Roskill said that "The ingredients of the statutory offence are co-extensive with the ingredients of the … common law offence of manslaughter", and it is suggested that the effect of that statement is that any attempt to distinguish between the two offences according to their respective degrees of gravity, or indeed on any other ground, is illogical and wrong. It is said that they are not two offences but only one offence with two names. I do not accept that argument. Although the ingredients of the two offences are the same, the degree of recklessness required for conviction of the statutory offence is less than that required for conviction of the common law crime. That is why the maximum sentence for the statutory offence (five years' imprisonment) is less than the maximum sentence for culpable homicide or manslaughter (imprisonment for life). That is also why, in cases such as that which is the subject of the instant appeal, which the prosecutor considers to be very grave, it is thought appropriate to prosecute for the common law crime.
But then it is said to be wrong for the jury to be concerned with assessing the different degrees of turpitude between one case and another. It is of course the law in Scotland, as in England, that the decision on sentence is for the judge alone, but the jury's decision to convict of culpable homicide rather than of the statutory offence does not oblige the judge to impose a sentence of more than five years' imprisonment. It merely makes it possible for him to do so, by increasing the range of punishments within which he can select that which he considers appropriate. Since the common law crime and the statutory offence continue to exist together, and since (as is agreed) the distinction between the two depends on the degree of wickedness exhibited by the accused, it seems to me to be perfectly proper (to put it no higher) that the duty of assessing the degree of wickedness should be performed by the jury in order to decide which offence (if any) he has committed. That view has the overwhelming advantage in practice that it avoids the risk, which existed in the instant appeal, that a person who is accused only of manslaughter or culpable homicide may be acquitted of that charge and may then go unpunished, although he would have been convicted of the statutory offence if it had been charged as an alternative. Such a result would not, in my view, be in the interests of justice and I would be sorry to see the risk of its occurring being introduced into Scottish procedure where at present it does not arise. If it became necessary for the judge, in answer to questions from the jury, to refer to the question of sentence, I think that a jury is well able to understand the difference between selecting the actual sentence (which is the duty of the judge) and selecting the offence which carries a maximum sentence at least adequate to cover what is required in the circumstances of the case (which is the effect of the jury's decision between culpable homicide and the statutory offence). If the choice is between leaving the jury with a poor impression of the trial process, on the one hand, and risking allowing a guilty motorist to escape wholly unpunished because of some supposed technical difficulty in bringing alternative charges against him, on the other hand, I would have no hesitation in preferring the former.
I would only add that the number of cases in which, either in Scotland or in England, it will be appropriate to prosecute a motorist on a charge of culpable homicide or manslaughter must be very small, as it is extremely rare for conviction on such a charge to result in a sentence in excess of five years' imprisonment. In the instant appeal, and also in the case of Earnshaw, supra, where the accused was convicted of culpable homicide sentences of five years' imprisonment were imposed.
With regard to the certified question in this appeal, Mr. Connell's submission that the direction suggested in R. v. Lawrence [1982] A.C. 510, should not be given in its entirety where the charge is one of manslaughter, is not, in my opinion, well founded. If any modification of the " Lawrence direction" is appropriate in a case where manslaughter alone is charged, it would be to add a warning to the jury that before convicting of manslaughter they must be satisfied that the risk of death being caused by the manner of the accused's driving was very high. Such a direction will, of course, always be necessary where the common law crime and the statutory offence are charged alternatively, but where, as in this case, the common law crime is charged alone, it may be unnecessary and inappropriate. In the present case I think it was unnecessary.
I would dismiss the appeal.
My Lords,
This appeal arises from the dismissal on 12th January 1983 by the Court of Appeal Criminal Division (Watkins L.J. and Lawson and Brown J.J.), of the appellant's appeal against his conviction on 15th January, 1982 for manslaughter after a trial at Northampton Crown Court before Bush J. and a jury. The Court of Appeal Criminal Division granted the appellant a certificate to the terms of which I will later refer. Leave to appeal was refused by that Court but was later given by your Lordships' House.
The Crown's case which was accepted by the jury was that the appellant had killed Mrs. Ada Burrows by his reckless driving on a public highway of an 11 ton lorry. The allegation was that on the 30th April 1981 following a quarrel between the appellant and Mrs. Burrows with whom the appellant had been living, the appellant met Mrs. Burrows driving a Vauxhall car in the opposite direction from that in which he was driving the lorry. There was a slight collision. Mrs. Burrows got out of the Vauxhall car and approached the...
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