R v Williams (Jason)
| Jurisdiction | England & Wales |
| Judge | Lord Justice Thomas |
| Judgment Date | 02 November 2010 |
| Neutral Citation | [2010] EWCA Crim 2552 |
| Docket Number | Case No: 2010/03024/C4 |
| Court | Court of Appeal (Criminal Division) |
| Date | 02 November 2010 |
[2010] EWCA Crim 2552
IN THE HIGH COURT OF JUSTICE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURT AT SWANSEA
His Honour Judge J Diehl QC, the Recorder of Swansea
Before: Lord Justice Thomas
Mr Justice Silber
and
His Honour Judge Wadsworth QC
Case No: 2010/03024/C4
T20090439
Miss Elwen M Evans QC for the Appellant
Ms S Whitehouse for the Respondent
Hearing date: 26 August 2010
Lord Justice Thomas:
The Road Safety Act 2006 created the offence of causing death by driving when unlicensed, disqualified or uninsured by adding s.3ZB to the Road Traffic Act 1988 as follows:
“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) of this Act (driving whilst disqualified), or
(c) Section 143 of this Act (using a motor vehicle while uninsured or unsecured against third party risks.”
The section came into force on 18 August 2006. This appeal raises two issues of construction on the section creating the offence.
The factual background
In late 2008 or early 2009 the appellant purchased a motor car. Although he had no driving licence or insurance, he drove that car regularly. At about 6.20 p.m. on the evening of 10 February 2009, the appellant was driving that car, still uninsured and without a licence, on a dual carriageway in the centre of Swansea where there was a speed restriction of 30 m.p.h. As he was so doing, David Loosemore crossed the southbound carriageway, crossed over the central reservation and stepped out in front of the car being driven by the appellant. He was hit, propelled into the air and fell to the ground; the following day he died as a result of head injuries sustained in the collision.
The evidence of two other drivers was that the appellant was not exceeding the speed limit and that Mr Loosemore stepped straight out into the path of the appellant's car. One of the drivers said that the appellant's car was a maximum of three feet from the deceased when he stepped off the central reservation. The appellant's own evidence was that Mr Loosemore had suddenly stepped out and there was nothing he could do to avoid an accident. In this court, the Crown have accepted that no fault, carelessness or lack of consideration in driving can be attributed to the appellant.
The trial
The appellant was charged and subsequently tried at the Crown Court at Swansea on a single count of causing death by driving without insurance and without a licence. The Recorder of Swansea, His Honour Judge Diehl QC, rejected a submission of no case to answer, ruling that the offence could be committed without fault on the part of the appellant. In accordance with his ruling he summed the case up to the jury on the basis that the prosecution did not have to prove there was any fault in the manner of the appellant's driving; that the offence was proved if Mr Loosemore's death had been caused by the appellant driving without insurance and without a licence. He said that the issue for the jury to determine was whether they were sure that the defendant's driving of his car was:
“a cause of Mr Loosemore's death. I say a cause ladies and gentlemen because you may appreciate, if you think about it for just a few moments, that more than one cause may contribute to an event, a result, more than one cause may contribute. A cause may be the action or actions of the victim himself, but there may be more than one cause operating to bring about that result.
In other words, the defendant's driving of this BMW on the occasion in question does not have to have been the sole, the only, cause of the death. It does not even have to be shown that it was the principal or the main cause, or major cause, however you want to put it, but it has to be a contributing cause, other than a merely minute or negligible contributing cause that you would discount, put to one side.”
As he was concluding his summing up the jury asked the following question:
“If as a jury we think that Mr Loosemore's stepping into the road was the principal, main or major cause of death does that influence our consideration of Mr Williams' driving still being a cause of Mr Loosemore's death?”
He answered it as follows:
“So I will just go over again if it helps what I said previously, that there may be more than one cause contributing to an event or a result, and, as I said to you, one contributor in that sense may be the victim himself or herself. It does not have to be shown that the defendant's driving was the sole, only cause of death, it does not have to be shown that his driving was the principal, major or substantial cause of it, but it has to be shown, it has to be proved, so that you are sure, that his driving was a contributing cause other than a merely minute or negligible one, which in your judgment you should discount.
So the short answer is, “no, that would not affect your consideration of the question if you were to conclude that the deceased's action in stepping into the road was, say, the principal cause of death, that would not exclude another true cause”.”
The jury during the course of retirement asked another question in relation to causation and the judge answered in a similar way.
The appellant was convicted and sentenced by the judge on this offence to a period of nine months' imprisonment; he was disqualified from driving for two years.
The issues on the appeal
His appeal, ably and clearly presented to this court by Miss Elwen Evans QC can be summarised as follows:
i) The offence could not be committed without some fault or other blameworthy conduct on the part of the appellant. “Cause” as used in the sub-section must be construed as importing some fault or other blameworthy conduct. There was no blameworthy conduct; his sole fault was a failure to have a licence and insurance which was unrelated to the cause of the accident and the ensuing death.
ii) If that construction of “cause” was not correct, the word should be construed so that the Crown did not merely have to prove the appellant's driving was “a cause” which was not minimal but was a substantial or major cause of the death of the deceased. The facts clearly established that the substantial or major cause of death was due to the actions of Mr Loosemore and not those of the appellant.
On behalf of the Crown it was contended by Miss Whitehouse, to whom we are also indebted for her clear and able argument, that although she accepted that normally the result of a defendant's act had to be shown to be attributable to a culpable or blameworthy act, on the construction of this statute, Parliament must have intended that this was not required. It was sufficient if the conduct of the accused was a cause of the death of the deceased provided it was not minimal.
Although the diligence of both Miss Evans QC and Miss Whitehouse had produced for the court a substantial number of extracts from the debates in Parliament, it was accepted by both that the test in Pepper v Hart [1992] UKHL 3 was not met. We did not therefore consider any of the extracts from the debates and proceeded to look at the matter as one of statutory construction. We will therefore consider each of the two issues in turn: (1) Was fault or another blameworthy act required; (2) was it sufficient that the appellant's driving was a cause of the death? We consider the answer to the questions are clear. Blameworthy conduct was not necessary; it was sufficient that the driving was a cause. Our reasons are as follows.
(1) Was fault or another blameworthy act required?
As we have set out, Miss Whitehouse accepted that it was ordinarily not enough to show that what had happened which was charged as a crime was caused by the conduct of the defendant, but that that conduct also had to be blameworthy. It was submitted that this was established in the development of the common law.
Clearly this must be so; there had been a time when the criminal law imposed strict liability, but there developed the requirement that morally blameworthy conduct was required: see Russell on Crime (12 edit 1964) at pages 18 to 25. We agree with Miss Whitehouse that R v Dalloway (1847) 2 Cox CC 273 (to which she initially referred us) is not clear authority for the general proposition that there must be a blameworthy act to prove that a defendant caused a result in a legal sense. The general principle is, however, clear. Although the requirement of morally blameworthy conduct is the background against which the intention of Parliament in attributing criminal liability without blameworthy conduct must be considered (cf Sweet v Parsely [1970] AC 182 at 149 and Gammon (Hong Kong) v Attorney General of Hong Kong [1985] AC 1 at 14), the question for the court is whether when Parliament enacted this offence it intended to and did depart from the general principle.
The Road Traffic Act 1988 (as amended) contains three other provisions creating offences where the defendant's driving has caused death.
i) Causing death by dangerous driving (s.1 and 3) where the penalty is 14 years' imprisonment;
ii) Causing death by careless driving when under the influence of drink or drugs (s.3A) where the maximum penalty is 14 years' imprisonment;
iii) Causing death by careless or inconsiderate driving (s.2B) where the maximum penalty...
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