No: 95/3128/Y5

No: 95/3314/Y5.
IN THE COURT OF APPEAL
CRIMINAL DIVISION
 
                               Royal Courts of Justice
                               The Strand
                               London WC2
 
                               Wednesday 31st July 1996
 
                    B E F O R E :
 
                  LORD JUSTICE ROCH                            
                 MR JUSTICE COLLINS
 
                         and
 
              HIS HONOUR JUDGE MYERSON
      (Acting as a Judge of the Court of Appeal
                  Criminal Division)
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                     R E G I N A
 
                       ‑ v ‑
 
                DAVID GERAINT ROBERTS
                         and
                GRAHAM HAROLD GEORGE
 
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   Computer Aided Transcript of the Stenograph Notes of
           Smith Bernal Reporting Limited
          180 Fleet Street, London EC4A 2HD
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MR T KING QC and MR S KILLEEN appeared on behalf of the Appellant ROBERTS
MR J BACKHOUSE appeared on behalf of the Appellant GEORGE
MR M HUGHES QC and MR T TEAGUE appeared on behalf of the Crown
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                      JUDGMENT
                (As Approved by Judge)
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LORD JUSTICE ROCH:  I will ask Collins J to give the judgment of the court. 
MR JUSTICE COLLINS: On 29th March 1995, following a trial which lasted some 6 days, these appellants were convicted at Chester Crown Court before His Honour Judge Elgan Edwards on one count of causing death by dangerous driving. Each now appeals against his conviction by leave of the Full Court. Each was sentenced to 18 months imprisonment and disqualified from driving for 3 years. Because there has been some delay in getting these appeals before the court, the prison sentences have now been served.
    The charge against the appellants arose from an accident which occurred on 16th December 1993. Mr George, who was employed by Mr Roberts, was driving his employer's 8‑wheel tipper lorry along the M53 motorway. The time was a little after 7.30 am and he was travelling at about 60 mph. The weather was wet. One of the rear nearside wheels suddenly came off the lorry. It bounced over the central reservation and onto the windscreen of a car being driven by a Mrs Chevalier, who was 24 weeks pregnant at the time, and killed her. The wheel then bounced onto another car, fortunately causing no injury to any occupant, and came to rest down an embankment on a railway line.
     The prosecution case against each appellant was that the lorry was in a dangerous state because the wheel was liable to and did come off.  That dangerous state was caused by a lack of proper maintenance, itself resulting from the absence of any adequate system, and the danger was, or should have been, obvious to both men.
      Although it is not entirely clear from the way in which the learned judge summed the case up, Mr Hughes QC, counsel for the respondent, tells us that the case was put against Mr Roberts on the basis that he was aware of the risk of rear nearside wheels coming off lorries of the type being driven by Mr George but had deliberately chosen not to implement a proper system of maintenance. He had, it was said, thereby shut his eyes to the obvious danger and should be taken to have known of it and thus he procured the commission by Mr George of the offence.
    Before turning to the evidence in more detail, it is necessary to remind ourselves of the relevant statutory provisions. These are now contained in section 12A of the Road Traffic Act 1988, which was inserted by the Road Traffic Act 1991 s.1, and which now defines the meaning of dangerous driving for the purposes of the offence of causing death by dangerous driving:
      Section 2A(1) reads: 
      "For the purpose of sections 1 and 2 above a person is to be regarded as driving dangerously if (and, subject to subsection (2) below, only if) ‑
 
(a) the way he drives falls far below what would be expected of a competent and careful driver, and
 
(b) it would be obvious to a competent and careful driver that driving in that way would be dangerous.
 
(2) A person is also to be regarded as driving dangerously for the purposes of sections 1 and 2 above if it would be obvious to a competent and careful driver that driving the vehicle in its current state would be dangerous.
 
(3) In subsections (1) and (2) above 'dangerous' refers to danger either of injury to any person or of serious damage to property; and in determining for the purposes of those subsections what would be expected of, or obvious to, a competent and careful driver in a particular case, regard shall be had not only to the circumstances of which he could be expected to be aware but also to any circumstances shown to have been within the knowledge of the accused." 
As will be apparent, the allegations and the evidence concentrated on section 2A(2) and (3) since it was not, and could not be, suggested that the way in which Mr George had driven the lorry had fallen below, let alone far below, what would be expected of a competent and careful driver.
    Since the case against Mr Roberts was that he had procured the commission by Mr George of the offence, it was accepted that if Mr George were acquitted, Mr Roberts must also be acquitted.
      Causing death by dangerous driving is now an offence of strict liability in the sense that proof of  fault depends on an objective standard, subject only to the extent that it attributes additional knowledge to a particular driver under section 2A(3) of the Act. Accordingly, it is not possible for a secondary party, whether he be alleged to have aided, abetted, counselled or procured the commission of the offence, to be guilty unless the principal offender is convicted:  see R v Loukes (unreported 10th November 1995).
    Both appellants complain that the learned judge failed properly to analyse and so to direct the jury what had to be proved against Mr George to entitle them to convict him.  He gave no proper assistance about what facts must be proved before any conviction was possible. Further, Mr King QC, on behalf of Mr Roberts, complains that the learned judge misdirected the jury in relation to the mental element required to enable him to be found guilty of procuring the commission of the offence by Mr George. For reasons which will become apparent, we take the view that both complaints are well founded.
    Considerable time at the trial was taken up by expert evidence about the state of the wheel, why it came off, and what could or should have prevented the accident.  The main thrust of the case on behalf of the appellants was to assert the way in which the wheel assembly was designed and the wheel fixed was inherently  dangerous in that the wheel nuts could work themselves loose in normal use, and that that could happen without any indication that there was anything wrong.
      Mr Radcliffe, the defence expert who particularly espoused this theory, stated that if the lorry were an aircraft, it would have been grounded long ago. The prosecution experts disagreed and said that the lorry was in a dangerous state due to lack of proper maintenance. It was common ground that wheels coming off lorries, such as the one driven by Mr George at the time of the accident, was a recognised problem and that the rear nearside was a particular candidate.
      There was talk of a 'lost wheel syndrome' and in fact Mr George had some 2 years before been driving a lorry when just such a problem had occurred.  Thus it was accepted that both appellants were aware of the problem and of the need to take steps to try to see that it did not arise. It was their case that there was a proper system of maintenance and that all reasonable steps had been taken.  If the loss of the wheel did not result from what was in effect a latent defect, the nuts could have loosened relatively quickly and in the course of the journey that morning and they had taken all reasonable steps to check for any signs of trouble.
    The prosecution called two vehicle examiners,  Mr Rippon and Mr Chan, and a consultant engineer, Mr Gayle.  Mr Chan described the vehicle's condition as dangerous and unroadworthy and listed a number of defects, five of which were sufficiently serious to require the issue of a prohibition notice.  He did not specifically examine the wheel which had come off.
      Mr Rippon and Mr Gayle each found that the holes, through which the wheel nuts attached the wheel, were seriously worn, and the nuts or studs were themselves wasted at the centre. This all pointed to long‑term wear. Each said that in his view the damage indicated a lack of proper maintenance and could not have been caused by the wheel coming off; rather, the damage had caused the wheel to come off. If there were regular checks, damage would be identified and those operators who carried out such checks and proper maintenance did not lose wheels. Nuts should be checked regularly with a torque wrench, a wheel brace and bar being, according to Mr Gayle, totally unsatisfactory for the purpose, indeed perhaps likely to cause damage.
      In addition, there should be visual examinations which ought to spot whether any particular nut was loose. This was necessary because if one nut became loose, the others would have to take the strain. Mr Gayle accepted that if one nut became loose, the  detachment of the wheel could follow because of progressive loosening of the others quite quickly.
      Both Mr Rippon and Mr Gayle were adamant, and the photographs before the jury confirmed, that the wheel had come off because the nuts had worked loose and not because they, or any of them, had sheared.  Mr Gayle also said that if the vehicle was dirty, it would be easier to spot any loosening of a nut because the polished area between nut and wheel would be apparent. He said the mud on the vehicle had, in his view, come from use in a quarry and could not have been deposited in the course of driving along a motorway, however wet and rainy the conditions.
    The defence called a consultant engineer, who went through the defects alleged by Mr Chan and stated that none of them was particularly serious. He accepted, however, that the lorry would not have passed the equivalent of an MOT.  He did not deal directly with the wheel.
      Mr Radcliffe stated, as we have already indicated, that there was a manufacturing defect and that the lorry was 'a death trap' and that no inspections or maintenance, however careful, could have prevented the wheel coming off.
    Mr George said that he was a heavy goods vehicle  driver.  He regularly drove in and out of quarries. He had no responsibility for maintenance of any of the vehicles. He had verbal instructions from Mr Roberts that he was responsible for the wheels, nuts and state of the tyres. He checked the wheel nuts, as he was instructed, once a week at least.  He had checked them the previous Monday, 13th December with a wheel brace and bar.  He said he used to check three nuts on each wheel out of 10 and chosen at random and would look at the wheels daily.  If a nut was loose, there would be a water trace or a shiny area and he would inform Mr Roberts of any defect.
      He had told the police, and confirmed in evidence, that he had carried out a visual check the previous afternoon, but had not done so on the Thursday morning. It was dark and raining and he would have carried out a visual check later in the day.  He accepted that the lorry had to go over a deal of rough ground in the quarries, but he had not been aware of any particular incident which could have caused any damage. He had driven some 13 miles that morning to the quarry.
      He seems to have accepted that, with hindsight, a visual check every day and a physical check once or twice a week might not have been satisfactory.  But that was hardly a fair question nor could it reasonably have  been a proper basis upon which to found a case against him that the dangerous state of the vehicle would have been obvious to a competent and careful driver.  Nor was it fair for prosecuting counsel to suggest that he had the hindsight in that he had had the experience of losing a wheel some two years earlier. The real question was whether what he did by way of inspection was insufficient so that he should have been aware of the danger, bearing in mind that he was aware of the possibility that nuts could work loose and wheels come off.
    Mr Roberts, when questioned by the police, said that his maintenance schedule for the lorry was 4‑weekly and that maintenance work was carried out by him or by his fitter.  He had 14 vehicles at the time.  He accepted that he had not kept the required records and that any defects would be reported to him by a driver who would leave a note.  He accepted that he had no formal qualifications and so a vehicle could go back into service without being checked by a qualified person. But he had, he said, considerable experience. He said he did possess a torque wrench, but considered that the nuts should be adjusted to a greater torque than that recommended in the manuals.
    In evidence, he confirmed that he had instructed all  his drivers, including Mr George, to check the nuts once a week with a wheel brace and bar and he would expect them to carry out regular visual inspections. It would, he said, be easy to spot a loose nut because it would be visible in the muddy conditions.  He called evidence on his behalf from a Ministry of Transport Examiner that on 27th and 29th December 1993 he had inspected all the lorries at the depot (not, of course, including the lorry in question) and all were maintained to a satisfactory, indeed above average, condition.
    As will be apparent, Mr George maintained, both to the police and in evidence to the jury, that he had done all that his employer had required of him.  None of the experts suggested that a weekly physical check and a daily visual check was unreasonable, although the physical check should, in the view of the prosecution experts, have been carried out by means of a torque wrench.
      It seems to us that it was wholly reasonable, indeed sensible, for Mr George to carry out his visual inspection in daylight.  Thus the crucial questions for the jury were, first, whether Mr George did carry out a visual examination on the Wednesday afternoon and, secondly, whether it was or ought then to have been obvious to him, if he was being competent and careful,  that it would have been dangerous to drive the vehicle in its current state.
      In the context of the case, that would have involved the jury being sure that at least one nut was loose and that that would have been obvious to Mr George if he had carried out the proper visual examination which a competent and careful driver, knowing of the risk of such loosening, would have carried out.
    The word "obvious" in section 2A(2) is important. In R v Strong [1995] Crim LR 428 (of which we were provided with a transcript of the judgment) this court emphasised that it meant something which would be obvious to the driver in the sense that it could be "seen or realised at first glance, evident to him".
      That case involved corrosion in a second‑hand car recently purchased by the appellant and the court said that an ordinary motorist would not be expected to check for corrosion under the vehicle.  But more might be expected, depending on the circumstances, of a professional driver such as a PSV or HGV driver. Regard would always have to be had to the particular circumstances. Furthermore, what might be obvious to, for example, a trained mechanic, who was accustomed to doing all his own maintenance and repair work, might not be obvious to an ordinary unskilled motorist.  Nevertheless, in each case it would have to be obvious in the Strong sense that to drive the vehicle in its current state would be dangerous because of the relevant defect.
    Where a driver is an employee, it will be important to consider any instructions given to him by his employers.  Generally speaking, it would be wrong to expect him to do more than he was instructed to do, provided no doubt that the instructions were apparently reasonable.  So here, in our view, Mr George could not reasonably have been expected to have done more by way of inspection than he was told to do since there was no evidence before the jury which could have entitled them to conclude that he should have appreciated that his instructions were inadequate.
    Following their retirement, the jury asked a question in these terms:
"Can we be reminded of the points of law upon which we are judging the case, namely the degree of competence expected etc." 
      The learned judge answered it by repeating the words of the statute following the direction he had given in the course of his summing‑up.  At page 68, letter H of the transcript, he said this:‑
"And in order to assist, in the context of this case in relation to Mr. George the question really is this:  Did Mr. George know of the danger, or ought he to have known of the danger, even if he did not know, ought to have  known because of inadequate checks by him?"
      In reality, that was not the question.  There was, as we have said, no evidence that what Mr George said he did constituted an inadequate system on his part.  The real question was whether the defect was or should have been obvious when he carried out his visual inspection the previous afternoon. Only if so and he missed it, could he be convicted.
    At no time during his summing‑up did the learned judge indicate to the jury what facts they would have to find proved to entitle them to convict Mr George.  He did direct them in accordance with the terms of section 2A and used the word "obvious", but he did not apply the law to the facts. He can to an extent be forgiven for this because of the way the case was conducted, namely was this a latent defect or was there a lack of proper maintenance?
      The prosecution case is summarised by the learned judge thus at page 8A of the transcript:‑
"I am going to have to go through it with a bit more detail, but in a nutshell what the prosecution say is this. There may well be a problem with the security of the wheels. There may well be, in an ideal world, various things that could or ought to be done to minimise it, but, say the prosecution, operators and drivers have to deal with the situation as it is, and what they have to do is to seek to minimise any risk by being extra vigilant in the checks they carry out". 
      That puts, for reasons we have already given,  altogether too high a burden upon an employee driver. The jury were in effect being directed to consider whether there was negligence in the system of maintenance and to convict if satisfied that a more rigorous system would have brought the dangers to light or would have avoided it altogether. Indeed, the learned judge's introduction at 4F:
"... or was it caused by negligent maintenance of that rear nearside wheel? And if so, was Mr George responsible and was Mr Roberts responsible?"
  
uses the word "negligent"' which is, as Mr Hughes accepted, unfortunate, particularly in relation to Mr. Roberts.
      We are accordingly satisfied that the conviction of Mr George is unsafe and must be quashed. That means that Mr Robert's conviction must also be quashed.
      In those circumstances, we can deal with the other point taken on his behalf briefly.
    It is common ground that a person cannot be convicted of procuring the commission of an absolute offence unless it is proved that he knew the essential matters which constitute the offence.  This was stated by Lord Goddard C.J. In Johnson v Yowden [1950] 1 K.B. 544, 546, in a passage which has been approved by the House of Lords, and which reads: 
      "Before a person can be convicted of aiding and abetting the commission of an offence he must at least know the essential matters which constitute that offence.  He need not actually know that an offence has been committed, because he may not know that the facts constitute an offence and ignorance of the law is not a defence.  If a person knows all the facts and is assisting another person to do certain things, and it turns out that the doing of those things constitutes an offence, the person who is assisting is guilty of aiding and abetting that offence, because to allow him to say, 'I knew of all those facts but I did not know  that an offence was committed,' would be allowing him to set up ignorance of the law as a defence." 
      Knowledge includes what ought to be known, so that wilful blindness cannot excuse. However, Devlin J. pointed out in Roper v  Taylor's Central Garages (Exeter) Ltd. [1951] 2 TLR, 289:‑
"There is a vast distinction between a state of mind which consists of deliberately refraining from making inquiries, the result of which the person does not care to have, and a state of mind which is merely neglecting to make such inquiries as a reasonable and prudent person would make." 
      It is accepted by Mr. Hughes that negligence cannot amount to sufficient mens rea to render an accomplice or secondary party guilty of an offence. There still remains a question whether recklessness of any sort may suffice (see e.g. Blakely v D.P.P. [1991] RTR 405), but we do not need to decide that interesting matter in this case. It is enough for our purposes that negligence cannot be enough.
    It is therefore, to say the least, unfortunate that  the learned judge used the word "negligent" in introducing the issues at page 4F of the transcript. Mr Hughes has submitted that he did talk in terms of "wilful blindness". What he in fact said was this at page 11, letter E:
    ".......then you have to ask yourself the question in relation to Mr. Roberts: 'Did Mr Roberts know of the danger or at the very least, in other words the defective nature of that wheel, or at the very least ought to have known of the danger by means of regular checks?
 
If the position, ladies and gentlemen, is that you feel it may be that Mr Roberts did everything he could, then of course he would be entitled properly to be acquitted. It is only if you consider that he either knew of the state of that wheel, or ought to have known because he had failed to implement the proper system of maintenance and checks. In other words, as Mr. Golinski put it, a rather cowboy operation. A less emotive way of putting it might be a rather sloppy operation. All right? A person is not entitled to operate a sloppy operation and then as it were turn round and say: 'Well I never actually knew, it's not my fault.'  If he ought to have known, then ladies and gentlemen, he would be guilty. And you can see the sense of that logic can you not? A person cannot just shut his eyes to the position". 
      Then just before the jury were sent out to consider their verdict, at page 62, letter A, he said this:
"If that is position you should then go on to ask yourself the question in relation to Mr Roberts, has it been proved that Mr Roberts has fallen far below the standard of a competent and careful operator, to all intents and purposes? Owner/operator. The prosecution saying he is guilty effectively of sloppy maintenance. He maintaining, as does Mr. George, it is a design fault". 
Finally, after the jury had asked their question, at page 69, letter D, he said this: 
"... you should go on to consider the question of Mr Roberts, asking yourself, you may think, this question: Did he know of the danger, or at the very least ought to have known of the danger by carrying out regular satisfactory checks? If the position is that you formed the view, and are sure, that he should have known because of regular checks, then ladies and gentlemen, you cannot have a situation where an operator can as it were, as I used the example yesterday, you cannot have a situation where someone says well, I will not carry out regular checks in the interests of economy, or sloppiness, or whatever, I will not carry out regular checks. If you do not carry out regular checks you cannot then turn round if something goes wrong and say well, I did not know, because the law says you ought to have known ‑ if you are satisfied that there has been a lack of regular checks and that regular checks would have solved this particular problem or at least prevented this particular death." 
      In our judgment, the language in all those passages is that of negligence and the jury would clearly have been left with the impression that they could convict if sure that the system of maintenance applied by Mr Roberts was, to use the learned judge's word, "sloppy".  Nowhere is it made clear that Mr Roberts must have known that it was or should have been obvious to a competent and careful driver having Mr George's knowledge that driving the lorry in its current state would be dangerous.  For that reason too Mr Robert's conviction must be quashed.
    Mr Roberts in addition pleaded guilty to five counts of making fraudulent applications for vehicle excise  licences and was sentenced to concurrent terms of 3 months' imprisonment. He renews his application for leave to appeal against those sentences. We give leave to appeal.
    Mr King says that they were only imposed because of the 18 months' sentence on the main charge.  Looked at on their merit, they were wrong in principle.  We agree.   Mr Roberts produced to the court some impressive character references from which it was clear that he was no cowboy operator.  He was, on the contrary, a respected member of the community running a bona fide business. He was not good at keeping records.  He had wrongly used vehicles untaxed and concealed that fact, but he had honoured the back duty demands so that no sums were outstanding.
      Without the charge of causing death by dangerous driving, the licence offences would have been dealt with by the magistrates who would, we have no doubt, have imposed a financial penalty.
    In the light of what has happened, it would be harsh now to substitute any financial penalty. Although Mr Roberts has served the sentences, it is right that they should be removed from his record since otherwise any future licence applications may be prejudiced. We quash the sentences and substitute an absolute discharge on  each count.
MR KILEEN (For Mr King QC): My Lords, I appear for the Appellant, Roberts, today. My learned friend, Mr King appeared before.  There was an application before your Lordships to consider the question of costs.  I do not know whether that has in fact been resolved by your Lordships, although I suspect not.
 
LORD JUSTICE ROCH:  We will make an order that Mr Roberts' costs be paid out of central funds.
 
MR KILEEN: I am very much obliged.
 
                (The court adjourned)
 
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