Case no: 201000540 B5 
Neutral Citation Number: [2009] EWCA Crim 1249
IN THE COURT OF APPEAL
CRIMINAL DIVISION 
Royal Courts of Justice
Strand
London, WC2A 2LL 

Tuesday, 18 May 2009
 
B e f o r e:

LORD JUSTICE TOULSON 

MR JUSTICE BEATSON 
 
MRS JUSTICE SWIFT 
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R E G I N A 

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Mr TZ Khan appeared on behalf of the Applicant
Mr G Gray QC and Mr MT Khan appeared on behalf of the Crown
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J U D G M E N T
1.	LORD JUSTICE TOULSON:  A motorist drives carelessly and crashes his car.  Nobody else is involved in the incident, but the car is undriveable and partially obstructs the highway.  After an interval another motorist suffers a fatal accident while swerving around the crashed vehicle.  Is the first motorist guilty of the offence of causing the death of the second motorist by careless driving, and what are the criteria for determining the answer?  There are some significant factual details to be added, but that, in essence, is the conundrum at the heart of the present case.  It comes before the court on an application by the prosecution for leave to appeal against the trial judge's decision to uphold a submission by the defence of no case to answer.
2.	The accident occurred in the early hours of 5 October 2008.  The respondent, a man in his mid 20s, was driving his father's Vauxhall Astra along the A642 from Wakefield towards Huddersfield.  The road had a 40 mph speed limit.  He was driving at an average speed of 43 to 47 mph.  It was raining hard.  
3.	As he went around a left‑hand curve he lost control and his vehicle collided head on with a traffic island in the middle of the road.  The island was there because at that point there was a turning into the forecourt of a garage.  On either side of the traffic island the centre of the road had crossed hatchings.  On the island were two bollards and between them a beacon with a light on top.
4.	The respondent demolished the beacons and broke the pole with the beacon, leaving the stump of the pole protruding from the traffic island.  The Vauxhall Astra continued across the other side of the road, and embedded itself in a stone wall on the Wakefield bound side of the road.  The front of the vehicle was protruding 1.25 metres into the carriageway, facing in the direction of Wakefield.  The collision caused severe damage to the front of the vehicle.  The front lights were inoperable, but the rear lights and rear number plate remained illuminated for a time.
5.	According to CCTV footage, three minutes after the crash two vehicles approached in the Wakefield bound lane, slowed down, passed the crashed Vauxhall Astra, and then moved across the carriageway to pass the traffic island on the wrong side of the road.  At that stage the rear lights of the Vauxhall Astra were still lit.  About six minutes after the crash the deceased, Mr Deo, approached in the Wakefield bound lane driving a Skoda taxi with two passengers.  By this time the lights on the crashed vehicle were off.  Mr Deo was travelling at 40 to 43 mph and the passengers, both of whom were called as witnesses, expressed no concern as to his speed or manner of driving.  
6.	As he swerved to avoid the crashed car he drove on to the central hatch markings, hit the now unlit traffic island, making contact with the stump of the pole, and at that point tragically the taxi rolled over twice and came to rest on its roof.  Mr Deo was not wearing a seat belt (the law did not require him to do so as a taxi driver) and tragically he was killed instantly.
7.	The respondent was initially charged with the simple offence of careless driving, but subsequently the charge was extended to a charge of causing death by careless driving.  The matter came to trial in January 2010 at Bradford Crown Court before HHJ Benson.  At the close of the prosecution's case the judge ruled that there was no case to answer, and it is against that ruling that the prosecution now seeks leave to appeal.
8.	We have been referred to three authorities on the more serious offence of causing death by dangerous driving:  R v Henningan [1971] 55 Cr App R 262, R v Skelton [1995] Crim LR 635 and R v Barnes [2008] EWCA Crim 2726.  Mr Khan, on behalf of the prosecution, submits that the judge erred in stopping the case because his decision stood in conflict with the principles established by those authorities.  
9.	Those authorities establish or recognise these principles:  First, the defendant's driving must have played a part not simply in creating the occasion for the fatal accident, ie causation in the "but for" sense, but in bringing it about; secondly, no particular degree of contribution is required beyond a negligible one; thirdly, there may be cases in which the judge should rule that the driving is too remote from the later event to have been the cause of it, and should accordingly withdraw the case from the jury.
10.	In the perfected notice and grounds of appeal Mr Khan set out the reasons why, in his submission, the judge was wrong to distinguish the previous authorities, and in particular, Skelton and Barnes on the facts of those cases.  Skelton and Barnes were both cases involving two episodes separated in time.  In both cases the judge rejected the submission of no case to answer at the close of the prosecution's case, and the defendant's conviction was upheld.
11.	We do not find it of real assistance to compare the facts of this case with the facts of those cases in matters of detail, because it is the principles which matter.  In the application of those principles to the facts of a particular case, much may depend on having a full feel for the evidence.
12.	As an intellectual exercise the first and second principles are not at all easy.  That is no great surprise because at a theoretical level the concepts of causation and remoteness have challenged the finest minds.  In the civil field no comprehensive test has been devised for distinguishing situations where the intervening cause extinguishes the defendant's responsibility from those where it does not: see Charlesworth and Perry on Negligence 11th Edition 2006, paragraph 5‑55.  Sometimes foreseeability is used as an aid.  Was what happened subsequent to the defendant's negligence something which he should have expected?  However, the correlation between foreseeability and remoteness is itself a subject on which much ink has flowed.
13.	We would not press an analogy with civil claims too far, because in many tort cases the court is essentially concerned with issues of apportionment, whereas a criminal verdict permits no degree of apportionment.  We simply observe that the question of remoteness, where the court has two successive incidents to consider, is theoretically difficult.   The approach of the courts has therefore been pragmatic and heavily influenced by the context in which the question has to be answered.  
14.	In Barnes Hallett LJ commented that:  
"...in principle, the distinction between dangerous driving which creates the circumstances of a fatal collision and dangerous driving which is the actual cause of a death may not be an easy concept to grasp."
We agree.  
15.	Nor is it made easier by saying that the degree of contribution is immaterial, provided that it is non‑negligible, ie not to be disregarded.  That principle was laid down in Henningan, where the court was not concerned with successive incidents or the question of remoteness.  Nobody disputes that a defendant's negligence need not be the sole cause of the fatality.  However, in a case of successive incidents the question whether the defendant's conduct crossed the notional dividing line between creating the circumstances in which the second incident occurred and causing the fatality, is, by its nature, a fact‑sensitive exercise and one which is essentially a question of degree, whatever language is used to describe it.
16.	In short, it is ultimately for the jury to decide whether, considering all the evidence, they are sure that the defendant should fairly be regarded as having brought about the death of the victim by his careless driving.  That is a question of fact for them.  As in so many areas, this part of the criminal law depends on the collective good sense and fairness of the jury.
17.	In the present case the judge was strongly influenced by three factors.  The first was that the degree of intrusion of the defendant's crashed vehicle into the road was only 1.25 metres, and on the evidence of a vehicle examiner called by the prosecution there was sufficient width for traffic to pass between it and the central traffic island without difficulty.  
18.	The second was the evidence of the front‑seat passenger in the taxi, who saw the crashed car from a distance of about 200 metres and at a time when the road was quite quiet.  At that stage he expected the taxi driver to drive around the central reservation, and could see no reason why the taxi could not have safely negotiated the area of the previous accident.  Thirdly, although there was damage to the traffic island, and the beacon on top of the pole had been broken, the judge was satisfied from the evidence that there was sufficient illumination for it to be visible to vehicles travelling in the direction of Wakefield.  
19.	That conclusion was supported by the evidence of the taxi passenger, and the judge was able to see photographs which demonstrated that the road was generally well lit.  Mr Khan submitted that it would have been difficult to have seen the traffic island, and he invites us to form our own view from our study of the photographs, but we are not in a position to do that.  The judge, as it seems to us, was entitled to form the view that he did on the evidence which he had heard.  In truth the prosecution's case was not assisted by the evidence of the passenger in the taxi, or the concessions made by the independent vehicle examiner.
20.	Collectively the points which influenced the judge in reaching his decision, described by him as a "borderline decision", were good jury points, but with respect to the judge whose feel for the evidence was necessarily better than ours, they do not appear to us to have been so strong that any properly directed jury must have found the respondent not guilty.  We consider that he should have left the matter to the jury, because it was essentially a question of fact for their resolution.  
21.	The question then arises under section 61(5) of the Criminal Justice Act 2003 whether it is necessary, in the interests of justice, that there should be a retrial.  We conclude that it is not.  A substantial period of time elapsed before the respondent was charged with the relevant offence.  We were told that this was because authorisation was required from the Director of Public Prosecutions in view of the nature of the charge.  At all events, nearly a year passed before the matter came to the Crown Court, and the incident itself was a very short one.  At a retrial prosecution witnesses would be giving evidence about matters which happened a considerable time ago.  
22.	We cannot tell whether the jury's reaction to the evidence would have been the same as that of the judge, but, looking at the matter overall, we are not persuaded that the strength and gravity of the prosecution's case is such that the interests of justice require a retrial with witnesses having to give evidence for the second time about a brief incident when their memories are less fresh.  In those circumstances we grant the application for leave to appeal, but dismiss the appeal.
23.	The question now arises of what order the court should make.  The prosecution gave the usual undertaking to the Crown Court when it sought to make this application.  One order which can be made under section 61(4)(c) is an order that the defendant be acquitted of the offence.  In the light of the undertaking given, is there any reason why we should not make that order? 
24.	MR KHAN:  I do not believe so, but might I just take a moment? (Instructions taken) My Lord, there is a slight complication in that there was always the possibility that if the jury rejected the causation argument, that they could have returned a verdict of guilty of simple careless driving.  
25.	LORD JUSTICE TOULSON:  What undertaking did you give? 
26.	MR KHAN:  That in the event the appeal was unsuccessful that a not guilty verdict would be entered. 
27.	LORD JUSTICE TOULSON:  Is that not the right course to take?  Do take further instructions? 
28.	MR KHAN:  In the circumstances I think we are required to invite the court to enter a not guilty verdict. 
29.	LORD JUSTICE TOULSON:  So be it.  Then pursuant to section 61(4)(c) of the 2003 Act we will order that the defendant be acquitted.  Thank you for your arguments.