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Companion Website
Blackstone's Criminal Practice 2006
Part C
Updates to Part C 2005
- C2.10 Admissibility of Evidence from Prescribed Devices - March 2006
- C3.6 Manslaughter: Sentencing - November 2005
- C3.9 Dangerous Driving and Causing Death by Dangerous Driving - March 2006
- C3.9 Dangerous Driving and Causing Death by Dangerous Driving - April 2006
- C3.33 Causing Danger to Road Users - March 2006
- C3.39; E11.2 Breach of Order: Proof of identity - 3 November 2005
- C3.39 Driving while Disqualified - January 2006
- C3.41 Driving while Disqualified: Punishment - October 2005
- C5.17 Punishment - July 2006
- C5.23 Admissibility of specimens - April 2006
- C5.23 Admissibility of Specimens - June 2006
- C5.23 Admissibility of Specimens - July 2006
- C8.5 Disqualification Generally - September 2005
- C8.8 Special reasons - December 2005
- C8.8 Special Reasons - July 2006
C2.10 Admissibility of Evidence from Prescribed Devices
The Road Traffic Offenders Act 1988, s. 20(8) specifies certain notice requirements that must be satisfied if a certificate is to be tendered in evidence for the purpose of proving a speeding offence; but this does not preclude such evidence being called in the conventional manner.
As the Divisional Court explained in DPP v Thornley [2006] EWHC 312 (Admin), the usual effect of s. 20(1) and (8) is that evidence of a fact relevant to the proceedings may be adduced by the record produced by a prescribed device, and a certificate as to the circumstances in which it was produced must be served on the person charged not less than 7 days before the hearing or trial. If a copy of the record and the certificate is served not less than 7 days before trial, and if not less than 3 days before trial, or such further period as the court may allow, the person charged serves on the prosecution a notice requiring the attendance at the hearing of the person who signed the certificate; the document, or documents if the record and certificate are in separate documents, will not be admissible as evidence of anything other than the matters shown on the record produced by the prescribed device. In those circumstances, the officer will be able to give evidence of the circumstances in which the record was produced and the record itself will be admissible in evidence. The officer need not have first-hand knowledge of the speeding offence, as long as he is aware of the circumstances in which the speed camera etc was set up. But if the officer is prepared to testify in this way, compliance with s. 20(8) is not necessary.
This may seem to deprive motorists of their right to see, in advance of the trial, the photographs or digital images that form the crux of the case against them, but in Thornley (at [18]) Owen J offered some reassurance in that respect:
"In his submissions to us, Mr Thornley sought to argue that if we were to uphold this appeal then that would have the consequence that where the prosecution do not comply with the provisions of s 20(8) and serve a copy of the record more than 7 days before the hearing, defendants will not have the opportunity to subject the record to analysis, and will therefore be inhibited in the conduct of their defence. The answer to that is that if the prosecution fail to comply with s 20, and if a defendant is, as a result, at a disadvantage and needs additional time within which to consider the record produced by the machine, or have it subjected to scientific examination, he will be entitled to ask the court for an adjournment. I would expect that in those circumstances an adjournment would be granted. He would also be in a position to seek an order for the costs thrown away. Again, it is likely, absent any other relevant considerations, that such an application would be successful."
Author: MH
C3.6 Manslaughter: Sentencing
In Brown [2005] EWCA Crim 2868, a sentence of 10 years' detention in a young offender institution was upheld in respect of a defendant, aged 20, who deliberately drove his car into a head on collision with another vehicle whilst intent on committing suicide. The court observed that he must have known he would kill or injure at least one other person and the case was therefore exceedingly grave even if other aggravating features were not present. It is not clear however whether any credit was given for his guilty plea, as it should have been, even if (as the court observed) the evidence made it almost impossible for guilt to be denied.
Click here for full text of the judgment.
Author: MH
C3.9 Dangerous Driving and Causing Death by Dangerous Driving
In the widely publicised case of DPP v Milton [2006] EWHC 242 (Admin) the Divisional Court (in a judgment given by Hallett LJ) allowed the prosecution's appeal against a district judge's ruling that the respondent, a class 1 police driver, was guilty neither of speeding nor of dangerous driving when he 'familiarised himself' with a powerful new unmarked police car at speeds of up to 149 mph on the M54 and at 91 mph on restricted urban roads with a 30 mph limit.
The court did not go so far as to remit the case with a direction to convict, but merely required it to be reheard on the basis that the district judge had misdirected himself on certain matters and had taken some irrelevant matters into account. The outcome of the rehearing is by no means a foregone conclusion, however.
Police officers are subject to the same rules of driving as the rest of the population, save that under the Road Traffic Regulation Act 1988, s. 87, a police vehicle may be driven in excess of speed limits "if their observance would be likely to hinder the use of that vehicle for the purpose for which it is being used on that occasion". If a police officer drives dangerously in an emergency he is not exempt from liability under the Road Traffic Act 1988, ss. 1 or 2 (Collins [1997] RTR 439) and for that reason the court rejected the prosecution's primary argument, which was that driving at very high speeds must inevitably amount to dangerous driving. As Hallett LJ explained:"That would mean that any driver of an emergency vehicle, driving at twice the speed limit, whatever the road conditions, however much warning was given to other road users, would be guilty of dangerous driving. That cannot be right."
But although the prosecution failed on this point, other questions remained to be answered. Is an officer using a vehicle on police purposes (so as to be exempt under s. 87 from the duty to comply with speed limits) when practising his skills or familiarizing himself with a new car? And did the district judge apply the right principles and take account of the right factors when deciding that the respondent's driving (in which no lights or sirens were used to warn other road users) was not 'dangerous' within the meaning of the Act?
As to the first question, the court's view was that this question arose for consideration only if and when the district judge acquitted the respondent on the principal charge of dangerous driving, and therefore no final answer was forthcoming, but it did at least reject the prosecution's argument that a police officer who drives at such high speeds could only come within the exemption when in hot pursuit of a dangerous criminal. In contrast, the court doubted whether a blanket answer could properly be given in favour of the defence. Hallett LJ said:
"Familiarising oneself with a vehicle and honing one's skills does not necessarily involve driving at 90 miles per hour through residential streets, if that is what they were. Nor does it necessarily involve driving at 150 miles per hour."
As to the second and (on the facts) more important question, the court recognized that the test for dangerous driving is said to be a wholly objective one (in the sense that it makes no difference if D is unaware of the danger posed by his driving); but s. 2A requires account to be taken of 'any circumstances shown to have been within the knowledge of the accused'. This personal knowledge test would ordinarily be used against, for example, the driver who knows of but ignores a dangerous concealed junction ahead, or the limitations of his vehicle; but in this case the district judge had applied it in favour of the respondent, by taking into account the respondent's knowledge of his own professional driving skills.
The court held that this was impermissible. In so far as the district judge imported a subjective element into the test of dangerous driving to be applied, he was wrong in law to do so. To quote Hallett LJ again:
"It matters not whether the respondent intended to drive dangerously, or believed that he could drive at grossly excessive speeds without causing danger to others because of his advanced driving skills. I repeat that the test is, what is the standard judged objectively and what would have been obvious to the independent bystander? As to whether the district judge would have been entitled to impute knowledge of the respondent's driving skills to the independent bystander on the basis of the arguments advanced before us, I can form no concluded view."
With respect, this is a crucial question that deserves a forthright answer; and the answer must surely be the respondent's skill was a highly relevant consideration which any reasonable bystander must be required to take into account. If I were offered a 150 mph ride (on a private race track) I would want to know who the driver was and what experience he had. Knowing a top professional driver was at the wheel, I would probably accept the offer. If my young nephew were to make me a similar offer a few weeks after passing his test, I would consider it to be absurdly dangerous.
But even if the above argument is accepted, the respondent's decision to 'practise' at 90 mph in a built-up area may still be open to attack. Driving at these speeds on public roads without blue lights or sirens, however skilled the driver, amounts, said Hallett LJ, to a prima facie case of dangerous driving. The district judge ought to have taken into account the possible effect upon other road users of somebody coming up behind them or across their path at speeds of this kind and with no warning; and he was wrong to hear expert evidence as to why the respondent's driving was not dangerous. As to why expert evidence on that point was inadmissible, the court regrettably gave no reasons, but one matter upon which the judge might well have benefited from expert guidance concerns the nature of advanced driver training, in which drivers learn how to anticipate and guard against such events, so that innocent road users are not so easily surprised or endangered. This, with respect, is not a matter of general public knowledge.
Hallett J concluded her judgment with the following observations:
"I am conscious of the need to ensure that police officers are properly trained for their own safety and for the safety of the public. In my view, if the position is as found by the district judge here there should be a better way. I would invite the Chief Constable of West Mercia Constabulary, and any other Chief Constable whose force may be affected, to instigate a review, if they have not already done so, as to whether or not the situation is as the district judge found here. I would ask them to consider whether advanced police drivers are encouraged to hone their skills in unfamiliar vehicles at grossly excessive speeds on public roads both urban and motorway."
The answer, with respect, is that advanced police drivers must indeed practise at least some of their high speed skills on public roads. If this kind of practice is stopped we will end up with traffic officers who are relatively inexperienced (or at least too often out of practice) when driving at very high speeds. But whether it is right for them to be required to practise without using lights and sirens to warn other road users is perhaps another matter.
Author: MH
C3.9 Dangerous Driving and Causing Death by Dangerous Driving
Woodward [1995] 1 WLR 375 was considered by the Court of Appeal in Webster [2006] EWCA Crim 415. As to the potential liability of a defendant who permits or encourages an intoxicated person to drive, see A5.2.
Author: MH
C3.33 Causing Danger to Road Users
The offence created by the Road Traffic Act 1988, s. 22A(1)(a) was considered by the Divisional Court in DPP v D [2006] EWHC 314 (Admin), in which it was held that the placing of an item on a road may be dangerous even if a careful and competent motorist would see it in good time. In this case the defendant had moved a 3' x 4' road sign onto the carriageway of a main road (apparently as some kind of prank). That night, a speeding car swerved suddenly off the road just before reaching the sign and both occupants were killed. There was evidence that a vigilant motorist travelling in that direction would easily have seen the sign, and the district judge ruled that there was no case to answer under s. 22A(1).
Allowing a prosecution appeal against this ruling, the Divisional Court noted that the back of the sign would not so easily have been visible to a motorist overtaking from the opposite direction, but based its ruling on the wider basis that not all road users drive carefully. David Clarke J said:
"17 The reasonable person does not expect, and cannot be taken to expect, that all motorists will drive carefully and well. The reasonable person is aware, sadly, that many motorists do not. The reasonable person should, in my judgment, realise that an obstruction of this sort could play a part in causing an accident, notwithstanding that the primary cause of such accident would be bad driving on the part of a motorist, whether in the form of excessive speed or failure to keep a proper lookout or following other traffic too closely or a combination of such factors. I would hold that the District Judge should not have dismissed the case prematurely on this ground.
18. He approached the question as being one of whether it would be obvious to a reasonable and prudent driver, who drives at the correct speed, that the presence and the position of the sign was dangerous; that is to say, whether it would be dangerous to him. No doubt, he had in mind the evidence of the witnesses in this case, to whom it did not present a danger and who said they had not been endangered by it. But, in my judgment, that was not the right approach. The question is whether a reasonable bystander would consider it to represent an obvious danger, whether that reasonable bystander be a motorist or not. The reasonable bystander would, in my judgment, be fully aware of the fact that not all drivers do drive carefully and well."
Author: MH
3 November 2005
C3.39; E11.2 Breach of Order: Proof of identity
West Yorkshire Probation Board v Boulter (Charles Edward) [2005] EWHC 2342 (Admin) considers the standard and mode of proving that a person charged on an information with breach of a community rehabilitation order (CRO) is the same person as he against whom the order was made. In this case the prosecution showed that the respondent and the person named in the order shared the same names, addresses and date of birth. The respondent did not appear in person before the court to contest these matters. The justices concluded that the matching of personal details with those on a certificate of conviction was not and could not as a matter of law suffice to prove identity.
The Divisional Court concluded that no such categorical rule exists. Here, there was a coincidence of personal details, and the respondents name was an unusual one. Whether the evidence is sufficient to prove to the criminal standard (that being the appropriate standard in such proceedings as this) depends on all the facts of the case. When magistrates have evidence of coincidence of personal details such as they had in the instant case it is open to them to draw an inference that he is the same person. Whether that inference should be drawn depends on all the facts of the case. The power to reach such a conclusion is independent of the power to draw an inference from silence under the Criminal Justice and Public Order Act 1994, s. 35 (which did not apply here because the respondent did not appear in person).
The same problem arises in proving identity in cases of driving while disqualified. It would seem that the magistrates in the instant case were not referred to all the authorities cited in Blackstone's Criminal Practice, C3.39. Derwentside Justice, ex parte Heaviside [1996] RTR 384 was distinguished, and Olakunori v DPP [1998] COD 443 was followed.
Author: LL
C3.39 Driving while Disqualified
As to proof of previous disqualification (and in particular as to the problem of proving that the present defendant is the same person as the defendant who was previously disqualified), see Pattison v DPP [2005] EWHC 2938 (Admin), in which the court accepted the following propositions.
- As with any other essential element of an offence, the prosecution must prove to the criminal standard that the person accused was a disqualified driver. It can be proved by any admissible means, such as an admission (even a non-formal one) by the accused, that he was a disqualified driver.
- If a certificate of conviction is relied upon, pursuant to the Police and Criminal Evidence Act 1984, s. 73, then it is an essential element of the prosecution case that the accused is proved to the criminal standard to be the person named on that certificate.
- Three clear ways which this can be proved are the three ways identified in Derwentside Justices, ex parte Heaviside [1996] RTR 384.
- There is, however, no prescribed way that this must be proved. It too can be proved by any admissible means.
- Even in a case where the personal details such as the name of the accused are not uncommon, a match will be sufficient for a prima facie case.
- In the absence of any evidence contradicting this prima facie case, the evidence will be sufficient for the court to convict.
- The failure of the accused to give any contradictory evidence in rebuttal will be a matter to take into account. If it is proper and fair to do so and a warning has been given, it can additionally give rise to an adverse inference under the Criminal Justice and Public Order Act 1994, s. 35(2).
Author: MH
October 2005
C3.41 Driving while Disqualified: Punishment
As to the imposition of consecutive sentences where the defendant has been convicted both of driving while disqualified and a related offence (in this case aggravated vehicle-taking), see Forbes [2005] EWCA Crim 2069.
Click here for full text of the judgment.
Author: MH
C5.17 Punishment
As to special reasons for non-disqualification, see Woolfe v DPP [2006] EWHC 1497 (Admin) and C8.8 below
Author: MH
C5.23 Admissibility of specimens
Appeals against convictions in drink driving cases may sometimes succeed even when based on the merest technicality. In Edmond v DPP [2006] EWHC 463 (Admin) the claimant attempted to take advantage of that rule. The fact that he failed may look like a victory for common sense, but does not alter the underlying problem.
Following his initial arrest on suspicion of a drink-driving offence, the claimant was required to provide two positive specimens of breath at a police station and, in accordance with the Road Traffic Act 1988, s 7(7), he was warned before doing so that failure to provide would leave him liable to prosecution under that section.
The readings obtained from these specimens of breath were over the legal limit, but were somewhat inconsistent, and the police therefore invited (but did not require) the claimant to provide two more. This procedure had previously been endorsed in Stewart v DPP [2003] EWHC 1323 (Admin). It appears, however, that the warning as to the risk of prosecution for failing to provide was not repeated, and it was on that basis that he appealed against his conviction to the Divisional Court.
The court held that there had been no procedural infringement, because the requisite warning had already been given and was in any case inapplicable to the later voluntary procedure in which the claimant was merely invited to take part.
That sufficed to dispose of the case, but it is unfortunate that the court was unable to deal more robustly with such an appeal. A more robust answer might have stated that, since the claimant had provided the relevant specimens, it was irrelevant whether he had or had not been warned what might have happened had he refused. Unfortunately, Murray v DPP [1993] RTR 209 remains an obstacle to such reasoning and is binding on the Divisional Court.
Author: MH
C5.23 Admissibility of Specimens
The duty to 'supply' one part of a blood or urine specimen to the accused, which is imposed under the Road Traffic Offenders Act 1988, s 15(5), does not necessarily require any part of the specimen to be handed physically to the accused: it may be satisfied where in some other way that part of the specimen is made available to the accused. In R (OConnell) v DPP [2006] EWHC 1419, the appellant's arms had been broken in a motorcycle crash, and therefore his half of the divided blood specimen was handed to his friend, who fully understood its purpose. The Divisional Court saw no irregularity in this.
This commonsense decision at least avoids the need for the police to leave an incapacitated motorist lying in his hospital bed with his part of the specimen clasped safely between his teeth.
Author: MH
C5.23 Admissibility of Specimens
The court's duty to take account of evidence of the proportion of alcohol in a specimen for the purposes of the Road Traffic Offenders Act 1988, s. 15(2), extends only to evidence that has actually been placed before the court. Evidence of the proportion of alcohol stored in the memory of a roadside device may be admissible if any such evidence has been obtained from the manufacturer but, if no such evidence has been obtained, there will be no such evidence to take into account.
To hold otherwise would mean that in every case, the prosecution would have to obtain from the manufacturer of the roadside device an analysis of the proportion of alcohol in the relevant specimen and then put that analysis in evidence: see Murphy v DPP [2006] EWHC 1753 (Admin).
Author: MH
September 2005
C8.5 Disqualification Generally
In Chivers [2005] EWCA Crim 2252, the defendant was involved in a series of serious road rage incidents, culminating in driving his car at an off-duty police officer. He pleaded guilty to one count of criminal damage, one of affray, and one of dangerous driving. He was sentenced to a total of 12 months' imprisonment, and was disqualified from driving for a period of five years, and until an extended re-test had been taken. The appeal was limited to the length of disqualification especially on the basis that the length of the disqualification would impact on the defendant's employment prospects on his release from custody.
The appeal was allowed. It was an important principle that a disqualification from driving should not, except in the more serious cases, be so severe that it would interfere with a defendant's rehabilitation.
Author: MH
December 2005
C8.8 Special reasons
In Ashton v DPP [2005] EWHC 2729 (Admin) the Divisional Court held that a car with a blue warning light, used by an ambulance driver to collect an ambulance in the early hours of the morning in response to an emergency call, was not itself an ambulance. The driver accordingly had offended against vehicle lighting regulations, and had no defence to charges of exceeding speed limits and passing a red light (which he had treated carefully as a give way signal). This may be correct, although it seems unfortunate that anyone should have considered a prosecution on such facts to be in the public interest.
On the issue of special reasons for not endorsing the driver's licence, the court doubted (but did not interfere with) the magistrates' decision to treat the case as an emergency situation, because where it was the practice for employees of an ambulance company to remain at home (eg at night) until called out, that would be a routine or foreseeable situation, rather than an emergency.
With respect, the possibility of an emergency call may be foreseeable, but when the call comes it may still be an emergency. If, as in this case, a sick child needs to be rushed to hospital in the early hours of the morning, does it become an emergency only when the driver reaches his ambulance?
Author: MH
C8.8 Special Reasons
Wickens (1958) 42 Cr App R 236 and Newton [1974] RTR 451 were applied and Zafar v DPP [2004] EWHC Admin 2468 considered in Woolfe v DPP [2006] EWHC 1497 (Admin).
Author: MH
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