Marchant & Anor, R v [2003] EWCA Crim 2099

Case No 200107121 Z5200200032 Z5[2003] EWCA Crim 2099IN THE SUPREME COURT OF JUDICATURECOURT OF APPEAL(CRIMINAL DIVISION)Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 21 st July 2003
Before
The Vice President of the Court of Appeal Criminal Division(LORD JUSTICE ROSE)MR JUSTICE GRIGSONMR JUSTICE BEATSON
Between
RCrownThomas John MARCHANTDefendantEdward MUNTZDefendant
Mr R Amlot QC & Mr J W P Waters appeared on behalf of Marchant & Muntz)Mr P A Farrer appeared for CrownHearing Hearing dates : 22 nd May 2003
JUDGMENT : APPROVED BY THE COURT FOR HANDING DOWN (SUBJECT TO EDITORIAL CORRECTIONS)
[1]On the 23rd of November 2001 at the Crown Court at Birmingham Mr Marchant was convicted of causing death by dangerous driving. Mr Muntz was convicted of procuring that offence on a separate count. Each was sentenced to 6 months imprisonment suspended for 18 months and their licences were endorsed. In addition Mr Marchant was fined £750 and Mr Muntz £2,500.[2]They appeal against conviction by leave of the single judge who referred their application for leave to appeal against sentence to the full court. The Facts.[3]Mr. Muntz is a farmer. His farm is at Hockley Heath in Warwickshire. He employed Mr Marchant as a tractor driver. One of Mr Marchant’s duties was to drive a Matbro TR250 loading machine. At the relevant time that unit had attached to its front a boom and grab which is used, inter alia, for the lifting and moving of large round bales of straw or hay. Attached to the rear of the unit was a trailer, loaded with such bales.[4]The grab attached to the unit comprises six spikes or tynes on the lower jaw, each tyne is 1 metre long and points forward. There are three tynes on the upper jaw which point down. The upper jaw can be raised or lowered. In operation the lower jaw is slid under the bale. The upper jaw is then lowered to clamp the bale in place. The grab can then be raised by the boom and the tractor used to manoeuvre the bale into the desired position.[5]The vehicle had been sold to Mr Muntz by a reputable dealer and was inspected annually by an inspector acting on behalf of his insurers. Both Mr Marchant and Mr Muntz had attended a course of instruction in the use and operation of this machinery and each held a certificate from the Ministry of Agriculture to that effect. Mr Marchant was a very experienced tractor driver. He had no convictions for motoring offences, nor for anything else. Mr Muntz had previously owned two other vehicles with this or similar attachments.[6]At about 12.30 pm on the 15th August 2000 in the course of his employment, Mr Marchant had loaded the trailer with bales using the grab. He then had to deliver those bales to Home Farm. His route took him onto the public highway. He drove down Broad Lane in the direction of Hockley Heath. After about a mile the road becomes Spring Lane and his intention was to turn left into the entrance to Home Farm. In fact Mr Marchant could not pull into the entrance to the farm because it was blocked by a van which was waiting to turn onto the road from the farm track.[7]It was agreed that Mr Marchant had placed the hook and grab in the recommended position for travel on the road and that that position was as safe as the equipment allowed. There was expert evidence that the tynes could have been covered by some sort of guard but that, even had such a guard been in place, it would not have prevented the collision. The consequences to anyone striking a tyne or the guard at speed would have been very severe, if not fatal.[8]Mr Marchant positioned the Matbro unit opposite the entrance to Home Farm and waited for an opportunity to turn. Spring Lane is a B class rural road subject to the national speed limit of 60 mph. The weather was fine, the road dry, and visibility good. Although there was some dispute as to the exact position of his vehicle at trial the preponderance of the evidence was that the unit was within the confines of the dotted white line. When it came to sentencing, the Learned Recorder accepted that the tractor was wholly on the correct side of the road. At this hearing the Crown accepted that the argument must be based upon the evidential proposition that the whole of the tractor unit was on the correct side of the road.[9]Coming in the opposite direction along Spring Lane was a motorcycle driven by Mr Richard Fletcher. He was wearing a helmet the visor of which was unlawful in that it let through 20% of ambient light. The legal minimum is 50%. It was a helmet suitable for use on a well lit private race track. The bend where the collision occurred was in significant shadow. Mr Fletcher had just overtaken a line of traffic but had regained his correct side of the road. Some of the eye witnesses put his speed as very fast. One of the experts had calculated his pre-impact speed as possibly as high as 80 mph. As he rounded a left hand bend, he was confronted by the tractor unit. He collided with the nearside tyne of the lower jaw of the grab. In other words he had crossed from his correct side of the road and was seeking to avoid the collision by steering along the tractor unit’s nearside. As a result of that collision he suffered catastrophic injuries from which he died. Although this appeal is concerned principally with legal argument this court is conscious of the tragedy which that death represents and the deep loss and pain it has caused his wife and family. The Law.[10]The appellants were charged under Section 1 of the Road Traffic Act 1988 as substituted by Section 1 of the Road Traffic Act 1991. This states:
“A person who causes the death of another by driving a mechanically propelled vehicle dangerously on a road………..is guilty of an offence”
The meaning of dangerous driving is set out in Section 2A. “(1) For the purposes of Section 1 ……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 …….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 which he could be expected to be aware but also to any circumstances shown to have been within the knowledge of the accused. (4) In determining for the purposes of subsection (2) above the state of a vehicle regard may be had to anything attached to or carried on or in it and to the manner in which it is attached or carried.”[11]Sections 40A, 41 and 44 of the Road Traffic Act 1988 as amended by the 1991 Act, also featured in the submissions made to the trial judge and to us. Section 40A is headed: Using a vehicle in a dangerous condition. It provides:
“A person is guilty of an offence if he used, or causes or permits another to use, a motor vehicle on a road when- (a) the condition of the motor vehicle…..of its accessories or equipment (d) …is such that the motor vehicle or trailer involves a danger of injury to any person.”
[12]By Section 41(1) The Secretary of State may make regulations generally as to the use of motor vehicles and trailers on the road, their construction and equipment and the conditions under which they may be so used. Under Section 44 The Secretary of State has the power to authorise by Order the use of special vehicles on roads which do not comply with regulations issued under Section 41. By Section 44, Sections 40A to 42 of the Act do not apply in relation to the use of such vehicles in accordance with the Order.[13]It is common ground that the Matbro tractor and grab comprise an agricultural vehicle specifically authorised by the Secretary of State for use on the roads by the Motor Vehicles (Authorisation of Special Types) General Order 1979, and that consequently, Section 40A was disapplied to it.[14]By Article 13c of the Order, it is an agricultural motor vehicle with an agricultural implement rigidly mounted on it. As the grab does not extend more than 1 metre, no condition attaches to its use under Schedule 5 part 1 of the Order. In short terms, the Secretary of State has authorised the use of this vehicle in this condition on the public highway. The effect of the legislation was encapsulated in Admission 6 which the jury had in writing. “The Secretary of State authorises for use on the road agricultural motor vehicles with implements attached subject to requirements as to visibility and marking of such implements if they project more than one metre in front of the vehicle. The grab attached did not project more than one metre forwards, and therefore, no special regulatory requirements applied to them. There are no regulations which impose on the use of the Matbro and grab, any regulatory obligation to cover or mark the tynes when carried on the road.” Submissions of Law.[15]Before the jury were empanelled, Leading Counsel for the Appellants made two submissions. Both were rejected by the Learned Recorder.[16]The first submission was that, as the authorisation by the Secretary of State of this tractor in this condition for use on the road exempted those who used the vehicle on a road from prosecution under Section 40A, then, as a matter of public policy, the exemption should also apply to offences under Sections 1 and 2. The second submission was that it was unfair to prosecute these defendants in these circumstances.[17]At the close of the prosecution case, further submissions were made, one in effect repeating the earlier submission of abuse of process, the second that there was no case to answer. Those submissions were also rejected.[18]During the course of the argument the prosecution put their case in two ways. First, they argued that there was evidence that the tractor’s position was such that the grab protruded into the opposite lane (the “dangerous position” case) Secondly, they argued that it was dangerous to drive this vehicle in this condition on the road at all, because the tynes themselves created a danger (the “dangerous condition” case).[19]In relation to the dangerous condition case, the prosecution relied upon the absence of any guard, but, in addition, relied upon three particular aspects of the design of the unit. First, that the unit could not be driven with the grab raised. If the grab was raised it obstructed the driver’s view. Modern design obviates this difficulty by off-setting the cab. Secondly, that the upper tynes, when lowered, do not cage the horizontal tynes, again a feature of more modern machines of this type. Thirdly, the grab is incapable of being rolled back so as to present a fence.[20]Although Mr Marchant and Mr Muntz were wholly innocent of any responsibility for the design of the unit, the prosecution submitted that the “state of the vehicle” for the purpose of Section 2A of the Road Traffic Act includes the manufactured condition of the vehicle if it would have been obvious to a competent and careful driver that driving the vehicle in its state as supplied by the manufactures would be dangerous. Mr Farrer relied upon the decision of the Divisional Court in Wood v Milne [1987] The Times 27th March in support of that proposition.[21]Wood v Milne was concerned with the Motor Vehicle (Construction and Use Regulations 1978, Regulation 97. Regulation 97(1) provides that:
“a motor vehicle……..shall at all times be in such condition …….that no danger is caused or is likely to be caused to any person……on a road”
.

Regulation 97(3) provides that:

“no motor vehicle shall be used for any purpose for which it is unsuitable or as to cause or as to be likely to cause any danger to any person on the road”
. The Divisional Court held as a matter of construction that it was not necessary to prove a lack of maintenance in order to prove a breach of the Regulations. The Court did not consider the argument advanced here and before the Learned Recorder as to the effect of the Secretary of State’s specific authorisation of vehicles on the road which design was within the specifications of Article 13.c. Regulation 97(3) provides that: The Summing Up.[22]The prosecution case was left to the jury on the two bases that the Crown had argued at the close of their case. Against Mr Marchant they relied upon both the dangerous position case and the dangerous condition case. As against Mr Muntz, however, their case was that it was only if the jury convicted Mr Marchant of the dangerous condition case that they could then go on to consider the case against Mr Muntz. That was correct, as Mr Muntz could not have procured the scenario envisaged by the dangerous position case. He was not present at the time of the collision and it was not alleged that he counselled or procured Mr Marchant to drive the Martbo with its grab across the central line of the road.[23]The summing up was a model of clarity. The Learned Recorder had gone to the trouble of preparing written directions for the assistance of the jury, setting out the possible verdicts and the routes thereto.[24]It is a necessary conclusion from the conviction of Mr Muntz that the jury must have convicted Mr Marchant, at the least, on the dangerous condition case. The Grounds of Appeal[25]There were four written grounds of Appeal:(a) The Learned Recorder should have concluded that it was unfair for the Appellants to be tried on the basis on which they were convicted and was therefore an abuse of the process.(b) The Learned Recorder failed to direct the jury that if they found that the Matbro was stationary on the correct side of the road, it could not be said to have caused death within the meaning of the Section 1 of the Road Traffic Act 1988.(c) The Learned Recorder should have held that the prosecution constituted a breach of the Appellants’ Article 7 rights.(d) The Learned Recorder should have held that the prosecution constituted a breach of the Appellants’ Article 6 rights to a fair trial.[26]Before this Court Mr Amlot QC (who did not appear in the Court below) relies on only the first ground. He argues that the Learned Recorder should not have left to the Jury the possibility of convicting on the “dangerous condition” case. He submits that the mere use on the road of a vehicle which has been authorised by the Secretary of State cannot and should not create a condition which can be categorised as dangerous for the purposes of a charge of causing death by dangerous driving.[27]Mr Farrer repeats the submissions that he successfully made in the lower Court, namely that section 40A is an offence even if the dangerous condition would not have been obvious to a competent and careful driver. That distinction explains the reason why the section is disapplied in respect of authorised motor vehicles. Sections 1 and 2 require that the danger be obvious to a competent and careful driver. Section 40A covers both latent and patent conditions, Sections 1 and 2 cover patent conditions only.[28]It is the view of this Court that, while there will be cases where the condition of a vehicle is such that, even if it does fall within the category of vehicles which are authorised by the Secretary of State for use on the road and thus section 40A is disapplied, it will nonetheless be appropriate to prosecute those who are responsible for offences under Sections 1 or 2. These cases will almost always involve an allegation that the driver has so manoeuvred the vehicle as to create a danger additional to that created by the mere presence of the vehicle on the road. A driver who manoeuvres such a vehicle dangerously cannot escape prosecution simple because the Secretary of State has exempted the vehicle from prosecution under Section 40A. However we consider that where the alleged obvious dangerous condition of a vehicle stems purely from its inherent design rather than from lack of maintenance or positive alteration, particular care has to be taken in deciding whether it is appropriate to prosecute the user of such a vehicle at all.[29]Before the Learned Recorder, it was submitted that the exception at the end of section 44 of the Road Traffic Act 1988 (as amended in its application to Section 40A – 42 of the Act by the 1991 Act) should be taken as also applying to Sections 1 and 2 of the Act. This was rejected for four main reasons. First, had Parliament wished so to enact, either in 1988 or when amending the Act in 1991, it would have done so expressly. Secondly, in the absence of such a legislative qualification to the clear words of, in particular, Section 2A of the Act, there is no proper basis for the courts to construe Section 2A as if it was so qualified. Thirdly, the fact that Section 40A extends to latent defects whereas Section 2A(2) requires the defects to be patent and the danger to be “obvious to a competent and careful driver” is an important difference which explains the disapplication of Section 40A in respect of authorised motor vehicles. Fourthly, Section 44 does not give any general permission to drive a motor vehicle of any sort in a dangerous condition. All it does is to disapply Sections 40A to 42 where the use of the vehicle on public roads has been authorised by Order. The conclusion that the Section 44 exception does not provide a defence to a prosecution under Section 1 is in our view manifestly correct for the reason given by the Learned Recorder.[30]The matter does not, however, end there. The offence in Section 40A is committed where a vehicle is used when “the condition” of the vehicle is such that it involves a danger of injury to any person. Section 2A(2) differs from Section 40A in referring to the “current state” of the vehicle rather than its “condition”. The decision in Wood v Milne that “condition” includes inherent or manufactured condition was thus made in respect of different words as well as in the context of latent as well as obvious defects. We are left with the position that the draftsman of the 1991 Act of Parliament used the word “condition” for the lesser offence in Section 40A but the different phrase “current state” in Section 2A(2) for the more serious offence.[31]What is the significance of this difference in the statutory language? The matter is not altogether easy, but we have concluded that the term “current state” in Section 2A(2) implies a state different from what might be termed the “original” or “manufactured” state. We are conscious that this was not an argument put to the Learned Recorder. His careful analysis and conclusion was based on the different submissions made to him on behalf of the defendants, submissions which, for the reasons we have given, he was right to reject. In reaching our conclusion as to the construction of section 2A, we have taken account of the following factors.[32]First, this case comes before us on the assumption that, apart from the possibility of fitting a guard, there was absolutely no criticism that could be made of the condition of the unit for which either defendant had any responsibility at all. Its condition was as it was when it was new and Mr Muntz bought it from a reputable dealer knowing that it was authorised for use on the public highway.[33]Secondly, unlike the submission that was made to the Learned Recorder, this construction of Section 2A does not create a blanket exception from Sections 1 and 2 of the 1988 Act, as amended, for those responsible for driving an authorised agricultural motor vehicle on public roads. Liability in respect of dangerous driving in its ordinary sense and in respect of a dangerous condition other than the original inherent manufactured condition of a vehicle remains.[34]The consequence of our conclusion on the meaning of “current state” is that the purely dangerous condition head of the case should not have proceeded or have been left to the jury.[35]We have noted that we have not found the construction of Section 2A easy. In view of this we have given separate consideration to the submission that, on the particular facts of this case, it was unfair for these defendants to be tried at all on the “dangerous condition case”. We do not consider Mr Farrer’s submission before us provides an answer to this in the particular and unusual factual situation before us. As noted in paragraph 32 above, apart from the possibility of fitting a guard, there was no criticism that could be made of the condition of the unit for which either defendant had any responsibility at all. On the contrary, the unit was being driven with the boom and grab in the position recommended by the manufacturers for travel on the road. We note that in the case of Wood v Milne the driver of the vehicle involved, whose lack of responsibility for the dangerous condition of his vehicle corresponded to that of Mr Marchant, was given an absolute discharge by the Magistrates who convicted him. If there was to have been a prosecution arising from the inherent condition of this unit it should have been against the manufacturers, not against those who were blameless.[36]The Learned Recorder’s rejection of the submission that it would not be fair to prosecute these defendants on the “dangerous condition” case was based on his conclusion that they could indeed receive a fair trial by the simple expedient of the jury, aided by a proper direction, judging their case by considering whether on the facts and circumstances of this particular case, it would have been obvious to a competent and careful driver that driving the Matbro vehicle on Spring Lane in its then current state would be dangerous.[37]The jury were given a written version of Sections 1 to 2A of the Road Traffic Act and at page 4 explicit attention was drawn to the words of Section 2A(2). The jury also had in writing Admission 6 which, as noted in paragraph 14 above, encapsulated the effect of Sections 40A – 44 of the 1988 Act as amended. This was also read out to the jury: see page 28 of the summing up. At page 29 E-G of the summing up the Learned Recorder stated that the Regulations do not create any defence to the charges which the defendants faced. In clarifying his ruling on abuse of process (page 11H-12A) he had stated that it was unlikely that questions about the terms of the 1979 Order and the Section 44 exception would be capable of assisting the jury on any of the issues they would have to determine.[38]In the context of Section 2A(2) “obvious to a careful and competent driver” refers to a dangerous state which would be “seen or realised at first glance”: Rv Strong [1995] Crim LR 428, Archbold paragraph 32-17. The question is whether, in the exceptional circumstances of this case, notwithstanding the statement in Morris [2002] EWCA Crim 137 that judges should not define the word “obvious”, sufficient guidance was given. The Appellants submit (see paragraph 6.9 of Mr Amlott QC’s skeleton argument) that the “competent and careful driver” contemplated by Section 2A(2) should take into account the attitude of the Secretary of State in authorising the use of such vehicles on the road. It was submitted that the Learned Recorder failed to provide the jury with sufficient guidance on the way to approach the authorisation by the Secretary of State, merely saying that the Regulations provided no defence.[39]We consider that in the particular circumstances of this case, some reference to the fact that this was an authorised vehicle in its “inherent” condition was appropriate and indeed desirable in assisting the jury in its approach to the question whether the state of the vehicle was “obviously dangerous to a competent and careful driver”. Where the state of a vehicle is inherent and the vehicle is authorised for use on the road and is being used in a rural area in which agricultural machinery is frequently driven along country roads, we consider that some reference to these facts should be made to the jury. The statement that authorisation under the Regulations is no defence to the charge without more may indicate that it is of absolutely no relevance.[40]In the circumstances of this particular case we have concluded that the prosecution should not have sought a conviction on the “dangerous condition” case and that the Learned Recorder should not have allowed them to do so. As we have already indicated, these appeals are allowed and the conviction quashed.