Branchflower, R v [2004] EWCA Crim 2042

Case No 200301689/D4[2004] EWCA Crim 2042
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Venue Royal Courts of JusticeDate Friday, 25th June 2004
Strand
London, WC2
B E F O R E:
LORD JUSTICE KENNEDY
MR JUSTICE ASTILL
MR JUSTICE GROSS
Between
R E G I N ACrown-v-
Between
PAUL LEE BRANCHFLOWER
Computer Aided Transcript of the Stenograph Notes ofSmith Bernal Wordwave Limited190 Fleet Street London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
MR D PRESTON appeared for APPELLANTMISS B BAXTER appeared for CROWN
J U D G M E N T

LORD JUSTICE KENNEDY:

On

[1]17th December 2002 in Crown Court at Manchester, this appellant pleaded guilty to aggravated vehicle taking, which was count 3 in an indictment containing three counts. Count 1 alleged murder and count 2 manslaughter.[2]All three counts related to events which took place on the same day, 27th August 2002. The appellant also pleaded guilty to manslaughter but that plea was not acceptable to the prosecution, so he was tried on count 1 and on 28th February 2003 he was convicted of murder. He was then sentenced on count 1 to custody for life and on count 3 to 3 years' detention in a young offender institution, those sentences to be served concurrently. He was also disqualified for 5 years from holding or obtaining a driving licence and ordered to take an extended driving test before being granted a licence. No separate penalty was imposed in respect of count 2 because it was treated, in our judgment rightly, as an alternative to count 1. He now appeals against his conviction on count 3, by leave of the Single Judge, and in grounds of his own composition he seeks leave to appeal against his conviction on count 1.[3]The man who died was Mr Glyn Ellis, aged 46. On 27th August 2002 he had been to a Manchester United football match at Old Trafford and went to his brother's garage at St Lawrence Quays to collect his Ford Mondeo motorcar. He unlocked the garage and reversed out. He then got out of his car to shut the garage door. He left the engine running and it was the prosecution case, supported by eyewitnesses, that the appellant saw the momentarily unattended car and attempted to drive it off, killing Mr Ellis by driving the car over him in his efforts to get away.[4]For present purposes it is unnecessary to deal with the eyewitness, scientific, medical and police evidence.[5]It is sufficient to say that the issue which the jury had to decide and which they decided by their verdict in relation to count 1 was whether the appellant deliberately drove the Ford Mondeo motorcar at Mr Ellis with intent to kill him or at least to do him really serious harm.[6]After the appellant had run over Mr Ellis, and Mr Ellis was jammed underneath his own car, the appellant and his two friends ran off. Before Mr Ellis could be freed he was dead.[7]The appellant and his friends were arrested on 30th August 2002, and the appellant was then interviewed over the next two days. He told officers that after he had jumped into the car, a man appeared from nowhere just in front and he went over him. He tried to reverse off, but the car was stuck so he put it in first gear to see if he could drive it off and it then stalled.[8]When he was charged he did say he was very sorry, it was a tragic accident and "I didn't mean to hurt anyone".[9]At his trial the appellant chose not to give evidence, and called only one expert witness, Mr Jowitt.[10]The ground of appeal which the Single Judge gave leave to argue is that the conviction on count 3 is inconsistent with the jury's verdict on count 1. The allegation in count 3 was that the death of Mr Ellis was caused by "an accident". It is contended that once the jury determined that the appellant had intended to kill or at least to do really serious harm, then count 3 should have been simply left on the file with no sentence imposed following the procedure outlined in R v Cole (1965) 49 Cr App R 199.[11]In grounds of appeal of his own composition the appellant also seeks to challenge the decision on count 1. He contends that the conviction was unsafe, he was not guilty of murder and was wrongly persuaded not to give evidence; an assertion which seems to have surfaced for the first time in a letter to the Registrar, dated 16th April 2004, over a year after his conviction and long after the Single Judge had refused leave to appeal in respect of count 1.[12]The Criminal Appeal Office then, on 26th May 2004, invited the appellant to waive privilege so that the Registrar could seek the observations of trial counsel on the criticisms of them made by the appellant in his letter of 16th April 2004. That produced a letter from the appellant, but no waiver of privilege and none has yet been received. Furthermore, he has chosen to waive his right to attend for the hearing of his appeal today.[13]In our judgment, there is no evidence whatsoever of any arguable ground of appeal in relation to count 1 and the appellant's attempt to renew his application for leave to appeal in relation to that ground is therefore dismissed.[14]We return to count 3. Section 12A of the Theft Act 1968, so far as relevant, reads:
"...a person is guilty of aggravated taking of a vehicle if- (a) he commits an offence under section 12(1) above (in this section referred to as a 'basic offence') in relation to a mechanically propelled vehicle; and (b) it is proved that, at any time after the vehicle was unlawfully taken (whether by him or another) and before it was recovered, the vehicle was driven, or injury or damage was caused, in one or more of the circumstances set out in paragraphs (a) to (d) of subsection (2) below. (2) The circumstances referred to in subsection (1)(b) above are- (a) that the vehicle was driven dangerously on a road or other place; (b) that, owing to driving of the vehicle, an accident occurred by which injury was caused to any person; (c) that, owing to the driving of the vehicle, an accident occurred by which damage was caused to any property, other than the vehicle; (d) that damage was caused to the vehicle."
[15]What, in this contexts, is meant by the word "accident"? The statute itself contains no definition. Mr Preston, on behalf of the appellant, submits that if a vehicle is deliberately used as a weapon, then the resultant damage to an intended victim cannot properly be described as an accident. He points to the alternatives which are available within the statute itself as to the way in which the offence could be charged. For example, it could be related to driving dangerously on a road. But in this particular case, that was not the way in which the offence was charged. He says that either there is an accident or there is intention and, having regard to the structure of this statute, there cannot be both.[16]In some context that would no doubt be right. But this undoubtedly, in our judgment, is a word which takes its meaning from where and how it is used. Etymologically the word means 'something which happens' but it does not have to be unintended or fortuitous. In R v Morris (1972) 56 Cr App R 175 the court was concerned with section 2(2) of the Road Safety Act 1967. The relevant part of that subsection reads:
"If an accident occurs owing to the presence of a motor vehicle on a road or public place, a constable in uniform may require any person who he has reasonable cause to believe was driving or attempting to drive the vehicle at the time of the accident to provide a specimen of breath for a breath test..."
An attempt had been made to start a vehicle by pushing it with another vehicle. They ended up with their bumpers interlocked. A request was then made by an officer, pursuant to section 2(2), for a breath test. His request was considered to be inappropriate because it was said that there had been no accident.[17]The Court held, in that case, that there had been an accident, within the meaning of the subsection, because they were satisfied that an accident was simply an unintended occurrence which had an adverse physical result.[18]A somewhat similar approach was adopted in the subsequent case of R v Billingham [1979] 1 WLR 747, where a police inspector required Mr Billingham to take a breath test after he had allegedly deliberately released the brakes on a parked police car, steered it round some other vehicles before sending it off downhill to hit a telegraph pole and carry on down an embankment. Mr Billingham refused to take the breath test. The statutory provision relied upon in that case was section 8(2) of the Road Traffic Act 1972, which provided:
"If an accident occurs owing to the presence of a motor vehicle on a road, a constable in uniform may require any person whom he has reasonable cause to believe was driving or attempting to drive the vehicle at the time of the accident to provide a specimen of breath for a breath test."
On behalf of Billingham it was submitted his actions were allegedly deliberate there had been no accident. That submission was accepted in the Magistrates' Court. In the Divisional Court, the question posed for the consideration of the Court in the Case Stated was "whether the word the 'accident' in section 8 of the Road Traffic Act 1972 included an intended occurrence which had an adverse physical result?" That question was answered in the affirmative. Bridge LJ, as he then was, said at page 753:
"I hesitate to attempt a definition, lest my judgment should in future be quoted as if it were writing something into the statute. But it seems to me that 'accident' in this context is perfectly capable of applying to an untoward occurrence which has adverse physical results, notwithstanding that one event in the chain of events which led to the untoward occurrence was a deliberate act on the part of some mischievous person. Applying the test whether an ordinary man would say in these circumstances that an accident had occurred owing to the presence of motor vehicle on a road, I would answer the question affirmatively."
Before us, on behalf of the prosecution, Miss Baxter has submitted that that is the approach we should adopt. She submits that section 12A of the 1968 Act is intended to have regard to the consequences of what occurred and is not really concerned with the way in which those consequences came about. She submits that count 3 in the indictment was not truly to be regarded as an alternative to murder. The fact was that there was a vehicle in this parking place. It was in motion and because it was in motion it caused death to the wretched victim.[19]In our judgment, that is right. In this case there is no reason to think that count 3 should be regarded as a true alternative to count 1. Accordingly, this appeal against conviction is, in relation to count 3, also dismissed.

Cited in 2 later judgments