Currie, R v [2007] EWCA Crim 926

[2007] EWCA Crim 926

Case No 200601892 D3

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL (CRIMINAL DIVISION)

ON APPEAL FROM THE CROWN COURT AT MAIDSTONE

(Judge McKinnon)

Venue Royal Courts of Justice, Strand, London, WC2A 2LL

Date 26/04/2007

Before

LORD JUSTICE SCOTT BAKER

MR JUSTICE OPENSHAW

SIR RICHARD CURTIS

Between

REGINARespondent

PAUL ALAN CURRIEAppellant

Tanya Robinson for Appellant

Katherine Hunter for Respondent

Hearing Hearing date: 21/03/07

Judgment

[1]On 17 February 2006 Paul Currie (“the appellant”) was convicted in the Crown Court at Maidstone before Judge Mckinnon and a jury of dangerous driving. The underlying point on this appeal is whether the prosecution were required to serve a notice of intended prosecution, their contention being that they were not because there had been an accident. The appeal raises the following issues. i) Whether there was ‘an accident’ within the meaning of s2 of the Road Traffic Offenders Act 1988 (“the 1988 Act”). ii) Where an issue or issues of fact has to be determined in order to decide whether there has been an accident, whether this is for the judge or jury to decide. iii) On whom the burden of proof lies in deciding whether there was an accident and what is the standard of proof.

[2]The relevant statutory provisions are to be found in ss1 and 2 of the 1988 Act. They provide:

“1(1) subject to section 2 of this Act, a person shall not be convicted of an offence to which this section applies unless – (a) he was warned at the time the offence was committed that the question of prosecuting him for some one or other of the offences to which this section applies would be taken into consideration, or (b) within 14 days of the commission of the offence a summons (or, in Scotland a complaint) for the offence was served on him, or (c) within 14 days of the commission of the offence a notice of the intended prosecution specifying the nature of the alleged offence and the time and place where it was alleged to have been committed, was – (i) in the case of an offence under section 28 or 29 of the Road Traffic Act 1988 (cycling offences), served on him, (ii) in the case of any other offence, served on him or on the person, if any, registered as the keeper of the vehicle at the time of the commission of the offence.”

Ss(1A) and 1(2) make provisions about the service of the notice. “1(3) the requirements of subsection (1) above shall in every case be deemed to have been complied with unless and until the contrary is proved. 2(1) the requirement of section 1(1) of this Act does not apply in relation to an offence if, at the time of the offence or immediately after it, an accident occurs owing to the presence on a road of the vehicle in respect of which the offence was committed.” S2(2) provides that s(1)(1) does not apply where fixed penalty notices or notices under s54(4) of the Act have been given. “2(3) failure to comply with the requirements of section 1(1) of this Act is not a bar to the conviction of the accused in a case where the court is satisfied – (d) that neither the name and address of the accused nor the name and address of the registered keeper, if any, could with reasonable diligence have been ascertained in time for a summons or, as the case may be, a complaint to be served or for a notice to be served or sent in compliance with the requirement, or (e) that the accused by his own conduct contributed to the failure.” Subsection 2(4) has no relevance to the issues in the present appeal. (a) he was warned at the time the offence was committed that the question of prosecuting him for some one or other of the offences to which this section applies would be taken into consideration, or (b) within 14 days of the commission of the offence a summons (or, in Scotland a complaint) for the offence was served on him, or (c) within 14 days of the commission of the offence a notice of the intended prosecution specifying the nature of the alleged offence and the time and place where it was alleged to have been committed, was – (i) in the case of an offence under section 28 or 29 of the Road Traffic Act 1988 (cycling offences), served on him, (ii) in the case of any other offence, served on him or on the person, if any, registered as the keeper of the vehicle at the time of the commission of the offence.” (d) that neither the name and address of the accused nor the name and address of the registered keeper, if any, could with reasonable diligence have been ascertained in time for a summons or, as the case may be, a complaint to be served or for a notice to be served or sent in compliance with the requirement, or (e) that the accused by his own conduct contributed to the failure.”

[3]It was common ground that if there was an accident within the meaning of s2(1) then there was no requirement on the prosecution to serve a notice of intended prosecution. If, however, there was no such accident then no notice had been served and the prosecution was bound to fail. Facts

[4]The prosecution case was that at about 5.30pm on 31 March 2005 the appellant was driving a car in Folkestone when he was stopped by WPC Harper and PC Blackman. The officers noticed a strong smell of cannabis and told the appellant and his two passengers to get out. WPC Harper went to speak to the appellant whilst PC Blackman dealt with the two passengers. When one of the passengers became troublesome WPC Harper went over to assist her colleague. As she did so the appellant got back into the vehicle and started the ignition. WPC Harper shouted at him to stop and ran towards the vehicle. As she got halfway across the front of the car the vehicle lurched forward and she had to put her hands on the bonnet. When the car moved forwards towards her again she shouted at the appellant to stop.

[5]Another driver, Mr Grover, saw her struggling with the vehicle and blocked the road to prevent the appellant from passing. WPC Harper grabbed hold of the front passenger door, which was still open, but the appellant reversed up the road at speed causing the officer to lose her grip. According to the officer the appellant had little control over the car, which she described as swinging from side to side as it travelled. She chased after him on foot. After nearly hitting a parked car he drove off and she lost sight of the vehicle.

[6]PC Blackman, who was busy struggling with one of the passengers, described seeing the vehicle lurch forward and then stop abruptly in front of WPC Harper, nearly hitting another vehicle travelling down the road. He heard WPC Harper shout ‘stop’ repeatedly but instead of stopping it began to reverse up the road at speed with its engine revving loudly.

[7]The defence was that the appellant panicked and decided to leave in a hurry. He got back into his car and started the engine. He was looking at the keys, the ignition and the gear stick and did not know if he looked ahead. He did not recall seeing any officer in front of his car. He denied driving at WPC Harper either accidentally or deliberately and denied that the car had lurched forward. He had not reversed at speed nor had he narrowly missed parked vehicles. In short he had not driven dangerously, and nor had there been any ‘accident.’

[8]The judge visited the question of whether there had been an accident within the meaning of s2(1) on a number of occasions. In summary, first he decided on the witness statements that there had been an accident. Later, after rejecting a submission that there was no case of dangerous driving to be left to the jury, having heard evidence from both sides he confirmed his ruling. He expressed his conclusion in these words:

“On the basis of those findings of fact, namely that what WPC Harper said happened did in fact happen and that the defendant in the course of his unconvincing evidence, simply wholly failed to discharge the burden required on the balance of probabilities, as set out in section 1(3), and then applying the rational set out in my original judgment, I come to the firm conclusion that this was indeed an accident. An accident because the car did lurch forward when the woman police officer was in front of the car and had to hold on to it to balance herself so that she did not fall over from the fright of the car advancing suddenly towards her. It is plainly an accident by any definition, it seems to me, and fortified by what happened later when she managed to hurry round to the side door, grab on to it only to be thrust off by the motion, speedy motion of the car reversing away from her. If there was any doubt about the one or the other the two in conjunction with (one) another make for an accident.”

Accordingly, the judge resolved the relevant factual issue himself rather than leaving it to the jury and concluded that there had been an accident.

[9]In this appeal we have heard quite admirable submissions from Ms Tanya Robinson on behalf of the appellant, who did not appear in the court below, and Ms Katherine Hunter for the prosecution. They were succinct, clear and to the point, as indeed were their helpful skeleton arguments. Judge or jury

[10]It is Ms Robinson’s first submission that where, as here, there are disputed facts, it is for the jury and not the judge to decide whether there had been an accident. The opening words of s1 are that, subject to s2, a person shall not be convicted unless the provisions of the subsection have been complied with. If there was no accident it was not open to the jury to convict the appellant unless a notice of intended prosecution had been served, which it had not.

[11]She referred us to a number of authorities. The first is R v Bolkis

(1932) 24 Cr App R 19

. That case was concerned with s21 of the Road Traffic Act 1930, which is the forerunner of the present provision dealing with notice of intended prosecution. There was a proviso to that section that failure to comply with the section was not a bar to conviction if the court was satisfied of certain matters e.g. that the accused’s name and address could not be discovered with reasonable diligence. The Court of Criminal Appeal upheld the trial judge’s decision that the words in the proviso “the court is satisfied” referred to the judge and not the jury. It is to be noted that s2(3) of the 1988 Act uses the same expression in relation to the notice provisions in this Act.

[12]It is argued, however that Bolkis is distinguishable from the present case because there was no issue of fact in Bolkis. Ms Robinson submits that a much more helpful decision is R v Seward [1970] RTR 102. That case concerned s2(2) of the Road Safety Act 1967 which provided:

“If an accident occurs owing to the presence of a motor vehicle on a road…..a constable in uniform may require the person who…..was……attempting to drive the vehicle at the time of the accident to provide a specimen of breath for a breath test…..”

The conviction was quashed because the deputy chairman determined as a preliminary issue that there had been an accident and so directed the jury. In allowing, the appeal Lord Widgery CJ said at p104:

“The issue whether there was an accident or not is not a matter which gives rise to a discretion of the court, it is a vital question going to guilt on this charge, because if the prosecution decide to base their proceedings upon the allegation that an accident occurred, they have to prove it as one of the essential factors in the case. Accordingly the deputy chairman, in our judgment, was wholly wrong in taking this issue away from the jury and determining it himself as he did.”

[13]Ms Robinson argues that whether or not there was an accident was integral to a conviction both in Seward and in the present case. If there was no accident there could be no conviction. We think, however, that there is a distinction. In the present case the appellant was indicted for dangerous driving. Proof of an accident was not necessary to establish the offence itself. An accident was not an element of the offence whereas under s2(2) of the 1967 Act it was the fact of an accident that gave the constable power to require a specimen of breath. The existence of an accident in the present case is relevant not to the offence of dangerous driving itself but to the procedural requirement in s1 of the 1988 Act of giving a person notice, without which he cannot be convicted of an offence to which the section applies.

[14]S2(2) of the Road Safety Act 1967 again fell for consideration in R v Morris [1972] RTR 201. We shall return to Morris when we come to consider the meaning of ‘accident’ but Lord Widgery CJ in emphasising what he had said in Seward said this at p204:

“We would add only one other point on this aspect of the case. It is now recognised and has been recognised in a number of instances that there will be cases under section 2(2) where the primary facts are not in dispute and when the question of accident or no becomes a matter of pure law, in the same way that cases sometimes arise where the primary facts are not in dispute and in which the question of whether a person is driving or not becomes a pure matter of law. We think that in this case the deputy chairman would not have erred if he had directed the jury in that sense. We do not criticise him for not taking that line – he may well have been wise in seeking the verdict of the jury on the facts before them – but cases of this kind, where there really is no factual dispute left and the matter is one of law only, are cases in which the presiding judge can, if he thinks fit, give a ruling to that effect. If there is a dispute as to fact the issue must of course be left to the jury: see Reg v Seward [1970] RTR 102.”

[15]What emerges from Morris is that whether particular facts do or do not amount to an accident is a question of law. In a case of disputed facts under s2(2) of the 1967 Act it would be for the jury to decide the facts and apply to the facts found the judge’s direction as to the meaning of accident. However, as we have said, we think the present case is distinguishable from cases under s2(2) of the 1967 Act because here we are concerned with what is essentially a procedural provision.

[16]The remaining authority to which it is necessary to refer on this question is R v Stacey [1982] RTR 20. In that case the appellant was arrested for driving whilst unfit through drink. Three hours after being arrested he was warned that consideration would be given to prosecuting him for reckless driving. He was not charged with any offence relating to drink. At his trial for reckless driving he submitted that there was no case to answer because he had not been warned “at the time the offence was committed” within the meaning of s179(2)(a) of the Road Traffic Act 1972. The Court of Appeal (Criminal Division) applied Bolkis and held that the decision was one for the judge. As he had arrived at the only appropriate answer on the facts the appeal was dismissed. Woolf J, giving the judgment of the court, pointed out at p26 that there was no authority on all fours but added:

“….it does appear to this court that the question is one which is much more suited to a decision by the judge than by a jury. It would be very unsatisfactory if one were to get a situation where one jury would come to one conclusion and another jury would come to another conclusion when exactly the same direction in law was given to them. It is therefore some comfort to find that whereas this point has not been considered on S179(4)…..(it) was in Rex v Bolkis [1932] 24 Cr App R 19.”

He went on to say:

“This court, in so far as the decision deals with the proper interpretation of S179(4) is bound by the decision in Rex v Bolkis. Quite clearly, if the court came to the conclusion that the word “court” in subsection 4 referred to the judge, then that is a very real indication as to the proper interpretation of subsection (2). The position is that in view of the decision in Rex v Bolkis….this court must take the view that the word “court” in subsection (4) refers to the judge. Accordingly, when an issue under subsection (4) is raised before the court, the judge will be the person who determines the issue. It would lead to absurd results if a judge had to determine that issue but a jury had to determine an issue under subsection (2). Quite clearly, under subsection (4) the court is going to determine questions of fact as well as of law, and if the court, in the form of the judge has to determine the facts on subsection (4), it is only sensible and desirable that the judge should determine an issue under subsection (2).”

[17]We return to ss1 and 2 of the 1988 Act. It has been settled since Bolkis approved in Stacey, that the reference to “court” in what is now s2(3) of the 1988 Act means the judge when the case is proceeding in the crown court. The issues which the judge is required to decide under that subsection will plainly involve issues of fact. Other issues of fact can arise under s1(1), for example whether the defendant was warned at the time of the offence that he might be prosecuted e.g. a police officer says he was warned but the defendant says he was not. The subsection is silent as to who decides such questions, but it seems to us that the whole of ss1 and 2 are directed to the need to ensure that as far as possible defendants are not taken by surprise in relation to motoring offences to which s1 of the Act applies. What is required is that by one means or another they should have notice of the relevant event in sufficient time to be able to recall it themselves and recall it to others who may be able to give evidence on their behalf, see Donaldson LJ in Gibson v Dalton [1980] RTR 410, 413 G – J. These sections are essentially procedural with the consequence that if the necessary requirements are not complied with the defendant cannot be convicted. They do not impinge on the elements of the offences themselves. That is why in our view this case is distinguishable from Seward and Morris and is governed by Bolkis and Stacey. It would, as Woolf J, as he then was, said in Stacey be absurd for some issues under the sections to be decided by the judge and others by the jury.

[18]We are satisfied therefore that the judge was right to decide the issues of fact himself rather than leave them to the jury. He was fully entitled to reject the account of the appellant and accept the account of WPC Harper, subject, however to one matter which requires further consideration. It is this. Burden and standard of proof

[19]It is submitted by Ms Robinson that the judge misdirected himself about the burden of proof. In the course of his ruling that we have recited, the judge said in relation to his findings of fact that the appellant had “wholly failed to discharge the burden required on the balance of probabilities, as set out in s1(3). S1(3) is the provision which says that the requirements in s1(1) are deemed to be complied with unless and until the contrary is proved. Ms Hunter, for the prosecution, accepts that the judge was in error in referring to this provision. The reason he was in error is that the judge was not dealing with whether a s1(1) requirement had been complied with. The issue was whether there had been an accident within the meaning of s2(1); for if there had been an accident the case was taken outside s1(1) and its provisions did not apply. The prosecution was seeking to show there had been an accident and that therefore they were not required to comply with the s1(1) notice provisions. The deeming provision in s1(3) was not in play. As the prosecution were making the positive averment that there had been an accident, and that in consequence they were not obliged to comply with the notice provisions in s1(1), it seems to us that the burden of proof was upon them. Ms Hunter concedes that this is the case and that the criminal standard of proof applies.

[20]However, Ms Hunter goes on to submit that it is very clear that the judge accepted the police evidence and wholly rejected the appellant’s evidence. The outcome of the factual issue did not therefore turn upon where the burden of proof lay or to what standard. Had he directed himself correctly, the result would inevitably have been the same. On three occasions the judge considered the issue of whether there had been an accident. The first was on the papers at the outset of the trial; the second was at the close of the prosecution’s case and the third was when he had heard the appellant’s evidence. On each occasion he appears to have been satisfied that an ‘accident’ had occurred and in no occasion does he appear, despite his misdirection, to have placed the burden of disproving ‘accident’ on the appellant. The misdirection does not therefore threaten the safety of the conviction. We accept Ms Hunter’s submission. Was there an accident?

[21]The remaining question is whether, on the evidence he accepted, the judge was entitled to find that there had been an accident. It is important to start by placing the word ‘accident’ in the context of the section for that is how the word has to be interpreted. The relevant words are “…if, at the time of the offence or immediately after it, an accident occurs owing to the presence on a road of the vehicle in respect of which the offence was committed.”

[22]In Morris the court held that ‘accident’ in s2(2) of the Road Safety Act 1967 meant an unintended occurrence which had an adverse physical result. Lord Widgery CJ said at p204:

“Several attempts at definitions of the words “accident” have been made in the course of argument. We have been referred in particular to the words of Lord Lindley in Fenton v J Thorley and Co Ltd [1903] AC 443, a case on the Workmen’s Compensation Act in which the word “accident” was a prominent word. Lord Lindley said at p453: “The word “accident” is not say a technical legal term with a clearly defined meaning. Speaking generally, but with reference to legal liabilities, an accident means any unintended and unexpected occurrence which produces hurt or loss…..”

Sachs LJ in the course of the argument supplied an alternative, with which the other members of the court agree, in which he suggested that “accident” in the present context means an unintended occurrence which has an adverse physical result. We think that it would be wrong to construe “accident” in this context too narrowly. We are conscious of the fact that this is an interference with the liberty of the subject, but the Act does not make the having of an accident an offence, it merely provides it as a qualification for the taking of a breath test, and the underlying conception of section 2(2) is that if some unintended occurrence which has adverse physical result arises out of the presence of motor vehicle on a road, that is a fair basis on which a police officer may request the provision of a specimen of breath. Such an occurrence is one in which, prima facie at any rate, the circumstances of the occurrence and of the driver involved in it deserves consideration by authority, and accordingly we think that the definition suggested by Sachs LJ is one which fits the intention of Parliament and will not open the door unduly widely to the suggestion that random breath tests can be taken in purported consequence of it.” “The word “accident” is not say a technical legal term with a clearly defined meaning. Speaking generally, but with reference to legal liabilities, an accident means any unintended and unexpected occurrence which produces hurt or loss…..”

[23]The word ‘accident’ appears in a number of places in the Road Traffic Act 1988 and in s1 of the Road Traffic Offenders Act 1988. That the occurrence should have been unintended, as suggested in Morris, does not seem to have been regarded as an essential element in subsequent cases. In Chief Constable of West Midlands Police v Billingham [1979] RTR 446 (a breath test case) Bridge LJ, as he then was, said there had been many authorities dealing with the meaning of the word ‘accident’ in different statutory and contractual contexts. He added:

“It is, in my judgment, a word which has a perfectly well understood meaning in ordinary parlance, but that meaning is an elastic one according to the context in which the word is used.”

He said, and we respectfully agree, that the attempt to define the word in Morris must be understood in relation to the particular facts of that case. He went on at p452:

“I approach the matter here by asking whether in the ordinary man’s understanding of the word, especially having regard to the mischief at which this statue is aimed, the man in the street would say in such circumstances as those with which we are concerned that an accident had occurred owing to the presence of a motor vehicle on a road.”

He said that accident in the context the court was considering was perfectly capable of applying to an untoward occurrence which had adverse physical results not withstanding that one event in the chain of events which led to the untoward consequence was a deliberate act on the part of some mischievous person.

[24]The Scottish decision of Bemner v Westwater

(1993) 1994 SLT 707

suggests that physical impact is not essential to constitute an accident. In that case a police officer was driving in the opposite direction to the accused. As he rounded a bend in the road, he was faced with two vehicles. One was being driven by the accused who was attempting to overtake the other vehicle and was in the police officer’s path. The police officer braked, skidded and mounted the nearside verge, thus avoiding a head on collision. The sheriff held that an accident had occurred owing to the presence of the accused’s vehicle on the road and that the requirements of s2(1) of the 1988 Act had been met. The accused’s appeal to the High Court of Justiciary failed. The Lord Justice General (Lord Hope) said that the word ‘accident’ was to be given a commonsense meaning and that it was not restricted to untoward or unintended consequences having an adverse physical effect. We respectfully agree that that is the correct approach to apply to the present case. Conclusion

[25]On the findings of the judge, WPC Harper had to hold on to the front of the appellant’s car to balance herself. Then she tried to hold on to the passenger door only to be thrust off it by the speeding motion of the car reversing. There was, in this case, indeed some physical contact. The appellant cannot have been unaware of what happened. The circumstances would have been sufficiently memorable to him for it to be unnecessary to draw them to his attention by serving a notice of intended prosecution. That, of course, is the underlying reason why a notice is not required where there has been an ‘accident’ within the meaning of the section. In our judgment the judge was fully entitled on the evidence he accepted to conclude that there had been an accident within the meaning of s2(1) of the 1988 Act. Accordingly, the prosecution were not required to serve a notice under s1. The conviction is safe and must stand. Accordingly we dismiss the appeal.