Clarke, R v [2009] EWCA Crim 921

[2009] EWCA Crim 921Case No 2009/00415/A5
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
Venue ON APPEAL FROM THE CROWN COURT AT BIRMINGHAM
His Honour Judge Orme
T20067809
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 14/05/2009
Before
LORD JUSTICE HOOPERMR. JUSTICE LLOYD JONESHIS HONOUR JUDGE JEREMY ROBERTS QC
Between
Between:AppellantREGINAAppellantTREVOR NORMAN CLARKERespondent
Mr. Andrew Fisher QC for AppellantMr. T. Green for RespondentHearing Hearing date: 28 th April 2009
Judgment
[1]On 19th August 2008 at the Crown Court at Birmingham the Appellant was convicted of causing death by dangerous driving. On the 19th December 2008 he was sentenced by His Honour Judge Orme to three years imprisonment. He was disqualified from driving from life. The judge directed that, if the Appellant’s medical condition were to improve and were he deemed fit to drive, a driving licence could be applied for but a significant time must first pass and he must in any event take an extended driving test.[2]Shortly before 2.00 p.m. on 13th April 2006 the Appellant was driving his Renault motor car in Birmingham when he suffered a hypoglycaemic attack. This caused him to drive in a most erratic fashion. Witnesses described his vehicle entering roundabouts at inappropriate times, lurching through traffic lights, revving unnecessarily, braking suddenly and swerving from lane to lane. One witness described the Appellant’s appearance:
“I could see that his eyes were very glazed as he was just staring straight ahead of himself. His face was blank, expressionless. I thought he looked drunk or high on drugs.”
After a distance of about two and a quarter miles the Appellant veered off the road and onto a footpath where two boys were walking, Daniel Shakespeare aged 14 and his stepbrother Cory Ciesielski who was 4 years of age. The Appellant’s vehicle collided with the boys. Cory Ciesielski was gravely injured and died two weeks later in hospital.[3]The Appellant suffered and still suffers from type 1 diabetes. Although after the collision he initially denied that he had suffered a hypoglycaemic attack, it was agreed by all parties at his trial that he had in fact suffered such an attack at the relevant time and that that was the cause of his totally erratic and uncontrolled driving. Furthermore it was accepted that his driving was dangerous. The central issue at trial appears to have been whether the Appellant was at some stage aware that he was suffering the onset of a hypoglycaemic attack and nevertheless continued to drive or whether his medical condition impaired his cognitive ability to the extent that he was not so aware.[4]The Appellant was 49 years of age at the date of the incident and 52 years of age by the time he came to be tried and sentenced. He lives alone. He has previous convictions in the Magistrates’ Court for shoplifting in 1986 and for driving whilst disqualified in 1991. At his trial Professor Livesley, who gave expert evidence of behalf of the prosecution, said that he was 100% certain that the Appellant was aware that he was suffering from hypoglycaemia and that he could have prevented the accident by stopping and by eating or taking glucose tablets. Two experts called on behalf of the defence, Professor Barnett and Professor Marks, both gave evidence that the Appellant was suffering from hypoglycaemic unawareness, a condition from which up to 40% of all long term type 1 diabetics suffer at some time. In their opinion, Mr. Clarke managed his condition in an exemplary manner and took all proper and reasonable precautions. They stated that in their view Mr. Clarke’s driving was ‘automatic behaviour’ while he was suffering a hypoglycaemic attack and that it was more likely than not that he was unaware of the onset of the attack. In their view the most likely explanation for the attack was a sudden, very rapid drop in Mr. Clarke’s blood sugar level of which he was unlikely to have been aware, particularly since he had tested his blood sugar level and eaten appropriately only an hour or so prior to the collision, in accordance to the DVLA guidelines. It is significant that Professor Barnett gave evidence of a consultation with the Appellant on 8th March 2007 at which the Appellant’s speech was slurred, a possible sign of hypoglycaemia. The Appellant did not think that his blood sugar level was low but a blood test established that it was. Professor Barnett commented that this episode was highly suggestive of hypoglycaemia unawareness.[5]The Appellant was convicted by the jury of causing death by dangerous driving.[6]The sentencing hearing was delayed at the request of the defence in order to enable them to obtain further reports on the Appellant. At the hearing on 19th December 2008 there was medical evidence before the court that the Appellant had been diagnosed with diabetes in 1978 and suffered from type 1 diabetes. A medical report from Professor Barnett concluded that the Appellant would present serious management issues to the prison authorities, by reason of his medical condition, and that this would put him at serious risk of harm and even death. Professor Barnett also referred to the fact that it was proposed that the Appellant should undergo an islet cell transplant. It was Professor Barnett’s opinion that there was no possibility of his receiving this treatment if a custodial sentence were imposed due to the complexity of the procedure and the need for immuno-suppressant treatment and follow up. This would deny him the possibility of a cure for both his diabetes and hypoglycaemic unawareness.[7]Professor Barnett in his report of 18th December 2008 also referred to a planned operation to remove part of the Appellant’s thyroid gland. He stated that if on biopsy this was found to be cancerous the Appellant may need further surgery and treatment which would require regular hospital attendance, perhaps for some time.[8]A pre-sentence report dated 26th September 2008 noted that the case had been to trial twice, the jury having failed to agree on the first occasion. It was noted that the Appellant accepted full responsibility for causing the death. In the opinion of the author there was a low risk of reconviction. It was possible that the Appellant could put other people at risk if he were to suffer a sudden drop in his blood sugar levels if he were in a situation where he was driving or engaged in some hazardous activity. However it was to be noted that this was the first occasion that he had committed an offence which caused injury to anyone else. Repetition of such an offence was unlikely and he did not pose a significant risk of serious harm. Furthermore, there were major risks to his health should he go to prison, given the high level of care and management needed to control his diabetes.[9]In passing sentence

the Judge observed:

“…the management of your diabetic condition has been described by those who are responsible for your medical supervision as usually exemplary and good. You had taken, on the evidence that I heard, some precautions during the earlier part of the day to prevent any episode linked to your diabetes affecting your driving. However, there came a time, on the basis of the evidence that we heard and the jury’s verdict, when you should have been aware of your deteriorating condition, of the likelihood of an imminent hypoglycaemic attack, hypoglycaemic unawareness, and indeed that was, on the jury’s finding and on the evidence we heard, either before you began driving at a particular time or during the course of your driving. The jury concluded that the awareness that you had was such as it should have caused you to stop driving or indeed never start driving that two miles stretch that led up to the tragic accident that shortly afterwards took place. Your driving over that distance, on your own admission, was quite appalling. Whilst you were driving I acknowledge, and we heard from the doctors, you would have had no, or certainly very little awareness, awareness that you could control as to how you were driving but what took place before that leaves you now to be sentenced by me for causing a small child’s death as a result of what you did. ”
Account was taken by the judge of the unusual nature of the Appellant’s medical condition and his usual exemplary ability to control his diabetes and health generally, which was nevertheless deteriorating. Furthermore, account was taken of the reports which indicated that in custody there would be serious management issues relating to the Appellant’s medical condition. The possible loss of an islet cell transplant when he was in custody would be regrettable. He would require “very careful observation in prison by officers and medical staff to make sure that his acute diabetic state is properly managed.” The judge accepted that the case was properly contested on the basis of the medical and legal advice given to the Appellant.[10]The judge considered that there was at least one aggravating feature present, namely that a driver knowing he was suffering from a medical condition which significantly impaired his driving skill nevertheless took a risk which led to an accident. The judge found the authorities of limited help save that they provided a range for sentencing, as did the sentencing guidelines. This had been an appalling tragedy for the family of Cory Ciesielski. The sentence was one of three years imprisonment.[11]We consider that the judge faced a particularly difficult sentencing exercise for a number of reasons, including the fact that the Appellant’s conduct had caused the death of one child and injuries to another.(1) It was necessary to assess the degree of the Appellant’s culpability in the light of his medical condition.(2) It was necessary to take account of the impact of the custodial sentence on the Appellant’s health and in particular the treatment which would and would not be available to him in prison.(3) It was necessary to take account of the impact of the custodial sentence on the ability of the Appellant to undergo necessary surgery for another medical condition.(4) It was necessary to take into account to the delay which had occurred in bringing the matter to trial and sentence.

Culpability

[12]The Appellant accepted he was responsible for the death of Cory Ciesielski. Although he had initially denied he suffered a hypoglycaemic attack, at trial it was agreed by all parties that he had suffered such an attack. Following receipt of expert medical reports the issue at trial was whether or not the Appellant was aware of the onset of the attack or its likelihood and whether he could have prevented the incident.[13]The jury clearly rejected the evidence of Professor Barnett and Professor Marks. Mr Andrew Fisher QC, who appeared for the Appellant at trial and on this appeal, suggests that the jury may have been unable to accept that someone could drive in excess of two miles, negotiating the hazards which the Appellant did, without being aware of his condition and his appalling driving. Be that as it may, Mr Fisher accepts that it was open to the jury to reject the evidence of Professor Barnett and Professor Marks and to come to their verdict and that there are no grounds on which an appeal against conviction would be arguable.[14]Nevertheless, we have been concerned to identify the precise issues at trial and the precise basis on which the Appellant came to be sentenced. Because there was no appeal against conviction, we have not been provided with a transcript of the judge’s summing up. Accordingly we have not been able to see precisely how the issues were presented to the jury. Furthermore, we have been troubled by apparent contradictions in the judge’s sentencing remarks quoted above. However, we have been greatly assisted by counsel on the hearing of this appeal. In particular Mr Green on behalf of the prosecution has very fairly accepted that we should approach this case on the basis of fact most favourable to the Appellant which is consistent with the fact of his conviction. Accordingly, on the invitation of Mr Green and Mr Fisher we have approached the case on the following basis.(1) The Appellant usually controlled his medical condition in an exemplary manner and was almost obsessive about testing himself, testing his blood more frequently than is recommended.(2) He carried out a blood test at 12.48 p.m and took food after that blood test and before he suffered the hypoglycaemic attack.(3) At some point before or after the start of the dangerous driving there would have come a stage at which he was conscious that he was in the early stage of a hypoglycaemic attack. However, after that he would have ceased to be aware of that fact. The period of awareness could have been very brief and may have been only momentary. We draw particular attention to this unusual factual basis.[15]Subject to one exception, the judge’s sentencing remarks accord with this approach. On this basis the Appellant moved from a condition of normality to a second phase during which he was aware of the onset of a hypoglycaemic attack and thereafter moved into a third phase which was one of hypoglycaemic unawareness. The legal basis for his conviction and the culpability of his conduct are to be found in his conscious failure during the second phase to stop driving. The one observation of the judge which cannot be accommodated within this framework is his observation that there came a time when the Appellant should have been aware of his deteriorating condition. If that were the limit of the Appellant’s culpability he would not have committed the offence charged. We consider that this is a slip by the judge which does not reflect the resolution of the issues by the jury’s verdict. The jury’s verdict is based on their acceptance that there was a time when the Appellant was aware of his deteriorating condition.[16]When these findings are analysed in the light of Cooksley [2004] 1 Cr. App. R. (S.) 1 and Richardson [2007] 2 Cr. App. R. (S.) 36 and the Sentencing Guideline Council guidelines, the aggravating feature that the Appellant drove while knowingly suffering from a medical condition which significantly impaired his ability to drive would normally make this a case of higher culpability in the scale identified by this court in Cooksley and a level two case in the framework of the Sentencing Guideline Council guidelines.[17]However, it was also common ground before us that the second phase during which the Appellant was aware of his deteriorating condition could have been of a very brief duration and may have been only momentary. We shall proceed on that basis. In our judgement this has an important bearing on the degree of culpability. Moreover, there is absent in the present case a further aggravating feature often encountered in cases of hypoglycaemia, namely a driver’s reckless indifference in failing to follow the regime for the regulation for his illness. The very opposite was the case here.[18]A rigid application of the guidance in Richardson would lead to a starting point in the range of 4 ½ to 7 years imprisonment. Similarly, within the Sentencing Guidelines Council guidelines the starting point would be 5 years imprisonment and the sentencing range from 4 to 7 years imprisonment. However, we consider that the further factors we have identified significantly reduce the Appellant’s culpability so that, even when the matter is considered without regard to other mitigation, the sentence falls significantly below the range indicated.[19]It is necessary to consider two linked matters here: the management of the Appellant’s condition in prison conditions and the effect of a custodial sentence on the ability of the Appellant to undergo a pancreatic cell implant.[20]In an undated report written between conviction and sentence, Prof Barnett states:
“ There is no question in my mind (and this is true for other members of my staff who have seen Mr. Clarke and the other expert witnesses involved in this case) that Mr. Clarke has “hypoglycaemic unawareness”
. This is further supported by the fact that Mr. Clarke has now been accepted onto an islet cell transplant programme in Oxford. This is now a recommended procedure as a treatment / possible cure for type 1 diabetes under certain circumstances. The experts in Oxford believe that Mr. Clarke fulfils the requirements from the National Institute for Health and Clinical Excellence for an islet cell transplant based on the fact that he has “hypoglycaemic unawareness” as a clinical entity with “life threatening consequences” and importantly NICE considers this an indication for consideration of islet cell transplant. … In summary, it is my belief that Trevor Clarke will present serious management issues to the prison authorities which could put him at significant risk of harm or even death. This arises from poor warning symptoms of hypoglycaemia as well as the usual issues of having to give insulin injections five times a day, regularly record his blood glucose, care with diet and ensuring he has appropriate levels of exercise. … It should also be noted that whilst in prison I cannot see any possibility of treatment of his diabetes with an islet cell transplant due to the complexity of the procedure, the need for immunosuppressant treatment and careful follow-up. This will deny him the possibility of a cure for both his diabetes and hypoglycaemic unawareness. Poor warnings of hypoglycaemia may lead him to appear disorientated, confused, drowsy and may even be associated with loss of consciousness. He will need very careful observation in prison, not just by the prison officers but also by the medical and allied staff. He will also need regular follow up at hospital diabetes specialist services. There is also the possibility that he could be a danger to others during these episodes particularly if he is in an environment where “reduced brain function/ collapse” could have a negative effect on others, e.g. prison workshops etc. In short, I believe that Mr. Clarke will present major management problems to the prison authorities. He will need very careful observation, follow up and support. My previous dealings with prisoners with diabetes who attend our diabetes services is that many of them are provided with nothing like the level of care required and this may lead to significant detriment to health. In Mr. Clarke’s case, this will be a particular problem given the complexity of his medical / diabetes condition.”[21]In a letter dated 18th December 2008 – the day before sentence – Professor Barnett explained that experts in Oxford had confirmed that the Appellant fulfilled the requirements for a pancreatic islet cell transplant and were willing to put him into the transplant programme. A number of investigations were necessary however before this could proceed including a coronary angiogram. That was in hand. Some results had been received and others were awaited.[22]In a further report dated 30 March 2009 written for the purposes of this appeal, Professor Barnett repeats his conclusions and states further that he is concerned as to whether there is a safe way the Appellant’s planned islet cell transplant can be pursued while he is in prison in view of the complexity of the procedure, the need for immunosuppressant treatment and careful follow up. He also states that any delay will deny the Appellant the possibility of a cure for both his diabetes and hypoglycaemic unawareness.[23]In a letter dated 2nd April 2009, Professor Paul Johnson of the Nuffield Department of Surgery at Oxford states that the Appellant is currently awaiting a pancreatic islet transplant. He emphasises that patients are accepted on this programme only if they completely fulfil the criteria for having no warnings of their hypoglycaemic attacks. The Appellant had clearly demonstrated this on detailed assessments carried out in Oxford. He explains that following the first transplant the Appellant will require a further top up transplant about three months later. He will also need intensive follow up, including attending outpatients in Oxford two to three times a week. He states that if the Appellant were not available for a transplant when a suitable pancreas became available it would be difficult to justify keeping him on the national waiting list. Professor Johnson confirms that hypoglycaemic unawareness is a life threatening condition and observes that, initially, the prison service was not carrying out blood tests as frequently as he would have liked.[24]In a further letter dated 6th April 2009 Professor Johnson states that the Appellant is currently second on the relevant waiting list for an islet transplant. He hopes to be able to carry out the operation in the next couple of months but this depends on the availability of a quality donor pancreas. “If however we have not managed to transplant him within this timeframe, I would be seriously considering referring him to my colleague for a whole pancreas transplant as I am very concerned that his hypoglycaemic unawareness is potentially life threatening for him.” Professor Johnson adds:
“I would also re-emphasise the importance of very close monitoring of his diabetes while he is awaiting his transplant. If he has a severe hypoglycaemic episode without any warning this could be fatal. However, if he runs his blood sugars deliberately high in order to prevent hypoglycaemia, this is clearly associated with the onset of other severe complications of diabetes such as blindness and renal failure.”
[25]The report provided at the request of this court by the healthcare centre at HMP Hewell, where the Appellant is serving his sentence, is very brief. It consists of one short paragraph and states that the Appellant is coping with his diabetes. He has his medication and testing equipment in his possession and is able to contact healthcare staff at any time. In view of the evidence before us that the Appellant suffers from hypoglycaemic unawareness, this provides limited reassurance.[26]On 27th April 2009 the Criminal Appeal Office received, in response to a request for information from the court, a fax from the Governor of HM Prison Hewell confirming that Mr Clarke would be facilitated in having the islet transplant at Oxford, including the consequent application supervision, if the opportunity arose.

Further Medical Condition

[27]Prior to sentence, the Appellant was found to have a nodule in the right lobe of the thyroid. On 27th of November 2008 he underwent a diagnostic hemi-thyroidectomy. At the date of sentence the only information before the sentencing court on this matter was that if the growth proved to be malignant it may well require further surgery and other treatment which would require regular hospital attendance. However, since sentence it has been established that this was in fact a benign lesion. As a result we do not have to consider the further complications which would have been introduced had the Appellant required surgery for this condition. Nevertheless, we note the opinion of Professor Barnett that the Appellant suffers from possible impairment of heart function and that he has ‘a multiplicity of medical problems’.[28]We note that there have been significant delays in his case and that, through no fault of the Appellant, 2 years and 8 months passed between the accident and the sentence. We consider that this factor should be taken into account in the Appellant’s favour.[29]For the reasons set out above, we consider that the highly exceptional circumstances of this case reduce the Appellant’s culpability to an extent which brings the offence significantly below the sentencing range which would normally apply in a case of driving whilst conscious of a significant medical impairment. Furthermore, although we are satisfied that the prison authorities would make arrangements for the Appellant to undergo the two operations he requires as part of the cell transplant and would make efforts to accommodate the intensive outpatient regime which would follow, the treatment and the difficulties to which it would give rise make a custodial sentence considerably more onerous for the Appellant than would otherwise be the case.[30]Having regard to all of the considerations identified above, we have come to the conclusion that this is a case in which this Court is entitled to intervene. The seriousness of the offence is such that we are unable to substitute a suspended sentence. However, in our judgement the appropriate sentence is one of twelve months imprisonment.[31]There is, quite rightly, no appeal against the order of disqualification.[32]We wish to address some final remarks to Cory’s parents who, we have been told, have conducted themselves throughout these prolonged and difficult proceedings with complete dignity. It may appear strange to them that this court should devote so much attention to the medical condition of the man whose conduct led to their son’s death. However we are bound to do so in order to establish the degree of his culpability for what occurred and in order that we should be aware of the precise consequences for him of the sentence imposed. We certainly have not lost sight of the appalling tragedy suffered by Cory and his family. The victim impact statements in this case speak very clearly of the extreme suffering of Cory’s family. However, the sentences imposed in cases such as this are not intended to reflect the value of the life lost nor to make reparation in any way. No doubt Cory’s parents would be the first to accept that no sentence, however severe, could ever do that.[33]Accordingly the sentence of 3 years imprisonment will be quashed and one of imprisonment for one year will be substituted. To that extent the appeal is allowed.