Attwater, R v [2010] EWCA Crim 2399

Case No 201002835/C1[2010] EWCA Crim 2399
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Venue Royal Courts of JusticeDate Tuesday, 14th September 2010
Strand
London, WC2A 2LL
B e f o r e:
LORD JUSTICE HOOPER
MR JUSTICE FLAUX
MR JUSTICE SPENCER
Between
R E G I N ACrownv
Between
MARK VICTOR ATTWATER
Computer Aided Transcript of the Stenograph Notes ofWordWave International LimitedA Merrill Communications Company165 Fleet Street London EC4A 2DYTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
Mr J Fitzgerald appeared for AppellantMiss D East appeared for Crown
J U D G M E N T

LORD JUSTICE HOOPER:

[1]Mark Victor Attwater is now aged 51. He is a man of no previous convictions and indeed with a positively good character until the events with which this appeal is concerned.[2]On 6th May 2010 in the Crown Court at Maidstone, before His Honour Judge Joy, the appellant was convicted of count 1, dangerous driving, and was sentenced to 12 months' imprisonment. He was disqualified from driving for 3 years and required to take an extended driving test. He was acquitted of battery (count 2). It is not necessary for us, in the light of that acquittal, to refer to the evidence which on the prosecution case supported that count. He appeals against conviction and sentence by leave of Christopher Clarke J.[3]It was alleged that on 11th October 2008 the appellant drove his Mercedes motor vehicle dangerously on the inside lane of the coast bound slip road at Junction 3 of the M2 motorway in Kent. What he was doing was "undertaking" a Citroen motor vehicle being driven by Mr Holding. Having gone through on the inside, the appellant then pulled in front of the Citroen and brought it to a stop by braking. Three or four minutes later a Mini Cooper motor vehicle, being driven down the slip road by Miss Lobina collided with the rear of the Citroen which in turn struck the appellant's vehicle. All three vehicles were badly damaged and Miss Lobina and Mr Holding sustained injuries.[4]It was the prosecution case that the appellant's driving on the slip road was dangerous and that he drove in such a manner that his vehicle and Mr Holding's vehicle were deliberately brought to a halt in a busy and fast motorway slip road. Thus, on the prosecution's case, by forcing Mr Holding to come to a full stop, at a point very close to the junction of the slip road until the motorway, the appellant created an obvious danger of collision from following traffic.[5]The defence case was that the standard of the appellant's driving did not fall below that of a competent careful driver. He accepted driving on the slip road in the way that he had done, but it was his case that he had done so in order to stop Mr Holding from driving away. It was the appellant's case that Mr Holding's vehicle had collided with the appellant's vehicle moments before on a roundabout, one of the exits from which was the slip road where the allegedly dangerous driving took place.[6]Mr Holding gave evidence that there had been no collision between his vehicle and the appellant's Mercedes at the roundabout, although he accepted that the two vehicles were fairly close. He described how the Mercedes "undertook" his vehicle, pulled in front of him and stopped. He said he had to apply the brakes heavily and stopped his vehicle. He said that the vehicles were at the bottom of the slip road, close to the motorway. He described how the appellant got out of the vehicle and approached the driver's window and the appellant then said:
"We have collided on the roundabout. Look at the damage."
Mr Holding got out of the vehicle, inspected his vehicle and that of the Mercedes, and it was his evidence that he could see no damage. He described the appellant as agitated, and there was argument between them. Eventually the appellant reached into Mr Holding's car and took the keys out of the ignition. Mr Holding offered his business card but the appellant refused to take it. On Mr Holding's account the appellant threw it back at him and he said he was going to telephone the police. The appellant threw the keys back at him and these landed on the footwell of the passenger seat. Mrs Holding also gave evidence. It was as he bent down to pick up the keys that the vehicle was struck from behind by the car driven by Miss Lobina.[7]It is not necessary to refer to any of the other witnesses, but it is right to say, in the appellant's favour, that from the moment that the police officer came, he told the officers that he had done what he had done because he feared that Mr Holding would drive off. By getting in front of his car he was able to prevent that from happening.[8]The appellant gave evidence about what he said had happened on the roundabout. He referred to an incident in 2007, when his car had been damaged by another driver who left the scene. He had taken the vehicle registration number and reported the incident to the police but nothing had happened. That was why, so he told the jury, he had decided to take the action which he took on this occasion, namely, forcing Mr Holding to stop the car on the slip road. He gave an account of what happened after the Citroen had stopped and after he, the appellant, had gone back to speak to Mr Holding.[9]Character evidence was called on behalf of the appellant.[10]We turn to the second ground of appeal first. It was submitted to the judge by Mr Fitzgerald that the prosecution ought not to be allowed to call the evidence of the collision between Miss Lobina in her Mini and the car driven by Mr Holding and the consequential damage to the car driven by the appellant. He submitted, as he submitted to us, that the dangerous driving took place by the manoeuvre of undertaking and then stopping Mr Holdings' car by driving in front of it. The fact that there was an accident thereafter added nothing to the case. The judge took the view that the Crown was perfectly entitled to show that what the appellant had done was in fact dangerous not only by reference to what might have happened but also by reference to what in fact did happen.[11]Notwithstanding Mr Fitzgerald's arguments we take the view that the judge was right to conclude that the evidence was admissible. The judge then went on to consider whether, in any event, it would be unfair to admit this evidence. Again he ruled against the appellant and we are not able to say that his conclusion is one which no reasonable judge could reach. We do however say this. It might have been better if the matter had been approached by way of an admission, thus avoiding the need for Miss Lobina to give evidence and in particular avoiding perhaps some of the more gruesome details of the personal injuries suffered as a result of the collision involving Miss Lobina's car. But that said, in our view it cannot be said that the admission of this evidence and the way that it was admitted in any way renders the conviction unsafe.[12]We note in conclusion on this that when

the judge came to sum-up the evidence about the collision he said only this (page 8):

"Now a few words about the aftermath and the collision that occurred in the slip road and the injuries and the damage that resulted from that collision. Remember that the collision and its cause are of course all circumstances, among others, which are to be considered and may be taken into account by you in deciding your verdicts. But also remember of course, because it may be and we have heard this in evidence that there are a number of contributory factors leading to a number of possible causes of the collision, and these may or may not include the conduct of some or all of those involved in the collision, and I say collision but of course there are collisions in this case so bear that in mind."
It seems that the judge was almost inviting the jury to disregard the evidence.[13]We turn to the first ground. To understand the first ground it is necessary to refer to some legislation. It was Mr Fitzgerald's case, which he repeated again before us, that the judge ought to have left to the jury a defence under section 3 of the Criminal Law Act 1967, which provides:
"A person may use such force as is reasonable in the circumstances in the prevention of crime, or in effecting or assisting in the lawful arrest of offenders or suspected offenders or of persons unlawfully at large."
Mr Fitzgerald relied only on that part of section 3, which refers to reasonable force in the prevention of crime. He submitted that on the account given by the appellant, albeit disputed by Mr Holding, Mr Holding was committing an offence under section 170(1)(b), (i) and (ii) of the Road Traffic Act. That provides:
"This section applies in a case where, owing to the presence of a mechanically propelled vehicle on a road ... an accident occurs by which - (a) personal injury is caused to a person other than the driver of that mechanically propelled vehicle, or... the driver of the mechanically propelled vehicle must stop and, if required to do so by any person having reasonable grounds for so requiring, give his name and address ..."
We should add that although not material to this appeal, section 3 now has to be read in the light of section 76 of the Criminal Justice Act 2008.[14]This was not a case where the appellant, aware of his powers under section 3, was seeking to exercise them. If he was, then other considerations may come into play, particularly as to the required mental element. Mr Fitzgerald submitted to the judge, as he did to us, that the appellant was entitled to use reasonable force, under section 3, to prevent the crime created by section 170, commonly called "failing to stop".[15]Mr Fitzgerald accepted that the words in section 3 "the prevention of crime" are referable to a situation where a person is using reasonable force to prevent the commission of a crime. He accepts that once a person is no longer committing the offence, then section 3 would not apply. He submitted to the judge and to us that the offence of failing to stop was continuing at the time that the appellant drove in front of Mr Holding's car. The respondent submits that by the time that the appellant forced Mr Holding to stop his car, if there was an offence (and that is in dispute) it had already been committed and was not continuing. The judge did not give, as he might well have done, a reasoned ruling on this application. In order to deduce his conclusions for rejecting the application, one has to look at the oral argument and then try to extract from it the reasons which were in the judge's mind for refusing the application. At page 12, for example, he seems to be saying in argument that once a person has left the scene, the offence has been committed and section 3 does not apply. He did give a short ruling which can be found at page 16, following the words "Well, I am against you." But there is no doubt that the reasons he gave at this point were reasons which do not assist us in resolving the issue. They were concerned with the other limb of the section. When it was pointed out to him that he appeared to have misunderstood the nature of the argument about the prevention of crime, the judge simply said:
"So I'm against you, Mr Fitzgerald, on that submission and I will not be directing the jury that section 3 has any relevance."
[16]In the absence of a ruling by the judge on the submissions made by Mr Fitzgerald, we have heard his submissions and have considered them carefully. We have also had the benefit of a skeleton argument from Miss East, for the respondent, who has found two cases which were not available to the judge. The judge was given the case of R v Renouf82 Cr App R(S) 344, Court of Appeal but, in our view, that does not assist.[17]As we have said, Mr Fitzgerald accepted that if Mr Holding was no longer committing the alleged offence, then section 3 could not assist the appellant. To help us resolve the issue as to whether or not he had ceased committing the offence the appeal alleged he was committing, we turn to the decision of the Divisional Court in R v Hallinan CO/257/98, the judgment given on Friday 24th April 1998. That case involved a bus driver who had not stopped for quite some distance after an accident involving injury to a passenger. Indeed, he had not stopped until 15 minutes later. It was submitted to the Divisional Court as it had been to the Magistrates' Court, that the offence of failing to stop had not been committed, because he did in fact stop albeit some 15 minutes later. Kennedy LJ (with whom Blofeld J agreed) said the position was really quite simple:
"... where an accident occurs, the driver must stop. If he does not do so almost immediately and as soon as he can safely and conveniently, he fails to comply with the requirements of section 170(2)."
[18]We make a brief reference to another case, R v Kenneth Jackson [1985] RTR 257, [1985] Crim LR 674. That was a case in which the appellant had assaulted another driver and one of the issues which arose in the case was whether the victim of the assault had the right to use force, under section 3 of the Criminal Law Act, in order to prevent the offence of failing to stop. It is sufficient to say that in that case the court ruled that, by the time the appellant was committing the alleged assault, any offence that the appellant might have committed had already been committed and therefore the prosecution could not rely on section 3 of the Criminal Law Act 1967.[19]If we ourselves were resolving this issue, then we would have no doubt that, as a matter law, the offence of failing to stop was no longer being committed (if it ever was) by Mr Holding by the time he had reached the point close to the motorway in the outside lane of the slip road. Applying the test as set out by Kennedy LJ, if Mr Holding ought to have stopped in accordance with the Road Traffic Acts requirements, then he should have done so either on the roundabout, or at the top of the slip road. Thus by the time the appellant was stopping Mr Holding's car, Mr Holding was no longer committing the offence (on the assumption which is much in issue that he had committed it). What is not clear and what we do not have to resolve is whether that is a matter of law for the trial judge to decide, or whether it is a matter that he would be entitled to leave to the jury. If it is not a matter of law, and he was entitled to leave it to the jury, then there would be a further issue as to whether, when a defendant claims to rely on a defence of this kind, the judge can withdraw it from the jury on the grounds that no reasonable jury could ever have reached the conclusion that Mr Holding was continuing to commit the offence at the bottom of the slip road.[20]Again, we do not need to resolve that. We can take it very simply. Our task in this court is to ask ourselves whether or not this conviction is safe. Even if the trial judge was required to direct the jury about this defence, then we have no doubt that the jury would have rejected it and, therefore, we do not need to resolve the two issues which we have identified. For that reason, we dismiss that ground.[21]We turn to a ground which was rightly not pursued in argument but one about which we wish to say something. The defendant in order to show that his car had been damaged by Mr Holding had taken a photograph of the damage to the Mercedes. Counsel wished to show that to Mr Holding in order to suggest to him that the damage that could be seen on the photograph was in fact the damage which Mr Holding had caused on the roundabout. Mr Fitzgerald then, in the absence of the jury, said that he was going to put in the photograph. The judge said that he could not, because it had neither been agreed or approved. Mr Fitzgerald pointed out that the defendant cannot prove the taking of the photograph until he gave evidence. The judge then said:
"Well, we will wait until the photographs are proved and I am not going to allow these photographs to be put this witness without proof when they were taken and who took them. It may be highly contentious."
[22]Miss East rightly agrees that the judge was wrong to take the approach that he did. There is a distinction between showing a photograph to a witness and exhibiting it. The judge is right to say that you cannot normally exhibit a photograph until it has been proved. On the other hand, provided the judge is satisfied that there will be evidence to prove the photograph, then the advocate must be entitled to put it to a witness.[23]We turn now to sentence. We have already said that the sentence was 12 months' imprisonment and 3 years' disqualification with a requirement to take an extended test. At the conclusions of the earlier today, we reduce the sentence to one of 6 months and the disqualification to one of 2 years but otherwise made no changes.[24]What happened after the jury brought in their verdict of guilty on count 1 and not guilty on count 2 is regrettable. Mr Fitzgerald stood up and asked for a pre-sentence report and explained, in his submission, why the judge should order one. He then went on to ask for bail, pending the preparation of that pre-sentence report. Both those applications were sensible applications in the circumstances of this case.[25]The judge refused the application to adjourn for a pre-sentence report and without giving Mr Fitzgerald any opportunity to mitigate, he launched into his sentencing remarks, all of this taking place in the presence of the jury who had just brought in their verdicts.[26]Mr Fitzgerald felt that, in all the circumstances, it was now too late for him to stand up and ask to be able to mitigate. We understand why he took that course, having regard to what had happened in the trial. Without saying the judge was necessarily wrong not to have ordered a pre-sentence report, we would have ordered one and we have now been provided with a pre-appeal report which has been most helpful to us. But given the judge did not entertain any mitigation from Mr Fitzgerald other than that which he had heard coincidentally during the application for the pre-sentence report and bail, we have taken the view that we should in effect re-sentence the appellant.[27]The pre-appeal report sets out in very considerable detail the many qualities which the appellant has, and at the conclusion of the report, the writer suggests that a non-custodial sentence was appropriate. The judge made a finding which Mr Fitzgerald challenges, namely that the appellant was extremely angry. We bear in mind that the judge reached that finding without having heard proper mitigation. But, in our view, resentencing this appellant, we would come to the same conclusion. It is quite clear that the appellant was in a very angry mood when he undertook this very stupid and dangerous manoeuvre.[28]In deciding the appropriate sentence we are entitled to take into account and do take into account the consequences, namely the serious accident following the collision involving Miss Lobina. In our view, this was an isolated moment of total stupidity by a man of excellent good character. Having regard to what we have said, we take the view that a custodial sentence was inevitable but that it need not have been more than one of 6 months. We also reduce the disqualification period. To that extent this appeal is allowed.