Maxwell, R v [2014] EWCA Crim 417

[2014] EWCA Crim 417Case No 201302439 C3
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Venue Royal Courts of JusticeDate Friday 21st February 2014
Strand
London, WC2A 2LL
B e f o r e:
LORD JUSTICE DAVIS
MR JUSTICE KING
HIS HONOUR JUDGE KRAMER QC
(Sitting as a judge of the Court of Appeal Criminal Division)
Between
R E G I N ACrownBENJAMIN JOSEPH MAXWELLDefendant
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 7404 1424(Official Shorthand Writers to the Court)
Miss K A Currie appeared for AppellantMr R Cherrill appeared for Crown
J U D G M E N T

LORD JUSTICE DAVIS:

[1]The appellant was, on 12th April 2013, convicted after a trial at the Crown Court at Lewes before His Honour Judge Rennie and a jury of a count of causing danger to road users by interfering with a motor vehicle contrary to section 22A(1)(b) of the Road Traffic Act 1988 as amended. His essential complaint on this appeal, for which leave has been given by the single judge, is that the trial judge wrongly directed the jury in the summing-up. He complains that the summing-up wrongly permitted the jury to convict the appellant on the basis that he had interfered with the driver of a motor vehicle, as opposed, it is said, to interference with the motor vehicle itself, which is the requirement of the relevant statutory provisions.[2]The point arises in this particular way. The appellant and a co-accused, a man called Basile, were facing a number of counts. In the event, so far as the appellant was concerned a not guilty verdict was entered in respect of a count of making off without payment, and on a further count of assault he was acquitted by the jury.[3]The background was that the complainant, a Mr Monji, was a taxi driver. On 1st October 2011 he had received a call to pick up three people from Sussex University in the early hours of the morning and take them to Brighton. Three men duly got into his car: two of them were Basile and the appellant. The other has not been identified.[4]The evidence of the taxi driver was that during the journey he was grabbed round the neck from behind. He also said that the appellant had grabbed the steering wheel whilst the co-accused Basile, who was sitting in the front seat, tried to change the gears. Eventually, the car came to a halt after colliding with two parked cars.[5]The prosecution case had been that the actions of the three occupants had been on the basis of a joint enterprise amounting to interfering with a vehicle in such a way as to endanger other road users.[6]In a nutshell, the defence case was that the driver Monji was lying and all that had occurred within the car, which in any event was in dispute, was that those in the back had sought to open the rear doors to escape from the car because of the manner in which Monji was driving.[7]Monji's evidence had been to the effect that after he started his journey, the passenger who was immediately behind his seat sitting in the back (not the appellant or Basile) had adjusted his own driving seat, causing the back of it to go backwards. He then had difficulty with driving the car and Basile, who was sitting in the front passenger seat, then apologised and persuaded him to continue the journey. The third man sitting in the back seat had then thrown receipts or other papers from the taxi out of the window and Monji thought it unsafe to stop at that time because there was nobody around, and so he continued to drive on. Both rear doors were then opened completely and he told the people in the back repeatedly to close them. He said that the people in the back, that is to say the appellant and the other unnamed man, were laughing but did close them. At that point according to Monji, he was grabbed around the neck, causing the vehicle to be steered into Coombe Road, and partly also because the rear left passenger (said to be the appellant) had grabbed the steering wheel whilst he was being held by the neck and arms by the third man. According to Monji, Basile, the one sitting in the front passenger seat, then held the gear lever and tried to change gear. At all events, the taxi ended up stopped in a road after hitting the two parked cars. The three men had then tried to run away, although Monji managed to detain the appellant.[8]There were two witnesses of the incident, at least when it came to an end, who as it happened were doctors. One of them described the taxi jerking along and that she saw a door open on the driver's side and noticed at least one person in the back with his arm round the driver at shoulder or neck high and shaking the seat. Her view was that the driver was definitely being held. The other doctor's evidence was that the taxi was being driven erratically, and his impression was that all the passengers were leaning towards the driver's seat and he could see arms heading in the direction of the driver's seat.[9]The appellant's case in evidence was that all three passengers were admittedly tipsy. He said that the one next to him in the back seat had started throwing pieces of paper out of the window and the driver started to shout and swear and drive at speeds of up to 70 miles an hour. He accordingly tried to open his door to make the driver slow down and give himself a chance to get out. He said that he had not seen anyone grabbing the driver or interfering in any way at all and the driver had simply refused to stop.[10]Basile was to describe in his evidence the rear passengers as behaving like drunken idiots and the driver then losing his temper and driving at speed. Basile said he had never touched the gear stick or interfered with the driver in any way and he had never seen an arm round the driver's neck.[11]Conscientiously and commendably, the judge prepared written directions on the law which he provided to counsel in advance of their speeches. Counsel raised at that time no objection to those directions and the judge proceeded to sum up to the jury, reading out precisely what the written directions contained. No complaint was made about those directions to the jury at the end of the summing-up either. Nevertheless, it is those directions which are now the subject of this appeal.[12]What the judge said to the jury in the relevant respects is this, after referring to the nature of the offence:
"So it is, as you will see, a straightforward dispute of fact. If you are sure, members of the jury, that the defendant whose case you are considering -- remembering to look at them separately -- either acting alone or with one or more other people, did interfere with the taxi driver, or his ability to drive that taxi normally and safely, such as, for example, by putting one or more arms round him, or touching or trying to operate one or more of the controls, then no-one has suggested that person would not be guilty of this offence."
The judge then went on to point out that the case for each defendant was that they had done no such thing and that the driver was lying. The judge then said that if that was accepted they would acquit, and went on:
"If on the other hand you are 'sure' that he did physically interfere with the driver and/or the controls of the taxi, then he would be guilty. So that is what it boils down to and I suggest you approach it in that way."
[13]The wording of section 22A(1)(b) of the 1988 Act, by reference to which the offence is charged, reads as follows:
"(1) A person is guilty of an offence if he intentionally and without lawful authority or reasonable cause - (a) causes anything to be on or over a road, or (b) interferes with a motor vehicle, trailer or cycle, or (c) interferes (directly or indirectly) with traffic equipment, in such circumstances that it would be obvious to a reasonable person that to do so would be dangerous."
[14]Miss Currie's simple point is that the wording of subsection (b) makes clear that what is required to be proved is interference with a motor vehicle, trailer or cycle; it does not relate, on its terms, to interference with a driver of a motor vehicle, trailer or cycle. She further points out that the words "directly or indirectly" are not contained in subsection (b), in contrast to subsection (c). It is in consequence said by her that the judge misdirected the jury. The judge in terms had indicated to the jury that the offence was capable of being made out if, on one approach, they were sure that there had been interference with the driver: whereas, she says, they should have been directed that it had to be interference with the vehicle. She further says that that direction is compounded by the judge's frequent usage of the word "or", or "and/or", at various stages in his summing-up.[15]A point of this sort arose for consideration in the case of Meeking [2012] 1 WLR 3349, [2012] EWCA Crim 641. Mr Cherrill, appearing for the prosecution, and Miss Currie candidly told us that they were not aware of this authority at the time of this trial and the judge's attention was not drawn to it. Miss Currie came across it in subsequent research after the trial.[16]That case also had to concern itself with consideration of the meaning and effect of section 22A(1)(b) of the Road Traffic Act 1988. In paragraph 12 of his judgment, Toulson LJ indicated that there was no reason to limit the provisions of the subsection by confining it to acts done to the vehicle before it was driven. Further, the court was not persuaded by an argument that the interference in question had to be in some way external to the vehicle itself. Those are not matters relevant to the present case. But what is relevant to the present case is what Toulson LJ said in paragraph 13 of his judgment, since that does relate to the particular point now arising in the present case:
"There remains Miss Bradberry's final argument that it is necessary to distinguish between something which interferes with the vehicle in the sense that the vehicle itself is damaged or otherwise altered, for example by dropping a brick on it, and something which is essentially an interference with its driving by the motorist. We can see that if the act is simply one of distraction of the motorist, that would not be an interference with the vehicle. But the braking system is a mechanical part of the car and we reject the argument that pulling the brake on while the car is being driven does not amount to or cannot be regarded by a jury as amounting to interfering with the motor vehicle. In the ordinary and natural sense of the words it is an interference with the vehicle. It is an interference with the vehicle by interfering with a mechanical part of it. For those reasons, we reject the argument that the judge misinterpreted the section and accordingly the appeal must be dismissed."
[17]Miss Currie places reliance on that passage. She says that supports the meaning to be ascribed to the wording of subsection (1)(b) as she argues it to be. She says that this was in effect a case of interference with the driver, not with the motor vehicle.[18]Mr Cherrill, on behalf of the Crown, in his written argument sought to say that this was more than a case of mere distraction, such as Toulson LJ had expressly mentioned in paragraph 13 of his decision in Meeking. That may be so. But it is quite clear from the subsequent parts of that paragraph that Toulson LJ did have in mind that there had to be some interference with the mechanical part of the car. Accordingly, that particular point does not of itself avail Mr Cherrill, in our view.[19]Mr Cherrill in fact then somewhat changed tack from what he had set out in his written argument and sought to put his case in a rather different way. He said that the evidence was that the driver had been grabbed from behind by the neck whilst, it is to be inferred, the driver's hands were on the steering wheel. Thereby, so Mr Cherrill argued, there was interference with the motor vehicle.[20]We have to say we are very doubtful whether that can possibly be right as a matter of approach to the provisions of the section. But, quite apart from that, in our view it cannot safely be said that (so far as this appellant is concerned) this must have been the view the jury would have taken with regard to the facts of the case as to what his own actions were. Indeed, on Mr Monji's evidence it was the other man who had his arms around the driver's neck; whilst according to Mr Monji it was the appellant himself who had grabbed the steering wheel. But as the judge had summed the matters up to the jury, it had not been left that it was essential that the jury conclude so that they were sure that the appellant had indeed taken hold of the steering wheel. Furthermore, the jury were by no means obliged to accept that there was here a case of joint enterprise.[21]We repeat that the judge's attention had not been drawn to the case of Meeking. Had it been, we do not think the judge would have summed-up as he did. At all events, he should not. Undoubtedly he left it to the jury that they were in effect entitled to convict if they were sure that the appellant had interfered with the driver, as opposed to interfering with the vehicle. That was a misdirection.[22]We have to ask ourselves whether, nevertheless, this conviction can be styled safe. Having regard to the circumstances as we have outlined them, we do not think we can be satisfied that the conviction was safe. We do note of course that neither counsel made any complaint of the directions given at the time. But if there was such a misdirection, then in the circumstances of this case this court should interfere; and we do so by allowing the appeal.[23]MR CHERRILL: My Lords, I am instructed in that event to ask that the court consider ordering a re-trial, when no doubt the attention of the trial judge will be drawn to Meeking.

LORD JUSTICE DAVIS: You are not going to agree with that, are you, Miss Currie?

[25]MISS CURRIE: No.

LORD JUSTICE DAVIS: Right. Well, we will just decide. (The Bench conferred for a short time)

LORD JUSTICE DAVIS: We have considered it, Mr Cherrill, and we reject it.

[28]MR CHERRILL: My Lords, thank you.

LORD JUSTICE DAVIS: We intend no criticism of the fact that you did not draw Meeking to the judge's attention, but it is one of those things that happens.

[30]MR CHERRILL: Indeed, thank you.