Bingham, R (on the application of) v DPP [2003] EWHC 247 (Admin)

Case No CO/4349/2002Neutral Citation Number: [2003] EWHC 247 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Venue Royal Courts of JusticeDate Friday, 7 February 2003
Strand
London WC2
B E F O R E:
MR JUSTICE MACKAY
Between
THE QUEEN ON THE APPLICATION OF GARY BINGHAMClaimant-v-
Between
DPPDefendant
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 TREMBERG (instructed by John Robinson & Co, Hull HU1 1HT) appeared for CLAIMANTMR D BRADSHAW (instructed by CPS, Hull HU1 1RS) appeared for DEFENDANT

J U D G M E N t

[1]MR JUSTICE MACKAY: This is an appeal by way of case stated by the Justices for the Commissioner of Humberside in the Petty Sessions area of Beverley and the Wolds. It relates to an adjudication of theirs on 13 June 2002 when they heard an information, over two days as it would seem, preferred against the appellant by the respondent, to the effect that he drove a motor lorry on the A1034 on 14 June 2000 without due care and attention. The information was preferred as a result of a serious accident in which that lorry was involved which tragically led to the death of another road user, but the charge against him was one of driving without due care and attention, and no other charge. The facts that the magistrates found at the end of the hearing had best be recited in full. They were as follows:
"(a) The appellant, Gary Bingham, was the driver of a motor lorry . . . on a journey from South Cave towards Sancton along the A1034 on 14 June 2000. "(b) The motor lorry was observed to be driving normally until there came a point at a right-hand bend when the rear of the motor lorry swung first in an anti-clockwise direction then clockwise into the path of an oncoming articulated heavy goods vehicle."
I interpose at this stage that there is no error in that finding of fact. The surprising feature of this case is that the initial loss of control was by a lorry driving around a right-hand bend whose rear end moves to its right contrary to what one would normally expect, as all witnesses agree. Reverting to the facts as found:
"(c) There was no evidence of any mechanical defect to the lorry that would be likely to affect its performance. "(d) There was no real evidence of any standing water, detritus or contaminants on the road surface that would be likely to affect the motor lorry's performance. "(e) There was no real evidence as to why the rear of the vehicle swung in the anti-clockwise movement. "(f) The appellant accepted that to apply the brakes after the ant-clockwise movement would 'make matters worse'. "(g) There was expert analysis of the motor lorry's tachograph which showed that 'immediately prior to impact the vehicle began to decelerate, probably due to heavy braking, causing the wheels to lock'. "(h) We found that the brakes were applied and that this was not the action of a reasonable, prudent and competent driver."
[2]The case for the appellant at the Magistrates' Court was that he had no idea why the rear end of his lorry slipped across the road in the way it did. He said that he was entitled to be afforded the benefit of the doubt; that there were possible reasons for the loss of control other than driver error; there was a possibility of contaminants on the road or that the load sensing valve on the vehicle was faulty causing the motor lorry to steer from its rear axle and move as it did.[3]The prosecution's case below was that the lorry was out of control as it went into the right-hand bend. There were no mechanical defects and no sign of any contaminants on a road which could cause it to have gone out of control. The facts spoke for themselves and the only conclusion that the court could come to in the circumstances was that the reason for the loss of control lay with driver error on the part of the appellant. His standard of driving had fallen below the required standard. The magistrates recited the principles of law that they saw to be applicable to the case, including the proposition encapsulated in the case of Wright v Wenlock [1972] CLR 49, also [1971] RTR 228, as to the circumstances in which the facts of the case may be such that in the absence of an explanation, the only proper inference is careless driving; and the similar case of Butty v Davey [1972] CLR 48, where it was said that if a defendant provided an explanation that was not fanciful, he was entitled to the benefit of the doubt. There is some lack of clarity about the conclusions which the magistrates reached. They expressed the matter in two ways. Firstly, they say they were of the opinion that the respondent had proved beyond all reasonable doubt that the standard of Mr Bingham's driving fell below the standard of reasonable, prudent and competent driving "in all the circumstances of the case". However, the framing of the question for this court's opinion suggests a different thought process. They say they asked the question "whether the magistrates were correct in law to find that the defendant's driving fell below the required standard as a result of his application of the brakes after the vehicle had begun to skid." Mr Tremberg, for the appellant, submits that this suggests that they were not satisfied that this was what might be called a Wright v Wenlock case and that they simply were not left sure that the initial loss of control was the result of the fault of the driver, such fault amounting to careless driving within its legal definition.[4]Mr Bradshaw submits that they made all the necessary findings of fact so as to lead them to a Wright v Wenlock decision and these can be seen at findings (c), (d) and (e) cited above. There is certainly no reason why they would have made those findings, in my judgment, other than to assist them with the determination of the appellant's responsibility judged by the initial loss of control. In my judgment, findings (c) to (e) are, indeed, necessary steps towards that conclusion, but the finding itself is not expressly made and when one considers that, together with the way in which the question is posed, I believe that Mr Tremberg's submission in this respect is right. What they did find expressly was that there had been a heavy application of the brakes by the appellant and that that was something which caused the wheels to lock, as they put it, "immediately prior to impact", that is to say, after the initial loss of control or skid had happened, and they found that that was careless. They did not, as I understand it, expressly invite submissions on this aspect of the case, but it is an approach to the case which, it is accepted, it was legitimate for them to follow.[5]The prosecution case was, of course, as I have stated above, put much more broadly, as it could properly be put. Careless driving offences, and this is one such example, often occur over a relatively prolonged period, perhaps over a hundred or more metres, and in terms of time, over a period of several seconds within the space of which a series of actions or non-actions by the driver will take place and will have an interactive relationship each with the other: The speed at which he travels, the course which he steers, whether he brakes and when, and how hard and so forth. The prosecution is always entitled to ask the court to look at the incident as a whole and say that the defendant's driving so viewed was careless. They do not have to slice the incident up into its component parts, and perhaps in an extreme version of this argument, issue four summonses: one complaining of carelessness in terms of the initial speed, secondly, the initial skid, thirdly, the failing to steer into the skid, and fourthly, the application of the brakes while in a skid. The defence in this case could not have any objection and, indeed, as I understand it, did not seek to object to the questioning of the appellant as to how he reacted to the initial skid, as I have called it. Indeed they had positive evidence of their own based on an expert witness's reading of the tachograph on the lorry which was read and not challenged. Part of it has been quoted directly by the justices in their finding of fact (g), set out above. There was another part of his report in which that same expert had said that the lorry prior to impact had accelerated to 48 miles per hour then "immediately commenced heavy braking, probably causing the drive wheels to lock". The applicant himself when questioned conceded that if he had done this it would have made matters worse and this was an answer of sufficient importance in the justices' view to make it a subject of specific finding of fact, finding (f), set out above. It is realistically accepted by Mr Tremberg that when one defends a case of this nature all the bases must be covered, and this point must always have been a live point for the defendant, as he then was, to answer in the court below.[6]Realistically, Mr Tremberg concedes, the magistrates are entitled, indeed obliged, to try the case on all the evidence that related to this piece of driving from beginning to end and although they gave no warning, indication or advice to the appellant or those who represented him that they were particularly interested in his braking response to the initial skid, he is not in a position to complain of that failure as such. His points today are twofold. The first is an evidential point: was there, in fact, sufficient evidence on the basis of which the magistrates could properly have concluded that there had, in fact, been heavy braking, or was their finding of fact, as he argues, perverse, one which they were not entitled to reach? Secondly, even if they were entitled to make that finding of fact, was it proved so that they could be sure that that action amounted to careless driving on the part of the appellant?[7]As to the first of these points, there was, as is to be expected, a diversity of evidence. In their findings the magistrates have, in effect, highlighted the tachograph expert's evidence, Mr Mulley, and the appellant's own evidence, but on this point, of course the appellant did not recall having braked at all. There was another witness who was a traffic examiner who said he had seen on the tyres of the appellant's lorry, markings "indicative of severe sliding or of the wheels locking up". Other witnesses gave evidence that went in a different direction.[8]In my judgment, having considered Mr Tremberg's submissions and all the evidence and the way the justices state their case, it was plainly open to them to make this finding of fact in the terms in which they made it and it cannot be impugned in this court. Mr Tremberg accepts that if this was not a finding which could be called perverse, he has no argument to the effect that they were under an obligation to flag it up as a key part of the case for the defence.[9]His second point is whether, assuming that was a finding they were entitled to make, it nevertheless amounts to proof beyond reasonable doubt of careless driving. He submits that the so-called "agony of the moment" cases would have been germane to be considered at this stage. Assuming that these justices had gone through their careers to date as Justices of the Peace, trying, no doubt, many careless driving cases without having had the agony of the moment principle drawn to their attention, which seems to me unlikely, but making that assumption, what would the necessary process of reasoning have had to be? Mr Bradshaw says that that line of argument is only of application where the reaction under criticism is that of a driver faced with an emergency which is not of his own creation. I believe that is a fair description of it. It is not something a defendant can pray in aid if he has put himself in the difficult situation, certainly not if he has done so by his own carelessness. But for reasons I have already stated, Mr Tremberg has succeeded in demonstrating that the magistrates fought shy of attributing the initial loss of control to carelessness on the part of the appellant. The principle has been considered many times in many cases and is almost one that requires no authority to support it, but my attention has been drawn in particular to the Privy Council's decision in NG Chun Pui & Others v Lee Chuen Tat and Another [1998] RTR 298, a crossover collision on a dual carriageway. That was a case which also concerned itself with a reverse burden of proof which was an error that the judge had fallen into. But there was another error into which he had fallen in the view of the court and that was put in this way:
"He also failed to give effect to those authorities which establish that a defendant placed in a position of peril and emergency must not be judged by too critical a standard when he acts on the spur of the moment to avoid an accident."
[10]The opinion of Lord Griffiths continued by citing the way the matter had been dealt with in the Court of Appeal below, and, citing it with approval, the lower court had said:
"He did what any careful driver would instinctively have done in the circumstances and we are satisfied that he acted with the alertness, skill and judgment which could reasonably have been expected even if he did react slightly more than he should have done, slightly more than was strictly necessary. We are not satisfied that the lesser reaction would not have produced much the same result."
This approach, said Lord Griffiths, by the Court of Appeal to the facts of this case cannot be faulted.[11]Mr Tremberg argues that there are points that needed to be addressed before translating the finding of heavy braking by the appellant into a conviction for careless driving. He lists them in his skeleton argument and they are these: When did the appellant start to brake, where was he when he started to brake, in what direction was he facing, how close was he to the oncoming lorry, what effect did the application of the brakes have, how long did it last, whether it contributed in anyway to the pre-existing loss of control, what significance he should have attached to the presence of a lorry coming the other way, at what angle was the vehicle when he braked? It is entirely right that these, as a matter of logic, would be the kinds of questions that in an ideal world the court would like to see covered by exact and clear evidence. In the real world many of them may be impossible to answer, or may be matters of necessary inference, and there is nothing surprising about that. The question for me is whether the magistrates were entitled to combine their finding of fact as to braking, the concessions of the appellant, an experienced heavy goods vehicle driver, apparently readily made, that the effect of braking when skidding would have been to make matters worse, and the unchallenged conclusions of Mr Mulley that this probably caused the wheels to lock and led to the final loss of control. They plainly took all these matters into account looking at the way they expressed findings (f) and (g) in reaching the basis of conviction which appears to be the basis on which they did convict.[12]Mr Tremberg has put this appeal as effectively as it could possibly have been put, but for all his efforts, I am not persuaded that this was a conclusion to which the magistrates were not entitled to come to on the evidence they had before them. That means that in my judgment, it is not a decision on their part which is open to challenge in this court. I see no error of law in it and for those reasons I would answer the question posed by the magistrates in the affirmative; that they were correct in finding as they did.[13]MR BRADSHAW: For the question of costs, my learned friend and his instructing solicitor have spared my blushes in this matter and agreed costs of £2,000.

MR JUSTICE MACKAY: That is a very modest sum.

[15]MR BRADSHAW: I am very grateful for their reasonable attitude.[16]MR JUSTICE MACKAY: In that case, without further ado, I will dismiss this appeal and order the appellant to pay the respondent's costs agreed at £2,000. Again, may I thank you both for the helpful way you have put this case.