Director of Public Prosecutions v Milton [2006] EWHC 242 (Admin)

Case No CO/7657/2005

[2006] EWHC 242 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

DIVISIONAL COURT

Venue Royal Courts of Justice

Date Wednesday, 1 February 2006

Strand

London WC2A 2LL

B E F O R E:

LADY JUSTICE HALLETT

MR JUSTICE OWEN

Between

DIRECTOR OF PUBLIC PROSECUTIONSClaimant

-v-

Between

MARK SCOTT MILTONDefendant

Computer-Aided Transcript of the Palantype Notes of

Smith Bernal Wordwave Limited

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(Official Shorthand Writers to the Court)

MR E LAWSON QC AND MR P SULLIVAN (instructed by CPS Droitwich) appeared for CLAIMANT

MR J MCGUINESS AND MISS A HEALEY (instructed by Messrs O'Gorman & Co) appeared for DEFENDANT

J U D G M E N T

LADY JUSTICE HALLETT:

In

[1]April 2005 the respondent, a police officer and Grade 1 advanced driver serving in the West Mercia Constabulary, appeared before District Judge Morgan at the Ludlow Magistrates' Court charged with an offence of driving dangerously and five alternative offences of exceeding the speed limit on Friday 5 December 2003. The matter was adjourned for submissions and judgment.

[2]On 18 May 2005 the district judge, having heard evidence and submissions dismissed all the charges on the basis that the respondent’s driving did not fall below the standard expected of a competent and capable driver and that, in exceeding the speed limit, the respondent was driving for police purposes in accordance with section 87 of the Road Traffic Regulations Act 1984. The Director of Public Prosecutions appeals to this court by way of case stated.

[3]Unfortunately, the Case Stated, which was not provided until August 2005, is in an unsatisfactory and unhelpful form. When Collins J saw the papers, he attempted to assist by advising that substantial passages should be deleted from it. Further, we do not have the benefit of a note of judgment.The district judge took exception to the note prepared by the Crown and no steps have been taken to have it amended and put before us in agreed form.

[4]I turn to the facts, about which there seems to have been little if any dispute. On the night in question, Mr Milton was on duty with a colleague. His normal vehicle was out of commission. He was given a Vauxhall Vectra 3.2 vehicle to use. This is apparently capable of speeds and acceleration most of us would associate with top of the range Italian sports cars. The district judge noted that West Mercia Constabulary had purchased the vehicle because of its high performance capability.

[5]The district judge found as a fact that the respondent decided to practise his diving skills on a vehicle with which he was unfamiliar, as he had been instructed to do in the course of his police training. Honing his skills in this way entailed his driving grossly in excess of the relevant speed limits. Based upon the on-board video recording from the car and calculations subsequently made, the Crown alleged -- and it is accepted -- that the respondent drove on the M54 over a distance of just under 5000 metres at average speeds of 148-149 miles per hour; on the A5 over distances of 970 metres and just under 2000 metres, at speeds of 83-114 miles per hour; and in a 30-mile per hour limit he drove over distances of 248 metres and 781 metres at speeds of 61 and -91 miles per hour respectively.

[6]In the Case Stated under the heading "Facts Found" the district judge dealt in the first five paragraphs with the background, namely the respondent's occupation and the training and instructions he said he had received. The district judge accepted that he was told to practise his skills regularly on his own initiative in a manner and at speeds at which he might be required to perform in operational conditions. These conditions apparently included driving in excess of 140 miles per hour. The district judge also found that the respondent had been instructed not to drive a car operationally that he had not tested.

[7]In paragraphs 6-9 of the Case Stated at pages 3 and 4, the district judge found that at the time of the alleged offences the weather was fine, visibility was good and the roads were more or less deserted. There was no evidence, he said, that any other road user was in fact endangered by the manner of the respondent's driving. The respondent was extremely familiar with the road concerned. The judge found that the respondent was in control of his vehicle at all times and his driving was of a high standard. 7.1. 7.2. The Crown argues that the district judge was wrong to find that driving at grossly excessive speeds (described as "eye watering" speeds) when not responding to an emergency or when otherwise engaged in the prevention and detection of crime, does not fall below the required standard. In the alternative, Mr Lawson QC, on behalf of the Crown, submits that at the very least the respondent should have been convicted of the offences of exceeding the speed limit. He argues that the district judge also erred in finding that the respondent was driving for police purposes. If the respondent was merely doing as he had been instructed to do, namely familiarising himself with the vehicle and honing his driving skills, this was a factor, the Crown argued, that would go to mitigation and penalty. It would not amount to a defence to the charges.

[8]Mr Lawson reminded us of the provisions of section 2/2A of the Road Traffic Act 1988. They provide, where relevant, the following definition of dangerous driving.

[9]Subsection (1) -:

"...a person is to be regarded as driving dangerously if (and, subject to subsection (2) below, only if) - (a) the way he drives falls far below what would be expected of a competent and careful driver, and (b) it would be obvious to a competent and careful driver that driving in that way would be dangerous. …. (3) In subsections (1) and (2) above 'dangerous' refers to danger either of injury to any person or of serious damage to property: and in determining for the purposes of those subsections what would be expected of, or obvious to, a competent and careful driver in a particular case, regard shall be had not only to the circumstances of which he could be expected to be aware but also to any circumstances shown to have been within the knowledge of the accused."

[10]The test is a wholly objective one. We were referred to the judgment of Lord Woolf CJ in Attorney General's Ref (No 4 of 2000)

[2001] 2 Cr App R 417

at p 422, at paragraph 7, where he said:

"The essential limbs, as is common ground, do not require any specific intent to drive dangerously. Section 2A sets out a wholly objective test. The concept of what is obvious to a careful driver places the question of what constitutes dangerous driving within the province of the jury."

Lord Woolf continued:

"It is the jury who should set the standard as to what is or what is not dangerous diving."

[11]Mr Lawson's primary aim, which he conceded was an ambitious one, was to persuade this court that, assessed objectively, to drive at speeds in excess of twice the speed limit is dangerous whatever the context. He relied in part on a number of decisions from Scotland in which a similar point on similarly drafted legislation has arisen. He submitted, that although not binding on this court, they would prove helpful to us. In McQueen v Buchanan

(1997) SLT 765

, for example, where the speed relied upon by the Crown was 114 miles per hour on a road that was subject to 60 miles per hour, Lord Hope, then

Lord Justice General, giving the opinion of the court said at page 2 of the report before us:

"It should be emphasised that driving at a grossly excessive speed in itself may in certain circumstances give rise to such obvious risks that the statutory test is satisfied without the need to conduct a minute examination into the layout of the road and the presence or otherwise of other traffic in the vicinity. This case is not presented in that way by the sheriff, so such questions as may arise as to whether pure speed can amount to dangerous driving are not present here. But drivers should not overlook the fact that they may be exposed to a charge of dangerous driving if they drive on roads which are not designed for high speed driving at speeds which are so grossly in excess of the speed limit that any reasonable person would conclude that the speed at which they were driving was so fast as to be in itself dangerous."

[12]In Howdle v O'Connor

(1998) SLT 94

, where the speed relied upon by the Crown was 119-mile per hour on a stretch of motorway, Mr Lawson placed reliance on the words of Lord Rodger, then Lord Justice General. Giving the opinion of the court at page 95, he said:

"The relevant speed limit for the road was 70 mph for private cars such as that driven by the respondent. The sheriff finds that the drivers of other vehicles ahead of the respondent's would not readily anticipate the excessive speed of its approach. From those findings in fact, it is plain that this was a stretch of road where there were several potential hazards: the moderate flow of vehicles on this stretch to Nouthill; the fact that debris was frequently present; that broken down vehicles could be found; that on occasion animals are found to have strayed on to the road and that there road junctions. On this particular occasion, as the finding in fact 6 showed, there was a danger that drivers travelling ahead would miscalculate the speed of the respondent's vehicle if contemplating moving out to overtake. The fact is that, as counsel conceded, the respondent was driving at the grossly excessive speed of 119 mph in the face of these potential hazards. The sheriff seems to have attached undue importance to the fact that on this particular occasion the potential risks did not materialise but, in our opinion, that was the wrong approach particularly in view of the finding that the drivers in front were liable not to anticipate the excessive speed of the respondent's approach. Having regard to these factors, we are satisfied that the respondent's driving fell far below what would have been expected of a competent and careful driver and that it would have been obvious to such a driver that driving that way would be dangerous. We accept, of course, that excessive speed alone is not a basis for convicting of dangerous driving under s2 of the 1988 Act. Nonetheless where, as here, the speed is grossly excessive and the car is driven at that speed on a stretch of road with other cars, especially when their drivers would not readily anticipate the speed of the offending vehicle, the proper conclusion to draw is that the driving was indeed dangerous in terms of the section."

[13]Mr Lawson also placed reliance on a recent Scottish case of Klos [2005] HCJAC 136, which held, he submitted that, to drive at 156 miles per hour on dual carriageway, is inherently dangerous or, in Scot's common law terms "culpable and reckless conduct". This, Mr Lawson argued, requires a higher degree of culpability than mere dangerous driving.

[14]Mr McGuiness QC, on behalf of the respondent, also took us to the facts of the individual Scottish cases upon which Mr Lawson had placed reliance. He sought to argue that in each of the cases there had in fact been potential hazards as found by the trial judges. He argued that the district judge has found in this case that there were no potential hazards. He makes no reference to road junctions or the like, he found in terms that no other road user was in fact endangered. This court is he submitted bound by the findings of fact as made.

[15]Both sides agreed that police officers are subject to the same rules of driving (if that is what they are to be called) as the rest of the population, save for the section 87 exemption. If a policeman drives dangerously in an emergency he is not exempt him from liability under section 2 and 2A of the Road Traffic Act. For that, we were referred to various decisions, in both the civil and criminal jurisdictions in particular see R v Lezlie Collins [1997] RTR 439.

[16]The Crown argue that a competent and careful driver will not exceed the relevant speed limits, at least not materially so. This is because the competent and careful driver would, at least should, objectively, recognise that speed limits are set at the maximum speed up to which, depending on the conditions, one should safely drive. To drive a little above the limit will, or may, not per se be dangerous driving in the sense that it would not fall far below what is to be expected of a competent and careful driver. But the greater the excess, Mr Lawson argued, the further below that standard one falls. To drive at twice the speed limit ought to be recognised, objectively, as being too far below acceptable standards.

[17]Mr Lawson argued that whether the particular driver is at one extreme a total, incompetent or at the other a Stirling Moss (I add perhaps today one should say Jensen Button), is irrelevant. What matters is, whether regardless of the qualities and skills of the particular driver, the manner of driving should, objectively, be regarded as dangerous. The court, Mr Lawson argued, used to apply in offences of reckless driving the rather quaint test of whether an objective by-stander would say, seeing the driving, "By Jove that's reckless". (Nowadays I fear the description might be rather more graphic.) In any event, Mr Lawson argued that the test has not changed materially. He submits that any by-stander here would say, on seeing the respondent's driving, "By Jove, that's dangerous", as the respondent's car flashed by.

[18]If we are not persuaded that a conviction for dangerous driving was inevitable in relation to the speeding charges, Mr Lawson invited us to disapprove the district judge's findings that the respondent's driving was for "police purposes" within section 87. Section 87, where relevant reads:

"No statutory provision imposing a speed limit on motor vehicles shall apply to any vehicle on an occasion when it is used for...police purposes, if the observance of that provision would be likely to hinder the use of that vehicle for the purpose for which it is being used on that occasion."

[19]Some guidance as to the interpretation of "police purposes" is to be found in Aitken v Yarwood

[1965] 1 QB 327

in which the police purposes exemption was held to apply to a police officer who, having broken down on route to court, felt that he had to speed to arrive there in time. On page 333 Winn J, with whom the other members of the court agreed, observed as follows: "On the other hand, it is, I think, equally clear that it cannot have been the intention of the legislature when enacting these words, to make it the sole criterion whether or not at the material point of time a police purpose, taking that as the example, was then actually being performed; it is a necessary extension of the immunity granted that if a particular use is essential for the performance of a police purpose, although it does not of itself constitute an act of performance of that purpose, that the immunity should extend that far.

[20]He went on:

"It would be dangerous, in my judgment, to state any instances or examples by way of illustration, since inevitably when any such suggested instance came under the microscope in a trial, it would be found that any reference here made to it would tend rather to mislead than to assist a court concerned with deciding the instant problem."

I shall bear those observations in mind. Lord Parker CJ, in agreeing with Winn J, observed at page 334:

"On the findings of the justices, it seems to me an inevitable conclusion that the use of that vehicle at that time was an integral and necessary part of the purpose to be achieved, namely, to give evidence at 10 o'clock in the magistrates' court."

[21]Mr Lawson described this as a somewhat liberal and generous interpretation of “police purposes”. He submitted that police purposes in this context must sensibly and purposively be limited to circumstances in which police must speed to do their job. He argued that it cannot and should not reasonably be extended to any occasion on which an on-duty police officer decides to exceed the speed limit. Further, he reminded the court of what he called the proviso to section 87, the words "if the observance of that provision would be likely to hinder the use of that vehicle for the purpose for which it is being used on that occasion."

[22]Mr Lawson argued in the particular circumstances here under review that, observing the relevant speed limits, would not have been "likely to hinder the use of the vehicle, the purpose for which it was being used on that occasion". Therefore, he argued, the police purposes exemption should not have been applied to the speeding offences as charged and proved. He acknowledged, however, that, depending on the facts found, circumstances similar to those advanced in this case by the respondent may amount to mitigation and may amount to special reasons.

[23]Thus, the Crown proposes that the questions posed for this court should be answered as follows: Question 1: Was the district judge correct in law in taking into account the driving skills of PC Milton when considering whether the driving was dangerous? Does the Road Traffic Act allow for such a subjective interpretation? Mr Lawson's answer is "no", he was not. Such an approach is inconsistent with the wholly objective test to be applied. Question 2: Was the district judge correct in law in accepting that honing advanced driving skills and/or the discretion so to do amounted in law to a defence to the charge of dangerous driving? Mr Lawson argues that that question should be answered "No, that is an irrelevant consideration". Why someone drove as he did is relevant. The only issue concerns the manner of driving. Question 3: Was the district judge wrong in law not to direct himself that the defence amounts to mitigation properly accounted for as 'special reasons' rather than a defence. To that rather curiously phrased question, Mr Lawson suggests the answer is "yes". Question 4: Was the district judge correct in law in finding that the officer's explanation for the manner of his driving (honing his advanced driving skills) fell within the exemption available for "police purposes" to speeding offences provided by section 87 of the Road Traffic Regulation Act 1994? To that question Mr Lawson says that we should provide the answer "no".

[24]On behalf of the respondent, Mr McGuiness very properly reminded us not only of the statutory definition of dangerous driving within the Act itself, but that the danger of the relevant harm must be "obvious" to the competent and careful driver. He submitted that, "this required more than that the danger would have been foreseeable to the competent and careful driver. The situation must be one where the competent and careful driver would say that the danger was plain for all to see". For that proposition he relied upon Smith v Hogan, Criminal Law, 11th edition 2005, page 1013. This was a statement approved in R v Collins [1997] RTR 439 at page 445C-E.

[25]Mr McGuiness said that in determining the two elements in paragraphs (a) and (b) of section 2A(1), regard should be had not only to the circumstances of which the competent and careful driver could be expected to be aware, but also "to any circumstances shown to have been within the knowledge of the accused". He relied on the terms of section 2A(3) of the Road Traffic Act. In his submission an example of such additional circumstance within the knowledge of the accused, but which the competent and careful driver looking at the manner of the driving would not be aware of, is the fact that the accused had consumed a large quantity of alcohol. For that proposition he relied on R v Woodward [1995] RTR 130 at 136L-137E.

[26]Relying on Woodward, Mr McGuiness argued , therefore, in relation to Question 1, that the respondent's driving skills were a fact which, taken together with other facts, the district judge was entitled to take into account in determining whether the driving was dangerous. The respondent's skills were within his knowledge and therefore relevant to the independent by-stander test. -26.1. In principle, Mr McGuiness submitted, such circumstances or facts within the knowledge of the accused are imputed to the competent and careful driver in determining the objective standard of the driving and, hence, can properly be taken into account by the fact finder. Some of these may be relied upon by the prosecution, as in Woodward, and some, he submitted, may be relied on by the accused as in Collins.

[27]As far as Woodward was concerned, Mr Lawson argued that the personal characteristics of an accused are generally irrelevant on a charge of dangerous driving. He submitted that Woodward should be confined to its own facts. Even if Mr McGuiness failed in his Woodward argument, he reminded the court that the district judge said, in terms in the Case Stated, that it played an insignificant part in his deliberations.

[28]Further, in dealing with the questions posed for the court, Mr McGuiness insisted that the respondent did not, and has never, contended that the honing of his driving skills is a defence in law to the charge of dangerous driving. This was not the basis for the acquittal. He argued that it is plain that the district judge was well aware of the appropriate test to be applied and has applied that test perfectly properly. He reminded the court that what constitutes dangerous driving is within the province of the fact finder. It is the fact finder that sets the standard as to what is or is not dangerous driving. He, too, relied upon the dicta of Lord Woolf CJ in the Attorney General's Reference (No 4 of 2000) at paragraph 7.

[29]Mr McGuiness argued that, based on the facts found by the district judge, the relevant circumstances of which the competent and careful driver could be expected to be aware were:(a) the speeds at which the respondent drove;

(b) the times at which he drove;

(d) the visibility, which was good;

(e) the road conditions, namely the roads were " more or less deserted";

(f) that no other road used had been endangered by the manner of the driving;

(g) that the respondent had control of the vehicle at all times. Further, he argued, there were other circumstances found by the district judge which were shown to have been within the knowledge of the respondent. First, that he was a Grade 1 police driver of many years experience and, second, he was extremely familiar with all the roads on which he drove and with the topography of the roads.

[30]Mr McGuiness argued that, in the light of all the facts and circumstances found, the district judge had to, and plainly did, ask himself whether he was sure that the prosecution had proved its case. He has found that the prosecution failed to do so. He submitted that to adopt the approach that Mr Lawson invited us to do (in other words to find that driving at twice the speed limit is per se dangerous) is tantamount to taking the question of the standard of dangerous driving away from the tribunal of fact. He submitted that Mr Lawson's submission is wrong in principle. Speed is one of a number of circumstances which has to be taken into account. As was said in Howdle v O'Connor, to which I have already referred, excessive speed alone is not a basis for convicting of dangerous driving.

[31]As to the operation of section 87, Mr McGuiness reminded us of the words of Winn J in Aitken v Yarwood. He submitted that the exemption is not limited to a police purpose actually being performed at the time of driving. As Winn J observed:

"It is a necessary extension of the immunity granted that if a particular use is essential for the performance of a police purpose, although it does not in itself constitute an act of performance of that purpose, that the immunity should extend that far."

[32]Mr McGuiness argued that whether the district judge was entitled to hold that the section 87 exemption applied must depend on the relevant facts as found, namely:(a) that the respondent had been instructed by senior officers that in order to ensure safety as well as operational effectiveness, he should familiarise himself fully with any police vehicle required to be driven by him at differing speeds and on differing types of road and road conditions;

(b) that the respondent had been instructed by senior officers that he should practise regularly, on his own initiative, to drive in a manner and at speeds such as he might be required to perform in operational conditions, including driving at speeds in excess of 140 miles per hour on motorways and at relatively high speeds on other classes of roads as he considered safe;

(c) that the respondent had been instructed by senior drivers that he should not drive a car operationally that he had not tested;

(d) that the respondent was on duty on the night of 4/5 December and the vehicle he ordinarily used was at of commission;

(e) that on the night of 4/5 December while on duty, the respondent was required to drive a vehicle with which he was unfamiliar;

(f) that on his tour of duty the respondent practised his skills at driving in a car with which he was unfamiliar as he had been instructed and in accordance with his training as an advanced driver;

(g) that the respondent's force, the West Mercia Constabulary, was aware that Grade 1 advanced drivers, such as the respondent, practised their driving skills in the manner and for the purpose which he did and his force approved such conduct.

[33]In the light of these findings of fact, Mr McGuiness argued that the district judge was entitled to hold that on the relevant occasions the vehicle was being driven by the respondent for police purposes either(i) because the driving at the material time was itself a police purpose; or

(ii) driving the vehicle in excess of the relevant speed limits when responding to an emergency or otherwise engaged in the prevention or detection of crime was a police purpose, and his particular use of the vehicle on the occasions in question was essential in order to perform that police purpose. This would be so even if the respondents' actual driving on the night of 4/5 December did not constitute an act of performance for that purpose.

[34]Mr McGuiness argued that, on the night in question, the respondent was not merely testing whether the vehicle could be driven within the relevant speed limits. His purpose was to ensure he was familiar with the vehicle. He was, therefore, honing his skills to drive it as safely when he might be required to do so in excess of the relevant speed limits. Therefore, he argued, that to drive the vehicle only within the relevant speed limits, would be likely to hinder its use for the purpose for which it was being used on the relevant occasion in accordance with the terms of what Mr Lawson called the "proviso".

[36]He submitted that where section 87 bites, it disapplies to speed limit. Thus, it matters not for the purposes of the section by how much the vehicle exceeds the speed limit if the police purpose is present. The proviso can only operate to oust the statutory exemption if the speed limit could not be exceeded by as little as one mile per hour.

[37]It is in the light of those submissions and those observations that I turn to my findings on the questions posed for us.

[38]Question 1: was the district judge correct in law in taking into account the driving skills of PC Milton when considering whether the driving was dangerous; does the Road Traffic Act allow for such a subjective interpretation?

[39]On the face of the Case Stated, the district judge has directed himself correctly on the test for dangerous driving itself. In the passage where he deals with the rival contentions he sets out the relevant provisions of the Road Traffic Act and the case law. When he summarises his conclusions, he finds that the manner of the respondents' driving did not fall below, let alone far below, that to be expected of a competent and careful driver. It would not have been obvious to a competent and careful driver that driving in the way driven by the respondent would be dangerous. He appears, therefore, to have the appropriate, wholly objective test in mind.

[40]However, when it comes to the effect of section 2A(3), at paragraph 8, page 6, he first cites the question posed which, I emphasise , includes the words "does the Road Traffic Act allow for such a subjective interpretation". He then says:

"The criteria under section 2A was considered using the objective test. The concept of the careful driver as an objective observer places the question of what constitutes dangerous driving within the province of the tribunal of fact. The words in 5(a) were commented upon because Section 2A(3) states 'regard shall be had not only to the circumstances of which he could be expected to be aware, but also to any circumstances shown to have been within the knowledge of the accuses'. It was right and proper for the court to consider the matters referred to. According to Stone's Justice Manual a footnote to Road Traffic Act 1988 Section 2A states 'more might be expected of a professional driver than an ordinary driver'. The topography of the road was a matter 'within the knowledge of the accused'. This was the rationale behind this comment. I would also add that the comments made and referred to in paragraph (i) above played an insignificant part in my decision-making in view of the overwhelming evidence as referred to in the facts found."

[41]It is quite clear, therefore, that the district judge was aware that the Crown had asserted that he had allowed for a subjective interpretation of the test for dangerous driving within the terms of the Road Traffic Act. His only response, as it seems to me, is to say, "It was right and proper for the court to consider the matters referred to". He did not purport to find, as Mr McGuiness argued he was entitled to do, that the respondent's knowledge of his driving skills could be imputed to the independent by-stander. He appears to have accepted that he has taken into account in the respondent's favour the respondent's own knowledge of his own driving skills. In so far as this seems to import a subjective element in the test of dangerous driving to be implied, both parties agreed that this is wrong in law. It matters not whether the respondent intended to drive dangerously, or believed that he could drive at grossly excessive speeds without causing danger to others because of his advanced driving skills. I repeat that the test is, what is the standard judged objectively and what would have been obvious to the independent by-stander?

[42]As to whether the district judge would have been entitled to impute knowledge of the respondent's driving skills to the independent by-stander on the basis of the arguments advanced before us, I can form no concluded view. Had this issue been at the heart of the case, I would have called for further and more detailed submissions. Only one authority was brought to our attention own, namely Woodward. We were not referred to the footnote in Stone's Justices Manual, upon which the district judge placed reliance, to the effect that more might be expected of a professional driver. I should like to know more about the basis for that assertion.

[43]On the basis of the very limited argument before us, my preliminary view would be to follow and adopt Mr Lawson's submissions, that Woodward was a decision which turned on its own facts. Lord Taylor CJ, in giving judgment of the court, referred at page 137B, specifically to subsection (2) of 2A which provided that a person drives dangerously if it would be obvious to a competent and careful driver that driving the vehicle in its current state would be dangerous. He observed that it would be strange if Parliament had intended to make driving a vehicle in a dangerously defective state an offence under the section, but not driving when the driver himself is in a dangerously defective state due to drink. Plainly there, the consumption of alcohol may in itself create an additional potential hazard.

[44]That decision is based very firmly on Parliament's intention. Initially, I found Mr McGuiness' argument attractive that if evidence of incapacity is relevant to the independent by-stander test on a charge of dangerous driving, then so should evidence of excellent capacity. At one stage during argument Mr Lawson appeared to concede this. However, I also can see considerable force in the argument that Parliament did not intend to open the floodgates, as Mr Lawson described it, to the admission of evidence as to an accused's driving skills in every case of driving. As I indicated, the question does not arise on the Case as stated to us and there the matter must rest as far as I am concerned.

[45]I would rephrase and answer Question 1 as follows: in so far as the district judge has imported a subjective element into the test of dangerous driving to be applied, he was wrong in law to do so.

[46]Question 2: whether or not the district judge has failed to take into account relevant matters or has taken into account irrelevant matters?

[47]I confess I have not found this an easy task, given the inadequacies of the Case Stated, a substantial proportion of which deals with the reasons for the respondent's driving as he did, and the West Mercia Constabulary's policy. I fear that this issue has loomed so large in the course of argument, that it may have deflected the district judge from the task in hand which was to consider, first and foremost, whether or not he was satisfied that the respondent on the occasion alleged had been driving dangerously. The question of whether or not the respondent was driving legitimately for police purposes only arose for consideration once and if the district judge acquitted him of the charge of dangerous driving.

[48]On the charge of dangerous driving, the only findings of fact relevant to that issue appear to be that the weather was fine, visibility was good and the roads were more or less deserted. There was no evidence that any other road user had in fact been in danger. The district judge does not make reference to what, in my view, was highly significant evidence, namely the video recording of the driving. He merely rehearses certain defence criticisms of it as to whether or not the visibility would have been poor in certain parts as the Crown alleged.

[49]Apart from saying the visibility was good, he does not state what he has found as a result of watching the driving as recorded. He does not consider the nature of the road concerned. I am not suggesting that he was obliged to do so in minute detail, but, in my view, a consideration of the nature of the roads in broad terms might have been helpful. The only reference to the topography was to say that the respondent was familiar with it. He makes no attempt to describe the individual stretches of road along which the respondent drove and compare them with the speeds recorded.

[50]The district judge draws no distinction, as far as I can ascertain, between driving at 150 miles per hour on a virtually deserted motorway and driving at 90 miles per hour in a built-up area. He appears to ignore the potential hazards identified and relied upon by the Crown along those various stretches road; for example road junctions, the time it would have taken the respondent to stop in an emergency at these speeds and the fact that the respondent could give no warning of his approach. The only reference the district judge makes to the fact that the respondent was driving at these speeds without giving any warning to other road users, was to comment that the respondent was not permitted to use sirens or lights save in an emergency.

[51]If I were the tribunal of fact in a case of this kind, I would consider it a matter that had to be dealt with and was particularly significant. The fact that the respondent, for whatever reason, was driving at speeds at this level, giving other road users no warning of his approach, is what distinguishes, in my view, this case from the police officer responding to an emergency call. Thus, I consider it a failing on the part of the district judge, with all respect to him, not to have taken into account the effect upon other road users of somebody coming up behind them or across their path at speeds of this kind and with no warning.

[52]Thus, I would consider relevant the fact that the respondent was honing his driving skills, but not in the way Mr McGuiness hoped I would. It was because he was honing his driving skills that he could not give other road users any warning. The district judge has failed to take into account what might have happened if one of the drivers on the motorway, which the respondent accepted were there, had decided to pull out to overtake a slow moving lorry, or if a driver in an urban street had decided to pull out of the junction. They would have been taken completely by surprise. At the grossly excessive speeds involved here, there would have been little or no margin for error on the part of the respondent.

[53]Driving at these speeds on public roads without any warning in these conditions, however good and however skilled the driver, amounted to a prima facie case of dangerous driving. No-one has suggested otherwise. Yet, having failed, in my view, to conduct an appropriate review of the facts of this case himself, the district judge refers to the opinions of others. On page 7 at 8(2), in commenting on the question, "Was the district judge correct in law in accepting that honing advanced driving skills and/or the discretion so to do amounted in law to a defence to the charge of dangerous driving?", he said at:

"In deciding whether or not the defendant was guilty/not guilty of dangerous driving, I applied the test as set out in the Road Traffic Act 1988. I found that the manner of his driving did not fall below, let alone far below, that to be expected of a competent and careful driver. This was confirmed by many witnesses. No witness, many of whom were advance police drivers, including the prosecution expert, stated that the defendant's driving was dangerous. No witness criticised the manner or standard of the defendant's driving."

[54]Put simply, the opinion of witnesses as to whether or not the respondent was driving dangerously was inadmissible and should have played no part in the district judge's deliberations whatsoever, however experienced a driver the witness may be.

[55]I am satisfied from the terms of the Case Stated, as it appears to me, that the district judge has failed to take properly into account relevant matters and he has placed too great a reliance on irrelevant matters in deciding to acquit the respondent of dangerous driving. Thus, despite the terms of Question 2, which I consider unhelpful, I would allow the appeal on that basis.

[56]I decline to find, as Mr Lawson invited me to do, that if an accused drives at speeds twice the limit allowed, he must be convicted as a matter of law of dangerous driving. That would mean that any driver of an emergency vehicle, driving at twice the speed limit, whatever the road conditions, however much warning was given to other road users, would be guilty of dangerous driving per se. That cannot be right.

[57]In my judgment, having borne in mind the observations of other courts in other jurisdictions which were helpful although not binding, speed alone is not sufficient to found a conviction for dangerous driving. It has to be a question of speed in the context of all circumstances. It is not for this court to attempt to lay down hard and fast rules that driving at X-times any particular speed limit is so excessive as to amount to dangerous driving per se. That would be an impossible and inappropriate task.

[58]In the circumstances, the district judge's interpretation of the expression "police purposes" in section 87 does not fall for consideration and anything I say on the subject may be obiter dicta. If it assists the parties, however, I will say this. It was incumbent, in my view, upon the district judge to consider the exemption in relation to each of the offences charged separately. This he did not do, he merely makes a blanket finding at paragraph 9, page 4:

"In practising his driving the defendant was driving for police purposes."

[59]In my view, the same considerations may not apply to driving at 90 miles per hour in a built-up area, as apply to driving at 150 miles per hour on a motorway. It will, of course, depend on the instructions given and the findings of fact made. Familiarising oneself with a vehicle and honing one's skills does not necessarily involve driving at 90 miles per hour through residential streets, if that is what they were. Nor does it necessarily involve driving at 150 miles per hour. Thus, as it seems to me, the judge is obliged to make his findings of fact and then relate them to the individual offence charged and found proved.

[60]I decline to find, as Mr Lawson appeared to invite us to do, that a police officer who drives at excessive speeds as are involved here could not possibly come within the exemption, save when he is in hot pursuit of a dangerous criminal. It is a matter of fact and degree for the tribunal of fact.

[61]I hope I have made it plain in the course of this judgment that I consider questions 2 and 3 to be misconceived. I may not be alone; Mr Lawson appears to have accepted that he would have preferred the questions to be redrafted. I do not, therefore, intend to answer them in any further way.

[62]Before leaving this case, I would like to add this. In my opinion this is an unfortunate situation for all concerned, including the respondent who has had to wait months for this matter to be resolved. I am conscious of the need to ensure that police officers are properly trained for their own safety and for the safety of the public. In my view, if the position is, as found by the district judge here, there should be a better way. I would invite the Chief Constable of West Mercia Constabulary, and any other Chief Constable whose force may be affected, to instigate a review, if they have not already done so, as to whether or not the situation is as the district judge found here.

[63]I would ask them to consider whether advanced police drivers are encouraged to hone their skills in unfamiliar vehicles at grossly excessive speeds on public roads both urban and motorway.

[64]It may be, I know not because I have not heard the evidence on the subject, that no police force does in fact encourage its officers to drive in this way other than, as the district judge found, the West Mercia Constabulary. There may have been a misunderstanding somewhere along the line about when and how skills should be honed. I am sure everyone concerned would wish to remove any possibility of this situation arising again.

[65]For those reasons, I would allow the Crown's appeal to this court.

MR JUSTICE OWEN: I agree and have nothing to add.

LADY JUSTICE HALLETT: Mr Lawson, what do you invite us to do?

[68]MR LAWSON: I invite the court to remit the matter to the Magistrates' Court to be redetermined before a different tribunal.

LADY JUSTICE HALLETT: Mr McGuiness?

[70]MR MCGUINESS: It is a matter within the court's discretion as to whether the case is actually remitted because everybody will be able to read the judgment. It is apparent from the judgment which has been delivered that in many ways the respondent is not at fault for what has happened and not at fault for the delay. I urge the court to consider whether, bearing in mind it has an extremely broad discretion, justice requires that this particular case to be remitted.

LADY JUSTICE HALLETT: Any further submissions?

[72]MR LAWSON: No, thank you. (Short pause)

LADY JUSTICE HALLETT: With some hesitation on my part, on the basis of the delay and the fact that the alleged offences were in 2003, my Lord and I have decided that we are driven to the conclusion that it must go back. It will be remitted to the Ludlow Magistrates' Court for a rehearing by a differently constituted tribunal.

[74]MR LAWSON: I have no other application. I have considered the issue of costs. I do not think it appropriate to seek them.

LADY JUSTICE HALLETT: I think you would have had a hard task persuading me if you had thought it appropriate to make an application.

[76]MR LAWSON: Could I add by way of information, the footnote in Stones' to which you referred floats in isolation. What the basis for that is we could not find out.

LADY JUSTICE HALLETT: There are decisions in Woodward referred to like McBride. I wondered whether there was something in any of those decisions that assisted.

[78]MR LAWSON: The only thing I can think of was that it may have got translated from some observations made in sentencing cases in relation to dangerous driving where so-called professional drivers are said to have a greater or more onerous obligation than amateurs. I do not know where otherwise that comment came from.