Director of Public Prosecutions v D [2006] EWHC 314 (Admin)

Case No CO/9569/2005[2006] EWHC 314 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Venue Royal Courts of JusticeDate Tuesday, 21 February 2006
Strand
London WC2
B E F O R E:
LORD JUSTICE RICHARDS
MR JUSTICE DAVID CLARKE
Between
DIRECTOR OF PUBLIC PROSECUTIONSClaimant-v-
Between
DDefendant
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 MICHAEL TOMLINSON (instructed by CPS Bournemouth) appeared for CLAIMANT for THE DEFENDANT DID NOT APPEAR AND WAS NOT REPRESENTED
J U D G M E N T
[1]MR JUSTICE DAVID CLARKE: The respondent to this appeal is a young man of 17, and no report of the proceedings or of this judgment should disclose his identity or any information which may lead to his identification.[2]This is an appeal by the Director of Public Prosecutions against a decision of District Judge (Magistrates' Courts) House, sitting at the Bridport Youth Court on 19 May last year. He dismissed an information laid against the respondent following a submission of no case to answer. The information alleged an offence contrary to section 22A(1) of the Road Traffic Act 1988, to which I shall return shortly.[3]The facts giving rise to this prosecution were these. A yellow metal road sign, depicted in photograph 3, was placed by the respondent and another young man in the roadway in the southbound carriageway of the A354, Easton Lane, Portland in Dorset. It was placed during the hours of darkness, some time around midnight, occupying a substantial proportion of the southbound lane of that single carriageway road. The sign was placed some 2 to 2½ feet out from the nearside verge of the road. It faced north in the direction of the traffic using that lane. The sign measured some 4 feet by 3 feet. It was a sign which in fact read "Site Closed", by reference to the Easton Lane Household Recycling Centre, and there was further information set out in the sign. The respondent and his friend had nothing to do with the sign in the sense that they had no authority to handle it or to place it anywhere. They did this as a totally unauthorised act, and there was indeed evidence before the District Judge of other signs in the neighbourhood having been moved from their proper positions.[4]It was never in issue but that the respondent, and indeed his friend, were responsible for the placing of the sign on the road. On that night, a car was driven southwards along the road by a lady who had another lady as a passenger in the car. The car crashed, coming to rest in contact with a tree on the offside of the carriageway as they drove south, some distance beyond the position of the sign. Both ladies died in that accident. The vehicle had no pre-existing defects which could have contributed to the accident. The road is subject to a 50 mile per hour speed limit.[5]There was evidence from three motorists, two of whom had driven down the road before the accident, to the effect that they had no difficulty in braking in time or steering to their right to pass the sign. It did not present them with any danger whatsoever. Likewise, a Mr Dowley, who had seen the deceased's car earlier and who witnessed part of the collision, though he did not see how the driver actually lost control, also had no difficulty in negotiating that sign.[6]A police accident investigator concluded that the car driven by the deceased had been driven at a substantial speed, substantially greater than the speed limit. It had been driven too closely behind Mr Dowley according to his evidence. There is a reference in the case stated to the car being driven too closely behind another car in front, but that is not a reference, as I now understand it, to any evidence that there was a car directly in front of the deceased at the time that the collision occurred. It appears to be a reference to her following Mr Dowley's car too closely a little earlier.[7]The District Judge heard evidence that the sign could be seen from a distance of at least 150 metres, though whether it was actually on the carriageway or not could not be determined until somewhat closer, some 70 to 100 metres. At the speed limit of 50 miles per hour the braking distance was 53 metres. Even at 70 miles per hour the braking distance was some 96 metres -- a braking distance still well within the distance from which the sign could be seen.[8]The car came to rest in collision with the tree, as I have indicated, some distance south of where the sign was placed. There were tyre marks on the road surface which indicated to the police accident investigator that the car had spun clockwise, which he considered was consistent with there having been a sudden and violent steering movement to the right. That evidence would have founded an argument that the presence of the sign on the carriageway played a part in causing the accident. But Mr Tomlinson makes clear, and it is right in law, that it is not necessary for the prosecution to prove any such causative link in order to prove the commission of this offence.[9]I return to the section of the Act, section 22A(1). The offence initially charged against the respondent was an offence of interfering with traffic equipment contrary to section 22A(1)(c). The full offence charged was that he intentionally and without lawful authority or reasonable excuse interfered with traffic equipment in such circumstances as it would be obvious to a reasonable person that to do so would be dangerous. As part of the submission of no case to answer, it was submitted that the sign did not fall within the definition of traffic equipment as defined in sub-section (3).

(a) under which:

"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... in such circumstances that it would be obvious to a reasonable person that to do so would be dangerous."
It seems to me that he was right in that decision and no point is capable of being taken in relation to that. But the principal point taken by way of submission of no case to answer was that the respondent's act in placing the sign in that position was not an act done "in such circumstances that it would be obvious to a reasonable person that to do so would be dangerous". In the case stated, the District Judge summarised the rival arguments on that issue. He summarised the submission made on behalf of the respondent as follows: "... the prosecution must prove that the actions of the respondent were such that it would be obvious to a reasonable person that the actions were dangerous and this must be in the context of a reasonable road user. The dangerousness must relate to injury to a person or serious damage to property, and must be a real and significant danger, not a fanciful possibility. The driving of the deceased was far outside that of a prudent, careful driver -- all other drivers negotiated the offending sign without risk of any sort whatsoever.[10]The response of that on behalf of the prosecution was, as summarised by the district judge:
"The deceased driver's driving had been described as being careless prior to the part of the road where this accident occurred. Although other drivers had got around this sign in the road quite safely and no causative link was being made between the sign and the subsequent fatal accident, there was a case to answer."
[11]The District Judge upheld the submission. He records in the case stated that he held as follows:
"On considering whether the circumstances in this case were such that it would be obvious to a reasonable person that placing the sign in the road would be dangerous, it was proper to consider whether it would be obvious to a reasonable, prudent, straightforward, careful driver who drives at the correct speed, that this was dangerous. Considering the size of the road, the width of the road, the sight lines and the correct speed limit, I could not be satisfied that it would have been obvious to a reasonable person that causing the sign to be in the road would be dangerous. The word 'obvious' in the charge was a strong word, to be given its normal English interpretation in deciding whether or not this charge was made out. In considering whether the act was dangerous, the knowledge of the respondent and what he knew of the area and was gleaned from him in interview had to be taken into account. Properly directing himself to the legal test to be adopted, there was no possibility that I might convict the respondent. And accordingly I upheld the submission of no case to answer and dismiss the information."
[12]The questions for this court are then set out:
"(a) Was my decision that it would not be obvious to a reasonable person that placing the sign in the road was dangerous, a decision which no reasonable bench of justices could have reached on the facts found? (b) Was I wrong in law in determining whether it would be obvious to a reasonable person that placing the sign in the road was dangerous for the purposes of section 22A(1) of the Road Traffic Act 1988, to consider whether danger would be obvious to a reasonable, prudent, straightforward, careful driver driving at the correct speed?"
[13]Counsel for the Director has drawn the court's attention to sub-section (2) of section 22A, which assists in the interpretation of the word "dangerous" for the purposes of this section. It reads:
"In sub-section (1) above, 'dangerous' refers to danger either of injury to any person while on or near a road, or of serious damage to property on or near a road; and in determining for the purposes of that sub-section what would be obvious to a reasonable person 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."
[14]Counsel submits that the placing of this sign on the carriageway, like any other obstruction, is self-evidently dangerous. It will cause motorists to brake or alter course, travelling onto the wrong side of the road in order to pass it, giving rise to a risk of road accident. Mr Tomlinson particularly points out the fact that the reverse of the sign, which would be facing towards northbound traffic, was not reflective, so that any northbound car which was overtaking other traffic in that direction would not have the benefit of the reflective surface to warn him of its presence. Clearly an authorised road sign would never have been placed in the way that this sign was, especially in the hours of darkness. We are supplied with the Code of Practice for the authorised placing of road signs, particularly the requirement of warning signs to warn of obstructions such as roadworks ahead. Of course, this sign had not been placed in conformity with any such Code of Practice.[15]The respondent has not been represented before us. Unfortunately, his solicitors have been unable to make contact with him. They believe that he and his family are now living overseas and it has thus not been possible for a representation order to be granted for the other side of the argument to be presented before us. But I have carefully considered all the matters that were submitted to the District Judge and considered whether there is any other basis upon which argument might have been addressed to us in opposition to this appeal. I have taken full account of all argument that might have been possible in that respect.[16]I am of the opinion that the District Judge was wrong in this case to uphold the submission of no case to answer. True it is that other motorists driving with due care and at reasonable speeds were able to negotiate this obstruction without difficulty. As the District Judge held, even at 70 miles per hour the sign should have been visible to a motorist over a sufficient distance to brake in time or to steer past it. But it does not seem to me to follow that the act of placing this sign in this position on this road could not be an offence under this section so that the District Judge was justified in finding no case to answer.[17]The reasonable person does not expect, and cannot be taken to expect, that all motorists will drive carefully and well. The reasonable person is aware, sadly, that many motorists do not. The reasonable person should, in my judgment, realise that an obstruction of this sort could play a part in causing an accident, notwithstanding that the primary cause of such accident would be bad driving on the part of a motorist, whether in the form of excessive speed or failure to keep a proper lookout or following other traffic too closely or a combination of such factors. I would hold that the District Judge should not have dismissed the case prematurely on this ground.[18]He approached the question as being one of whether it would be obvious to a reasonable and prudent driver, who drives at the correct speed, that the presence and the position of the sign was dangerous; that is to say, whether it would be dangerous to him. No doubt, he had in mind the evidence of the witnesses in this case, to whom it did not present a danger and who said they had not been endangered by it. But, in my judgment, that was not the right approach. The question is whether a reasonable bystander would consider it to represent an obvious danger, whether that reasonable bystander be a motorist or not. The reasonable bystander would, in my judgment, be fully aware of the fact that not all drivers do drive carefully and well.[19]Mr Tomlinson refers us also to passages in the police interviews with the respondent, and takes the further point that the respondent himself acknowledged that what he had done was dangerous. I would not place weight on this consideration, having read the full exchanges relied on. The respondent was only 16 years of age. He was questioned by the officer with some persistence, though not in any way improperly. I have the feeling that his answers were, or may well have been, affected by hindsight in the light of the distressing aftermath of what had occurred. Looking at the interviews in the light of sub-section (2), I do not consider that there were any specific circumstances shown, either about the road or its usage, which were specific circumstances within the respondent's knowledge. However, for the reasons given, I would allow the Director's appeal and answer the questions posed to this court in the affirmative.[20]I would not myself regard it as appropriate to direct that this District Judge continue the hearing. We are asked to consider directing the court to convict, but I, for my part, would regard that as quite inappropriate where the case was brought to a premature halt at the end of the prosecution case. It could only be, in my judgment, a direction to continue the hearing. But in the light of the conclusion which he reached, I would prefer to remit the matter to the justices for a fresh trial before a fresh District Judge or bench of magistrates. I would allow the appeal accordingly.

LORD JUSTICE RICHARDS: I agree.

[22]Mr Tomlinson, I think technically you needed an extension of time, did you not? If you did, it is granted.[23]MR TOMLINSON: I am very grateful.

LORD JUSTICE RICHARDS: So there will be an extension of time. The appeal is allowed. The case is remitted to the Youth Court for re-hearing by a different District Judge or bench of justices in accordance with the judgment of this court.

[25]MR TOMLINSON: My Lords, I am obliged.

LORD JUSTICE RICHARDS: You are not seeking any order as to costs?

[27]MR TOMLINSON: I am not seeking any order, my Lord.

LORD JUSTICE RICHARDS: No order as to costs.