Milton v Crown Prosecution Service [2007] EWHC 532 (Admin)

[2007] EWHC 532 (Admin)

Case No C0/9802/2006

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT

Venue Royal Courts of Justice, Strand, London, WC2A 2LL

Date 16/03/2007

Before

LADY JUSTICE SMITH

MR JUSTICE GROSS

Between

Mark Scott MiltonClaimant

Crown Prosecution ServiceDefendant

John McGuinness QC & Alexandra Healy (instructed by O'Gorman & Co) for Claimant

Patrick Sullivan (instructed by The Crown Prosecution Service, West Mercia)

Hearing Hearing date: 6 March 2007

Judgment

Introduction

[1]This appeal is concerned with the question of if, in determining whether a driver has been guilty of driving dangerously contrary to Section 2 of the Road Traffic Act 1988 as amended by the Road Traffic Act 1991 (referred to hereafter as the RTA), it is permissible to take account of the driver’s personal driving skills. It is an appeal by way of case stated against the decision of District Judge Peter Wallis sitting at the Magistrates’ Court in Ludlow, in August 2006, when he convicted the appellant of dangerous driving. Notwithstanding the serious nature of that offence, the district judge gave the appellant an absolute discharge and found that there were special reasons why he should not be disqualified from driving.

The Factual Background

[2]The facts of the case are unusual and have given rise to prolonged litigation. On the evening of 4th December 2003, the appellant, PC Milton, who is a Grade I advanced police driver with the West Mercia Constabulary, came on duty to find that he had been assigned to drive an unmarked Vauxhall Vectra, with which he was unfamiliar. In accordance with the advice he had been given during his training as an advanced driver, he took the opportunity during his tour of duty to familiarize himself with the vehicle’s handling characteristics. In the early hours of the morning of 5th December, he drove on the M54 motorway at an average speed of 148 mph; he drove on the A5 trunk road at an average speed of 114 mph and he drove within a built up area at an average speed of over 60 mph. It goes without saying that all these average speeds were grossly in excess of the speed limits for the roads in question.

The Proceedings

[3]PC Milton was charged with dangerous driving and exceeding the speed limit. The case came before District Judge Morgan in April 2005. He acquitted the appellant of the speeding offences on the ground that the statutory defence under Section 87 of the Road Traffic Regulations Act 1987 was made out, in that the vehicle was being driven for police purposes. I need say no more about the speeding offences. DJ Morgan also acquitted PC Milton of dangerous driving. The DPP appealed to this court (Hallett LJ and Owen J) on case stated and, in February 2006, the appeal was allowed. The court held that DJ Morgan had misdirected himself in law. The dangerous driving charge was remitted to the Ludlow Magistrates Court and came on for rehearing before DJ Wallis.

[4]At the end of the hearing, DJ Wallis gave a detailed reasoned judgment in which he convicted the appellant of the charge.

The Statement of Case

[5]The statement of case closely reflects that reasoned judgment. Both are models of clarity. Having set out the background, the district judge explained that the evidence against PC Milton came almost entirely from an in-car video system which provided a forward view of the road ahead of the vehicle as well as an indication of its speed. The district judge was able to use this material to form his view as to the dangerousness of the appellant’s driving. He described what he saw on the video as follows:

“2(ii) There was unchallenged evidence, for example, of an average speed of 148 mph attained by the car driven by PC Milton at shortly after 0300 on the M54. The video record shows that during the course of the journey PC Milton overtook some other vehicles. The difference between the speed of those vehicles and that of PC Milton’s vehicle was great indeed, and no additional warning of his presence, other than his vehicle’s headlights was given. (iii) A little while later (at around 0309) PC Milton was recorded as travelling at an average speed of 114 mph along the A5 towards Telford. The road was a single carriageway and had a number of trees positioned close to it, particularly on its nearside. On the offside of the road there appeared to be a crash barrier, also positioned close to the road. In the event of the unexpected his ‘avoidance’ options given the nature of the road and its environs and the excessive speed at which he was travelling were severely limited. Additionally, there were junctions at various points on both sides of the road. At one point PC Milton’s vehicle approached a junction with a filter lane to the right and junctions to both left and right. Despite the ‘SLOW’ markings clearly visible on the road his vehicle passed through the junction at a very high speed, ‘straightening’ the road by crossing chevron markings indicating the filter lanes. (iv) A little later still (at around 0313) in St Georges Road and Wrekin Drive, despite clearly marked signs and road markings indicating a 30mph speed limit and despite the built-up nature of the environs, PC Milton registered an average speed of more than 60mph, and speeds well in excess of that were revealed by the video record.”

[6]Section 2 of the RTA makes it an offence to drive dangerously. Section 2A(1) of the RTA provides that a person is to be regarded as driving dangerously 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.”

[7]At that stage and without citing Section 2A(3), to which I will shortly come, the district judge observed that the test to be applied in determining whether the driving in question was dangerous was clearly objective in nature. He then referred, without more ado, to the White Paper (The Road User and the Law [CM 576]) which had preceded the 1991 amendment of the RTA 1988 to its present form. He observed, as indeed appeared to be the case, that the Government’s intention, as set out in the White Paper, was that the standard of driving should be judged in absolute terms, taking no account of factors such as inexperience, age or disability (though such factors would be relevant to sentence).

[8]The district judge emphasized that the test he must apply was wholly objective by reference to the case of R v Collins (Lezlie) [1997] RTR 439 in which the Court of Appeal (Criminal Division) had stressed that the test for dangerous driving under Section 2A(1) was an objective test. In that case, a Grade 1 advanced police driver had driven very fast in pursuit of a stolen car. He crossed a junction at high speed and collided with another vehicle causing two deaths. He gave evidence that he believed that the police were controlling traffic at that junction and that it was safe for him to cross it at speed. The Court of Appeal held that his belief about the safety of what he was doing was irrelevant to the issue of guilt because the test was an objective one.

[9]The district judge also referred to the judgment of Hallett LJ in the DPP v Milton

[2006] EWHC 242

, where she stressed that the test under Section 2A(1) was wholly objective. The court allowed the appeal against DJ Morgan’s decision to acquit because it appeared that the judge had taken into account PC Milton’s belief that it was safe for him to drive at high speed because he was extremely familiar with the roads. In effect, the judge had allowed a subjective consideration to enter into his thinking; that was an error of law. Thus, District Judge Wallis was quite clear that the test he had to apply was wholly objective.

[10]At paragraph 6(v) of the case, DJ Wallis turned to consider section 2A(3), which lies at the heart of this appeal. For the sake of completeness I propose to set out section 2A(2) as well as section 2A(3). “2A(2): A person is also to be regarded as driving dangerously for the purposes of Sections 1 (causing death by dangerous driving) and 2 (dangerous driving) above if it would be obvious to a competent and careful driver that driving the vehicle in its current state would be dangerous. 2A(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.”

[11]After setting out subsection (3), the district

judge continued:

“Section 2A(3) of the 1988 Act provides that in determining what would be expected of, or obvious to, a competent and careful driver in a particular case, regard should be had not only to the circumstances of which he (the mythical 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. Thus, for example, if a person decides to drive a vehicle which, whilst not obviously in a dangerous condition, is nevertheless known to him to possess a dangerous defect, he runs the risk of being convicted on the basis of that knowledge. Similarly, the driving of a vehicle where it is the driver who is in a dangerously defective state may amount to dangerous driving on the authority of R v Marison [1997] RTR 457 (driver prone to hypoglycaemic attacks) and R v Woodward [1995] RTR 130 (blood alcohol well in excess of permitted limit). As to whether on the other side of the coin, as it were, a tribunal would be entitled to impute knowledge of a driver’s exceptional driving skills to the independent bystander, I was not greatly assisted by any judicial authority, although I was entitled, I believe, to derive some assistance in interpreting the statute from the government of the day’s intention (as clearly expressed in the White Paper mentioned above) that the standard of driving should be judged in absolute terms. On that basis, exceptional ability is no more relevant than lack of ability. Hallett J (sic) in Milton formed no concluded view (para 42) on that particular issue, though she saw considerable force in the argument that Parliament did not intend to open the floodgates to the admission of evidence as to an accused’s driving skills in every case of dangerous driving (para 44). That is a view with which, with respect, I concurred, and I was fortified in that view in the light of my comments above concerning the intention behind the legislation. In any event the finding (at para 45) of Hallett J (sic) that, in so far as my predecessor judge by taking into account in the appellant’s favour the appellant’s own knowledge of his own driving skills imported a subjective element into the test of dangerous driving to be applied, he was wrong in law so to do, was binding upon me.”

[12]The district judge concluded that, notwithstanding the terms of Section 2A(3) (and notwithstanding the authorities of Marison and Woodward) the test for dangerous driving was objective in absolute terms. He therefore went on to say at paragraph 6(vi) of the case that he approached the evidence ‘from the perspective of the mythical competent and careful driver, unburdened by any knowledge of the particular ability or lack of ability of the appellant’. He also reminded himself that speed alone is not sufficient to found a conviction for dangerous driving; the speed had to be considered in the context of all the circumstances. The district judge then reviewed the evidence and, with complete loyalty to his own self-direction, made no allowance for the fact that PC Milton was a Grade 1 advanced police driver. He considered that the driving at all three stages (on the M54, on the A5 and in the built up area) fell far below the standard to be expected of a competent and careful driver and that it would have been obvious to a competent and careful driver that what PC Milton had done was dangerous.

[13]The request for a statement of case focused on the effect of Section 2A(3) and whether the district judge should have had regard to PC Milton’s status as a Grade 1 advanced police driver as being ‘a circumstance within the knowledge of the accused’. Also, complaint was made that the district judge had directed himself by reference to the Government White Paper. This had not been referred to by the parties during the hearing and they had not had the opportunity to address him on its contents. The district judge posed 3 questions for this court. These were:

“(1) Was I correct in law in determining in respect of the charge of dangerous driving that the specialised advanced driver training and tested skills of the appellant were not circumstances to which I was required to have regard in compliance with the provisions of S.2A(3) of the Road Traffic Act 1988? (2) Was I correct in law in relying upon a generalised reference to a White Paper to support my adoption of a narrower interpretation of S.2A(3) of the 1988 Act than that submitted by the appellant to be borne by the words of the statute? (3) If the answer to question 2 is in the affirmative, was I correct in law in relying upon such material notwithstanding that no specific reference had been made to it by either advocate during the trial and I had not indicated that I was minded to have regard to it nor had I invited submissions as to the extent if at all to which I should do so?”

[14]Before turning to deal with the arguments advanced on the meaning of section 2A(3) and the use that the district judge made of the White Paper, I should say that he accepted that he should have mentioned the White Paper to counsel at the hearing. However, he pointed out that he was only citing from Chapter 5 of the 22nd edition of Wilkinson’s Road Traffic Offences, in particular at paragraphs 5.03 and 5.05. As I understand the position, this text book is much relied on by magistrates hearing road traffic offences and is generally assumed to be correct. District Judge Wallis is General Editor of Wilkinson.

Submissions before this Court

[15]Mr McGuinness QC for the appellant submitted that PC Milton’s special skills, inherent in his status as a Grade 1 advanced police driver, should be considered as factors to which the court should have regard when assessing the dangerousness of his driving. This factor was a circumstance known to the accused and fell squarely within section 2A(3). Having regard to a matter such as this did not mean that the court was not applying an objective test. It was important to distinguish between ascertainable factors personal to the accused driver (which could and should be taken into account under section 2A(3)) and subjective matters such as evidence that the driver believed that it was safe for him to drive as he did on account of, for example, his knowledge of the road or his belief that the police had a junction under control. Taking account of that type of subjective matter was not permitted.

[16]Mr McGuinness pointed out that, in Marison, the court had had regard to the fact that the driver was a diabetic and was at risk of having a hypoglycaemic attack. In Woodward, the court had had regard to the fact that the driver had been drinking. These were both circumstances which were within the knowledge of the accused although they would not be matters of which the hypothetical competent and careful driver who had to assess the quality of the driving would be aware. Knowledge of them was to be imputed to the decision maker, who had to have regard to them. There was, he submitted, no difference between having regard to the driver’s alcohol consumption and having regard to his exceptional driving skills. Just because one circumstance was favourable to the defendant and the other was adverse to him could not make a difference as to whether they fell within section 2A(3). There was nothing in the subsection that limited the type of circumstances to matters adverse to the driver, factors which made the driving more rather than less dangerous.

[17]Mr McGuinness also submitted that the district judge had been wrong to rely on the White Paper as an aid to the construction of Section 2A. He accepted that, when discussing the proposals for a new offence of dangerous driving, the White Paper did indeed say, at paragraph 2.7 that:

“The standard of driving will be judged in absolute terms, taking no account of factors such as inexperience, age or disability (although such factors are relevant in sentencing).”

[18]It is clear, he said, that the Government wanted to get away from the subjective test which had been applied since 1977 to offences of reckless driving and which had caused so many difficulties for magistrates and juries. It is clear from the White Paper that the Government intended the test for the new offence of dangerous driving to be not merely objective but objective to the exclusion of all individual factors. However, what a government proposes does not always become the law. As Mr McGuinness pointed out to us and as Mr Sullivan for the DPP accepted, the White Paper contains no reference to anything like section 2A(3). Yet Parliament enacted that subsection. It had not been presaged by the White Paper. Whether the Government had second thoughts before the Bill was drafted or whether the Bill was amended on its way through Parliament, we do not know. But it is clear that the Act as passed is different from what the Government intended at the time of the White Paper.

[19]Mr McGuinness was able to demonstrate to us where the idea behind Section 2A(3) had probably come from. The Road Traffic Law Review Report (known as the North Report) 1988 HMSO was the forerunner of the White Paper. This report recommended the creation of an offence of ‘very bad driving’. In discussing the elements of this offence the report stated first that the test should be fully objective. The court would be looking at the quality of driving (was it really bad?) and not at what the driver himself thought about its possible outcome. Second, the offence was to contain a statement of the standard of ‘badness’. The test should be whether the driving fell well below the standard of driving to be expected to the competent and careful driver. This was to avoid catching cases of trivial incompetence. Third, it was said that the court should be directed by the definition to consider the quality of the driving directly in relation to the particular circumstances in which it occurred. How would the competent and careful driver have behaved in these circumstances? It was said that the court should have to consider whether even a competent and careful driver would have driven in this way. This would enable the driver to give an explanation as to why he had driven as he had. Examples were suggested. The driver might have been responding to an emergency or he might have encountered an unusual and unexpected road condition. In such circumstances, the driver might escape conviction. It seems to me that the North Report there had in mind that the court should take into account circumstances relating to the event rather than circumstances relating to the driver.

[20]Within the White Paper, there was an indication that circumstances relating to the condition of the driver were to be taken into account by an amendment of the provisions relating to fitness to drive. Under the law as it was at that time, a driver committed an offence if he drove while unfit through drink or drugs. The White Paper proposed, at paragraphs 2.30 and 2.31, that the offence of driving while unfit should be extended to embrace unfitness of any kind, physical or mental. It would cover unfitness due to such things as drink, drugs, substance abuse, fatigue or somnolence. However, this amendment of Section 4 of the RTA was not effected. Section 4 remains limited to unfitness due to drink or drugs. Mr McGuinness submitted that it was a combination of the North Report proposals that ‘circumstances’ should be taken into account and a decision not to amend Section 4 of the RTA which resulted in the passage of section 2A(3) in its present form. It seems to me that he is probably right and Mr Sullivan did not suggest to the contrary.

[21]Mr McGuinness submitted that this investigation into the policy background of Section 2A(3) serves to underline what is in any event clear from the words of the section itself, that regard must be had to circumstances known to the accused. The courts have interpreted ‘circumstances’ as extending to personal or individual circumstances (such as diabetes) as well as the kind of circumstances relating to events, such as responding to an emergency, as was ennvisaged in the North Report.

[22]Mr Sullivan did not dispute Mr McGuinness’s submissions about the origin of section 2A(3). His submission was that the circumstances which could be taken into account were limited to those that were adverse to the accused driver. The court must take account of the fact that the driver was under the influence of drink or was liable to have a hypoglycaemic attack but could not take into account the fact that he was a Grade 1 advanced driver.

[23]Mr Sullivan submitted that if drivers were permitted to give evidence about their driving ability or the prosecution were permitted to adduce evidence as to the driver’s lack of ability and the court was obliged to have regard to such matters, the floodgates would open. Such cases would become much more complex and time consuming. Moreover the intention of Parliament that the test for dangerous driving should be objective would be frustrated.

Discussion

[24]In my view, this case well illustrates the danger of referring to background material such as a White Paper as an aid to construction in circumstances in which that ought not to be done. When construing a statute, the court should first examine the words themselves. If the meaning is clear, there is no need to delve into the policy background. If the court is uncertain as to the meaning, it may well be helpful to consider background material in order to discover the ‘mischief’ at which the change in the law was aimed. However, this case illustrates the dangers of so doing. It is clear to me that the district judge was led into error by his reference to the White Paper. He construed section 2A(3) by reference to the policy set out in the White Paper rather than by reference to the words of the section itself. It is clear to me that section 2A(3) is not consistent with the supposed policy that the dangerousness of the driving is to be assessed in absolute terms. Parliament or the Government withdrew from that absolute position. I know not why. But, by enacting Section 2A(3), Parliament directed the court to have regard to any circumstances shown to have been within the knowledge of the accused.

[25]Taking circumstances known to the accused into account does not, in my view, detract from the objectivity of the test. Subjective considerations, such as what the accused driver thought about the situation (whether on the road or relating to his journey or his personal circumstances) are irrelevant. But in so far as a circumstance relevant to the issue of dangerousness is capable of being established as being within the knowledge of the accused, the fact-finder must have regard to it.

[26]It is clear that there is no suggestion in the words of section 2A(3) that only adverse circumstances should be taken into account. Nor does there seem to me to be any basis on which one could infer that that was the intention of Parliament. Consumption of alcohol would be known to the accused; it must be taken into account. Liability to suffer a hypoglycaemic attack, if known to the accused, must be taken into account. The fact that the accused had been driving without a break for 12 hours and was exhausted or somnolent is plainly a matter to which regard must be had, although not yet covered by authority. Those are matters individual to the driver. Both are to be taken into account against the interest of the accused; they are adverse factors. However, it seems to me that the fact that the accused was responding to an emergency might well be taken into account in his favour. Indeed that was suggested in the North Report. Also, the fact that the driver was faced with a sudden and unexpected brake failure ought to be taken into account in his favour by the hypothetical fact finder assessing the dangerousness of the driving.

[27]I cannot accept that section 2A(3) requires that a circumstance relating to a characteristic of the individual accused driver should be taken into account if it is unfavourable to him but cannot be taken into account if it is favourable. In my view, the favourability of the circumstance is irrelevant. Accordingly, it seems to me that the fact that the driver is a Grade 1 advanced police driver is a circumstance to which regard must be had, pursuant to section 2A(3). The weight to be attached to such a circumstance is entirely a matter for the fact finder. In the instant case, the fact finder might conclude that the driving was thoroughly dangerous regardless of the skill of the individual driver. On the other hand, he might conclude that, whereas for a driver of ordinary skill, such driving would have been dangerous, for a man of exceptional skill it was not. Such a thought process does not offend against the requirement that the test for dangerous driving is objective. It simply refines the objective test by reference to existing circumstances.

[28]I am unimpressed by the suggestion that to have regard to established driving ability would open any flood gates. Mr Sullivan argued that, if exceptional driving skills are to be relevant to the issue of dangerousness, so will inexperience or previously demonstrated incompetence. He postulated that it would be open to the prosecution to demonstrate that the accused had failed his driving test on a number of occasions and at the time of the alleged offence had only recently passed it. It seems to me that there will not be cases in which the driver’s personal skill or lack of it will be capable of making a difference to the objective assessment of the dangerousness of the driving in question. It will, in my view, only be the extremes of ‘special skill’ and ‘almost complete lack of experience’ that will be such as could affect the mind of the decision maker. The mere fact that a driver has driven for 30 years without an accident will not be relevant; nor will evidence that a driver does not drive frequently. If, where the circumstance is such as could properly affect the mind of the decision maker, for better or worse, then so be it. Section 2A(3) appears to me to require that regard should be had to such circumstances.

[29]In any event, it is my experience that, in virtually every case of allegedly dangerous or careless driving, the accused advances evidence of his good driving record if he has one because it may well be relevant to his credibility when he challenges the eye witness account of what he is alleged to have done. Thus, I do not think that allowing an advanced driver (whether police or civilian) to adduce evidence of his established skills will significantly extend the ambit of evidence received.

Conclusion and Order

[30]It follows that for the reasons I have given, I would allow this appeal. The district judge misdirected himself in concluding that the appellant’s unusual driving skills were irrelevant to the issue of the dangerousness of his driving on this occasion.

[31]What should now happen? Mr McGuinness submitted that, as the appellant had already faced trial on two occasions, his conviction should be quashed and no further steps should be taken. Mr Sullivan submitted that the matter should be remitted to District Judge Wallis for reconsideration in the light of this judgment.

[32]It seems to me that this matter is of considerable importance to both sides to the dispute. The DPP regarded the matter as of sufficient importance to appeal against the acquittal. PC Milton regarded the matter as sufficiently important to appeal his conviction even though he was given an absolute discharge. I think that it is desirable that the issue should be determined, whether PC Milton’s unusual driving skills were such as to make a crucial difference to the dangerousness of his driving. I would not be prepared to send this case back for a complete rehearing for a third time. But it seems to me that District Judge Wallis could quite well give this matter further consideration in the light of the judgment of this court. The facts are not in dispute. It may be necessary for him to hear evidence as to what the appellant’s status as a Grade 1 advanced driver implies. Then, all that is required is that the district judge should reconsider his assessment of dangerousness having regard to the appellant’s unusual driving skills. The district judge has not displayed any sign of bias or having formed so fixed a view that he would not be able to open his mind to the possibility of reaching a different conclusion from the one he reached before. Indeed, it seems to me that he displayed complete intellectual honesty when applying the law, as he had held it to be, to the facts as found. Mr McGuinness did not suggest to the contrary. I think that the interests of justice are best served by remission of the case to District Judge Wallis for reconsideration in the light of this judgment.

[33]I agree and add only a few words of my own as we are differing from a District Judge most experienced in this area. I join with Smith LJ in paying tribute to the quality of his judgment.

[34]The question is one of statutory construction. As it seems to me, for present purposes, the scheme of section 2A of the Road Traffic Act 1988 (“the Act”), may be summarised as follows: i) The test of whether a person is driving “dangerously” is objective. The yardstick, furnished by section 2A(1) is that which is “expected of” and “obvious to” a “competent and careful driver”. ii) Section 2A(1) focuses and only focuses on the manner of driving, judged objectively. That sub-section is augmented by section 2A(2), which is concerned, for obvious reasons, with the “current state” of the vehicle. Once again, whether it is dangerous to drive the vehicle in its current state is to be determined objectively, by reference to that which is obvious to a competent and careful driver. iii) If section 2A ended there, no question could arise as a matter relevant to guilt, as opposed to sentence, of the attributes or state of the driver. Section 2A does not, however, end there; section 2A(3) remains to be considered. Section 2A(3) provides in terms as follows: “ ….in determining for the purposes of …[subsections 2A(1) and (2)]..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.” iv) Nothing in section 2A(3) suggests a departure from the objective test of what constitutes “driving dangerously” within subsections 2A(1) and (2). But, for my part, in applying that objective test, the clear wording of section 2A(3) (with its reference to “any circumstances shown to have been within the knowledge of the accused”) means that there may be occasions when the “competent and careful driver” must have “regard” to the attributes or state of the driver. The wording of section 2A(3) does not result in some different test for driving dangerously; but it does increase or widen the range of factors which may need to be considered in applying that test. The answer may well be unaffected by the additional factors to which section 2A(3) refers; all that the sub-section requires is that “regard shall be had” to the “circumstances” in question. v) As a matter of authority, in my view, section 2A(3) has been applied so as to bring into consideration circumstances unfavourable to the driver: R v Woodward [1995] RTR 130 (alcohol) and R v Marison [1997] RTR 457 (hypoglycaemia). The good sense of such decisions is, with respect, apparent; but the result could not have been achieved by section 2A(1) alone. I am, however, unable to accept that if the wording of section 2A(3) enables circumstances unfavourable to the driver to be taken into account, then the same wording somehow precludes consideration of circumstances favourable to the driver; nor, with respect to him, was Mr. Sullivan able to articulate why that should be so. vi) I therefore conclude that there will be cases where circumstances favourable to the driver will have to be taken into account in applying the objective test of whether a person was driving dangerously. Just as consumption of alcohol may result in the objective conclusion that driving was dangerous when otherwise it might not have been, so exceptional driving qualifications (whether the driver is a police officer or “civilian” matters not) may mean that a manoeuvre, otherwise dangerous, might objectively not warrant the same conclusion. The reason is not that the test is any less objective; it is that the test of what is “dangerous” – as is the test, for instance, of “reasonableness” in other areas – is fact sensitive, at least absent some statutory prohibition on what may be taken into account. vii) All that said, I respectfully share the concern as to “floodgates” expressed by Hallett LJ in DPP v Milton [2006] RTR 21, at [44] and echoed by the learned Judge here at para. 6(v) of his judgment. I offer this by way of comfort. Having regard to the objective test of “driving dangerously”, there will, in the nature of things, be relatively very few circumstances known to the accused capable of having a bearing on the competent and careful driver’s consideration of the driving in question. It is likely that there will be fewer still which do in fact serve to alter the result to which the court would otherwise have come, though that is a matter for the tribunal of fact. The subjective views of the accused are irrelevant, for the reasons given in DPP v Milton (supra). It is therefore inherently likely that only circumstances known to the driver and capable of objective proof, will need to be taken into consideration. Applied in this way, section 2A(3) should not be unduly burdensome. It would of course be most undesirable if straightforward cases were extended or complicated by background evidence as to the driver which, sensibly considered, took matters no further – and nothing said in this case should prevent tribunals from being astute to discourage such a course. viii) Finally, I should underline that I have reached my conclusion as to the construction of section 2A, having regard to the wording of the statute alone. That wording is clear and neither required nor permitted reference to the preceding White Paper, “The Road User and the Law” (“the White Paper”) as an aid to its construction; indeed, for the reasons explained by Smith LJ, the learned Judge was led astray by his reference to the White Paper, from which the statute, in the event, departed.

[35]For these reasons, I agree with Smith LJ as to the correct disposal of the case and, in particular, that the public interest is such that the matter should again be remitted as set out in her judgment.

[36]Before leaving this case, I would add this: i) In the light of the facts before this Court in DPP v Milton (supra) at [32], as to the instructions given to the Appellant by senior officers, I cannot avoid expressing some surprise that there should have been (as we were told) disciplinary proceedings; that, however, is not a matter for me. ii) While readily understanding the need for police drivers to test their skills rigorously before they are required to do so operationally, I would underline the importance of the observations of Hallett LJ in DPP v Milton (supra) at [62] and following as to reviewing the manner in which this might be done. It was a matter of relief to be told that those observations have already been acted upon.