Supreme Court ~ Road Traffic Act 1988 s3ZB ~ Uninsured driving ~ Causing death

UPDATE: The Supreme Court has allowed Mr Hughes' appeal.  There must be something to be properly criticised in the defendant's driving - R v Hughes [2013] UKSC 56.  There mere fact of being on the road (when uninsured etc) is not enough to establish criminal liability when the accident is entirely the fault of another driver.  However, it may prove to be the case that it will not take very much for a driver to be held liable under s3ZB - e.g. he was marginally over a speed limit; or breach of some construction and use regulation; an underinflated tyre etc.  See the judgment at paragraph 32.  Precisely what is required will have to be worked out on a case by case basis.

Lord Hughes handing down the judgment - YOUTUBE 31st July

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The Supreme Court of the UK will hand down judgments in 4 cases on Wednesday 31st July.  One of them is the interesting road traffic law case of R v Hughes.  The Supreme Court's website provides the detail:

Issue

Is an offence contrary to section 3ZB of the Road Traffic Act 1988 committed by an unlicensed, disqualified or uninsured driver when the circumstances are that the manner of his or her driving is faultless and the deceased was (in the terms of civil law) 100% responsible for causing the fatal accident or collision?

Facts

On 25 October 2009, just after 4.30pm, the Appellant,
who was driving a van, was involved in a collision with a Honda motor car being driven in the opposite direction by Mr James Dickinson, who sustained extensive serious injuries as a result and died that evening as a result of the injuries. The Appellant was in no way at fault for the death: he had been driving entirely properly. By contrast, in civil law terms Mr Dickinson was 100% responsible for causing the collision and his death: he was almost certainly under the influence of heroin and was found to have methadone, benzodiazepine and other drugs in his system which were not prescribed; he had done several consecutive night shifts at work and had already driven 200 miles that day. Accordingly, he was driving erratically, veering across into the oncoming lane and back again for the 2 miles prior to the collision; he failed to take any evasive action in the face of the Appellant’s van coming towards him while he was in the wrong lane on exiting a bend in the road. However, the Appellant was uninsured and driving without a full license.

Background:

Section 3ZB was the subject of a blogpost on 5th July 2011.  That post looked at R v Jason Williams [2010] EWCA Crim 2552 where the Court of Appeal (Criminal Division) held that a driver could be guilty of the s3ZB offence even if his driving was not blameworthy provided that the driving was a (more than minimal) cause of the death.

The same blogpost also referred to R v MH [2011] EWCA Crim 1508 where the court considered itself to be bound (under the law of precedent) by the Jason Williams case.   (This case was a prosecution appeal against a 'terminating ruling').   This is the case now before the UK Supreme Court and it has been (helpfully) previewed by the UK Supreme Court blog - HERE.

The legislation appears to be straightforward but appearances can be deceptive!  Here is the section:

A person is guilty of an offence under this section if he causes the death of another person by driving a motor vehicle on a road and, at the time when he is driving, the circumstances are such that he is committing an offence under -

(a)section 87(1) of this Act (driving otherwise than in accordance with a licence),
(b)section 103(1)(b) of this Act (driving while disqualified), or
(c)section 143 of this Act (using motor vehicle while uninsured or unsecured against third party risks).

An obvious and natural reading of those words requires the driver to have caused the death.  In criminal law, this normally means that the jury (or magistrates) may convict where the conduct of the defendant has been proved to be a factual and a legal cause of the death.  Factual cause is established where the consequence would not have occurred as and when it did BUT FOR the defendant's conduct.  The question of legal causation often takes several pages in the leading textbooks to explain.  Glanville Williams (Textbook of Criminal Law 2nd edition) wrote of there being a 'value judgment' necessitating that the defendant be blamable for the event.  Thus, as one example, the criminal law does not usually hold a person liable unless his conduct has been more than a minimal cause of the event.  Other, often difficult, situations arise where the defendant's conduct had become merely part of the history leading to the event and further causes have intervened.

So far, the courts have held that, provided the driving has caused the death, the s3ZB offence does not require proof of a poor driving standard.  As the Court of Appeal in Williams said: “It may be a harsh and punitive measure with an evident deterrent element, but it is difficult to see how anything else can have been intended.”  Of course, at the time of the driving, the driver must also have been committing one of the other offences (e.g. uninsured).

It may be that the view can be taken that Parliament, when using the word 'cause' in s3ZB, legislated in the knowledge of the usual law of causation as applied by criminal courts.  This goes beyond merely factual causation and requires 'blameworthiness' on the part of the defendant.   However, to adopt that approach for s3ZB would seem to make the offence indistinguishable from the other offences of causing death by inconsiderate / careless / dangerous driving.

For my part, for this problematic offence, I would prefer the approach requiring some degree of fault in the driving before criminal liability can be established.   It is more in keeping with established principles of criminal law against the background of which Parliament must be taken to have legislated in the absence of clear wording to the contrary.

Prosecutions:

See also the Crown Prosecution Services policy   It states:

'In the normal course of events, where there is sufficient evidence under section 3ZB of the RTA 1988 (causing death by driving while unlicensed, disqualified or uninsured), a prosecution for these offences should follow (i.e. where the standard of driving does not fall below the required standard and thus is not in issue, then the offences created under section 3ZB should be the most appropriate to be charged). Any consideration of culpability is for the court when deciding on sentence.
Where there is clear evidence that the driving fell below the required standard and was a cause of death, the appropriate offence incorporating dangerous or careless driving should also be charged.'