R v Lawrence
[1981] 1 All ER 974(Judgment by: Lord Hailsham of St Marylebone LC)
Between: R
And: Lawrence
Judges:
Lord Hailsham of St Marylebone LCLord Diplock
Lord Fraser of Tullybelton
Lord Roskill
Lord Bridge of Harwich
Subject References:
criminal
Criminal Law
Road Traffic
Road traffic
Reckless driving
Causing death by reckless driving
Reckless
Mens rea
Mental element required
Proper direction to be given to jury
Legislative References:
Road Traffic Act 1972 - ss 1, 2 (as substituted by the Criminal Law Act 1977, s 50(1))
Case References:
Allan v Patterson - [1980] SLT 77; [1980] RTR 97
R v Caldwell - p 961, ante, HL
R v Evans - [1962] 3 All ER 1086; [1963] 1 QB 412; [1962] 3 WLR 1457; 127 JP 49; 61 LGR 32; 47 Cr App R 62, CCA; 45 Digest (Repl) 87, 298
R v Murphy (William) - [1980] 2 All ER 325; [1980] QB 434; [1980] 2 WLR 743; [1980] RTR 145, CA
R v Sheppard - [1980] 3 All ER 899; [1980] 3 WLR 960, HL
R v Stephenson - [1979] 2 All ER 1198; [1979] QB 695; [1979] 3 WLR 193; 143 JP 592; 69 Cr App R 213, CA; Digest (Cont Vol E) 161, 12,692a
Judgment date: 19 March 1981
Judgment by:
Lord Hailsham of St Marylebone LC
My Lords, the question in this appeal is whether the conviction on 18 March 1980 of the respondent for causing death by reckless driving should be restored. In my opinion it should not, both on the grounds on which it was quashed by the Court of Appeal, and on the more general ground about to be formulated by my noble and learned friend Lord Diplock, with whose conclusions and reasoning I wish to be wholly and unequivocally associated. If I proceed with a few observations of my own about the course of the proceedings, it is because I wish to draw some lessons from them regarding the general conduct of trials on indictment, and not because I wish to repeat in other words what my noble and learned friend is about to say.
My Lords, it is notorious that there has grown up a serious backlog of cases for trial in the Crown Court, and this is particularly the case in the South East and London. This backlog has been a source of particular anxiety to me in both my terms of office, as I know it is currently to the present Lord Chief Justice. The causes of it are complex, and the remedies are therefore not particularly simple. But, so long as it persists, the whole system of trial by jury, and the regard in which it is rightly held, are adversely affected.
My Lords, it is a truism to say that justice delayed is justice denied. But it is not merely the anxiety and uncertainty in the life of the accused, whether on bail or remand, which are affected. Where there is delay the whole quality of justice deteriorates. Our system depends on the recollection of witnesses, conveyed to a jury by oral testimony. As the months pass, this recollection necessarily dims, and juries who are correctly directed not to convict unless they are assured of the reliability of the evidence for the prosecution necessarily tend to acquit as this becomes less precise, and sometimes less reliable. This may also affect defence witnesses on the opposite side. In the instant case, an accident took place unexpectedly in a matter of seconds. The evidence at the trial included the testimony of witnesses, present on the occasion, none of whom could have been expecting a moment before it occurred that they were to be confronted with a desperate tragedy, to the sequence of events in which in 11 months' time they would be expected to testify on oath.
Part of the delay in bringing cases to trial is due to the increase in the volume of indictable crime brought to the Crown Court. But part also is due to the increasing prolixity in the conduct of cases when they actually come to be heard. It cannot be too often stressed that verbose justice is not necessarily good justice. There is virtue, both from the point of view of the prosecution and from the point of view of the defence, in incisiveness, decisiveness and conciseness, not only in addressing juries but in the general conduct of a case, the examination and cross-examination of witnesses, the submission of legal argument, and in summing up. A long trial is not necessarily a better one if a shorter one would have sufficed. It is these considerations which lead me to analyse the course of events in the present appeal, and not any desire to expand on or to qualify the reasoning of my noble and learned friend.
The course of events was as follows. On 13 March 1980 in the Crown Court at Ipswich the respondent (defendant) in these proceedings was arraigned on an indictment of great simplicity. It read as follows:
'Stephen Richard Lawrence is charged as follows:
'Statement of Offence:
'Causing death by reckless driving, contrary to section 1 of the Road Traffic Act 1972.
'Particulars of Offence:
'STEPHEN RICHARD LAWRENCE, on the 13th day of April 1979 at Lowestoft in the County of Suffolk, caused the death of Yvonne Letittia Crowther, by driving a motor vehicle on a road, namely, Victoria Road, recklessly.'
I pause at this stage only to point out that, owing to the delays which have mounted up in the South East and London, this simple case has taken a whole year less one month to come on for trial. That it took this length of delay to bring it on for trial is, of course, no criticism of the judge, counsel or solicitors in the present case. It is the cumulative result of the length and number of other cases with which your Lorships have not been concerned.
The trial pursued its course during 13 (Thursday), 14 (Friday) and 17 (Monday) March 1980. The learned judge commenced his summing up on Tuesday, 18 March. After this summing up and an interchange between the two counsel and the judge the jury retired at 11.28 am. They returned at 2.15 pm after deliberating for 2 hours and 47 minutes, when they were given a majority verdict direction. At 2.32 pm the jury delivered a note to the learned judge requesting further directions on the meaning of 'driving recklessly'. There was a further interchange between judge and counsel in the absence of the jury. At 3.15 pm the jury were summoned back and given a further direction. At 3.43 pm the jury convicted the respondent by a verdict of eleven to one, and after the usual procedure the learned judge sentenced the respondent to six months in prison and three years' disqualification.
On 20 May 1980 the whole trial aborted, because the Court of Appeal quashed the conviction on the grounds that both directions left 'so much unclear as to render the jury's verdict unsafe and unsatisfactory'. So other cases in the Crown Court at Ipswich were delayed by the judge, time consumed to no purpose during the better part of a week. But that has not been the end of the matter. At the request of the prosecution the Court of Appeal certified the three questions as of 'general public importance,
- '1.
- Is mens rea involved in the offence of driving recklessly?
- 2.
- If yes, what is the mental element required?
- 3.
- Is the following on a charge of driving recklessly a proper direction: "A driver is guilty of driving recklessly if he deliberately disregards the obligation to drive with due care and attention or is indifferent as to whether or not he does so and thereby creates a risk of an accident which a driver driving with due care and attention would not create".'
These three questions form the substance of the appeal. In certifying them the Court of Appeal refused leave to appeal. This was given subsequently by the Appeal Committee of your Lordships' House, possibly because the question of 'recklessness' in criminal cases was already before your Lordships in another context in R v Caldwell P 961, ante, in which judgment has just been delivered.
I mention these facts because, altogether apart from the merits of the appeal, with which my noble and learned friend Lord Diplock intends to deal, I think there are lessons to be learned from these proceedings which ought urgently to be studied since they are directly relevant to the serious delays to which I have now drawn attention.
The facts of the case can be stated in stark simplicity. On 13 April 1979 at approximately 8.30 pm, a husband and wife, Mr and Mrs Crowther, decided to drive their van to an off-licence in Lowestoft in order to buy some soft drink for the children. They arrived at their destination at approximately 9 pm. Their van was parked on the opposite side of the road to the off-licence. Mr Crowther stayed in the van. Mrs Crowther crossed the road and entered the off-licence. When she came out, she stopped at the kerb. Her husband saw her blow him a kiss, and that was the last time he saw his wife alive. In crossing the road to return to the van there was a collision between herself and the second of two motor cyclists. The cycle involved in the collission was driven by the respondent. Mrs Crowther was killed instantaneously. Her body was carried 45 yards on the front of the cycle before the cycle stopped.
At the trial one solitary dispute of primary fact emerged. This was the speed at which the cycle was travelling. The prosecution led evidence intended to show that the cycle was travelling at a grossly excessive speed. Apart from the measurements on the road, there were witnesses of the accident, forensic evidence that the speedometer was jammed at 77 mph and as to the implications of this, and police evidence regarding the account of the accident by the accused.
By contrast, the accused gave evidence and called witnesses who testified that the true speed only was 30 to 40 mph, technically illegal, since the area was built up, possibly careless, but most improbably reckless.
Given the nature of the case, one would hardly think that the case presented much difficulty for a jury to try or for the judge to sum up in a manner calculated to lead them to a just and safe conclusion. If they were satisfied with the prosecution evidence to the extent required by the burden of proof in criminal cases they could hardly fail to convict. If they thought the defence evidence raised a reasonable doubt they could hardly fail to acquit. In the event they convicted by a majority, and their verdict was set aside as unsafe and unsatisfactory on the ground that the two directions on recklessness were so unclear. Neither the result, nor the delay in bringing the matter to trial, nor the course of the proceedings ought to afford any of us who are concerned in the administration of justice in any capacity much cause for satisfaction.
It has been said before, but obviously requires to be said again. The purpose of a direction to a jury is not best achieved by a disquisition on jurisprudence or philosophy or a universally applicable circular tour round the area of law affected by the case. The search for universally applicable definitions is often productive of more obscurity than light. A direction is seldom improved and may be considerably damaged by copious recitations from the total content of a judge's notebook. A direction to a jury should be custom-built to make the jury understand their task in relation to a particular case. Of course it must include references to the burden of proof and the respective roles of jury and judge. But it should also include a succinct but accurate summary of the issues of fact as to which a decision is required, a correct but concise summary of the evidence and arguments on both sides, and a correct statement of the inferences which the jury are entitled to draw from their particular conclusions about the primary facts. In the present instance there was only one issue of primary fact, the speed at which the cycle was travelling, and I doubt whether a direction could have been faulted if the jury had simply been told that if they were satisfied that the prosecution had proved that the accused had been travelling at a grossly excessive speed they were entitled to infer that he had been driving recklessly and as a result had caused Mrs Crowther's death, that if so they should convict, and that if they were not so satisfied they should acquit. As it is, I feel sure that the Court of Appeal were correct in their belief that the jury may well have been so bemused with the effect of the summing up that their verdict was unsafe and unsatisfactory, and that, if only for this reason, the appeal must fail. The verdict cannot be restored.
There is, however, a second reason why, in my judgment, the appeal by the prosecution must fail. Of the three questions of law certified by the Court of Appeal, I have no doubt that all three must be answered in the sense proposed by my noble and learned friend Lord Diplock. Since it follows from this that the third of these questions is answered in the negative, the learned judge's direction which broadly followed the formula contained in it was wrong in law. For this he can hardly be blamed since the formula broadly corresponds with that proposed by Eveleigh LJ in R v Murphy (William) [1980] 2 All ER 325, [1980] 1 QB 434(then just reported), which, to the extent described in detail by my noble and learned friend, must be considered overruled. I also associate myself with my noble and learned friend's affirmative answer to the first question, and the formulation of his answer to the second, with the reasoning leading up to which I also agree. Though it does not directly affect the three questions posed I share the distate for the obsessive use of the expressions 'objective' and 'subjective' in crime. In all indictable crime it is a general rule that there are objective factors of conduct which constitute the so-called ' actus reus ', and a further guilty state of mind which constitutes the so-called 'mens rea'. The necessity for this guilty state of mind has been increasingly emphasised of recent years (cf R v Sheppard [1980] 3 All ER 899, [1980] 3 WLR 960 ), and this I regard as a thoroughly praiseworthy development. It only surprises me that there should have been any question regarding the existence of mens rea in relation to the words 'reckless', 'recklessly' or 'recklessness'. Unlike most English words it has been in the English laguage as a word in general use at least since the eight century AD almost always with the same meaning, applied to a person or conduct evincing a state of mind stopping short of deliberate intention, and going beyond mere inadvertence, or, in its modern though not its etymological and original sense, mere carelessness. The Oxford English Dictionary quotes several examples from Old English, many from the Middle English period, and many more from modern English. The word was familiar to the Venerable Bede, to Langland, to Chaucer, to Sir Thomas More and to Shakespeare. In its alternative and possibly older pronunciation, and etymologically incorrect spelling (wretchless, wretchlessly, wretchlessness) it was known to the authors of the Articles of religion printed in the book of Common Prayer.
Though its pronunciation has varied, so far as I know its meaning has not. There is no separate legal meaning to the word. This retains its dictionary sense, adequately, I believe, expounded by my noble and learned friend Lord Diplock. It is, of course, true that, in a legal context, the state of mind described as 'reckless' is discussed in connection with conduct objectively blameworthy as well as dangerous, while in common speech it is possible to conceive (for instance in the context of the winner of a military decoration in circumstances in which he is reckless of his own safety) of the use of the word without a blameworthy connotation. Now that my noble and learned friend has given it a lucid legal interpretation I trust that it will cause no more trouble to the profession, academics or juries. I also associate myself with what he has said about the Scottish case of Allan v Patterson [1980] SLT 77 . R v Stephenson [1979] 2 AllER 1198 , [1979] QB 695 was discussed before us, but in view of what has just been said before your Lordships in R v Caldwell p 961, ante there is nothing I can usefully add, except that I respectfully accept the view of the majority in that case. Since the days of Noah, the effects of alcohol have been known to induce the state of mind described in English as recklessness, and not to inhibit it, and for that matter to remove inhibitions in the field of intention, and not to destory intention. But that is a different question.
In the result the appeal fails.