R v Lawrence
[1981] 1 All ER 974(Judgment by: Lord Diplock)
Between: R
And: Lawrence
Judges:
Lord Hailsham of St Marylebone LC
Lord DiplockLord 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 Diplock
My Lords, on Good Friday, 13 April 1979, after night had fallen, the respondent ('the driver') was riding his motor cycle along an urban street in Lowestoft. The street was subject to a 30 mph speed limit and there was a good deal of other traffic using it at the time. The driver ran into and killed a pedestrian who was crossing the road to return from an off-licence shop to her car which was parked on the opposite side of the street. The driver was in due course tried on indictment for the offence of causing her death by driving a motor vehicle on a road recklessly, contrary to s 1 of the Road Traffic Act 1972.
Apart from the very tragic consequences of this accident the case that the jury had to try was about as simple and straightforward as any case can be in which the charge is one of driving recklessly. The only question of fact that was in issue was the speed at which the driver was travelling immediately before the impact. The prosecution's case was that the motor cycle was being driven at between 60 and 80 mph and probably much nearer to the latter. The case for the defence was that the speed of the motor cycle was no more than 30 or, at most, 40 mph and probably nearer to the former.
All that the jury had to do was to make up their minds whether, on that evidence, they were satisfied beyond reasonable doubt that the driver was in fact driving along this urban street, on which it was not disputed there was a good deal of other traffic, at speed somewhere between 60 and 80 mph. If they were so satisfied, even the defence did not suggest that any sensible jury could come to any other conclusion than that he was driving recklessly; whereas, if they thought that his own estimate of his speed at 30 to 40 mph might be right, they ought to have found him not guilty, for the prosecution had not relied on any other aspect of his driving as constituting recklessness, apart from excessive speed.
I find it difficult to conceive that so simple a case could have taken more than a single day to try 20 years ago when, as a High Court judge, I was trying cases of the then newly-created offence of causing death by dangerous driving. I warmly endorse what Lord Hailsham LC has said about the tortoise pace at which cases in the Crown Court are nowadays so frequently allowed to amble on. It makes the trial itself a less effective and reliable means of achieving a just result and is one of the main causes of the long delays between committal and trial which are nothing short of a disgrace to our legal system.
In the course of his summing up the deputy circuit judge gave to the jury a direction as to what amounted in law to 'driving recklessly'. This direction the Court of Appeal described with justification, but also with the utmost sympathy, as confused. And so it was, because it sought to combine the very recent definition of 'driving recklessly' in s 2 of the Road Traffic Act 1972 that had been given by Eveleigh LJ in R v Murphy (William) [1980] 2 All ER 325, [1980] QB 434('the Murphy definition') with the definition of 'reckless' in s 1(1) of the Criminal Damage Act 1971 that had been given by Geoffrey Lane LJ in R v Stephenson [1979] 2 All ER 1178, [1979] QB 695. This latter definition has been the subject of disapproval by this House in the immediately preceding appeal, R v Caldwell p 961, ante.
The jury too must have found the direction confusing for, after three and a half hours' retirement, they sought further elucidation from the judge. In substance he repeated to them the Murphy direction and, after a further short retirement, the jury, by a majority of eleven to one, brought in a verdict of guilty.
The Murphy direction is in the following terms:
'A driver is guilty of driving recklessly if he deliberately disregards the obligation to drive with due care and attention or is indifferent 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.'
Whether the Murphy direction is correct or not is the subject of the third question of law involved in the instant case that the Court of Appeal, in giving leave to appeal, has certified as being of general public importance. The other two are:
- 1.
- Is mens rea involved in the offence of driving recklessly?
- 2.
- If yes, what is the mental element required.
To answer these question necessitates in the first instance a brief reference to the legislative history of those road traffic offences that had for so many years prior to 1977 been popularly known as 'careless driving' and 'dangerous driving' respectively.
The history starts with s 1 of the Motor Car Act 1903, which drew no distinction between driving 'recklessly' or 'negligently' or 'in a dangerous manner', so far as the gravity of the offence was concerned. It was in the following terms:
- '(1)
- If any person drives a motor car on a public highway recklessly or negligently, or at a speed or in a manner which is dangerous to the public, having regard to all the circumstances of the case, including the nature, condition and use of the highway, and to the amount of traffic which actually is at the time, or which might reasonably be expected to be, on the highway, that person shall be guilty of an offence under this Act ....'
This remained the law until it was repealed by the Road Traffic Act 1930, which made separate offences of dangerous driving and careless driving. The former was the more serious offence; it was triable on indictment as well as summarily and the penalties that could be imposed included imprisonment and were heavier than those for careless driving, which was triable summarily only.
The description of the offence of dangerous driving was:
- '11(1)
- If any person drives a motor vehicle on a road recklessly, or at a speed or in a manner which is dangerous to the public, having regard to all the circumstances of the case, including the nature, condition, and use of the road, and the amount of traffic which is actually at the time, or which might reasonably be expected to be, on the road ...
- '12(1)
- If any person drives a motor vehicle on a road without due care and attention or without reasonable consideration for other persons using the road ....'
To these were added by s 8 of the Road Traffic Act 1956 the new offence of causing death by reckless or dangerous driving, the manner of driving involved in this offence being the same as under s 12(1) of the Road Traffic Act 1930.
These descriptions of the offences were reproduced in ss 1 and 2 and in s 3 respectively of the Road Traffic Act 1972. Dangerous driving continued to be triable on indictment as well as summarily; careless driving remained triable summarily only.
Although the adverb 'recklessly' as descriptive of a manner of driving has been there ever since the single offence was split up into two of which one was treated as much graver than the other, the practice so far as living memory goes had been to charge defendants with driving 'at a speed or in a manner which is dangeropus to the public' and not with driving 'recklessly'. This is why the offence became popularly known as dangerous, not as reckless, driving; and juries, when the trial was on indictment, were instructed to consider whether in their judgment the defendant was driving in a manner that was dangerous to the public. It was not thought necessary to confuse them by talking about 'subjective' and 'objective' tests, although before 1963 they might have been told that to convict of dangerous driving they must be satisfied that the way in which the defendant was driving was something worse than a mere failure to show proper consideration for other people using the road or some minor misjudgment of the situation or momentary lack of attention. As a Queen's Bench Judge I used so to direct juries myself, in trying cases of causing death by dangerous driving.
By its decision in R v Evans [1962] 3 All ER 1086, [1963] 1 QB 412, however, the Court of Criminal Appeal for practical purposes abolished the difference between the standard of driving in careless driving and that involved in dangerous driving where danger to the public did in fact result. At the trial of Evans the judge had directed the jury ([1962] 3 All ER 1086 at 1087, [1963] 1 QB 412 at 413-414):
'... in law it is now well settled that if the driving is in fact dangerous, and that dangerous driving is caused by some carelessness on the part of the accused, then however slight the carelessness, that is dangerous driving.'
This summing up was approved on appeal. The court said ([1962] 3 All ER 1086 at 1088, [1963] 1 QB 412 at 418):
'If a man in fact adopts a manner of driving which the jury think was dangerous to the other road users in all the circumstances, then on the issue of guilt it matters not whether he was deliberately reckless, momentarily inattentive or even doing his incompetent best.'
This merging of the standards of defective driving that was to amount to the offences of careless and dangerous driving respectively, leaving the only difference between the two offences that in the latter danger to the public had in fact been caused, led to an increase in the number of cases in which the prosecution charged the defendant with dangerous driving and the defendant, with his driving licence at stake, almost invariably elected to be tried by jury.
My Lords, your Lordships may take judicial notice of the fact that the amendment of ss 1 and 2 of the Road Traffic Act 1972 by s 50(1) of the Criminal Law Act 1977, which followed on the Report of the Interdepartmental Committee on the Distribution of Criminal Business between the Crown Court and Magistrates' Courts in 1975(Cmnd 6323), was to restore the difference in culpability between driving offences which attracted the severer penalties which could be imposed for offences under s 2 of the Road Traffic Act 1972, and so justified the right of the accused to elect trial by jury, and the offences under s 3 which did not attract penalties severe enough to justify any such right of election, and by this means to reduce the load of business in the Crown Court.
The amendment took the form of substituting for ss 1 and 2 of the Road Traffic Act 1972 the following new sections:
- '1.
- A person who causes the death of another person by driving a motor vehicle on a road recklessly shall be guilty of an offence.
- '2.
- A person who drives a motor vehicle on a road recklessly shall be guilty of an offence.'
The elimination of the reference to driving at a speed or in a manner dangerous to the public was obviously intended to remove the overlap between the offence in s 2 which gave a right to trial by jury and the lesser offence in s 3 that did not, which had resulted from the decision in R v Evans . Section 3 creates an absolute offence in the sense in which that term is commonly used to denote an offence for which the only mens rea needed is simply that the prohibited physical act ( actus reus ) done by the accused was directed by a mind that was conscious of what his body was doing, it being unnecessary to show that his mind was also conscious of the possible consequences of his doing it. So s 3 takes care of this kind of inattention or misjudgment to which the ordinarily careful motorist is occasionally subject without its necessarily involving any moral turpitude, although it causes inconvenience and annoyance to other users of the road. So there is no reason why your Lordships should go out of your way to give to the new s 2 a wide ambit that would recreate the former overlap with s 3.
My Lords, this House has very recently had occasion in R v Caldwell p 961, ante, to give close consideration to the concept of recklessness as constituting mens rea in criminal law. The conclusion reached by the majority was that the adjective 'reckless' when used in a criminal statute, ie the Criminal Damage Act 1971, had not acquired a special meaning as a term of legal art, but bore its popular or dictionary meaning of careless, regardless, or heedless of the possible harmful consequences of one's acts. The same must be true of the adverbial derivative 'recklessly,
The context in which the word 'reckless' appears in s 1 of the Criminal Damage Act 1971 differs in two respects from the context in which the word 'recklessly' appears in ss 1 and 2 of the Road Traffic Act 1972, as now amended. In the Criminal Damage Act 1971 the actus reus , the physical act of destroying or damaging property belonging to another, is in itself a tort. It is not something that one does regularly as part of the ordinary routine of daily life, such as driving a car or a motor cycle. So there is something out of the ordinary to call the doer's attention to what he is doing and its possible consequences, which is absent in road traffic offences. The other difference in context is that in s 1 of the Criminal Damage Act 1971 the mens rea of the offences is defined as being reckless whether particular harmful consequences would occur, whereas in ss 1 and 2 of the Road Traffic Act 1972, as now amended, the possible harmful consequences of which the driver must be shown to have been heedless are left to be implied from the use of the word 'recklessly' itself. In ordinary usage 'recklessly' as descriptive of a physical act such as driving a motor vehicle which can be performed in a variety of different ways, some of them entailing danger and some of them not, refers not only to the state of mind of the doer of the act when he decides to do it but also qualifies the manner in which the act itself is performed. One does not speak of a person acting 'recklessly', even though he has given no thought at all to the consequences of his act, unless the act is one that presents a real risk of harmful consequences which anyone acting with reasonable prudence would recognise and give heed to. So the actus reus of the offence under ss 1 and 2 is not simply driving a motor vehicle on a road, but driving it in a manner which in fact creates a real risk of harmful consequences resulting from it. Since driving in such a manner as to do no worse than create a risk of causing inconvenience or annoyance to other road users constitutes the lesser offence under s 3, the manner of driving that constitutes the actus reus of an offence under ss 1 and 2 must be worse than that; it must be such as to create a real risk of causing physical injury to someone else who happens to be using the road or damage to property more substantial than the kind of minor damage that may be caused by an error of judgment in the course of parking one's car.
The Murphy direction, as it seems to me, is defective in this respect before one comes to any question of mens rea. By referring to the duty to drive with 'due care and attention', which is a direct quotation from s 3, it makes the standard of driving that must be maintained, in order to avoid the more serious offence of driving recklessly, the same as in the less serious offence under s 3 and thus perpetuates the very mischief which the 1977 amendments were intended to remedy. For when a decision has to be made whether to prosecute a driver for an offence under s 2 instead of under s 3 the only material available to the prosecution is evidence of what the driver actually did, the actus reus of the offence. The prosecution has no way of knowing at that stage, when the choice of charge has to be made, what was the state of mind of the driver when or immediately before he did it. It can only infer this from what the driver was seen to do and any statement that he way have made.
I turn now to the mens rea. My task is greatly simplified by what has already been said about the concept of recklessness in criminal law in R v Caldwell. Warning was there given against adopting the simplistic approach of treating all problems of criminal liability as soluble by classifying the test of liability as being either 'subjective' or 'objective'. Recklessness on the part of the doer of an act does presuppose that there is something in the circumstances that would have drawn the attention of an ordinary prudent individual to the possibility that his act was capable of causing the kind of serious harmful consequences that the section which creates the offence was intended to prevent, and that the risk of those harmful consequences occurring was not so slight that an ordinary prudent individual would feel justified in treating them as negligible. It is only when this is so that the doer of the act is acting 'recklessly' if, before doing the act, he either fails to give any thought to the possibility of there being any such risk or, having recognised that there was such risk, he nevetherless goes on to do it.
In my view, an appropriate instruction to the jury on what is meant by driving recklessly would be that they must be satisfied of two things: first, that the defendant was in fact driving the vehicle in such a manner as to create an obvious and serious risk of causing physical injury to some other person who might happen to be using the road or of doing substantial damage to property; and, second, that in driving in that manner the defendant did so without having given any thought to the possibility of there being any such risk or, having recognised that there was some risk involved, had none the less gone on to take it.
It is for jury to decide whether the risk created by the manner in which the vehicle was being driven was both obvious and serious and, in deciding this, they may apply the standard of the ordinary prudent motorist as represented by themselves.
If satisfied that an obvious and serious risk was created by the manner of the defendant's driving, the jury are entitled to infer that he was in one or other of the states of mind required to constitute the offence and will probably do so; but regard must be given to any explanation he gives as to his state of mind which may displace the inference.
My Lords, in Allan v Patterson [1980] SLT 77 , Lord Emslie in the High Court of Justiciary did apply the label 'objective' to the test of whether a driver was driving recklessly within the meaning of s 3 of the Act. While for reasons set out in greater detail in my speech in R v Caldwell I think it is desirable in all cases of criminal liability to avoid the use of this label, I do not think that, having regard to the likelihood that the jury will draw the inference to which I have referred, the practical result of approaching the question of what constitutes driving recklessly in the way that was adopted by the Lord Justice-General in Allan v Patterson is likely to be any different from the result of instructing a jury in some such terms as I have suggested above. The same Act applies to both countries; it would be unfortunate if the interpretation put on it by the Scottish courts differed from that put on it by the courts in England and Wales.
I would give the following answers to the questions certified by the Court of Appeal: 1. mens rea is involved in the offence of driving recklessly; 2. the mental element required is that, before adopting a manner of driving that in fact involves an obvious and serious risk of causing physical injury to some other person who may happen to be using the road or of doing substantial damage to property, the driver has failed to give any thought to the possibility of there being any such risk, or, having recognised that there was some risk involved, has none the less gone on to take it; 3. the Murphy direction is wrong in the respects referred to earlier.
Since the deputy circuit judge gave to the jury what was substantially the Murphy direction itself and also a somewhat confused version of it and both of these stated the law too unfavourably to the driver, this appeal must in my view be dismissed.