R v A [2020] EWCA Crim 407

A’s car was left stationary and unlit on the M1 hard shoulder for about 15 minutes after a night out. A lorry driven by L veered across all lanes and hit the car, killing one passenger. The Court of Appeal held the trial judge misapplied causation principles and ordered a retrial on causing death by dangerous driving.

Facts

The respondent, A, was driving three friends (M, C and K) home after clubbing in the early hours of a November 2017 morning. A was the designated driver; the passengers were drunk and, during the motorway journey northbound on the M1, an argument developed between A and M.

Annoyed and irritated by her passengers, A pulled onto the hard shoulder, remained there for a few minutes, then re-joined the motorway before again pulling onto the hard shoulder some 500 metres from an exit slip road. On this second stop she remained there for about 15 minutes. K left the car and would not return. A stayed in the driver’s seat and no hazard or other lights were displayed.

At one point, another driver, AC, proceeding in the same direction, had to take evasive action to avoid the open door of A’s car encroaching into lane 1, swerving into the middle lane and sounding his horn. The door was then closed.

Another witness, S, saw a truck driven by L pass him in the outside lane at about 70 mph before suddenly swerving across all the lanes into the hard shoulder, where it struck A’s stationary car. C was killed and both M and A suffered serious injuries. The prosecution believed L had fallen asleep but could not say precisely why the lorry veered to the nearside.

A and L were jointly charged with causing death by dangerous driving (count 1) and causing serious injury to M by dangerous driving (count 2). L alone faced a further charge (count 3) of causing serious injury to A by dangerous driving. L pleaded guilty to all counts.

The prosecution case was that, although A’s car was stationary, she was still legally ‘driving’, her driving in stopping and remaining on the hard shoulder without lights was dangerous, and it was a contributory cause of the fatal collision.

An initial application to dismiss the charges against A as having no case to answer was rejected on the papers. At trial, following the close of the prosecution case, a renewed submission of no case to answer was made before a different judge.

Issues

The trial judge identified two key issues: whether A’s conduct amounted to dangerous driving, and whether her driving was a legal cause of the death and serious injury.

The causation question was whether A’s decision to stop and remain on the hard shoulder, in the circumstances, could in law be regarded as a cause of the collision, or whether L’s subsequent dangerous driving constituted a new, intervening act (novus actus interveniens) breaking the chain of causation.

Judgment

Trial judge’s ruling

On dangerousness, the judge rejected A’s no-case submission, holding that there was evidence on which a jury could properly conclude that this was not an emergency, or that any emergency was within A’s control such that she could have moved on. He stated:

… there is evidence upon which a properly directed jury could conclude that this was not an emergency or was one within the power of [the respondent] to control to an extent that would have allowed her to move on. The question of dangerousness is one for a jury.

However, he accepted the submission on causation and treated it as a terminating ruling. Referring to R v Girdler [2009] EWCA Crim 2666, he contrasted the evidence of A’s open door earlier in time with the facts of the collision:

There is evidence that [the respondent] had at one point her door open into lane 1 of the carriageway and was sitting with her legs out of the car, causing those in lane 1 to swerve or take evasive action. If the collision had in any way been connected to such action, then there would be a basis for the jury to reach an adverse finding. However, that is not the case.

He further held:

In my judgment the prosecution evidence at its highest cannot provide a sound basis upon which a jury properly directed could conclude that it was reasonably foreseeable that a third party – at 4.30am on a Saturday morning when the traffic was very light – would be so distracted by tiredness or some other prevailing condition that he would suddenly at high speed career across all three lanes of the motorway and into the hard shoulder, coming to his senses too late to avoid colliding with [the respondent’s] stationary car …

I am satisfied that in the very case-specific circumstances of these allegations, L’s dangerous driving can only constitute a free, deliberate and informed act, that is a new and intervening act that broke the chain of causation created by the presence of [the respondent’s] car on the hard shoulder, whether or not her presence there would be found by the jury to constitute dangerous driving. It is not open, in my judgment, for a jury properly directed to conclude that [R] caused (as in caused in law) the collision that led to the untimely death of [C] and the serious injury to [M]

On this basis, he ruled there was no case to answer on causation.

Prosecution appeal and arguments

The prosecution applied for leave to appeal the terminating ruling under section 58 of the Criminal Justice Act 2003. It argued that issues of fact, including causation, were for the jury; to prove causing death by dangerous driving it was sufficient that A’s driving was a cause of the collision. It did not need to be the sole, principal or substantial cause.

They submitted that A created a dangerous situation by stopping and remaining on the hard shoulder without lights, and that the risk of collision increased over time. The test of reasonable foreseeability was objective and did not require foresight of the precise way in which the collision occurred. Relying on Girdler, the prosecution contended that it was enough if it could sensibly be anticipated that a fatal collision might occur in the circumstances in which the second collision occurred.

The defence maintained that L’s dangerous driving broke the chain of causation, arguing that it could not reasonably be foreseen that, at 4.30 am with light traffic, a driver would suddenly career from the outside lane across all lanes and onto the hard shoulder.

Court of Appeal’s analysis of causation

The Court of Appeal framed the appeal as turning on two questions: whether the judge had interpreted Girdler too narrowly, and whether on the facts there was a case for the jury.

In Girdler, where an initial collision left a taxi broadside in the fast lane and a second car then collided with it, the Court had suggested a direction for cases involving a second collision:

… We suggest that a jury could be told, in circumstances like the present where the immediate cause of death is a second collision, that if they were sure that the defendant drove dangerously and were sure that his dangerous driving was more than a slight or trifling link to the death(s) then:

the defendant will have caused the death(s) only if you are sure that it could sensibly have been anticipated that a fatal collision might occur in the circumstances in which the second collision did occur.

The judge should identify the relevant circumstances and remind the jury of the prosecution and defence cases. If it is thought necessary, it could be made clear to the jury that they are not concerned with what the defendant foresaw.

The central issue on this appeal was how to understand the phrase “in the circumstances”. The defence contended that the precise chain of events leading to the collision had to be reasonably foreseeable. The Court rejected that contention:

At paragraph 27, the Court held that the law did not require the particular circumstances in which a collision occurred to be foreseeable. It examined the reasoning of the Supreme Court of Canada in R v Maybin [2012] 2 SCR 30, where defendants who assaulted a victim were held potentially responsible despite an additional assault by a bouncer. The Court quoted Karakatsanis J:

34. In my view, the chain of causation should not be broken only because the specific subsequent attack by the bouncer was not reasonably foreseeable. Because the time to assess reasonable foreseeability is at the time of the initial assault, rather than at the time of the intervening act, it is too restrictive to require that the precise details of the event be objectively foreseeable. In some cases, while the general nature of the ensuing acts and the risk of further harm may be reasonably likely, the specific manner in which it could occur may be entirely unpredictable. From the perspective of moral responsibility, it is sufficient if the general nature of the intervening act and the risk of non-trivial harm are objectively foreseeable at the time of the dangerous and unlawful acts. …

38.  For these reasons, I conclude that it is the general nature of the intervening acts and the accompanying risk of harm that needs to be reasonably foreseeable. Legal causation does not require that the accused must objectively foresee the precise future consequences of their conduct … (emphasis added throughout).

The Court also cited the conclusion at paragraph 60 of Maybin:

60. Courts have used a number of analytical approaches to determine when an intervening act absolves the accused of legal responsibility for manslaughter. These approaches grapple with the issue of the moral connection between the accused’s acts and the death; they acknowledge that an intervening act that is reasonably foreseeable to the accused may not break the chain of causation, and that an independent and intentional act by a third party may in some cases make it unfair to hold the accused responsible. In my view, these approaches may be useful tools depending on the factual context. However, the analysis must focus on first principles and recognise that these tools do not alter the standard of causation or substitute new tests. The dangerous and unlawful acts of the accused must be a significant contributing cause of the victim’s death.

The Court noted that while language of “moral responsibility” is not typical in domestic law, an approach that allows a defendant to escape liability by insisting upon foreseeability of highly particular circumstances was inconsistent with English authority.

The Court referred to Wallace (Berlinah) [2018] EWCA Crim 690, where a direction was proposed in a case involving an acid attack and subsequent euthanasia, and to commentary in Blackstone’s Criminal Practice 2020:

… even an accidental or unintended intervention may break the chain of causation if it was not reasonably foreseeable in the circumstances (Girdler [2009] EWCA Crim 2666). This does not mean that the exact form of any such intervention must have been foreseeable at the time of the original assault etc. in order for the chain of causation to remain unbroken. If the general form and risk of further harm was reasonably foreseeable, it may not then matter if the specific manner in which it occurred was entirely unpredictable (Wallace [2018] EWCA Crim 690, [2018] 2 Cr App R 22 (325) at [84], citing Maybin 2012 SCC 24 (SC Canada)) (emphasis added).

Smith, Hogan & Ormerod were noted as being to similar effect.

Adopting this approach, the Court held that what had to be sensibly anticipated was that another vehicle might leave the carriageway and collide with A’s parked car; it was unnecessary for the jury to be sure that the specific manner of the collision, or the “exact form” of the subsequent act, was reasonably foreseeable.

Accordingly, the trial judge had adopted too narrow an interpretation of the Girdler formulation. As a result, he erred in finding there was no case to answer on causation.

Application to the facts

The Court concluded that, if a driver leaves a car on the hard shoulder of a motorway for 15 minutes at 4.30 am in November without any lights, a jury could properly conclude that some form of collision might occur and that, if the car were occupied, death or serious injury could result.

Thus, within the meaning of section 67 of the Criminal Justice Act 2003, the judge’s ruling was wrong in law or involved an error of principle.

Under section 61(4)(b) of the same Act, the Court ordered a fresh trial of the respondent on count 1 (causing death by dangerous driving).

Implications

This decision clarifies that, in offences of causing death by dangerous driving where a subsequent act by another driver or third party is involved, the chain of causation is not broken merely because the precise sequence of events was unforeseeable.

The correct test, consistent with Girdler, Maybin and Wallace, is whether the general nature of the intervening act and the risk of further harm were reasonably foreseeable at the time of the defendant’s dangerous driving. The defendant’s conduct need only be more than a slight or trifling link and a significant contributing cause.

The ruling emphasises that questions of dangerousness and causation are, in cases such as this, matters for the jury, and that trial judges should be slow to withdraw such issues from them on finely particularised foreseeability grounds.

Verdict: The Court of Appeal held that the trial judge’s ruling that there was no case to answer on causation was wrong in law or involved an error of principle, allowed the prosecution appeal, and ordered a fresh trial of the respondent on count 1 (causing death by dangerous driving).

Source: R v A [2020] EWCA Crim 407