R v Hughes [2013] UKSC 56

Mr Hughes, uninsured and without a full licence but driving faultlessly, was involved in a fatal collision entirely caused by another driver’s dangerous, drug‑impaired driving. The Supreme Court held that section 3ZB requires some culpable element in the defendant’s driving which contributes to the death.

Facts

On a Sunday afternoon in October 2009, Mr Hughes was driving his family home in a camper van along the A69, within the speed limit and in a faultless manner. As he rounded a right-hand bend on his correct side of the road, he was confronted by a car driven by Mr Dickinson, which was veering erratically and twice crossed onto the wrong side of the road before smashing into the camper van. Mr Dickinson suffered fatal injuries.

It was accepted that the collision was entirely the fault of Mr Dickinson, who was overtired and under the influence of heroin and other drugs, and had been driving dangerously for some time. There was nothing Mr Hughes could have done to avoid the collision.

However, Mr Hughes was driving without insurance, having deliberately failed to obtain it, and without a full driving licence. His previous licence had been revoked on medical grounds; a subsequent licence issued to him was in fact provisional. He was therefore strictly liable for two offences: using a motor vehicle while uninsured (section 143 of the Road Traffic Act 1988) and driving otherwise than in accordance with a licence (section 87).

Rather than prosecuting those summary offences, the Crown charged him with two counts under section 3ZB of the Road Traffic Act 1988 (inserted by section 21 of the Road Safety Act 2006) for causing death by driving while uninsured and while not holding a full licence.

“3ZB Causing death by driving: unlicensed, disqualified or uninsured drivers.

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 a motor vehicle while uninsured or unsecured against third party risks).”

The Recorder of Newcastle ruled that Mr Hughes had not “caused” the death within the meaning of section 3ZB. The Crown appealed. The Court of Appeal considered itself bound by its earlier decision in R v Williams [2010] EWCA Crim 2552; [2011] 1 WLR 588, which held that fault in the manner of driving was unnecessary and that it was sufficient that the uninsured or unlicensed driver’s vehicle was involved in a fatal collision. It therefore allowed the Crown’s appeal. Mr Hughes appealed to the Supreme Court.

Issues

The Supreme Court had to determine the proper construction and ambit of section 3ZB of the Road Traffic Act 1988, in particular:

1. Meaning of “causes the death of another person by driving”

Whether a driver “causes” death by driving for the purposes of section 3ZB simply by being at the wheel of a vehicle involved in a fatal collision while uninsured, disqualified or unlicensed, or whether he must have done or omitted something in the manner of his driving which contributed to the death in a more than minimal way.

2. Role of fault in the manner of driving

Whether section 3ZB requires some element of fault in the defendant’s driving (though not necessarily rising to the statutory standard of careless or inconsiderate driving) as part of the causal connection between the driving and the death.

3. Compatibility with common law principles of causation and penal construction

Whether Parliament, by using the language “causes…death…by driving”, had unambiguously displaced the common law’s common sense approach to causation and created a form of double strict liability attaching homicide liability to those whose only fault was to drive while uninsured, unlicensed or disqualified.

Judgment

The judgment of the court was delivered jointly by Lord Hughes and Lord Toulson.

Context of section 3ZB

The court reviewed the existing pre‑2006 framework of road traffic offences, noting the range from manslaughter and causing death by dangerous driving (sections 1 and 3A, with maximum 14 years’ imprisonment) down to dangerous driving (section 2, maximum two years), careless driving (section 3, non‑custodial), drink/drug driving offences (sections 4 and 5, summary offences), and regulatory offences such as driving uninsured or without a full licence (sections 143 and 87), which carried no imprisonment.

Sections 2B (causing death by careless or inconsiderate driving) and 3ZB were added in 2006 to fill perceived gaps between non‑fatal driving offences and homicide-level offences. However, this context did not answer the precise question of the ambit of section 3ZB.

Competing constructions

The Crown argued that section 3ZB created a purely situational offence: an aggravated form of being uninsured, disqualified or unlicensed, such that a driver is guilty whenever his vehicle is involved in a fatal accident while he is committing one of the qualifying offences. On this view, the “fault” lay sufficiently in being on the road at all without the right to be there, and no fault in the manner of driving or causal contribution beyond mere involvement was required.

As the hearing progressed, the Crown accepted that this interpretation could not extend to extreme cases such as a suicide deliberately running in front of the vehicle or another driver deliberately ramming the vehicle in an attempt to injure or kill. The court found that once such concessions were made, it became impossible to maintain a coherent, purely situational construction: if causation were not to be applied in the ordinary common law sense, the mental state of the third party could not logically matter.

The appellant did not contend that section 3ZB implicitly required proof of careless or inconsiderate driving as such, but argued that the phrase “causes…death…by driving” required that the defendant’s driving involve some act or omission that contributed in more than a minimal way to the death, and that the common law approach to causation should apply.

Common law causation principles

The court emphasised that the meaning of causation is context‑specific but that settled features of the common law’s approach recur. Two principles were highlighted:

1. The distinction between conduct that is merely a “but for” cause (a sine qua non) and conduct that is a legally effective cause.
2. The treatment of concurrent causes, where multiple acts or omissions by different persons may all be legally effective causes if each is more than de minimis.

The appellant relied on the rule that a voluntary, deliberate and informed act of a second person can break the chain of causation (the novus actus interveniens principle, as in R v Kennedy (No 2) [2007] UKHL 38; [2008] 1 AC 269). The court held that this principle did not assist Mr Hughes, because the relevant occurrence was the death of Mr Dickinson, not the act of his driving. Dickinson had not deliberately killed himself; he had driven dangerously and died as a result. If Mr Hughes’s driving was a cause at all, the case was about concurrent causes, not an intervening voluntary act breaking the chain.

The court then considered the limits of “but for” causation. It noted that a “but for” event does not necessarily qualify as a legal cause and referred to well‑known distinctions between merely setting the stage and conduct that, on a common sense view, is instrumental in bringing about the occurrence.

“In the case law there is a well recognised distinction between conduct which sets the stage for an occurrence and conduct which on a common sense view is regarded as instrumental in bringing about the occurrence.”

On a common sense test, Mr Hughes’s faultless driving simply created the opportunity for his vehicle to be struck; Dickinson’s own dangerous, drug‑impaired driving was what brought about his death. The court gave the analogy of a driver veering into a tree: although the planting of the tree is a sine qua non of the death, nobody would suggest the planter caused the death.

Penal construction and principle of legality analogy

The court stressed that section 3ZB creates a serious penal provision, a form of homicide with potential for substantial imprisonment and lifelong stigma from a homicide conviction. In that context, strictness in construction in favour of the accused was required.

It drew an analogy with the principle of legality in statutory interpretation, quoting Lord Hoffmann in R v Secretary of State for the Home Department Ex p Simms and O’Brien [2000] 2 AC 115, 131E:

“Parliamentary sovereignty means that Parliament can, if it chooses, legislate contrary to fundamental principles of human rights…. But the principle of legality means that Parliament must squarely confront what it is doing and accept the political cost. Fundamental rights cannot be overridden by general or ambiguous words. This is because there is too great a risk that the full implications of their unqualified meaning may have passed unnoticed in the democratic process. In the absence of express language or necessary implication to the contrary, the courts therefore presume that even the most general words were intended to be subject to the basic rights of the individual.”

Although the case did not concern fundamental rights, the court reasoned that, given the gravity of the homicide label and possible imprisonment, Parliament would need to use unambiguous language if it intended to displace the normal approach to causation and create liability for death solely on the basis of being uninsured, unlicensed or disqualified while involved in a fatal collision.

The court observed that Parliament could easily have done so. It could have legislated in terms such as: “anyone driving whilst disqualified [etc] whose vehicle was involved in a collision which resulted in death shall be guilty of an offence”, or it could have followed wording akin to section 170 of the Road Traffic Act 1988:

“If an accident causing the death of another person occurs owing to the presence on a road of a motor vehicle, the driver of that vehicle shall be guilty of an offence if the circumstances were that he was committing [any of the three specified offences]”.

Such formulations would have made clear that mere involvement of the vehicle in a fatal accident sufficed. Parliament did not adopt such language but instead chose the expression “causes…death…by driving”, thereby importing a causation requirement.

Need for something more than mere presence

From the statutory language and the principles of causation and penal construction, the court concluded that in order to give effect to “causes…death…by driving”, the prosecution must show that the defendant did something in the driving of the vehicle, or omitted to do something in the control of it, which went beyond simply putting it on the road so that it was available to be struck.

“It follows that in order to give effect to the expression “causes…death…by driving” a defendant charged with the offence under section 3ZB must be shown to have done something other than simply putting his vehicle on the road so that it is there to be struck. It must be proved that there was something which he did or omitted to do by way of driving it which contributed in a more than minimal way to the death.”

The court rejected intermediate positions, such as attaching liability where an unlicensed driver, acting without fault but in “the agony of the moment”, made a “wrong movement” in trying to avoid a collision or encountered an unexpected natural hazard like black ice. Attempts to define such “responsibility without culpability” were found to be illogical, incoherent and unworkable in practice; they would effectively reintroduce liability based on mere presence.

The court held that there is no stable middle ground between:

• (a) a rule that any involvement in a fatal accident while uninsured, unlicensed or disqualified suffices; and
• (b) a rule that the driver is guilty only when there is some additional feature of his driving that is causative on a common sense view and involves some element of fault.

Accordingly, to give effect to the words “causes…death…by driving”, there must be something in the manner of driving open to proper criticism — an element of fault — which contributed in more than a minimal way to the death. This need not amount to careless or inconsiderate driving in the statutory sense and need not be the principal cause. Examples might include slight excess speed or a technical defect (such as under‑inflated tyres or insufficient tread) that, though not amounting to careless driving alone, made the difference between avoiding and not avoiding the collision.

The court stated the practical direction to juries:

“Juries should thus be directed that it is not necessary for the Crown to prove careless or inconsiderate driving, but that there must be something open to proper criticism in the driving of the defendant, beyond the mere presence of the vehicle on the road, and which contributed in some more than minimal way to the death.”

Relationship with other offences and previous case law

The court noted that how much section 3ZB will add in practice to the array of existing causing-death-by-driving offences “will have to be worked out as factual scenarios present themselves; it may be that it will add relatively little”.

It considered academic criticism of the Court of Appeal’s decisions in Williams and in the present case, including commentary by Professor Ormerod and an article by Professors Sullivan and Simester, and agreed with their core view that more than mere involvement in a fatal accident is required to satisfy “causes the death…by driving”.

The court also referred to R v Marsh [1997] 1 Cr App R 67, concerning aggravated vehicle taking under section 12A of the Theft Act 1968, which uses different language (“owing to the driving of the vehicle”). It declined to extrapolate from Marsh to the construction of section 3ZB, noting the differences in wording and statutory context and leaving the interpretation of section 12A open.

Application to Mr Hughes and certified question

The certified question asked whether section 3ZB is committed:

“…when the circumstances are that the manner of his or her driving is faultless and the deceased was (in terms of civil law) 100% responsible for causing the fatal accident or collision?”

The court responded that civil concepts of apportionment are not appropriate in a criminal trial, but held that the use of “causes…death…by driving” requires at least:

“…some act or omission in the control of the car, which involves some element of fault, whether amounting to careless/inconsiderate driving or not, and which contributes in some more than minimal way to the death.”

On the agreed facts, there was nothing in the manner of Mr Hughes’s driving which contributed in any way to the death. The Recorder of Newcastle was therefore correct to rule that Mr Hughes had not in law caused the death by his driving. The decision in Williams and the Court of Appeal’s ruling in the present case were not followed.

Implications

This decision significantly narrows the scope of section 3ZB. It establishes that:

• Section 3ZB is not a pure “status” or situational offence attaching homicide liability simply because a driver is uninsured, unlicensed or disqualified when involved in a fatal collision.
• The prosecution must prove that the defendant’s driving contained an element of fault — something open to proper criticism — which contributed in a more than minimal way to the victim’s death.
• Mere presence on the road and “but for” causation are insufficient; the common law’s common sense approach to legal causation governs.
• Courts must construe serious penal provisions, especially those effectively creating homicide offences, with strictness and will not easily infer a legislative intention to impose double strict liability without clear and unambiguous wording.

The case provides authoritative guidance on how juries should be directed in section 3ZB prosecutions and clarifies the boundaries between regulatory driving offences and homicide offences in road traffic law. It also highlights the care required in legislative drafting when Parliament seeks to create aggravated forms of existing offences with enhanced penalties linked to serious harm.

Verdict: Appeal allowed; the Recorder’s ruling was restored, holding that Mr Hughes had not in law caused the death by his driving and was not guilty of the offence under section 3ZB.

Source: R v Hughes [2013] UKSC 56