R v Taylor [2016] UKSC 5

Taylor took a truck without consent and was involved in a fatal collision, though his driving was faultless. Charged with aggravated vehicle taking, the issue was whether injury need involve driving fault. The Supreme Court held that fault in the driving causing the injury is required.

Facts

Jack Taylor took a Ford Transit Tipper truck in Exmouth from a friend, David Marriott. The vehicle belonged to Marriott’s employer and was alleged to have been taken without the owner’s consent, amounting to a basic offence under section 12(1) of the Theft Act 1968.

While returning from Exeter after collecting another friend, Taylor collided on a bend in a narrow country lane with a scooter ridden by Steven Davidson-Hackett. The scooter slid under the wheels of the truck and Davidson-Hackett was killed. Taylor was over the drink-drive limit and uninsured, but the Crown accepted there was no evidence on which a jury could be sure that his manner of driving was at fault or open to criticism.

Taylor was charged with aggravated vehicle taking contrary to section 12A of the Theft Act 1968 (Count 3) and with causing death while uninsured contrary to section 3ZB of the Road Traffic Act 1988 (Count 4), among other counts.

Issues

Following the Supreme Court’s decision in R v Hughes on section 3ZB of the Road Traffic Act 1988, the Crown offered no evidence on Count 4 and a not guilty verdict was directed.

The central issue became whether, under section 12A(1) and 12A(2)(b) of the Theft Act 1968, aggravated vehicle taking is committed when, after the basic offence and before recovery, the defendant drives the vehicle and, without any fault in his driving, the vehicle is involved in an accident causing injury.

The certified question of general public importance was:

“Is an offence contrary to section12A(1) and 2(b) of the Theft Act 1968 committed when, following the basic offence and before recovery of the vehicle, the defendant drove the vehicle, and without fault in the manner of his driving the vehicle was involved in an accident which caused injury to a person.”

The underlying legal issues were:

• Whether section 12A(2)(b) requires proof of fault in the manner of driving (mens rea) in relation to the accident causing injury; or
• Whether the only necessary fault is the initial unauthorised taking, so that any subsequent injury “owing to the driving” creates strict liability once the vehicle’s presence at the scene is established.

Statutory framework

Basic offence under section 12(1)

Section 12(1) of the Theft Act 1968 creates a summary offence where a person:

“without having the consent of the owner or other lawful authority, he takes any conveyance for his own or another’s use or, knowing that any conveyance has been taken without such authority, drives it or allows himself to be carried in or on it.”

Knowledge of the absence of authority is an essential element; the offence is not one of strict liability.

Aggravated vehicle taking under section 12A

Section 12A, inserted by the Aggravated Vehicle Taking Act 1992, provides that a person is guilty of aggravated taking of a vehicle if he commits the basic offence in relation to a mechanically propelled vehicle and, before the vehicle is recovered, it is driven or injury or damage is caused in specified circumstances.

The relevant aggravating circumstance in this case was section 12A(2)(b):

“that, owing to the driving of the vehicle, an accident occurred by which injury was caused to any person;”

Section 12A(3) sets out defences where the relevant driving, injury or damage occurred before the defendant committed the basic offence, or where he was neither in nor in the immediate vicinity of the vehicle when it occurred.

At the material time, aggravated vehicle taking carried a maximum of two years’ imprisonment, or 14 years if death was caused (the latter increased to 14 years by section 285(1) of the Criminal Justice Act 2003).

Procedural history

At trial before the Recorder of Exeter, following Hughes, the Crown accepted that no fault could be attributed to Taylor’s driving and offered no evidence on the causing death while uninsured count; a not guilty verdict was directed on Count 4.

The Recorder then had to determine whether, in light of Hughes and the Court of Appeal authority in R v Marsh [1997] 1 Cr App R 67, a conviction on Count 3 was possible absent proof of fault in the driving that caused the accident. He ruled that fault had to be proved in relation to the accident. The Crown appealed.

The Court of Appeal (Criminal Division) allowed the Crown’s appeal, holding it was bound by Marsh, but certified the question of public importance and granted leave to appeal to the Supreme Court.

Authorities considered

R v Marsh

Marsh involved indistinguishable facts concerning section 12A(2)(b), albeit the injuries were non-fatal. The Court of Appeal held that fault in relation to the accident was not an element of the offence. Laws J concluded that the only requirement was that the driving caused the accident, and it was not legitimate to imply that the manner of driving must have caused it. He noted that while section 12A(2)(a) expressly referred to dangerous driving, subsections (b)–(d) contained no equivalent fault requirement, and so no further fault beyond the basic taking was needed.

R v Williams

In Williams, interpreting section 3ZB of the Road Traffic Act 1988 (causing death by driving when unlicensed, disqualified or uninsured), the Court of Appeal upheld a conviction where the fatal accident was entirely the pedestrian’s fault. It applied the approach in Marsh, observing at paragraph 14 that:

“the approach of this court in Marsh applies even more clearly to the offence under section 3ZB of the 1988 Act”

R v Hughes

In Hughes [2013] 1 WLR 2461, the Supreme Court considered section 3ZB where an unlicensed and uninsured driver (Hughes) was involved, without any fault in his driving, in a fatal collision caused entirely by another driver’s dangerous driving under the influence of heroin. The Court of Appeal had again applied Marsh, but the Supreme Court reversed that decision.

The joint judgment of Lord Hughes and Lord Toulson emphasised the severe consequences of the Court of Appeal’s interpretation, including liability for homicide for drivers who could not have prevented the accident. They asked:

“Has Parliament used language which unambiguously has such far reaching effects?”

The Supreme Court held that the statutory requirement that the defendant’s driving “causes” the death is not satisfied merely because his presence on the road was a sine qua non of the accident. Effective causation in the common-sense sense was required, and mere presence as an uninsured or unlicensed driver was insufficient.

The Court also rejected the notion that culpability for being uninsured could supply the mens rea appropriate to an offence whose essence is causing another’s injury or death:

“To say that he is responsible because he ought not to have been on the road is to confuse criminal responsibility for the serious offence of being uninsured with criminal responsibility for the infinitely more serious offence of killing another person.”

The Court required:

“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”.

Arguments before the Supreme Court

Crown’s position

The Crown advanced a primary argument that Hughes should be overruled under the 1966 Practice Statement, partly on the basis of concessions made by the Crown in Hughes about the relevance of fault in extreme cases (such as deliberate acts by the victim). It also sought to distinguish Hughes from the present case due to differences in statutory language and structure between section 3ZB of the Road Traffic Act 1988 and section 12A of the Theft Act 1968.

Substantively, the Crown contended that section 12A(2)(b) required no separate element of fault in relation to the accident, and that the only fault necessary was the initial unauthorised taking of the vehicle under section 12(1). It relied on Marsh as authority for this interpretation.

In the alternative, the Crown argued that Taylor’s excess alcohol constituted sufficient fault, because:

“if he had been sober he would not have been driving at all, [and] the fatal accident would not have happened”

Appellant’s position

Taylor’s case was that, following Hughes and general principles of mens rea and causation, section 12A(2)(b) requires proof of fault in the driving which causally contributed to the accident causing injury. Without such fault, the causal connection “owing to the driving” is not established, and the offence cannot be made out.

Judgment

Whether to depart from Hughes

Lord Sumption, giving the judgment of the Court (with whom Lord Neuberger, Lady Hale, Lord Mance, Lord Carnwath, Lord Hughes and Lord Toulson agreed), rejected the suggestion that Hughes should be overruled. He regarded the Crown’s concession in Hughes (that no liability would arise where the death was due to a deliberate act of the deceased) as exposing the weakness of its case, not as undermining the Court’s reasoning.

He concluded that there was no proper basis on which the present panel should take a different view, and that a mere difference of opinion could not justify departing from Hughes.

Whether Hughes can be distinguished

The Court considered potential distinctions between section 3ZB and section 12A, including:

• Section 12A requires proof of the basic offence under section 12(1), which itself requires knowledge of lack of consent and is not an offence of strict liability.
• Aggravated vehicle taking is not, strictly speaking, an offence of homicide, although it carries a higher maximum sentence where a death occurs.
• Under section 12A, the defendant need not be the driver at the time of the accident; he may be a passenger or in the immediate vicinity.
• Section 12A(3) contains specific statutory defences.

However, Lord Sumption held that the essential point made in Hughes was common to both offences. Both the phrase “causes the death of another person by driving a motor vehicle on a road” in section 3ZB and the phrase “owing to the driving of the vehicle, an accident occurred by which injury was caused to any person” in section 12A(2)(b) require a direct causal connection between the driving and the injury. If causation were satisfied merely because the unlawful taking led to the vehicle being at the place of the accident, all the anomalies identified in Hughes would arise equally under section 12A.

Strict liability and mens rea

Lord Sumption then turned to general principles of mens rea. Citing R v Tolson and Sweet v Parsley, he reaffirmed the principle that a crime normally requires a culpable state of mind unless Parliament has clearly or by necessary implication provided otherwise.

He quoted Lord Reid in Sweet v Parsley:

“it is firmly established by a host of authorities that mens rea is an essential ingredient of every offence unless some reason can be found for holding that that is not necessary. It is also firmly established that the fact that other sections of the Act expressly require mens rea, for example because they contain the word ‘knowingly’, is not in itself sufficient to justify a decision that a section which is silent as to mens rea creates an absolute offence. In the absence of a clear indication in the Act that an offence is intended to be an absolute offence, it is necessary to go outside the Act and examine all relevant circumstances in order to establish that this must have been the intention of Parliament. I say ‘must have been’ because it is a universal principle that if a penal provision is reasonably capable of two interpretations, that interpretation which is most favourable to the accused must be adopted.”

He also referred to Lord Diplock’s discussion of strict liability in regulatory or “quasi-criminal” statutes, emphasising that an inference of strict liability is not lightly to be drawn and only arises where there is something positive the defendant can do by supervision, inspection or control to prevent the prohibited outcome.

Lord Sumption characterised section 12A as creating a serious criminal offence, not a regulatory one. The aggravating factors expose a defendant to a maximum sentence of 14 years’ imprisonment in cases of death, equating to the maximum for causing death by dangerous driving. There is a significant moral stigma attached, and it would be exceptional for Parliament to intend strict liability for the aggravating elements without clear language.

Scope of strict liability under section 12A

The Court accepted that section 12A contains one clear element of strict liability: a person who is party to the basic offence under section 12(1) and who is in or in the immediate vicinity of the vehicle can be liable for aggravated vehicle taking even if not driving at the time of the dangerous driving, injury or damage. Lord Sumption explained that this follows from the statutory language and reflects a rational policy that someone who has been party to taking the vehicle can exercise control or influence over its safe use while present.

However, he drew a sharp distinction between that limited strict liability and making a defendant criminally responsible for injury or damage which could not have been prevented because it occurred without any driving fault or was entirely the victim’s fault. Such an extension would require clear statutory language, which section 12A lacks.

Lord Sumption observed that of the four aggravating circumstances in section 12A(2), paragraph (a) expressly imports fault by requiring dangerous driving, while paragraphs (b)–(d) do not expressly exclude a fault requirement. In the case of paragraphs (b) and (c), he held that it is implicit in the phrase “owing to the driving of the vehicle” that there must be something wrong with the driving. As in Hughes, the driving cannot be said to have caused the accident if it merely explains how the vehicle came to be at the place of the accident.

Application to the facts and the alcohol argument

Given the admitted absence of fault in Taylor’s driving, the Court held that the driving did not cause the death of Davidson-Hackett within the meaning of section 12A(2)(b). The mere fact that Taylor was over the drink-drive limit did not supply the necessary causal fault.

Addressing the Crown’s alternative contention that the excess alcohol constituted the requisite fault and that “if he had been sober he would not have been driving at all, [and] the fatal accident would not have happened”, Lord Sumption rejected this argument as misconceived. The relevant fault must lie in the control of the vehicle that establishes the causal connection between the driving and the accident. Excess alcohol established the separate summary offence under section 5(1)(a) of the Road Traffic Act 1988, but on the agreed facts it had nothing to do with the accident.

Test restated

Lord Sumption adopted the test from Hughes for the purposes of section 12A(2)(b):

“There must be ‘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’.”

Applied to Taylor, there was no such act or omission in his driving, so the aggravated element of section 12A(2)(b) was not satisfied.

Implications

The Supreme Court’s decision confirms that aggravated vehicle taking under section 12A(2)(b) requires proof of fault in the control of the vehicle that causally contributes, in a more than minimal way, to the accident causing injury. It is insufficient that the defendant unlawfully took the vehicle and that an injury occurred while it was being driven; there must be some culpable act or omission in the driving which can be said, in common-sense terms, to have caused the accident.

The ruling aligns the causation and mens rea requirements of section 12A(2)(b) with the approach in Hughes to section 3ZB of the Road Traffic Act 1988, rejecting a broad strict liability model in which mere presence on the road or involvement in taking a vehicle would expose defendants to grave liability for consequences they did not cause by any fault.

Practically, prosecutors must now be prepared to prove at least some fault in the manner of driving when relying on section 12A(2)(b) (or similarly worded provisions), rather than relying solely on the unlawful taking plus the fact of an accident and injury. The decision limits the reach of aggravated vehicle taking and reinforces the presumption of mens rea for serious criminal offences with substantial moral stigma and potential custodial penalties.

Verdict: Appeal allowed; the Supreme Court held that aggravated vehicle taking under section 12A(1) and (2)(b) of the Theft Act 1968 requires some fault in the control of the vehicle causally contributing to the accident, and answered the certified question in the negative.

Source: R v Taylor [2016] UKSC 5