Yaqoob, R v

In the early hours of 21 July 2002 two minicabs owned by Falcon Taxis, a firm based in Aylesbury, were returning from Watford on the A41. At a point near Tring where the road is a wide dual carriageway, the nearside rear tyre of the first vehicle being driven by Aqbal burst. Aqbal lost control. The vehicle overturned. Several passengers were injured and one, Mr Scotten, was killed.

The appellant was a partner in Falcon Taxis, a family firm. He was responsible for arrangements for the inspection and maintenance of the minibus and had arranged for the tyre which burst to be replaced in circumstances which will be necessary to describe. The appellant and Aqbal were charged with causing death by dangerous driving. They were tried at St Albans Crown Court in September 2003. The jury disagreed and a new trial was ordered.

Prior to the retrial the prosecution applied to add counts of manslaughter by gross negligence against the appellant and Aqbal. On 23 December 2003 HH Judge Michael Baker QC in a very clear and cogent ruling allowed the application in respect of the appellant and refused it in respect of Aqbal.

The trial then took place before HH Judge Michael Findlay Baker QC and jury between 19 and 29 April 2004. The appellant was convicted of manslaughter and sentenced to 4 years imprisonment and disqualified from driving for 4 years. Aqbal was convicted of causing death by dangerous driving and sentenced to 21 months imprisonment and also disqualified from driving for 3 years.

The appellant appeals against conviction by leave of the single judge. The single judge gave leave to appeal on one ground only. The application on the other grounds of appeal against conviction and the application for leave to appeal against sentence were referred to the full court.

At the conclusion of the hearing, we dismissed the appeal against conviction, but allowed the appeal against sentence quashing the sentence of 4 year imprisonment and substituting a sentence of 2½ years imprisonment and reducing the period of disqualification to 3 years. These are the reasons for our decision.

It is convenient first to consider the application made on behalf of the appellant to adduce fresh evidence – an expert on the cause of the tyre failure and what was visible prior to the accident. For this purpose, it is necessary to set out the facts in a little more detail

The minibus had been inspected by the local Council on 5 June 2002; at that time it was noted that the rear nearside tyre was at the limit of 1.6mm. Shortly thereafter, the appellant arranged for it to be replaced by a part worn tyre of the correct size. The vehicle was subject to spot checks by the local council; there was evidence that there had been spot checks by the council’s inspector on 24 June and 8 July 2002.

At the trial the expert relied on by the prosecution was Mr John Manderson. He was a graduate in chemistry and a chartered chemist; he had considerable experience as a member of the Metropolitan Police Forensic Science Service from 1971 to 1994; thereafter he had been in private practice, being the director of Traffic Accident Investigation of the very well known firm of Dr J.H. Burgoyne & Partners from 1999. The essential nature of his evidence was set out in a statement dated 28 August 2002 which was served prior to the committal of the case to the Crown Court. It can be summarised as follows:

The tyre was a tubeless reinforced radial ply tyre. It had been in use for 10,000 miles and had suffered premature wear through tread shuffle

This occurred through poor chemical bonding of the tread to the carcass of the tyre, probably as a result of a manufacturing defect. His experience (and that of others) in testing tyres to destruction was that the tyre would inevitably fail through the sidewall.

The poor bonding would have resulted in a swelling or bulge in the tread so that the loose areas would have stood proud of the circumference of the tyre.

The presence of the two prematurely worn bulges on the tread would have been obvious in any visual examination of the tyre; protruding steel filaments would also have been readily apparent to anyone running their hands round the tyre in the course of an inspection of the tyre.

The appellant called no expert evidence. The circumstances in which this decision was made were as follows:

Counsel originally instructed for the appellant advised that expert advice should be obtained on behalf of the defence about the tyre failure. The solicitors instructed on behalf of the defence found an expert who quoted an estimated fee of £3000. The Legal Service Commission declined to approve that expert on the basis he was too expensive.

The defence found another expert, Mr Graham Oakley, who provided an estimated fee of less than £2000. He was a member of he Society of Expert witnesses and on the UK Register of Expert Witnesses. His expertise was considered suitable. The Legal Services Commission approved his retention.

In his report of 19 August 2003 (a copy of which was provided to us), Mr Oakley, after inspecting the tyre, agreed with Mr Manderson’s opinion that the tyre had been in use for 10,000 miles and that the separation of the tread from the carcass was probably the result of a manufacturing fault which had manifested itself whilst the tyre was in use. His conclusion was:

Prior to the second trial, it does not appear that it was fully appreciated by the solicitors or junior counsel instructed that the essential issue was the cause of the tyre degradation and the question as to whether any indication of that degradation would have been visible prior to the accident; they apparently looked at the issue more broadly in terms of the roadworthiness of the vehicle. Mr Oakley was not called at the first trial as junior counsel did not consider his evidence was of assistance to the appellant.

Leading counsel was instructed after the count of manslaughter was added to the indictment in December 2003. On 15 April 2004, shortly before the re-trial, a further opinion was obtained from Mr Oakley on the issue of whether the tyre tread would wear away at the same rate all along the tyre assuming that the part where the burst occurred had already had significant wear. His brief answer was that, when the tread started to break away, there would be excessive wear on that part of the tyre, but he could not give a mileage travelled before the fault became a failure as there were too many variables.

We were told by counsel that he was informed that no further funding would be made available for a further expert and that no expert could be found in the time available who could match the expertise of Mr Manderson.

During the course of the trial, leading counsel saw Mr Oakley during a luncheon adjournment. He concluded at that time that he should not be called as he did not have the scientific expertise to match Mr Manderson and his evidence did not support the defence case. It was thought that Mr Oakley’s expertise principally related to accident investigation and the roadworthiness of vehicles; he was not a chemist and not specifically expert in the degradation of tyres.

After the appellant’s conviction, leading counsel advised that there were arguable grounds for appeal and that there were reasons for doubting the accuracy of the evidence of Mr Manderson. Enquiries were made by the appellant’s solicitors as to further experts; they consulted the Forensic Science Laboratory, tyre manufacturers and an agency that found experts. They found an expert but he had earlier assisted one of the other parties. They then found an expert, Mr Rex Grogan, who agreed to act at a fee significantly less than that of Mr Oakley; this fee was funded by the appellant’s family. Mr Grogan had been in the tyre industry all his life; he had started in 1947 with the Tyre Compounding Laboratory of Dunlop Ltd and remained with Dunlop Ltd until 1980, when he established himself as an independent consultant; he had trained in the course of his career a number of Home Office forensic scientists He carried out an examination of the tyre; in his report dated 9 March 2005 which we considered de bene esse, he stated he did not agree with Mr Manderson’s opinion that the bulges would have been visible; he considered that the bulges could have developed during the final journey of the minibus; the steel cord filaments had probably penetrated the inner lines and air had escaped into the unbonded areas; this had formed very large air bubbles which caused very rapid local wear. His report was disputed by Mr Manderson in a further report which we also considered de bene esse..

The basic principles upon which this court admits fresh evidence are set out in s.23 of the Criminal Appeal Act 1968 and in the speech of Lord Bingham in R v Pendleton [2001] UKHL 66. In R v Jones (Steven) [1997] 1 Cr App R 86, Lord Bingham CJ explained the operation of these principles in relation to expert evidence.

The prosecution disputed Mr Grogan’s expertise; they also contended that what was being done after the trial was to “shop around” for expert evidence that would support the appeal in circumstances where the defence had had expert evidence at trial which had not been called as it did not support their case.

It was not necessary for us to decide these two issues; we proceeded on the basis, purely for the purposes of the application, that Mr Grogan was competent to give evidence on the issue of the cause of the failure of the tyre, that his evidence was being advanced in good faith and that his evidence would have been admissible at the trial. We also proceeded on the basis, purely for the purposes of the application, that Mr Grogan’s evidence would have supported the defence case at trial that the tyre was visually inspected and no defect found.

However, this was in our view a case where there was no proper explanation, let alone a reasonable explanation, for the failure to adduce the evidence at the trial. To permit the appellant to adduce the evidence of Mr Grogan on appeal in the circumstances would be to subvert the trial process.

The expert evidence served by the prosecution was clear and the area of expertise of Mr Manderson was clear. There was a very long period in which to consider that evidence before the first trial and the re-trial.

The views of Mr Oakley were clear. He agreed with Mr Manderson’s views on causation and on the visibility of the defect. That was set out in his report provided before the first trial.

The fact that Mr Oakley was not a chemist and had no specific expertise in tyres or tyre degradation was obvious.

It was incumbent on the defence to consider the expert evidence well before the trial and the re-trial. There was ample opportunity to seek to instruct a new expert, if the view has been reached that his expertise did not match that of Mr Manderson. Cost cannot have been an impediment as the fee charged by Mr Grogan was significantly less than that charged by Mr Oakley. Nor was time a problem. Mr Grogan was found with little difficulty after the trial.

It appears that the final view on the lack of relevant expertise on the part of Mr Oakley was not reached until a point during the course of the trial. The course that then should have been taken was to apply to the trial judge for an adjournment. No application was made. To permit the issue which was then apparent to be re-opened on an appeal would be subvert the trial process.

This is not a case where there is new learning or advances in science; the evidence which the appellant sought to adduce on appeal was evidence that was available at the time of the trial. It was simply to a different effect to that which was available to the defence long before the trial and re-trial.

For those reasons, we refused the application to adduce fresh evidence.

We were told the issue relating to expert evidence was not examined at the Plea and Directions Hearing; although we were given no further explanation, we assume this was because there was on the reports that had been obtained no real issue. It is also possible that sufficient thought had not then been given by those acting for the appellant to the extent of the expertise of Mr Oakley.

However, in our view, what we were told then happened in this case after the Plea and Directions Hearing underlines the importance of proper preparation before the Plea and Directions Hearing or, as it now is, the Plea and Case Management Hearing. In a case such as this, the nature of the expert evidence in issue should have been clear to any lawyer applying his mind properly to the issues; similarly the difference in the range of expertise between Mr Manderson and Mr Oakley was clear. By the time of the Plea and Directions Hearing, these matters should have been the subject of careful advice by the advocate instructed on behalf of the appellant; if there were issues that the defence wished to raise on expert evidence, then that was the time to raise them and discuss them at that hearing before the judge. The criminal trial process depends on early and thorough preparation of the case.

By the time of the trial of this case, it should have been properly prepared on both sides; indeed the trial judge would have been entitled within the exercise of his discretion to refuse to adjourn the case if an application had in fact been made to adjourn the trial to enable a new expert to be instructed; whether he in fact would have done so was a matter of his discretion. Parties to a criminal case are generally not entitled to an adjournment at the beginning of a trial or during the trial on the grounds that at that time a different view is taken about evidence than had been taken at the stage at which the evidence was or should have been reviewed, if nothing materially has changed; a change of mind by the advocate about the evidence required or the views of a new advocate about the evidence required are not generally for these purposes material changes. The time for forming views on the evidence required is at the time of the Plea and Case Management hearing or, if something new has emerged, as soon as that is known or appreciated.

The judge in this case would therefore have been well within the exercise of his discretion to have refused an adjournment and to have proceeded with the trial, as what appears to have happened is that there had been a change of view in relation to evidence which should properly have been considered at the Plea and Directions Hearing or in any event well in advance of the commencement of the re-trial. However no such application was made to him; that factor, in addition to the other matters we have set out, underlines our judgment that to admit fresh evidence now would in the circumstances of this case be to subvert the trial process.

We therefore turn to consider the appeal on the basis of the evidence adduced at the trial and to the sole ground on which leave to appeal was granted – the direction given by the judge on gross negligence for the offence of manslaughter.

It was submitted on behalf of the appellant in this case that the direction given to the jury had to be approached on the basis that the sudden catastrophic type of failure to the tyre was rare and that the subsequent and inevitable loss of control consequent upon such tyre failure was also rare. In the circumstances therefore it was incumbent on the judge to have directed the jury more fully on the risk of death.

The judge’s direction on manslaughter covered the four ingredients:

duty

breach of duty

causation

whether the breach amounted to gross negligence.

The criticism was directed solely in respect of the direction on the fourth ingredient:

It was submitted on behalf of the appellant that the judge should have directed the jury in terms that in deciding whether the conduct amounted to gross negligence, they had to be sure that the conduct was not merely one that had disregard for the life and safety, but that it showed indifference to the risk of death. The judge had not made this clear, as he had referred (in the passage to which we have added emphasis) to the risk to life and safety and not solely to the risk of death.

In R v Adomako [1995] 1 AC 171, Lord Mackay of Clashfern referred in his speech to the material risk being the risk of death in the following passage (to which we have added emphasis):

However Lord MacKay in Adomako also referred with approval to the passages in the judgment of Lord Hewart CJ in R v Bateman (1925) 19 Cr App R 8 (to which we have also added emphasis):

As can be seen from the passages to which we have added emphasis, the direction given by the judge was based on the passages in the judgment of Lord Hewart CJ.

After the decision in Adomako, there was discussion in the literature and cases on the issue as to what was the nature of the relevant risk – was it serious risk to life or did it extend to serious risk to safety as well as to life? This issue was directly addressed in R v Misra [2004] EWCA Crim 2375; in giving the judgement of this court, Judge LJ, said at paragraph 52:

This decision has settled the issue. But it is necessary to consider each direction given to the jury in its context to examine if it accords with the law as settled by Misra. In the instant case, the direction given by the judge was given in a case where it was obvious to the reasonable person in the position of the appellant that the minibus would be travelling on very fast dual carriageway roads in the vicinity of Aylesbury at speeds where tyre failure could well result in a fatality; there could be no doubt therefore that the only risk engaged was the risk of death and the reference to the risk to safety was superfluous. In context therefore the use of the phrase from the judgment of Lord Hewart CJ could only have been referable to the risk of death and not anything short of that. We would add, however, that in general a direction should expressly refer to the fact that it is the risk of death, not merely of serious injury, that is relevant. As was said in Misra, this court approved in R v Singh (Gurpal) [1999] CLR 582 the direction that

We are therefore satisfied that there was no misdirection and the sole ground on which leave to appeal was given failed. We turn to set out our reasons for refusing leave on the grounds on which the application for leave to appeal was referred to the full court.

The first ground of the application for leave to appeal referred to the full court was the submission that there was no evidential or legal basis for the prosecution case that the owner of a public service vehicle owed a higher duty than that than set out in the regulations applicable to public service vehicles.

The prosecution case was that it was for the jury to assess the level of duty owed; it was for them to assess whether in all the circumstances it was sufficient for a driver of a mini bus such as that operated by the appellant only to abide by the regulations or whether more was required.

On behalf of the appellant, this approach was criticised. It was said that there was no evidence before the jury as to how mini cab firms should have operated the routine maintenance and checking of their vehicles. The prosecution could, of course, have established this by expert evidence but they did not do so. In the circumstances it was not fair for the prosecution to have been allowed to advance any case that went beyond abiding by the regulations.

We do not agree. It was, in our view, entirely open to the jury to find that there was a duty to inspect and maintain beyond that required for a MOT test, council inspections and other duties imposed by regulation. It was well within the competence of a jury to assess that duty without any expert evidence; these were not technical issues beyond their competence and they did not need expert help. The judge properly left the matter to the jury.

The evidence given at the trial by the appellant was that no maintenance or service records were kept. He said the vehicle was serviced in school breaks but there was no paper work to show that this was so. The judge commented:

It was submitted on behalf of the appellant that the prosecution should not have been permitted to advance a case to the jury on the basis that the absence of records of vehicle inspection beyond those required by regulation was evidence of a breach of duty.

It appears that the Crown did not advance such a case; it was their case that it was for the jury to assess the extent of the record keeping. The weight attached to this as evidence of a breach of duty was for the jury; there was no reason why the ambit of what they were entitled to consider was circumscribed by the requirements of regulation. In our view, there was no arguable basis on which that approach could be criticised; the jury were entitled to look at the whole of the circumstances as they found them to be.

The prosecution case was that if part worn tyres were used on a vehicle, then there should have been more frequent inspections.

It was submitted on behalf of the appellant that the prosecution should not have been permitted to advance this case because it was perfectly lawful to use part worn tyres. There was no evidence to show that the appellant either knew or should have known of any risks associated with part worn tyres.

We find this ground to be wholly without merit. It is obvious that the use of part used tyres necessitates more frequent inspection than a new tyre.

The final ground sought to be advanced was that the judge had failed to remind the jury of what the appellant contended was an inconsistency in Mr Manderson’s evidence. As we have set out, it was the defence case that the visual inspections carried out, including that by the council, had not disclosed any defect visible to the eye or to touch.

The vehicle had travelled 6531 miles between the date of the Council Inspection on 5 June 2002 and the fatal accident. It had been suggested to Mr Manderson in cross examination that if, as he thought, it was inconceivable that the tyre tread could have worn two discrete areas from over 4mm to less than 1mm by travelling that distance and the two areas of tread must have had tread of about 2mm, it was impossible to understand how the two discrete areas have worn from the standard 8mm to 2mm in the 4000 miles the tyre must have completed at the time it was fitted.

Mr Manderson did not accept this proposition when put to him; the defence contended that the fact he would not showed an inconsistency in his evidence which the judge should expressly have pointed out. We do not consider that there is an arguable complaint. First, the judge did draw attention to the cross examination and told the jury that if they if they considered that the appellant’s advocate had exposed a flaw in the reasoning of Mr Manderson, then they were entitled to reject his evidence. Secondly, Mr Manderson did not accept the proposition put; his evidence was that the measurements were all approximations, the causative case he had advanced was by its nature one that could not be tied to precise measurements, but he considered that the bulges were visible in the weeks before the accident.

Apart from considering the specific grounds put forward, we considered the overall safety of the conviction. We saw no reason to question its safety.

The judge, in sentencing the appellant on the basis that he should have spotted the defect in the tyre, observed

We agree that it is incumbent on all operators of minibuses and minicabs to exercise due care to see that their vehicles are frequently inspected and well maintained. There was, however, nothing before the court or suggested to us on the appeal that required a deterrent sentence in this type of case.

Where a deterrent sentence is not required, a sentence of four years is more than within the general range of sentences for manslaughter of this type (which is not a motor manslaughter case); see, for example R v Kite [1996] 2 Cr App R (S) 295. In our judgment, taking into account the appellant’s previous good character, the way in which he had run his company for 12 years without incident and his personal circumstances, we considered that the appropriate sentence should have been one of 2½ years. As to the period of disqualification, we considered that the period should not have been higher than that of the driver and we accordingly reduced the period to one of 3 years. To that extent only and for those reasons, we allowed the appeal against sentence.