Girdler v R.

LORD JUSTICE HOOPER:

But what the defence say – and you’ll clearly have to think about it carefully – is that other drivers managed to steer round the taxi in their path and it was the fact that Miss Cunningham did not manage to steer round the taxi in her path that was the cause of the deaths. You’ll have to give this careful consideration, and you’ll be looking at the time, the circumstances, the location, what other witnesses have said about the unexpectedness of coming on the scene and finding that in front of them. The prosecution word used on Friday was the mayhem in front of them. But you’re going to have to grapple with the fact that some drivers did escape colliding with the taxi, at least in the way that Miss Cunningham did, and consider what the reason and the explanation for that is. I remind you the defence have said that Miss Cunningham was shown to have had something to drink but was certainly not over the drink/drive limit, but that her driving, her reactions, may have been impaired. It may be that those who were passengers in vehicles were able to take on board more of what was in front of them than drivers who told you that they were distracted by the, what was going on to the left of the scene with the Audi and its lights flashing. So all those kind of considerations you’re going to have to take on board when considering where the cause lies.

If you are sure that the driving was dangerous, then go on to consider whether that caused the deaths in Count 1 of Mr Trewick and in Count 2 of Miss Cunningham. As I’ve said, and it’s on the handout, you do not have to be sure that the dangerous driving was the principal or substantial cause of the death, as long as you are sure that there was something more than a slight or trifling link.

Please can we have paragraph four, the last paragraph of the legal directions, clarified?”

You do not have to be sure that his dangerous driving was the principal or substantial cause of death, as long as you are sure that it was a cause and that there was something more than a slight or trifling link.

The prosecution do not have to make you sure that it was his driving which literally killed them. By that I mean that it was his car that caused the injuries. They don’t have to make you sure about that. But they do have to make you sure that it was the manner of his driving which set off a chain of events that was more than a slight or trifling link to their deaths in the second collision. It may help to ask yourselves this question: are you sure the Defendant caused one or both deaths – not the accident, but caused one or both deaths – by driving dangerously in leaving the taxi immobilised in the middle of the fast moving A3, which put that taxi driver at real risk of being hit by another vehicle, or not?

1. You do not have to be sure that his dangerous driving was the principal or a substantial cause of a death as long as you are sure that it was A cause and that there was something more than a slight or trifling link.

2. Prosecution do not have to make you sure that it was his driving which literally killed them, ie that it was his car that caused the injuries which killed them;

3. The prosecution must make you sure that it was the manner of his driving which set off a chain of events that was more than a slight or trifling link to their deaths in the second collision.

4. May help to ask yourselves this question

Are you sure the defendant caused one or both deaths, not the accident, but caused one or both deaths by his dangerous driving leaving the taxi immobilised in the middle of the fast moving A3 whereby he put the driver of the taxi at real risk of being hit by another vehicle, or not?

...

The prosecution do not have to make you sure that it was his driving that literally killed them – i.e. that it was an impact with his car that inflicted the injuries that killed them.

The prosecution must make you sure that the dangerous driving caused the death, not just the preceding collision.

You do not have to be sure that his dangerous driving was the only cause of death or even that it was a substantial cause of the deaths. There may be a number of causes, including for example the negligent actions of the deceased, or other drivers at the scene. It is no defence to say that if others had been more careful or more alert it could have been avoided but you must be sure that:

1. It was a cause, and

2. That no other cause had effectively replaced it, and

3. That there was something more than a trifling link between his dangerous driving and the deaths

It is the Crown’s case that the defendant’s dangerous driving set off a chain of events which was more than a slight or trifling link to their deaths in the second collision.

The Defence say that regardless of the manner in which he drove, the prosecution cannot prove to you that the deaths were caused by the chain of events set off by his driving because there may have been intervening acts of other persons that effectively replaced it (“broke the chain of causation”). There was or may have been an act or omission on the part of Catherine Cunningham or Preston Trewick that was so significant that the contribution of the effect of the Defendant's driving was so trifling that it should be discounted.

The prosecution must make you sure that the defendant’s conduct remained a cause and that, despite the actions of Ms Cunningham or Mr Trewick it was still a cause of the death that was more than trifling.

There are two separate allegations simply because there are two deaths. Because they arose out of the same circumstances and the one impact it follows that if the defendant is guilty of one count he would be guilty the other and accordingly if not guilty of one count then not guilty of the other.

3. The appellant's journey took them along the A1139, a dual carriageway with a speed limit of 70 miles per hour. The road conditions were good, and the appellant's speed was estimated variously at between 50 and 60 miles per hour. A short distance along the road the sofa suddenly flew out of the back of the truck, probably taken into the air by the wind. It landed on the inside lane of the dual carriageway.

4. The appellant and Mr Wilson said they had been conscious of the fact that the sofa might come loose and had been watching it carefully. They had ensured that there was no distracting noise in the cab. When they realised the sofa was missing they stopped some 105 metres further on in the inside lane. ... The appellant seems to have parked as best he could with his nearside wheels off the carriageway. He put on his hazard lights, and his passenger, Mr Wilson, got out to try to retrieve the sofa from the carriageway.

5. A number of vehicles came upon the sofa in the carriageway and tried to avoid it. They included a motorcyclist, a Mr Darren Wildman. He successfully avoided the sofa, but having done so, he must have been distracted or turned to warn others behind him. In so doing, he either failed to see the appellant's stationary vehicle at all or failed to see it in time. A matter of seconds after the Mitsubishi had stopped, Mr Wildman drove into the back of it. Tragically he died at the scene.

11. The first ground is that HHJ Enright erred in refusing the submission of no case to answer, and in particular that he was wrong to find that there was evidence upon which a jury could conclude that the appellant's dangerous driving caused Mr Wildman's death. Mr Bridge relied principally on the decision of this court in Skelton [1995] Crim LR 635, of which we have a transcript of the judgment delivered on 25 November 1994 (94/2914/W5). Mr Bridge relied upon the following principle (see page 10 of the transcript per Sedley J):

"…the dangerous driving must have played a part, not simply in creating the occasion of the fatal accident but in bringing it about."

12. Albeit the judge directed the jury in accordance with this principle, Mr Bridge argued the judge himself never properly addressed this question. Had he done so, he would have felt obliged to withdraw the case from the jury. We disagree. In our judgment, this was a case very properly left to the jury. We accept Mr Bridge may have had at his disposal many very powerful arguments, but it was for the jury to decide whether or not they found the prosecution witnesses and, in particular, Miss Ferguson reliable and accurate. If they did, they were entitled to conclude that the appellant was driving a truck with a heavy load at or over 50 miles per hour along a busy road where the speed limit was 70 miles per hour. On Miss Ferguson's version of events, the sofa was obviously working itself free as he drove along. It must have been banging noisily in the back of the Mitsubishi. If so the appellant could and should have driven in a different fashion, or he should have stopped earlier than he did. Instead, he continued on his journey until his load fell off and into the path of oncoming vehicles. He stopped with his vehicle still partly on the carriageway. His actions made both the Mitsubishi and the sofa immediate hazards to oncoming traffic.

13. The jury was entitled to find that the appellant put other road users at risk by driving dangerously. He drove with a load which was insecure. Had he not done so the sofa would not have fallen off, and Mr Wildman would not have been forced to drive round it. He would not have been distracted by it or turned to warn others coming behind him. The appellant's car would not have been stopped in the carriageway and Mr Wildman would not have driven into the back of it. Whatever criticisms Mr Bridge could properly make of Mr Wildman's driving, in our judgment all those circumstances are such that it was open to the jury to find that his dangerous driving played more than a minimal role in bringing about the accident and the death.

14. We turn therefore to the further criticisms made of the judge by Mr Bridge. The second ground of appeal is that the judge, it is said, failed adequately to sum up the law in respect of causation. The judge summed up the law in this way:

"Now the words 'thereby caused the death'. You have to be sure the dangerous driving was a cause of death, not the only cause of death or the main cause of death, but a cause of death which was more than just trivial. This means you must be sure that not only the defendant's dangerous driving created the circumstances of the fatal collision but it was an actual cause in bringing about the death of Mr Wildman. And the defence say here, you might be satisfied the defendant had created the circumstances of the collision but and they say, and they recognise it is an unattractive argument and they say it is nonetheless right the only cause of death was Mr Wildman failing to keep a proper lookout. And if that is so, or may be so, I direct you to acquit."

15. Mr Bridge had a number of complaints to make about this passage. He argued that the judge failed in a number of respects. He suggested the judge failed to explain in the kind of detail the jury required in a case "as complex as this" what the difference was between driving which created the circumstances of the fatal accident as opposed to driving which was an actual cause in bringing about the death of Mr Wildman. He gave examples in his own address to the jury, and in his submission it was incumbent upon the judge to do much the same in the summing up. He also complained about the fact that the judge told the jury that the defence recognised their argument might appear unattractive given they appeared to be blaming Mr Wildman, the deceased, for his own death.

16. Finally on this passage, Mr Bridge criticised the judge for focusing on the defence argument that the cause of death here was Mr Wildman's failure to keep a proper lookout. This he argued would have led to the members of the jury being distracted from their main task which was to focus on the issue of whether or not the appellant's driving was the cause of Mr Wildman's death.

17. We accept that, in principle, the distinction between dangerous driving which creates the circumstances of a fatal collision and dangerous driving which is the actual cause of a death may not be an easy concept to grasp. There may well be circumstances in which it would be preferable if a judge went into a little more detail than the judge did here. However, we note that on the facts of this case the stark issue was whether or not the cause of Mr Wildman's death was his own driving. That issue was left fairly and squarely to the jury. The judge directed them specifically that they had to be sure that if they found the appellant drove dangerously with an insecure load they should consider the second element. Was the dangerous driving with a load that might work itself free and flip out onto the road a cause of Mr Wildman's death which was more than just trivial? We reject, therefore, Mr Bridge's criticism of the judge's directions on the question of causation. (Underlining added)

The free deliberate and informed intervention of a second person, who intends to exploit the situation created by the first, but is not acting in concert with him, is normally held to relieve the first actor of criminal responsibility.

3. ... The appellant lived in a hostel in which Marco Bosque and Andrew Cody, who shared a room, also lived. On 10 September 1996 the appellant visited the room which Bosque and Cody shared. Bosque was drinking with Cody. According to Cody, Bosque told the appellant that he wanted "a bit to make him sleep" and the appellant told Bosque to take care that he did not go to sleep permanently. The appellant prepared a dose of heroin for the deceased and gave him a syringe ready for injection. The deceased then injected himself and returned the empty syringe to the appellant, who left the room. Bosque then appeared to stop breathing. An ambulance was called and he was taken to hospital, where he was pronounced dead. The cause of death was inhalation of gastric contents while acutely intoxicated by opiates and alcohol.

14. The criminal law generally assumes the existence of free will. The law recognises certain exceptions, in the case of the young, those who for any reason are not fully responsible for their actions, and the vulnerable, and it acknowledges situations of duress and necessity, as also of deception and mistake. But, generally speaking, informed adults of sound mind are treated as autonomous beings able to make their own decisions how they will act, and none of the exceptions is relied on as possibly applicable in this case. Thus D is not to be treated as causing V to act in a certain way if V makes a voluntary and informed decision to act in that way rather than another. There are many classic statements to this effect. In his article "Finis for Novus Actus?" (1989) 48(3) CLJ 391, 392, Professor Glanville Williams wrote:

"I may suggest reasons to you for doing something; I may urge you to do it, tell you it will pay you to do it, tell you it is your duty to do it. My efforts may perhaps make it very much more likely that you will do it. But they do not cause you to do it, in the sense in which one causes a kettle of water to boil by putting it on the stove. Your volitional act is regarded (within the doctrine of responsibility) as setting a new 'chain of causation' going, irrespective of what has happened before."

In chapter XII of Causation in the Law, 2nd ed (1985), p 326, Hart and Honoré wrote:

"The free, deliberate, and informed intervention of a second person, who intends to exploit the situation created by the first, but is not acting in concert with him, is normally held to relieve the first actor of criminal responsibility."

This statement was cited by the House with approval in R v Latif [1996] 1 WLR 104, 115. The principle is fundamental and not controversial.

15. Questions of causation frequently arise in many areas of the law, but causation is not a single, unvarying concept to be mechanically applied without regard to the context in which the question arises. That was the point which Lord Hoffmann, with the express concurrence of three other members of the House, was at pains to make in Environment Agency (formerly National Rivers Authority) v Empress Car Co (Abertillery) Ltd [1999] 2 AC 22. The House was not in that decision purporting to lay down general rules governing causation in criminal law. It was construing, with reference to the facts of the case before it, a statutory provision imposing strict criminal liability on those who cause pollution of controlled waters. Lord Hoffmann made clear that (p 29E-F) common sense answers to questions of causation will differ according to the purpose for which the question is asked; that (p 31E) one cannot give a common sense answer to a question of causation for the purpose of attributing responsibility under some rule without knowing the purpose and scope of the rule; that (p 32B) strict liability was imposed in the interests of protecting controlled waters; and that (p 36A) in the situation under consideration the act of the defendant could properly be held to have caused the pollution even though an ordinary act of a third party was the immediate cause of the diesel oil flowing into the river. It is worth underlining that the relevant question was the cause of the pollution, not the cause of the third party's act.

16. The committee would not wish to throw any doubt on the correctness of Empress Car. But the reasoning in that case cannot be applied to the wholly different context of causing a noxious thing to be administered to or taken by another person contrary to section 23 of the 1861 Act. In R v Finlay[2003] EWCA Crim 3868 (8 December 2003) V was injected with heroin and died. D was tried on two counts of manslaughter, one on the basis that he had himself injected V, the second on the basis that he had prepared a syringe and handed it to V who had injected herself. The jury could not agree on the first count but convicted on the second. When rejecting an application to remove the second count from the indictment, the trial judge ruled, relying on Empress Car, that D had produced a situation in which V could inject herself, in which her self-injection was entirely foreseeable and in which self-injection could not be regarded as something extraordinary. He directed the jury along those lines. The Court of Appeal upheld the judge's analysis and dismissed the appeal. It was wrong to do so. Its decision conflicted with the rules on personal autonomy and informed voluntary choice to which reference has been made above. In the decision under appeal the Court of Appeal did not follow R v Finlay in seeking to apply Empress Car, and it was right not to do so.

17. In his article already cited Professor Glanville Williams pointed out (at p 398) that the doctrine of secondary liability was developed precisely because an informed voluntary choice was ordinarily regarded as a novus actus interveniens breaking the chain of causation:

"Principals cause, accomplices encourage (or otherwise influence) or help. If the instigator were regarded as causing the result he would be a principal, and the conceptual division between principals (or, as I prefer to call them, perpetrators) and accessories would vanish. Indeed, it was because the instigator was not regarded as causing the crime that the notion of accessories had to be developed. This is the irrefragable argument for recognising the novus actus principle as one of the bases of our criminal law. The final act is done by the perpetrator, and his guilt pushes the accessories, conceptually speaking, into the background. Accessorial liability is, in the traditional theory, 'derivative' from that of the perpetrator."

This is a matter of some significance since, contrary to the view of the Court of Appeal when dismissing the appellant's first appeal, the deceased committed no offence when injecting himself with the fatal dose of heroin. It was so held by the Court of Appeal in R v Dias[2002] 2 Cr App R 96, paras 21-24, and in R v Rogers[2003] EWCA Crim 945, [2003] 1 WLR 1374 and is now accepted. If the conduct of the deceased was not criminal he was not a principal offender, and it of course follows that the appellant cannot be liable as a secondary party. It also follows that there is no meaningful legal sense in which the appellant can be said to have been a principal jointly with the deceased, or to have been acting in concert. The finding that the deceased freely and voluntarily administered the injection to himself, knowing what it was, is fatal to any contention that the appellant caused the heroin to be administered to the deceased or taken by him.

18. The sole argument open to the crown was, therefore, that the appellant administered the injection to the deceased. It was argued that the term "administer" should not be narrowly interpreted. Reliance was placed on the steps taken by the appellant to facilitate the injection and on the trial judge's direction to the jury that they had to be satisfied that the appellant handed the syringe to the deceased "for immediate injection". But section 23 draws a very clear contrast between a noxious thing administered to another person and a noxious thing taken by another person. It cannot ordinarily be both. In this case the heroin is described as "freely and voluntarily self-administered" by the deceased. This, on the facts, is an inevitable finding. The appellant supplied the heroin and prepared the syringe. But the deceased had a choice whether to inject himself or not. He chose to do so, knowing what he was doing. It was his act.”

... common sense answers to questions of causation will differ according to the purpose for which the question is asked. Questions of causation often arise for the purpose of attributing responsibility to someone, for example, so as to blame him for something which has happened.

... one cannot give a common sense answer to a question of causation for the purpose of attributing responsibility under some rule without knowing the purpose and scope of the rule.

If the defendant did something which produced a situation in which the polluting matter could escape but a necessary condition of the actual escape which happened was also the act of a third party or a natural event, the justices should consider whether that act or event should be regarded as a normal fact of life or something extraordinary. If it was in the general run of things a matter of ordinary occurrence, it will not negative the causal effect of the defendant's acts, even if it was not foreseeable that it would happen to that particular defendant or take that particular form. If it can be regarded as something extraordinary, it will be open to the justices to hold that the defendant did not cause the pollution.

The House was not in that decision purporting to lay down general rules governing causation in criminal law

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.

4. May help to ask your selves this question

Are you sure the defendant caused one or both deaths, not the accident, but caused one or both deaths by his dangerous driving leaving the taxi immobilised in the middle of the fast moving A3 whereby he put the driver of the taxi at real risk of being hit by another vehicle, or not?

But the judge left that to the jury as a question which they may like to ask and we think it insufficient to ask whether the defendant merely put the driver at real risk of being hit by another vehicle.