Clews, R. v

MR JUSTICE MACKAY: On 30th July 2009 in the Crown Court at Merthyr Tydfil the appellant, on the second day of her trial, pleaded guilty to causing death by careless driving. The trial continued on the first count of the indictment which charged causing death by dangerous driving and after a trial of some eight days the jury found the appellant not guilty. Both of these charges arose out of the same incident, which occurred on the afternoon of 27th September 2008 in a residential area of Aberfan.

The appellant was helping a friend to move house and was driving a hired light goods van down a narrow road. The road at the point approaching the fatal accident was 5.4 metres wide and its width was restricted by parked vehicles on what would have been the appellant's offside, so that there was available for traffic 3.6 metres. The van itself was 2.5 metres wide, so that at that point there was left either side of it, assumed it took a course equidistant between the parked vehicles on the offside and the wall on its near side, something in the region of two feet or less.

There was a group of teenagers ahead of the appellant who were passing along this road, going in the same direction as the van. As the van approached this group it was being followed by another vehicle whose driver noted that it did not slow down from its speed (which was estimated to be no more than 20 mph), but the appellant did sound her horn. The appellant managed to pass some members of the group without striking them, but it is noteworthy that the first girl she passed was so close to the van as to cause the following driver to exclaim in surprise at the narrowness of the escape.

By the time the appellant approached 14-year-old Hannah Davies it would appear that she was not aware of the approach of the van and did not move out of its path. She was struck by the van from behind. The first point of contact between her and the van would seem to be to the bonnet/bumper and the expert calculations had it that at that point she would have been some considerable distance out from the wall on her left, something in the region of 1.2/1.5 metres for that contact to have occurred. She then hit the windscreen with her head and fell to the ground, after having been in contact with the rear nearside of the van but not run over by its wheels.

The sentencing remarks dealt in some detail with the culpability of the appellant as a result of this awful accident and the judge started with sentiments which we echo, that no sentence that could be passed by any court in response to it could repair the lasting feelings of grief, devastation and loss to the family who have lost a daughter of 14 in these circumstances. The judge went on to analyse the responsibility of the appellant, from the advantage point of having heard the evidence at trial, in this way. There was little or no traffic, her speed was in the region of 20mph, he described the width of the carriageway at the relevant point and its reduction by the parked cars and the number of children walking in the group ahead. He said that the appellant had driven through at a constant speed. That was entirely right and accurate as an observation. She had made no attempt to slow down but did sound the horn. Again, no criticism can be made of that as a summary of where the evidence led. She had narrowly missed the rear-most girl, who was in fact carrying a baby, and that we have described earlier in this judgment together with the fact that it elicited an astonished remark from the following driver. He said that Hannah did not appear to have heard the vehicle or the horn or at least not until it was too late and was struck from behind with sufficient force to throw her into the air, onto the bonnet and thereafter to the other part of the van. He said there was still no attempt to stop or slow down. Again, those comments are, as we read them, careful, accurate and justified.

The submissions made to us today by Mr Crowther do not criticise any of those findings but seek to add a further feature of the evidence about the appellant's driving which, if it does not excuse, may explain her position to this extent. There was evidence, which really consisted of the three contact points between the girl's body and the van we have described above, particularly the contact point of the rear nearside, which are indicative of the fact that at the relevant time the van was not proceeding in a straight line down this narrow road, but was angled significantly towards its right, the road being then clear of parked vehicles at that point. This was therefore some evidence of an attempt, albeit unsuccessful and certainly too late in the day, on the part of the appellant to avoid the collision. That is not mentioned in the sentencing remarks. It is the sole omission on which Mr Crowther places reliance. Otherwise he accepts that this is a bad case of careless driving causing death and that it did call for a custodial sentence, albeit he seeks to urge us that it was one which could have been suspended.

The sentencing guidelines on page 18 draw attention to a driving feature which will fall to be considered in cases of this nature, and self-evidently so, namely driving inappropriately close to another road user, particularly a child pedestrian.

This therefore was a piece of careless driving which fell to be dealt with in this way. The appellant had made a serious error of judgment in not simply stopping and waiting for this group to clear the narrow part of the road before continuing. Instead she would seem to have thought that she could drive through at a constant speed, with only the safeguard of sounding her horn, and so miss the child pedestrians in front of her. But in addition to driving through, as the judge put it, it does seem to us having heard the arguments put forward for her today that there was a further attempt she made in addition to sounding her horn at a late stage to avoid this child and in that respect she made another error of judgment in thinking that that would have been enough to prevent this terrible accident.

We have considered the sentencing guidelines and the two categories under which this careless driving could have been placed. We have reached the conclusion that the judge was entirely right and justified in categorising it as driving which required the imposition of a custodial sentence and we are unpersuaded that this sentence could in the circumstances be suspended, notwithstanding the personal mitigation available to the appellant which the judge alluded to as well. But we are at the end of the day satisfied in this difficult and anxious case that the sentence of two years' imprisonment passed by the judge was excessive and should be quashed and replaced by a sentence of imprisonment for one year. To that extent this appeal is allowed.