Uthayakumar, R v

THE VICE PRESIDENT: The two appellants in these conjoined appeals were involved in a road traffic accident in which someone died. At the time they were uninsured and were prosecuted for the offence of causing death by driving while uninsured contrary to section 3ZB of the Road Traffic Act 1988. They were advised by their lawyers that to establish the section 3ZB offence the prosecution did not have to prove any degree of fault in their driving. The facts of their involvement in a fatal accident and of their driving uninsured were sufficient.

This advice was based on two decisions of the Court of Appeal Criminal Division: R v Williams [2010] EWCA Crim. 2552, [2011] 1 WLR588 and R v Hughes [2011] EWCA Crim. 1508 in which the court followed Williams, albeit reluctantly. A point of law had been certified in Hughes and permission to appeal to the Supreme Court granted by the time both Mr Clayton and Mrs Uthayakumar were arraigned. However, both were unaware that the law was in what counsel has called a “state of flux”. They each decided to plead guilty and Mr Clayton abandoned a possible medical causation defence. There has never been, therefore, an examination in court of the issue of fault on their part.

Mrs Uthayakumar pleaded to the section 3ZB offence on 17 December 2012 before His Honour Judge Dugdale at the Crown Court at Isleworth. His Honour Judge McDowall sentenced her on 24 April 2013 to 12 months' imprisonment suspended for 24 months with 150 hours of unpaid work to be completed before April 2014. She was also disqualified from driving for 18 months.

On 25 February 2013 at the Woolwich Crown Court, Mr Clayton pleaded guilty to a section 3ZB offence and on 8 April 2013 His Honour Judge Kinch QC sentenced him to a community order with 75 hours of unpaid work and he was disqualified from driving for 18 months.

They now seek to quash their convictions on the basis of a clarification of the law by the Supreme Court in Hughes [2013] UKSC 56 which overturned the Court of Appeal judgments in both Williams and Hughes . They need an extension of time in which to challenge those convictions.

The judgment of the Supreme Court in Hughes is clear. The use of the phrase "causing death by driving" in section 3ZB, taken in context, means the Crown must prove “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” (see paragraph 33). Section 3ZB 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. It is not necessary that such act or omission be the principal cause of death.” (see paragraph 36).

Without intending any disrespect to the two men who died or their families, we can deal with the facts very briefly. We first consider Mr Clayton's accident.

On 2nd September 2011 at about 5.30 in the morning, Mr Paul Lewis, the deceased, was riding his BMW motorcycle on Queen's Road in Peckham. Temporary traffic lights were on red which had caused a stationary line of traffic ahead of him. He rode up on the offside of these vehicles and over the centre line of the road into the oncoming lane. Mr Clayton, a man of previous good character, was driving his Honda motorcar in the opposite direction through a green light. He was properly within his own lane and driving at no more than 25 mph, certainly at no excessive speed. There were no vehicles immediately in front of him. Both Mr Clayton and Mr Lewis had their headlights on.

The collision occurred at a point just after a slight bend which meant that the stationary traffic may have obscured the approach of the motorcycle. Somewhere along side the stationary line of traffic the front corner of Mr Clayton's car caught the deceased, probably in the area of his leg. The glancing blow was enough to throw him off his bike.

Witnesses did not see the actual accident but they did see the aftermath. Mr Lewis suffered a fractured right leg and was taken to King's College Hospital. He was there operated upon, a metal rod inserted into the leg and he was allowed home on 9th September, just a week later. He appeared to be making a good recovery. However, sadly, on 8th October 2011 he collapsed through a blood clot related to the leg injury. He was re-admitted to hospital where he died later that day.

Mr Clayton had valid insurance up until it expired five days before the collision. He maintained that it had been allowed to lapse because he had not received the renewal forms. He had separated from his partner and had not been receiving his post.

We turn to the facts in Mrs Uthayakumar's case. She was also of previous good character. On 27th March 2012 at approximately 9.45 in the evening she was driving her car in the outside lane of the A406 near the Hanger Lane gyratory system. She was driving at a perfectly proper speed. The deceased, Mr Alan Palmer, was observed by witnesses to climb an eight foot fence erected to prevent pedestrians from crossing the North Circular Road. He crossed the first two lanes. He was described as behaving erratically and meandering across the three lane highway. He was not easy to spot. He was dressed in dark clothing. His head was bowed and covered in a hood. At one point he was almost hit by a vehicle in the middle lane which is no doubt why one witness called him “suicidal”. He then crossed into the path of the appellant's car. She did not see him and the left side of her car struck him. He was thrown into the air and suffered fatal head injuries. The appellant carried on driving for a short distance and then stopped on a slip road. She was subsequently arrested and interviewed. She explained the purpose of her journey and said that she had not seen what or who had collided with her car. Post mortem examination of the deceased concluded that he had taken class A drugs and alcohol in significant quantities.

Enquiries revealed that the appellant had not passed her driving test in this country albeit she had a full driving licence in Sri Lanka. She possessed a provisional driving licence and ostensibly had insurance cover. But the policy did not cover her when she drove unaccompanied.

The grounds of appeal are common to both appellants and are straightforward. They were wrongly advised that the law was clear and they had no defence. They now know, thanks to the judgment in Hughes , that they do have a possible line of defence. They also suggest the Crown would struggle to prove any degree of fault on their part which contributed in some more than minimal way to death and their defences would probably succeed. A clear injustice has therefore been done. In those circumstances, these appeals fall within the exceptional category where the Court will entertain an appeal against conviction notwithstanding a guilty plea.

Mr Simon Heptonstall for the prosecution disagreed. He reminded the court of the decision Boal (1992) 95 Cr.App.R 272 and the passage of the judgment at page 278. He summarised the effect of it in this way: the Court of Appeal will only very exceptionally interfere after a plea of guilty. It may do so where a possible line of defence has been overlooked but only where it is satisfied that the defence would quite probably have succeeded and a clear injustice has been done. He also reminded the court that traditionally the Court of Appeal Criminal Division has been reluctant to intervene where an appeal is based on the clarification or correction of a misconception of the law.

He submitted that the question for us is whether or not a clear or substantial injustice has occurred or would occur if the convictions were allowed to stand. It was his contention that it is the Court’s duty to assess the evidence, on the papers, to answer that question. In this case that means considering whether the written statements reveal clear fault on the part of either appellant which contributed to the accident. If so, any defence would be bound to fail and no injustice would be caused if the convictions are allowed to stand.

Mr Heptonstall took us to the undisputed facts of each accident and then commented on each. First, he considered Mr Clayton’s accident. Mr Clayton was approaching a line of stationary traffic. It is not uncommon to encounter cyclists or motor cyclists travelling on the outside of a line of stationary traffic and over the line into the opposite carriageway. Mr Heptonstall suggested that Mr Clayton should have been alert to such a possibility. Further, he suggested that as Mr Lewis travelled around the bend to his left his headlight might have shone across and into Mr Clayton's carriageway, thereby giving notice of his presence. Further, there was a bus lane which was not in operation to Mr Clayton’s left, and provided there was no traffic in it, he might have been able to move into it and thereby avoid Mr Lewis' motor cycle. On that basis, there would be a good argument that Mr Clayton did not keep a proper lookout and was not alert to reasonably foreseeable hazards.

As far as the appellant Mrs Uthayakumar is concerned, Mr Heptonstall observed that she admitted she had not seen the deceased Mr Palmer when others had done. Had she been keeping a proper lookout she would have seen him and applied her brakes. She would have taken avoiding action. She had come along a straight road with 150 metres of clear vision. Mr Palmer had managed to reach he third lane without being struck and that would have taken approximately five to six seconds. The appellant’s lights should have shone across the road ahead and illuminated his presence.

Further, he claimed she was at fault (in the way envisaged in Hughes) in driving as a provisional driving licence holder. One of the purposes of the requirement to have a supervising qualified driver is to have another pair of eyes available. Had there been a supervising driver in the passenger seat, someone in the car may have spotted Mr Palmer, as the passenger in the car behind did.

We have considered those submissions with care. Mr Heptonstall has done his valiant and eloquent best to persuade us that no substantial injustice would be caused by allowing these pleas of guilty to stand. However, we are satisfied that a substantial injustice would be caused if we refuse these applications and dismiss the appeals. We cannot ignore the fact that both appellants were advised to plead guilty to a very serious offence of causing someone's death, an offence of homicide, on the basis that each had no defence. That was wrong. They do have a defence.

In our view, Mr Hepstonall struggled to produce a case of fault against either appellant but particularly against Mr Clayton. He was forced to resort to speculation (for example that the bus lane was free and available for Mr Clayton to move into it). We do not intend to dwell upon the facts any further. Suffice it to say we are satisfied the defence available to each appellant is far from fanciful and might well succeed before a jury. Accordingly, we consider this is an exceptional case where we should intervene, despite the pleas of guilty.

We grant the extensions of time required and leave to both appellants. Having done so, we quash the convictions.

We shall now hear any applications.

MR HEPTONSTALL: My Lords, My Lady, as I foreshadowed in argument, the application in respect of these appellants is for a retrial so that the issues of fault in the ambit of Hughes can properly be considered by a court at trial.

THE VICE PRESIDENT: Mr Heptonstall, what consideration has been given and at what level as to whether or not, should the appeal succeed, it would be in the public interest to have a retrial?

MR HEPTONSTALL: My Lady, I have considered it as an in-house member of the CPS of reasonable authority, my Lady.

THE VICE PRESIDENT: I was not trying to ask for undue humility. What concerns me, Mr Heptonstall, is that I appreciate that once a case starts going it is very difficult to backtrack. I do wonder, in Mr Clayton’s case in particular, whether, had the CPS had the benefit of Hughes, he would ever have been prosecuted. Is that something you have asked yourself? Am I allowed to ask you what you instructed yourself?

MR HEPTONSTALL: My Lady, I was instructed separately, but yes. I have considered whether there would be the trial again.

THE VICE PRESIDENT: That is really a different question. If we had all known from the beginning what Hughes was going to say, do you think these appellants would have been prosecuted given the array of offences that could have been charged. Where does the public interest lie?

MR HEPTONSTALL: The public interest arises in part, my Lady, from what has been made plain in the judgment. These are very serious offences. Deaths have been caused. There is public interest.

THE VICE PRESIDENT: That is begging the question.

MR HEPTONSTALL: It is begging the question should there be a proper determination as to fault or not.

MR JUSTICE SILBER: Also taking into account that they would have served half their disqualification.

MR JUSTICE GREEN: And possibly more of their hours.

MR HEPTONSTALL: My Lord, yes.

MR JUSTICE SILBER: By putting that point forward I am not trying to put pressure on you. I am just trying to put the whole picture forward just to see how you would now look at it in the light of those factors.

MR HEPTONSTALL: I accept that a considerable degree of punishment has already been undertaken by both, direct and indirect through disqualification. The factors may be different in each case, Mr Clayton putting forward that for him it was an administrative problem, whereas for Mrs Uthayakumar this was something that was very deliberate and it was not the first time that she had been involved in an accident when she was driving on her own on a provisional licence without cover. She just had not been prosecuted for the other occasion. There was evidence of that in the committal bundle.

THE VICE PRESIDENT: I see that and I see that she might well have deserved to be punished for that and it might well have been considered in itself a serious offence, but that does not justify charging this offence.

MR JUSTICE GREEN: Your prosecutorial discretion for this, does it not have to address three things. One that there was a death which is plainly a matter of public importance, but secondly also the strength of the case from both fault and causation. The circumstances surrounding the lack of insurance do not really go to that.

MR HEPTONSTALL: It goes to the current (inaudible) and the presence there and as I have indicated in argument in relation to her, having somebody there to observe. I will not repeat the submissions, but --

MR JUSTICE GREEN: We see that point.

MR HEPTONSTALL: Yes. There is an interest in that, in my submission. The two cases are different. I accept that in Clayton the Crown's argument as to fault is not as strong as it is in Uthayakumar. However, there are matters that have been raised in argument that in my submission should be addressed by consideration of the evidence. Was this somebody who was driving properly? Was he somebody who was looking at the road? It is always going to be difficult when we are looking at that gap, as my Lady has said, between no fault and perhaps short of careless. But the interests to the public is that when there has been something serious and there is blame attributable to that, that being litigated properly, rather than saying this is at the very lowest end where if in the Crown's view there is a realistic prospect of conviction then we move on to public interest and the consequences to each side and the public need to be weighed. The consequences to the families in both these cases have been very significant and that in my submission countervails, or counter-weighs this.

THE VICE PRESIDENT: To what extent do the two tests, the one you have to apply as a prosecutor and the test that we have to apply which is the interests of justice, to what extent do they coincide?

MR HEPTONSTALL: The latest version of the Code perhaps has some additional factors that may not traditionally have been part of the interests of justice, although are read into it now by the Criminal Procedure Rules and I think particularly the proportionality of bringing a prosecution. That is in the new code, the fifth edition. It is in of course the explanation of the overriding objective.

MR JUSTICE SILBER: We have to look at it really in light of this particular case, whereas you have to look at it in your public interest test taking into account many other factors. I wonder if that is the initial approach I wonder if that is right because we are looking at the facts relating to this driver, whereas you are looking at it much more generous. We have much more limited focus question perhaps.

MR HEPTONSTALL: I think my Lord my view would have to be the same because I would have to say what is the public interest in relation to this driving but have the wider considerations and the wider interests of justice apply because as this court has already dealt with this morning, the interests of justice in there being deterrent sentences for those who seek to possess ammunition, you are considering people outside the individual offence. So I would seek to draw that distinction between the two tests that the court and the Crown have to apply my Lord. But I would -- and that is why I would draw a distinction as it is perfectly possible for the court to come to separate conclusions in relation to each appellant. Can I add one additional factor my Lady that may assist the court. One thing that the Crown would have to take into account, and this court no doubt would be reluctant, is to consider the views of the bereaved family. Those are the sort of things that are not easy to do in advance of a hearing and decision. An order for a retrial with re-arraignment within two months allows the opportunity for any decision of this court to be absorbed and reflected upon and considered by the family and then their views to be considered by the Crown as part of the wider public interest. If the family does not want to go through it again is not determinative, but it is a strong consideration for the Crown. Having spoken to the wife of one of the bereaved last week I know that it is something that may be reflected upon in that gap if there were one. I hope that is of some assistants my Lady.

THE VICE PRESIDENT: Thank you.

MR JUSTICE GREEN: If you prosecuted again and they were convicted, this time upon the basis that there was fault and a causal element, would the sentence be the same again?

MR HEPTONSTALL: It has to be, my Lord.

MR JUSTICE GREEN: In which case, assuming there was a conviction in the case of Mr Clayton there may be 20 hours left of unpaid work and some seven or eight months left of disqualification, similar for Miss Uthayakumar. Is that something that is relevant to public interest and to justice? Really it is not much left of the punishment.

MR HEPTONSTALL: Not much left of the punishment element and the lack of disqualification, but public interest is also in having that marker on the record because there will need to be an extended retest passed I expect. The wider public interest is marked by the fact of the conviction. This court has to deal with it regularly perhaps with old sexual offences that come to light or take some time for the appeal to be brought on.

So it is significant public interest in the marking of the conviction and of course any suspension from driving will now be removed but can be re-imposed were there a conviction in the future.

THE VICE PRESIDENT: I think the extended retest argument would be a stronger one if you could get as far as proving careless or inconsiderate driving. But when we are talking about something between blamelessness and not even reaching the careless/ inconsiderate driving level- I do not think the extended retest argument is your most powerful one. I do not think the present argument has anything to do with keeping Mr Clayton or Mrs Uthayakumar off the roads. I think it is marking a death.

MR HEPTONSTALL: My Lady, yes.

THE VICE PRESIDENT: Which is why I think you are absolutely right to say that the views of the families might be a highly significant factor.

MR HEPTONSTALL: I am grateful for that indication.

THE VICE PRESIDENT: Mr Payne, Mr Mulgrew. What do you say?

MR MULGREW: My Lady, the test the Crown would have to apply is whether there is a realistic prospect of conviction. Can I just read out the final paragraph of one of the eyewitnesses in this case. Where he said: "I do not blame the driver for what happened. Anyone would have hit him. I imagine the driver didn't see him." That is an eyewitness at the scene exonerating the driver Mrs Uthayakumar from blame. That theme runs through a number of the eyewitness statements. In my submission the reasonable prospect of conviction in Mrs Uthayakumar's case does not gets off the ground in light of comments made by the eyewitnesses. In terms of public interest, what is possibly served in this case by re-prosecuting a 54-year-old woman who has completed, as I understand it or is in the process of completing, 150 hours of unpaid work and has been disqualified from driving for however many months it has been since she was sentenced. To order a retrial in my submission compounds the substantial injustice. The death has been marked by some punishment. I say no retrial in this case, my Lady.

THE VICE PRESIDENT: Mr Payne?

MR PAYNE: Can I support those submissions in so far as they apply to Mr Clayton and add this. I concede of course that there is a public interest in marking the death under the circumstances. That must of course be right. But one has to consider in my submission the basis of fault as set out by my learned friend in this court and the likelihood of a prosecution at any retrial. In the case summary that was read out to His Honour Judge Kinch QC, after the sentencing hearing, then prosecution counsel told the learned court that the photographs and reconstruction suggest the collision occurred at a point just after a slight right-hand bend as Mr Clayton was driving, so that the stationary traffic may have obscured the approach of the motor cycle. The accident report observed that ideally Mr Clayton would have moved to his left where there was a bus lane in operation. It is not suggested that this omission amounts to careless driving. Of course there is a point in-between that, but one has to ask are the prosecution really going to be in a position to prove this many months after the event that Mr Clayton could have moved over into that bus lane? There will not be any evidence available at any stage, so many months later, as to whether the bus lane was available or whether there was a car in it or anyone was parked in it or whether there was any other impediment in moving into that bus lane at this stage. The accident reconstruction expert only went to the scene around a month after the incident and freely concedes that nothing of any forensic value remained at that particular stage. So one has to question whether the evidence is going to get any better so far as the prosecution is concerned having to prove fault. In the same way the accident investigator does not deal at all with the question of whether the motor cyclist would have been visible to the driver at the time and one has to query again whether it is going to be possible to reconstruct that so many months after the event with nothing of any forensic value left to assess. Realistically the witnesses do not take the matter any further either. Two off duty police officers saw the aftermath but they saw what happened behind them. The same is true of others and in reality the prosecution case in my submission is not going to get any better. Had the case been prepared afresh, winding the clock back to the original trial, then there may have been other lines of enquiry but none of those lines of enquiry are going to be available now. Mr Clayton is in the process of, if not completing, his hours of unpaid work. He has been disqualified for a little over half of the period imposed by the learned judge now. In my submission whilst of course recognising it is right to mark a death in these circumstances, the interests of justice would not be well served given the evidential difficulties, given the extent to which the sentence has been served already and by which on somebody in Mr Clayton's position His Honour Judge Kinch QC said in sentencing him the first time around, this was an accident and a tragic one. Those are my submissions.

THE VICE PRESIDENT: Thank you very much. We shall retire.

THE VICE PRESIDENT: Mr Heptonstall, we are not persuaded that it would be in the interests of justice to order a retrial as far as either appellant is concerned.

We have considered their cases separately. It does seem to us that in both cases you have on any view a weak prosecution case and a potentially very strong defence case. The prosecution would have to prove both elements of fault and causation. If we were in the position of having to apply the public interest and realistic prospects of conviction tests to the bringing of a prosecution in the first place we know what our answer would be.

Although we are now concerned with applications for a re-trial and the test for us is simply the interests of justice, similar considerations apply. The most important factor, as it seems to us, is that we have two people before us of previous good character, who, on any view, are barely culpable if at all. They have been convicted of a very serious offence and lived with the consequences for some months. They have served a considerable proportion of their punishment.

It is time to bring these proceedings to an end. As eye witnesses observed in relation to both incidents and as one of the sentencing judge's observed: this was just an accident.

MR HEPTONSTALL: So be it, my Lady.

THE VICE PRESIDENT: We are very grateful to you for your help, both in writing and orally before us. Thank you both gentlemen for your assistance.

Mr Heptonstall, I am sure you will explain to the deceased families that we do understand the strength of their feelings and obviously these decisions are never easy ones. We did not find this last decision at all easy.