McCarthy, R v

LORD JUSTICE PITCHFORD: On 17th January 2014 at Chichester Crown Court, following a trial before Her Honour Judge Ackner, the appellant was convicted of an offence of causing the death of Lewis Locke by careless driving contrary to section 2B of the Road Traffic Act 1988. This is her appeal against conviction with the leave of the single judge.

The single ground of appeal is that the learned judge failed to provide the appellant with the appropriate good character direction, but, on the contrary, diminished its effect by directing the jury to ignore a relevant aspect of the appellant's good character going to her competence in general as a driver.

Stacie McCarthy was born on 3rd March 1989 and is now aged 25 years. She passed her driving test on 28th February 2012. The fatal collision occurred at about 4 pm on 19th September 2012, some seven months later.

The appellant was driving a small Daewoo motor car that she shared with her father. She had a front seat passenger. She was driving along North Road, Lancing, in the direction of Sompting Road, into which she intended to make a right turn. The appellant was very familiar with the road and its conditions at that time of day.

Lewis Locke was a 90-year-old gentleman who was walking along the offside pavement of North Road towards the approaching car. He was using a walking stick in his right hand and carrying a shopping bag in his left. Mr Locke stopped at the junction, looked about him and then commenced to walk across the junction of Sompting Road. He had almost reached the central white line when the appellant made her right turn into Sompting Road and drove into collision with him. Mr Locke was deflected heavily to the offside of the car and suffered injuries from which he later died.

The speed of the car at impact was ten miles per hour or thereabouts. There was no allegation of excessive speed made by the prosecution.

The appellant stopped the car very quickly after impact. She was distraught. When interviewed, she said she had not seen Mr Locke before the collision. Her case at trial was that she had been blinded by a strong sun, low in the sky, as she had turned into Sompting Road.

The prosecution case was that in the circumstances Mr Locke had priority. The appellant should have seen him before she turned right and should have afforded him precedence. At that stage the sun did not impede her vision. The appellant had committed herself to a manoeuvre when it was unsafe by reason of Mr Locke's presence in the road.

Fortuitously, the collision was captured by CCTV film recorded by a camera fixed on a building at the junction. Each member of the court has viewed the recording. It is apparent from the shadows to be seen in the recording that the setting sun would have inconvenienced a driver who had turned into Sompting Road, but would not have inconvenienced a driver passing along North Road. That is an important observation when it comes to a consideration of the issue which must have concerned the jury in their retirement.

The appellant had a clean driving record. She was of good character. She relied also upon statements from seven witnesses who had previously travelled with her in her car, including a driving instructor. She was a careful and prudent driver. This was an integral part of her good character with which the judge had to deal in her summing-up.

The judge summarised the effect of the good character evidence as follows at page 13A of the transcript:

Miss Bennett-Jenkins QC, who was not counsel at trial, argued that the judge, by making reference to letters, may have diminished the status of the evidence contained within them.

We first observe that the judge referred to both statements and letters; that is hardly surprising since she was never shown the copies from which the evidence of witnesses was read to the jury during the course of the defence case. Secondly, and in any event, in the context of the present case and the ground of appeal on which the appellant has been given leave, we cannot accept that there was any diminution in the status of the evidence which could affect the safety of this verdict.

The judge proceeded to explain that the opinion of the witnesses as to the appellant's prudent and careful driving on previous occasions could not resolve the issue whether, at the time of the collision, the appellant was driving competently and carefully. At page 13, commencing at letter E, the judge said this:

It seems to us that the judge was in this passage dealing with the issue the jury had to resolve. The fact that the appellant had on previous occasions been observed to be a careful driver could not assist the jury to answer the question whether she should have seen Mr Locke in time to avoid a collision. We agree with the submission made by Miss Bennett-Jenkins, however, that the direction was capable of giving rise to confusion, if only because, on the one hand, the jury were told to ignore the evidence of character witnesses, and, on the other, not to afford it any weight.

The judge proceeded to provide the jury with the full good character direction, including that the appellant's good character may make it less likely that she had committed the offence of causing death by careless driving.

It is submitted on the appellant's behalf that the jury were therefore left with contradictory directions as to the effect of the evidence that the appellant was a prudent and careful driver. On the one hand, they were to ignore the evidence or to give it no weight; on the other, the appellant's good character, which included her driving record, might make it less likely that she had committed the offence.

In our view, the judge was in the first part of her directions intending to say no more than that the judgment of others as to the standard of the appellant's driving in general could give the jury no assistance on the issue whether, on this occasion, the appellant should have seen Mr Locke in time to allow him to complete his journey across Sompting Road. The appellant accepted in her evidence that she had not seen Mr Locke before the collision. The sole issue for the jury, therefore, was whether she should have seen him. If she should have seen him before she made her right turn, then she was on the present occasion self-evidently not achieving the standard of a careful and competent driver. However, when embarking upon the conventional good character direction, the judge appeared to contradict her earlier direction by telling the jury that good character may mean that it was less likely that the appellant had committed the offence.

We accept Miss Bennett-Jenkins's submission that the direction should have been couched in terms that were explicitly consistent. That consistency could have been achieved by addressing the weight of the good character evidence, rather than its admissibility, and by a discussion of the specific issue of fact with which the jury had to deal. Thus, this court has to ask whether the capacity of the full direction to cause confusion undermines the safety of the jury's verdict. We note that the judge was not asked to give any further explanation of the terms of her direction, although we accept that does not, of itself, establish that the verdict was safe.

As we have said, the sole issue upon which the jury was required to concentrate was whether the appellant ought to have seen Mr Locke in time to avoid the collision. We do not consider that the appellant's good character, including her careful and competent driving record, could properly have had any bearing on the resolution of that issue. There was clear evidence from the CCTV recording that Mr Locke was there to be seen while the appellant's line of sight towards him was unaffected by the sun, which was setting to her right. In our view, the verdict was safe and for this reason the appeal must be dismissed.