Riddell, R v

The principal, though not only, question raised on this appeal is this. Is self-defence capable in law of being invoked as a defence to a charge of dangerous driving? We were told that there is no authority directly covering this point.

The point arises, it has to be said, in rather unusual circumstances: both as to the facts of the case and as to the way in which the indictment was ultimately framed and the way in which the trial was conducted.

The appellant is Tracey Riddell. On 4 October 2016 she was convicted at Snaresbrook Crown Court, after a trial before HHJ Lafferty and a jury, on a count of making off without payment (count 1 on the amended indictment) and a count of dangerous driving (count 3 on the amended indictment). The jury were discharged from returning a verdict on a count of assault occasioning actual bodily harm (count 2 on the amended indictment). In its previous versions, it may be noted, the indictment had contained just two counts: first, making off without payment and assault by beating, and second, by amendment, making off without payment and dangerous driving. The final version of the indictment, containing the three counts, was put forward on the opening day of the trial.

In due course the appellant was sentenced to a term of 10 months imprisonment and was disqualified from driving for 3 years, with a requirement for an extended re-test.

Leave to appeal against both conviction and sentence was granted by the single judge on 21 December 2016. The single judge also granted bail.

The complainant was a man called Mehrdad Tayebi. He was a mini-cab driver, newly appointed. On the morning of 1 November 2015 he collected the appellant from an address in Romford and drove her to her home in Dagenham. As they arrived she said, according to him, words to the effect that he was to wait two minutes and she would come back with the money. The fare was £13. He waited but she did not return. After some 10 minutes, having reported the matter to his office, he was about to go. He then spotted the appellant who had changed her clothes and left her house. She got into a blue VW Polo and drove off. This was at some time before around 10 o’clock in the morning.

He decided to follow her. He tried to get her to stop, by flashing his lights and sounding his horn, but was unsuccessful. At a later stage he overtook her; the cars briefly collided and she then overtook his car. This continued until finally he stopped his car in front of her. This was on the A13 road. He then alighted and stood in front of the Polo which had also come to a stop.

Two independent witnesses (both of whom had clear and unobstructed views) were to give evidence, to broadly similar effect, as to what happened next. This, overall, accorded with the complainant’s own evidence. One, Ms Wright, had been walking along the pavement. The other, Mr Singh, had been in the car behind the Polo. He had himself been required to stop as the complainant’s and appellant’s stationary cars were blocking the carriageway. The complainant was heard to be shouting “Stop, stop.” The appellant, inside her car, was heard to be shouting “Go away, leave me alone.” The two witnesses then observed the blue VW Polo edging slowly forward, striking the man several times on the knees while he retreated backward and while he was still shouting “Stop, stop.”

Mr Singh (whose statement was read to the jury) said that he put his head out of the window of his car and shouted at the lady driver of the blue Polo – the appellant – to stop and pull over. He did not know if she heard him although he could hear her shouting in her car. He then described the blue car turning its wheels to the right to get round the man. He then saw the man sit on the bonnet of the car (the evidence was that he did so with his back to the windscreen). The car then accelerated, with the man still on the bonnet. The man then fell off. The car accelerated away into the distance. The complainant sought to give chase but then returned. Mr Singh gave him his details. Mr Singh among other things said in his witness statement “… I was quite shocked with what I was seeing… especially when the blue car was nudging the man’s leg and when she drove off with him on the bonnet. I would definitely say that she was driving her car at the man’s legs and this was a deliberate action and did not seem accidental.”

Ms Wright’s evidence, given orally, was substantially the same. It was also broadly consistent with the complainant’s evidence. She described the lady driver of the blue Polo as seeming very calm and telling the man to get out of her way. She too described the car continually nudging the man as he retreated. She saw the man then sitting on the bonnet and the driver accelerating away. She also described how the car driver, after travelling a short distance, then “slammed on the brakes”, causing the man to fall off, before accelerating away again and disappearing.

The complainant suffered a cut finger and bruising.

In due course the appellant telephoned the police to report the incident (a tape of the call was played to the jury). In it she said that she had been in fear of the unknown male driver. When interviewed she repeated that. She also said in her interview that she was certain she had paid the cab driver the £13 fare. She went home to change and drive to work in her mother’s Polo. She then became aware of the other vehicle. She said that she did not recognise the driver as the mini-cab driver on her previous journey. She felt very scared. When he eventually stopped in front of her and got out she tried to avoid him and move round him but he jumped on the bonnet. The car was, she said, moving slowly and he simply “rolled off.” She said that she did not drive her car at his legs, did not drive away with the man on the bonnet and did not brake so as to cause him to fall off.

The Defence Statement advanced the same factual case. At paragraph 10 it was said: “At all times she was acting in her own defence as she was concerned for her safety.”

The appellant gave evidence to like effect at trial. Clearly her evidence was at marked variance, in a number of respects, with the evidence of the complainant and of Mr Singh and Ms Wright.

At the outset of trial, the indictment was amended as we have indicated. In addition, each of Mr Brewer and Mr Gaskin, appearing then as now for the defence and prosecution respectively, had given some thought as to whether self-defence (as opposed to duress) was available on the count of dangerous driving. They appreciated that it was not in law a clear-cut issue. The point apparently was raised briefly with the judge before the jury was empanelled. But no clear positions were formulated and in such circumstances the judge, as we gather, indicated that the matter could be left pending the evidence. With hindsight, this was unfortunate. Counsel should have presented to the judge clearly articulated positions on the point at the outset.

At all events the trial proceeded on the amended indictment. We were not told how, if at all, the defence case was outlined in opening (Mr Brewer did not himself make any brief opening speech for the defence as permitted under the amended Criminal Procedure Rules). For reasons we did not and do not entirely understand, counts 2 and 3 were explicitly presented by Mr Gaskin as alternatives; and the trial thereafter proceeded throughout on that basis. It was, at all events, common ground that the actual facts, as relied on by the prosecution, were the same for both count 2 and count 3.

It is the recollection of Mr Brewer - Mr Gaskin has himself no recollection, either way, of it - that on the second day of the trial the judge briefly indicated that he would leave self-defence on both count 2 and count 3. The appellant gave evidence on the morning of the third day (a Monday). The judge summed up to the jury that afternoon. Before then, and before counsel’s speeches, he had provided to counsel detailed and thorough written legal directions in a Route to Verdict document designed to be provided to the jury. That amongst other things included all the relevant legal elements of each count. In addition it included the elements of self-defence with regard to count 2 and the elements of a defence in the form of duress of circumstances with regard to count 3. The judge made clear in the Route to Verdict document that count 3 was an alternative to count 2 and that verdicts were not required on both such counts. In the lengthy written instructions the judge also made clear that the burden of proof was on the prosecution to show that the defence of duress (as with self-defence) did not apply. The instructions to the jury on self-defence on count 2 were conventional. As to count 3, among other things the jury were instructed to consider whether the appellant was “driven to act as she did because she genuinely and reasonably believed that if she did not do so she would be killed or seriously injured….” In addition the jury was to consider whether “a reasonable person in the defendant’s situation and believing what the defendant did would have been driven to do what the defendant did.”

No objection was raised by either counsel to the Route to Verdict document.

The judge proceeded to sum up, incorporating the written document into his summing up and providing the jury with copies. At the end of his summing up he asked both counsel, before the jury retired, if there was any matter of law or fact which they would like him to revisit with the jury. Both counsel indicated that there was not.

The jury retired. They were out for a considerable period of time, extending into the next day. Various notes were put in. A majority verdict direction was given at 12.35 pm on Tuesday 4 October. At 2.45 pm the jury returned a majority verdict of guilty on count 1. When asked on that occasion if they had reached a verdict on any other count on which at least ten of them were agreed the foreman indicated that they had on count 3 but not on count 2. The judge then took the verdict, a majority verdict, on count 3 and discharged the jury from reaching a verdict on count 2 (it will be recalled that the two throughout had been treated as alternative counts).

Mr Brewer first complained that the summing up was unbalanced and unfair. He said that the judge failed to sum up key features of the defence case and evidence: in particular that the appellant was adamant that she had paid the fare (and at all events honestly believed that she had) and that she had not recognised the driver or car as they followed her and when the driver got out. He made other criticisms of the lack of factual detail in the summing up.

We are wholly unimpressed by these criticisms. This was a relatively short trial. The jury had heard the appellant’s evidence shortly before they retired. It was also common ground that her evidence was consistent with what she had said in interview: and the judge had expressly in the summing up invited the jury’s attention to the written transcripts of interview, copies of which they had. Yet further, the written Route to Verdict document comprehensively posed all relevant questions which the jury had to determine; and, for good measure, the judge on occasion interwove into his summing up aspects of the defence case when dealing with the evidence of prosecution witnesses. Conciseness in a summing up is a virtue, not a vice. There is nothing in this complaint.

Mr Brewer further complained, however, that there was unfairness in the judge’s comment in the course of the summing-up when he said:

“If you accept the evidence of Mr Singh and Ms Wright you may think it is very difficult to conceive of how the defendant could have feared for her life at that point, because there were people around. Mr Singh was two car [lengths] back, Ms Wright was standing on the pavement.”

We are satisfied, however, that this was of no real moment. The judge went on immediately after this passage to say that it was a matter for the jury; he also went on briefly to refer them to her account in interview and in her evidence that morning. In any event, the fact was that this incident occurred in daylight on a busy road: not at some remote and solitary location. Nor had any correction been sought by counsel at the time. The judge’s comment could not, overall, possibly of itself have impacted on the fairness of the trial or safety of the conviction.

This ground fails.

This leads to the second (and principal) ground: should self-defence have been left to the jury on the count of dangerous driving?

In view of the course of events at trial, we asked Mr Brewer why he raised no objection to the Route to Verdict document when the judge produced it before speeches and again raised no objection when the judge invited comment from counsel at the conclusion of the summing-up. With all respect to him, we did not find his explanation – to the effect that his perception was that the judge had a set mind on this – in the slightest bit satisfactory. Judges invite comment from counsel on their proposed written directions to get their assistance, not their acquiescence. Since the matter had – unsatisfactorily – been left open by counsel at the start of the trial (they appreciating there was a potential legal question mark on this topic) and since it is also Mr Brewer’s recollection that, on the morning of the second day, the judge had said that he would be leaving self-defence on both counts, it particularly behoved Mr Brewer to raise this point with the judge if he was dissatisfied with the legal instructions proposed to be given to the jury. He did not.

We will have to revert to this point in assessing the proper outcome for this appeal. But it is right to record that Mr Brewer, very fairly and candidly, accepted that the defence case would have been conducted in the same way whether the defence on count 3 was self-defence or duress of circumstances. The defence case throughout, he told us, was in fact that the defendant at all times acted both honestly and reasonably.

The defence of duress is a species of the defence of necessity. For clear policy reasons its application is closely circumscribed: see the discussion in R v Z [2005] 2 AC 467, [2005] UKHL 22. It might be said that self-defence is itself akin to a defence of duress (of circumstances): in the sense that a person (D) who honestly believes himself to be under attack, or threatened attack, can by reason of the pressure of those circumstances justify himself by using reasonable force in response. Nevertheless, on any view there are clear and settled differences, not challengeable at this particular appellate level, between the two defences. For one thing, a defence of duress of circumstances ordinarily would require, essentially for policy reasons, a threat of death or serious injury. That is not required to be so for self-defence. Another important difference (among others) is that, in cases of duress, the yardstick is essentially objective: thus the belief as to the threatened force must be reasonable, as well as the actual response to the threat being reasonable: see, for example, Martin (1989) 88 Cr. App. R 343. But that is not so in self-defence. Whilst, in self-defence, the response of D must be reasonable and proportionate, that is so by reference to the circumstances in which, subjectively, D genuinely - even if mistakenly and even if unreasonably - believed himself to be. That has long been established at common law: the first limb of the self-defence direction (as indeed given by the judge in the present case) thus conventionally relates to the subjective belief of a defendant. That position is also confirmed by the clarificatory provisions of s. 76 of the Criminal Justice and Immigration Act 2008.

It is precisely this point which Mr Brewer now (“on reflection”, as he put it in his written Grounds) seeks to make. On the defence of duress of circumstances the judge, correctly in law as Mr Brewer accepts, instructed the jury to consider whether the appellant “genuinely and reasonably believed” that she would be killed or seriously injured. But the essential point arising at this first stage if the issue had been put as self-defence would have been whether the appellant genuinely held that belief. Reasonableness is not part of this stage of the test on self-defence (its only potential relevance, at most, would be as to whether the belief was indeed genuinely held); rather, reasonableness only is directly in point in assessing the proportionality of the actual response. Mr Brewer submits that that is an important distinction between the two types of defence. And he suggests that is particularly so when, in this case, the jury were to reach a verdict of guilty on count 3 (where duress of circumstances was the defence advanced for them to consider); but thus far had not been able to reach a verdict on count 2 (where self-defence was the defence advanced for them to consider) and in respect of which they were then discharged from giving a verdict.

Self-defence does not feature in the leading practitioners’ text books as an available defence in driving cases: see, for example, Blackstone (2017 ed.) at C3.42. But, as it happens, the defence of duress of circumstances, or an analogous defence, features prominently in a number of reported driving cases.

Thus in Renouf [1986] 1 WLR 522, a defendant charged with the then offence of reckless driving - where the actual facts involved forcing a car off the road and ramming it – was held to have available a defence under s. 3 (1) of the Criminal Law Act 1967, on the footing that the alleged acts could amount to the use of reasonable force in assisting in the lawful arrest of suspected offenders. As Lawton LJ put it (at p 524 H): “[The] evidence had two facets: one was what the prosecution alleged to be the acts of recklessness; and the other was that these same acts amounted to the use of reasonable force for the purpose of assisting in the lawful arrest of offenders.” A similar conclusion, by reference to the facts of the case, was reached in Morris [2014] 1 WLR 16, [2013] EWCA Crim 436: a case where the defendant had been charged with dangerous driving. It is therefore to be noted that both cases proceeded on the footing of examining the underlying facts relating to the driving offences actually charged.

In Conway [1989] 1 WLR 290, a defendant charged with reckless driving advanced the defence that he drove away from the scene as he did acting in panic under duress of circumstances, being in fear of his life and that of his passenger. It was held that such a defence (of duress) should, in the circumstances of the case, have been put to the jury: it being stressed, nevertheless, that the position had to be assessed objectively. The Crown’s argument that the only necessity was to drive away, not to drive away recklessly, was rejected. The court adopted essentially the same approach as taken in the earlier case of Willer (1986) 83 Cr. App. R 225.

Mr Brewer submitted that these lines of authority can and should be extended so that self-defence likewise is available, on appropriate facts, as a defence to a driving charge such as dangerous driving. For this purpose, he also drew attention to the case of Clegg [1995] 1 AC 482 – albeit a case which he readily accepted was decided in a different context. In that case, Lord Lloyd at page 496E, in dealing with the issue of excessive force, indicated that “it would not be practicable to draw a difference between the two defences [self-defence and prevention of crime], since they so often overlap.”

In the course of argument this court drew the attention of counsel to the previous decision of a constitution of this court in Symonds [1998] Crim LR 280. The case is but briefly there reported. The defendant (S) was charged with inflicting grievous bodily harm and dangerous driving. S had apparently been racing with another car. C, a drunk pedestrian, had to jump out of the way. S stopped and C went to remonstrate. His arm became trapped in the window and he was injured when S drove off. S’s defence was that he was frightened that C was trying to attack him and he drove off to escape. It is to be noted that the trial judge directed the jury on self-defence on the assault count (of which S was acquitted); but he gave no such directions on the count of dangerous driving or on an alternative count (of which S was convicted) of careless driving. It was held that that was an error and that the summing-up was defective.

Mr Brewer relied on that decision when it was drawn to his attention. He noted that, as reported, the court in that case held that the judge should have directed the jury that the same matters relied on as self-defence in respect of the assault charge also constituted a defence to the driving offences. That precisely corresponds with the present case, he submitted: given that the facts relied on by the prosecution and defence on count 2 were the same as those relied on on the (alternative) count 3.

We see the force in that submission. But the position in Symonds is not without difficulty. According to the report, the court held that “there was some difficulty (more of theory than substance) with the deployment of self-defence to offences other than those in which it is charged that a person used force on another.” The court then also went on (as reported) to hold that: “That did not however effect the substance of the case because the matters on which S relied to demonstrate self-defence in relation to the assault equally raised, in respect of the driving offence, the emerging defence of duress of circumstances”. As pointed out, however, in the commentary on the case (under the familiar initials J.C.S – Sir John Smith) there is a substantial difficulty, indeed difference, given that in self-defence a defendant is judged on the facts as he honestly believes them to be; whereas in duress the belief has, on settled authority, to be on reasonable grounds.

The decision in Symonds was discussed by another constitution of this court in Backshall [1999] 1 Cr. App. R 35, another case of dangerous driving, alternatively careless driving. That was a case where, on the facts, the defendant driver drove as he did in order, as he said, to escape another driver bent (he said) on serious aggression towards him. The court viewed the defence raised, on the facts of the case, as one of necessity or duress of circumstances: albeit stressing that the important fact was that the jury should take account of the reasons for the driving.

That there is a clear distinction in law between the defence of self-defence and the defence of duress of circumstances is settled at this level. In particular, among other differences, the latter defence gives rise to a requirement of reasonableness as to the relevant belief held: an element which is lacking from the former defence.

We should record that we found the general discussion in Smith and Hogan’s Criminal Law (14^th ed.) at, in particular, paragraph 12.6.4.7 most interesting and helpful. For present purposes, however, the point to note is that the elements of an offence of dangerous driving are, in law, quite different from the elements of an offence such as assault occasioning actual bodily harm. In the latter, the application of force is an inherent part of the offence. In the former it is not.

Conventionally self-defence ordinarily arises – putting it shortly - where a person uses force in order to meet actual or perceived force or threat of force. There seems to us no reason in principle to deny altogether the availability of the defence simply because the charge is one of dangerous (or, for that matter, careless) driving. Whilst such a charge does not of itself convey the use of force, the alleged facts relating to the driving charge may nevertheless be such that force has indeed been applied in response to threatened or actual force. In the vast majority of driving cases, of course, a defence of self-defence simply cannot arise: just because no force, as such, is being used at all by a driver to meet any actual or threatened force. The driving is or is not, quite simply, dangerous or careless, as the case may be. Even where a person in a car responds to perceived force by fleeing in the car, and drives dangerously in so doing, self-defence ordinarily, applying the conventional approach, still would not arise: just because the defendant is not in fact using force to meet force, actual or perceived. But there are, as we see it, potentially cases, rare though they may be, that can, on the particular facts, be different and where the alleged dangerous (or careless) driving does involve the use of force. Symonds appears to have been such a case. The present certainly is such a case. Accordingly, the fact that a count of dangerous driving is a charge which, by reference solely to its constituent legal elements, does not inherently involve the use of force should not, in our view, preclude the availability of self-defence where, on the particular facts, use of responsive force is indeed involved in the dangerous driving alleged.

It may seem somewhat anomalous that self-defence is not available on a count of dangerous driving where a driver is fleeing in his car from threatened force but is potentially available where a driver in his car is confronting threatened force. We think, however, that such apparent anomalies are better viewed as a consequence of the absence of force involved in the former scenario and of the legal differences, settled on authority, between the defences of duress and self-defence as then applied to the facts. At all events, we conclude that such considerations should not justify a wholly uniform outcome, as advanced by Mr Gaskin, in terms of total non - availability of self-defence as a defence simply by reference to the nature of the offence as charged and without reference to the actual underlying facts. That conclusion is also, we think, at least consistent with the approach taken in cases such as Renouf. We therefore reject Mr Gaskin’s submission that self-defence should be wholly ruled out as an available defence in all such driving cases on policy grounds.

Take the present case (and leaving to one side the count of making off without payment):

Yet further, the awkwardness of the position of excluding self-defence on count 3 is further illustrated by what happened in this very case. It surely was not desirable, and indeed surely was artificial, that, where the facts were accepted to be identical on both counts, separate defences in law nevertheless had to be formulated for the jury’s consideration of the two counts. In our view, the further comments of Sir John Smith in Symonds (cited above) on this point are apt. Where in a given case both defences are potentially available, on the facts, then a judge should seek to adopt one to the exclusion of the other. In the present case, the more apposite defence, on the facts, on count 3 (and especially given the presence on the indictment of the count of assault occasioning actual bodily harm) was self-defence. To say that is not to detract from the general consideration that persons in a car should no doubt normally seek to withdraw rather than confront. But such a consideration is ultimately surely more relevant to the jury’s assessment of a defendant’s perception of risk and of the reasonableness of the forcible response adopted in the circumstances as the defendant believed them to be.

Thus our overall conclusion on the main question raised by this case is that, while it is likely to be a rare case on the facts where self-defence is even capable of arising with regard to a count of dangerous (or careless) driving, such defence is in principle capable as a matter of law of being available on such a count. All, ultimately, will depend on the use of force involved in the driving by reference to the particular circumstances of the case.

We then have to consider whether the judge’s failure in the present case so to leave matters has resulted in an unfair trial and an unsafe conviction on count 3. We have to say, with respect, that the judge scarcely received the assistance from counsel, who had identified the potential problem in advance of trial, that he might have been entitled to expect. At all events, as we have said, no challenge whatsoever to his directions (which were based on an understandable view of the law as reflected in some of the books and, no doubt also, on his assessment of the evidence as it unfolded) was made.

The jury clearly had disbelieved the appellant’s evidence on count 1. That of course, we accept, is not determinative on counts 2 and 3. But, quite apart from the evidence of the complainant himself as to the dangerous driving, there was also the evidence of the two independent witnesses. The veracity of neither of them was challenged; and the evidence of Mr Singh was not challenged at all. What the appellant actually did could not, in our judgment, be justified, on the evidence. In all the circumstances, and bearing in mind also the course that this particular trial took without objection from counsel, we conclude that the trial was fair and conviction on count 3 is safe.

We turn to sentence. Mr Brewer submitted that an immediate custodial term of 10 months’ imprisonment was simply too long. He complained that the judge was wrong to indicate in his sentencing remarks that it was too late for the appellant to seek leniency once she had elected to contest the trial. He also complained that the judge made no reference to the appellant being a single mother, with three dependent young children. Her sole previous conviction, he added, was some 12 years earlier, relating to taking a vehicle without consent; and she had never been in custody before.

The judge in his sentencing remarks noted the total lack of remorse (the pre-sentence report shows a continued denial of responsibility). He also found that the appellant drove off at speed, not having been genuinely in fear at all, and with a complete lack of regard for the danger caused and for the complainant’s safety.

All that said, we have to have regard to current realities. The appellant served seven weeks in custody (the effective equivalent of 14 weeks of her sentence) before being released on bail shortly before Christmas at the direction of the single judge. A measure of retributive punishment has already been accomplished. In such circumstances, it would be unduly harsh to send her back to prison and separate her again from her young daughters.

Accordingly, we quash the sentence of 10 months imprisonment on count 3. We substitute a sentence of 6 months imprisonment, which will be suspended for 18 months. Given the circumstances there will be no additional community requirements imposed. There will be no separate penalty on count 1.

As to the period of disqualification, we consider that there was force in Mr Brewer’s submission that a three year disqualification period was longer than was necessary. The appellant, it is said, has a pressing need to drive both for her work and for getting her children to school. The indications are, moreover, that this was “one off” offending. The protection of the public, in our judgment, does not require a disqualification period of more than 18 months, in the circumstances of this particular case. We substitute that period for the period imposed by the judge. The requirement for an extended test of course stands.