R v Emma Louise Price & Anor

LORD JUSTICE EDIS: We have before us applications for leave to appeal against conviction in respect of one count on behalf of each of these two young applicants and also on behalf of each of them applications for leave to appeal against sentence. In the case of Clarke there is an application for an extension of time within which to bring that latter application and in respect of both of them there is an application for an extension of time within which to bring the conviction appeals.

As will appear from what we are about to say, this was a truly tragic case in which a life was lost, life-changing injuries were caused to innocent people and one of these applicants, Jago Clarke, also sustained very serious injuries himself. It was a terrible, high speed accident following a course of dangerous driving which extended over a long period of time at high speed and over a long distance while these two applicants were racing or at any rate driving competitively on a public road at speeds which averaged around 70 mph.

The applicants are Emma Louise Price, born on 31 March 2002, and Jago Jo Clarke born on 3 April 2002. The offence occurred on 13 June 2021 when they were both 19 years old. They were convicted of the material counts following a trial on 20 December 2023 and sentenced on 19 January 2024. They were therefore both 21 years old when they were convicted and sentenced and they are 22 years old now.

The counts which we have described as the material counts were as follows. Count 1 was an allegation of causing death by dangerous driving levelled against both of them and count 4 was an allegation of causing serious injury by dangerous driving also levelled against both of them.

It is necessary to insert into the chronology of relevant events certain changes to the law relating to sentencing which are material in considering these applications. The maximum sentence for count 1 was increased from 14 years to life imprisonment by section 86(2) of the Police, Crime, Sentencing and Courts Act 2022. The increase in the maximum sentence applies to any offence committed after 28 June 2022. It does not therefore apply to this case. The sentencing court was constrained by the previous maximum sentence for count 1 of 14 years. The judge decided, as is commonly done in cases of this kind, to impose as a lead sentence a term of imprisonment on count 1, taking count 4 into account, which meant that the final total sentence could not exceed 14 years.

The current sentencing guideline for causing death by dangerous driving applies to cases sentenced on or after its effective date, 1 July 2023. It therefore applies to this case. That guideline identifies a culpability level of culpability A (into which the judge placed this case) and specifies a starting point of 12 years' imprisonment and a range of eight to 18 years for count 1 alone. The circumstances of this case required an assessment of the impact on sentencing of the very significant additional harm caused by count 2.

With that introduction we shall now just record the outcome of these proceedings in the Crown Court at Swansea before His Honour Judge Paul Thomas KC in a little more detail.

As we have recorded already, Emma Price and Jago Clarke were both convicted of causing death by dangerous driving, contrary to section 1 of the Road Traffic Offenders Act 1988. Each was sentenced to 10 years' imprisonment. They were also both convicted of causing serious injury by dangerous driving, contrary to section 1A of the Road Traffic Act 1988. In respect of that a concurrent term was imposed of four years' imprisonment.

Emma Price was also convicted by the jury on count 2 of causing death by driving whilst unlicensed and uninsured, contrary to section 3ZB of the Road Traffic Act 1988. That resulted in a concurrent term of 18 months' imprisonment in her case. There were also summary offences to which she pleaded guilty of using a motor vehicle without insurance and driving otherwise than in accordance with a licence. Those resulted in no separate penalty. A statutory victim surcharge was imposed and she was disqualified from driving for a period of 11 years, that being a period of disqualification of six years and an extension period of five years. She was ordered to take an extended retest.

In Jago Clarke's case he also was convicted of causing death by driving whilst unlicensed and uninsured. That offence appeared on the indictment as count 3 and he pleaded guilty to it at the start of the trial. That resulted therefore in his case in a somewhat shorter concurrent term than that imposed on Miss Price of 15 months' imprisonment. He had also pleaded guilty to the two summary offences. The surcharge was imposed and the same disqualification was imposed on him.

It is necessary to say something at this stage about that disqualification period. Sections 35A and 35B of the Road Traffic Offenders Act 1988 require the court to extend a period of driving disqualification to ensure that a person who is also sentenced to custody does not serve all or part of the disqualification whilst they are in custody. It will be apparent from what we have said already that the judge sentenced in this case in the belief that these applicants would be entitled to release at the halfway point of the sentences he imposed. He was not alone in that belief which was at that stage quite widely shared among sentencing judges in England and Wales. Others took a different view. The point was settled in this court in R v Barnes (and two other cases) [2024] EWCA Crim 1548, [2024] EWHC 3192 Admin in which judgment was given on 13 December 2024. These applicants will be required to serve two-thirds of their sentences subject to any further appeal there may be to the Supreme Court. That means that the judge should have ordered an extension period to the disqualifications of six years and eight months rather than five years. Taken on its own, any correction would result in a sentence which, taken overall, is more severe than that imposed by the Crown Court and this court would not have power to do that because of section 11(3) of the Criminal Appeal Act 1968. The court would only have power to make that correction if we were to allow the appeal against sentence and reduce the length of the effective sentences of imprisonment. We will shortly turn to that issue and we will not deal with this question further unless it transpires that there is power to do so.

Counts 2 and 3 on this indictment each charged one of these applicants with the offence under section 3ZB of the Road Traffic Act 1988. That provision creates two offences: one of causing death by driving while unlicensed and one of causing death by driving while uninsured. It is agreed before us by counsel who have appeared on behalf of both of the applicants and on behalf of the Crown that for this reason those two counts are bad for duplicity. The parties are also agreed that there has been no adverse impact on the course of justice to any party of that being the case. It is suggested that the court has a choice. The first alternative that is put before us suggests that we should find that the technical defect in counts 2 and 3 does not render the convictions unsafe because no injustice or unfairness has resulted. Reliance is placed on R v Levantes [1999] 1 Cr.App.R 465. Alternatively, all counsel agree that it would be open to the court to substitute convictions for lawfully drawn counts, passing on those a sentence of no greater severity than that passed in the court below. We emphasise that no counsel has sought to suggest that either of these solutions to the technical difficulty is in any way preferable to the other. It appears to us that in these circumstances we should adopt the course which is procedurally the simplest, whether it is the achievement of technical perfection or not. Procedurally, the simplest approach is that we should simply refuse the applications for the extensions of time, which means that these appeals against conviction cannot continue beyond this point. The reason why we do that is because it is not arguable that the convictions on counts 2 and 3 in this case are unsafe for the reasons that we have given. There is therefore no purpose in extending time because any appeal would inevitably fail and that deals with that question.

We now turn to the more anxious and important part of these applications. We have very briefly identified the most salient facts of what occurred in this case above. These young people had been at the beach and they had been there all day. They were then driving home. They were both very inexperienced drivers. Emma Price was in a small Citroen motorcar and Jago Clarke driving a small Ford motorcar. It is apparent from what we have already said that neither of them had full driving licenses and they were both uninsured.

In the Ford car passenger seat was Ella Smith, at that time aged 21 years. She had allowed Clarke to drive the car on that occasion although she was the person who was insured to do so. That car had a black box which held a telematic recording device which recorded its speed and location, principally in order to enable its insurers to evaluate the carefulness or otherwise with which it was habitually driven.

Over a period of miles they drove at very excessive speeds, racing with each other. Those speeds are shown by the telematic device on the Ford car and the fact that they were both travelling at those speeds is shown by the fact that they both arrived at the bend where the fatal accident occurred at the same time. There was and is before us some dispute about precisely what happened to cause that fatal accident but what is clear is that as both of these vehicles approached it, Clarke lost control of his vehicle and ended up on the wrong side of the road in collision with an oncoming Seat motorcar driven by Mr Rowan Fair. At this point, as they were approaching the bend, the speeds had dropped somewhat below the average speed of 70 to speeds of perhaps about 58 mph but that was still very fast for the corner that they were attempting to navigate.

As Mr Fair approached that bend from the opposite direction he says that he saw Miss Price driving directly towards him on the wrong side of the road. She appeared to be overtaking Mr Clarke. According to him she then crossed back into the correct lane but as she did so Clarke lost control of the vehicle mounting the nearside grass verge and shooting out directly in front of the Seat. The impact caused devastating damage to both vehicles. Ella Smith, in the passenger seat of the Ford, was killed on impact. Daisy Buck, seated in the front passenger seat of Mr Fair's vehicle was very seriously injured. She required an abdominal laparotomy and a diagnostic peritoneal lavage, which is an invasive procedure to evaluate intra-abdominal injury. She had an open fracture of the right ankle. Rowan Fair himself sustained injuries, as did Jago Clarke who suffered a traumatic brain injury, chest injuries and a fractured rib. One effect of that, as far as he was concerned, was that he had no memory of what had happened.

The judge, in sentencing remarks which are clear, accurate and humane, dealt with the case in this way. He held that the dangerous driving which had caused the death and the serious injury was the result of racing between the two of these applicants; competitive driving over several miles "dicing with each other, challenging each other to overtake. Your roles in the causing of the accident were in my view indistinguishable. You were both equally culpable."

The judge did not therefore find it necessary to engage with the precise mechanics which had led to the collision. He held that the joint racing and competitive driving in the way that he had described made a very serious accident virtually inevitable at some point. It was that that was the burden of the criminality and it was therefore unnecessary to distinguish between the conduct of these two drivers by reference to the precise facts immediately leading up to the impact.

The judge then moved on to look at the two applicants as individuals. Neither of them had pleaded guilty to count 1 or count 4. They were both young. In the case of Clarke the judge rejected a submission that he should have some credit because he had entered pleas to the lesser offence of causing death by careless driving in relation to the death of Ella Smith. The submission was made by Mr Tarrant to the judge, as it has been this morning to us, that because he had no memory of what had happened, Clarke was entitled to test the evidence. He made an admission that his defective driving had caused the death and left it to the jury to decide how bad his defective driving was. Mr Tarrant submits that his conduct in approaching the proceedings in that way ought to have resulted in some credit, whether technically credit for a plea or credit for a more remorseful and realistic approach to the conduct of the proceedings may perhaps not matter. The judge rejected that because the evidence was clear and if it was sufficient to cause Mr Clarke to enter a plea to causing death by careless driving then it was equally possible for him, as anyone else, to identify the obviously dangerous nature of the driving in which he had engaged.

Identifying mitigating factors, the judge referred to the serious injuries which Mr Clarke had sustained and which will be a permanent reminder for him of what he did. He said this about the age of both applicants:

The judge then referred to the well-known authorities on the subject of age, reflecting the increasing understanding of the age at which young brains develop which is being transferred from neuroscience into the practice of the courts in the way identified in those cases. We shall simply identify two of them: R v Peters [2005] EWCA Crim 605 and R v Morgan Clarke and others [2018] EWCA Crim 185. The judge plainly had that well in mind.

In relation to Clarke, he found that he was particularly immature for his age at the time of the incident in June 2021. He was therefore a young 19-year-old when this happened. The judge then referred to the long delay which had taken place between the incident and the conclusion of the Crown Court proceedings which, said the judge, must have been a source of great strain. He said of Clarke that he is "basically a decent young man, although wholly misguided and stupid on that day".

Turning to the case of Miss Price, the judge observed, accurately, that she is also young, although the judge felt that she was not as immature as was Clarke, at least at the time of the trial. Of course the incident had taken place two years earlier when she was considerably younger and the judge was alive to that. He had formed a much less favourable view of Miss Price than he had of Clarke for reasons that he gave and he was entitled to do that, having seen her give her evidence. Nonetheless, he was fully aware of the fact that she had been at the material time a very young woman.

The judge also was aware that there was a child, who is now two years old, and that at the time of sentencing Miss Price was expecting a second child. That child has now been born and is eight months old. The judge said:

The judge then referred to the guidelines and imposed the sentences we have set out above. In course of those sentencing remarks he referred to the victim personal statement which had been put before the court, which are intensely moving documents which we also have seen.

The grounds of appeal for which leave is now sought have been persuasively, carefully and succinctly argued orally before us by Mr Thomas on behalf of Miss Price and Mr Tarrant on behalf of Mr Clarke. We are extremely grateful to both of them for the way in which they have presented these submissions in this difficult and anxious case.

On behalf of Miss Price, Mr Thomas says, first, that the learned judge did not give the applicant's age enough weight. Secondly, he submits that the court did not reduce the sentence sufficiently because of the child who was then born and the second child who was then awaited. The reference to the fact that there is no prison for women in Wales relies on a passage in the Equal Treatment Bench Book which was placed before the court and the significance of it is that the distance which any visitors have to travel in order to visit Miss Price and her child who has now been born is such that they can only do so infrequently. This involves her being separated from her older child and greatly inhibits the ability of these two small children to form bonds and relationships between them in the way that they normally would. It is therefore a substantial additional impact of incarceration upon her over and above what is normal and desirable and Mr Thomas submits that the judge failed to give adequate weight to it, even though he did specifically refer to it. Mr Thomas also says that there were other background mitigating factors which the judge ought to have taken into account in relation to the delay in particular and her previous good character. There was an additional ground which Mr Thomas very sensibly no longer pursues.

On behalf of Jago Clarke, Mr Tarrant relies upon the submissions which have been advanced by Mr Thomas in relation to age. These two young people are almost exactly the same age and therefore the submissions are framed in a very similar way. Mr Tarrant adds, in addition, his submission which we have already referred to in recounting the proceedings before the judge, that the indication or entering of the guilty plea to the alternative offence on count 1 should have resulted in a distinction being made between these two applicants in his client's favour and also relies on the specific finding of greater immaturity in his client's case to the same ultimate effect.

Discussion and decision

We have reflected with care on whether that reflects the mitigation sufficiently. We do not have, as the judge did not have, a pre-sentence report to deal with the question of immaturity. There are some character references and we have the findings of the judge following the trial. On any view a substantial reduction was required because of the age of these applicants. We have referred already to the reasons why that is so. The reduction in Clarke’s case had to reflect the judge’s finding that he was more immature than Price and that he had suffered serious injury, as she had not. The judge found that these factors led to the same sentence in his case as that on Price, whose sentence had to reflect its impact on her children.

We agree that the judge was right to reject the submission that Clarke should have received a different sentence because of the way he had dealt with his guilt in relation to count 1 by admitting causing death by careless driving shortly before the trial started. At that stage the evidence was open to him to reach a view on advice about whether his driving was careless or dangerous. He elected to admit only that it was careless and the result of that is that he is not entitled to any credit for a plea in respect of an offence to which he did not plead guilty.

We do not consider that there is any distinction to be made in his favour arising out of the way in which the accident actually occurred. We consider that the judge was right in the way that he decided the blame was equal between the two of them for the reasons that he gave. In our judgment it is clear that the judge fully understood in this tragic case what the consequences were going to be of the sentence which he was required to impose on these two young people. This was clearly a harrowing trial and he knew well all the harm which had been done, including to the applicants and their futures and including to Miss Price's children.

In all the circumstances, in our judgment in making the substantial reduction that he did from the sentence which would otherwise have followed in the case of older people lacking the particular mitigation which they had, the judge fully reflected those factors and in those circumstances, although we have considered the matter anxiously and in just the same way as we would have done had it been a full appeal, we have reached the conclusion that in truth the applications are not arguable and we therefore refuse the applications for leave to appeal against sentence.