R v Huseyin Ozkara

In 1999 in the Crown Court at Chester the appellant, Huseyin Ozkara was convicted of two offences of causing death by dangerous driving. He fled the country. Eventually, almost 25 years later, he was arrested and extradited from France back to the United Kingdom.

On 2 May 2024 he was sentenced to 12 years' imprisonment for each offence, those sentences to be served concurrently. He was also sentenced to be disqualified from driving for seven years, with a further period of disqualification of eight years and four months. Separately, he was sentenced to eight months' imprisonment for failing to surrender to bail. He appeals against the conviction for the bail offence and he appeals against sentence for the offences of causing death by dangerous driving.

The facts can be stated shortly. The appellant was driving his car along Willington Road. He had a passenger in the car with him. He was driving at about 20 to 30 mph. He was approaching a junction where there were signs that he should give way. It was a sunny day. The signs were clearly visible. Indeed, the appellant had driven that road before.

There were two cyclists on the road coming from his left. A Range Rover was approaching from the right. The conditions were such that the appellant should have seen them and indeed the passenger in his vehicle saw them. For whatever reason the appellant did not stop to give way as he should have done. He drove through the junction and collided with the Range Rover. Tragically his car struck and killed one cyclist. The other car spun around, struck and killed the second cyclist. The two cyclists were Roger Harris and Bryan Kenealy. They were friends, out cycling on a November morning. Mr Harris had a family, a wife and children. We have read the victim impact statements of his two daughters, Deborah and Andrea, who were in their 20s at the time of the death. We have also read the victim statement of his brother. There is no doubt that Mr Harris was a well-loved, devoted family man. The judge said the same was true of his friend, Mr Kenealy. Those two innocent men lost their lives. Their families lost a father and a husband. The grandchildren grew up never knowing their grandfather. The grief and anguish of the families must have been made far worse by the fact that the appellant ran away and it took nearly 25 years before he was caught and was brought to justice. Nothing this court can say will diminish the loss and grief suffered by those two families. The sentence that this court imposes cannot begin to reflect the value of the lives of the two innocent men who died that day.

We turn first to the offence of failing to surrender to bail. The facts are that after being convicted at trial, but before he was sentenced, the appellant fled the country. He was originally from Turkey. He returned there and, it seems, spent some years travelling between Turkey and Greece before settling in France. Ultimately his crimes caught up with him. He was arrested in France and extradited to the United Kingdom.

He can only be tried and sentenced in this country for the crimes for which he was extradited. Section 146 of the Extradition Act 2003 provides, so far as material for present purposes, that a person may only be dealt with in the United Kingdom in respect of an offence for which he was extradited. There are exceptions but none apply in this case. The appellant was not extradited for the offence of failure to surrender to bail. It is clear from the correspondence that has been shown to us that France has not consented to his being extradited for that offence. The prosecution accept that. The appellant should not therefore have been dealt with for that bail offence.

We therefore grant an extension of time for appealing against the conviction for failing to surrender to bail. We quash the conviction for that offence and we quash the sentence of eight months' imprisonment for that offence.

We turn now to the two offences of causing death by dangerous driving. We make the following observations. At the time that the appellant committed these two offences the maximum sentence permitted by law was 10 years' imprisonment. Public opinion and Parliament now treat such offences much more seriously. Parliament has increased the maximum sentence that is permitted to one of life imprisonment for offences committed after 28 June 2022. The appellant however committed these offences in 1999 and he must be sentenced according to the law in force at that time.

Secondly, the Sentencing Council has fixed guidelines for sentencing persons who cause death by dangerous driving. We have regard to those guidelines but we must remember that those guidelines are based on a situation where the maximum sentence is now life imprisonment and accordingly some reduction must be made when applying those guidelines to offences committed before the change in the law.

The guidelines refer to the harm caused and say that for all these cases the harm caused, loss of life, is of the utmost seriousness. The guidelines also refer to the level of culpability of the offender. Category A is the highest level of culpability where one or more of the factors specified in the guidelines are present. Category C is the lowest level of culpability and that is described in the guidelines as a standard of driving just over the threshold for dangerous driving.

Turning to the present case, the defence, and initially the prosecution, agreed that in terms of culpability this offence fell into category C. The sentencing judge is not bound to accept the categorisation of the parties and he did not do so on this occasion. He considered that the driving involved an obviously highly dangerous manoeuvre and so fell within category A. The judge said this:

The judge said that someone who carries on driving through a give way sign, crossing a junction, was obviously executing a highly dangerous manoeuvre. He said that the starting point under the guidelines for a category A offence, which is one involving such a manoeuvre, was 12 years' custody with a range of eight to 18 years' custody. The judge indicated that this had to be adjusted downwards to reflect the fact the maximum sentence at the time (which the judge erroneously believed was 14 years’ custody rather than 10 years).

The judge said that in this case there had to be an upwards adjustment from the starting point to reflect the aggravating factors of the case. Here the victims were vulnerable as they were cyclists. The appellant had previous convictions for driving whilst uninsured and for having defective tyres, although the judge did not give that factor much weight.

The judge rightly considered that the most serious aggravating factor here was that there were two victims. Two men died. He concluded that the appropriate sentence before mitigation would be 13 years' custody and he reduced that. because of the appellant's personal mitigation, to 12 years' custody. He therefore imposed a sentence of 12 years' custody for each of those two offences to run concurrently.

Mr Clemo, who has appeared for the appellant today, submits that the judge was wrong to categorise this as a category A offence. He submitted that the correct categorisation was category C. First he submitted this was not an obviously highly dangerous manoeuvre. This, he said, was a person who paid insufficient attention and was distracted to the point of being dangerous and therefore drove through a junction. It was a serious lapse in concentration which carried on for over 480 metres. Mr Clemo submitted that none of the category A factors applied and therefore it was a category C case. We note that the prosecution accept that this was not a category A case, but they say now that it is a category B case.

First, we are satisfied that this was not a category C case. That applies to driving which is just over the threshold for dangerous driving. That was not the case here. The appellant drove at 25 or 30 mph for some way, crossed a junction in broad daylight with give way signs obviously visible.

Secondly, we do consider however that the judge was wrong to place this within category A. Driving along a road and through a junction did not of itself involve the appellant carrying out an obviously highly dangerous manoeuvre such as overtaking on a bend when you cannot see oncoming vehicles. There are other factors set out in category A which could make the case one of high culpability. Potentially the most relevant would be a deliberate decision to ignore the rules of the road and disregard for the risk of danger to others. However, the judge did not base his categorisation on this factor. Furthermore, although he referred to the appellant being in a foul mood and deciding deliberately to drive on come what may, we do not see on what evidence the judge could base that conclusion. He was not the trial judge and had not heard the evidence. The only material before him was in effect the probation report which referred to the appellant being preoccupied because of an argument that he had had with his wife that morning. There was therefore no proper basis for concluding that this factor was present.

In the circumstances, none of the category A factors have been proven to exist in this case. This case therefore falls into category B. The offender's culpability falls between A and C. The starting point under the guidelines for a category B offence is six years' custody with a range of four to nine years' custody. We remind ourselves that those limits were fixed by reference to a maximum sentence of life imprisonment and at the time of these offences the maximum was 10 years' imprisonment. We make a downward adjustment to reflect that.

The sentence has to be adjusted upwards from the starting point to reflect the aggravating features. The guidelines identify three that relevant, namely the victims were vulnerable road users as they were cyclists, there was a passenger in the car that the appellant was driving and the appellant had previous convictions, although, like the judge, we do not give that last factor a great deal of weight given the relatively minor nature of the convictions.

By far and away the most serious and the most aggravating factor in the present case was the fact that two people died. Although there were two separate offences, they both arose out of the same conduct and so the sentences will be concurrent. But this sentence has to reflect the harm caused. Here not one but two innocent lives were lost because of the appellant's dangerous driving. That significantly increases the sentence that must be imposed.

In the circumstances, and before making any reduction for mitigation, a sentence in the range of nine years' custody would be appropriate for this kind of dangerous driving resulting in the death of two people and where there are other aggravating features. That is at the top of the range in the guidelines, but we consider a sentence in that region would be appropriate even bearing in mind the guidelines were fixed by reference to the possibility of life imprisonment, not a maximum of 10 years' custody. The judge reduced the sentence by one year to reflect the appellant's personal mitigation. We see no reason for disagreeing with that assessment and we would reduce the sentence from nine years to eight years' custody.

We will therefore allow the appeal to the extent that the sentences of 12 years' imprisonment will be quashed and we substitute sentences in each of the two offences of causing death by dangerous driving to eight years' custody to be served concurrently.

Finally, the judge disqualified the appellant for seven years from driving. He also imposed an extended period of disqualification of eight years and four months. The statutory provisions permitting the imposition of such an extended period of disqualification only apply, however, to offences committed on or after 13 April 2015. These offences were committed in 1999, well before that date. We therefore quash the extension period of eight years and four months, but we leave in place the disqualification for seven years.

In summary therefore, we allow the appeal in relation to the sentence for each of the two offences of causing death by dangerous driving. We quash the sentences of 12 years' imprisonment and substitute a sentence for each offence of eight years' imprisonment to run concurrently. We quash the period of extended disqualification but leave in place the disqualification for a period of seven years. We grant an extension of time for appealing against the conviction for failing to surrender to bail. We allow the appeal in relation to that offence. We quash the conviction for that offence and we quash the sentence of eight months' imprisonment for that offence. We order an extended retest before Mr Ozkara can even begin to think of driving again.