Plunkett, R (on the application of) v Director of Public Prosecutions

MR JUSTICE NEWMAN: This is an appeal by way of case stated from the Crown Court at Truro. The appellant, Mr Plunkett, appealed against his conviction for careless driving contrary to Section 3 of the Road Traffic Act 1988 which had been entered at West Cornwall Magistrates' Court on 16th May 2002. His appeal came before His Honour Judge Rucker, and was heard in Truro Crown Court on 21st November 2002. He was, of course, sitting with two Magistrates.

The circumstances of the collision which occurred are in the case stated as follows. That the appellant ran into the rear of the outside lane of traffic -- it was a dual carriageway -- which lane of traffic had been stationary for about 30 to 60 seconds. He caused damage to a number of vehicles because the impact with the one at the rear pushed them forward. The evidence was to the effect that the appellant was travelling at a speed of about 22 miles an hour. The position which the appellant maintained throughout, and still maintains, he took at the scene, because when he was interviewed by the police he said, in answer to the question: "Who was to blame?", "I was, but the fault does not constitute a criminal offence."

His defence and denial that these circumstances constituted a criminal offence has three limbs. The first and central contention is that very shortly before he collided with the rear of the vehicle in the outside lane, he had been distracted by events in the outside lane of the other side of the roadway. A vehicle had come to a stop and children had come out of the vehicle and were on the grass island in the middle of the dual carriageway. As everybody has accepted, he paid attention to the children in a way which was, in principle, correct. It was, however, a distraction from the course upon which he was travelling. His obligation to pay attention to the potential risk presented by the children did not relieve him of his duty of care owed to the vehicles ahead of him.

The essence of the case, putting aside complaints that he has made about a police officer who, he says, attempted to demean and denigrate the necessity for giving attention to the children by telling lies, was a question of fact. It was for the court to decide whether under these circumstances where his attention had been distracted from the road ahead of him by an event which called for attention and care, and he collided with a vehicle ahead of him, gave rise to an excuse, reducing his fault for the accident to a level which was is not criminal.

Other aspects of his defence were that the traffic which he could anticipate being on the road ahead of him, based on observations which had been made, caused him to conclude there would be no difficulty. From his knowledge of the road, he claimed there was good reason to anticipate no obstruction. At the material time he was distracted by the children, he operated on the assumption that there was nothing ahead of him which would put him into difficulty and cause him to collide. The other matter he prays in aid is that it was an unusual obstruction, or reason, which caused vehicles to come to a halt on this dual carriageway. It was caused by a large crane at a roundabout, which was generating a backlog of traffic coming to a halt. He submits that with regard to that, there was no warning of that and thus it was an unusual occurrence which militates against his conduct being regarded as falling below the standard of driving required to found a conviction for careless driving.

The Crown Court judge made the following findings. That the appellant had departed from the standard of the reasonable competent driver. He found as a fact that the appellant had said it was his fault. That, I do not think, has ever been in issue. He found that the appellant had made an assumption that the road ahead of him would be clear. Again, no issue as to that. Mr Plunkett has repeated that that indeed was the case. There had been a car on the opposite side of the carriageway and the appellant had been distracted by children. There is no question that that is not anything other than a proper finding. The appellant carried on driving and, on his own evidence, hit the first car at 22 miles an hour. That is true as well, although Mr Plunkett has emphasised so far as he carried on driving it was only over a very short space of time, a matter of seconds, and obviously no great distance.

The judge concluded that on those facts he was clearly driving without due care and attention. In so far as he, in the case stated, expresses the way in which he approached the defence, he asked whether there was any proposition of law broadly to the effect that a driver was entitled to be acquitted if his attention is distracted by some important event or emergency. He went on to say:

The essence of the conclusion in law of the learned judge is that, firstly, it is a matter of fact in every case for the court to determine whether what has occurred amounts to a sufficiently distracting event which results in absolution of the driver from a collision which then ensues because of the distraction. Each case must depend upon its own facts. In this case, the judge concluded that the driver, Mr Plunkett, had allowed himself to be distracted for too long, having regard to the speed at which he was travelling. As a matter of pure fact, it must be so that that was the case, because if it was not the case there would not have been a collision. Had the attention of Mr Plunkett been towards his front, as opposed to his side, for split seconds or whatever it be, momentarily earlier, then it is likely that he would have had time to stop. But he did not.

I can see no basis for concluding that the judge was not entitled, on these facts, to find that the exercise of judgment which Mr Plunkett had engaged in, at the point that he turned his attention to the children, was one which meant that he failed in the obligations that he also had either to reduce his speed even more severely from whatever speed he was travelling at so he was not going at 22 miles an hour, thus not bearing down at all in the direction, or he spent too long observing the children, or, as the judge also found, he should not have been operating at that time on any assumption which was in his mind as to the state of affairs which might exist on the road ahead of him. As we all know, no matter how familiar we are with roads, events can occur which give rise to vehicles coming to a stop suddenly. In this case, he emphasised, the vehicles had been stationary for half a minute to a minute.

The question for this court, and I emphasise that it is a question of law with which this court is concerned, is posed in this way: do the facts as found by the Crown Court support a conviction for careless driving? In my judgment there is only one answer to that question, namely: yes. In the circumstances, therefore, this appeal is dismissed.

MS BURT: My Lord, I am instructed to ask for costs in the sum of £1,350 please.

MR JUSTICE NEWMAN: Do you have a breakdown of those costs?

MS BURT: No, I do not. That figure, having been given to me this morning by the CPS, is my fee for the work I have done in relation to this appeal, plus a charge of £150 for the work done by the Crown Prosecution Service.

MR JUSTICE NEWMAN: You are going to have to tell me what your fee is.

MS BURT: That would be £1,200 for advice which I have written, travelling in today, and today.

MR JUSTICE NEWMAN: You have come from?

MS BURT: Plymouth.

MR JUSTICE NEWMAN: Alright. I will hear Mr Plunkett. Mr Plunkett, what would you want to say about costs?

MR PLUNKETT: I have no means whatsoever. I had a business in order to get me away from severe disability allowance. The first year of that business, as with many businesses, we did not earn sufficient to pay National Insurance and I have a certificate to say so. When again, I fell ill --

MR JUSTICE NEWMAN: Have you paid the costs of £350?

MR PLUNKETT: No.

MR JUSTICE NEWMAN: Have you paid the fine?

MR PLUNKETT: No. You have dismissed it. You have based it on a point of law --

MR JUSTICE NEWMAN: I am not going to hear argument about what I have decided.

MR PLUNKETT: I cannot even access benefits.

MR JUSTICE NEWMAN: But you knew very well that you were running the risk of paying costs.

MR PLUNKETT: Because I do not believe I have done anything wrong.

MR JUSTICE NEWMAN: There comes on a time when --

MR PLUNKETT: Even the CPS did not, because otherwise they would have offered a driving course.

MR JUSTICE NEWMAN: I think probably, Mr Plunkett, if you want a favourable result out of me as far as costs are concerned, you would be best to start thinking what you do want to say rather than going over old ground. You are now in a position where you were ordered to pay the costs in the Magistrates' Court of £350. Were you fined?

MR PLUNKETT: Yes.

MR JUSTICE NEWMAN: How much were you fined?

MR PLUNKETT: £200.

MR JUSTICE NEWMAN: Let us just do a bill. £200 fine, £350 in the Magistrates', what about costs in the Crown Court?

MS BURT: £55, my Lord. It is a standard charge.

MR JUSTICE NEWMAN: I was talking about the Crown Court.

MS BURT: £350.

MR JUSTICE NEWMAN: Why is that?

MS BURT: In the Magistrates' Court first hearing it was £55, in the Crown Court it was £350.

MR JUSTICE NEWMAN: Right, I have it the wrong way. Did the judge hear any representations from Mr Plunkett about paying the costs at the Crown Court?

MS BURT: Yes. My recollection is Mr Plunkett said he could not afford to pay costs because he did not have any means. His Honour Judge Rucker said: "Everybody has means. Can you give me more of an idea of what you have?" Mr Plunkett reasserted the fact that he had no money and His Honour Judge Rucker told him that he would have to find the money to pay the costs. Mr Plunkett walked out of the court. That is my recollection.

MR JUSTICE NEWMAN: Well, if there is an issue as to whether he has means or not, what is the appropriate course that should be taken? Should there not be some form of enquiry into his means?

MS BURT: Normally what would happen in the Magistrates' Court or Crown Court is that the defendants or appellants would be asked to give means with their expenditure. That would be given to the bench and then the appellant would be given an opportunity to pay by fortnightly or monthly instalments.

MR JUSTICE NEWMAN: If his means were such that he would take a long, long time to pay off a large sum of money, would the Magistrates have some sort of power to remit? Tell me if I am wrong.

MS BURT: Yes, I think that is something that would happen further down the line.

MR JUSTICE NEWMAN: Yes, I am looking down the line because I do not know whether he is right or wrong, and I am not going to get into it. I do not know, nor do you.

MS BURT: What happens, in my experience, in the Magistrates' Court and the Crown Court is where a person is of very limited means they are ordered to pay a fine at the cost of £5 a week.

MR JUSTICE NEWMAN: £1,350 was what you were asking for a minute ago. We are getting up to £2,000 now. If he is going to pay it in £5 instalments then it will take him far too long to pay off the total. It is inconceivable you could have an order that went on for £5 a week. Somebody has to have power. If I am going to accede to your order for costs so I add to the outstanding money already, somebody is going to have a to take a view as to how much of that is not paid, and therefore it will have to be remitted in some way. I am anxious to know that if I make an order that he pay the costs or a contribution towards them, to what extent would the Magistrates think they had the power to remit? I do not have the answer.

MS BURT: It is my understanding that the onus reverts to Mr Plunkett to show his lack of means if he is able to show --

MR JUSTICE NEWMAN: Let me ask the associate. My whole instinct is that the Magistrates would be loath to exercise the power. Are you really asking for an order for costs here which is going to hang in the balance for some means enquiry which will then mean you might have to come back here? I would have to say not to be enforced until some means enquiry has taken place.

MS BURT: Your Lordship could make an order for a contribution towards costs.

MR JUSTICE NEWMAN: Yes, it is still going to add something.

MS BURT: It would make it a more manageable sum to be paid in weekly or monthly instalments.

MR JUSTICE NEWMAN: Mr Plunkett, what do you want to say to me about paying off some costs? There comes a time when you have to pay the penalties. When are you going to do it?

MR PLUNKETT: After five appeals and one personal appearance in front of an Adjudicator, I was finally awarded £110 week benefit, plus I have an award of incapacity benefit, money of which is not paid at all. It is only remitted that it pay my contributions because no matter how many years you have paid your National Insurance, when you get ill they determine two years, and you have had to pay full contributions for both or you get nothing.

MR JUSTICE NEWMAN: So what is your total income?

MR PLUNKETT: £119.25 a week.

MR JUSTICE NEWMAN: Do you own a house?

MR PLUNKETT: It is fully mortgaged, yes.

MR JUSTICE NEWMAN: Do you own it?

MR PLUNKETT: Jointly with my wife.

MR JUSTICE NEWMAN: Does she work?

MR PLUNKETT: She has the other half of the business. Her income from that is prescribed by a supervisory arrangement.

MR JUSTICE NEWMAN: Is it in your name and wife's name?

MR PLUNKETT: Yes.

MR JUSTICE NEWMAN: How much is the house worth?

MR PLUNKETT: £280,000.

MR JUSTICE NEWMAN: What is the mortgage?

MR PLUNKETT: £210,000

MR JUSTICE NEWMAN: Do you own a car?

MR PLUNKETT: No.

MR JUSTICE NEWMAN: You are not driving?

MR PLUNKETT: Only my wife's car.

MR JUSTICE NEWMAN: I see.

MR PLUNKETT: The actual benefit I get in income support is grudgingly paid.

MR JUSTICE NEWMAN: Is there anything more you want to say to me before I assess what sum you should pay in costs?

MR PLUNKETT: No.

MR JUSTICE NEWMAN: Right. I propose to order that you pay £650 towards the costs of this appeal, which has been unsuccessful. So far as that order for costs is one made in this court, and is therefore in the High Court, I am prepared to say that it should not be enforced until such time as you have supplied in writing details of your means with supporting documentary evidence. What I have in mind is that unless you are going to pay off the final cost below, there should be a means enquiry in so far as you supply the Magistrates' Court with what I have just said, namely your declaration as to your means and income with supporting documents. What I propose to do is to say that subject to you supplying the Magistrates at West Cornwall Magistrates' Court with details, by way of a declaration, as to your income and assets with supporting documents within -- how long would you take?

MR PLUNKETT: Two or three days.

MR JUSTICE NEWMAN: Within seven days, with a copy supplied to the Administrative Court here, there will be a stay on the enforcement of the order for costs in this court after the means enquiry has taken place in the Magistrates' Court or the Magistrates have reached a determination in connection with the outstanding matters that they will be concerned with. This court must be informed as to the result and it will be for the Crown Prosecution Service to make a decision as to whether they, in the light of that information, wish to make an application to this court which can be dealt with in writing for the stay on the enforcement of the costs in this court to be lifted. Do you understand what I have said?

MR PLUNKETT: I have the right to give a list of my means to court and send one to you.

MR JUSTICE NEWMAN: It is a statement which should be signed and contain a full, frank, complete disclosure of the position. You must fully supply relevant documentation to verify your income. It may be that the Magistrates will ask for more. They might actually want bank statements, I do not know, but you have to make a full and frank disclosure to the Magistrates as to your position, and send copies to this court. As long as you do that, there will be no enforcement of the order until the CPS apply, and only in accordance with the information they have. Thank you very much.