Читать книгу Criminal Law - Mark Thomas - Страница 115
(i) Driving cases
ОглавлениеThis first sub-section is justified on account that a common feature of accidents and collisions on the road is the attempt to pass blame. By way of a simple example, Jack is driving his car at speed and tailgates a car driven by Jill. Suppose Jill applies the brakes without due cause and Jack collides into the back of Jill’s car, killing Andy who was sat in the back seat. Who is responsible for Andy’s death? Jill for applying the brakes without reason, or Jack for tailgating at speed and ultimately colliding with Jill?
The point to appreciate here is that, as noted above, there may be multiple causes of the same end result. We need to consider, however, what the circumstances are where one party can legitimately pass blame from themselves to another. The test to be applied in these circumstances is whether the subsequent conduct of the third party is ‘reasonably foreseeable’ to the defendant (R v Girdler [2009] EWCA Crim 2666). In Girdler, the defendant had driven into the back of a taxi. The collision resulted in the taxi being propelled into the fast lane leaving it broadside to the oncoming traffic. A car in the fast lane collided with the taxi, killing both the driver of the car and the taxi. The issue for the jury was:
•Who was responsible for the death of the driver of the car?
•Who was responsible for the death of the taxi driver?
The jury found no difficulty in concluding that the defendant had caused the death of the driver of the car, through his dangerous driving that propelled the taxi into the fast lane. However, the jury could not be sure that the defendant was responsible for the death of the taxi driver, given that there was a subsequent act (ie the act of the driver of the car) which caused the fatal accident. The appeal itself is not relevant for our purposes. Rather, it was the conclusion of the Court in reviewing the existing area of law. In particular, the Court departed from the ‘free, deliberate and informed’ test noted above on the basis that (per Hooper LJ)
offences of causing death by dangerous and careless driving will punish the conduct of a person who has not intended or necessarily foreseen the consequences of his driving. Such a person is in a very different position to a person who has intended to kill or cause serious bodily harm or who has the mens rea for manslaughter.
Hooper LJ would go on to state what he believed the appropriate direction to the jury could be:
We suggest that a jury could be told, in circumstances like the present where the immediate cause of death is a second collision, that if they were sure that the defendant drove dangerously and were sure that his dangerous driving was more than a slight or trifling link to the death(s) then:
the defendant will have caused the death(s) only if you are sure that it could sensibly have been anticipated that a fatal collision might occur in the circumstances in which the second collision did occur.
The judge should identify the relevant circumstances and remind the jury of the prosecution and defence cases. If it is thought necessary it could be made clear to the jury that they are not concerned with what the defendant foresaw. (emphasis added)
Girdler is therefore authority for two propositions: (a) the test is one of reasonable foreseeability; and (b) the subsequent act need not be ‘free, deliberate and uninformed’ to break the chain of causation; it may be an accidental or unintended intervention that breaks the chain (so long as it was not reasonably foreseeable).
A question that naturally leads on from Girdler, however, is this: What must be reasonably foreseen? This was the issue in the recent case of R v A [2020] EWCA Crim 407. In summary, the defendant had parked her car on the hard shoulder of a motorway for no legitimate purpose. The car displayed no hazard lights, or any other car lights. A lorry driven by the second defendant, who had fallen asleep behind the wheel, traversed from the outside lane of the motorway to the hard shoulder and collided with the defendant’s car, killing one of the passengers.
At trial, the judge ruled that in order for the chain to be maintained, the defendant must have reasonably foreseen the particular subsequent act that could have followed (ie that a lorry would have travelled across numerous lanes of the motorway and collided with the defendant’s car). The trial judge reached this conclusion on account that, in Girdler, Hooper LJ used the phrase ‘in the circumstances in which the second collision did occur’. As such circumstances were not reasonably foreseen, the charge was withdrawn from the jury and the defendant acquitted. The prosecution successfully appealed to the Court of Appeal on the basis that the trial judge erred in his reading of Girdler. The Court of Appeal agreed, with Simon LJ ruling that:
What had to be sensibly anticipated was that another vehicle might leave the carriageway and collide with the respondent’s parked car. It would not be necessary for the jury to be sure that the particular circumstances of the collision or ‘the exact form’ of the subsequent act was reasonably foreseeable.
It follows that, in our view, the Judge adopted too confined an interpretation of the Girdler formulation, and as a consequence he erred in his conclusion that there was no case to answer.
If a driver leaves a car, on the hard shoulder of a motorway for 15 minutes at 4.30 am on a November morning, without displaying any lights, a jury could properly conclude that some form of collision could occur, and that, if it were occupied, death or serious injury could be caused. (emphasis added)
Following R v A, therefore, the precise details or ‘exact form’ of the subsequent third party action need not be reasonably foreseeable; it is merely the case that some sort of third party intervention would be foreseeable. See also R v Wallace (Berlinah) [2018] EWCA Crim 690 and the Canadian authority of R v Maybin [2012] 2 SCR 30 (both of which were relied upon by Simon LJ).