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Dan Bunting photoIn R v Taylor [2016] UKSC 5, the Supreme Court allowed the appeal of Mr Taylor against the decision of the Court of Appeal (Criminal Division) allowing the appeal of the Crown Prosecution Service against a terminatory ruling of the Crown Court that effectively directed Mr Taylor’s acquittal.

This confirms that in a prosecution for Aggravated Vehicle Taking the Crown are required to prove an element of fault on the part of the defendant’s driving.

Background

On 23rd June 2012 Mr Taylor was driving a van belonging to one his friends in order to collect another friend. Whether or not he had the first friend’s consent, so as to make out the offence of simple vehicle taking (s12 Theft Act 1968 – TWOC), would have been an issue for any trial.

Sadly, whilst Mr Taylor was driving the van, there was a collision with a scooter driven by a Steven Davidson-Hackett. During this, Mr Davidson-Hackett’s bike slid under the van and he was killed. Mr Taylor was uninsured in relation to the van, and after he was breathalysed, it transpired that he was over the legal alcohol limit.

Mr Taylor had been charged with a variety of offences including, for relevant purposes,  Count 3 – Aggravated Vehicle Taking (s12A Theft Act 1968) and Count 4; a charge of causing the death of Mr Davidson-Hackett whilst uninsured (s3ZB Road Traffic Act 1988).

However, after a detailed analysis of all the evidence, the Crown concluded that they could not invited a jury to conclude that the accident, and Mr Davidson-Hackett’s consequential death, was caused, or contributed to in any way, by Mr Taylor.

The Crown accepted that, following Hughes [2013] UKSC 56, Count 4 could not be maintained as that had determined that there had to some element of fault in the driving for that Count to be maintained.

Following that, both defence and prosecution invited the trial Judge to rule as a preliminary issue whether, in light of the Crown’s concession, a conviction could follow on Count 3.

s12A reads, so far as is relevant :

Subject to subsection (3) below, a person is guilty of aggravated taking of a vehicle if –

(a) he commits an offence under section 12(1) above (in this section referred to as a “basic offence”) in relation to a mechanically propelled vehicle; and

(b) it is proved that, at any time after the vehicle was unlawfully taken (whether by him or another) and before it was recovered, the vehicle was driven, or injury or damage was caused, in one or more of the circumstances set out in paragraphs (a) to (d) of subsection (2) below.

(2) The circumstances referred to in subsection (1)(b) above are—

(b) that, owing to the driving of the vehicle, an accident occurred by which injury was caused to any person;

The Defence submitted that, following Hughes, some element of fault was also required in this offence. The Prosecution’s case in the Crown Court was that the Court should be bound by Marsh [1997] 1 Cr App R 67 where the Court of Appeal (Criminal Division) had determined this question in a way that would be adverse to Mr Taylor, holding it to be an offence of strict liability.

The Crown Court ruled that Hughes should be followed. This was treated as a terminating ruling and appealed by the CPS. They succeeded in the Court of Appeal, in essence of the grounds of precedence and that Marsh should be followed.

However, a point of law of general importance was certified and, unusually, the Court of Appeal gave leave to the Supreme Court.

Supreme Court’s Judgment

In the Supreme Court, the Prosecution made two arguments. Firstly, they submitted that Hughes was wrongly decided and should be followed.

Given that it was decided less than three years ago, and four of the Judges that heard Hughes were on the (nine Judge) panel hearing Taylor, this was a somewhat optimistic submission. It was dealt with quickly – here was no good reason to believe that that was so. Although there was a concession by the Crown in Hughes, the judgements given were reasoned ones that dealt with the substantive issues, and the outcome would have been the same had the concession not be made.

The main argument, therefore, was whether Hughes could be distinguished. Four points of difference between the Aggravated Vehicle Taking offence, and the offence under s3ZB Road Traffic Act 1988 were identified :

  1. The underlying offence of simple vehicle taking has a requirement of mens rea, and so there is less unfairness in that the aggravated offence is not one of strict liability.
  2. Aggravated TWOC is a less serious offence, in that it is not a homicide offence.
  3. The s3ZB offence occurs when the death is caused by a defendant “driving a motor vehicle on a road”, whereas the driving in the Aggravated TWOC offence is incidental to the offence.
  4. There are two defences contained in s12A(3) Theft Act 1968 which, it was argued, militates against there being a more general fault element.

After considering these points, the Supreme Court unanimously ruled that they were not sufficient to distinguish Hughes.

The main point underlying the decision is that to allow a conviction without fault, even with a mental element in the basic offence, is to create an offence of strict liability. It would allow someone to be convicted of a serious criminal offence (in this case effectively a vehicular homicide offence with a maximum sentence of 14 years where someone dies) which would label them a killer, without any element of fault in the manner of their driving.

This would be contrary to usual principles (see Sweet v Parsley [1970] AC 132 and cases thereafter), in particular the strong aversion of the common law to offences of strict liability. The Court would, if at all possible, read in mens rea. Although it would not always be possible, in this case it could be in the sense that without fault, the driving would not have ‘caused’ the death.

Therefore, a person cannot be guilty of Aggavated TWOC in a case where death is caused (and by extension, suitably modified, to most other TWOC cases) unless there is “at least some act or omission in the control of the car, which involves some element of fault, whether amounting to careless/inconsiderate driving or not, and which contributes in some more than minimal way to the death”.
The appeal was allowed and Mr Taylor’s acquittal on Count 3 therefore stands.

Precedent

One question that is not touched on by the Court is how the lower Courts should have approached a situation such as this where there is clear binding Court of Appeal authority on the exact question at hand, but a subsequent Supreme Court decision on a closely related issue goes the other way. The previous case of Marsh was nearly twenty years old, ancient in relation to the fast moving pace of the criminal law.

There was no criticism for the opposite approaches taken by the Recorder of Exeter or the Court of Appeal. By not only certifying a question, but also giving leave, the Court of Appeal would appear to have made it clear what their view of the ultimate disposal would be.

Comment

The conclusion of the Court is not a surprise. The differences between s12A Theft Act 1968 and s3ZB Road Traffic Act 1988 is a distinction without any real difference, and anyone reading the judgment in Hughes would have no real doubt as to what the Court would have concluded had the facts of Mr Taylor’s case had been in front of them.

On the ultimate conclusion, the Court is clearly right. It is one thing to endorse somebody’s licence, or issue a financial penalty, in a situation where somebody unintentionally breaches the rules of the road, it is quite another to send them to prison for up to 14 years and effectively brand them a killer when their driving is blameless in what happened.

About the author: Dan Bunting is a barrister at 2 Dr Johnson’s Buildings specialising in criminal and immigration law. He co-edits the UK Criminal Law Blog