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Strict liabilityShould a motorist whose driving was faultless be liable to conviction for “causing death by driving whilst unlicensed, disqualified or uninsured”?

On 5 June 2013, the Supreme Court heard an appeal against the decision of the Court of Appeal in R v H [2011] EWCA Crim 1508, which held that an unlicensed, disqualified or uninsured driver could be guilty of an offence contrary to section 3ZB of the Road Traffic Act 1988 even where his or her driving was faultless and the victim was, in civil law terms, entirely responsible for the accident. The main issue was whether such faultless driving could be a legal cause of death.

Facts

On 25 October 2009 the appellant, who possessed only a provisional driving licence and held no insurance policy, was involved in a vehicle collision with the victim, who later died. There was no dispute that in civil terms, the victim was entirely responsible for the accident: he was found to have been under the influence of heroin and other drugs at the time of the accident, his driving had been erratic and dangerous, and the accident occurred when he veered into the lane of oncoming traffic. By contrast, the appellant’s driving was beyond reproach.

The appellant was charged with causing death by driving whilst unlicensed and uninsured, contrary to section 3ZB of the Road Traffic Act 1988.

The law

Section 3ZB of the Road Traffic Act 1988 states that:

A person is guilty of an offence under this section if he causes the death of another person by driving a motor vehicle on a road and, at the time when he is driving, the circumstances are such that he is committing an offence under–

(a) section 87(1) of this Act (driving otherwise than in accordance with a licence),

(b) section 103(1)(b) of this Act (driving while disqualified), or

(c) section 143 of this Act (using motor vehicle while uninsured or unsecured against third party risks).

As such, the offence is made out where:

(1)     The driver is unlicensed, disqualified or uninsured; and

(2)     His driving a motor vehicle is a legal cause of the death of the victim.

 The appeal

What, then, does it mean in law to “cause the death of another person by driving a motor vehicle” for the purposes of this section?

At first instance, the Recorder found that as a matter of law the faultless driving of the respondent could not be a legal cause of death: the correct interpretation of the statute was that there must be something about the driving which caused the death, more than the mere fact of being on the road. In this case, the victim caused his own death through his dangerous driving. The prosecution appealed against this ruling, relying on Williams [2010] EWCA Crim 2552 as precedent for the submission that the offence can occur without any blameworthy conduct on the part of the unlicensed driver, and that the motorist’s mere act of driving sufficed in law as a cause of death.

The Court of Appeal allowed the prosecution appeal, considering itself bound by Williams. Consequently it was held that, having established that the motorist was unlicensed, disqualified or uninsured, the only question for the court was whether death was legally caused by the act of driving the car on the road; the usual definition of causation would apply, meaning anything more than negligible or de minimis. Crucially, the Court held that there need be no causal link between the manner of driving and the death, but explicitly left it open to future juries to find that a defendant’s conduct was no more than a negligible cause, or that a defendant was not a ‘but for’ cause of death. This was expressed not without reluctance by Hooper LJ, giving judgment for the Court: “As to the fifth point (arguably there has to be a causal link between the driving and not just the fact that the car was on the road at that time and the death), whilst seeing some force in the argument we are constrained by the decision in Williams not to accept it, even though it does not seem specifically to have been argued in that case.”

Further, following Williams, the Court held that the deceased driver’s decision to drive dangerously did not constitute a novus actus interveniens, relying on the (in)famous Empress Cars case. Hooper LJ even commented that:

“Thus, if [the victim] had ploughed into the respondent’s van whilst stationary in a queue of traffic or at a traffic light, the respondent, it could be said, would have caused the death of [the victim] by driving a motor vehicle.”

It was noted that the Empress Cars case had attracted considerable criticism, but had been applied nonetheless in Williams.

Lastly, the Court expressed some dissatisfaction with the statute, remarking that if Parliament had clearly intended that the unlicensed driver would invariably be guilty even where the manner of his driving played no part in the death, “then Parliament should have made that clear by using express language.” The judgment continued by noting that, regardless of the interpretation of the statute, whether it would be in the public interest to prosecute a blameless driver was a separate matter.

Conclusion

As the Court of Appeal in Williams said: “It may be a harsh and punitive measure with an evident deterrent element, but it is difficult to see how anything else can have been intended.”  This appeal to the Supreme Court will test whether a more ambitious interpretation can indeed be found to the words of the statute to mitigate its harshness, and will provide another illustration of how the Court will approach strict liability offences.