Yaqoob, R v

Fresh expert evidence will not ordinarily be admitted on appeal where it could and should have been obtained for trial and there is no proper explanation for the failure to adduce it. Admission in those circumstances would subvert the criminal trial process.

For gross negligence manslaughter, the relevant risk is a risk of death, not merely a risk of serious injury. Although jury directions should state this expressly, wording referring to disregard for life and safety may suffice where the case could only involve a risk of death. A vehicle operator’s duty of care may exceed regulatory inspection minima and is ordinarily assessable by the jury on all the evidence.

The appellant was a partner in a minicab firm and was responsible for inspection and maintenance of a minibus. A replacement part-worn tyre failed while the minibus was travelling on a dual carriageway. The vehicle overturned, injuring passengers and killing one of them.

After the jury at the first trial failed to agree, the Crown was permitted to add a count of gross negligence manslaughter against the appellant. At the retrial in the Crown Court at St Albans, he was convicted of manslaughter and sentenced to four years’ imprisonment with four years’ driving disqualification.

He appealed against conviction, seeking to adduce fresh expert evidence and challenging the direction on gross negligence. He also challenged the prosecution case on the extent of his duty as an operator, maintenance records and the use of part-worn tyres. He appealed against sentence.

1. Appeal against conviction dismissed; appeal against sentence allowed. The court refused to admit the proposed fresh expert evidence. Applying section 23 of the Criminal Appeal Act 1968 and the approach in R v Jones (Steven) [1997] 1 Cr App R 86, there was no proper explanation for not obtaining suitable expert evidence before either trial. The defence had ample time to assess the prosecution evidence and to instruct another expert, and it did not seek an adjournment when the alleged deficiency became apparent. Admission on appeal would subvert the trial process.

2. For gross negligence manslaughter, the relevant risk is the risk of death. It is not enough that there was a risk of bodily injury or injury to health: R v Misra [2004] EWCA Crim 2375, applying the approach in R v Adomako [1995] 1 AC 171. In this case, a reasonable person would appreciate that failure of a tyre on a minibus travelling at speed on dual carriageways could cause death. The judge’s reference to disregard for the life and safety of others, drawn from R v Bateman (1925) 19 Cr App R 8, was therefore referable only to a risk of death and did not misdirect the jury.

3. The court added that directions should generally state expressly that the relevant risk is death, rather than serious injury. The approved formulation in R v Singh (Gurpal) [1999] CLR 582 accurately expresses that requirement.

4. A jury could find that a minicab or minibus operator owed duties of inspection and maintenance beyond annual MOT testing, council checks and regulatory requirements. No expert evidence was needed to enable the jury to assess that ordinary duty of care. It could consider the absence of maintenance records as part of the whole circumstances, and it was obvious that use of part-worn tyres called for more frequent inspection.

5. There was no demonstrated need for deterrence. The four-year sentence exceeded the appropriate range for this form of gross negligence manslaughter, having regard to the appellant’s good character, previous incident-free operation of the firm and personal circumstances. The sentence was substituted with two and a half years’ imprisonment and the disqualification was reduced to three years.

• Court of Appeal (Criminal Division): By [2005] EWCA Crim 2169, dismissed the appeal against conviction and allowed the appeal against sentence.
• Crown Court at St Albans: At the retrial in April 2004, convicted the appellant of gross negligence manslaughter and imposed four years’ imprisonment with four years’ driving disqualification.
• Crown Court at St Albans: At the first trial in September 2003, the jury failed to agree and a retrial was ordered. Before that retrial, the judge allowed the Crown to add a manslaughter count against the appellant.