Cambray, R. v

Where the evidence raises a live issue whether driving fell merely below, rather than far below, the standard of a competent and careful driver, the statutory alternative of careless driving should be left to the jury. The gravity of the consequences is not a lawful reason to withhold that alternative.

A conviction is not thereby unsafe automatically. The appellate court must be satisfied that the jury may have convicted because it was reluctant to acquit a defendant whose conduct was plainly reprehensible. Clear directions against that reasoning, and the conduct of the trial, may establish that no such risk arose.

Sentencing guidelines require an assessment of the gravity of the applicable culpability factors. A higher statutory maximum may produce a general upward tendency, but does not justify a mechanically proportionate increase in every sentence.

The appellant, an unqualified learner driver, drove a BMW over a kerb and down an incline onto a beach. A child was killed and the child’s father was seriously injured. The appellant said that his foot had slipped from the brake onto the accelerator.

At trial, the judge did not leave careless driving as an alternative to causing death by dangerous driving and dangerous driving. The appellant was convicted and received eight years’ imprisonment for causing death by dangerous driving, with concurrent sentences for dangerous driving and unlawful wounding. He was also disqualified from driving for ten years.

The appeals concerned whether careless driving should have been left to the jury and whether the eight-year sentence was consistent with the applicable culpability category.

1. The appeal against conviction was dismissed. The appeal against sentence was allowed to the limited extent that the eight-year sentence was reduced to six years’ imprisonment. The driving disqualification remained unchanged.

2. Under Road Traffic Act 1988, section 2A, dangerous driving requires both driving which falls far below the standard expected of a competent and careful driver and obvious danger. The test is objective, while taking account of circumstances within the accused’s knowledge.

3. The judge should have left careless driving to the jury. There was a live issue whether the appellant’s driving over the kerb fell far below the required standard or only below it. The tragic death and injury could not lawfully remove that issue. Attorney General’s Reference No 4 of 2000 [2001] 2 Cr App R 417 concerned whether a wrong-pedal mistake involved driving rather than involuntary conduct; it did not decide the distinction between careless and dangerous driving.

4. Applying R v Maxwell (1990) 91 Cr App R 61, the omission required the court to ask whether the jury might have convicted rather than allow the appellant to escape liability altogether. That risk did not arise. The judge repeatedly directed the jury to acquit unless sure that the driving fell far below the requisite standard, however reprehensible it was. Defence counsel also addressed the jury on careless driving, without correction, and the jury did not seek further directions. The verdicts were therefore safe.

5. For sentence, R v Cooksley [2004] 1 Cr App R(S) 1 placed the offending in the intermediate-culpability category. The court took account of the appellant’s habitually unacceptable driving while unqualified and of the death and serious injury. The guidance was not statutory and required an assessment of the gravity of the factors. Consistently with R v Gray [2006] 1 Cr App R 21, the increased maximum penalty did not warrant a systematic 40 per cent increase in sentences. Eight years was reserved for higher culpability; six years was appropriate here.

• Court of Appeal (Criminal Division) — dismissed the appeal against conviction, but allowed the appeal against sentence in part and substituted six years’ imprisonment for eight years.

• Trial court — convicted the appellant of causing death by dangerous driving, dangerous driving and unlawful wounding; imposed eight years’ imprisonment in total and a ten-year driving disqualification.