Webster v R.

Dangerous driving under Road Traffic Act 1988 section 2A is not established merely because the driver was intoxicated. The prosecution must prove dangerous driving in the manner prescribed by the statute. Intoxication is relevant evidence, but it is not conclusive.

A person who permits another to drive is secondarily liable only if he actually foresees that the driver is likely to drive dangerously. An owner-passenger may be liable for failing to intervene only if he knows of the dangerous driving while there remains an opportunity to intervene. What the defendant ought to have foreseen is insufficient.

The appellant was convicted at Shrewsbury Crown Court in March 2005 of aiding and abetting causing death by dangerous driving. The driver, Westbrook, had pleaded guilty after losing control of the appellant’s car while driving at excessive speed; a passenger died.

The Crown relied first on the appellant’s permission for an intoxicated Westbrook to drive, and secondly on his alleged failure to intervene once Westbrook drove dangerously. The appeal challenged the legal directions on dangerous driving, secondary liability, actual foresight, and the opportunity to intervene.

1. Appeal allowed. The conviction was unsafe because the jury were not correctly directed on either basis of secondary liability. The court quashed the conviction and ordered no retrial.
2. Under Road Traffic Act 1988 section 2A(1), dangerous driving concerns the manner in which the vehicle is driven: whether it falls far below the standard expected of a competent and careful driver, and whether its danger would be obvious to such a driver. Section 2A(2) adds a separate category concerning a dangerously defective vehicle, not a defective driver. A driver’s intoxication is relevant under section 2A(3), but cannot by itself prove dangerous driving. The court explained that R v Woodward [1995] 3 All ER 79 established the admissibility of evidence of drinking, not that drinking alone established the offence.
3. Where the alleged assistance consists of permitting another person to drive, the prosecution must prove that, at that time, the secondary party actually foresaw that the driver was likely to drive dangerously. It need not prove that dangerous driving was inevitable. Evidence that the driver appeared intoxicated may strongly support foresight, but does not determine it. The distinction between actual foresight and what ought to have been foreseen must be preserved, consistently with R v Powell & English [1999] AC 1.
4. Where liability is based on a failure to intervene, the prosecution must prove that the owner-passenger knew the driver was then driving dangerously and had an opportunity to intervene. Failure to use that opportunity may support an inference of encouragement or assistance. The directions did not leave the opportunity issue adequately to the jury, contrary to the principles illustrated by Du Cros v Lambourne [1907] 1 KB 40 and Dennis v Pite [1968] 11 FLR 458.
5. The court could not say that a properly directed jury would inevitably have convicted on either basis. A retrial was refused because the appellant had already faced two trials, had served ten months’ imprisonment, and there was a real prospect that any proper sentence would have been substantially lower than five years.

• Court of Appeal (Criminal Division) Allowed the appeal against conviction in [2006] EWCA Crim 415, quashed the conviction, and declined to order a retrial.
• Crown Court at Shrewsbury Convicted the appellant in March 2005 of aiding and abetting causing death by dangerous driving.