Milton v Crown Prosecution Service

The statutory test for dangerous driving remains objective. However, Road Traffic Act 1988 section 2A(3) requires the fact-finder to have regard to any circumstance relevant to dangerousness that is proved to have been within the accused’s knowledge. This may include personal attributes or conditions, whether favourable or unfavourable to the accused. Exceptional driving skill may therefore be relevant, although its weight is for the fact-finder. Subjective beliefs about the safety of the driving remain irrelevant. Clear statutory wording should be construed from the statute itself; a White Paper cannot justify a narrower construction inconsistent with the enacted provision.

The claimant, a Grade 1 advanced police driver, was convicted of dangerous driving after driving at very high speeds on the M54, the A5 and through a built-up area. The conviction followed a retrial ordered after an earlier appeal in DPP v Milton [2006] EWHC 242. The district judge treated the dangerous-driving test as wholly objective and disregarded the claimant’s specialised driving skills. The case stated questions concerned the meaning of section 2A(3) of the Road Traffic Act 1988, the relevance of the claimant’s advanced training and the use of a White Paper in statutory construction.

1. Appeal allowed. The district judge misdirected himself in law by treating the claimant’s unusual driving skills as irrelevant to dangerousness. The matter was remitted to him for reconsideration, without a complete rehearing, having regard to those skills. Further evidence could be heard about what Grade 1 advanced-driver status implied.
2. The test under section 2A(1) of the Road Traffic Act 1988 is objective. It asks whether the driving fell far below what would be expected of a competent and careful driver and whether it would be obvious to such a driver that the driving was dangerous. Subjective considerations, including what the accused believed about the safety of the driving, remain irrelevant.
3. Section 2A(3) does not alter the objective test. It enlarges the circumstances to which the fact-finder must have regard by including any circumstances shown to have been within the accused’s knowledge. The provision is not confined to circumstances adverse to the accused. Alcohol consumption, liability to hypoglycaemia and exhaustion may be relevant against the accused; an emergency, sudden brake failure or exceptional driving skill may be relevant in his favour.
4. The fact that a driver is a Grade 1 advanced police driver is therefore a circumstance to which regard must be had. The weight of that circumstance is for the fact-finder. It may make no difference, or it may lead to the conclusion that driving which would be dangerous for an ordinary driver was not dangerous for a driver of exceptional skill.
5. The White Paper was not a proper aid to construction where the statutory language was clear. The enacted section 2A(3) was inconsistent with an absolute approach that excluded all individual circumstances. The district judge was led into error by allowing the White Paper’s policy to narrow the words Parliament had enacted.
6. Mr Justice Gross agreed. He emphasised that section 2A(3) widens the range of factors considered in applying the objective test, while warning that only objectively provable circumstances capable of affecting the result should be admitted.

• High Court (Administrative Court): The appeal by way of case stated was allowed. The conviction was not quashed outright; the case was remitted to the district judge for reconsideration in light of the judgment.
• Ludlow Magistrates’ Court: District Judge Wallis convicted the claimant of dangerous driving after a retrial.
• High Court (Administrative Court): An earlier appeal against the original acquittal was allowed in DPP v Milton [2006] EWHC 242, and the dangerous-driving charge was remitted for rehearing.