Girdler v R.

Where dangerous or careless driving is alleged to have caused death following a second collision, a causal link that is more than slight or trifling is not alone sufficient. The jury must also be sure that it could sensibly have been anticipated that a fatal collision might occur in the circumstances in which the later collision occurred.

The direction must identify the relevant circumstances and fairly summarise the competing cases. It is insufficient merely to ask whether the driving set off a chain of events or created a real risk of a further collision. Where two deaths arise from the same circumstances and impact, the causation verdicts must be consistent.

Girdler v R. concerned a collision between the appellant's vehicle and a taxi on the A3. The collision left the taxi broadside in the fast lane. A later collision by Catherine Cunningham's car killed both her and the taxi driver, Preston Trewick.

At Kingston-upon-Thames Crown Court, the appellant was unanimously convicted of causing Mr Trewick's death by dangerous driving. The jury did not reach a verdict on the count alleging that he caused Ms Cunningham's death, and a retrial on that count was ordered. The appeal concerned the adequacy of the directions on causation and whether Ms Cunningham's driving could amount to a new and intervening act.

1. Appeal allowed. The conviction was unsafe. It was quashed and a retrial was ordered to be heard with the retrial already ordered on the second count.

2. Where the defence contends that a later collision was a new and intervening act or event, it is not enough to direct that the defendant's dangerous driving need only have been a cause of death with more than a slight or trifling link. Nor is it enough simply to describe the defence case. The jury require a legal direction that distinguishes causation from merely creating the occasion for a death.

3. The court preferred an objective reasonable-foreseeability limit on causation in this context. If the jury are sure that the defendant drove dangerously and that the driving was more than a slight or trifling link to the death, they should convict only if sure that it could sensibly have been anticipated that a fatal collision might occur in the circumstances of the second collision. The judge should identify those circumstances and remind the jury of both parties' cases. The inquiry is not what the defendant in fact foresaw.

4. The court explained that the free, deliberate and informed intervention principle discussed in Kennedy [2007] UKHL 38 did not readily resolve a case in which a later driver may have been careless or dangerous. The causation analysis in Environment Agency v Empress Car Co [1999] 2 AC 22 concerned strict responsibility and was not determinative of causing-death-driving offences.

5. The direction given, which referred to setting off a chain of events and placing the taxi driver at real risk of being hit, did not adequately state the required test. Further, since both deaths arose from the same circumstances and impact, a finding that the appellant caused Mr Trewick's death should have entailed a finding that he caused Ms Cunningham's death. The differing verdicts reinforced the conclusion that the causation direction may have caused difficulty.

• Court of Appeal (Criminal Division): Allowed the appeal in Girdler v R. [2009] EWCA Crim 2666, quashed the conviction and ordered a retrial.
• Crown Court at Kingston-upon-Thames: On 22 July 2009, convicted the appellant unanimously of causing Mr Trewick's death by dangerous driving. The jury did not reach a verdict on the count concerning Ms Cunningham's death, and the Crown Court ordered a retrial on that count.