REGINA v THOMAS WILSON

For aggravated vehicle taking under section 12A of the Theft Act 1968, a passenger may bear substantial responsibility for dangerous driving and its consequences even without proof of active encouragement. Culpability remains the principal sentencing consideration for a passenger, assessed with the quality of the driving, the passenger’s participation in the taking and subsequent use of the vehicle, intoxication, previous convictions and the resulting harm. The absence of express encouragement does not by itself remove responsibility. Fatality materially increases the available and likely sentence. There is no tariff because culpability is fact-sensitive. An extended driving test may be required of a passenger where necessary for public protection; no universal rule excludes such an order.

The appellant was sentenced by Her Honour Judge Cohen at the Crown Court at Basildon on 13 August 2021. He received three years’ imprisonment for aggravated vehicle taking involving a fatal accident, contrary to section 12A of the Theft Act 1968, consecutive to three years and four months for possessing controlled drugs with intent to supply. He also received a 98-month driving disqualification and an extended-test requirement.

The appellant, a passenger, had jointly participated in taking a vehicle and had consumed cocaine and Ketamine with the driver before the vehicle was driven dangerously, causing a fatal collision. He appealed against the sentence for aggravated vehicle taking, arguing that his culpability was materially less than that of the driver, and raised totality, personal mitigation and Manning reduction. He also challenged the extended-test requirement.

1. Appeal dismissed. The three-year sentence for aggravated vehicle taking was not manifestly excessive when imposed consecutively to the sentence for possession with intent to supply.
2. Section 12A imposes responsibility on a person who participated in the basic taking and was present in or near the vehicle when the aggravating circumstances occurred. In cases under section 12A(2)(b) or (c), the prosecution must establish a direct causal connection between the driving and the injury or damage. That requirement implies that something was wrong with the driving. Both driver and passenger may therefore fall within the provision.
3. The court rejected the submission that a passenger in the appellant’s position was no more culpable than a person committing only the basic offence under section 12. Culpability is likely to be the most significant sentencing factor for a passenger, although the fatality causes a step-change in the level of sentence available and likely to be imposed. A passenger’s culpability may be affected by active encouragement, neutrality or attempted discouragement, but the absence of positive encouragement does not eliminate responsibility.
4. The sentencing judge was entitled to consider the appellant’s role in the original taking, joint drug consumption, previous driving convictions, failure to withdraw from the use of the stolen vehicle, the sustained dangerous driving and the fatality. The appellant’s participation justified the finding of reckless disregard for driving rules. A sentence of four-and-a-half years would have been permissible if count 6 had stood alone. The aggregate sentence remained comfortably within the lawful range after totality, personal mitigation and Manning were considered; the longer the aggregate sentence, the less potent a Manning submission generally becomes.
5. There is no universal rule preventing an extended driving test from being required of a passenger. The relevant question is whether the requirement is necessary for public protection. On the facts, the judge was entitled to impose it.

• Crown Court at Basildon: On 13 August 2021, Her Honour Judge Cohen sentenced the appellant to three years’ imprisonment for aggravated vehicle taking, consecutive to three years and four months for possession with intent to supply. A 98-month disqualification and an extended-test requirement were also imposed.
• Court of Appeal (Criminal Division): The appeal against sentence was dismissed. Permission to appeal against the sentence for possession with intent to supply was not renewed.