Kai Nathanial Holder v R

For dangerous driving under section 2A(1) of the Road Traffic Act 1988, the objective assessment must take account of the circumstances of the particular driving. Those circumstances include matters known to the driver which materially affect the risk created by the manner of driving.

A young pillion passenger’s known failure to wear compulsory protective headgear may therefore be relevant to both statutory limbs. It may inform whether the driving fell far below the expected standard and whether its danger of injury would have been obvious. It cannot, without more, establish dangerous driving. The Sikh turban exemption does not determine the relevance of a non-exempt passenger’s lack of a helmet.

The appellant, then aged 17, drove a stolen motor scooter at between 37 and 44 mph in a 20 mph residential road. His 14-year-old pillion passenger was not wearing a helmet. While looking backwards, the appellant lost control, struck a kerb and crashed. The passenger suffered fatal injuries.

At the Central Criminal Court, the appellant was convicted of causing death by dangerous driving. He had pleaded guilty to aggravated vehicle taking and to causing death by driving whilst uninsured and unlicensed. The trial judge permitted the prosecution to rely, among other matters, on the passenger’s lack of a helmet when assessing dangerous driving.

The appeal challenged that ruling. The central issue was whether the known absence of a helmet could be considered as part of the appellant’s driving for the purposes of section 1 of the Road Traffic Act 1988.

1. Appeal dismissed. The trial judge was entitled to leave the case to the jury on the basis that the passenger’s lack of a helmet was relevant to the dangerous-driving allegation.

2. Section 2A(1) of the Road Traffic Act 1988 supplies an exhaustive, objective test. The prosecution had to establish both that the way the appellant drove fell far below the standard expected of a competent and careful driver and that it would have been obvious to such a driver that driving in that way was dangerous.

3. The assessment is not confined to the vehicle’s physical manoeuvres. Under section 2A(3), the court must have regard to circumstances which a competent and careful driver could be expected to know and to circumstances actually known to the accused. The circumstances may bear on both limbs of section 2A(1).

4. The passenger’s lack of a helmet was a known and material circumstance. It was a basic safety measure required by criminal law and the Highway Code, intended to reduce head injuries in an accident. It could not alone justify a dangerous-driving conviction. However, when combined with excessive speed on a narrow residential road and the appellant looking backwards rather than ahead, it was open to the jury to find both that the driving fell far below the required standard and that its danger of injury was obvious.

5. The exemption in section 16(2) for Sikh riders wearing turbans balanced safety and religious freedom. It did not resolve the statutory question concerning a non-exempt, unhelmeted child passenger. The court agreed with the judge’s conclusion, although its reasoning differed in part. No challenge was made to the jury directions.

• Court of Appeal (Criminal Division) — leave to appeal against conviction was granted and the appeal was dismissed: [2023] EWCA Crim 5.
• Central Criminal Court — the appellant was convicted after trial of causing death by dangerous driving and sentenced on 24 February 2022.