R v OFM

Whether conduct amounts to driving is a question for the jury where the evidence could support that conclusion. The necessary condition is substantial control of the vehicle’s movement and direction, but that condition is not exhaustive. The conduct must also fall within the ordinary meaning of driving. Starting a car’s engine is ordinarily part of driving because it involves control over the vehicle’s movement. Lack of intention that the car should move, or inability to use the brake, clutch or steering wheel, does not necessarily prevent the conduct from amounting to driving. Intention is relevant but not decisive. The court should avoid treating the legal considerations as a rigid statutory checklist.

The respondent faced charges of causing death by dangerous driving and causing death by careless driving when under the influence of drink or drugs, contrary to sections 1 and 3A(1)(ba) of the Road Traffic Act 1988. The Crown Court judge ruled, before evidence was called and on agreed facts, that there was no case to answer because the respondent was not driving.

The respondent had started the engine while standing outside the car. The car, left in gear with its handbrake not fully applied, moved forward and struck a child’s stroller. The prosecution appealed under section 58 of the Criminal Justice Act 2003. The central issue was whether a properly directed jury could conclude that starting the engine in those circumstances amounted to driving.

1. Appeal allowed. The court granted leave to appeal and ordered that the proceedings resume before the Crown Court.
2. The test in R v McDonagh [1974] RTR 372 establishes a necessary but insufficient condition: the alleged conduct must involve the defendant in a substantial sense controlling the vehicle’s movement and direction. The conduct must also fall within the ordinary meaning of driving. The reference to control is not exhaustive and does not require effective control at every moment.
3. The question is one of fact and degree for the jury. The legal considerations are not a rigid statutory code. A stationary vehicle may still be driven, and starting the engine may amount to driving even where the vehicle was stationary at that moment.
4. Starting the engine is ordinarily part of driving. It normally involves control over the vehicle’s movement. The jury could conclude that deliberately turning the ignition key amounted to driving, despite the respondent’s lack of intention that the car should move and his inability, from outside the car, to operate the brake, clutch or steering wheel. Intention is relevant but not decisive. A person does not necessarily cease to be the driver merely because he has lost effective control.
5. The court treated the unexplained conclusion in Leach and another v DPP [1993] RTR 161—that switching on the engine from the driving seat could not amount to driving—as not forming part of that decision and as irrelevant to the present issue. By contrast, the reasoning in Blayney v Knight [1975] RTR 279 showed that lack of intention may be important, but the present case differed because the respondent intentionally operated the ignition.
6. The jury must decide whether they are sure that, on the particular facts, switching on the ignition and starting the engine amounted to driving. The appeal was allowed and the proceedings were ordered to resume before the Crown Court.

• Crown Court: On a submission of no case to answer, the judge ruled that there was insufficient evidence that the respondent was driving on either count.
• Court of Appeal (Criminal Division): The court granted leave to appeal, allowed the prosecution’s appeal under section 58 of the Criminal Justice Act 2003, and ordered that the proceedings resume before the Crown Court.