In Holder, R. v  EWCA CRIM 5, January 13, 2023, the accused was convicted of the offence of dangerous driving causing death, contrary to section 1 of the Road Traffic Act 1988. That section states:
A person who causes the death of another person by driving a mechanically propelled vehicle dangerously on a road or other public place is guilty of an offence.
Dangerous driving is defined in section 2A of the Act as follows:
(1) For the purposes of sections 1, 1A and 2 above a person is to be regarded as driving dangerously if (and, subject to subsection (2) below, only if)—
(a) the way he drives falls far below what would be expected of a competent and careful driver, and
(b) it would be obvious to a competent and careful driver that driving in that way would be dangerous.
(2) A person is also to be regarded as driving dangerously for the purposes of sections 1, 1A and 2 above if it would be obvious to a competent and careful driver that driving the vehicle in its current state would be dangerous.
(3) In subsections (1) and (2) above “dangerous” refers to danger either of injury to any person or of serious damage to property; and in determining for the purposes of those subsections what would be expected of, or obvious to, a competent and careful driver in a particular case, regard shall be had not only to the circumstances of which he could be expected to be aware but also to any circumstances shown to have been within the knowledge of the accused.
(4)In determining for the purposes of subsection (2) above the state of a vehicle, regard may be had to anything attached to or carried on or in it and to the manner in which it is attached or carried.
The evidence led at the trial established that the accused was driving a motor scooter on a street in London with a passenger (Mr. Bradlee) seated behind him. Neither he nor the passenger were wearing helmets. The Court of Appeal indicated that “[t]he appellant looked over his left shoulder and backwards for a period, while either he or Bradlee addressed some remarks to two young men who were walking past on the pavement. This, together with the speed at which the motor scooter was travelling, caused the appellant to lose control of the motor scooter which veered to the left and struck the kerb. The motor scooter overturned and both riders were propelled off the back” (at paragraph 4). The passenger died from the injuries caused by collision.
The accused appealed from conviction. He argued, in part, that the trial judge erred in allowing the Crown to lead evidence that “Bradlee was not wearing a helmet”. The accused submitted that “the fact that Bradlee was not wearing a helmet was an aggravating feature of the offence for the purpose of sentence, but was irrelevant to the standard of driving. In addition, it was submitted that legislative exemption from the requirement to wear protective helmets for those who followed the Sikh religion, meant the absence of protective helmets could not be relevant to the standard of driving” (at paragraph 9).
The Appeal was dismissed. The Court of Appeal concluded that “the jury were entitled to conclude that a careful and competent driver who knew he had a young pillion passenger who was not wearing the required helmet to protect him, would not have driven in the manner he did” (at paragraphs 18 to 23):
In this case, the appellant was driving at a high speed (about twice the speed limit) in a relatively narrow residential road, looking backwards instead of in the direction of travel; and neither he nor his young pillion passenger were wearing a helmet – something that in combination with his speed and, the fact that he was not looking ahead, greatly increased the risk of serious injury if an accident were to occur. In our judgment, on these facts, the judge was right to conclude it would be open to the jury to decide that the appellant’s driving fell far below the standard to be expected of a competent and careful driver, and that it would be obvious to a competent and careful driver that driving in the way he did would create a risk of injury to the appellant and his passenger (or, to put it another way, this was a danger which would be “seen or realised at a glance”: see R v Strong  Crim LR and R v Few  EWCA Crim 728 at para 8).
The test as to whether driving is dangerous is a purely objective one, and a finding of dangerous driving must be based on the manner in which a defendant drives (see Webster at para 17). However, the standard to be expected of a careful and competent driver is inextricably linked to and dependent upon the circumstances in which the driving takes place. Travelling at a certain speed may be appropriate and safe in one set of circumstances, having regard to the prevailing weather or road conditions for example, but very dangerous in another. Equally, such circumstances can be relevant to determining “whether there was a danger of serious injury or damage” (see Webster also at para 17).
That Parliament intended such circumstances to be taken into account in determining both limbs of section 2A(1) can be seen from the wording of section 2A(3). This provides that: “in determining …what would be expected of, or obvious to, a competent and careful driver …in a particular case, regard shall be had not only to the circumstances of which he could be expected to be aware but also to any circumstances shown to have been within the knowledge of the accused.” (emphasis added) The emphasised words imply a broad approach and are apt to include evidence of the physical manoeuvres of the vehicle concerned, and the wider context of those manoeuvres. Such circumstances may be material (indeed highly material, in view of the words “particular regard” in section 2A(3)) to whether section 2A(1)(a) and/or section 2A(1) (b), has been satisfied.
One of the circumstances of which the appellant was aware, was that Bradlee, his young pillion passenger, was not wearing a helmet – the wearing of which is a basic but important safety measure imposed as we have said by the criminal law, and required under the Highway Code, to protect individuals riding motor scooters from head injuries in the event of an accident. It would not have been open to a jury to convict the appellant of dangerous driving on this ground alone; but such a scenario did not arise on the facts, nor did it form the basis of the judge’s decision to leave the case to the jury. Instead, this factor was, as the judge put it, properly to be considered as part and parcel of the ‘driving’ for the purposes of section 1 of the RTA 1988.
We pause to observe that the jury might have been surprised to be told that the fact that Bradlee was not wearing a helmet was irrelevant to the objective danger of what the appellant was doing. But analysing the matter as one must by reference to the statutory requirements alone, in our judgment it was open to the jury to have regard to the fact that Bradlee was not wearing a helmet in two respects. First, in deciding whether and the extent to which his driving (speeding and looking backwards, instead of in the direction of travel) fell below what a competent and careful driver would be expected to do in those particular circumstances: see also R v Taylor  EWCA 213 where it was said that the Highway Code was a guide to the standard to be expected of a careful and competent driver. To put it another way, the jury were entitled to conclude that a careful and competent driver who knew he had a young pillion passenger who was not wearing the required helmet to protect him, would not have driven in the manner he did; and that his driving in this manner regardless, fell far below the requisite standard. Secondly, in deciding whether it would have been obvious to a competent and careful driver that driving in that way would be dangerous because of the (obvious) risk of injury to his passenger.
Our reasoning differs to an extent from that of the judge, but we agree with her conclusions. No complaints were made about the judge’s legal directions to the jury, which were impeccable. In the circumstances, this appeal was dismissed.