Taking a vehicle and killing someone with it is no longer enough to be convicted of aggravated vehicle taking
On 3 February, the Supreme Court gave its much-awaited judgment in the case of R v Taylor, about the role of fault in the offence of aggravated vehicle taking.
Facts
On 23 June 2012 Mr Taylor took a friend’s truck (a live issue at any trial would be whether this would have been with the owner’s permission) and drove it. During his journey, he collided with a scooter ridden by Steven Davidson-Hackett, who was unfortunately killed.
Despite Mr Taylor being over the drink-drive limit (and also uninsured), the Crown Prosecution Service (CPS) concluded “that there was no evidence on which a jury could be sure that the manner of his driving was at fault or open to criticism”.
Mr Taylor was charged with four offences, including causing the death of Mr Davidson-Hackett whilst driving without insurance (s3ZB Road Traffic Act 1988), to which he pleaded guilty, and Aggravated Vehicle Taking (s12A Theft Act 1968) which was adjourned for trial.
Law
The relevant parts of the legislation are as follows :
s3ZB Road Traffic Act 1988
A person is guilty of an offence under this section if he causes the death of another person by driving a motor vehicle on a road and, at the time when he is driving, the circumstances are such that he is committing an offence under—
(a) section 87(1) of this Act (driving otherwise than in accordance with a licence),
(b) section 103(1)(b) of this Act (driving while disqualified), or
(c) section 143 of this Act (using motor vehicle while uninsured or unsecured against third party risks)
s12A Theft Act 1988
(1) Subject to subsection (3) below, a person is guilty of aggravated taking of a vehicle if—
(a) he commits an offence under section 12(1) above (in this section referred to as a “basic offence”) in relation to a mechanically propelled vehicle; and
(b) it is proved that, at any time after the vehicle was unlawfully taken (whether by him or another) and before it was recovered, the vehicle was driven, or injury or damage was caused, in one or more of the circumstances set out in paragraphs (a) to (d) of subsection (2) below.
(2) The circumstances referred to in subsection (1)(b) above are—
(b) that, owing to the driving of the vehicle, an accident occurred by which injury was caused to any person;
Issue
Two years ago, the Supreme Court in R v Hughes considered that s3ZB Road Traffic Act 1988 required some element of fault on the part of the driver. By the time Mr Taylor’s case appeared in the Crown Court for trial, the Supreme Court had given their judgment in Hughes. As a result of that, he was allowed to vacate his plea to the s3ZB offence.
The issue at Mr Taylor’s trial was going to be whether or not Mr Taylor had the owner’s consent. But the decision in Hughes raised another issue.
The s12A offence is committed if someone takes a vehicle without the owner’s consent, and “owing to the driving of the vehicle, an accident occurred by which injury was caused to any person”. Does this require some form of bad driving on the part of the defendant?
The recorder of Exeter held that it did, therefore that was the end of the case. The prosecution appealed this to the Court of Appeal, who allowed the appeal based on the 1997 case of Marsh — which was binding on them — but gave leave to the Supreme Court.
Judgment
The Supreme Court held that they were bound by Hughes, and that that provided the answer to the appeal — the words used were the same, and implied a “direct causal connection between the driving and the” accident.
But in any event, even if it could be distinguished, Lord Sumption — speaking on behalf of a unanimous Court — held that they would have followed Hughes, as it was correct. To hold otherwise is to “treat the section as imposing strict liability for the aggravating factors which differentiate this offence from the basis offence”.
Although there is not an absolute rule that mens rea is required, the court said:
[I]n general a criminal offence will require proof of mens rea unless strict liability is either required by the clear language of the act or necessary for the achievement of its purpose.
In this case, the offence is a serious one, with a maximum sentence of 14 years where somebody dies. In the end, “the driving cannot be said to have caused the accident if it merely explained how the vehicle came to be in the place where the accident occurred” — fault was required.
Comment
Any judgment from the Supreme Court is important, but two quick points on this one.
The prosecution asked the Supreme Court to consider themselves not bound by Hughes, and to overrule it. This is something that is unusual, but not impossible (see Anderton v Ryan, which lasted a year and a fortnight before it was overruled by R v Shivpuri). It was based on the fact that the CPS made a concession that “the absence of fault could not be irrelevant in all circumstances”.
Here, the court was right to dismiss that argument on grounds of precedent — full argument was heard on the issue in Hughes, and a “mere difference of opinion can rarely justify departing from an earlier decision of this court”. The example in Shivpuri was because of the perceived difficulties that the previous judgment had caused — more specifically it shredded the law of attempts.
In relation to the merits of the case, whilst the Supreme Court will probably not care what I think about it, it is clearly right. The ‘golden thread’ throughout the English criminal law (apologies to the Welsh) is something that is well known, but the principle of mens rea, whilst perhaps less ‘sexy’ than the golden thread, is almost as important. Sweet v Parsley builds on the more famous case of Woolmington v DPP (not uncritically) and it is good to see this principle upheld again.
Dan Bunting is a criminal barrister at 2 Dr Johnson’s Buildings.