Neutral Citation No. [2002] EWCA Crim 2170 

Case No: 2001/4341/W1 & 2001/4382/W1
 
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION) 
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 9th October 2002

Before :

LORD JUSTICE KENNEDY
MR JUSTICE WRIGHT
and 
MR JUSTICE FORBES
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Between :

	R		
	-v-
		
	Martin Parry & Christopher Smith		

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James Pickup QC for the appellant Martin Parry
Christopher Daw for the appellant Christopher Smith
Nicholas Clarke for the Crown

Hearing date: 27th September 2002
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JUDGMENT : APPROVED BY THE COURT FOR HANDING DOWN (SUBJECT TO EDITORIAL CORRECTIONS)

REASONS FOR JUDGMENT

Lord Justice Kennedy : 
1.	On 9th July 2001 in the Crown Court at Manchester each of these appellants was convicted of two counts of causing death by dangerous driving.  Parry was sentenced to 7 years imprisonment on each count concurrent.  He was also ordered to be disqualified from driving a motor vehicle for 10 years and required to take an extended driving test.  Smith was sentenced to 3½ years imprisonment, disqualified for 6 years, and he too was required to take an extended driving test.  Leave was granted by the single judge for Parry to appeal against conviction, and for both appellants to appeal against sentence.
2.	It was and is accepted that Parry was in a Renault motor car at about 11.30 p.m. on Sunday 20th February 2000 in a street in Ashton under Lyne when that car, which was apparently racing with a Fiat Punto, went out of control, left the carriageway, crashed into a lamp post and then into a shop before spinning on to reach the position in which it finally came to rest and which can be seen in the photographs which were before the jury and are before this court.  A pedestrian Vincent Massey was killed.  His girlfriend Jacqueline Cheryl Briggs suffered serious injuries, and Arran Smith who was in the Renault car with Parry was ejected and suffered injuries from which he died.  The prosecution contended, and the jury accepted, that Parry was the driver of the Renault car.  His defence at trial was that it was driven by Arran Smith.  Christopher Smith was driving the Fiat Punto.  He denied being involved in a race, but he too was convicted of causing the death of Vincent Massey and Arran Smith by dangerous driving.
3.	In this appeal it is contended that, despite the verdict of the jury, the conviction should be regarded as unsafe because -
(1) There is a lurking doubt as to who was the driver of the Renault car, and -
(2) The judge was in error in permitting the jury to view the Renault which was no longer in the state in which it had been immediately after the accident.
4.	Because of the restricted nature of the issues to be considered by this court it is unnecessary to dwell on the evidence called in the Crown Court to establish that the two cars were racing, and that the driving was dangerous.  It is sufficient to note that both cars, having visited the same petrol station, left it, lined up alongside each other at traffic lights, and when the traffic lights changed in their favour raced for a distance of about 900 metres until at a relatively high speed, which was estimated but not precisely ascertained, the Renault spun out of control and left the road.
5.	The prosecution case as to the identity of the driver rested on evidence from the following sources - 
(1) The ownership of the car.  It was owned by Parry who shared its use with his mother.
(2) Six witnesses claimed to have seen Parry leave the Renault by the driver’s door.
(3) Parry initially admitted to the Police, and to others, that he was the driver.
On the other hand -
(1) At the petrol station it was Arran Smith who got into the driver’s seat before the Renault moved off.  That was recorded on CCTV, and thereafter there was very little opportunity for the driver and his passenger to change places.
(2) After initially admitting that he was the driver Parry changed his story, and said that Arran Smith was the driver.
(3) An expert, Mr Ashton, who examined the car in February 2001 on behalf of the defence, made findings which he suggested could be taken to indicate that when the impact occurred the passenger seat belt was being worn, and that Arran Smith, unrestrained by any safety belt, was projected from the driver’s seat out of the rear near side window of the car which, it was agreed, was his point of exit.  It was also clear on the evidence that Arran Smith did not normally wear a seat belt.
We now turn to look at those six sources of evidence in a little more detail.
Ownership/Eye Witnesses.
6.	We need not dwell on the ownership of the car.  The point speaks for itself.  As the prosecution argued, a young man may let a friend drive his car, but is very likely to reclaim the controls if there is to be a race.
7.	Four of the six witnesses to whom we have already referred were Mr and Mrs Whitfield and Mr and Mrs Read, who were all in the same car, and travelling in the opposite direction to the Renault near to the point of impact.  Mrs Whitfield was driving, and Mrs Read was in the front passenger seat.  They said that they saw someone in the driver’s seat of the Renault as it was spinning and Mr Read said at trial that he too saw someone struggling with the steering wheel, but he had not said that previously in his statement, and he accepted in cross-examination that he may have borrowed his recollection from his wife.  Both Whitfields and both Reads claimed to have seen someone leave the Renault by the driver’s door, which was the door nearest to them, in haste very soon after the impact, and as Arran Smith had been ejected the only person who could have emerged from the Renault was Parry.  Mr Pickup QC for Parry was able to point out at the trial that the Whitfields and the Reads were in the same car and were friends, and were able to discuss their evidence before they made statements.  Before she made her statement Mrs Whitfield knew that Parry had admitted being the driver, and Mr Read before he made his statement knew that Parry was in a police car.  Those matters were again emphasised in argument before us, and Mr Pickup also drew attention to the fact that the Whitfields and the Reads did not apparently see the Renault collide with the lamp post or the shop so, he submitted, their observations may not be entirely complete and reliable.  However it is important for us not to forget that the jury was able to see those four witnesses and to assess them.  We do not have that advantage, but nothing that we have heard even starts to explain why the Whitfields and the Reads should be other than reliable as to what Mrs Whitfield and Mrs Read say that they saw when the Renault was in motion, and as to the door from which all four witnesses say that Parry emerged when the car came to rest.
8.	There were two other witnesses who live nearby, Mr and Mrs Hughes.  They looked out from a bedroom window immediately above where the Renault came to rest.  Mrs Hughes was sure that she saw a young man whom she thought was the driver getting out of the driver’s door, and she heard him admit that he was the driver.  Her husband was also sure that the person he saw getting out of the car was getting out of the driver’s side.  Mr and Mrs Hughes did not make statements until 6th August 200 because it was not until July 2000 that Parry put in issue the identity of the driver.  Here again the jury were able to assess for themselves the reliability of Mr and Mrs Hughes.
Early admissions/later retractions.
9.	It is common ground that almost immediately Parry got out of the car he was saying “what have I done, what have I done?”  He was of course very distressed but the choice of words does have some significance.  An acquaintance of his, Michelle Wellesby, came out of the nearby public house and asked him what had gone on.  He told her “I don’t know, I don’t know, someone was trying to undercut me”.  She was sure that he said me, and not us.  PC Hinchliffe arrived and asked Parry if he was the driver.  He said he was.  He was then required to give a specimen of breath, which was positive, so he was arrested, whereupon he said, “A car pulled out in front of me”.  Calculations showed that his blood alcohol level at the time of the accident was about 1½ times the legal limit.  Parry was formally interviewed by the police in April 2000 and he still maintained that he was the driver.  He had said that to people he knew well, including apparently his parents, but on odd occasions he had said that Arran was the driver.  He had said so to his close friend Arran’s brother Stephen on the day after the accident, to Sarah Wilson a few days after he was discharged from hospital, and to Sandra Haynes on the day of Arran’s funeral.  He told her he didn’t want Arran to go with a bad name.  But even to his friends he was not consistent, and as we have said it was not until he was further interviewed in July 2000, after it was known what could be seen on the CCTV, that he changed his account to the police.  It seems that at about that time he told Sarah Wilson that the video showed that that he and Arran had got out of the car and changed places.  In fact nothing of that kind can be seen on the video.  In evidence Parry claimed to be sure that Arran was driving, and said that after Arran was ejected he left the car by the passenger side.  He sought to explain his earlier assertions by saying that initially he was concerned about the insurance position, and subsequently he was seeking to protect Arran’s good name.  
Time to change over.
10.	Undoubtedly if Parry was driving when the impact occurred he and Arran must have changed places at some time between the time that Arran got back into the driver’s seat on the petrol station forecourt and the time that the two cars set off from the traffic lights.  There was no opportunity to change places thereafter.  
11.	Mr Pickup took us carefully through the photographs which illustrate what the CCTV cameras were able to record.  They recorded Arran Smith getting into the driver’s seat on the garage forecourt.  That is clear and not disputed.  There was clearly a front seat passenger in the Renault at that stage, and it is common ground that initially that person was Parry.  At 23:31:33 the Renault began to move.  At about 23:31:36 the Fiat Punto driven by Christopher Smith, which had come onto the garage forecourt, seems to have been driven across the path of the Renault.  At 23:31:39 the brake lights of the Renault can be seen to be illuminated. They are not illuminated at 23:31:42 but they are illuminated one sixth of a second later, and by 23:31:47 the Renault has gone out of range of the cameras and left the forecourt. 
12.	The photographs do not show what was happening inside the Renault, certainly not after it began to move, but Mr Pickup submits that in reality it would not have been possible for the driver and his front seat passenger to change places.  They were not seen to do so externally, and to do so internally would take at least 5 seconds - the time taken by two police officers who carried out that manoeuvre in a test exercise.  There was, Mr Pickup submits, no five second period when the Renault was not either in motion or braking and therefore, he submits, on the forecourt no change of drivers can have taken place.
13.	When the Renault left the garage forecourt and turned west it became visible to Mr Blake, who was driving east in a vehicle which was stationary at traffic lights about 200 metres away.  He saw the Punto waiting in the near side lane at the set of traffic lights near to the garage, and he says that he saw the Renault come out of the forecourt and drive normally to a position in the off side lane alongside the Punto.  There was the revving of engines for a matter of seconds after which the lights changed to green and both the Renault and the Punto moved off.  Mr Pickup relies on the evidence of Mr Blake in order to submit that there was no opportunity for a change of drivers in the Renault after it left the forecourt.  Mr Clarke, for the Crown, does not accept that proposition.  He submits that the change of drivers could have taken place on the garage forecourt with the vehicle moving slowly or the foot brake being depressed, whilst the exchange was taking place.  Alternatively the change over may have taken place at sometime thereafter up to the time that the cars moved away from the traffic lights.  Mr Blake was some distance away, it was night, and Mr Blake would be unlikely to see any switch take place.  In so far as reliance is placed upon the fact that, as Mr Blake recalls the Renault moved out of the garage up to the traffic lights, paused for quite a short time, and then moved off again his recollection of timings could hardly exclude a five-second switch.
Expert evidence.
14.	Immediately after the accident the damaged Renault was examined by police officers looking for any feature which might have caused or contributed to what had occurred.  PC Kitching of the Accident Investigation Unit observed that the back support for the passenger seat had given way, so that it was raked backwards.  Subsequent enquiries revealed, and it is now accepted, that the seat had been damaged earlier in the evening when it was occupied by a heavy friend of Parry, but because of the damage it is relatively easy to envisage how if Arran Smith was sitting unbelted in that seat when the car hit the lamp post and began to spin he could have been forced backwards so as to be ejected from the rear near side window, the back of the seat acting as a ramp. 
15.	Nothing else of significance for present purposes was noted immediately after the accident, but about a year later, in February 2001, Mr Ashton examined the Renault, which had by then sustained further damage.  He made three observations about which we were addressed.  They related to the back support for the driver’s seat, the seat belt and buckle for the front passenger seat, and the roof lining.  
16.	As to the driver’s seat back, Mr Ashton found that it could be pushed back with a finger, but on the night of the accident PC Kitching had sat in that seat to take details, and had not noticed any defect, so far as he could recall.  Under cross-examination Mr Ashton said that if someone sat in the driver’s seat it would have gone back into the raked position.  On 22nd February 2000, two days after the accident, PC Drabble, a vehicle examiner, checked the Renault and found no defect which could have contributed to the accident.   The front passenger seat was collapsed rearwards, but the driver’s seat was upright and stayed in position when shaken, so PC Drabble made no note about it.
17.	PC Taylor, of the Traffic Department, who was the officer in charge of the case, first saw the Renault some days after the accident, and described the driver’s seat back as being not upright but not as low as the passenger seat.  It was in a slightly reclining position.  That was, according to PC Taylor, still the position of the seat when he saw the car on two further occasions in July 2000 and in August 2000.
18.	In July 2000, when the issue arose as to who was driving, photographs were taken by PC Gallagher, and those photographs do suggest that the driver’s seat was at that time raked back.  
19.	When the Renault was returned to the police after being examined by Mr Ashton in February 2001 PC Kitching had another look at it.  When he first tried the driver’s seat it would move.  It appeared to be moving on top of the ratchet, so the officer operated the lever which enabled the seat to settle into the ratchet system, and then it would not move without the operation of the lever.  Mr Ashton accepted that when he looked at the seat back when the vehicle was brought to court there was no insecurity.  It is difficult to escape the conclusion that the insecurity observed by Mr Ashton in February 2001 was due to a disengagement of the seat from the ratchet mechanism, which occurred during handling at some time after the accident and prior to that examination.
20.	As Mr Pickup accepts, if the driver’s seat was secure it is unlikely that Arran Smith could have been the driver, whether or not he was wearing a seat belt, because, as Mr Clarke pointed out, when the car hit the lamp post the driver would have been projected forward, and then as it spun anti-clockwise he would have been wedged against his door which must have held firm until the car came to rest (even though it could not be closed thereafter) otherwise any unbelted driver would have been flung out.  Indeed it was PC Kitching’s view that whether the driver’s seat back was broken or not the physical forces were such that only the front seat passenger could have been flung out of the rear near side window, the unchallenged point of exit of Arran Smith.  Mr Ashton considered that an unbelted driver could have been ejected through that window if the back of the driver’s seat was damaged.
21.	Turning now to Mr Ashton’s observation in relation to the passenger seat belt, he saw slight marks on the webbing and on the tongue of the buckle, which, in his opinion, suggested that the belt was being worn at the time of the accident.  Of course Parry was wearing that belt when the car was on the garage forecourt, and the evidence indicated that it was his practice to wear a seat belt, but that was not the practice of Arran Smith.  In the light of Mr Ashton’s observation, which he was able to demonstrate to the jury, PC Kitching re-examined the seat belts.  He was inclined to say that the driver’s seat belt was not being worn, and that the marks seen by Mr Ashton on the passenger seat belt were so faint as to render it unlikely that it was being worn at the time of the accident.  Had it been worn the damage would have been very much more obvious.  In cross-examination Mr Ashton accepted that the marks he saw could have been caused by an 18 stone passenger in emergency braking, but they had been there a relatively short time because in three or four journeys the material would have been removed from the buckle.  
22.	The marks on the roof lining we can deal with quickly because Mr Pickup accepts that although probably made by Arran Smith as he was being flung back prior to his ejection they do not really assist as to the point from which he started.
Conclusion as to Conviction.
23.	We have dealt with the expert evidence at some length in deference to the careful submissions addressed to us by Mr Pickup.  His second ground of appeal, it will be recalled, was that the jury should not have been allowed to view the damaged Renault because it was no longer in its immediate post accident condition, and there was conflicting evidence as to the condition of the driver’s seat back.  In our judgment that ground of appeal has no merit whatsoever.  The jury were well aware of the subsequent damage, and no one in their presence handled the driver’s seat in any way.
24.	As to the main ground of appeal we are satisfied as to the safety of the conviction.  We accept that without the evidence of those who saw Parry leave the car, and without his admissions at the scene and thereafter, it would be difficult, solely on the basis of the expert evidence, to be satisfied that he was the driver of the car when the accident occurred.  But the evidence of those who saw Parry leave the car was, on the face of it, compelling.  It was supported by his own admissions, by his ownership of the vehicle, and by the balance of the expert evidence, so in our judgment the jury was entitled to find that whenever the change of drivers took place it had been accomplished before the Renault set off from the traffic lights, and Mr Pickup, despite his best endeavours, was wholly unable to persuade us, any more than he could persuade the jury, that such a change could not have occurred.  In our opinion there is no lurking doubt.  That is why at the conclusion of the hearing on the 27th September 2002 the appeal against conviction was dismissed.
Sentence.
25.	Mr Pickup accepted that this was bad case, aggravated by alcohol, racing, the death of more than one person, and by the serious injuries sustained by Ms. Briggs.  He further accepted that the appellant can claim no credit for contesting the case as he did.  Never the less, having invited our attention to the decision of this court in Howell [1999] 1 Cr App R (S) 449, and to the sentence passed on the co-accused, he submitted that both a period of imprisonment and the period of disqualification were too long.  When passing sentence the trial judge said to Parry -
“You were the person who chose in the heat of the moment when you saw the Fiat Punto to challenge it to a race, and unfortunately your co-defendant Smith was foolish enough to take on the challenge.”
Mr Pickup submits that the judge was mistaken because the challenge came from Christopher Smith, but Mr Daw for Christopher Smith, submits, and we accept, that the judge having heard the evidence was entitled to reach the conclusion that he did.  In the case of Christopher Smith the appeal against sentence relates only to the six-year period of disqualification which, Mr Daw submits, is excessive.  Half that length would have sufficed in the case of a young man who earned his living by driving, and who had not even an endorsement upon his licence. 
26.	We were shown victim impact statements obtained recently from the father of Arran Smith and from Ms. Briggs and we take note of them, but what we have to decide, in the framework of the statutory provisions, and with the assistance of other decisions of this court, is whether the sentences of imprisonment imposed and the periods of disqualification ordered were excessive or wrong in principle.  In our judgment they were not, even for young men of good character, which is why on 27th September 2002 the appeals against sentence were also dismissed.