Neutral Citation Number: [2002] EWCA Crim 2344 
No: 2002/3542/R2 
IN THE COURT OF APPEAL 
CRIMINAL DIVISION 
Royal Courts of Justice
Strand
London, WC2 

Thursday, 3 October 2002
 
B E F O R E:

LORD JUSTICE JUDGE 

MRS JUSTICE RAFFERTY 

THE RECORDER OF LIVERPOOL
(His Honour Judge David Clarke QC) 
(Sitting as a Judge of the CACD)
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REFERENCE BY THE ATTORNEY GENERAL UNDER 
S.36 CRIMINAL JUSTICE ACT 1988 

ATTORNEY‑GENERAL's REFERENCE NO 76 OF 2002    
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Computer Aided Transcript of the Stenograph Notes of 
Smith Bernal Wordwave Limited
190 Fleet Street  London EC4A 2AG
Tel No: 020 7404 1400 Fax No: 020 7831 8838
(Official Shorthand Writers to the Court)
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MR R HORWELL appeared on behalf of the ATTORNEY GENERAL
MR R WOOD appeared on behalf of the OFFENDER
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J U D G M E N T 
1.	LORD JUSTICE JUDGE: :  This is a Reference by Her Majesty's Attorney General under section 36 of the Criminal Justice Act 1988.  The offender is James Hodges, a young man born in February 1983.  He was indicted on one count of causing death by dangerous driving.  At a plea and directions hearing at Norwich Crown Court he pleaded not guilty, but when the case was listed for trial he changed his plea to guilty.  Sentence was adjourned for a pre‑sentence report.  On 24th May at the same court before His Honour Judge Downes he was sentenced to a community punishment order of 180 hours, disqualified from driving for five years, fined £2,500, and ordered to pay prosecution costs of £1,291.  We have granted leave.  
2.	In essence this was a case in which the offender drove his car across a junction without stopping and collided with another vehicle which was on the main road and had the right of way.  The passenger in that other vehicle died at the scene.  
3.	The facts need much more amplification.  The offender is a serving member of the Royal Air Force.  He joined the Air Force from school, he is now a senior aircraftsman employed as an avionics technician.  
4.	During the evening of 3rd July 2001 he drove from the air base at Coltishall intending to travel to Norwich.  He had a passenger, a fellow technician, in his car.  It was at about 9 o'clock, and we take note of the time and the date, when he was driving along a minor road approaching the B1354 Rectory Road at Horsetead.  This is effectively a crossroads.  The junction is surrounded by open agricultural land.  According to the Reference the driver's view of the main road is obstructed by undulations in the land and the grass.  We have seen photographs taken two days after the accident and they give a clear impression of the road visibility.  Road conditions at the time of the accident were fine, the road surface was dry, but the photographs that we have seen look as though they were taken in the full brightness of day rather than at about 9 o'clock in the evening.  The road surface is marked by a warning triangle and white lines, a "Give Way" sign is positioned just before the junction.  In any event the offender knew the road.  
5.	On the main road, approaching the junction, was a Daimler car being driven by Mr Emeney.  His wife was the front seat passenger.  They had been married for very many years and were returning home after visiting their daughter and they had had an exciting day full of promise for their future.  The Daimler obviously had the right of way.  In passing we should emphasise that no one has for one moment suggested that Mr Emeney was doing other than driving perfectly normally and perfectly safely along the road.  As he drove his car towards this junction, the offender, believing that the main road was clear, drove, and indeed we believe accelerated, across the junction without stopping. There was a collision between the front of the offender's car and the front passenger door of the Daimler.  The judge concluded that at the moment of impact the offender's car was travelling at about 25 miles per hour.  We need not say more than that Mrs Emeney was fatally injured and Mr Emeney himself suffered extensive bruising and injuries.  The emergency services were called.  The offender and his passenger had to be assisted out of the Peugeot and they were taken to hospital.  They suffered no significant injuries.
6.	Immediately after he had been to hospital the offender was seen by the police and they recorded this verbal explanation: 
"I was driving along, came up to the junction where I had to give way.  I looked right and Stuart looked left, the road was clear so I pulled out.  All of a sudden the other car was there and I went into it."
7.	He was formally interviewed on 14th August and he gave a more detailed explanation which comes to the same thing, save that he explained why he happened to be on the road.  He had left Coltishall at about 9 o'clock in the evening.  He decided to take the back roads to Norwich, which was his destination.  Those roads meant a slightly shorter journey and probably rather quicker journey.  So, as we indicated earlier in the judgment, he plainly knew these roads.  He said that he was not driving particularly quickly, that he slowed down before the junction to a speed of about 10 to 15 miles per hour, looked left and right, saw no vehicles on the main road and then accelerated to a speed of about 25 mph, believing the main road to be clear and intending to drive straight across the crossroads.  He said that the tarmac to his right on the main road had been obscured by grass.  Naturally he was asked why he had failed to see the Daimler.  He replied that it must have been obscured by grass and then said about the Daimler: "It appeared out of nowhere.  I did not see it."  As far as we can tell there was no reason why he should not have seen the Daimler if he had slowed down sufficiently and looked properly, or if he had looked earlier, looked again.  
8.	The way in which counsel for the Attorney General puts the Reference is that the offender did not give himself, or cannot have had, sufficient opportunity to ensure that the main road was clear.  He should not have driven across a road with a give way sign.  He should have looked properly.  If he had done so, he would have noticed the Daimler, and therefore he would not have accelerated across the junction.  It was, said counsel, a single error, but it was not a momentary piece of inattention.  We add that it was not an error, however described, brought about by the consumption of drink or drugs, nor was the offender racing, nor indeed was there any evidence to suggest that he had been driving inappropriately immediately before he reached the crossroads.  
9.	There were a number of significant mitigating features and these too are drawn to our attention by the counsel on behalf of the Attorney General.  This offender is a young man of previous good character, in fact a decent young man of exemplary character, who showed genuine remorse, not merely at the possible effect on him of the prosecution, but at the consequences of his actions and he had pleaded guilty.  
10.	The judge was provided with a number of references on the offender.  We will just quote very briefly from the pre‑sentence report:
"Mr Hodges is convinced of the seriousness of his actions on the day of the offence and deeply regrets his failure to take appropriate action when approaching the road junction.  While there is no doubt that a custodial sentence will serve as a punishment and offer the public some protection by removing him from the community, I do not believe it would punish him more than that of his own conscience". 
11.	The judge was faced with a singularly difficult sentencing decision.  He analysed the incident, reflected on the catastrophic consequences of this driving and said that almost anything he could do to the offender could never compensate Mr Emeney and his family for their loss.  Addressing the offender, he asked the question: "Would it help to destroy your life?" He examined the evidence from the Royal Air Force and the consequences to the appellant of a custodial sentence.  Having reflected on these matters he passed the sentence we have already indicated.  We understand that the offender has now completed half his community punishment order and paid the fine imposed on him.  He is still working in the Air Force.  
12.	Those are, in summary form, the facts which we have to consider.  There is, as we are all aware, public concern about death and injury on the roads and a public demand that the seriousness of causing death by dangerous driving should be acknowledged. But like all offences, death by dangerous driving varies in its seriousness.  There is always, of course, a catastrophic death, a disaster for someone, or more than one person. But the culpability of each driver is not identical, and we do not accept the proposition which seemed to be implicit in Mr Horwell's submission, that in virtually every case of dangerous driving where death results, certainly in a case like this one, a prison sentence must follow.  Obviously, usually, often, it will follow, but not in our judgment in every case, not always.  In the final analysis there are some cases and some defendants for whom a non‑custodial form of punishment would be appropriate.  
13.	We have considered the authorities relied on in the Reference by the Attorney General.  We have to say that we do not think that we have found any of them of particular value, save to the extent that they highlight the need for the court to examine cases of this kind with considerable care and a sensitivity to public anxiety about death occurring on the roads.  In particular we have looked at the cases of Vano, Pratt, Stokes and Everett, though in fact in our pre‑court reading we had also considered Moore and Buckingham as well of course as the now old authority of Boswell, the impact of which has been modified by statute and later authorities.  
14.	There are in this case, as in all such cases, competing considerations.  This decision has caused each member of the court great concern and anxiety.  First we have to recognise the loss suffered by Mr Emeney and his family; the premature death of his wife and the sudden circumstances in which it happened and inevitably, and we recognise it without saying a great deal about it, the appalling loneliness to which he now will be condemned.  It will blight the rest of his life.  So the consequences are catastrophic.  
15.	Next, we consider the offence ‑‑ the level of culpability of the dangerous driving itself.  This was a single mis judgment ‑‑ as counsel for the Attorney General put it "a single error".  It was a bad mis‑judgment but nevertheless a single one.  At the risk of repetition, the appellant knew perfectly well that the road in front of him was a main road and that traffic on that road had priority and that he should give way to it. If he had seen the Daimler or any other car he would undoubtedly have stopped.  He drove as he did because he thought he had checked sufficiently when, as we know, he had not.  Probably he checked too early and probably he should have checked again before deciding to accelerate.  But in any event he failed to see a car that was there and crossed the junction without ensuring that the road was clear.  His judgment was not impaired by drink or drugs or showing off.  Although he made an error, and a bad error, this case lacks many of the aggravating features of cases of this kind.  
16.	Finally, of course, we have to reflect on the offender.  He is, as we have already said, a decent young man.  We are impressed by the fact that he has shown genuine remorse for the offence, not for himself but for what he has done, and we have evidence of a sense of shame at the consequences of his mistake.  We believe that he is a young man who is unlikely ever to appear before a court again, whatever penalty may be imposed on him for this offence.   
17.	We have reflected on the way in which this case should have been approached below.  Our conclusion is this.  The sentence was a lenient sentence.  It was, using an old‑fashioned word, a merciful sentence. Having reflected on all the factors in the way in which the judge below reflected on the factors as they were presented to him, we have come to the conclusion that a sentence of this kind, rather than a sentence of imprisonment, fell within the proper exercise of the judge's sentencing responsibilities.  Accordingly we shall make no further order.