No: 2004/3532/A2 
Neutral Citation Number: [2004] EWCA Crim 3305
IN THE COURT OF APPEAL 
CRIMINAL DIVISION 
Royal Courts of Justice
Strand
London, WC2 

Thursday, 2 December 2004
 
B E F O R E:
 
LORD JUSTICE MAURICE KAY 
MR JUSTICE DAVIS 
 
THE RECORDER OF CARDIFF
(His Honour Judge Griffith Williams QC)
(Sitting as a Judge of the CACD)
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R E G I N A 

-v- 

RUSS BALLARD
 
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MR P CLARK appeared on behalf of the APPELLANT
MR A KENT appeared on behalf of the CROWN
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J U D G M E N T
1.	LORD JUSTICE MAURICE KAY:  The appellant was born on 13th July 1983.  On 29th May 2002 he was convicted at the Crown Court at Maidstone before Aikens J and a jury of an offence of manslaughter.  He received a sentence of 11 years' detention in a young offender institution and was disqualified from driving for 10 years.  He had stood trial on an indictment which charged him with murder, alternatively manslaughter.  
2.	The background to the case is a very troubling one.  The victim was 17 years of age at the time and was known to the appellant.  There was a previous history of bad relations between them.  On the night of 19th November 2001, the appellant had been drinking first at home and then in a public house before going on to a nightclub with some friends where he consumed more alcohol.  He was manifestly intoxicated and was ejected from that club because of his drunken behaviour.  He then acted in an aggressive, disorderly and abusive manner towards a doorman and towards a man who was celebrating his 21st birthday.  
3.	The victim had been in the same club with some friends but his group had not associated with the appellant's group.  However, the victim and another member of his group were involved in an incident which resulted in their being asked to leave the club.  They did so and waited outside for someone who had acted aggressively towards them inside.  
4.	At 1 o'clock the club closed and people began to disperse.  There was a fight between some girls which initially distracted attention from the appellant's movements.  What he did was to go and collect his car.  It was not immediately outside the club and in order to collect it he had to walk some distance.  Once inside the car he proceeded to drive it.  He drove the car on a number of circuits of the road outside the club.  His driving was erratic and dangerous.  He alternated between driving at high speeds and low speeds.  He repeatedly mounted the pavement, forcing people to flee.  He braked heavily, performed handbrake turns, wheel spins and other manoeuvres.  Some of the crowd tried to stop him and in order to do so threw some objects at the car.  However, on each circuit the appellant drove deliberately towards groups who were trying to stop him, causing them to have to take evasive action to get out of the way.  
5.	The car then disappeared for a short time.  The victim and three of his friends moved from the vicinity of the club to a central reservation in the middle of the road and moments later the appellant and his car re-appeared.  He drove it in such a way that it swerved and accelerated as it travelled along the road towards the group including the victim.  The car mounted the central reservation and struck the victim with such force that he was tossed into the air.  Having hit the victim the appellant tried to drive away from the scene but he was stopped in his tracks as a result of the car being badly damaged.  The victim sustained serious injuries as a result of the impact and he died a short while later.  
6.	The appellant was detained by people at the scene and after the arrival of the police he was arrested.  He was taken to hospital.  He had himself sustained injuries.  At the hospital he was breathalysed and found to be about three times over the legal limit for driving a car.  When he was interviewed he said he had no recollection of any of the events outside the club because he was so drunk.  
7.	It is plain from the verdicts of the jury that they acquitted the appellant of having had any specific intent seriously to injure the victim.  It is also plain from his acquittal on the first alternative of manslaughter by an unlawful act that having regard to the way in which that had been left to the jury they acquitted him even of having sought to put the particular victim in fear.  It follows that the previous ill-feeling between the appellant and the victim was not found to be a cause of the driving which led to the victim's death.  Of course what cannot be gainsaid is that by the prolonged pattern of extremely dangerous driving the appellant had put numerous people at grave risk and not just one selected individual.  It was the misfortune of the victim that it was he who paid the price for that total disregard for the safety of many people.  
8.	In sentencing the appellant, Aikens J made it clear that he did not consider this to be simply a case of causing death by dangerous driving under a different label; it was a case of manslaughter which he considered to be a more serious offence.  
9.	The appellant sought leave to appeal the sentence of 11 years.  The single judge, Astill J, refused him leave to appeal, that most experienced criminal trial judge taking the view that it was not even arguable that the sentence was manifestly excessive.  
10.	The case now comes before this court upon a reference by the Criminal Cases Review Commission, pursuant to the Criminal Appeal Act 1995.  We shall say something about that a little later.
11.	The documentation which preceded today's hearing, assembled by the Commission with the assistance of leading counsel who advised it, and further assembled by Mr Clark who has represented the appellant, contains references to numerous authorities on causing death by dangerous driving, causing death by careless driving when over the prescribed limit of alcohol and on gross negligence manslaughter.  This was, of course, a case of gross negligence manslaughter.  
12.	We regret to say that in our judgment the submissions on behalf of the appellant, the reference by the Criminal Cases Review Commission and the advice of leading counsel which informed it all seriously understate the gravity of this case.  We accept that the verdicts of the jury required the sentencing exercise to disavow any suspicion that there may have been specific intent directed towards the deceased.  If there had been the appellant would have been convicted of murder and would probably have had to spend at least twice as long in custody than the present sentence of 11 years will require, long though the present sentence is.  On the other hand, the conviction was not for causing death by dangerous driving or for causing death by careless driving having consumed alcohol so as to be above the prescribed limit.  It was a conviction for manslaughter by gross negligence, prosecuted as such so as to bring into play even the increased sentencing powers than now arise in relation to the statutory offences.  The trial judge was entirely correct to state that manslaughter by gross negligence is a more serious offence.  That has always been recognised by this court -- see for example the words of Lord Taylor CJ in Galt (1995) 16 Cr.App.R (S) 1013.
13.	We do not derive great assistance from the authorities which were referred to in the documents produced for this appeal.  Leaving aside the question of dangerous driving, and leaving further aside authorities in relation to that offence which came into being at a time when the maximum sentence was very much lower, the authorities originally drawn to our attention on manslaughter by gross negligence simply do not approach the gravity of the present case.  Although this is not a case of specific intent, it is a case of extremely aggressive driving over a prolonged period of time which put at risk and manifested a total disregard for the lives of a sizeable number of people.  For whatever reason the appellant, who was very drunk, became extremely aggressive before he left the nightclub.  That aggression characterised all his subsequent behaviour until the fatal incident.  He went and collected his car when he had no good reason to do so and when he was in no state to drive it.  The way in which he drove it after that, repeatedly putting groups of people at grave risk and corresponding fear, was nothing less than outrageous.  It was a far worse case of aggressive driving with a total disregard for the lives of more people than any of the authorities discloses.  
14.	Although not referred to in the documentation originally before the court, Mr Clark has helpfully drawn our attention to two other authorities today, being those of Ripley [1997] 1 Cr.App.R (S) 19 and Wright [2004] 1 Cr.App.R (S) Case No 4.  In the former a sentence of six years' imprisonment following a plea of guilty to manslaughter was upheld.  In the latter a sentence of eight years' imprisonment for manslaughter following a trial, including a trial upon a charge of murder, was upheld.  
15.	No two cases are the same.  What was immediately obvious to us about this case, as it must have been to the trial judge, is that it is not what is sometimes referred to as a tariff case.  Quite simply there is no previous authority which is concerned with such a prolonged course of dangerous driving, exposing so many people to risk as a result of outrageous manoeuvres all carried out under the severe influence of drink.  Mr Clark submits that the two authorities to which we have just referred illustrate a bracket which culminates below double figures.  We do not agree.  What they illustrate is appropriate sentences on the facts of the particular cases which in both cases were very much less serious than those of the present case.
16.	We bear well in mind the two mitigating features to which the judge referred, namely the appellant's age and his virtual good character.  Whilst the judge also acknowledged a degree of remorse, he considered that its impact on sentence was slight in view of the absence of the mitigation of a plea of guilty.  
17.	We have come to the conclusion that the sentence of 11 years is a severe one but it is appropriate for this offence and this offender and not manifestly excessive.  It follows that the appeal against sentence will be dismissed.
18.	We said a while ago that we would return to the question of the reference from the Criminal Cases Review Commission.  We are surprised that the Commission referred this case.  The statutory criteria, as set out in section 13 of the Act, are stringent and authoritative guidance has been given by Rose LJ in the cases of Graham and Robery about the appropriate approach.  A reference cannot be made by the Commission unless, amongst other things, in the case of an appeal against sentence there is a real possibility that the appeal will be upheld "because of an argument on a point of law or information not so raised" -- that is to say not raised in the proceedings which led to the conviction and sentence or the application for leave to appeal that was refused.  We are at a total loss to identify any such point of law or information in this case.  All that we have seen is reference to numerous authorities in the Commission's documents, none of which, in our judgment, can be considered to be "information" in the sense used in the act and explained by Rose LJ.  Clearly the Commission and leading counsel then advising it had the requirements of section 13 in mind; they are referred to in the documents.  We are sorry to say that we consider it to have been a misjudgment to refer this case in the circumstances which gave rise to it.