No: 200803969 D1 
Neutral Citation Number: [2008] EWCA Crim 2726
IN THE COURT OF APPEAL
CRIMINAL DIVISION 
Royal Courts of Justice
Strand
London, WC2A 2LL 

Friday, 3 October 2008
 
B e f o r e:

LADY JUSTICE HALLETT 

MR JUSTICE HEDLEY 
 
RECORDER OF CARDIFF
(Sitting as a Judge of the Court of Appeal Criminal Division 
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R E G I N A 

v 

ANTHONY BARNES
 
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Mr I Bridge appeared on behalf of the Appellant
Mr W Carter appeared on behalf of the Crown
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J U D G M E N T
1.	LADY JUSTICE HALLETT:  Anthony Barnes is a 34 year‑old man of previous good character.  On 17 June 2007 he was engaged with a friend, an off‑duty police officer called Mr Brad Wilson, in moving furniture and ladders between various properties in the Peterborough area.  They made a number of trips, during one of which they left behind ropes which they had used to secure their loads.  When it came to moving an old and heavy sofa from Hampton Vale, therefore, they had nothing with which to tie it down.  However, they did their best to manoeuvre it into the appellant's Mitsubishi Triton truck, the back of which had been removed and the sofa was wedged into the load area.   
2.	Both the appellant and Mr Wilson said that they thought that the load was secure, but at least one prosecution witness who followed the Mitsubishi disagreed.  A Miss Ferguson, who found herself driving behind the appellant, remarked to her passenger at the time that the sofa was likely to fall off.  She described the sofa banging in a way which should have made it obvious to the driver it was working loose. 
3.	The appellant's journey took them along the A1139, a dual carriageway with a speed limit of 70 miles per hour.  The road conditions were good, and the appellant's speed was estimated variously at between 50 and 60 miles per hour.  A short distance along the road the sofa suddenly flew out of the back of the truck, probably taken into the air by the wind.  It landed on the inside lane of the dual carriageway.  
4.	The appellant and Mr Wilson said they had been conscious of the fact that the sofa might come loose and had been watching it carefully. They had ensured that there was no distracting noise in the cab. When they realised the sofa was missing they stopped some 105 metres further on in the inside lane.  We have been provided with photographs of the scene by Mr Bridge, who appeared on behalf of the appellant.  The appellant seems to have parked as best he could with his nearside wheels off the carriageway.  He put on his hazard lights, and his passenger, Mr Wilson, got out to try to retrieve the sofa from the carriageway.  
5.	A number of vehicles came upon the sofa in the carriageway and tried to avoid it. They included a motorcyclist, a Mr Darren Wildman.  He successfully avoided the sofa, but having done so, he must have been distracted or turned to warn others behind him.  In so doing, he either failed to see the appellant's stationary vehicle at all or failed to see it in time.  A matter of seconds after the Mitsubishi had stopped, Mr Wildman drove into the back of it.  Tragically he died at the scene.  The appellant was charged with causing death by dangerous driving.  
6.	By the time the matter came on for trial, the issues between the parties had narrowed to two: (1) whether or not the vehicle was in a dangerous condition because of its load; and (2) whether or not the appellant’s driving was a cause of Mr Wildman's untimely death.  
7.	At the close of the prosecution case, Mr Bridge submitted that the case should be withdrawn from the jury.  He submitted that neither of the two elements had been established.  He submitted that there was insufficient evidence that it would have been obvious to a competent and careful driver that driving the vehicle when loaded as it was would be dangerous.  He reminded the judge that at the outset of the journey, there was nothing to suggest to the appellant or Mr Wilson that the load was dangerous, that they had done their best to load the sofa carefully and they had checked it.  Further Mr Bridge claimed that the Crown had failed to prove that the appellant's actions were more than a de minimis cause of death.  On his case there was clear evidence that the principal, if not the only, cause of this tragic accident was that Mr Wildman was not looking where he was going for a significant length of time whilst riding his motorcycle at a relatively high speed.  Mr Bridge invited the judge to note that a number of other vehicles had not only passed the sofa, but had also passed the appellant's car and had not collided with it.  
8.	The trial judge, HHJ Enright, disagreed with Mr Bridge's submissions.  He agreed with the submissions of Mr Carter, for the Crown, that there was sufficient evidence upon which a reasonable jury could properly convict. He found there was sufficient evidence that it would have been obvious to a competent and careful driver that driving a vehicle with the sofa untied and merely wedged in the back of the truck was dangerous and that it was properly open to the jury to find that the appellant's driving was at least a cause of Mr Wildman's death.  
9.	The jury at Peterborough Crown Court retired to consider their verdict at 12.30 or so on Friday 11 July 2008.  At quarter past 1 they sent a message asking for a dictionary.  Because the court was adjourned for the luncheon period, that question was never answered.  The court reconvened at 8 minutes past 2, when the judge and counsel were informed that the jury had reached a verdict.  The verdict was guilty, and six days later, HHJ Enright sentenced the appellant to two years' imprisonment.  He was also disqualified from driving and ordered to take an extended retest.  
10.	Mr Barnes appeals against conviction by leave of the single judge, who also referred Mr Barnes' application for leave to appeal against sentence to the full court.  Before considering the grounds of appeal in detail, we would wish to observe this: Mr Bridge argued that this was a complex case and one that required a great deal from the judge  by way of assistance.  We accept that this may have been a difficult and sensitive case for counsel to conduct, but we do not accept that it was anywhere near as complex factually as Mr Bridge suggested.  To our mind, as tragic a case as this was, the issues were straightforward.  The only significant factual dispute was whether or not there were any obvious warning signs that the sofa was unstable, as the appellant drove along the road, which would have alerted a competent and careful driver to the danger.  We shall now turn to each of the grounds of appeal in turn.  
11.	The first ground is that HHJ Enright erred in refusing the submission of no case to answer, and in particular that he was wrong to find that there was evidence upon which a jury could conclude that the appellant's dangerous driving caused Mr Wildman's death.  Mr Bridge relied principally on the decision of this court in Skelton [1995] Crim LR 635, of which we have a transcript of the judgment delivered on 25 November 1994 (94/2914/W5).  Mr Bridge relied upon the following principle (see page 10 of the transcript per Sedley J):   
”…the dangerous driving must have played a part, not simply in creating the occasion of the fatal accident but in bringing it about."  
12.	Albeit the judge directed the jury in accordance with this principle, Mr Bridge argued the judge himself never properly addressed this question. Had he done so, he would have felt obliged to withdraw the case from the jury.  We disagree.  In our judgment, this was a case very properly left to the jury.  We accept Mr Bridge may have had at his disposal many very powerful arguments, but it was for the jury to decide whether or not they found the prosecution witnesses and, in particular, Miss Ferguson reliable and accurate.  If they did, they were entitled to conclude that the appellant was driving a truck with a heavy load at or over 50 miles per hour along a busy road where the speed limit was 70 miles per hour.  On Miss Ferguson’s version of events, the sofa was obviously working itself free as he drove along.  It must have been banging noisily in the back of the Mitsubishi.  If so the appellant could and should have driven in a different fashion, or he should have stopped earlier than he did.  Instead, he continued on his journey until his load fell off and into the path of oncoming vehicles.  He stopped with his vehicle still partly on the carriageway. His actions made both the Mitsubishi and the sofa immediate hazards to oncoming traffic.  
13.	The jury was entitled to find that the appellant put other road users at risk by driving dangerously. He drove with a load which was insecure.  Had he not done so the sofa would not have fallen off, and Mr Wildman would not have been forced to drive round it. He would not have been distracted by it or turned to warn others coming behind him.  The appellant's car would not have been stopped in the carriageway and Mr Wildman would not have driven into the back of it.  Whatever criticisms, Mr Bridge could properly make of Mr Wildman's driving, in our judgment all those circumstances are such that it was open to the jury to find that his dangerous driving played more than a minimal role in bringing about the accident and the death.  
14.	We turn therefore to the further criticisms made of the judge by Mr Bridge.  The second ground of appeal is that the judge, it is said, failed adequately to sum up the law in respect of causation.  The judge summed up the law in this way: 
"Now the words 'thereby caused the death'. You have to be sure the dangerous driving was a cause of death, not the only cause of death or the main cause of death, but a cause of death which was more than just trivial.  This means you must be sure that not only the defendant's dangerous driving created the circumstances of the fatal collision but it was an actual cause in bringing about the death of Mr Wildman. And the defence say here, you might be satisfied the defendant had created the circumstances of the collision but ‑ and they say, and they recognise it is an unattractive argument ‑ and they say it is nonetheless right ‑ the only cause of death was Mr Wildman failing to keep a proper look‑out. And if that is so, or may be so, I direct you to acquit."  
15.	Mr Bridge had a number of complaints to make about this passage.  He argued that the judge failed in a number of respects.  He suggested the judge failed to explain in the kind of detail the jury required in a case “as complex as this” what the difference was between driving which created the circumstances of the fatal accident as opposed to driving which was an actual cause in bringing about the death of Mr Wildman.  He  gave examples in his own address to the jury, and in his submission it was incumbent upon the judge to do much the same in the summing‑up.  He also complained about the fact that the judge told the jury that the defence recognised their argument might appear unattractive given they appeared to be blaming Mr Wildman, the deceased, for his own death.  
16.	Finally on this passage, Mr Bridge criticised the judge for focusing on the defence argument that the cause of death here was Mr Wildman's failure to keep a proper lookout. This he argued would have led to the members of the jury being distracted from their main task which was to focus on the issue of whether or not the appellant's driving was the cause of Mr Wildman's death.  
17.	We accept that, in principle, the distinction between dangerous driving which creates the circumstances of a fatal collision and dangerous driving which is the actual cause of a death may not be an easy concept to grasp. There may well be circumstances in which it would be preferable if a judge went into a little more detail than the judge did here.  However, we note that on the facts of this case the stark issue was whether or not the cause of Mr Wildman's death was his own driving.  That issue was left fairly and squarely to the jury.  The judge directed them specifically that they had to be sure that if they found the appellant drove dangerously with an insecure load they should consider the second element. Was the dangerous driving with a load that might work itself free and flip out onto the road a cause of Mr Wildman’s death which was more than just trivial? We reject, therefore, Mr Bridge's criticism of the judge's directions on the question of causation.  
18.	We should also mention the judge's directions on the question of dangerous driving because the single judge made reference to them in giving leave.  When the trial judge turned to the question of dangerousness, first of all he invited the jury to do something, “rather simple”.  He invited them to take the indictment and underline the word "drove" and the word "dangerously"; and to double underline the words "and thereby caused the death".  Mr Bridge, somewhat to our surprise, criticised the judge for this and suggested that this passage would have obfuscated the issues that the jury had to decide, and caused confusion so that they may have focused on the wrong issue.  The judge went on: 
"Those are the matters which must be proved, each and every one of them.  It might seem like a simple exercise to undertake, but sometimes it is useful to go back to basics and look at it in that way.  I direct you a person drives dangerously [if] it would be obvious to a competent and careful driver [that] the driving of the car with that particular load would be dangerous.  'Obvious' is a word in normal use.  It means obvious at a glance that there was a danger of injury or serious damage occasioned by the load. And in determining what would be obvious you must have regard to circumstances the defendant could be expected to be aware of, as well as matters proven to be within his knowledge. And here, the Crown say, it was obvious at a glance, as the 4x4 was picking up speed the load might be loosened and perhaps flipped out onto the road by the force of the wind. And those facts, they say, render his driving dangerous."
19.	We suspect that the single judge’s concerns may have been caused by a poorly transcribed version of the summing‑up.  When properly transcribed and punctuated, in our view the direction was complete and accurate.  Mr Bridge conceded that the direction, as he put it, "ticked the right boxes", but he argued that the directions needed to go further.  He argued the judge was obliged, when dealing with the word "obvious", to take the jury through the various stages at which it might be argued that it should have been and would have been obvious to a competent and careful driver that driving with this particular load was dangerous.  This, he argued, the judge failed to do.  
20.	We reject those criticisms.  In our view the summing up included proper directions on the law which were linked appropriately to the facts and the issues.  There was, as we see it, sufficient emphasis upon the word "obvious".  The judge directed them, as he must, that it was a word in normal use.  He directed them, as he must, more than once that they had to be satisfied that it was obvious at a glance that there was a danger of injury or serious damage occasioned by the load.  As for the judge's invitation to the jury to underline the word "drove", we fail to see how that could have either obfuscated the issue, as alleged, or caused any confusion.
21.	We turn, therefore, to the next ground of appeal, which is that, whilst deliberating, the jury sent the message requesting a dictionary.  Mr Bridge referred us to a decision of this court, R v Strong [1995] Crim LR 428.  In Strong the jury too sent a note asking a question which remained unanswered at the time they returned the verdict.  The court, however, did not need to determine whether or not this was a properly founded ground of appeal because they quashed the conviction on other grounds.  In passing, the court did comment that it would have been preferable had the judge assisted the jury on their question before receiving their verdict.  
22.	Not knowing the nature of the question in Strong, it is difficult for us to assess the application of the court's obiter remarks to the facts of the present case.  We note, however, that the court held that it merely would have been preferable had the question in that case been resolved before the verdict entered.  That is a far cry from saying the unresolved question in this case affords the appellant a ground of appeal.  The jury simply asked for a dictionary.  None of the words the jury had to apply were in any way difficult, and the answer to their question, had the judge resolved it, would in any event have been: "You are going to have to do without".  There is nothing before us to suggest that the jury experienced any difficulty with the meaning of a word or words so that the judge's failure to resolve this issue somehow undermines the safety of the conviction.  
23.	In ground 4 Mr Bridge argued that the jury reached their verdict with such haste that they could not have fully and properly considered the evidence and applied the correct legal test.  This is, we think Mr Bridge would accept, a novel argument, but one that found no favour in this court.  There was nothing put before us to suggest that the jury ignored their oaths or affirmations or the judge's directions.  Having listened to the evidence over a period of a week and the issues put before them, no doubt with clarity and skill, they may well have found that there was little that they needed to discuss.  
24.	Mr Bridge then complained at ground 5 that at different points during the trial a juror was noted to have been sleeping, causing the court to rise.  This ground too can be dealt with shortly.  We are told the only time when it is acknowledged a juror was asleep was during cross‑examination of the appellant.  That would have been likely to prejudice the Crown if it prejudiced anyone, about which we have our doubts.  The appellant gave a full account in chief to an apparently attentive jury, and the judge reminded the jury of the salient parts of the evidence.  No point was taken about this at trial, in our view rightly, and that disposes of that particular ground.
25.	That brings us to the final ground of appeal, which is that the judge delivered the summing‑up with such speed that the jury were unlikely adequately to understand the legal questions they were obliged to consider.  The judge failed to provide any written directions.  True it is the judge's summing‑up was succinct.  However, it was none the worse for that; the directions were clear and accurate.  As we have indicated, we do not consider the issues were particularly complex.  No written directions were required, and we have no reason to believe that the jury failed to understand the questions they had to decide.  We also note that, albeit the judge invited submissions from counsel at the end of his summing‑up, no complaint was made about this aspect of the summing‑up at that time.  
26.	Finally, we should say we have considered all the complaints made by Mr Bridge, both individually and cumulatively.  Having done so, we are not persuaded that there is any real substance to them such as to undermine the safety of the conviction, and accordingly the appeal against the conviction must be dismissed.  
27.	Mr Bridge, the application for leave to appeal sentence? 

(Submissions re leave to appeal sentence followed) 

28.	LADY JUSTICE HALLETT:  We now turn to the question of the application for leave to appeal sentence.  
29.	The sentencing exercise in this case was, as is so often the case where there has been a tragic death, an extremely difficult one.  On the one hand, the appellant was, as we have indicated, a man of excellent character, who had never previously offended, even against the motoring laws, despite his driving thousands of miles each year.  In so far as it was consistent with his plea of not guilty, he took full responsibility for his actions.  He was described as remorseful although the tone of the judge's sentencing remarks would seem to indicate he was not convinced of this fact.  
30.	We are also told that the appellant comes from a stable and responsible background.  Through commitment and hard work he has developed an enviable business position as a director of a recruitment company and an investor in property.  
31.	On the other hand, this court is very much bound to bear in mind (as the trial judge did) the fact that Mr Wildman was a young man, who has left a wife and two young children.  They are obviously distraught by Mr Wildman's death, as indeed are members of Mr Wildman's extended family.  The victim impact statements make heart rendering reading.    
32.	The judge indicated that he would have regard to the guidance provided in the well known case of Cooksley [2003] EWCA Crim 996.  The Definitive Guideline came into force just a matter of days after sentence was passed.  Mr Bridge argued that, in accordance with Cooksley, the sentence should have been one of 12 months' imprisonment rather than 24 months.  He accepted, as he must, that although the jury had found there was an obvious risk that this load was dangerous and would fall off, the appellant's culpability was at the intermediate or lowest level on the Cooksley scale for which a much lower sentence would have been appropriate.  He reminded the court that there was no intention here to injure or kill, and no other flagrant breaches of the law, including no racing, excessive speed or the like.  
33.	The difficulty of course with that line of argument is that had any of those aggravating features been present they would have raised the case to another level.  The judge found that this case was worse than many of its kind because it did not involve just simply a few seconds’ inattention; the appellant’s driving lasted some time. On the jury's verdict and on the evidence, which the judge accepted, the risk was obvious for a substantial part of that time.  The appellant accepted that he knew there was a risk because he limited his speed and kept a constant lookout.  If he was keeping a careful look out, he would have seen or heard what was happening to his load. As the judge observed, this was a course of conduct which ignored a significant risk for the safety of others.  
34.	We did not have the benefit as the trial judge did of hearing the evidence. In our view, he was far better placed than we are to assess culpability. We should be slow, therefore, to substitute our categorisation of the appellant’s culpability for his.  He assessed the appellant's culpability as high on the Cooksley scale.  
35.	Mr Bridge argued that if one considers the present approach under the Definitive Guideline, the judge's sentence of two years comes at the bottom of the range which now applies for a level 3 offence.  A level 3 offence involves, for example, knowingly driving a vehicle in a dangerous condition because of its load.  This case is less serious and on that basis, he argued a sentence of lower than two years would have been appropriate.  He also submitted that this was a case where the court ought to accept that special reasons apply, and therefore the appellant should not have been disqualified.  
36.	We note that the judge himself said that this was a case that did not fit neatly into any categorisation.  He took some care to determine the appropriate categorisation and level of sentence.  Despite Mr Bridge's best efforts, we can find nothing in the judge's sentencing remarks or in the sentence passed which would suggest to us that the judge was wrong either in his approach or his conclusion.  Whatever guidance one deploys, it is of course only guidance.  It is very much for a trial judge to decide on the level of culpability.  Given that we can see no basis for attacking the judge's categorisation of the appellant’s culpability and his approach in this case, we are of the view that, albeit the sentence would be at the top end of the range of sentences applicable to a case of this kind, the sentence is not manifestly excessive, and the application for leave must be refused.  
37.	We should also indicate that we reject the argument that we should find special reasons in this case.  The jury convicted this appellant of driving along a busy main road with a dangerous load at a time when, according to at least one other witness, it would have been obvious at a glance that the load was dangerous.