Neutral Citation Number: [2009] EWCA Crim 1003
No. 2009/00987/A6

IN  THE  COURT  OF  APPEAL
CRIMINAL  DIVISION
Royal Courts of Justice
The Strand
London WC2

Thursday  30  April  2009

B e f o r e:

THE LORD CHIEF JUSTICE OF ENGLAND AND WALES
(Lord Judge)

MR  JUSTICE  LLOYD  JONES

and

MR  JUSTICE  WYN  WILLIAMS

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ATTORNEY GENERAL'S REFERENCE Nos. 17 of 2009

UNDER  SECTION  36  OF

THE  CRIMINAL  JUSTICE  ACT  1988

R E G I N A

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PHILLIPA  CURTIS
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Mr J Laidlaw QC appeared on behalf of the Attorney General
Mr R Latham QC appeared on behalf of the Offender Phillipa Curtis
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J U D G M E N T
Thursday  30  April  2009

THE LORD CHIEF JUSTICE:
1.  This is an application by Her Majesty's Solicitor General under section 36 of the Criminal Justice Act 1988 for leave to refer to this court for review a sentence which she considers to be unduly lenient.  We grant leave. 

2.  The offender is Phillipa Curtis.  She was born on 1 May 1987.  She is virtually 22 years old.  She is a young woman of whom very many positive things are said.

3.  On 19 December 2008, in the Crown Court at Oxford, before His Honour Judge Hall and a jury, the offender was convicted of causing death by dangerous driving.  On 2 February 2009 she was sentenced to 21 months' imprisonment.

4.  The fatal crash occurred on the evening of 20 November 2007, when the offender (then aged 20) was driving a Peugeot 106 from Suffolk towards Oxford.  Her journey took her along the A11, the M25 and the M40.  At about 11pm, as she drove at about 70mph along the A40 on its approach to Oxford, she was involved in a fatal collision.

5.   The deceased, 24 year old Victoria McBryde, had been driving her car along the same road ahead of the offender when she realised that she had developed a puncture.  She contacted a breakdown company, but she did not have the appropriate insurance cover to receive assistance.  At 22.58 she sent a text to a friend in which she stated that she was somewhere near Oxford with a burst tyre and she did not know what to do.  At the time of the collision the deceased was sitting in her car, which was stationary in the nearside lane of the main road.  Her car was visible for 260 metres.  The offender simply did not see the car.  She drove straight into the rear of it.  The deceased suffered very serious injuries and was killed.

6.  We take the facts in more detail.  The offender was driving to Oxford, having finished work.  During the course of the journey, from about 21.30 onwards, she made or received 20 SMS or text messages from her mobile phone.  She did not stop to make or receive any of those communications.  She did not have any form of hands-free device.  From the exchange of messages between the offender and those with whom she was communicating, it is clear that she had been both reading and typing text messages as she drove along the A11, the M25 and the M40.  
7.  As she approached her destination in Oxford, at about 22.58 (which is almost the precise moment when the deceased sent the text to her friend confirming that she had a burst tyre and did not know what to do), the offender made a short, unsuccessful attempt to speak to her boyfriend.  She then placed another brief call to a taxi company to try to organise an onward journey from the place where she intended to park her car at the Oxford Park and Ride.  Those voice calls were finished by 22:58:38.  Forty seconds later, at 22:59:18, she received a text message.  That message was unread and unopened when the phone was examined at a later stage during the course of the police inquiry.  However, the first call to the police from a witness to the accident was timed at 23:00:06.  The witness gave evidence that he made his telephone call 15 seconds after the collision had occurred.

8.  An examination of the deceased's car after the collision suggested that it was stationary with its handbrake applied, and that at the time of impact the rear side lights were illuminated and that the front side lights may also have been illuminated.  There was a finding which suggested that the hazard warning lights were on, but it was not possible for the collision investigator to be sure about that.  Although the hazard lights switch was found to be in the "on" position, the possibility that the switch had been knocked during the impact could not be excluded.  

9.  The road is a dual carriageway, unlit, with a slightly raised grass verge to the nearside.  It is subject to the national 70mph speed limit.  At the point of collision the road is a gentle sweeping left-hand bend on a slight uphill gradient.  Experiments have indicated that the limit of visibility from the rear of the stationary vehicle back along the road was about 262 metres, increasing to 275 metres if the hazard warning lights had been on.

10.  It was clear from an examination of the scene that the deceased's car had stopped on the nearside lane of the carriageway, not far from the kerb, and that the rear offside had been struck by the front near-side of the offender's car with approximately a quarter vehicle overlap, which suggested that the offender's car was positioned centrally in the inside lane at the point of impact.  It was not possible to calculate a reliable speed for the offender's vehicle, but it appeared to be about 70mph, which accorded with what the offender had described in her interview.  Of importance, there was no evidence which suggested any emergency braking.  The brake lights were not illuminated at the time of impact.  The offender never suggested that she braked before the collision.  In every account she gave of the incident she asserted that she had not seen the stationary car.

11.  The force of the impact between the two vehicles propelled the stationary car across the nearside verge, where it struck a substantial concrete block at the end of the nearside barrier.  The offender's vehicle was deflected towards its offside.  It rotated anti-clockwise towards the central crash barrier and came to rest in lane 2, facing the wrong way.

12.  The witness who saw the accident and saw "sparks and a car going sideways" was in the fast lane.  He braked sharply and contacted the emergency services.

13.  Another driver of a heavy goods vehicle saw a small car (the offender's car) positioned side-on across the fast lane.  It displayed no lights.  He also saw the deceased's car on the nearside grass verge.  He, too, brought his vehicle to a halt.  Both drivers made their way to the scene to give what assistance they could.

14.  A white van which came onto the scene crashed into the offender's unlit car and drove it forward, where it collided with the rear of the heavy goods vehicle.  The front of the car became wedged under the trailer.  

15.  It is a remarkable feature of the case that the offender, who was in the car at the time of the second impact, did not suffer any significant injury in any of the impacts in which her car was involved.  

16.  The offender was treated at the scene by paramedics.  In due course she was arrested for causing death by dangerous driving and interviewed in the presence of her solicitor.  She described her working arrangements and the route she had taken.  She recalled turning off the motorway on to the A40, which was "quite a dark road".  She said, "Basically, I just remember a big like sudden bang and my windscreen was shattered and my car was spinning.  I didn't see anything ahead of me or any lights".  She said that on a number of different occasions.  She said that she was planning to call her boyfriend when she arrived at the Park and Ride, and that she would then travel by bus or by taxi if she was too late for the bus.

17.  The offender was asked about her mobile phone.  She denied that she had used it just prior to the impact.  She said that it had possibly been on the passenger seat.  She reiterated that she could see only to the limit of her headlights and then just black road with no lights.

18.  She was released on bail.  She was re-interviewed on 14 March 2008.  She was told that the police believed that the rear lights of the deceased's vehicle had been on at the time of the collision.  She could not explain why she had failed to see those lights.  She was specifically challenged about the use of her mobile phone.  She admitted that she did not have a hands-free kit or a Bluetooth accessory.  She told the police that she had not been using the phone at the time of the accident, but had used it to call a taxi company and to attempt to call her boyfriend.  She admitted that she might have received text messages during the journey and that she would possibly have looked at them, although she said that she could not recall the details.

19.  The interview in relation to the use of the mobile phone and the communications that took place ended with the offender recalling that she had made a call to the taxi company when she had just come off the M40 on to the unlit section of the dual carriageway, but she denied that she was using the phone when the collision had occurred.  She insisted that the call to the taxi company seemed to her to have taken place quite a long time before the collision.  She said that she had not previously mentioned the calls because the phone was not in use at the time of the accident.

20.  It is clear that during the earlier part of her journey the offender had sent eight text messages and received 13 text messages, which were marked as "read".  Certainly during the earlier part of the journey the offender had read incoming messages before she composed her responses.  The use of the mobile phone and the process of texting is a feature of the case to which we shall have to return.

21.  The pre-sentence report described the genuine remorse that the offender was suffering as a result of her involvement in the accident.  The author recorded that in discussing the death of the deceased the offender 

		"became visibly upset and demonstrated significant remorse for her actions and a high level of victim empathy.  She describes feeling that she has no right to talk about the deceased.  When asked how she feels about it she said, '"Awful" doesn't do it justice.  It's something that will be with me for ever'."  

It was assessed that she displayed a high level of victim empathy.  She accepted that she was fully culpable for the offence and she expressed remorse for those affected by her actions.  

22.  It is plain from both the pre-sentence report and the way in which the case was handled at the Crown Court that this is genuine remorse, not self-pity.  It appears to represent genuine insight into the awful consequences of the offender's actions.

23.  The judge was provided with a substantial bundle of letters which form testimonials to the offender.  However, it is clear that the authors of those testimonials are not seeing this simply through the eyes of the offender; they have insight into the catastrophic loss suffered by the deceased's family.  The letters, which speak well of the offender, are testament to the positive good character to which we have referred.

24.  When the judge came to the sentencing exercise, having listened to the mitigation, one of the important issues which arose was whether the Crown regarded the case as one which for the purposes of sentence should be treated as an offence which fell within level 2 or level 3 of the Sentencing Guidelines Council Definitive Guideline: Causing Death by Driving.  It is difficult for us to be sure about precisely how the case was approached, although counsel for the Crown used the word "significant" (which indicates level 3).  However, whichever way it developed, at the sentencing stage the judge was not expressly invited by the Crown to regard the case as one which fell within level 2.  

25.  In his sentencing remarks the judge did not accept that the mobile phone had no bearing on the facts and on the fatal collision.  He said that driving was a skill that required 100 per cent concentration and that to use a phone, whether to answer, talk into, or even more so to construct a text message, was folly.  

26.  The Solicitor General focuses attention on the use of the mobile phone to speak, to receive, to write and to send text messages over a period of time while driving on A roads and motorways when travelling at speed.  That submission is well made.  On the other hand, there is a separate question which arises from the fact that at the time of the collision the offender was not using actually her phone, nor had she responded to a text message immediately before the collision. 

27.  The Solicitor General points to the following mitigating features.  The offender is a young woman of positive good character.  She has insight into the terrible consequences of her driving.  There is evidence of genuine remorse.  We also know now that, having started to serve her sentence, she was given her release date before she was informed of this present application.  That is not double jeopardy as such, but it is a factor which we must should into account.

28.  We have examined the facts of this case with great care.  The consequences of this accident are devastating.  However, even now drivers of all sorts of vehicles, lorries as well as cars, sometimes driving at speed, are chattering away on their mobile phones, texting and receiving texts.  Inevitably this means that they are distracted to some degree from giving their driving the full attention it needs.  They may continue to be distracted by the fact that they have just been using the phone or texting.  This reduced attention is the consequence of a deliberate choice by drivers.  No one makes them; no one startles them; no one forces them into using their phones or texting while they are at the wheel.  They choose to do it.  They are ignoring the law which prohibits such conduct -- a law which was enacted to improve safety on the roads.  The message still has not been heeded that it is always dangerous to be texting or using a hand held mobile phone while driving and that there is never any excuse for doing so.  If and when something urgent needs attention so badly that it requires the use of the phone or the sending of a text, it is then urgent enough to stop the vehicle, park, or pull into a motorway service station to make or receive the urgent communication.  The only disadvantage is that the driver will arrive at his destination a few minutes later.  The risk of ignoring this simple step is stark: the driver may never arrive at his destination.  Worse, some innocent user of the road may never arrive at his/her destination, followed by the life-long grief and pain that will be caused to those who mourn.  

29.  The consequence of a deliberate disregard of the law introduced to improve safety on the roads means that a custodial sentence is inevitable.  The only question is its length.  That, as ever, is fact-specific; it depends on the detailed circumstances of the incident and all the other matters, whether mitigating or aggravating, which the court should take into account.  Perhaps the most significant fact to be decided in this particular context is whether the phoning or texting happened at the moment of, or in the immediate few seconds before, impact, or whether the earlier phoning or texting may have played some part in the driver's lack of proper attention to the road ahead.  That is the message to be drawn from this case.

30.  The deceased's car was in sight for 260 metres.  The offender did not see it.  At the time she was not using her mobile phone; nor was she texting.  She chose not to respond to the communication that came through.  It cannot be said that the phoning or texting was happening at the moment of impact or in the few seconds immediately before it.  That said, we cannot avoid the conclusion that the offender would have been much less likely to have been distracted if she had never touched her mobile phone or texted at any time.

32.  Having reflected on all of the facts in this case, we have concluded that this was a lenient sentence; arguably, it was unduly so.  However, we have also stood back and reflected on all of the facts as they appear before us now as we review whether or not there should be an order for an increased sentence.  In the result, we shall not order an increase in this sentence.