All England Law Reports/2011/Volume 3 /R v Williams - [2011] 3 All ER 969

[2011] 3 All ER 969

R v Williams

[2010] EWCA Crim 2552

COURT OF APPEAL, CRIMINAL DIVISION

THOMAS LJ, SILBER J AND JUDGE WADSWORTH QC

26 AUGUST, 2 NOVEMBER 2010

Road traffic - Unlicensed, disqualified or uninsured drivers - Causing death by driving - Whether offencerequiring fault or blameworthy conduct - Whether offence requiring that driving be substantial or major causeof death - Road Traffic Act 1988, s 3ZB.

The defendant, who had no driving licence or car insurance, was driving his car on a dual carriageway. Apedestrian crossed the southbound carriageway, crossed over the central reservation and stepped out infront of the defendant's car. The following day the pedestrian died as a result of head injuries sustained in thecollision. The defendant was charged and subsequently tried on a single count of causing death by drivingwithout insurance and without a licence under s 3ZBa of the Road Traffic Act 1988. Under that section aperson was guilty of an offence 'if he causes the death of another person by driving a motor vehicle on aroad' and at the time when he was driving the circumstances were such that he was committing an offenceby driving otherwise than in accordance with a licence or driving whilst disqualified or using a motor vehiclewhile uninsured. The evidence of other drivers was that the defendant had not been exceeding the speedlimit and that the pedestrian had stepped straight out into the path of the defendant's car. The judge rejecteda submission of no case to answer, ruling that the offence under s 3ZB could be committed without fault onthe part of a defendant. He summed up the case to the jury on the basis that the Crown did not have to provethat there was any fault in the manner of the defendant's driving; the offence would be proved if thepedestrian's death had been caused by the defendant driving without insurance and without a licence. Inrelation to 'causing death' he said: 'the defendant's driving of this [car] on the occasion in question does nothave to have been the sole, the only, cause of death. It does not even have to be shown that it was theprincipal or the main cause, or major cause, however you want to put it, but it has to be a contributing cause,other than a merely minute or negligible contributing cause that you would discount, put to one side.' Thedefendant was convicted. He appealed, contending that the offence under s 3ZB of 'causing death' could notbe committed without some fault or other blameworthy conduct and that his sole fault had been a failure tohave a licence and insurance which was unrelated to the cause of the accident and the ensuing death.Alternatively, he contended that 'cause' should be construed so that the Crown had to prove that the drivingwas a substantial or major cause of the death of the deceased. At the hearing, the Crown accepted that nofault, carelessness or lack of consideration in driving could be attributed to the defendant.

Held - (1) On the true construction of s 3ZB of the 1988 Act, 'cause' did not require blameworthy conduct.The simple question for the court was whether

a Section 3ZB is set out at [1], below

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[2011] 3 All ER 969 at 970

the death had been caused by driving without insurance or without a driving licence (see [9], [11]-[19],below); R v Marsh [1997] 1 Cr App Rep 67 applied.

(2) It was sufficient if the driving was a cause of death that was more than minute or negligible. Authorityestablished that that was the meaning of 'cause' in causing death by dangerous driving and it was to bepresumed that Parliament had not intended any different definition for s 3ZB. In the context of the otheroffences where death resulted from driving it was difficult to conceive of any other intention of Parliamentthan that if a person drove unlicensed or uninsured, he would be liable for death that was caused by hisdriving however much the victim might be at fault; it was therefore sufficient that the cause was notnegligible. Accordingly, the appeal would be dismissed (see [9], [22], [23], [31]-[37], below); R v Hennigan[1971] 3 All ER 133 applied.

Notes

For causing death by driving: unlicensed, disqualified or uninsured drivers, see 90 Halsbury's Laws (5th edn)(2011) para 774.

For the Road Traffic Act 1988, s 3ZB, see 37 Halsbury's Statutes (4th edn) (2009 reissue) 761.

Cases referred to in judgment

Alphacell Ltd v Woodward [1972] 2 All ER 475, [1972] AC 824, [1972] 2 WLR 1320, HL.

Empress Car Co (Abertillery) Ltd v National Rivers Authority [1998] 1 All ER 481, sub nom EnvironmentAgency (Formerly National Rivers Authority) v Empress Car Co (Abertillery) Ltd [1999] 2 AC 22, [1998] 2WLR 350, HL.

Gammon (Hong Kong) v A-G of Hong Kong [1984] 2 All ER 503, [1985] AC 1, [1984] 3 WLR 437, PC.

Lord v Pacific Steam Navigation Co Ltd, The Oropesa [1943] 1 All ER 211, [1943] P 32, CA.

Pepper (Inspector of Taxes) v Hart [1993] 1 All ER 42, [1993] AC 593, [1992] 3 WLR 1032, HL.

R v Barnes [2008] EWCA Crim 2726, [2009] RTR 262.

R v Cheshire [1991] 3 All ER 670, [1991] 1 WLR 844, CA.

R v Curphey (1957) 41 Cr App Rep 78.

R v Dalloway (1847) 2 Cox CC 273.

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R v Girdler [2009] EWCA Crim 2666, [2010] RTR 307.

R v Gould [1963] 2 All ER 847n, [1964] 1 WLR 145, Sussex Assizes.

R v Hennigan [1971] 3 All ER 133, CA.

R v Notman [1994] Crim LR 518, CA.

R v Marsh [1997] 1 Cr App Rep 67, CA.

R v Skelton [1995] Crim LR 635, CA.

R v Smith [1959] 2 All ER 193, [1959] 2 QB 35, [1959] 2 WLR 623, C-MAC.

Sweet v Parsely [1969] 1 All ER 347, [1970] AC 132, [1969] 2 WLR 470, HL.

Appeal

Jason John Williams was convicted, under s 3ZB of the Road Traffic Act 1988 of the offence ofcausing death by driving without insurance and without a licence, in the Crown Court at Swanseaafter a trial before Judge Diehl QC, the Recorder of Swansea, and a jury. He was sentenced to ninemonths' imprisonment and was disqualified from driving for two years. He appealed againstconviction and sentence. The facts are set out in the judgment of the court.

[2011] 3 All ER 969 at 971

Elwen Evans QC (assigned by the Registrar of Criminal Appeals) for the appellant.

Sarah Whitehouse (instructed by the Crown Prosecution Service) for the Crown.

Judgment was reserved.

2 November 2010. The following judgment of the court was delivered.

THOMAS LJ.

[1] The Road Safety Act 2006 created the offence of causing death by driving when unlicensed, disqualifiedor uninsured by adding s 3ZB to the Road Traffic Act 1988 as follows:

'A person is guilty of an offence under this section if he causes the death of another person by driving a motor vehicleon a road and, at the time when he is driving, the circumstances are such that he is committing an offence under--(a)section 87(1) of this Act (driving otherwise than in accordance with a licence); (b) section 103(1)(b) of this Act (drivingwhilst disqualified), or (c) section 143 of this Act (using a motor vehicle while uninsured or unsecured against third partyrisks.'

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The section came into force on 18 August 2008. This appeal raises two issues of construction on the sectioncreating the offence.

The factual background

[2] In late 2008 or early 2009 the appellant purchased a motor car. Although he had no driving licence orinsurance, he drove that car regularly. At about 6.20 pm on the evening of 10 February 2009, the appellantwas driving that car, still uninsured and without a licence, on a dual carriageway in the centre of Swanseawhere there was a speed restriction of 30 mph. As he was so doing, David Loosemore crossed thesouthbound carriageway, crossed over the central reservation and stepped out in front of the car beingdriven by the appellant. He was hit, propelled into the air and fell to the ground; the following day he died asa result of head injuries sustained in the collision.

[3] The evidence of two other drivers was that the appellant was not exceeding the speed limit and that MrLoosemore stepped straight out into the path of the appellant's car. One of the drivers said that theappellant's car was a maximum of three feet from the deceased when he stepped off the central reservation.The appellant's own evidence was that Mr Loosemore had suddenly stepped out and there was nothing hecould do to avoid an accident. In this court, the Crown have accepted that no fault, carelessness or lack ofconsideration in driving can be attributed to the appellant.

The trial

[4] The appellant was charged and subsequently tried at the Crown Court at Swansea on a single count ofcausing death by driving without insurance and without a licence. The Recorder of Swansea, Judge DiehlQC, rejected a submission of no case to answer, ruling that the offence could be committed without fault onthe part of the appellant. In accordance with his ruling he summed the case up to the jury on the basis thatthe prosecution did not have to prove there was any fault in the manner of the appellant's driving; that theoffence was proved if Mr Loosemore's death had been caused by the appellant driving without insurance andwithout a licence. He said that the issue for the jury to determine was whether they were sure that thedefendant's driving of his car was:

[2011] 3 All ER 969 at 972

'a cause of Mr Loosemore's death. I say a cause ladies and gentlemen because you may appreciate, if you think aboutit for just a few moments, that more than one cause may contribute to an event, a result, more than one cause maycontribute. A cause may be the action or actions of the victim himself, but there may be more than one cause operatingto bring about that result. In other words, the defendant's driving of this BMW on the occasion in question does nothave to have been the sole, the only, cause of the death. It does not even have to be shown that it was the principal orthe main cause, or major cause, however you want to put it, but it has to be a contributing cause, other than a merelyminute or negligible contributing cause that you would discount, put to one side.'

[5] As he was concluding his summing up the jury asked the following question:

'If as a jury we think that Mr Loosemore's stepping into the road was the principal, main or major cause of death doesthat influence our consideration of Mr Williams' driving still being a cause of Mr Loosemore's death?'

He answered it as follows:

'So I will just go over again if it helps what I said previously, that there may be more than one cause contributing to anevent or a result, and, as I said to you, one contributor in that sense may be the victim himself or herself. It does nothave to be shown that the defendant's driving was the sole, only cause of death, it does not have to be shown that hisdriving was the principal, major or substantial cause of it, but it has to be shown, it has to be proved, so that you aresure, that his driving was a contributing cause other than a merely minute or negligible one, which in your judgment youshould discount. So the short answer is, "no, that would not affect your consideration of the question if you were toconclude that the deceased's action in stepping into the road was, say, the principal cause of death, that would not

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exclude another true cause".'

The jury during the course of retirement asked another question in relation to causation and the judgeanswered in a similar way.

[6] The appellant was convicted and sentenced by the judge on this offence to a period of nine months'imprisonment; he was disqualified from driving for two years.

The issues on the appeal

[7] His appeal, ably and clearly presented to this court by Miss Elwen Evans QC can be summarised asfollows. (i) The offence could not be committed without some fault or other blameworthy conduct on the partof the appellant. 'Cause' as used in the subsection must be construed as importing some fault or otherblameworthy conduct. There was no blameworthy conduct; his sole fault was a failure to have a licence andinsurance which was unrelated to the cause of the accident and the ensuing death. (ii) If that construction of'cause' was not correct, the word should be construed so that the Crown did not merely have to prove theappellant's driving was 'a cause' which was not minimal but was a substantial or major cause of the death ofthe deceased. The facts clearly established that the substantial or major cause of death was due to theactions of Mr Loosemore and not those of the appellant.

[2011] 3 All ER 969 at 973

[8] On behalf of the Crown it was contended by Miss Whitehouse, to whom we are also indebted for herclear and able argument, that although she accepted that normally the result of a defendant's act had to beshown to be attributable to a culpable or blameworthy act, on the construction of this statute, Parliamentmust have intended that this was not required. It was sufficient if the conduct of the accused was a cause ofthe death of the deceased provided it was not minimal.

[9] Although the diligence of both Miss Evans and Miss Whitehouse had produced for the court a substantialnumber of extracts from the debates in Parliament, it was accepted by both that the test in Pepper (Inspectorof Taxes) v Hart [1993] 1 All ER 42, [1993] AC 593 was not met. We did not therefore consider any of theextracts from the debates and proceeded to look at the matter as one of statutory construction. We willtherefore consider each of the two issues in turn: (1) was fault or another blameworthy act required; (2) wasit sufficient that the appellant's driving was a cause of the death? We consider the answer to the questionsare clear. Blameworthy conduct was not necessary; it was sufficient that the driving was a cause. Ourreasons are as follows.

(1) Was fault or another blameworthy act required?

[10] As we have set out, Miss Whitehouse accepted that it was ordinarily not enough to show that what hadhappened which was charged as a crime was caused by the conduct of the defendant, but that that conductalso had to be blameworthy. It was submitted that this was established in the development of the commonlaw.

[11] Clearly this must be so; there had been a time when the criminal law imposed strict liability, but theredeveloped the requirement that morally blameworthy conduct was required: see Russell on Crime (12 edn,1964) pp 18-25. We agree with Miss Whitehouse that R v Dalloway (1847) 2 Cox CC 273 (to which sheinitially referred us) is not clear authority for the general proposition that there must be a blameworthy act toprove that a defendant caused a result in a legal sense. The general principle is, however, clear. Althoughthe requirement of morally blameworthy conduct is the background against which the intention of Parliamentin attributing criminal liability without blameworthy conduct must be considered (cf Sweet v Parsely [1969] 1

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All ER 347 at 349, [1970] AC 132 at 149 and Gammon (Hong Kong) v A-G of Hong Kong [1984] 2 All ER 503at 508, [1985] AC 1 at 14), the question for the court is whether when Parliament enacted this offence itintended to and did depart from the general principle.

[12] The 1988 Act (as amended) contains three other provisions creating offences where the defendant'sdriving has caused death: (i) causing death by dangerous driving (ss 1 and 3) where the penalty is 14 years'imprisonment; (ii) causing death by careless driving when under the influence of drink or drugs (s 3A) wherethe maximum penalty is 14 years' imprisonment; (iii) causing death by careless or inconsiderate driving (s2B) where the maximum penalty is five years' imprisonment. Section 3ZA defines careless and inconsideratedriving in the following terms:

'(2) A person is to be regarded as driving without due care and attention if (and only if) the way he drives falls belowwhat would be expected of a competent or careful driver ...

(4) A person is to be regarded as driving without reasonable consideration for other persons only if those persons areinconvenienced by his driving.'

[2011] 3 All ER 969 at 974

[13] It was therefore submitted on behalf of the Crown that it could be inferred that as Parliament hadenacted the offence of causing death while driving whilst unlicensed, disqualified or uninsured, Parliamentcannot have intended that any fault was necessary as it had already provided for death by driving involvingsimple or low level fault with the offence of death by careless or inconsiderate driving.

[14] In R v Marsh [1997] 1 Cr App Rep 67 the court had to consider the provision under s 12(A)(1) of theTheft Act 1968 relating to aggravated vehicle taking. That section provided that a person who committed thebasic offence of vehicle taking was to be convicted of aggravated vehicle taking, if it was proved that thevehicle was driven or injury or damage caused in circumstances including: 'That, owing to the driving of thevehicle, an accident occurred by which injury was caused to any person.' The defendant in that case wasconvicted of the offence in circumstances where an accident had happened where he had not been at fault.It was asserted on his behalf, both in the Crown Court and on appeal, that no liability could attach to himunder the section unless it was proved that the accident had been occasioned by culpable driving on his part.In the judgment of the court, upholding the direction of the Assistant Recorder that fault was not required, itwas said:

'In a sense, of course, the manner in which the vehicle was being driven is necessarily relevant. If in this case the carwas being reversed at the time, the accident would not have occurred. But it is unhelpful, in our judgment, to gloss thestatute by referring to the manner or mode of driving: the words are plain and simple. In our view the question for thecourt on their proper construction is, was the driving of the vehicle a cause of an accident? Any other approach wouldrequire the court to read in words which are not there.'

We consider that the approach of this court in R v Marsh applies even more clearly to the offence under s3ZB; fault is not required. The simple question for the court is whether the death was caused by drivingwithout insurance or without a driving licence.

[15] Indeed this appears to have been the view of the many who have commentated upon the section. Forexample in Smith and Hogan Criminal Law (12th edn, 2008) p 1111 the current editor, Professor Ormerodsays:

'The Road Safety Act 2006 introduced in s.21 these controversial new offences of causing death while driving whenunlicensed, disqualified or uninsured ... These are stark examples of constructive liability offences where the culpableconduct is unrelated to the manner of the causing of the death. All that needs to be proved is that the defendant wasdriving when he did not have a valid licence or insurance or had been disqualified from driving, and was involved in afatal collision. Even if D's driving was flawless and the collision was solely the fault of another, or even if V was solely atfault in running out in front of D, D will be convicted of the statutory homicide offence. Commentators have been

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scathing of the breadth of the offences with Ferguson for example, describing them as a "fundamental alteration ofcriminal law policy". There is nothing more than a factual causal link between D being unlawfully on the road and thefatality. Some commentators argue however, that such offences are not objectionable in themselves because theyreflect the enormity of the consequence of death, but that the sentence is inappropriately harsh. The

[2011] 3 All ER 969 at 975

argument that the culpability of the unlawful driver for being on the road when he was uninsured poses a danger whichjustifies a homicide offence if a fatality arises is a weak one, and only marginally stronger in cases of unlicensed ordisqualified drivers. The truth is that these offences are simply concessions to the expectations of the general publicthat because a death has occurred, someone ought to be blamed for it. The mismatch between fault andconsequences is striking.'

[16] To similar effect it is the view in Wilkinson's Road Traffic Offence (24th edn, 2009) under thedistinguished editorship of Mr Kevin McCormac where it is said:

'The question of causation may well prove problematical in practice for both the courts and prosecuting authorities. Itwould appear from the way in which the statute has been framed that the nature and quality of the driving concerned isirrelevant; it is the very act of driving a motor vehicle on a road (but not on any other public place) which constitutes thefirst element of the offence. Whilst a disqualified driver may generally speaking be presumed to be aware of thecriminality of his actions when deciding to drive, it is not hard to envisage circumstances in which due to inadvertence,or ignorance of the actions of other parties such as banks or insurance companies (or indeed the DVLA), an otherwiselaw-abiding motorist who despite driving perfectly properly is involved in an accident which leads to the death ofanother person may be faced with the prospect of prosecution and potential incarceration for an offence under thislegislation.'

[17] Similarly Professor Michael Hirst in an article in the Criminal Law Review [2008] Crim LR 339 entitled'Causing Death by Driving and Other Offences: A Question of Balance' says at p 344:

'Lack of sympathy for disqualified or uninsured drivers should not however blind us to the fact that this new offencecorrupts the usual principles governing causation. It appears that D may be convicted of "causing" death without hisactual driving being at fault. If D's uninsured car is involved in a collision with V's motorcycle and V is killed, D willautomatically be guilty, even if the accident was entirely V's fault. It is clear from the authorities that D may still be"driving" even when his vehicle is stationary. It may be no defence, therefore, that D was waiting patiently at trafficsignals when V rode into the back of his car.'

[18] Although each of these passages sets out severe criticism of the policy of Parliament in enacting theprovision, none suggests that the words are other than clear and that the offence can occur without anyblameworthy conduct. In our view, as a matter of simple statutory construction, that is plainly right.

[19] Furthermore if the section were to be interpreted to require any blameworthy conduct, bearing in mindthe very wide scope of the offence of causing death by careless and inconsiderate driving, it is difficult to seewhat purpose the offence could have. Indeed Miss Evans, when asked by the court if she could give anexample of circumstances where there could be some fault or blameworthy conduct on the part of anuninsured or unlicensed driver which would not also be caught by the offence of causing death by carelessor inconsiderate driving, she very fairly accepted she could think of none, though

[2011] 3 All ER 969 at 976

she added, quite rightly, that the fact that an illustration could not be readily identified did not mean that onemight not exist. To hold that blameworthy conduct was required would be to re-write s 3ZB.

(2) Was it sufficient that the appellant's driving was a cause of the death?

[20] The judge in his directions to the jury was clear and unequivocal. He told the jury that providing the

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appellant's driving was a cause which was not minimal then the appellant was guilty of the offence. It is clearfrom the question asked by the jury that they had considered this carefully, as they wished to know whether ithad to be a major cause. They were told it did not in unequivocal terms.

[21] Miss Evans argued that if, contrary to our view, no blameworthy conduct was required, Parliament musthave intended that it was insufficient if the driving was simply a cause; it had to be shown to be a major orsubstantial cause. The judge's direction in this respect was wrong. As was shown by the jury's question, ifthe jury had been directed that it had to be a major or substantial cause, the verdict may well have beendifferent.

[22] In our view the correctness of the judge's direction is clear from R v Hennigan [1971] 3 All ER 133. Inthat case this court, presided over by the then Lord Chief Justice, Lord Parker CJ, had to consider thequestion of causation in the context of the offence of causing death by dangerous driving. In answer to aquestion from the jury the trial judge said:

'You have only one man before you, and you are not concerned in any civil claim or with compensation. All you have tofind is whether this man, in your charge, was guilty of dangerous driving which was a substantial cause of the death ofthese two people, and I hope I have explained "substantial" to you effectively.'

This court observed (at 135):

'What is said, as the court understands it, is that that conveyed the impression to the jury that they could find theappellant guilty if he was only little more than one-fifth to blame. The court would like to emphasise this, that there is ofcourse nothing in s 1 of the Road Traffic Act 1960 which requires the manner of the driving to be a substantial cause,or a major cause, or any other description of cause, of the accident. So long as the dangerous driving is a cause andsomething more than de minimis, the statute operates. What has happened in the past is that judges have found itconvenient to direct the jury in the form that it must be, as in one case it was put, the substantial cause. That case wasthe case which Finnemore J gave a direction to the jury in R v Curphey [(1957) 41 Cr App Rep 78]. That, in the opinionof this court, clearly went too far, and Brabin J in a later case of [R v Gould [1963] 2 All ER 847n, [1964] 1 WLR 145],left it to the jury in the form of "a substantial cause". Although the word "substantial" does not appear in the statute, it isclearly a convenient word to use to indicate to the jury that it must be something more than de minimis, and also toavoid possibly having to go into details of legal causation, remoteness and the like. That appears from the furtherdirection of the trial judge, who in terms said that it must not be remote, and that it must be a real cause as opposed tobeing a minimal cause. It is perhaps unfortunate that he dealt with the matter in the illustration he gave on the basis ofapportioning

[2011] 3 All ER 969 at 977

blame, but when one analyses it, it is quite clear that the direction, if anything, was much too favourable to theappellant in that the court is quite satisfied that even if he was in this case only one-fifth to blame, he was a cause ofthe death of these two people. In these circumstances the appeal is dismissed.'

[23] That is the short and simple answer to the submission. However, in deference to the argument of MissEvans, we will set out our reasons for the rejection of her argument at greater length. It was contended byMiss Evans that the appellant could not have been said in any ordinary sense of the word 'cause' to havecaused the death of Mr Loosemore when the established facts were such that the cause of the accident werethe actions of Mr Loosemore and not those of the appellant. It was pointed out that there could be nosustainable civil claim by Mr Loosemore or his estate against the appellant because he had not been in anyway at fault; the fact that he was uninsured made no difference as there could be no call upon the insurers. Itwas also submitted that the absence of a licence and insurance played no part in the occurrence of theaccident; they were in no sense causative, as the accident was caused by Mr Loosemore's fault. If theCrown's construction of the section was correct, an uninsured or unlicensed driver would have committed theoffence even where (1) a drunk driver or a person driving dangerously drove his vehicle into the defendant'svehicle and then died, or (2) a pedestrian who intended to commit suicide stepped into the path of thedefendant's vehicle or (3) where in a multiple car pile-up the uninsured driver was towards the back of the

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chain of cars in the pile-up.

[24] It was also submitted that support could be found in the Crown Court Bench Book, published by theJudicial Studies Board in 2010, in the explanation provided in relation to the general rule on causation atpara (9)3:

'There may be more than one cause. The prosecution must usually establish that the defendant's act was a substantialcause of the "result", by which is meant more than a minimal cause. (Hennigan). In 2002, a Law Commission WorkingParty, making proposals for codifying the concept of causation in the criminal law settled on the description "made asubstantial and operative contribution to" which, it is suggested, is an elegant and accurate synonym of "caused".'

[25] The report of the Law Commission Working Party referred to in the Bench Book was never published.However, as it had been referred to in a public document and was strongly relied on by Miss Evans for theappellant, we are grateful to the Law Commission for making available to the parties and to the court a draftreport of 2003 containing the wording referred to in the Bench Book. We were told that there was no finalversion of the report; the drafts had not been circulated beyond the Law Commission and consultees; asubsequent draft had omitted the words referred to in the Bench Book.

[26] The 2003 draft report is in fact a commentary on elements of the draft criminal code annexed to a LawCommission report A Criminal Code for England and Wales (Law Com no 17) published in 1989 which isbased on a draft criminal code contained in a report in 1985 to the Law Commission by a team led by the lateProfessor Sir John Smith.

[27] It would not normally be apposite for a court to be referred to an unpublished working draft of a LawCommission working party report which had subsequently been revised, but as it has been referred to in theCrown Court

[2011] 3 All ER 969 at 978

Bench Book as containing an 'elegant and accurate synonym' for causation, it is necessary to consider it.Moreover as the draft is not publicly available, it is necessary to explain the background and refer to therelevant paragraphs in the draft.

[28] The 1989 draft code had contained at 17(1) a definition of causation for a result crime (as the offence ofcausing death by driving can be categorised) that included doing: 'an act which makes a more than negligiblecontribution to its occurrence.'

[29] A debate had then ensued as to whether a definition of causation should be included in the code: seefor example, Professor Glanville Williams: 'Finis for Novus Actus' [1989] CLJ 391 at 396-397. IndeedProfessor Glanville Williams wrote to the Law Commission to say that the definition did not give the barestindication that a question of moral responsibility or causation was involved; he suggested a definition whichrequired the defendant to do an act that in fact caused the result and was not 'too remote, too trivial or tooaccidental to have a just bearing on the doer's liability or on the gravity of the offence'. The Law Commissionconsidered that it should look into the issue more fully, rejecting the view that in most cases the jury were notconcerned with moral questions but with an issue of fact.

[30] Amongst the tasks of the Working Party was to examine the issue of definition of 'cause'. Twoparagraphs of the 2003 draft report are relevant to the term used in the Crown Court Bench Book. Afterreferring to the draft definition in 17(1) of the 1989 code, the draft 2003 report continues:

'The case law refers to the terms "substantial" ([R v Smith [1959] 2 All ER 193, [1959] 2 QB 35], Hennigan, [R vNotman [1994] Crim LR 518]) or "significant" ([R v Cheshire [1991] 3 All ER 670, [1991] 1 WLR 844]) rather than "more

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than negligible". We take the view that there is no need to employ the more complex notion of more than negligiblewhen a single common place word will suffice. We therefore propose to replace "more than negligible" with "significant"so that 17(1) will read:

"... he does an act that which makes a significant contribution to its occurrence"

We have chose the word "significant" rather than "substantial" because, as a number of our respondents pointed out,there may be a discrepancy between the popular and the legal meaning of substantial. The popular use for the wordnormally connotes something akin to "principal" or "predominant". On the other hand, the courts have treated the word"substantial" as meaning more than "de minimis". In order to remove any confusion we prefer to use the word"significant". The case law has made it clear that a cause need not be the sole or main cause for it to be a legal causeand therefore it would be wrong for the fact finders to be thinking in those terms. In order to make it absolutely clearthat a cause may be "significant", even if it is not the sole or main cause, we are proposing to add an additionalsubsection:

"A defendant's act may significantly contribute to the occurrence of a result even though his act is not the sole or maincause of the result."

[31] It is, we think, necessary to refer to these authorities. (i) We have set out at length the decision in R vHennigan [1971] 3 All ER 133. (ii) R v Smith [1959] 2 All ER 193, [1959] 2 QB 35 was a case where the issueof causation arose in a

[2011] 3 All ER 969 at 979

murder where the defendant had stabbed a fellow soldier and a number of further events occurred whichbore on the cause of death. It was in essence a case about breaking the chain of causation, as the citation ofa well-known passage of Lord Wright in Lord v Pacific Steam Navigation Co Ltd, The Oropesa [1943] 1 AllER 211, [1943] P 32 demonstrates. This court rejected the submission that the original wound had to be thesole cause; it was sufficient if the wound had been 'an operating cause and a substantial cause' ([1959] 2 AllER 193 at 198, [1959] 2 QB 35 at 42). The court continued:

'Only if it can be said that the original wounding is merely the setting in which another cause operates can it be saidthat the death does not result from the wound. Putting it in another way, only if the second cause is so overwhelming asto make the original wound merely part of the history can it be said that the death does not flow from the wound.' (See[1959] 2 All ER 193 at 198, [1959] 2 QB 35 at 43.)

(iii) R v Cheshire [1991] 3 All ER 670, [1991] 1 WLR 844 was a case where the defence to murder was thatthere had been negligent treatment of the injuries. This court reviewed the authorities in cases where asubsequent matter had been said to be a cause of the death. This court concluded that there were realdifficulties in formulating and explaining a general concept of causation; in cases of negligent treatment, itwas ordinarily sufficient for the judge to direct the jury that they must be sure that--

'the acts of the accused caused the death of the deceased, adding that the accused's acts need not be the sole causeor even the main cause of death, it being sufficient that his acts contributed significantly to that result ... We think theword "significant" conveys the necessary substance of a contribution to the death which is more than negligible.' (See[1991] 3 All ER 670 at 677, [1991] 1 WLR 844 at 852.)

(iv) The very brief report of R v Notman [1994] Crim LR 518 (whether an injury had been caused by thedefendant charged with an assault occasioning actual bodily harm) makes clear that the court was followingR v Hennigan.

[32] These cases demonstrate, in our view, that is not always possible to deal with the issue by the use of'significant' or 'substantial'. Indeed as the decisions in relation to causing death by dangerous driving in R vSkelton [1995] Crim LR 635, R v Barnes [2008] EWCA Crim 2726, [2009] RTR 262 and R v Girdler [2009]

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EWCA Crim 2666, [2010] RTR 307 illustrate, more elaborate directions may be needed. The need for atailored approach is clear from Empress Car Co (Abertillery) Ltd v National Rivers Authority [1998] 1 All ER481, sub nom Environment Agency (Formerly National Rivers Authority) v Empress Car Co (Abertillery) Ltd[1999] 2 AC 22. In that case the House of Lords had to consider the meaning of cause in the context of anoffence of causing a pollutant to enter a river where a stranger had opened a valve which allowed dischargeof pollutant into the river. Lord Hoffmann made clear ([1998] 1 All ER 481 at 486, [1999] 2 AC 22 at 29):

'The courts have repeatedly said that the notion of "causing" is one of common sense. So in Alphacell Ltd v Woodward[1972] 2 All ER 475 at 490, [1972] AC 824 at 847 Lord Salmon said: "... what or who has caused a certain event tooccur is essentially a practical question of fact which can best be answered by ordinary common sense rather than byabstract metaphysical theory." I doubt whether the use of abstract metaphysical

[2011] 3 All ER 969 at 980

theory has ever had much serious support and I certainly agree that the notion of causation should not beovercomplicated. Neither, however, should it be oversimplified. In the Alphacell case [1972] 2 All ER 475 at 479, [1972]AC 824 at 834, Lord Wilberforce said in similar vein: "In my opinion, 'causing' here must be given a common sensemeaning and I deprecate the introduction of refinements, such as causa causans, effective cause or novus actus.There may be difficulties where acts of third persons or natural forces are concerned ..." The last concession wasprudently made, because it is of course the causal significance of acts of third parties (as in this case) or natural forcesthat gives rise to almost all the problems about the notion of "causing" and drives judges to take refuge in metaphor orLatin.'

Lord Hoffmann then considered the way common sense notions of causation treat the intervention of thirdparties or natural forces, concluding after a review of some cases:

'These examples show that one cannot give a commonsense answer to a question of causation for the purpose ofattributing responsibility under some rule without knowing the purpose and scope of the rule.' (See [1998] 1 All ER 481at 488, [1999] 2 AC 22 at 31.)

[33] In our view, applying this approach, it is therefore necessary for us to consider the meaning of cause asused in s 3ZB of the 1988 Act in the context of the intention of Parliament. First, the meaning of cause indeath by dangerous driving was decided by R v Hennigan. That decision makes clear it is a cause if it ismore than negligible or de minimis. We do not think that Parliament can have intended any differentdefinition for s 3ZB. Indeed the presumption is to the opposite effect--see Bennion on Statutory Interpretation(5th edn, 2008) p 711, s 235:

'Tacit legislation Parliament is normally presumed to legislate in the knowledge of, and having regard to, relevantjudicial decisions. If therefore Parliament has a subsequent opportunity to alter the effect of a decision on the legalmeaning of an enactment, but refrains from doing so, the implication may be that Parliament approves of that decisionand adopts it. This is an aspect of what may be called tacit legislation.'

[34] Secondly, in the context of the other offences where death results from driving (as we have set out atpara [12], above), it is difficult to conceive of any other intention of Parliament than that if a person droveunlicensed or uninsured, he would be liable for death that was caused by his driving however much thevictim might be at fault; it was therefore sufficient that the cause was not negligible. It may be a harsh andpunitive measure with an evident deterrent element, but it is difficult to see how anything else can have beenintended.

[35] As is clear from all the cases, it is for the judge in each case to determine how to explain the meaningof causation to the jury in the context of the offence before the court. In many cases, no need will arise. Butwhere it does the use of the terms 'substantial' and 'significant' have been suggested in that context asconveying the meaning that the cause must be 'more than negligible'. The tenor of the draft 2003 report is tothe same effect, though in the context of the much more definitive task of codification. However the words

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'substantial' and 'significant' can give rise to further difficulty. For[2011] 3 All ER 969 at 981

example, substantial can be defined in this context as 'essential or material' or 'firmly established' or'weighty'; 'significant' can be defined to mean 'important'. The terms may not convey the necessary clarityrequired in every case.

[36] In a case such as the present, it seems to us that the task of the judge is to explain to the jury what ismeant by cause. A simple reference to 'significant' or 'substantial' would in the present case have beeninsufficient, as the terms could easily have been misunderstood. It is evident from the jury's question thatthey considered 'the principal, main or major' cause of the death was Mr Loosemore stepping into the road.Had the judge used the terms 'significant' or 'substantial', he would not have conveyed the meaning asdecided in R v Hennigan (and as applied in R v Barnes and R v Girdler) and in our view plainly intended byParliament in relation to s 3ZB. As the comments in relation to this offence we have set out at paras [15]-[17],above, make clear, some take the view that the offence is objectionable in principle. It is therefore particularlyimportant that the jury is given clear guidance as to the meaning of the section in cases such as this; thereasons are well explained by Mrs Nicola Padfield in 'Clean Water and Muddy Causation: is causation aquestion of law or fact or just a way of allocating blame' [1995] Crim LR 683 pp 692-693. A jury must clearlyunderstand the statutory legal requirements. The judge was right therefore to explain to the jury that whatwas necessary was a cause that was more than minute or negligible, as that is what Parliament clearlyintended.

Conclusion

[37] We therefore dismiss the appeal for the reasons set out. At the hearing, we allowed the appeal againstsentence and substituted a sentence of 24 weeks. A custodial sentence was plainly appropriate, but in thelight of all the circumstances, too long.

Appeal against conviction dismissed. Appeal against sentence allowed.

Carla Dougan-Bacchus Barrister.

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