JUDGMENT of Ms. Justice O’Malley delivered the 15th day of June, 2017
Introduction
1. The issues in this appeal arise from a tragic accident that occurred on the 9th January, 2013. On the morning of that day Mr. Kevin O’Sullivan was assisting in a roadworks operation on a public road in County Kildare. While standing behind a JCB he was struck and killed by a car driven by the respondent to this appeal, Mr. O’Shea. On the 12th November, 2014, Mr. O’Shea was convicted by a jury of the offence of careless driving causing death. That offence is provided for by s. 52 of the Road Traffic Act 1961 as amended by s. 4 of the Road Traffic (No.2) Act 2011.
2. In the course of his instructions to the jury the trial judge described this offence as being one of strict liability. That was, it is agreed, incorrect, and Mr. O’Shea’s appeal on this point to the Court of Appeal was successful (see Director of Public Prosecutions v. O’Shea [2015] IECA 319). The appellant (“the Director”) no longer seeks to stand over the conviction but intends to proceed with a retrial. To that end she has appealed against the ruling of the Court of Appeal that, in a trial for careless driving causing death, the prosecution must prove that the accused acted intentionally or recklessly. The question, therefore, is whether a conviction for this offence requires proof of mens rea and, if so, the nature of that mens rea.
Background facts
3. This appeal is in no way concerned with the factual merits of either the prosecution or the defence case, and a short summary of the facts will suffice to provide context for the discussion of the issues.
4. At the time of the accident Mr. O’Shea was seventy years old. He lived in the area and was familiar with the road. There is no question of impairment of driving by reason of alcohol, and the evidence indicated that the car was travelling quite slowly when the impact occurred. His car was not in any way defective. His case at all times, in summary, was that he was unaware of the roadworks because of the absence of any warning signage; that his vision had been very limited because of the strong morning sunlight in his eyes; and that he had slowed down for this reason. He simply did not see either the JCB or Mr. O’Sullivan, because the sun was behind them.
5. The case made by the prosecution in closing its case was encapsulated in the following extract from counsel’s speech:
“There is no getting away from the fact that you cannot drive on a road if you are blind. You simply cannot and if you do drive when you are blinded, then you are driving without due care and attention…If you are blinded you should not be driving on a road; you should have stopped your car.”
6. Counsel for Mr. O’Shea contended that it was incumbent on the prosecution to prove intention or recklessness, and that he had driven prudently in the circumstances.
7. In charging the jury, the trial judge explained that there were, in effect, three categories of bad driving. The worst was dangerous driving, and this was not a case of dangerous driving. The second was referred to as careless driving but was known in law as driving without due care and attention. The third was driving without reasonable consideration. The judge then continued:
“Now, you heard earlier on in the closing speeches that there was a reference to mens rea, the mental intent that one must have, generally speaking, in committing a criminal offence. Generally speaking, mental guilt will be required to convict someone of a crime but there are exceptions for a small number of strict liability offences. And one of those strict liability offences is section 52 of the Road Traffic Act 2011, which means that you do not have to decide whether or not the accused had a mental intention to carry out the offence. It’s a strict liability offence. Nor do the prosecution need to prove to your satisfaction that the accused was reckless. They must only prove that he drove without due care and attention and that is to your satisfaction…”
8. The judge then went on to give the jury the definition of careless driving from Woods on Road Traffic Offences (2005):
“A charge of careless driving is generally preferred where a person has been merely careless, doing his incompetent best or has been momentarily inattentive.”
9. The jury were told that the test was objective - had the prosecution proved that the accused had departed from the standard of care and skill that in the particular circumstances would have been exercised by a reasonable, prudent and competent driver?
The judgment of the Court of Appeal
10. The Court of Appeal ruled, in an ex tempore judgment, that the trial judge had erred in instructing the jury that the offence was one of strict liability. Reference was made to the following passage relating to the offence of careless driving causing death from Pierse’s Road Traffic Law: The 1961-2011 Road Traffic Acts Annotated Legislation (2011):
11. The judgment of the Court then continued:
“Mens rea is a necessary pre-requisite to establishing guilt in any indictable offence. In relation to this case specifically, in order to convict, a jury would have to be satisfied that there had been intentional or reckless behaviour in the manner of the appellant’s driving. The issue of recklessness was not addressed by the learned trial judge in his address to the jury, and indeed was specifically excluded by him as being relevant to the offence when he declined to discharge the jury on the basis that recklessness had not been established by the prosecution.
It is contended by the respondent, although acknowledging that the strict liability reference ought not to have been made in the charge, that the overall effect of the charge was that the jury were left in no doubt that their task was to determine if the prosecution had established beyond all reasonable doubt that the deceased’s death had been caused by the appellant’s failing to drive his car in a public place with due care and attention.
While the court does not agree with the submission for the reasons already indicated, even if the jury had been, in general terms, adequately charged on the issue of mens rea the fact that the learned trial judge had elsewhere in his charge specifically and unequivocally classified the offence as a ‘strict liability’ offence, would have, at a minimum, created the very real potential to confuse the jury.”
12. In its determination granting leave to the Director to appeal ([2016] IESCDET 80), this Court specified the questions to be dealt with as being the ingredients of the offence and the proofs necessary to sustain a conviction.
Submissions
13. The Director does not seek to stand over the characterisation of the offence by the trial judge as being one of strict liability. It is accepted that the issue in a trial on this charge goes beyond that of causation - in other words it is accepted that it is not sufficient for the prosecution to prove that the accused caused the harm in question, and to then argue from that fact that he or she must have been driving carelessly.
14. However, it is submitted that in the context of this offence it is more accurate to speak of “fault” rather than of mens rea or “guilty mind”, which carries a connotation of moral guilt. The test for the offence of careless driving has always been whether the driver, objectively speaking, was guilty of a deviation from or a failure to meet the standard of care required in driving. The prosecution must prove that deviation or failure beyond reasonable doubt, but there has never been a requirement to prove deliberate or reckless misconduct, nor intentional disregard for proper standards of driving. The amendment in 2011 created a result based offence with significant changes as to penalty and trial venue, but did not change the underlying elements. The only additional proof required is that the driving caused death or serious bodily harm.
15. Counsel on behalf of Mr. O’Shea submits that the view of the Court of Appeal was correct. Since the statute does not purport to create a strict liability offence, words importing mens rea must be read into it. This necessity arises from the presumption that the Oireachtas did not intend to punish a blameless individual. There must therefore be a requirement of intention or recklessness.
The legislation and authorities
16. It is, I think, helpful to consider the statutory and historical context of the offence, beginning with the statute. The Road Traffic Act 1961, as amended, provides for three offences that may arise from the manner in which a car is driven.
17. Section 51A is described as “Driving without reasonable consideration” and is in the following terms:
18. Section 52 is headed “Careless driving”. It provides in subsection (1) that “a person shall not drive a vehicle in a public place without due care and attention”. Subsection (2) goes on:
(2) A person who contravenes subsection (1) commits an offence and -
(a) in case the contravention causes death or serious bodily harm to another person, he or she is liable on indictment to imprisonment for a term not exceeding 2 years or to a fine not exceeding €10,000 or to both, and
(b) in any other case, he or she is liable on summary conviction to a class A fine.
19. Section 53 as amended is here set out in full.
(1) A person shall not drive a vehicle in a public place in a manner (including speed) which having regard to all the circumstances of the case (including the condition of the vehicle, the nature, condition and use of the place and the amount of traffic which then actually is or might reasonably be expected then to be in it) is or is likely to be dangerous to the public.
(2) A person who contravenes subsection (1) commits an offence and -
(a) in case the contravention causes death or serious bodily harm to another person, he or she is liable on conviction on indictment to imprisonment for a term not exceeding 10 years or to a fine not exceeding €20,000 or to both, and
(b) in any other case, he or she is liable on summary conviction to a class A fine or to imprisonment for a term not exceeding 6 months or both.
(3) In a prosecution for an offence under this section or section 52, it is not a defence to show that the speed at which the accused person was driving was not in excess of a speed limit applying in relation to the vehicle or the road, whichever is the lower, under Part 2 of the Road Traffic Act 2004.
(4) Where, when a person is tried on indictment or summarily for an offence under this section, the jury, or, in the case of a summary trial, the District Court, is of the opinion that he or she had not committed an offence under this section but had committed an offence under section 52, the jury or court may find him or her guilty of an offence under section 52, and he or she may be sentenced accordingly.
20. It will be seen that the first two subsections follow the same format in both s.52 and 53. Subsection (1) creates the offence, and subs. (2) provides for mode of trial and penalty depending on the alleged consequences of the driving in question. It is also clear that careless driving is a lesser offence than that of dangerous driving, and that a jury may acquit of dangerous driving but convict of careless driving.
The law before 2011
21. Although the offence of furious driving causing bodily harm (s. 35 of the Offences Against the Person Act 1861) remained on the statute books until 2010, it does not appear to have been prosecuted in the modern era. Road traffic offences in their modern form date from the Road Traffic Act 1933 onwards, while the common law offence of manslaughter has also remained relevant.
22. Before s.52 was recast in its current form in 2011, criminal offences arising from the manner of driving could be categorised according the following hierarchy of seriousness.
Gross negligence manslaughter
23. As a general principle, an unlawful homicide is murder if the accused intended to kill or cause serious injury (s.4 of the Criminal Justice Act 1964). In some cases, despite the presence of that intention, murder will be reduced to manslaughter where the circumstances of the case reduce the criminal responsibility of an accused, for example in cases involving excessive self-defence or provocation. Gross negligence manslaughter (also described as criminal negligence manslaughter) differs from these cases in that the accused will not have had any such intent, and may not even have been reckless, in the sense that he or she may simply not have adverted to the risk brought about by his or her actions. As pointed out by Charleton, McDermott & Bolger in Criminal Law (Butterworths, Dublin, 1999), manslaughter was, classically, the only example in Irish criminal law where an accused could be found guilty of a serious criminal offence without the necessity of proof that he or she was aware that his or her conduct might bring about the external element of a crime. The essential element of the offence in this form is, as Charleton et al. say, “really bad negligence”, going beyond what might suffice for civil liability in a negligence action. The only mental element that must be shown is the intention to do the act that brought about the death. Recklessness - where the accused foresees the kind of harm that might be done but goes on to take the risk that it will be done - is not necessary, but would certainly ground a charge of manslaughter of this kind.
24. Until the enactment of legislation dealing with the offence of dangerous driving causing death, manslaughter was the only indictable option available in cases of dangerous driving where death had been caused. The leading authority on the topic of mens rea in this form of manslaughter (generally known as motor manslaughter) is the decision of the Court of Criminal Appeal in The People (AG) v. Dunleavy [1948] I.R. 95. This was an appeal against conviction and sentence in a motor manslaughter case and the issue was the trial judge’s directions to the jury as to the degree of negligence that had to be proved. The Court said (at p. 102):
“If the negligence proved is of a very high degree and of such a character that any reasonable driver, endowed with ordinary road sense and in full possession of his faculties, would realise, if he thought at all, that by driving in the manner which occasioned the fatality he was, without lawful excuse, incurring, in a high degree, the risk of causing substantial personal injury to others, the crime of manslaughter appears clearly to be established.”
25. The judgment goes on to refer to the fact that jurors would be aware that civil actions for damages, and prosecutions for minor traffic offences, were commonplace. It continues:
“Bearing this in mind, we are of opinion that whatever words are used by the trial judge in his charge, the jury should be given clearly to understand as follows:-
(a) That negligence in this connection means failure to observe such a course of conduct as experience shews to be necessary if, in the circumstances, the risk of injury to others is to be avoided, - failure to behave as a reasonable driver would.
(b) That they must be satisfied that negligence upon the part of the accused was responsible for the death in question.
(c) That there are different degrees of negligence, fraught with different legal consequences; that ordinary carelessness, while sufficient to justify a verdict for a plaintiff in an action for damages for personal injuries, or a conviction for a prosecution in the District Court for careless or inconsiderate driving, falls far short of what is required in a case of manslaughter; and that the higher degree of negligence which would justify a conviction on prosecution in the District Court for dangerous driving is not necessarily sufficient.
(d) That before they can convict of manslaughter, which is a felony and a very serious crime, they must be satisfied that the fatal negligence was of a very high degree; and was such as to involve, in a high degree, the risk or likelihood of substantial personal injury to others.”
26. It remains the case that a person may be charged with manslaughter arising out of grossly negligent driving.
Dangerous driving causing death; dangerous driving
27. The offence of dangerous driving was created by s.51 of the Road Traffic Act 1933. Under that provision it was triable summarily only. It was recast by s.53 of the Road Traffic Act 1961 in terms sufficiently similar to the amended version set out above not to require reproduction. There was, therefore, the possibility of trial on indictment where it was alleged that the driving had caused death or serious bodily harm.
28. In the 1962 case of People v. Quinlan ((1962) ILT & SJ 123 and (1963) 219) Judge Barra O Briain of the Circuit Court gave a jury what has become regarded as the classic direction in relation to dangerous driving, saying that it was
“driving in a manner which a reasonably prudent man, having regard to all the circumstances, would recognise as involving a direct, immediate and serious risk to the public”.
29. It is of crucial importance for the instant case to note the decision of the Supreme Court in Attorney General (Ward) v. Thornton [1964] I.R. 458. In that case a submission was made on behalf of the prosecution that s.53 created two offences, the offence of dangerous driving and the offence of dangerous driving causing death or serious bodily harm. This was rejected by the Court in the following passage from the judgment of Ó Dálaigh C.J. (at p. 483):
“This construction of the section cannot be reconciled with the words of the section. Sub-sect. 1 is a prohibition of dangerous driving. Sub-sect. 2 then provides that ‘a person who contravenes subsection (1) of this section shall be guilty of an offence,’ and, in the one case, where death or serious bodily harm has been caused, shall be liable, on conviction on indictment to certain penalties and, in any other case, shall be liable on summary conviction to certain lesser penalties. A single offence is created. What is dual - or more correctly what is alternative - is the mode of prosecution. The clear meaning to be derived from sub-ss. 1 and 2 is confirmed by the provision of sub-sect. 4. If a jury acquits of an offence under s.53 it may find the defendant guilty of an offence under s.52, that is to say, of careless driving, not, be it noted, of dangerous driving simpliciter…Our Act deliberately opts for two categories. The offence in the higher category, dangerous driving, is for the first time made an indictable offence but on the conditions specified, and it is logical for sub-s. 4 of s. 53 to name careless driving as the proper alternative verdict to an acquittal under sect. 53.”
30. As there was one offence only, with alternative modes of prosecution (i.e. summarily or on indictment), it was necessary for the prosecution to elect which to pursue. The accused in the case having pleaded guilty to a charge of dangerous driving in the District Court, it was not open to the prosecutor to seek a return for trial on a charge of dangerous driving causing death. Conversely, in Attorney General (O Maonaigh) v. Fitzgerald (dealt with in the same judgment as Thornton), it was held that it was not open to the prosecution to proceed in the District Court with a charge of dangerous driving after the accused had been acquitted in the Circuit Court of dangerous driving causing bodily harm.
31. The procedural effect of this decision was overtaken to some extent by the Criminal Procedure Act 1967, but the analysis of the relationship between dangerous driving and dangerous driving causing death stands. It was referred to by Hardiman J. in Grealis v. Director of Public Prosecutions [2001] 3 IR 144 for the purpose of supporting his own analysis of the statutory offence of assault.
Reckless endangerment
32. Under s. 13 of the Non- Fatal Offences Against the Person Act 1997 a person is guilty of an offence if he or she “intentionally or recklessly” engages in conduct which creates a substantial risk of death or serious harm to another. The maximum penalty after conviction on indictment is seven years imprisonment.
33. The section was analysed thoroughly by this Court in The People (DPP) v. Cagney [2008] 2 IR 111. It is clear that it should not be utilised “where the actions of the applicants as alleged by the prosecution would clearly constitute an established and recognised criminal offence” (per Hardiman J. at p. 122). In the context of driving offences it would appear to be relevant only to driving which does not cause harm. Driving which creates a substantial risk, and does in fact cause death or serious harm, is a more serious offence and may properly be prosecuted under s. 53 or as manslaughter.
Careless driving
34. Section 52 of the Road Traffic Act 1961 in its original form provided for a single offence, generally referred to as careless driving, which was committed if a person drove a vehicle in a public place “without due care and attention” or “without reasonable consideration for other persons using the place”. The penalty was a fine. That provision was amended in 1968, when the legislature reclassified those two concepts into separate offences - driving without reasonable consideration (s.51A) and driving without due care and attention (s.52). The latter was referred to as careless driving, and under the 1968 Act attracted a penalty of up to three months imprisonment.
35. In The People (DPP) v. O’Dwyer [2005] 3 I.R. 134 the appellant had been charged with dangerous driving causing death but convicted only of careless driving. He appealed against the sentence imposed. In considering the appropriate sentence on the facts of the case, the Court of Criminal Appeal referred to the distinction between dangerous and careless driving. At p. 148 Denham J. (as she then was), speaking on behalf of the Court, said:
“The concept of careless driving covers a wide spectrum of culpability ranging from the less serious to the more serious. It covers a mere momentary inattention, a more obvious carelessness, a more positive carelessness, bad cases of very careless driving falling below the standard of the reasonably competent driver and cases of repeat offending. However, since even a mere momentary inattention in the driving of a mechanically propelled vehicle can give rise to a wholly unexpected death, the court has always to define the degree of carelessness and therefore culpability of the driving.”
36. It is therefore apparent that careless driving does not require proof of the “direct, immediate and serious risk” to the public necessary to a charge of dangerous driving, but may involve far less culpable driving. In my view it may be described as an appreciable falling below the standard of care and attention expected of a reasonably competent driver, creating a risk of harm to others that the reasonably competent driver would recognise and avoid.
Inconsiderate driving
37. Section 51A is set out above. The offence is punishable by a fine and penalty points. Pierse describes this offence as “nuisance” driving, as opposed to “bad” or careless driving and dangerous driving. He suggests that it covers behaviour such as negligently splashing a person on the footpath. Clearly, it does not involve the creation of any particular risk to the public but might be described as driving that impinges to an unreasonable extent on the convenience and peace of mind of other persons.
The Law Reform Commission Report
38. The Law Reform Commission dealt with the topic of driving-related deaths in its 2008 report on Homicide: Murder and Involuntary Manslaughter. It observed that the offence of dangerous driving causing death had been introduced because of a perceived reluctance on the part of juries to convict of an offence as serious as manslaughter.
39. The Commission considered two radical options. The first was a suggestion that all deaths caused by negligent driving should be removed from the scope of the offence of manslaughter. The second was the complete opposite - the abolition of the statutory offences, with all cases of bad driving causing death to be prosecuted as manslaughter. Ultimately, the recommendation of the Commission was largely in favour of the status quo with the notable exception of death caused by careless driving. Here, it recommended the amendment of s.52, to create the offence of careless driving causing death, so that judges could properly take the death into account when imposing sentence. It further recommended that this should be prosecuted on indictment. There is no suggestion in the report that this would imply the creation of an offence requiring proof of recklessness or intention.
40. It seems reasonable to infer that the amendment to s.52 in the Act of 2011 came about as a result of this proposal.
Discussion
41. In my view the decision of the Court of Appeal in this case, while correct in the result, was mistaken in its analysis. In the first instance, it did not appear to recognise that the offence in question occupies a defined position in a range of driving offences, and in this respect it is perhaps unfortunate that the matter was not presented by reference to the overall context of the range of driving offences discussed above. This may have contributed to the fact that the finding of the court as to mens rea could result in the imposition of a higher requirement in respect of careless driving causing death than exists for gross negligence manslaughter or for dangerous driving causing death. The Court seems not to have taken these latter offences into account in expressing the view that every indictable offence requires either intention or recklessness.
42. The Court of Appeal seems to have accepted that careless driving causing death is a new offence or, in Pierse’s words, a “new version” of careless driving. It seems likely that Attorney General v. Thornton was not opened to the Court, since the analysis of the legislation dealing with dangerous driving causing death in that judgment is entirely on all fours with the issue in this case. Careless driving causing death is not a new offence as such. It is the result of making the existing offence of careless driving prosecutable on indictment, at the election of the prosecutor, where it can be proved that death was a consequence of the driving. The wording of the section, in my view, is entirely consistent with this - the ingredients of the offence are set out in s.52(1), while s.52(2) provides that it can be prosecuted on indictment if the contravention of s.52(1) causes death or serious bodily harm. There is no scope within the section for differentiating between the necessary proofs in a summary trial and a trial on indictment other than in relation to, obviously, the need to prove causation of death or serious bodily harm in the latter. There is nothing to suggest that the previous law relating to the offence of careless driving has become inapplicable.
43. There is a continuum of offences that may arise out of a case of bad driving, from gross negligence manslaughter at the most serious end to inconsiderate driving at the lowest. The constituent elements of each offence are set out in the legislation and the authorities. The dividing line between the offences may be difficult to describe precisely - that is because all of them depend so heavily on the facts of individual cases - but certain propositions are clear.
44. The concept of intention has always had a very limited role in cases of bad driving. This, presumably, is because of the ubiquity of the car in modern society, the danger to members of the public caused by bad driving and the fact that accidents are rarely intentional on anyone’s part. A crash that causes physical injury will generally not constitute an assault.
45. There must, certainly, be an intention to drive and to that extent an event such as driving in a state of automatism, or an epileptic seizure (subject perhaps to questions of foreseeability), would be a potential defence. So might the intervention of some wholly unforeseeable event such as the sudden emergence of another vehicle on the wrong side of the road, although one might consider that the standard of the reasonably competent or prudent driver would not impose liability in such circumstances. But there is no requirement of intention in relation to the consequences of the driving - if intent to cause death or serious injury could be proved, the offence of murder would be established.
46. Recklessness arises where the accused knowingly takes an unjustifiable risk. This is not only difficult to reconcile with an offence that essentially consists of failure to pay sufficient attention or to take due care - it would, if established, tend rather to support a charge of manslaughter or dangerous driving causing death or serious bodily harm.
47. Dangerous driving, whether causing death or not, entails a lower degree of negligence than gross negligence manslaughter. It is, as Judge O Briain said in 1962, driving that a reasonably prudent driver would, in the circumstances, recognise as causing a direct, immediate and serious risk of harm to the public. There is therefore no requirement to prove that the accused adverted to that risk - the test is objective.
48. Careless driving comes below dangerous driving on the continuum. The section makes it an offence to drive “without due care and attention”. That wording in itself makes it impossible to “read in” a necessity to prove intention or recklessness - the core ingredient of the offence is a lack of the care and attention that a reasonably prudent driver would give when driving in a public place, having regard to the circumstances as they actually exist. It is probably not desirable to attempt to define the matter further, since everything will depend on the factual circumstances. The degree of negligence is lower than that involved in dangerous driving, since the driving does not, for the purposes of this offence, have to create the “direct, immediate and serious” risk that characterises dangerous driving.
49. This does not mean that a “blameless” driver is liable to be convicted and punished. In the first place, a person who drives without due care and attention in a public place is not properly described as “blameless” if harm is caused as a consequence of such driving. On the other hand, a driver may be involved in an accident, and may even have caused that accident, and yet be held blameless if he or she met the standard of the reasonably competent or prudent driver in the circumstances. It is also essential to stress that the fact that a death or serious bodily harm results does not mean that a conviction for careless driving is the same as a conviction for dangerous driving causing the same consequence. The risk created by the careless driver is less than that created by the dangerous driver, and the careless driver is therefore less blameworthy in respect of the result. The question of the appropriate sentence remains a matter for the court, and while it is clear that the consequence of the offence must be taken into consideration, it does not determine the punishment to the exclusion of other relevant factors.
50. I have read in draft the judgment of Clarke J. I agree with his views on the approach to sentencing in cases of this nature. However, I would prefer to expressly reserve my position in respect of any possible extension of criminal liability for negligence in other areas, having regard to the very different issues of both principle and policy that might arise.
51. In the circumstances I would allow the appeal.
