Scottish High Court of Justiciary Decisons

At advising, on 19 March 1998, the opinion of the court was delivered by the Lord Justice-General (Rodger).

OPINION OF THE COURT—The appellant is Fraser Symington McDowall, who was convicted at the High Court at Stirling of three charges. The first was a contravention of sec 8(d) of the Misuse of Drugs Act 1971, knowingly permitting his house to be used for the purpose of smoking cannabis resin. He was sentenced to 12 months imprisonment on that charge. He was also convicted of culpable homicide by driving, in respect of which he was sentenced to eight years imprisonment. He was further convicted of failing to stop and report the accident, failing to contact the emergency services, and fleeing from the scene, with utter disregard to the well-being of the victims, all with the intent of defeating the ends of justice. On that charge he was sentenced to two years imprisonment. All the sentences were to run concurrently. The appellant has appealed his conviction on the charge of culpable homicide and also against the sentence of eight years imprisonment in respect of that charge.

The appellant originally lodged three grounds of appeal: first, that there was insufficient evidence to entitle the jury to convict of culpable homicide; secondly, that the trial judge erred in directing the jury that they could take into account, in assessing the quality of the driving at the material time, the evidence about his driving prior to that point; and, thirdly, that the trial judge erred in directing the jury that they were entitled to take into account, for the same purpose, the evidence as to the accused's actings subsequent to the collision. The court allowed a further ground of appeal to be received. This was to the effect that the trial judge misdirected the jury by telling them that the Crown had chosen to libel a charge of culpable homicide and that there was no other charge which the jury could consider. He should, it is said, have directed the jury that they were entitled to return a verdict under sec 2 of the Road Traffic Act 1988, since that was an alternative implied by law.

We adopt the narrative of events which the trial judge gives in his report to this court. On 11 May 1996 a party was arranged for the appellant's wife's birthday. It was attended by about 30 people and it went on all night. Sometime after seven o'clock in the morning two of the guests decided that they wanted more beer and cigarettes and the appellant offered to drive them to a shop to obtain them. They went first to a shop at Fauldhouse, but it was not open and so they decided to go to West Calder. The appellant's car was a Toyota Supra Turbo and, as such, powerful. At about a quarter to eight the car was on the A706 road and was being driven at such a speed that a lady had to jump aside to avoid being struck by it. The car was driven southwards on the northbound carriageway and at the Breich crossroads the appellant drove it through a traffic signal at high speed. At the crossroads the appellant turned left into the A71 road and travelled in an easterly direction. The evidence was that both before and through the village of Breich, which was only some quarter of a mile from the junction, he drove at a speed in excess of 80 miles per hour and on the westbound carriageway. The speed limit in the village was 40 miles per hour.

After leaving Breich, the road returns to a 60-mile-per-hour speed limit. It is a relatively straight road although there are some undulations in it. The evidence was, however, that a driver in the appellant's position would be able to see traffic coming from the east for a considerable distance. As the occupants of the other cars involved were either killed or too severely injured to give evidence, there was only a limited amount of evidence, some of it based on reconstruction, as to exactly what happened. It appears that the appellant, who had regained his own side of the carriageway, pulled out in order to overtake a Vauxhall Corsa driven by Mr Thomas McCallum. He then noticed, although from the evidence which the jury accepted it must have been observable for a considerable time beforehand, an oncoming car, namely a Ford Escort, then being driven by Mrs Sheena Young. The appellant broke off his overtaking manoeuvre and pulled in behind the Corsa. His speed and distance from the Corsa were such, however, that he could not avoid hitting it. The front offside of the appellant's car hit the rear near side corner of the Corsa. It was calculated that immediately prior to the collision with the Corsa the appellant's car was travelling at 59 miles per hour. There was also evidence from the appellant and his passengers that he had braked before the impact and the expert evidence was that, for every second of braking, his speed would have been reduced by 13 miles per hour. As a result of the impact, the Corsa was propelled in an arc across the road to the other carriageway and into the path of the oncoming Escort, which collided with it. The Corsa went on fire and was consumed by it. The front of the Escort also went on fire but the fire did not spread from there. Mrs Young was killed, as were Mr and Mrs McCallum. The pathological evidence was that the three deceased persons would have been killed instantly and in particular Mr and Mrs McCallum would have died before being affected by the fire.

After the appellant's car hit the rear of the Corsa, it went on its inside, scraping against the near side pavement as it did so, and carried on. It was seriously damaged at its offside front and the bonnet was left in an upright position. The appellant, however, did not stop, or if he did, did so only briefly and carried on slowly along the A71 to its junction with a road leading to the village of Addiewell. He turned down the road to Addiewell and drove his car into a lane off that road. The appellant and his two passengers then walked into the village of Addiewell. The two passengers separated from the appellant and eventually went to the house of another lady in the village. The appellant said that he ended up, he did not know how, at the Harthill service station on the M8 road and from there he went to his sister's house in Glasgow. Later that day he heard of the dreadful outcome of the accident from his wife and, with the assistance of his brother, he contacted his solicitor.

It is convenient to deal first with the second ground of appeal relating to the appellant's driving before the time of the accident. The trial judge directed the jury that the question which they required to decide in relation to culpable homicide was whether it had been proved ‘that the quality of the accused's driving at the material time was such as to show a complete disregard for any potential dangers which might result, a complete disregard of what the consequences of the driving may be so far as the public are concerned.’ Counsel accepted that this was a proper direction.

So far as the second ground of appeal is concerned, the issue is, therefore, whether it was relevant for the jury, when considering whether at the material time the appellant was showing a complete disregard for any potential dangers and for the consequences for the public, to take account of his driving before this point. Counsel acknowledged that whether particular earlier episodes of driving can be taken into account by a jury when considering such an issue must be a matter of degree, depending on the circumstances of the case. So, as he put it, an incident observed 40 miles before the locus of the culpable homicide would probably be irrelevant, whereas an episode a couple of miles before would probably be relevant. Here we are satisfied that the aspects of the appellant's driving prior to the accident as narrated by the trial judge, particularly his driving at high speed and on the wrong side of the road, were material which it was relevant for the jury to take into account. They were in effect part of a course of driving which continued up to the moment of the crash. We therefore reject the second ground of appeal.

The third ground of appeal relates to the appellant's actings after the crash. The trial judge directed the jury that: ‘It may also be, it's a matter for you, it may also be that the evidence in relation to its actions in the period shortly after the accident have a bearing on this matter. These actions are the subject of charge (7), but, as I told you earlier, if the evidence in relation to them has a bearing on charge (6), you can use that evidence for the purposes of charge (6). So, as I say, you are entitled to consider this other evidence in considering whether his driving at the material time has been proved beyond reasonable doubt to be such as to meet the standard for culpable homicide. What you make of that other evidence is of course entirely a matter for you, but you are entitled to have regard to it for those purposes if you think it appropriate, if it has a bearing on the driving at the material time.’

No criticism was made of the form of these directions, assuming them to be correct in law; it was simply said that they constituted a misdirection in law. Counsel argued that, while the appellant's driving after the accident might have been relevant if, say, he had continued to drive at high speed, the fact was that, following the accident, the appellant had driven slowly. No adverse inference could be drawn from that as to the appellant's state of mind before the impact. Nor was it relevant that the appellant had run away: the fact that someone ran away after a killing could not tell the jury anything about his state of mind at the time of the killing so as to allow them to distinguish, say, between murder and culpable homicide. The same applied here.

In this case what the jury had to consider was whether, at the time of the crash, the appellant was showing a complete disregard of any potential dangers and of what the consequences of his driving might be so far as the public were concerned. By their verdict on charge (7) the jury showed that they considered that, after the accident, he acted ‘with utter disregard for the well-being’ of the victims of the accident. In our view, the fact that immediately after the accident the appellant showed utter disregard for the victims and the fact that he drove with the bonnet in an upright position are factors which the jury were entitled to take into account, along with the evidence as to his driving in the period leading up to the accident, when assessing his state of mind at the time of the accident. In particular, they are matters which the jury could consider when deciding whether at the time of the accident the appellant showed complete disregard of potential dangers and of the consequences of his driving for the public. We therefore reject the third ground of appeal.

We are satisfied that there was sufficient in the evidence of the quality of the appellant's driving before the accident and in the evidence of his actings after the accident to entitle the jury to return a verdict of culpable homicide. We therefore reject the first ground of appeal.

That leaves the supplementary ground of appeal. The appellant argues that the trial judge should have directed the jury that it was open to them to return a verdict of guilty of dangerous driving under sec 2 of the Road Traffic Act 1988. At the hearing before us the advocate-depute accepted that, by virtue of sec 23(1) of the Road Traffic Offenders Act 1988, as a matter of law, it was open to the jury in the trial, which took place on an indictment containing a charge of culpable homicide, to return a verdict of dangerous driving under sec 2 of the Road Traffic Act. Nor indeed is that disputed by the trial judge. In his supplementary report, however, he explains the basis upon which the trial was conducted.

At the end of the Crown case counsel for the appellant made a submission that there was no case to answer on the charge of culpable homicide. Doubtless in order to focus the discussion on the point that the issue for the judge was whether the evidence was sufficient for the jury to return a verdict of culpable homicide, counsel [who did not appear in the appeal] ‘made it clear that in the context of this case the possible alternative verdict of guilty of sec 2 of the Road Traffic Act 1988 made no sense. The advocate-depute intervened at that stage to make it clear that he would not be asking for any such alternative verdict. Perhaps I may quote my note verbatim ‘"Mr Jackson [counsel at the trial]: Charge 6—one charge of culp. hom. No alternative verdict open—sometimes can have s 2—but that doesn't make sense.

‘"Advocate-depute, intervening: ‘I will not be asking for any alternative.’"

The submission of no case to answer having been rejected, the trial proceeded. In due course the advocate-depute and counsel addressed the jury, both making it clear in their speeches that the issue for the jury was whether the appellant was guilty of culpable homicide and nothing else. It was against this background that the trial judge directed the jury inter alia that: ‘As I indicated a moment ago, [the Crown] could have brought charges under the Road Traffic Act, either instead of the culpable homicide charge or as an alternative to the culpable homicide charge, leaving you with the decision as to which alternative, if any, was proved. But here the Crown have not chosen to do that; they have chosen to peril their case on culpable homicide alone. They must, therefore, stand, or fall, by the requirements of that charge. If they fall, then obviously you must acquit and there is no other charge in relation to the accused's driving at the time of the accident.’

Counsel submitted that, notwithstanding what counsel and the advocate-depute had said during the submission of no case to answer and notwithstanding what they had said in their speeches to the jury, the trial judge required to direct the jury that they could return a verdict in terms of sec 2 of the Road Traffic Act.

Such a submission is wholly without merit in this case. In the first place, the verdict of the jury shows that they accepted not only that the appellant drove with the necessary disregard for potential dangers and for members of the public, but also that his driving caused the death of the deceased persons in the other cars. Section 2 of the Road Traffic Act comes into play only where the jury hold that driving, though dangerous, did not cause the death which occurred. As counsel very properly argued in the course of his no case to answer submission, the facts of this case were such that a verdict under sec 2 would not have made sense, since there was no doubt that the appellant's driving caused the deaths. What was in issue was the quality of that driving and the appellant's stage of mind. In these circumstances it would have been positively unhelpful to the jury, in considering what were the true issues, to have their attention diverted to considering the position under sec 2 of the Road Traffic Act, which could never have applied in this case. Indeed, we would go further and say that, if the trial judge had given the direction for which counsel now contends, this could well have been criticised on the ground that it had disturbed the balance of the trial by introducing an irrelevant point upon which the jury had not been addressed by either the Crown or the defence. We therefore have no hesitation in rejecting this ground of appeal also.

For these reasons we refuse the appeal against conviction.