McKenzie v R [2008] EWCA Crim 758 (11 April 2008)

Neutral Citation Number: [2008] EWCA Crim 758 Case No: 200702277 C4 IN THE SUPREME COURT OF JUDICATURE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM EXETER CROWN COURT His Honour Judge McKintosh T2006 7171 Royal Courts of Justice Strand, London, WC2A 2LL 11/04/2008 B e f o r e : LORD JUSTICE TOULSON MR JUSTICE PENRY-DAVEY and MR JUSTICE SIMON ____________________ Between: Mark Anthony Robert McKenzie Appellant - and - R Respondent ____________________ Mr D Sapiecha for the Appellant Mr N Gerasimidis for the Respondent Hearing dates: 12 March 2008 ____________________ HTML VERSION OF JUDGMENT ____________________ Crown Copyright © Lord Justice Toulson: Thursday 27 April 2006 was a bright spring day. Shortly before 8am Police Sergeant Paul Hutchinson was travelling to work on his motorcycle. He was aged 36. His route took him southwards along the B3180 Exmouth Road. The road surface was dry and visibility was good, but the road has some bends and rises. He came to a junction called Tipton Cross. This is a staggered crossroads. From the viewpoint of traffic travelling in his direction there was a left-hand turning into Oak Road and just beyond it a right-hand turning. Before he reached the junction there was a right-hand bend and brow of a rise, which limited his visibility to oncoming traffic to about 100 metres from the centre of the junction. There were large trees on either side of the road, some in leaf, and the morning sun would have created dappled shading across the road. The speed limit at the junction was 60mph. Road markings showed that the B3180 had priority. Mr Hutchinson was intending to carry straight on. Travelling in the opposite direction was the appellant. He was driving a blue Ford Escort van. He turned right at the junction into Oak Lane across Mr Hutchinson's line of travel. The motorcycle hit the nearside of the Ford Escort and Mr Hutchinson was thrown from it suffering fatal injuries. There were three eye witnesses. Mr Michael Kellow was driving a green Mitsubishi Shogun behind the appellant's Ford Escort. Mr Kellow was a former bank manager who ran a window cleaning business. Mr Neil Blackmore was driving a Seat Leon. He was behind the Mitsubishi. Mr Blackmore was a landscape architect. The third eye witness was the appellant. The accounts of the independent witnesses and of the appellant were very different. According to Mr Kellow's and Mr Blackmore's witness statements and evidence at the trial, the appellant pulled right across Mr Hutchinson's path without warning. He did not use his indicator and they did not see brake lights come on. They only saw the motorcycle momentarily before the accident. The appellant's account in interview by the police and in his evidence was that as he approached the junction he indicated right and slowed to a stop. He saw the motorcyclist come over the brow of the hill just about as he was stopping. He judged that he could turn without causing any risk to the motorcyclist and began to turn, but as he was completing his turn he felt a bang against the side of the van. The appellant was charged with causing the death of Mr Hutchinson by dangerous driving. At Exeter Crown Court he pleaded guilty before the jury to careless driving but denied that he was guilty of dangerous driving. The issue was stark and simple. If the evidence of the independent eye witnesses was correct, the appellant had in reality no defence. If the jury judged that the appellant's account was correct or might be correct, the prosecution's case was more difficult. The jury might have doubt whether his conduct was so far below the standards of a competent and careful driver as to amount to dangerous driving. On the evidence, the case against the appellant was formidable. Mr Kellow and Mr Blackmore were not only independent witnesses but they gave detailed statements within days after the accident when the events were fresh in their minds. Their statements were not identical but were consistent on the important points and there was no suggestion that either of them influenced the other. Furthermore there were obvious difficulties in the appellant's account of the accident, if the motorcyclist had been as far away as the appellant claimed when the appellant turned right. The motorcyclist would not only have had to cover the distance in a very short time but he must also have inexplicably failed to see the van crossing in front of him. At the trial both parties called experts, who agreed that the motorcycle was upright with its front wheel still rotating at the time when it hit the van and that the motorcyclist could not have put on emergency braking. It was also common ground from forensic examination of the scene that in turning right the appellant had significantly cut the corner, which would be surprising if he had pulled up and stopped at the junction as he claimed. The appellant was convicted and now appeals against his conviction with leave of the full court. The appeal arises because, despite the simplicity of the issue and the strength of the evidence, the prosecution sought to fortify its case by introducing evidence of past bad driving on the part of the appellant under the bad character provisions of the Criminal Justice Act 2003. The trial began on Monday 26 March 2007. The trial judge was His Honour Judge McKintosh. On the Thursday of the previous week the prosecution applied to the resident judge, His Honour Judge Cottle, for leave to adduce evidence from no fewer than 10 witnesses about past bad driving on the part of the appellant. The criticisms made by them were a mixture of the general and the particular. None of the particular incidents which were alleged had resulted in a prosecution and a number of them were some years old. In the course of the argument the judge rightly said that the trial should not be turned into a trial about how the appellant had driven on previous occasions. But he concluded that the prosecution should be entitled to adduce evidence of previous examples which were "indicative of a propensity to drive in a chancy way" as distinct, for example, from allegations of simple speeding (which he considered irrelevant since there was no allegation that the appellant was driving at an excessive speed at the time of the fatal accident). He did not give a formal judgment but the effect as understood by the parties was to permit the prosecution to call 2 witnesses as to his previous driving, Jane Wakefield and Ellen Stokes. Each gave evidence at the trial. Miss Wakefield was a driving instructor. She had given the appellant 4 or 5 driving lessons in 2001, i.e. 5 years before the accident. He would then have been aged 20. She described his driving as generally aggressive and over-confident, and she said that he used to approach junctions too fast. She accepted in cross-examination that she had never thought it necessary to stop the lesson and take over driving. She also gave evidence of an event in September or October 2005 when she said that she noticed him driving his van and saw him join a major road at a difficult junction without properly slowing down or looking. The appellant denied that any such incident occurred and there was an identification issue which led to the judge giving a Turnbull direction. Miss Stokes had been the appellant's girlfriend until about 3 years before the accident. She gave evidence of an occasion when the appellant overtook a line of about 12 vehicles following a tractor, cut in front of the tractor and immediately turned sharp left, much to the tractor driver's annoyance. The appellant's version of the incident was that there were fewer cars behind the tractor and that he managed the turn quite safely. Miss Stokes also said that he used habitually to drive too fast when returning to his home, which was at the top of a long steep hill with a bend and cars parked on both sides. She said that the speed limit was 30mph limit and that at the top there was only room for one car, but that the defendant used to drive at 50mph and that there would have been a collision if anything had been coming the other way. She estimated that this must have happened about 100 times. In cross-examination she accepted that his speed might have been 40mph rather than 50mph, but it was certainly more than 30mph. She also agreed that if she had felt that his driving was dangerous she would not have travelled with him. At the hearing of the appeal Mr Sapiecha submitted that the evidence of Miss Wakefield and Miss Stokes was inadmissible and prejudicial to a fair trial. He reminded the court that the statutory definition of dangerous driving in s 2A of the Road Traffic Act 1988 (that a person is to be regarded as driving dangerously if the way he drives falls far below what would be expected of a competent and careful driver, and it would be obvious to a competent and careful driver that driving in that way would be dangerous) sets an objective test: DPP v Milton [2006] RTR 21 . He submitted that in deciding whether the appellant's manoeuvre in turning right at Tipton Cross on the morning of the fatal accident satisfied that test it was irrelevant how poor his driving may have been on other occasions and in other circumstances. To entertain allegations of past bad driving was both a distraction and unfair. He drew a distinction between the present case and offences where the very nature of the enterprise is criminal, such as theft. Driving is not an unlawful enterprise in itself, and, although motorists may vary in their usual degree of skill and care, it is characteristic of the motoring population at large from time to time to fall below the proper standard. It is therefore dangerous to use allegations of past bad driving as an aid in deciding whether a motorist was guilty of dangerous driving on a later occasion. The appellant plainly thought that he could make his turn without causing an accident. He was plainly wrong. But whether his conduct on that occasion satisfied the statutory test of dangerous driving depended entirely on the evidence regarding his driving on that occasion. Mr Sapiecha also criticised the summing up. He submitted that the judge placed too much emphasis on the bad character evidence and failed sufficiently to direct the jury that even if they were satisfied that the appellant had shown a past tendency to drive in an aggressive way, they must consider separately whether this made it more likely that his driving at the material time satisfied the statutory test. Mr Gerasimidis submitted on behalf of the prosecution that the evidence was admissible under sections 101(1)(d) and 103 of the 2003 Act. The jury had to consider sharply different versions of the facts. If the factual version presented by the prosecution was correct, this was a piece of aggressive and impatient driving which went well beyond a mere error of judgment and amounted to dangerous risk taking. In considering whether that version of the facts was correct, it was relevant that the appellant had on past occasions displayed a tendency to drive in an aggressive and impatient manner. It provided some additional support for the reliability of the eye witnesses called by the prosecution, just as conversely it would have provided some support for the appellant if he had been able to show that he had an impeccable driving record and that the conduct alleged by the prosecution would have been out of character for him. Mr Gerasimidis also submitted that the summing up was fair and the conviction was not unsafe. Bad character is defined for the purposes of the Act as evidence of misconduct or a disposition towards misconduct, and misconduct is defined as the commission of an offence or other reprehensible behaviour: ss98 and 112. Section 101(1)(d) makes evidence of the defendant's bad character admissible if it is relevant to an important matter in issue between the defendant and the prosecution, subject to the provisions of s101(3) and (4). Those subsections provide that the court must not admit evidence under subsection (1)(d) if, on an application by the defendant to exclude it, it appears to the court that the admission of the evidence would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it; and on such an application the court must have regard, in a particular, to the length of time between the matters to which the evidence relates and the matters which form the subject of the offence charged. Section 101(1)(d) is supplemented by s103, which provides in part as follows: "(1) For the purposes of section 101(1)(d) the matters in issue between the defendant and the prosecution include – (a) the question whether the defendant has a propensity to commit offences of the kind with which he is charged, except where his having such a propensity makes it no more likely that he is guilty of the offence… (2) Where subsection (1)(a) applies, a defendant's propensity to commit offences of the kind with which he is charged may (without prejudice to any other way of doing so) be established by evidence that he has been convicted of- (a) an offence of the same description as the one with which he is charged or (b) an offence of the same category as the one with which he is charged." Offences are of the same category for the purposes of the section if they belong to the same category of offences prescribed by an order made by the Secretary of State: s103(4)(b). No such order has been made in relation to road traffic offences and in any case the prosecution was not relying on evidence of past convictions. So the only relevance of s103(2) is in its recognition that a defendants' propensity to commit offences of the kind with which he is charged may be established by evidence other than previous convictions. Hanson [2005] 2 Cr App R 21 , [2005] EWCA Crim 824 , is the leading authority on the admission of evidence to show that a defendant has a propensity to commit offences of the kind with which he is charged. The court emphasised that the judgment was not intended to be a comprehensive treatise on the subject and that its primary focus was on the issues raised in the cases which the court was considering. With that qualification, the court observed at para 7: "Where propensity to commit the offence is relied upon there are thus essentially three questions to be considered; 1. Does the history of conviction(s) establish a propensity to commit offences of the kind charged? 2. Does that propensity make it more likely that the defendant committed the offence charged? 3. Is it unjust to rely on the conviction(s) of the same description or category; and, in any event, will the proceedings be unfair if they are admitted?" In formulating those criteria the court referred to convictions, because the evidence of bad character in the cases which it was considering consisted of convictions which fell within s103(2). Where the prosecution seeks to prove propensity to commit offences by evidence other than previous convictions, the application of those criteria may in the nature of things present particular difficulties, and the judge may also have to consider whether the admission of the evidence would result in the trial becoming unnecessarily and undesirably complex even if not unfair. In the first place, where there has been a conviction, it follows that the defendant's guilt must have been established either by his own admission or by evidence which satisfied the court to the requisite standard after a criminal investigation and trial. Section 103(2) enables evidence of the conviction to be given as evidence of guilt and thus of propensity to commit offences of such a kind (subject to the other provisions of the Act). In short, the conviction operates as launch pad for establishing propensity. Without such a launch pad, proof of the previous alleged misconduct requires the trial of a collateral or satellite issue as part of the trial of the defendant for the offence with which he is charged. Trials of collateral issues have the dangers not only of adding to the length and cost of the trial, but of complicating the issues which the jury has to decide and taking the focus away from the most important issue or issues. There is a further potential catch. In Hanson [2005] 2 Cr App R 21 , [2005] EWCA Crim 824 the court observed that there was no minimum number of events necessary to demonstrate a propensity to commit offences of the kind with which a person is charged, but that the fewer the number of previous convictions the weaker is likely to be the evidence of propensity. A single previous conviction is unlikely to show propensity unless it shows a tendency to unusual behaviour or where the particular circumstances demonstrate probative force in relation to the offence charged. The same comments apply to allegations of past misconduct, but here a dilemma arises. If the allegations of previous misconduct are few in number, they may well fail to show propensity even if they are true, but the greater the plethora of collateral allegations, the greater the risk of the trial losing its proper focus. It has also to be borne in mind that if the allegations of prior misconduct have not given rise to any previous investigation, the evidence is liable to be stale and incomplete. The defendant may also be prejudiced in trying to meet it, for lapse of time and inability to pinpoint details (e.g. of time and place) may result in such allegations being hard to repel and the jury may be left thinking that there is no smoke without fire. For all these reasons applications of the kind made by the prosecution in the present case need to be approached with considerable caution. If a judge decides to admit such evidence, he must also consider how to deal with it in his summing up in a way which is fair and does not give undue prominence to the bad character evidence. In our judgment the evidence of Miss Wakefield about the appellant being generally over confident and aggressive during his driving lessons was inadmissible. It was of a very general character. It was based on her recollection of things that happened 4 or 5 years prior to the fatal accident at a time when the appellant was a 20 year old learner driver. Her evidence about the incident in September or October 2005 was much more recent and was specific (except as to date and time), although it gave rise to the complication that there was an identification issue which led the judge having to give a Turnbull direction. It was also confined to a single incident and could not in itself be fairly be taken to establish a propensity to drive aggressively and take dangerous chances. However, it did not stand alone, because there was also the evidence of Miss Stokes. She travelled with the appellant on numerous occasions and her evidence was reasonably specific although it related to a period which ended about 3 years prior to the accident. Many judges would have taken the view that even if such evidence was technically capable of being admitted under the bad character provisions of the Act, they would not admit it because of the risk of the trial and the summing up becoming unduly complicated by collateral issues. However, we do not consider that it can be said to have been wrong in principle or perverse to conclude that the evidence could be regarded as tending to show that the appellant had a propensity to drive in an aggressive and impatient manner which involved taking dangerous risks (so as to fall within s 103) and that the evidence was relevant to an important matter in issue between the parties, i.e. whether the prosecution's version of the facts resulting in the fatal accident was to be accepted (so as to be admissible under s101(1)(d) ). Nor do we think that a court was bound to conclude that the admission of the evidence would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it (under s101(3) ). In reaching these conclusions we are applying the principle established by this court in Hanson [2005] 2 Cr App R 21 , [2005] EWCA Crim 824 that it will not interfere with a ruling as to admissibility of evidence of a defendant's bad character unless the judge's judgment as to the capacity of prior events to establish propensity is plainly wrong or discretion has been exercised unreasonably in the Wednesbury sense. We are not holding out the decision as an example to be commended. On the contrary, there is much to be said for trial judges doing all in their power to ensure that cases are tightly focused on the essential issues. In his summing up the judge dealt with the bad character evidence in four stages. First, he gave them a Turnbull direction relating to the evidence of Miss Wakefield about the incident in September or October 2005 when the appellant allegedly drove badly at a road junction. He continued by giving the jury a general direction about the evidence of the appellant's bad driving character, during which he reminded them of the substance of Miss Wakefield's and Miss Stokes's evidence. Thirdly, in the course of his review of the evidence for the prosecution he went through their evidence again in greater detail. Fourthly, he came back to the subject when reminding the jury of the evidence of the appellant. In his general direction he said as follows: "Miss Wakefield and Miss Stokes were called to give evidence because the prosecution say it is evidence of previous misconduct by the defendant in relation to his driving. They say that it is evidence in this context of his bad driving character, and it is important that you should understand why you have heard this evidence, and how you may use it. You may not simply convict him if you are satisfied that these were previous incidents of misconduct and you accept either or both of those; you may not simply convict him because he, you find, has misconducted himself as either or both of them say. The reason it has been admitted is that it may help you to resolve an issue which has arisen between the defendant and the prosecution, the issue being that this shows a lack of regard for other road users, an aggressive approach to driving, a propensity to do this sort thing – to press on regardless." He then summarised their evidence and continued: "If you were to decide that either, or both, of those ladies' evidence has convinced you, and you are satisfied that what they said was right, then the prosecution say that that may show a propensity to drive in that way, as I have said; but it is for you to decide whether they show a propensity or not, and you alone. If you were to decide that there was a propensity, or there is a propensity, then you must not conclude simply by that the defendant is guilty of this offence, or untruthful, merely because of that evidence. It is for you to decide if you so do, whether that evidence, or part of it, shows a propensity, taking into account of course what the defendant says about it. If you find that that evidence, or part of it, does show a propensity, you may take it into account, but it is only one relevant factor, and you have to assess it and its significance, in the light of all the other evidence. Because what, at the end of the day, you have to decide is what happened on this morning at this junction." This direction was closely modelled on the Judicial Studies Board's specimen directions. We have three concerns about the summing up on this issue on the particular facts of this case. First, although the central part of the general direction can be regarded as ticking all the boxes in the Judicial Studies Board's specimen directions, we doubt that as expressed it would have been particularly clear or helpful to the jury. It would be harsh to criticise the judge for following the specimen directions, but the difficulties which can arise from doing so and the question how best the jury can be assisted to approach bad character evidence on the facts of any particular case were addressed by this court in Campbell [2007] EWCA Crim 1472 (a judgment delivered after the summing up in the present case). Secondly, although the judge warned the jury in general terms that if they accepted the evidence of Miss Wakefield and Miss Stokes it was for them to decide whether this evidence showed "a propensity", and that even if it did show "a propensity" they must not conclude simply that the defendant was guilty, he did not relate those warnings to the evidence. If this bad character evidence was to be admitted, there were particular reasons for the jury to be careful how they used it, but the judge did not address that subject. Thirdly, it is unfortunate that the subject of bad character evidence took up as much of the summing up as it did and cropped up as often as it did. The transcript of the summing up runs to 36 pages, of which in all a quarter was taken up with bad character evidence. It should have been capable of being dealt with much more succinctly. Without attempting to be definitive, but simply by way of a general indication, on the facts of this case the points which needed to be covered were these. The prosecution had called evidence about his alleged bad driving on previous occasions in order to try to establish that he was a person who characteristically took dangerous risks, because it was the prosecution's case that the fatal accident was caused by him taking a dangerous risk, and the evidence that he did so was more likely to be correct if such behaviour was characteristic of him. But the jury had to be very cautious before using evidence about his driving on other occasions in deciding whether he was guilty of the offence charged for several reasons. First, they had to be sure that the appellant had taken dangerous risks on the previous occasions. As to that, the jury must remember that the witnesses were now coming forward to give evidence about matters which they said had mainly happened some years earlier, when necessarily it was difficult to investigate the details. The staleness of the allegations presented the defendant with obvious difficulties. By way of illustration, in relation to Miss Wakefield's evidence about the most recent alleged incident, in September or October 2005, she was not able to put a date on the incident and it would be impossible to expect the defendant to be able to recall where he had been at any particular time, as he might have done if he had been dealing with a fresh allegation. If the jury were sure that the appellant had taken dangerous risks on one or more previous occasions, they had next to consider whether they could in fairness also be sure that at the time of the fatal accident in April 2006 the appellant was a person who characteristically took dangerous risks when driving. In considering that question, the jury should properly take into account the time that had elapsed since the last allegation. There was no suggestion that the appellant had driven dangerously during the 3 years prior to the accident, except for the incident alleged by Miss Wakefield in September or October 2005. Finally, if the jury were sure that the appellant was someone who had a habit of taking dangerous risks when driving, they must not jump to the conclusion that he was therefore guilty of the offence charged. It did not follow from the fact that a motorist took dangerous risks on some occasions that he necessarily or even probably did so on a particular occasion. The evidence of his bad driving was at most background material which the jury could take into account when assessing the credibility of the direct evidence about the appellant's driving on the occasion of the fatal accident. The critical question for this court is whether the appellant's conviction is unsafe, having regard to the wrongful admission of Miss Wakefield's evidence about his behaviour during his driving lessons and the way in which the subject of bad character evidence was dealt with in the summing up. The judge did direct the jury that at the end of the day the question for them was what happened on the fateful morning at the junction, and they should put themselves there with as much assistance as they could from the evidence they had heard, including particularly the eye witnesses who were in the best position of anybody. The eye witnesses' evidence was very strong and the appellant's case contained manifest improbabilities to which we have already referred. On the particular facts of this case we are not persuaded that the conviction is unsafe and the appeal is therefore dismissed. BAILII: Copyright Policy | Disclaimers | Privacy Policy | Feedback | Donate to BAILII