OFM, R. v [2026] EWCA Crim 599 (15 May 2026)

Neutral Citation Number: [2026] EWCA Crim 599 Case No: 202600249 B2 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM THE CROWN COURT 63CH0002325 Royal Courts of Justice Strand, London, WC2A 2LL Date: 15/05/2026 Before : THE VICE-PRESIDENT OF THE COURT OF APPEAL CRIMINAL DIVISION (Lord Justice Edis) LADY JUSTICE WHIPPLE and HIS HONOUR JUDGE CONRAD KC Sitting as a judge of the Court of Appeal Criminal Division - - - - - - - - - - - - - - - - - - - - - Between : THE KING Appellant - and - OFM Respondent - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Louis Mably KC (who did not appear below) (instructed by the CPS ) for the Prosecution John Hipkin KC and Dean Pulling (assigned by The Registrar ) for the Respondent Hearing dates : 1 April 2026 - - - - - - - - - - - - - - - - - - - - - Judgment Approved This judgment was handed down remotely at 2pm on Friday 15 May 2026 by circulation to the parties or their representatives by e-mail and by release to the National Archives. The provisions of s.71 of the Criminal Justice Act 2003 apply to these proceedings. By virtue of those provisions, no publication may include a report of these proceedings, save for specified basic facts, until the conclusion of the trial unless the Court orders that the provisions are not to apply. This order applies until the conclusion of the trial in the Crown Court. This version of the judgment may be published now because it is anonymised and the court gives leave for it, and it alone, to be published. This is because it contains a significant point of law. Neither party has objected to this version being published in advance of the trial. The Vice-President: 1. This tragic case concerns the death of a child who died when she was just six months old. She was struck by a car which had been set in motion by the Respondent, OFM. He is identified by those randomly chosen initials so that this judgment can be published before the trial takes place. The issue on this appeal is whether there was evidence on which a properly directed jury could conclude that his acts in relation to the car amounted to "driving" it. The judge answered that question in the negative. The prosecution now appeals against the decision under section 58 of the Criminal Justice Act 2003. 2. The Indictment contains two counts as follows:- Count 1 STATEMENT OF OFFENCE CAUSING DEATH BY DANGEROUS DRIVING, contrary to section 1 of the Road Traffic Act 1988. PARTICULARS OF OFFENCE [omitted] Count 2 STATEMENT OF OFFENCE CAUSING DEATH BY CARELESS DRIVING WHEN UNDER THE INFLUENCE OF DRINK OR DRUGS, contrary to section 3A (1)(ba) of the Road Traffic Act 1988. PARTICULARS OF OFFENCE [omitted] 3. At the start of the trial in this case, the parties invited the court to rule on a submission of no case to answer prior to any evidence being called, there being an agreement on the facts. The ....judge acceded to a submission of no case to answer on both counts on the indictment, on the basis that there was insufficient evidence that the respondent was 'driving' at the material time. 4. The judge recorded the procedural history of the case and some inconsistency in the way in which the prosecution counsel had presented the case to her. Mr Louis Mably KC, who presented the appeal to us on behalf of the prosecution, did not appear below. Although she recorded the inconsistency, she said:- "Given the sometimes conflicting approach of the prosecution as to how they put their case I have put aside any apparent concessions by the prosecution and considered the central questions of law based on the agreed facts." 5. We agree with the judge that this was the best approach for her to take, and we intend to do the same thing. We do not therefore need to describe the procedural history of the case, or to examine the way in which the judge's task was complicated by the development of the prosecution case. The facts 6. The agreed facts as they appeared to the judge have been supplemented to a degree by the parties in their skeleton arguments for this appeal. None of these additions fundamentally changes the nature of the case but we will deal with the summary presented to us, which we now set out. 7. ......... 8. ...... 9. ......... 10. ....... There is no suggestion by the Applicant that the Respondent intended to drive or to move the vehicle in any way. 11. The Respondent unlocked the car, and then opened the driver's door. Intending to warm up the car by starting the engine, he put the key in the ignition and turned it. When the Respondent did this he was standing outside the car, leaning in. Apart from starting the ignition, he had no other interaction with the controls. 12. Once the ignition was started, the movement of the car was captured on CCTV. ....... From a standing start, it moved forward sharply under its own momentum (the wheels having stopped spinning). It moved out of its parking bay, across the driving lane of the carpark (a width of 5.93m), before colliding with the child's stroller. 13. ......... 14. Once the car started moving, the Respondent moved along with it, and by the time of the first impact with the stroller he appeared to have been leaning into the car to some extent, and may have been being carried or dragged along by the vehicle. ......... From the CCTV evidence, the Respondent's lower limbs remain outside the vehicle throughout. ........ 15. The Respondent said in his police interview that he was unable to stop the car because he was unable to put his foot on the brake or reach the handbrake. Expert analysis confirmed that either would have been difficult in the position he was in, being alongside but essentially outside the car. 16. The expert analysis confirmed that a combination of the fact that the car did not have a clutch ignition interlock, that the car had been left in gear, and that the handbrake was not pulled to its maximum resulted in the car being propelled forward when the ignition was started. Had the handbrake been pulled to the maximum the car would have stalled and not moved forward in the way that it did. There was no mechanical defect which contributed to the incident, although more modern cars have safety systems which would prevent the forward momentum that arose in this case. 17. The Respondent had consumed cocaine prior to the incident. This led to him having benzoylecgonine in his blood reading at a level almost five times the legal driving limit at the material time. The law 18. In her review of the law, the judge considered R v Roberts (1964) 48 Cr App R 296, Ames v MacLeod 1969 JC 1 (" Ames "), R v McDonagh [1974] RTR 372 (" McDonagh "), Blayney v Knight [1975] RTR 279, Leach v DPP [1993] RTR 161 and Burgoyne v Phillips [1983] RTR 49. At the end of that review, she set out her conclusions about the legal test for determining when a person is driving in these terms, which are broadly accepted as accurate by Mr Mably:- "In my opinion a summary of the legal position which appeared to be accepted by the parties in their submissions is: (a) The primary consideration of whether a person is driving is a question of fact depending on the degree and extent to which a person had control of the direction and movement of the vehicle. (b) A person cannot be driving if they are not in a substantial sense controlling the movement and direction of the vehicle. (c) A jury must also ask themselves whether the activity in question could fall within the ordinary meaning of the word driving in the English language. (d) Whilst the issue of intention is not definitive, whether a defendant deliberately sets the vehicle in motion is a relevant factor." 19. We think it necessary to cite some passages from MacDonagh in an attempt further to explain the judge's conclusion. This case concerned an appellant who stood with both feet on the road, put his shoulder against a car door pillar and pushed the car putting one hand inside on the steering wheel in order to control movement. His appeal against conviction for driving whilst disqualified was allowed. 20. At 374E, the Lord Widgery CJ, giving the judgment of the court, said:- "There are an infinite number of ways in which a person may control the movement of a motor vehicle, apart from the orthodox one of sitting in the driving seat and using the engine for propulsion. He may be coasting down a hill with the gears in neutral and the engine switched off; he may be steering a vehicle which is being towed by another. As has already been pointed out, he may be sitting in the driving seat while others push, or half sitting in the driving seat but keeping one foot on the road in order to induce the car to move. Finally, as in the present case, he may be standing in the road and himself pushing the car with or without using the steering wheel to direct it. Although the word 'drive' must be given a wide meaning, the courts must be alert to see that the net is not thrown so widely that it includes activities which cannot be said to be driving a motor vehicle in any ordinary use of that word in the English language. Unless this is done, absurdity may result by requiring the obtaining of a driving licence and third-party insurance in circumstances which cannot have been contemplated by Parliament." 21. At 375H, the court said:- "The last case to which we would refer is Ames v MacLeod, 1969 JC 1 where the facts were very close to those of the instant case. The accused, who was alleged to have been driving a motor car, had been walking beside it as it ran down a slight incline, and had steered it by placing his hand on the wheel. The car had run out of petrol. The Lord Justice-General thought that the question turned on whether the defendant was 'in a substantial sense controlling the movement and direction of the car' and held that this test was satisfied. The other judges concurred. We respectfully agree that a person cannot be driving unless he satisfies the test adopted by the Court of Session, and we recognize the importance that this legislation should be given the same meaning in England as in Scotland. But we do not think that the test is exhaustive. It is still necessary to consider whether the activity in question can fall within the ordinary meaning of the word 'driving.' Giving the words their ordinary meaning there must be a distinction between driving a car and pushing it. The dividing line will not always be easy to draw, and the distinction will often turn on the extent and degree to which the defendant was relying on the use of the driver's controls." The judge's decision 22. The judge's decision was expressed in clear and succinct terms. She said:- "In this case the defendant leant into the car to turn the engine on. He did not enter the car. He did not touch any of the other controls of the vehicle. He did not intend to drive. It would practically have been impossible for him to stop the vehicle moving once it had unexpectedly started moving. Applying the legal principles to the facts of this particular case it is my judgement that there is insufficient evidence to conclude that the defendant was, in a substantial sense, controlling the movement and direction of the car. On the particular facts of this case I do not consider that there is any or any sufficient evidence to conclude that the defendant was driving the vehicle within the ordinary meaning of that word." The submissions 23. The prosecution as appellant advances the following grounds of appeal, which have been helpfully expanded by Mr. Mably in oral argument. It is contended that the judge erred in concluding that a reasonable jury properly directed could not conclude that the Respondent was driving. It is submitted that: i) The question of whether the Respondent was driving was a matter of fact and degree, a matter for the jury to assess. It could not be said that the Respondent was not driving as a matter of law. The question for the judge was not whether the Respondent was in fact driving, rather whether, on the evidence, it was open to a reasonable jury to conclude he was driving. ii) The Respondent had assumed control of one of the main controls of the car, the ignition, and operated it by turning the key, deliberately starting the engine. iii) Whilst the Respondent did not intend the car to move forward and did not know the car was in first gear with the handbrake not fully applied, by assuming control of the ignition and starting it, he assumed risk in connection to those other controls. The jury may find that it was foreseeable that the car may have been parked as it was. iv) It was fact that the car moved forward under momentum generated by its own propulsion as a direct result of the Respondent having operated the ignition; that at all material times the Respondent remained in contact with the car, proximate to the driver's controls, intending and attempting to stop the car and that at all times the car was on a road accessible to the public. v) In light of the above factors, a reasonable jury, properly directed, could conclude that the Respondent was driving the car, such that his driving caused death and as such the judge's decision was wrong in law, or in the alternative, unreasonable. 24. Mr Hipkin KC on behalf of the Respondent submits:- i) The judge was entitled on the facts of the case to conclude as she did. Her ruling was neither wrong in law nor unreasonable. She gave a detailed, thorough and comprehensive ruling, outlining the procedural history of the case as well as providing a full assessment of the law, the evidence and the application of the legal principles to the evidence. ii) The Prosecution set out their position in the document 'Summary of Crown's Position - Legal Sufficiency Submissions'. They accepted at trial that the act of putting the key into the ignition and starting the car did not amount to driving. Their case was put on the basis that the Respondent's subsequent failure to 'regain control' of the vehicle amounted to driving. That argument was flawed: how does one regain control of something they never had control over? Accordingly, a person could not be guilty of an offence of 'driving' by an act of omission. iii) In addition, it was accepted that the Respondent would not have been able to stop the vehicle once the ignition was turned on. 25. It will be noted that Mr. Mably's second point focusses on the act of turning the key in the ignition as being an act of driving. He submitted that it would be enough if the Respondent was driving the car at any point in the events leading up to the child's death. That is a different way of putting the case from that advanced before the judge, and Mr. Hipkin seeks to rely on a concession made on that subject. We have referred above to the way the judge treated that concession and expressed the view that we will do the same. Discussion 26. The passage in MacDonagh set out at [21] above determines that it is a necessary but not sufficient condition that the alleged conduct must involve the alleged driver "in a substantial sense controlling the movement and direction of the car" . In addition, the activity in question must fall within the ordinary meaning of the word "driving". The court acknowledged that this dividing line will not always be easy to draw and said that the outcome may turn on "the extent and degree to which the defendant was relying on the use of the driver's controls". In R (oao Planton) v. DPP [2001] EWQHC Admin 450 Pill LJ at [24] interpreted the MacDonagh definition and said:- "24. Reliance is placed upon the fact that there was no movement of the vehicle at the material time. I do not consider that Lord Widgery was seeking in his definition to limit the situations in which a person can be driving to those when the vehicle is actually moving. A driver who stops his vehicle at traffic lights is clearly, in my judgment, still driving that vehicle. It is a question of fact and degree as to whether the cessation of movement has been for so long and in such circumstances that it cannot reasonably be said that the person in the driving seat is driving." 27. The present case does not involve the cessation of movement bringing driving to an end. The purpose of that citation is to show that the MacDonagh definition is not to be approached as if it were a statute. The court was enunciating considerations which will arise in most cases where a court has to decide whether particular conduct amounts to driving or not, but not attempting to catalogue them all. It also means that the fact that the car was stationary when the Respondent turned the ignition key in the lock does not, of itself, mean that this act was not "driving". 28. The act of the Respondent caused the vehicle to move when he did not intend that it would. He did that by starting the engine by turning the key in the ignition. This is classically, at least in most cases, the point at which "driving" would start. 29. A careful driver, starting the engine in a manual vehicle with a traditional ignition key, would get into the driving seat, and check whether the handbrake was on and whether the car was in gear, before starting the engine. If the car was in gear, the driver would either put it in neutral or depress the clutch. This would prevent the car from stalling, often with a judder, when an attempt was made to start the engine. It also explains why it is necessary to check the handbrake, because when in neutral the car may roll. This is how a careful driver performs the act which the Respondent carried out when he started the engine. We are satisfied that it would be open to a jury to conclude that it amounted to "driving" the car, even if at the time when they did it that driver did not intend that the car should move. 30. The ignition is one of the principal controls of the vehicle over which the driver must generally have control in order to drive. Starting the engine is usually part of driving the car. Do the following facts mean that it was not so in this case? i) The Respondent did not intend that the car should move or be driven anywhere at the time when he did it. He wanted simply to warm the car up so that it would be more comfortable when the time came when it would be driven away by someone in the driving seat. ii) The Respondent chose to do it in a substandard way by reaching in through the door without any ability to check or use the other controls of the car. This created a risk of what happened, which a jury may find was foreseeable. 31. It is clear that intention is relevant to whether conduct amounts to driving, but not decisive. Many acts of careless driving involve an unintended loss of control of the vehicle. In Blayney v Knight [1975] RTR 279 the defendant depressed the accelerator of a vehicle while struggling with the owner of it. He had no intention of operating it or any other control of that vehicle. Lord Widgery, again, held that in that case the lack of intent was an important factor in deciding that this defendant was not, in law, driving that car even though he caused it to move. But there the operation of the accelerator was an accident. In the present case, the Respondent intended to start the engine with the ignition key. What he did not intend were the consequences of that act, given the way he did it. 32. We should mention one of the other cases referred to by the judge, Leach and another v DPP [1993] RTR 161. This concerned a question of whether a police officer was acting in the execution of his duty when he was assaulted by one appellant and obstructed by the other. One of the questions asked by the justices in the stated case was set out and dealt with by Tasker Watkins LJ in this way:- "(1) Whether a person sitting in the driving seat of a stationary motor vehicle, who switches on the engine by turning the ignition key, sits erect in his seat and places his hands on the steering wheel could be a person driving a motor vehicle within the meaning of section 163 of the Road Traffic Act 1988.' Mr Haynes submits in respect of that question that the answer must be in the negative. With that Mr Lewis on behalf of the prosecutor agrees, and so do I." 33. This conclusion is wholly unexplained and not part of the decision in the case, as the judgment makes clear. Laws J, expressing agreement, said nothing about it. His judgment summarises the ratio as explained by Tasker Watkins LJ in these terms:- "I agree. I have no doubt whatever that the facts found by the justices demonstrate that the first defendant was a person whom the sergeant had reasonable cause to believe to have committed an offence in relation to the use of a motor vehicle on a road. It follows that the sergeant was acting in the execution of his duty at the material time." 34. In these circumstances we do not consider that Leach provides any relevant authority bearing on the decision in this case. 35. We do not consider that the fact that the Respondent started the engine when he was in no position to control the consequences of that act by using the brake, clutch or steering wheel necessarily means that it was not an act of driving. He created a situation where he had started the engine of the car but could not control its movement because he had chosen to do this while standing on the pavement. He was the person who was able to control it, but chose to deprive himself of the means to do so. It would be open to the jury to conclude that the act of starting the engine of a car when standing on the pavement beside it was an act of driving, albeit, they may find, an act of bad driving. The reference in Ames and MacDonagh to "controlling the movement of the car" does not mean that a person must be exercising effective control over the car in order to be its driver. Otherwise, a careless driver of a car would cease to be the driver when they lost control of it. 36. We have considered the helpful review of a number of decisions in Wilkinson's Road Traffic Offences 32nd Ed at 1-89 to 1-121. As the editors explain, "there are a number of cases on whether a person can be said to be "driving". Some are not easy to reconcile." Paragraph 1-104 says "The principles given in paras 1-92–1-103 only determine whether a person is driving. Once it has been determined that a person is driving, the driving may still continue even though the tests laid down in R. v MacDonagh cannot be fulfilled. A person may still be driving when he is buying a newspaper or changing a wheel (examples given in Pinner v Everett [1969] 3 All E. R. 257 HL) or when he is walking across the forecourt of a garage to take instructions ( Regan v Anderton [1980] R. T. R. 126). These cases were based on the former s.8(1) of the 1972 Act, since repealed. That section had special features in that it was impossible to take it literally. Nevertheless the cases have a wider significance. In Stevens v Thornborrow [1969] 3 All E. R. 1487 the following propositions were extracted from Pinner v Everett : (1) Whether a person is "driving or attempting to drive" is a question of fact. (2) It is far easier to find as a fact that a motorist is driving if he is still at the wheel, more difficult if he has dismounted. (3) The overriding principle, whether or not he is at the wheel, is whether he is doing something connected with driving." 37. It seems to us, therefore, that the question for the jury in this case is whether they are sure that in switching on the ignition and starting the engine of the car the defendant did an act which amounts to "driving it". In most cases the answer to that question would be that it does, because switching on the engine of a car is an act which involves control over its movement and is, in ordinary language, a necessary part of conduct which amounts to "driving". The particular facts of this case may lead the jury to conclude that it did not in this case. Conclusion 38. We pay tribute to the careful and clear way in which the judge expressed her ruling in this difficult case. The argument has been presented rather differently to us than it was to her. We differ from her with respect, but we do differ. In our judgment the prosecution are right to say that this was a matter for the jury. Accordingly, we give leave to appeal, allow the appeal, and order that the proceedings should be resumed before the Crown Court. BAILII: Copyright Policy | Disclaimers | Privacy Policy | Feedback | Donate to BAILII