JUDGMENT
R v Taylor (Appellant)
before
Lord Neuberger, President
Lady Hale, Deputy President
Lord Mance
Lord Sumption
Lord Carnwath
Lord Hughes
Lord Toulson
JUDGMENT GIVEN ON
3 February 2016
Heard on 15 December 2015
Appellant Respondent
Andrew McGee Steven Kovats QC
Duncan Atkinson
(Instructed by Trinity
Advocates
)
(Instructed by Crown
Prosecution Service
Appeals and Review Unit
)
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LORD SUMPTION: (with whom Lord Neuberger, Lady Hale, Lord Mance,
Lord Carnwath, Lord Hughes and Lord Toulson agree)
1. This is an appeal by leave of the Court of Appeal on a point of law arising in
the course of the trial of the appellant, Jack Taylor, in the Crown Court at Exeter for
aggravated vehicle taking, contrary to section 12A of the Theft Act 1968.
The facts
2. The facts can be shortly stated. On the evening of 23 June 2012, the appellant,
who was in Exmouth, took a Ford Transit Tipper truck from a friend, David Marriott,
in order to collect another friend from Exeter. The truck belonged to Marriott’s
employer, and the Crown alleges that it was taken without the owner’s consent.
Having picked up the friend, the appellant was driving back to Exmouth when he
collided on a bend in a narrow country lane with a scooter driven by Steven
Davidson-Hackett. The scooter slid under the wheels of the truck, and DavidsonHackett was killed. The appellant was later found to be over the drink drive limit.
He was also uninsured. But the Crown, after a careful investigation of the accident,
accepts that there was no evidence on which a jury could be sure that the manner of
his driving was at fault or open to criticism.
The statutory framework
3. Section 12 of the Theft Act provides that a person shall be guilty of an offence
if
“without having the consent of the owner or other lawful
authority, he takes any conveyance for his own or another’s use
or, knowing that any conveyance has been taken without such
authority, drives it or allows himself to be carried in or on it.”
This a summary offence carrying a maximum sentence of six months imprisonment.
4. There are a number of offences of varying degrees of gravity which may be
committed by drivers whose manner of driving causes death, injury or damage. At
the relevant time, they included manslaughter, causing death by dangerous driving,
causing death by careless or inconsiderate driving, dangerous driving, careless or
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inconsiderate driving, causing death by careless driving when under the influence of
drink or drugs, and various other offences involving drink or drugs. All of these
offences require mens rea, generally provided by the absence of due care. The
appellant was not charged with any of them, and in the light of the agreed facts about
the manner of his driving, he could not have been convicted of any of them. Instead,
he was charged with aggravated vehicle taking contrary to section 12A of the Theft
Act 1968.
5. Section 12A of the Theft Act was inserted by section 1 of the Aggravated
Vehicle Taking Act 1992. It provides so far as relevant, as follows:
“12A Aggravated vehicle-taking
(1) Subject to subsection (3) below, a person is guilty of
aggravated taking of a vehicle if –
(a) he commits an offence under section 12(1) above
(in this section referred to as a ‘basic offence’) in
relation to a mechanically propelled vehicle; and
(b) it is proved that, at any time after the vehicle was
unlawfully taken (whether by him or another) and
before it was recovered, the vehicle was driven, or injury
or damage was caused, in one or more of the
circumstances set out in paragraphs (a) to (d) of
subsection (2) below.
(2) The circumstances referred to in subsection (1)(b) above
are –
(a) that the vehicle was driven dangerously on a road
or other public place;
(b) that, owing to the driving of the vehicle, an
accident occurred by which injury was caused to any
person;
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(c) that, owing to the driving of the vehicle, an
accident occurred by which damage was caused to any
property, other than the vehicle;
(d) that damage was caused to the vehicle.
(3) A person is not guilty of an offence under this section if
he proves that, as regards any such proven driving, injury or
damage as is referred to in subsection (1)(b) above, either –
(a) the driving, accident or damage referred to in
subsection (2) above occurred before he committed the
basic offence; or
(b) he was neither in nor on nor in the immediate
vicinity of the vehicle when that driving, accident or
damage occurred.”
At the time when section 12A was enacted, it carried a maximum sentence of two
years’ imprisonment, or five years if the accident caused the death of the victim. The
five years was increased by section 285(1) of the Criminal Justice Act 2003 to 14
years.
6. The Crown contends that the only element of fault required for the offence
under section 12A(2)(b) is the unauthorised taking of the vehicle, and that no further
fault on the part of the defendant need be proved in relation to the occurrence of the
accident.
The proceedings
7. The appellant was charged on an indictment containing five counts. Of these
Counts 1, 2 and 5 can for present purposes be ignored. Count 1 related to a previous
occasion; Count 2 related only to David Marriot; and the Crown decided not to
proceed on Count 5. That left only Count 3, which charged him with aggravated
vehicle taking; and Count 4, which charged him jointly with Marriott with causing
the death of Mr Davidson-Hackett while driving uninsured, contrary to section 3ZB
of the Road Traffic Act 1988 (as inserted by section 21(1) of the Road Safety Act
2006).
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8. On 31 July 2013, the Supreme Court gave judgment in R v Hughes [2013] 1
WLR 2461, holding that an offence under section 3ZB of the Road Traffic Act 1988
required proof that there was some element of fault in the defendant’s control of the
vehicle, which contributed in a more than minimal way to the victim’s death.
9. The case came before the Recorder of Exeter (His Honour Judge Gilbert QC)
on 13 January 2014. At the opening of the case, an application was made on behalf
of both defendants to vacate Count 4 in the light of the decision in Hughes. After an
adjournment overnight, the Crown accepted that there was no fault in the manner of
Mr Taylor’s driving and announced that they would offer no evidence on Count 4.
A verdict of Not Guilty was accordingly directed on that count.
10. The question then arose whether the decision in Hughes also ruled out a
conviction on Count 3. The Recorder was invited by both parties to rule on this
point. The Crown sought to distinguish Hughes. It relied on the decision of the Court
of Appeal (Criminal Division) in R v Marsh [1997] 1 Cr App R 67 as authority for
the proposition that there was no element of fault in the offence of aggravated
vehicle taking. The Recorder decided that point against them. He ruled that fault had
to be proved in relation to the accident. The Crown asked for leave to appeal his
ruling on the count of aggravated vehicle taking, and the proceedings were
adjourned until the appeal had been disposed of.
11. The appeal was heard on 9 April 2014 by the Court of Appeal (Criminal
Division) (Pitchford LJ, Sweeney J and HHJ Bourne-Arton). They allowed the
appeal on the ground that Marsh remained binding authority, but certified a question
of general public importance and gave leave to appeal to the Supreme Court. The
certified question was as follows:
“Is an offence contrary to section12A(1) and 2(b) of the Theft
Act 1968 committed when, following the basic offence and
before recovery of the vehicle, the defendant drove the vehicle,
and without fault in the manner of his driving the vehicle was
involved in an accident which caused injury to a person.”
The authorities
12. Three cases are directly in point, R v Marsh [1997] 1 Cr App R 67, R v
Williams [2011] 1 WLR 588, and R v Hughes [2013] 1 WLR 2461.
13. The facts of Marsh were in the relevant respects indistinguishable from those
of the present case, except that the injury to the victim was not fatal. Like the present
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case, it turned on the meaning of the words “owing to the driving of the vehicle, an
accident occurred by which injury was caused to any person” in section 12A(2)(b).
The Court of Appeal ruled that fault in relation to the accident was not an element
of the offence. The judgment of the court was delivered by Laws J. He held that the
only relevant requirement of the subsection was that the driving of the vehicle should
have been the cause of the accident, and that it was not legitimate to imply words
which would require proof that the manner of the driving was the cause of the
accident. He pointed out that section 12A(2)(a) expressly required that the vehicle
should have been driven dangerously, but that no corresponding requirement of fault
could be found in subsections (b), (c) or (d). He therefore concluded that once it was
established that the basic offence of taking the vehicle had been committed, no
further element of fault was required.
14. In Williams, the offence charged was causing death by driving when
unlicensed, disqualified or uninsured, contrary to section 3ZB of the Road Traffic
Act 1988. The statute provided that a person committed an offence if, being
unlicensed, uninsured or disqualified, he “causes the death of another person by
driving a motor vehicle on a road”. (The reference to disqualified drivers has since
been removed, and separate offences created to cover them.) The facts were that the
defendant was driving through Swansea, without a licence or insurance, when a
pedestrian crossed the central reservation and stepped in front of his car. On the
facts, the accident was entirely the fault of the pedestrian. Nevertheless, the trial
judge ruled that fault was not an element of the offence, and the defendant was
convicted. His ruling was upheld by the Court of Appeal. They considered, at para
14, that “the approach of this court in Marsh applies even more clearly to the offence
under section 3ZB of the 1988 Act”.
15. In Hughes, where the same offence was charged, the facts were remarkable.
Mr Hughes was driving his family’s camper van, when a vehicle approached in the
other direction, veering all over both sides of the road. The other driver, a Mr
Dickinson, was overtired, having driven a long distance, and high on heroin. There
was a collision in which Mr Dickinson was killed. It was common ground that Mr
Hughes’ driving was faultless and that there was nothing that he could have done to
avoid the accident. But he was driving without a licence or insurance, and was
prosecuted under section 3ZB for causing Mr Dickinson’s death. The trial judge
ruled that he had not committed the offence because he had not “caused” the death.
The Court of Appeal [2011] 4 All ER 761 overturned the ruling, once again applying
Marsh. It held, as it had done in Williams, that “the approach of this court in Marsh
applies even more clearly to the offence under section 3ZB.”
16. The decision was reversed in the Supreme Court. The judgment of the court
was delivered by Lord Hughes and Lord Toulson. They started by drawing attention
to the consequences of the Court of Appeal’s decision at para 9:
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“The difficulty, however, exposed by the present case and
others like it is that instead of Mr Hughes being punished for
what he did wrong, namely for failing to pay his share of the
cost of compensation for injuries to innocent persons, he is
indicted and liable to be punished for an offence of homicide,
when the deceased, Mr Dickinson, was not an innocent victim
and could never have recovered any compensation if he had
survived injured. A further difficulty is that since using a car
uninsured is an offence of strict liability, it is an offence which
may well be committed not only by the likes of Mr Hughes,
who deliberately fail to take out insurance, but also by those
who overlook a renewal notice, or who find themselves
uninsured because of an office mistake by brokers, or because
they have driven someone else’s car when both they and the
owner believed there was valid insurance but in fact there was
not, for example because a condition in the policy had been
overlooked. If the ruling in the present case is correct, all such
persons will be guilty of a very serious offence of causing death
by driving if a fatal collision ensues, even if they could have
done nothing to avoid it. Has Parliament used language which
unambiguously has such far reaching effects?”
17. The argument of the Crown, as summarised at para 15 of the judgment, was
that the object of the enactment was to “impose criminal liability for a death if it
involved the presence of the defendant at the wheel of a car on the road where he
had no business to be”. This court’s reasons for rejecting that argument in Hughes
may be summarised as follows:
(1) The statutory requirement that the driving should cause the death was
not satisfied if all that could be shown was that the accident would not have
happened if the uninsured driver of the car had not been on the road. The fact
that the car was on the road was a precondition of the accident, and perhaps
the occasion for it, but was not the effective cause or even one among a
number of effective causes:
“By the test of common sense, whilst the driving by Mr Hughes
created the opportunity for his car to be run into by Mr
Dickinson, what brought about the latter’s death was his own
dangerous driving under the influence of drugs. It was a matter
of the merest chance that what he hit when he veered onto the
wrong side of the road for the last of several times was the
oncoming vehicle which Mr Hughes was driving. He might just
as easily have gone off the road and hit a tree, in which case
nobody would suggest that his death was caused by the planting
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of the tree, although that too would have been a sine qua non.”
(para 25)
(2) In the absence of a test of effective causation, the offence would be
committed even in a case where the casualty resulted from the deliberate act
of the victim, as in the case of the suicide or attempted murder considered in
para 16 of the judgment.
(3) The culpability of the defendant’s conduct in taking the vehicle in the
first place could not logically constitute the mens rea appropriate to an
offence the essence of which that it caused a man’s injury or death.
“To say that he is responsible because he ought not to have been
on the road is to confuse criminal responsibility for the serious
offence of being uninsured with criminal responsibility for the
infinitely more serious offence of killing another person.” (para
17)
(4) The fact that there were other offences which were unquestionably
fault-based, including the offence of causing death by careless or
inconsiderate driving, which was created by the same statute, did not mean
that there was no element of fault in the offence of causing death while
driving unlicensed or uninsured. It was not uncommon for the elements of
different offences to overlap, and for particular offences to add little to those
which already exist.
(5) The gravity of any offence of homicide, and the potential severity of
the penalties, meant that if Parliament intended these consequences to follow
in a case where the conduct of the defendant had not caused the death, it must
make its intention unequivocally clear, not least so that the court could be
satisfied that the legislators had confronted the moral dilemma with
knowledge of the consequences.
Should we depart from Hughes?
18. The Crown’s primary case on this appeal was that the decision in Hughes
should be overruled under Practice Statement (Judicial Precedent) [1966] 1 WLR
1234. The main point urged in support of this course was that that the Crown had
conceded in Hughes that the absence of fault could not be irrelevant in all
circumstances. It is correct that when taxed with some of the more extreme
consequences of the Crown’s case, Counsel beat a tactical retreat on this point. He
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accepted that the defendant could not be convicted if the death was due to the
deliberate act of the deceased. As Lord Hughes and Lord Toulson pointed out (para
16), “once that is accepted, it is difficult to see where else a line is to be drawn than
by following the normal approach to causation taken by the common law”. Counsel
submitted that the exception could be rationalised on the ground that the deliberate
act of the victim broke the chain of causation. But as the judgment points out, that
presupposes that there is a chain of causation to be broken. What is clear is that the
concession did not displace the need for argument or analysis. It simply exposed the
weakness of the Crown’s case. Lord Hughes and Lord Toulson dealt with the matter
as an issue of principle. It is difficult to imagine that their conclusion or their reasons
would have been any different if the Crown had stuck to its original, extreme
position.
19. In those circumstances, the only basis on which it could be right to depart
from the decision now is that the court as presently constituted takes a different view.
A mere difference of opinion can rarely justify departing from an earlier decision of
this court. I can see nothing in the present case which could justify our taking such
a course, and I would decline to do so.
Can Hughes be distinguished?
20. The next question is whether, on the footing that Hughes is binding for what
it decides, it can be distinguished. The Supreme Court left open the question how
far its reasoning could be applied to the offence under section 12A of the Theft Act
and it expressed no view on the correctness of the decision in Marsh. This was
because there were differences between the offences created by section 3ZB of the
Road Traffic Act 1988 and section 12A of the Theft Act 1968 and differences in the
statutory language which created them.
21. Four differences are, at least potentially relevant:
(1) Unlike driving while unlicensed or uninsured, which are offences of
strict liability, section 12A of the Theft Act requires that the defendant should
have committed the “basic offence” of taking the vehicle without consent.
That is not an offence of strict liability. Under section 12(1) knowledge of the
absence of authority is an essential element.
(2) Although aggravated vehicle-taking carries a higher sentence if the
vehicle is involved in a fatal accident, the death of the victim is not an element
of the offence. This is not therefore strictly speaking an offence of homicide.
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(3) The offence under section 3ZB is causing the death of another person
“by driving a motor vehicle on a road.” By comparison, it can be argued that
the driving is merely incidental to the offence of aggravated vehicle-taking
as defined in section 12A of the Theft Act. The dangerous driving, personal
injury or damage to property which constitute the first three aggravating
circumstances must have occurred after the taking of the vehicle and before
its recovery, but there is no requirement that the defendant should have been
driving it, provided that he was party to the taking of the vehicle and was in
or in the immediate vicinity of the vehicle when the driving, accident or
damage occurred. He may have been a passenger or standing by the kerbside.
Indeed, in the circumstances referred to in section 12A(2)(d) (“that damage
was caused to the vehicle”) it is not even necessary that the vehicle should
have been driven at the time of the damage. These considerations might be
taken to suggest that it is the harm rather than the driving which is the
gravamen of the offence.
(4) Section 12A(3) makes special defences available in two specific cases
where the defendant could not be held responsible, namely where the damage
occurred before he took the vehicle and where he was neither in nor in the
vicinity of the vehicle at the relevant time. This would arguably have been
unnecessary if the offence was subject to a more general requirement of fault.
22. I shall return to these factors below. For present purposes it is enough to
observe that the essential point made in Hughes is common to both offences. The
phrase “caused the death of another person by driving a motor vehicle on a road”.
(section 3ZB of the Road Traffic Act 1988) and the phrase “owing to the driving of
the vehicle, an accident occurred by which injury was caused to any person” (section
12A(2)(b) of the Theft Act 1968) both posit a direct causal connection between the
driving and the injury. If the requirement of causation is satisfied by the mere fact
that the taking of the vehicle accounted for its being in the place where the accident
occurred, then all of the anomalous consequences which this court regarded as
extraordinary in Hughes apply equally to the offence under section 12A. It means
that the defendant is liable to be convicted and sentenced to a long period of
imprisonment on account of an aggravating factor for which he bears no
responsibility.
Strict liability
23. This brings me to the fundamental reason why in my opinion this appeal must
succeed, and why I would have taken the same view even if I had felt able to
distinguish the language of section 12A of the Theft Act or depart from the reasoning
in Hughes. The Crown’s argument effectively invites the court to treat the section
as imposing strict liability for the aggravating factors which differentiate this offence
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from the basic offence under section 12, in circumstances where that course is
neither necessary nor warranted by the language of the Act.
24. “The full definition of every crime”, said Stephen J in R v Tolson (1889) 23
QBD 168, 187, “contains expressly or by implication a proposition as to a state of
mind”. The reason was stated in the same case by Wills J, at pp 171-172:
“It is, however, undoubtedly a principle of English criminal
law, that ordinarily speaking a crime is not committed if the
mind of the person doing the act in question be innocent. ‘It is
a principle of natural justice and of our law’ says Lord Kenyon,
CJ, ‘that actus non facit reum, nisi mens sit rea. The intent and
act must both concur to constitute the crime’: Fowler v Padget
(1798) 7 TR 509, 514.”
25. The leading modern case to this effect is Sweet v Parsley [1970] AC 132, in
which the rule was reaffirmed by the House of Lords after a period in which it had
been somewhat inconstantly applied. Lord Reid expressed the general principle at p
149:
“it is firmly established by a host of authorities that mens rea is
an essential ingredient of every offence unless some reason can
be found for holding that that is not necessary. It is also firmly
established that the fact that other sections of the Act expressly
require mens rea, for example because they contain the word
‘knowingly’, is not in itself sufficient to justify a decision that
a section which is silent as to mens rea creates an absolute
offence. In the absence of a clear indication in the Act that an
offence is intended to be an absolute offence, it is necessary to
go outside the Act and examine all relevant circumstances in
order to establish that this must have been the intention of
Parliament. I say ‘must have been’ because it is a universal
principle that if a penal provision is reasonably capable of two
interpretations, that interpretation which is most favourable to
the accused must be adopted.”
26. The rule was never absolute, even in late Victorian England, when Tolson
was decided. But in general a criminal offence will require proof of mens rea unless
strict liability is either required by the clear language of the act or necessary for the
achievement of its purpose. Cases in the latter category usually involve regulatory
statutes. Wills J, immediately after the passage which I have quoted, gave as
examples “bye-laws … regulating the width of thoroughfares, the height of
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buildings, the thickness of walls, and a variety of other matters necessary for the
general welfare, health, or convenience”. Such legislation generally has two
characteristic features. The first is that its requirements are founded on collective
convenience rather than moral imperatives. Lord Reed in Sweet v Parsley called
such offences “quasi-criminal”. But, as he observed at p 149, where the offence
carries a significant moral stigma, it is necessary to consider “whether, in a case of
this gravity, the public interest really requires that an innocent person should be
prevented from proving his innocence in order that fewer guilty men may escape”.
The second characteristic feature of offences of strict liability is that, although fault
in the actual commission of the offence may be unnecessary, there are nonetheless
positive steps that the prospect of criminal liability may cause people to take in order
to prevent the offence from occurring. Lord Diplock put the point concisely in the
same case, at p 163:
“Where penal provisions are of general application to the
conduct of ordinary citizens in the course of their everyday life
the presumption is that the standard of care required of them in
informing themselves of facts which would make their conduct
unlawful, is that of the familiar common law duty of care. But
where the subject-matter of a statute is the regulation of a
particular activity involving potential danger to public health,
safety or morals in which citizens have a choice as to whether
they participate or not, the court may feel driven to infer an
intention of Parliament to impose by penal sanctions a higher
duty of care on those who choose to participate and to place
upon them an obligation to take whatever measures may be
necessary to prevent the prohibited act, without regard to those
considerations of cost or business practicability which play a
part in the determination of what would be required of them in
order to fulfil the ordinary common law duty of care. But such
an inference is not lightly to be drawn, nor is there any room
for it unless there is something that the person on whom the
obligation is imposed can do directly or indirectly, by
supervision or inspection, by improvement of his business
methods or by exhorting those whom he may be expected to
influence or control, which will promote the observance of the
obligation.” (emphasis added)
The main reason why the House of Lords declined to hold Miss Sweet strictly liable
for the fact that her tenants kept cannabis in the rooms which she let out to them was
that there were no reasonable steps which she could have taken to stop them doing
it or discover that they had: see in particular pp 150F-H (Lord Reid), 154-5 (Lord
Morris), 157B-D (Lord Pearce).
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Section 12A
27. The first point to be made about section 12A of the Theft Act is that it is in
no sense a regulatory or “quasi-criminal” enactment. Aggravated vehicle-taking is a
serious crime. Driving offences causing serious injury or damage are a source of
growing public concern. The aggravating factors which differentiate the section 12A
offence from the basic offence expose the defendant to a maximum sentence of 14
years imprisonment, the same as for causing death by dangerous driving. Although
the death of the victim is not strictly speaking an element of the offence, the
increased maximum sentence for cases where someone has been killed reflects the
real stigma associated with it. Even where the only damage is to property, the
maximum sentence is two years.
28. The one respect in which section 12A imposes strict liability is that the
offence may be committed not only by the driver but by anyone else who was party
to the basic offence under section 12(1) and is in or in the immediate vicinity of the
vehicle at the time of the dangerous driving, injury or damage. That emerges
unequivocally from the statutory language. But it is important to note that it is also
a rational response to the mischief of the enactment, which has close analogies to
the principle underlying cases of strict liability identified by Lord Diplock in Sweet
v Parsley. The Act treats someone who has been party to the taking of a vehicle
without authority as having control over it thereafter. He is in a position to take
positive steps to ensure that it is driven safely and not in a manner which causes
personal injury or damage to property. That is the rationale of the proviso that he
must have been in or in the immediate vicinity of the vehicle at the time when the
dangerous driving, injury or damage occurred. His responsibility continues to be
engaged while he is present.
29. However, it is one thing for the legislature to make a person who has taken a
car without authority responsible for the fault of another person who drives it in his
presence. It is another thing altogether to make him responsible for personal injury
or damage which could not have been prevented, because it occurred without fault
or was entirely the fault of the victim. That would be a sufficiently remarkable
extension of the scope of the strict liability to require clear language, such as the
draftsman has actually employed to impose liability on a taker who is not the driver.
There is no such language in section 12A. Of the four aggravating circumstances
identified in subsection (2), (a) expressly imports a requirement of fault (the car must
have been driven dangerously), while (b), (c) and (d) contain nothing which
expressly excludes such a requirement. As Lord Reid explained in Sweet v Parsley,
at p 149D-E, this difference cannot itself be enough to make (b), (c) and (d) operate
independent of fault. On the contrary, in the case of (b) and (c), it is implicit in the
requirement that the accident must have occurred “owing to the driving of the
vehicle”, that there will have been something wrong with the driving. As this court
pointed out in Hughes, the driving cannot be said to have caused the accident if it
Page 14
merely explained how the vehicle came to be in the place where the accident
occurred.
Application to the facts
30. It follows from the admitted absence of fault in the driving of the vehicle that
the driving did not cause the death of Mr Davidson-Hackett.
31. The Crown ran an alternative argument to the effect that excess of alcohol in
the appellant’s blood at the time of the accident constituted sufficient fault to go to
the jury. This was said to be because “if he had been sober he would not have been
driving at all, [and] the fatal accident would not have happened”. To my mind this
argument is misconceived. The relevant fault is the fault in the driving which is
necessary to establish the causal connection between the driving and the accident.
The fact that the appellant had excess alcohol in his blood establishes that he was
guilty of the summary offence under section 5(1)(a) of the Road Traffic Act 1988,
but not that this circumstance had anything to do with the accident. On the agreed
facts, it had none. I need not therefore comment on the oddity of the suggestion that
he was only driving his friend back to Exmouth because he had drunk too much and
would not have driven if he had been sober.
Disposition
32. I would express the test applicable in this case in the same terms as Lord
Hughes and Lord Toulson expressed it in Hughes at para 36. There must be “at least
some act or omission in the control of the car, which involves some element of fault,
whether amounting to careless/inconsiderate driving or not, and which contributes
in some more than minimal way to the death”.
33. For these reasons I would allow the appeal and answer the certified question
“No”.
