Parliamentary Archives,
HL/PO/JU/4/3/935
Lord Atkin
Viscount
Finlay
Lord
Thanker-
ton
Lord
Wright
M.R.
Lord Roche
ANDREWS
v.
DIRECTOR OF PUBLIC PROSECUTIONS (ON BEHALF OF
HIS MAJESTY) (CRIMINAL APPEAL).
Lord Atkin
MY LORDS,
This is an appeal under the necessary certificate of the Attorney-
General from an order of the Court of Criminal Appeal dismissing
an appeal by the Appellant from conviction and sentence on a
charge of manslaughter. The Appellant was tried before Mr.
Justice Du Parcq at Leeds Assizes in December, 1936, and being
convicted was sentenced to be imprisoned for 15 months and was
disqualified for life from holding a motor driving licence.
He was indicted for manslaughter, the particulars of offence
being that on 27th June, 1936, he unlawfully killed William Burton
Craven. The appeal is based solely on an alleged misdirection,
and no issue is raised as to the facts, which can be stated shortly.
The Appellant, a man aged 37, was employed by the Leeds
Corporation Transport Department at their Donisthorpe Garage.
On Saturday, 27th June, at about 10.30 p.m., he was directed to
take a van to assist a Corporation omnibus which had broken
down at Whingate, about 3 to 4 miles away. About 10.45 a man
named Binks was driving a saloon car down the Tong Road away
from Leeds at about 10 miles an hour. He noticed about 30 yards
ahead the deceased Craven crossing the road from Binks’
near side. The road is about 29 feet wide. The Appellant, driving
fast, over 30 miles an hour, overtook Binks’ car, and driving well
over on the off side of the road, ran into Craven, who was then
within 3 or 4 paces of the kerb. He was carried on the bonnet
for a short period, thrown forward and run over by the van. The
Appellant, who immediately after the accident nearly ran into a
pedal cyclist, did not stop. He returned to the garage after
11 stating that he had not found the omnibus. When challenged
a day or two later he denied that he had travelled along the Tong
Road on the Saturday night. At the trial he said he was unable
to remember the journey at all. There was no dispute that in
fact the Appellant was driving the van which killed Craven. The
road was well lighted and there were people about. On these
facts there would appear to have been a very clear case of
manslaughter, and the only question that arises is whether the
learned Judge correctly directed the jury.
My Lords, of all crimes manslaughter appears to afford most
difficulties of definition, for it concerns homicide in so many and
so varying conditions. From the early days when any homicide
involved penalty the law has gradually evolved ” through
” successive differentiations and integrations” until it recognises
murder on the one hand, based mainly though not exclusively
on an intention to kill, and manslaughter on the other hand, based
mainly though not exclusively, on the absence of intention to
kill but with the presence of an element of ” unlawfulness ” which
is the elusive factor. In the present case it is only necessary to
consider manslaughter from the point of view of an unintentional
killing caused by negligence, i.e., the omission of a duty to take
care. I do not propose to discuss the development of this branch
of the subject as treated in the successive treatises of Coke, Hale,
Foster and East: and in the judgments of the Courts to be found
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either in directions to juries by individual judges, or in the more
considered pronouncements of the body of judges which preceded
the formal Court of Crown Cases Reserved. Expressions will he
found which indicate that to cause death by any lack of due care
will amount to manslaughter; but as manners softened and the law
became more humane a narrower criterion appeared. After all
manslaughter is a felony, and was capital, and men shrank from
attaching the serious consequences of a conviction for felony to
results produced by mere inadvertence. The stricter view became
apparent in prosecutions of medical men or men who professed
medical or surgical skill for manslaughter by reason of negligence.
As an instance I will cite R. v. Williamson 3 C. & P. 633 (1807)
where a man who practised as an accoucheur owing to a mistake
in his observation of the actual symptoms inflicted on a patient
terrible injuries from which she died. ‘ To substantiate the charge
” of manslaughter,” Lord Ellenborough said, ” the prisoner must
” have been guilty of criminal misconduct arising either from the
” grossest ignorance or the most criminal inattention.” The word
” criminal” in any attempt to define a crime is perhaps not the
most helpful: but it is plain that the Lord Chief Justice meant
to indicate to the jury a high degree of negligence. So at a
much later date in Rex v. Bateman 19 Cr. App. Rep. 8
(1925) a charge of manslaughter was made against a qualified
medical practitioner in similar circumstances to those of
Williamson’s case. In a considered judgment of the Court
the Lord Chief Justice, after pointing out that in a civil case
once negligence is proved the degree of negligence is irrele-
vant, said, ” In a criminal Court, on the contrary, the amount
” and degree of negligence are the determining question. There
” must be mens rea.” After citing Cahill v. Wright 6 E. & B. 891
(1856), a civil case, the Lord Chief Justice proceeds: ” In explaining
” to juries the test which they should apply to determine whether
” the negligence in the particular case amounted or did not amount
” to a crime, judges have used many epithets such as ‘ culpable,’
” ‘criminal’ ‘gross,’ ‘wicked,’ clear,’ ‘complete.’ But whatever
” epithet be used and whether an epithet be used or not in order
” to establish criminal liability the facts must be such that in the
” opinion of the jury the negligence of the accused went beyond
” a mere matter of compensation between subjects and showed
” such disregard for the life and safety of others as to amount to
” a crime against the State and conduct deserving punishment.”
Here again I think with respect that the expressions used are
not, indeed they probably were not intended to be, a precise
definition of the crime. I do not myself find the connotations of
mens rea helpful in distinguishing between degrees of
negligence nor do the ideas of crime and punishment in them-
selves carry a jury much further in deciding whether in a
particular case the degree of negligence shown is a crime and
deserves punishment. But the substance of the judgment is most
valuable, and in my opinion is correct. In practice it has generally
been adopted by judges in charging juries in all cases of man-
slaughter by negligence, whether in driving vehicles or otherwise.
The principle to be observed is that cases of manslaughter in
driving motor cars are but instances of a general rule applicable
to all charges of homicide by negligence. Simple lack of care such
as will constitute civil liability is not enough: for purposes of the
criminal law there are degrees of negligence: and a very high
degree of negligence is required to be proved before the felony is
established. Probably of all the epithets that can be applied
” reckless ” most nearly covers the case. It is difficult to visualise
a case of death caused by ” reckless ” driving in the connotation
of that term in ordinary speech which would not justify a
conviction for manslaughter: but it is probably not all embracing
for reckless ” suggests an indifference to risk whereas the accused
may have appreciated the risk and intended to avoid it and yet
3
shown such a high degree of negligence in the means adopted to
avoid the risk as would justify a conviction. If the principle of
Bateman’s case is observed it will appear that the law of man-
slaughter has not changed by the introduction of motor vehicles on
the road. Death caused by their negligent driving, though un-
happily much more frequent, is to be treated in law as death
caused by any other form of negligence: and juries should be
directed accordingly.
If this view be adopted it will be easier for judges to disentangle
themselves from the meshes of the Road Traffic Acts. Those Acts
have provisions which regulate the degree of care to be taken in driv-
ing motor vehicles. They have no direct reference to causing death
by negligence. Their prohibitions, while directed no doubt to cases
of negligent driving, which if death be caused would justify con-
victions for manslaughter, extend to degrees of negligence of less
gravity. Section 12 of the Road Traffic Act imposes a penalty for
driving without due care or attention. This would apparently
cover all degrees of negligence. Section 11 imposes a penalty for
driving recklessly or at a speed or in a manner which is dangerous
to the public. There can be no doubt that this section covers
driving with such a high degree of negligence as that if death
were caused the offender would have committed manslaughter.
But the converse is not true, and it is perfectly possible that a
man may drive at a speed or in a manner dangerous to the public
and cause death and yet not be guilty of manslaughter: and the
legislature appears to recognise this by the provision in Section 34
of the Road Traffic Act, 1934, that on an indictment for man-
slaughter a man may be convicted of dangerous driving. But
apart altogether from any inference to be drawn from Section 34 I
entertain no doubt that the statutory offence of dangerous driving
may be committed, though the negligence is not of such a degree
as would amount to manslaughter if death ensued. As an instance,
in the course of argument it was suggested that a man might execute
the dangerous manoeuvre of drawing out to pass a vehicle in front
with another vehicle meeting him, and be able to show that he would
have succeeded in his calculated intention but for some increase
of speed in the vehicles in front: a case very doubtfully man-
slaughter but very probably of dangerous driving. I cannot think
of anything worse for users of the road than the conception that
no one could be convicted of dangerous driving unless his
negligence was so great that if he had caused death he must
have been convicted of manslaughter. It therefore would
appear that in directing the jury in a case of manslaughter
the judge should in the first instance charge them substantially
in accordance with the general law, i.e., requiring the high degree
of negligence indicated in Bateman’s case: and then explain that
such degree of negligence is not necessarily the same as that which
is required for the offence of dangerous driving, and then indicate
to them the conditions under which they might acquit of man-
slaughter and convict of dangerous driving. A direction that all
they had to consider was whether death was caused by dangerous
driving within Section 11 of the Road Traffic Act, 1930, and no
more would in my opinion be a misdirection.
In dealing with the summing-up in the present case I feel bound
to say with every respect to the learned and very careful Judge
that there are passages which are open to criticism. In particular
at the beginning of his charge to the jury he began with the
statement that if a man kills another in the course of doing an
unlawful act he is guilty of manslaughter, and then proceeded to
ascertain what the unlawful act was by considering Section 11 of
the Road Traffic Act, 1930. If the summing-up rested there there
would have been misdirection. There is an obvious difference in
the law of manslaughter between doing an unlawful act and doing
a lawful act with a degree of carelessness which the legislature
4
makes criminal. If it were otherwise a man who killed another
while driving without due care and attention would ex necessitate
commit manslaughter. But as the summing-up proceeded the
learned Judge reverted to and I think rested the case on the prin-
ciples which have been just stated. On many occasions he directed
the attention of the jury to the recklessness and high degree of
negligence which the prosecution alleged to have been proved and
which would justify them in convicting the accused. On considera-
tion of the summing-up as a whole I am satisfied that the true
question was ultimately left to the jury, and that on the evidence
the verdict was inevitable. For these reasons I came to the con-
clusion that the appeal should be dismissed.
‘
Lord Thankerton
MY LORDS,
I have had the privilege of considering the Opinion which has
just been delivered by the noble Lord on the Woolsack, and I
desire to express my complete concurrence with it.
Lord Wright
MY LORDS,
I also agree; and I am asked by my noble and learned friend
Viscount Finlay, who has also had the privilege of considering
the Opinion which has just been delivered, to say that he agrees.
Lord Roche
MY LORDS,
I also concur.
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