R v Hughes and death while at the wheel

By John Watson

In their judgement in the case of R v Hughes [2013] UKSC 56, the UK Supreme Court has issued guidance which, arguably, negates the offence of s. 3ZB of the Road Traffic Act 1988 of causing death by being unlicensed, uninsured, or disqualified from driving. In a case since this judgement the CPS stated they considered this offence as written ‘no longer existed’ due to the Hughes decision.

The Road Safety Act 2006 introduced a ‘new’ offence of causing death by being unlicensed, uninsured, or disqualified from driving. There was ambiguity in the wording as it says ‘causes the death of’ — how do you cause the death of someone by being uninsured? However, Parliament’s made clear their intention for this offence in a response to the consultation process when it said:

‘The standard of driving could be perfectly acceptable. For example, this offence could bite on a driver who was driving very carefully, but a child ran into the road and was killed. The offence will apply where ‘but for’ the defendant’s car being on the road the person would not have been killed.’

This was a strong deterrent to those who choose to drive without passing a driving test, not insuring their vehicle, or driving when the courts had disqualified them.

This was certainly the stance I, and other road death senior investigating officers, took. In 2009 I charged someone with this offence, her driving was unimpeachable but she had driven in the guilty knowledge she had no driving licence. She had a head on collision with a young man (17-years-old) who was on the wrong side of the road. His untimely death was entirely caused by his own poor driving. The unlicensed driver did not go to prison, but could have. Did I feel sorry for her? Yes, I did have a degree of sentiment, but this was tempered by the fact she had made the conscious, culpable decision to drive knowing she had never passed a driving test, and therefore not shown her driving was to the requisite standard. I also had a great deal of sympathy with the family of the dead boy, and their view was that there ought to be an aggravated form of the offence of driving other than in accordance with a licence, even accepting their son’s responsibility for his own death.

My view was supported by the courts in R v Williams [2010] EWCA Crim 2552. The Court of Appeal, Criminal Division held that as a matter of statutory construction, fault, or another blameworthy act on the part of the defendant was not required to prove an offence of causing death by driving without insurance and without a licence, pursuant to s3ZB.

However in Hughes the Supreme Court have indicated that this is an incorrect approach to this offence and that by the construction of the statute using the phrase ‘causes…death…by driving’ implies some fault in driving other than not having a licence et al. This view seems to be contrary to the wishes of Parliament; however their Lordships stated ‘it would plainly have been possible for Parliament to legislate in terms which left it beyond doubt that a driver was made guilty of causing death whenever a car which he was driving was involved in a fatal accident, if he were at the time uninsured, disqualified or unlicensed’ I believe that’s exactly what Parliament intended by not adding any relationship to driving standards, they envisaged an offence of strict liability.

It is clear from the judgement that the Law Lords felt uncomfortable finding someone guilty of a ‘homicide’ offence, as they put it,

‘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’.

These words will not receive support from the family of anyone killed by an uninsured driver whatever the causation. Their Lordships miss the point, Mr Hughes and others should not be driving, full stop.

They were also concerned with no insurance being an absolute offence as this would capture those with no insurance through administrative error. With due respect this is a moot point, these cases are rare, what is not rare is the large number of those who choose to drive whilst the law says they shouldn’t; nor is it rare that these drivers are involved in collisions where people die.

The difficulty of the ratio of the decision in Hughes is that their Lordships made it clear that, in their view, this offence:

‘requires 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…’

This effectively negates the section brought in by Parliament and replaces it with a ‘new’ offence that is somewhere between blameless and careless driving (with the required documentation element). Their Lordships suggest ‘driving at 34mph in a 30mph limit’ and ‘slightly below legal limit of tyre wear’ would encapsulate their view. As an experience road death investigator both of these would be virtually impossible to prove as contributory factors to the collision; and for sure the CPS would be unlikely to proceed.

This leaves this offence well and truly in limbo for now; if not in need of statutory intervention.

I cannot help but wonder if the Supreme Court would have had a different view in Hughes had the defendant been a recidivist disqualified driver and the other driver not been driving under the influence of heroin? Emotions aside, people without driving qualifications should not have been on the road and I fear their Lordships have weakened a vital deterrent.

John Watson is a retired police Inspector with over 25 years’ police service and is a qualified police trainer and assessor. He has several years’ experience in writing multiple-choice questions that have been used for in-force training. He is an author of the Blackstone’s Police Q&As.

Subscribe to the OUPblog via email or RSS.
Subscribe to only law articles on the OUPblog via email or RSS.
Image credit: Uk police vehicles at the scene of a public disturbance. © jeffdalt via iStockphoto.