Hughes, R. v [2013] UKSC 56 (31 July 2013)

Hughes, R. v [2013] UKSC 56 (31 July 2013)  drives a coach and horses through the offence created by section 3ZB of the Road Traffic Act 1988, of causing death while driving while unlicensed, disqualified or uninsured. The defendant was driving, faultlessly though without insurance and with only a provisional licence (so I imagine that any insurance policy that might have been around was not going to help), along the A69 from Carlisle to Newcastle when a car came towards him on the wrong side of the road and collided with his vehicle. The other driver was under the influence of heroin, which he had apparently taken to overcome the fatigue that had been brought on by working a series of 12-hour night shifts at Largs power station in western Scotland before undertaking a round trip to Newcastle, some 200 miles each way, of which he was about 30 miles into the return leg. He was killed.

Clear enough who was at fault, but what about the the unfortunate driver whose camper van was hit? Section 37B says

A person is guilty of an offence under this section if he causes the death of another person by driving a motor vehicle on a road and, at the time when he is driving, the circumstances are such that he is committing an offence [under various sections dealing with being unlicensed etc].

He was not, you will note, prosecuted for driving without insurance or on only a provisional licence. The Recorder ruled that he had not committed the offence, because he had not caused the death: but the Court of Appeal followed an intervening case, R v Williams [2010] EWCA Crim 2552; [2011] 1 WLR 588, and decided that, in law, Mr Hughes was considered to have caused the death of the other driver.

The Supreme Court observed that a driver may not have insurance because he chose not to pay the premium, because he overlooked a renewal notice, or because he misunderstood the cover that was in place. Various degrees of culpability apply, but section 37B condemns drivers in all three categories equally. Parliament's intention, when inserting the new section (and its neighbour) in 2006, was to fill the gap between the offences of dangerous driving and causing death by dangerous driving - or, looking at it another way, the yawning gap between 2 years and 14 years, the maximum penalties for the two offences. Or, to look at it yet another way, a typical knee-jerk reaction by the government to create new, half-baked offences instead of dealing with the manifest shortcomings of what was already on the statute book.

However, it was plainly not just to punish an uninsured (etc) driver if a suicidal pedestrian were to run out in front of him, or a homicidal driver ram his car. Where, then, should the line be drawn? The offence should not impose a greater penalty than the underlying offence (driving without insurance, etc) where the difference is a matter for which the defendant is not culpable. Professors Sullivan and Simester ([2012] Criminal Law Review 754) described this as a colourable attempt to pass off strict liability as something else: the Supreme Court thought this was a pejorative description, but an accurate one. The Court thought that it must follow from the use of the expression "causes…death…by driving" that section 3ZB requires at least some act or omission in the control of the car, which involves some element of fault, whether amounting to careless or inconsiderate driving or not, and which contributes in some more than minimal way to the death. It is not necessary that such act or omission be the principal cause of the death. The appeal was allowed, and section 37B looks pretty lame.