ANDREWS APPELLANT; V. DIRECTOR OF PUBLIC PROSECUTIONS [1937] A.C. 576 HOUSE OF LORDS

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1 ANDREWS APPELLANT; V. DIRECTOR OF PUBLIC PROSECUTIONS [1937] A.C. 576 HOUSE OF LORDS LORD ATKIN, VISCOUNT FINLAY, LORD THANKERTON, LORD WRIGHT, AND LORD ROCHE March 8, 9; April 22, 1937 Criminal law--manslaughter--dangerous driving of motor car--direction to jury--road Traffic Act, 1930 (20 & 21 Geo. 5, c. 43), s. 11--Road Traffic Act, 1934 (24 & 25 Geo. 5, c. 50), s. 34. Where a person is indicted for manslaughter for having, while driving a motor car, unlawfully killed a man, the judge, in directing the jury, should in the first instance tell them that the facts must be such that in their opinion the negligence of the accused went beyond a mere matter of compensation between subjects and showed such a disregard for the life and safety of others as to amount to a crime against the State and conduct deserving punishment; he should then explain that such degree of negligence is not necessarily the same as that which is required for the offence of dangerous driving; and further he should indicate the conditions under which they may acquit the accused of manslaughter and convict him of dangerous driving. A direction that all the jury have to consider is whether death was caused by dangerous driving within s. 11 of the Road Traffic Act, 1930, and no more, is a misdirection. Rex v. Bateman (1925) 19 Cr. App. R. 8 applied. APPEAL from the Court of Criminal Appeal dismissing an appeal against conviction (reported sub nom. Rex v. Andrews. [FN1] The appellant, Wilfred Andrews, was convicted at Leeds Assizes, before du Parcq J., of the manslaughter of one William Burton Craven through the dangerous driving of a motor car, and was sentenced to fifteen months' imprisonment and disqualified for life from holding a driving licence. In the course of his summing up du Parcq J. said: "If a man is doing an unlawful act - if he is doing something which the law says that he must not do, and, because he is doing it, *577 he kills somebody, then he is guilty not only of that unlawful act, but of manslaughter. He has killed somebody in the course of doing, and because he was doing, an unlawful thing. If he is driving [a motor car] recklessly he commits an offence whether he kills anybody or whether he does not, but if because he is driving recklessly somebody is killed, then he is guilty of the offence of manslaughter. I think I ought to tell you this, that if you thought that although he drove recklessly, and although he drove at a speed or in a manner dangerous to the public within the words of [s. 11 of the Road Traffic Act, 1930 [FN2]] but that it was not because of that that this man was killed, the law would entitle you to convict him not of manslaughter but of dangerous driving. But in this case I am bound to tell you that if you think that he was driving recklessly and in a dangerous manner within the meaning of these words, and it was because of that that Mr. Craven was killed, then it is your bounden duty to convict him of manslaughter." *578 In his grounds of appeal the appellant said that the judge misdirected the jury (1.) in telling them that if the appellant was driving recklessly within the meaning of s. 11 of the Road Traffic Act, 1930, and because he was doing so someone was killed, the appellant was guilty of manslaughter; (2.) in telling them that if they thought that if the appellant was driving recklessly and in a manner dangerous

2 within the meaning of s. 11 and it was because of that that Craven was killed, it was their bounden duty to convict the appellant of manslaughter; (3.) in failing to tell them that unless the appellant had been proved guilty of negligence causing the death, and of such negligence as 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, they should not find him guilty of manslaughter; (4.) in failing to tell them that if the appellant was merely proved guilty of reckless or dangerous driving as defined by s. 11 of the Road Traffic Act, 1930, and by such reckless or dangerous driving to have caused the death of someone they should not find him guilty of manslaughter. The Court of Criminal Appeal having dismissed the appeal, the Attorney- General certified that the decision involved a point of law of exceptional public interest and that in his opinion it was desirable in the public interest that a further appeal should be brought. Pursuant to that certificate Andrews appealed to this House. Russell Vick K.C. and G. S. Waller for the appellant. If du Parcq J. was correct in directing the jury that if the accused person had done anything that was expressly forbidden by statute and by so doing had caused or accelerated the death of another, he would be guilty of manslaughter, it follows that if a motorist drives his car without due care and has the misfortune to cause the death of a person he would be guilty of manslaughter. Such a proposition is much too wide and cannot be supported. The statements in the older writers - Hale's Pleas of the Crown, vol. 1, p. 475; Foster's Crown Cases, p. 258, and East's Pleas of the Crown, vol. 1, p. 219, go much beyond what more recently has been held to constitute the offence of manslaughter. In Reg. v. Franklin [FN3] it was held that the mere fact that a person has committed a civil wrong against another ought not to be used as an incident which is a necessary step in a criminal *579 case, apart from the question of criminal intention. There a man wrongfully took a box from a refreshment stall on a pier and wantonly threw it into the sea, thereby unintentionally striking and causing the death of a bather. It was decided that these facts were not per se sufficient to constitute the offence of manslaughter. It is always a question for the jury to say whether or not the degree of negligence by which death has been caused constitutes manslaughter. To tell the jury, as du Parcq J. did in this case, that "if a person is doing an unlawful act. and because he is doing it, and in the course of his doing it, he kills somebody, he is guilty not only of that unlawful act but of manslaughter," was in effect withdrawing from them the right to find a verdict for dangerous driving only. The jury should have been asked to find whether the appellant was driving the car in such a reckless and dangerous manner that it amounted, within the definition in Rex v. Bateman [FN4], to an offence against the State or reached a stage of criminality over and above a contravention of s. 11 of the Road Traffic Act, A wide definition of the word "reckless" is essential to justify a conviction for manslaughter. If "reckless" driving causing death is always manslaughter, s. 34 of the Road Traffic Act, 1934, is meaningless. In Rex v. Stringer [FN5] the jury returned a verdict of not guilty of manslaughter, but on the same facts guilty of dangerous driving, death having been admittedly caused by the driving, and it was held that these verdicts were not inconsistent, obviously showing that in the opinion of the Court there is a difference in the degree of negligence necessary to constitute the two offences, a much greater degree having to be shown to establish the offence of manslaughter. Sir Terence O'Connor S.-G. (Arthur Morley K.C. and G. W. Wrangham with him) for the Crown. If the proposition stated by du Parcq J. in the opening of his summing-up had stood alone its accuracy in law might be questioned, but later the judge stated the law correctly, directing the attention of the jury to the high degree of negligence amounting to recklessness *580 which had been shown and which would justify a conviction for manslaughter. An act may be intrinsically unlawful, or though lawful by its nature it may become unlawful by being done recklessly.

3 Where the jury finds recklessness of behaviour and death is caused thereby there is an ample degree of culpability to justify the verdict of manslaughter. [He was stopped.] Russell Vick K.C. replied. At the conclusion of the argument, the House stated that the appeal would be dismissed, and that their reasons would be given on a later date April 22. Their Lordships now stated their reasons for dismissing the 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 du Parcq J. at Leeds Assizes in December, 1936, and, being convicted, was sentenced to be imprisoned for fifteen months and was disqualified for life from holding a motor driving licence. He was indicted for manslaughter, the particulars of offence being that on June 27, 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 thirty-seven, was employed by the Leeds Corporation Transport Department at their Donisthorpe Garage. On Saturday, June 27, at about P.M., he was directed to take a van to assist a Corporation omnibus which had broken down at Whingate, about three to four miles away. About a man named Binks was driving a saloon car down the Tong Road away from Leeds at about ten miles an hour. He noticed about thirty yards ahead the deceased Craven crossing the road from Binks' near side. The road is about twenty-nine feet wide. The appellant, driving fast, over thirty miles an hour, overtook Binks' car, and driving well over on the off side of the road *581 ran into Craven, who was then within three or four 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 recognizes 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, that is, 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 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 be 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, *582

4 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 Rex v. Williamson [FN6] 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 that charge" - namely, 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 [FN7] a charge of manslaughter was made against a qualified medical practitioner in similar circumstances to those of Williamson's case. [FN8] 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 irrelevant, said [FN9], "In a criminal Court, on the contrary, the amount and degree of negligence are the determining question. There must be mens rea." After citing Cashill v. Wright [FN10], 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 *583 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 themselves 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 manslaughter 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 visualize 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 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 [FN11] is observed it will appear that the law of manslaughter has not changed by the introduction of motor vehicles on the road. Death caused by their negligent driving, though unhappily 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 *584 Acts. Those Acts have provisions which regulate the degree of care to be taken in driving 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 convictions for manslaughter, extend to degrees of negligence of less gravity. Sect. 12 of the Road Traffic Act, 1930, imposes a penalty for driving without due care and attention. This would apparently cover all degrees

5 of negligence. Sect. 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 recognize this by the provision in s. 34 of the Road Traffic Act, 1934, that on an indictment for manslaughter a man may be convicted of dangerous driving. But, apart altogether from any inference to be drawn from s. 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 of manslaughter 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 *585 general law, that is, requiring the high degree of negligence indicated in Bateman's case [FN12] 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 manslaughter and convict of dangerous driving. A direction that all they had to consider was whether death was caused by dangerous driving within s. 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 s. 11 of the Road Traffic Act, 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 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 principles 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 consideration 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 conclusion that the appeal should be dismissed. LORD THANKERTON. My Lords, I have had the privilege *586 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.

6 LORD ROCHE: My Lords, I also concur. Representation Solicitors for appellant: C. Butcher & Simon Burns for Morrish, Nelson & Co., Leeds. Solicitor for Crown: Director of Public Prosecutions. Appeal dismissed. (c) Incorporated Council of Law Reporting For England & Wales [1937] A.C. 576 Footnotes FN1 [1937] W. N. 69. FN2 Road Traffic Act, 1930, s. 11, sub-s. 1: "If any person drives a motor vehicle on a road recklessly, or at a speed or in a manner which is dangerous to the public, having regard to all the circumstances of the case, including the nature, condition, and use of the road, and the amount of traffic which is actually at the time, or which might reasonably be expected to be, on the road, he shall be liable [to fine or imprisonment]." Sect. 21 makes provision for the giving of notice to persons whom it is intended to prosecute under (inter alia) s. 11. Road Traffic Act, 1934, s. 34: "Upon the trial of a person who is indicted for manslaughter in connection with the driving of a motor vehicle by him, it shall be lawful for the jury, if they are satisfied that he is guilty of an offence under section eleven of the principal Act (which relates to reckless or dangerous driving) to find him guilty of that offence, whether or not the requirements of section twenty-one of the principal Act (which relates to notice of prosecutions) have been satisfied as respects that offence." FN3 (1883) 15 Cox C. C FN4 (1925) 19 Cr. App. R. 8. FN5 [1933] 1 K. B FN6 (1807) 3 C. & P FN7 19 Cr. App. R. 8. FN8 (1807) 3 C. & P FN9 19 Cr. App. R. 11. FN10 (1856) 6 E. & B FN11 19 Cr. App. R. 8. FN12 19 Cr. App. R. 8.