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You are here: BAILII >> Databases >> United Kingdom House of Lords Decisions >> Andrews v DPP [1937] UKHL 1 (22 April 1937) URL: https://www.bailii.org/uk/cases/UKHL/1937/1.html Cite as: [1937] UKHL 1, [1937] AC 576 |
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Die Martis, 9 Martii, 1937
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,
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
2
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.
(4/37) (4«424r—a) Wt. 8166—4 «4 4/37 P, St. G.
338