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United Kingdom House of Lords Decisions


You are here: BAILII >> Databases >> United Kingdom House of Lords Decisions >> Andrews v DPP [1937] UKHL 1 (22 April 1937)
URL: http://www.bailii.org/uk/cases/UKHL/1937/1.html
Cite as: [1937] UKHL 1, [1937] AC 576

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JISCBAILII_CASE_CRIME

    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,

    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

    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


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