Causing death by dangerous driving - dangerous condition of agricultural vehicle stemming from inherent design - conviction arising from use on road in accordance with recommended practice quashed

R v Marchant and another: CA (Lord Justice Rose, Mr Justice Grigson and Mr Justice Beatson): 21 July 2003

The first defendant was a farmer who employed the second defendant as a tractor driver.

The second defendant drove a Matbro TR250 loading machine, which was authorised by the secretary of state for use on the roads, along the public highway with the hook and grab in the position recommended by the manufacturers.

As he waited on the correct side of the road, within the confines of the dotted line, to turn into the farm lane, a motor cycle approached very fast from the opposite direction and collided with the tines of the tractor unit.

The motorcyclist was killed.

The second defendant was convicted of causing death by dangerous driving, contrary to section 1 of the Road Traffic Act 1988, and the first defendant was convicted of procuring that offence.

They appealed against conviction on the grounds that the mere use on the road of such a vehicle should not create a condition which could be categorised as dangerous for the purposes of such a charge.

Roy Amlott QC and Julian Waters (instructed by Lodders, Stratford-upon-Avon) for the defendants; Paul Farrer (instructed by the Crown Prosecution Service, Warwick) for the Crown.

Held, allowing the appeals, that, although a driver who manoeuvred an agricultural vehicle dangerously could not escape prosecution because the secretary of state had exempted the vehicle from prosecution under section 40A of the 1988 Act (as amended), where the alleged obvious dangerous condition of the vehicle stemmed purely from its inherent design rather than from lack of maintenance or positive alteration, particular care had to be taken in deciding whether it was appropriate to prosecute the user at all; that 'current state' in section 2A(2) implied a state different from the original or manufactured state, and so the case based on the dangerous condition of the vehicle should not have been left to the jury; and that, on the particular facts, it had not been fair for the defendants to be tried on the 'dangerous condition' basis.

(WLR)

Automatic life sentence for second serious offence - particulars of offence not alleging possession of firearm - defendant not to be sentenced on basis of firearm possession unless unequivocally admitted

R v Benfield; R v Sobers: CA (Lord Woolf Chief Justice, Mr Justice Penry-Davey and Mr Justice Aikens): 21 July 2003

The defendants were each convicted of a single count of robbery and, on the basis that the robbery had been committed when they had in their possession a firearm or imitation firearm and that that was their second 'serious offence', they received automatic life sentences pursuant to section 109 of the Powers of Criminal Courts (Sentencing) Act 2000.

They appealed against sentence on the ground that the judge in each case had had no jurisdiction to impose an automatic life sentence since the particulars of the robbery count had not stated that, at the time of the robbery, they had in their possession a firearm or imitation firearm and they had not been charged with a separate firearms count and, therefore, the robbery was not a 'serious offence' within section 109(5)(h).

David Thomas QC (instructed by Kelcey & Hall, Bristol) for Benfield; William Hart (instructed by the Crown Prosecution Service, Gloucester) for the Crown; Nigel Lithman QC (instructed by Attridge Solicitors) for Sobers; Elizabeth Marsh QC and Robert O'Sullivan (instructed by Crown Prosecution Service, Ipswich) for the Crown.

Held, allowing the appeals and substituting sentences of 11 and 12 years' imprisonment respectively, that a defendant had to have the opportunity of obtaining the verdict of a jury if there were an issue as to whether the robbery he was charged with fell within section 109(5)(h); that, therefore, a robbery would not fall within section 109(5)(h) unless it was clear from the indictment that, at the time of the robbery, the defendant had in his possession a firearm or an imitation firearm or the defendant had admitted unequivocally that that was the position; that, if the defendant had admitted unequivocally that that was the position, it was not necessary to clutter up the indictment with an additional firearms count purely for sentencing purposes; but that, if there was any doubt about the position, whether in relation to the first or the second alleged serious offence, the matter had to be resolved in favour of the defendant.

Extended licence period for sexual offences - offences committed before extended licence provision came into force - provision preventive not punitive so no breach of convention right

R v R (B): CA (Lord Justice Kennedy and Mr Justice Pitchers): 25 July 2003

The defendant was convicted of four offences of indecent assault committed between 1976 and 1982 and sentenced to concurrent terms of two years' imprisonment.

The judge ordered an extension to the licence period to which the defendant would normally have been subject pursuant to section 86 of the Powers of Criminal Courts (Sentencing) Act 2000.

The defendant appealed against the extended licence period on the ground that an order made under section 86 for an offence committed before 1 October 1992, when section 44 of the Criminal Justice Act 1991 (which introduced the power to extend licence periods) had come into force, violated article 7(1) of the European Convention on Human Rights, as being a heavier retrospective penalty.

He relied on R v JT [2003] EWCA Crim 1011, in which it had been held that the power under section 86 was punitive so that that section had to be read as not applying to offences committed before 1 October 1992.

Jonathan Goodman (assigned by the Registrar of Criminal Appeals) for the defendant; Tim Owen QC and Alison Macdonald (instructed by the Treasury Solicitor) as advocates of the court.

Held, dismissing the appeal, that, on the true analysis of the relevant statutory provisions and the way in which they had been interpreted in the domestic and European courts, an order for an extended licence period was preventive not punitive; that its operation related to the 'execution of the sentence' and was part of 'the machinery for carrying out the penalty'; that to add such an order to a sentence of imprisonment for an offence committed before 1 October 1992 was not to impose a heavier penalty than had been available when the offence had been committed and did not violate article 7; and that, according, R v JT had been wrongly decided.

(WLR)

Sexual offence - stroking woman's legs below the knee - capable of amounting to indecent assault

R v Price: CA (Lord Justice Clarke, Mr Justice Astill and Judge Peter Beaumont QC): 18 July 2003

The defendant asked the complainant, who was sales manager of an apartment block, if he could inspect one of the apartments.

He went to the staircase but then returned and asked the complainant to remove her shoes so that he could walk round the apartment carrying her ankle boots, which would help him decide.

He knelt in front of her and began to stroke her legs just below the knee over her trousers with both hands before stroking the boots which he repeatedly asked her to remove.

She was afraid of what he might do and eventually agreed to remove the boots the next day if he returned.

He then left and the complainant called the police.

When interviewed, the defendant told the police that it made him happy to touch women's shoes but he denied touching the complainant's legs.

The defendant was convicted of indecent assault.

He appealed against conviction on the grounds that those actions were incapable of amounting to an indecent assault.

Jonathan Barnard (assigned by the Registrar of Criminal Appeals) for the defendant; Simon Connolly (instructed by Crown Prosecution Service, Guildford) for the Crown.

Held, dismissing the appeal, that a jury should be asked to decide whether right-minded persons would consider the conduct indecent or not; that the evidence that the defendant had stroked the complainant's legs below the knee, if believed by the jury, was capable of amounting to an indecent assault; and that, accordingly, the judge had been right to leave the case to the jury.

(WLR)