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All England Law Reports/2011/Volume 3 /R v Williams - [2011] 3 All ER 969

[2011] 3 All ER 969

R v Williams

[2010] EWCA Crim 2552

COURT OF APPEAL, CRIMINAL DIVISION

THOMAS LJ, SILBER J AND JUDGE WADSWORTH QC

26 AUGUST, 2 NOVEMBER 2010

Road traffic - Unlicensed, disqualified or uninsured drivers - Causing death by driving - Whether offence re-
quiring fault or blameworthy conduct - Whether offence requiring that driving be substantial or major cause of
death - Road Traffic Act 1988, s 3ZB.

The defendant, who had no driving licence or car insurance, was driving his car on a dual carriageway. A
pedestrian crossed the southbound carriageway, crossed over the central reservation and stepped out in
front of the defendant's car. The following day the pedestrian died as a result of head injuries sustained in the
collision. The defendant was charged and subsequently tried on a single count of causing death by driving
without insurance and without a licence under s 3ZB a of the Road Traffic Act 1988. Under that section a
person was guilty of an offence 'if he causes the death of another person by driving a motor vehicle on a
road' and at the time when he was driving the circumstances were such that he was committing an offence
by driving otherwise than in accordance with a licence or driving whilst disqualified or using a motor vehicle
while uninsured. The evidence of other drivers was that the defendant had not been exceeding the speed
limit and that the pedestrian had stepped straight out into the path of the defendant's car. The judge rejected
a submission of no case to answer, ruling that the offence under s 3ZB could be committed without fault on
the part of a defendant. He summed up the case to the jury on the basis that the Crown did not have to prove
that there was any fault in the manner of the defendant's driving; the offence would be proved if the pedes-
trian's death had been caused by the defendant driving without insurance and without a licence. In relation to
'causing death' he said: 'the defendant's driving of this [car] on the occasion in question does not have to
have been the sole, the only, cause of death. It does not even have to be shown that it was the principal or
the main cause, or major cause, however you want to put it, but it has to be a contributing cause, other than
a merely minute or negligible contributing cause that you would discount, put to one side.' The defendant
was convicted. He appealed, contending that the offence under s 3ZB of 'causing death' could not be com-
mitted without some fault or other blameworthy conduct and that his sole fault had been a failure to have a
licence and insurance which was unrelated to the cause of the accident and the ensuing death. Alternatively,
he contended that 'cause' should be construed so that the Crown had to prove that the driving was a sub-
stantial or major cause of the death of the deceased. At the hearing, the Crown accepted that no fault, care-
lessness or lack of consideration in driving could be attributed to the defendant.

Held - (1) On the true construction of s 3ZB of the 1988 Act, 'cause' did not require blameworthy conduct.
The simple question for the court was whether

a
Section 3ZB is set out at [1], below
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[2011] 3 All ER 969 at 970

the death had been caused by driving without insurance or without a driving licence (see [9], [11] -[19], be-
low); R v Marsh [1997] 1 Cr App Rep 67 applied.

(2) It was sufficient if the driving was a cause of death that was more than minute or negligible. Authority es-
tablished that that was the meaning of 'cause' in causing death by dangerous driving and it was to be pre-
sumed that Parliament had not intended any different definition for s 3ZB. In the context of the other offences
where death resulted from driving it was difficult to conceive of any other intention of Parliament than that if a
person drove unlicensed or uninsured, he would be liable for death that was caused by his driving however
much the victim might be at fault; it was therefore sufficient that the cause was not negligi ble. Accordingly,
the appeal would be dismissed (see [9], [22], [23], [31]-[37], below); R v Hennigan [1971] 3 All ER 133 ap-
plied.

Notes

For causing death by driving: unlicensed, disqualified or uninsured drivers, see 90 Halsbury's Laws (5th edn)
(2011) para 774.

For the Road Traffic Act 1988, s 3ZB, see 37 Halsbury's Statutes (4th edn) (2009 reissue) 761.

Cases referred to in judgment

Alphacell Ltd v Woodward [1972] 2 All ER 475, [1972] AC 824, [1972] 2 WLR 1320, HL.

Empress Car Co (Abertillery) Ltd v National Rivers Authority [1998] 1 All ER 481, sub nom Environment
Agency (Formerly National Rivers Authority) v Empress Car Co (Abertillery) Ltd [1999] 2 AC 22, [1998] 2
WLR 350, HL.

Gammon (Hong Kong) v A-G of Hong Kong [1984] 2 All ER 503, [1985] AC 1, [1984] 3 WLR 437, PC.

Lord v Pacific Steam Navigation Co Ltd, The Oropesa [1943] 1 All ER 211, [1943] P 32, CA.

Pepper (Inspector of Taxes) v Hart [1993] 1 All ER 42, [1993] AC 593, [1992] 3 WLR 1032, HL.

R v Barnes [2008] EWCA Crim 2726, [2009] RTR 262.

R v Cheshire [1991] 3 All ER 670, [1991] 1 WLR 844, CA.

R v Curphey (1957) 41 Cr App Rep 78.

R v Dalloway (1847) 2 Cox CC 273.

R v Girdler [2009] EWCA Crim 2666, [2010] RTR 307.

 Page 3

R v Gould [1963] 2 All ER 847n, [1964] 1 WLR 145, Sussex Assizes.

R v Hennigan [1971] 3 All ER 133, CA.

R v Notman [1994] Crim LR 518, CA.

R v Marsh [1997] 1 Cr App Rep 67, CA.

R v Sk elton [1995] Crim LR 635, CA.

R v Smith [1959] 2 All ER 193, [1959] 2 QB 35, [1959] 2 WLR 623, C-MAC.

Sweet v Parsely [1969] 1 All ER 347, [1970] AC 132, [1969] 2 WLR 470, HL.

Appeal

Jason John Williams was convicted, under s 3ZB of the Road Traffic Act 1988 of the offence of
causing death by driving without insurance and without a licence, in the Crown Court at Swansea
after a trial before Judge Diehl QC, the Recorder of Swansea, and a jury. He was sentenced to nine
months' imprisonment and was disqualified from driving for two years. He appealed against convic-
tion and sentence. The facts are set out in the judgment of the court.
[2011] 3 All ER 969 at 971

Elwen Evans QC (assigned by the Registrar of Criminal Appeals) for the appellant.

Sarah Whitehouse (instructed by the Crown Prosecution Service) for the Crown.

Judgment was reserved.

2 November 2010. The following judgment of the court was delivered.

THOMAS LJ.

[1] The Road Safety Act 2006 created the offence of causing death by driving when unlicensed, disqualified
or uninsured by adding s 3ZB to the Road Traffic Act 1988 as follows:

'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 w hen he is driving, the circumstances are such that he is committing an offence under --(a)
section 87(1) of this Act (driving otherwise than in accordance with a licence); (b) section 103(1)(b) of this Act (driving
w hilst disqualified), or (c) section 143 of this Act (using a motor vehicle w hile uninsured or unsecured against third party
risks.'

The section came into force on 18 August 2008. This appeal raises two issues of construction on the section
creating the offence.

The factual background

 Page 4

[2] In late 2008 or early 2009 the appellant purchased a motor car. Although he had no driving licence or
insurance, he drove that car regularly. At about 6.20 pm on the evening of 10 February 2009, the appellant
was driving that car, still uninsured and without a licence, on a dual carriageway in the centre of Swansea
where there was a speed restriction of 30 mph. As he was so doing, David Loosemore crossed the south-
bound carriageway, crossed over the central reservation and stepped out in front of the car being driven by
the appellant. He was hit, propelled into the air and fell to the ground; the following day he di ed as a result of
head injuries sustained in the collision.

[3] The evidence of two other drivers was that the appellant was not exceeding the speed limit and that Mr
Loosemore stepped straight out into the path of the appellant's car. One of the drivers said that the appel-
lant's car was a maximum of three feet from the deceased when he stepped off the central reservation. The
appellant's own evidence was that Mr Loosemore had suddenly stepped out and there was nothing he could
do to avoid an accident. In this court, the Crown have accepted that no fault, carelessness or lack of consid-
eration in driving can be attributed to the appellant.

The trial

[4] The appellant was charged and subsequently tried at the Crown Court at Swansea on a single count of
causing death by driving without insurance and without a licence. The Recorder of Swansea, Judge Diehl
QC, rejected a submission of no case to answer, ruling that the offence could be committed without fault on
the part of the appellant. In accordance with his ruling he summed the case up to the jury on the basis that
the prosecution did not have to prove there was any fault in the manner of the appellant's driving; that the
offence was proved if Mr Loosemore's death had been caused by the appellant driving without insurance and
without a licence. He said that the issue for the jury to determine was whether they were sure that the de-
fendant's driving of his car was:
[2011] 3 All ER 969 at 972
'a cause of Mr Loosemore's death. I say a cause ladies and gentlemen because you may appreciate, if you think about
it for just a few moments, that more than one cause may contribute to an event, a result, more than one cause may
contribute. A cause may be the action or actions of the victim himself, but there may be more than one cause operating
to bring about that result. In other w ords, the defendant's driving of this BMW on the occasion in question does not
have to have been the sole, the only, cause of the death. It does not even have to be show n that it w as the princ ipal or
the main cause, or major cause, how ever you want to put it, but it has to be a contributing cause, other than a merely
minute or negligible contributing cause that you w ould discount, put to one side.'

[5] As he was concluding his summing up the jury asked the following question:
'If as a jury w e think that Mr Loosemore's stepping into the road w as the principal, main or major cause of death does
that influence our consideration of Mr Williams' driving still being a cause of Mr Loosemore's death?'

He answered it as follows:
'So I w ill just go over again if it helps w hat I said previously, that there may be more than one cause contributing to an
event or a result, and, as I said to you, one contributor in that sense may be the victim himself or herself. It does not
have to be show n that the defendant's driving was the sole, only cause of death, it does not have to be show n that his
driving w as the principal, major or substantial cause of it, but it has to be show n, it has to be proved, so that you are
sure, that his driving w as a contributing cause other than a merely minute or negligible one, w hich in your judgment you
should discount. So the short answ er is, "no, that w ould not affect your consideration of the question if you w ere to
conclude that the deceased's action in stepping into the road w as, say, the principal cause of death, that w ould not ex-
clude another true cause".'

The jury during the course of retirement asked another question in relation to causation and the judge an-
swered in a similar way.
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[6] The appellant was convicted and sentenced by the judge on this offence to a period of nine months' im-
prisonment; he was disqualified from driving for two years.

The issues on the appeal

[7] His appeal, ably and clearly presented to this court by Miss Elwen Evans QC can be summarised as
follows. (i) The offence could not be committed without some fault or other blameworthy conduct on the part
of the appellant. 'Cause' as used in the subsection must be construed as importing some fault or other
blameworthy conduct. There was no blameworthy conduct; his sole fault was a failure to have a licence and
insurance which was unrelated to the cause of the accident and the ensuing death. (ii) If that construction of
'cause' was not correct, the word should be construed so that the Crown did not merely have to prove the
appellant's driving was 'a cause' which was not minimal but was a substantial or major cause of the death of
the deceased. The facts clearly established that the substantial or major cause of death was due to the ac-
tions of Mr Loosemore and not those of the appellant.
[2011] 3 All ER 969 at 973

[8] On behalf of the Crown it was contended by Miss Whitehouse, to whom we are also indebted for her
clear and able argument, that although she accepted that normally the result of a defendant's act had to be
shown to be attributable to a culpable or blameworthy act, on the construction of this statute, Parliament
must have intended that this was not required. It was sufficient if the conduct of the accused was a cause of
the death of the deceased provided it was not minimal.

[9] Although the diligence of both Miss Evans and Miss Whitehouse had produced for the court a substan-
tial number of extracts from the debates in Parliament, it was accepted by both that the test in Pepper (In-
spector of Taxes) v Hart [1993] 1 All ER 42, [1993] AC 593 was not met. We did not therefore consider any
of the extracts from the debates and proceeded to look at the matter as one of statutory construction. We will
therefore consider each of the two issues in turn: (1) was fault or another blameworthy act required; (2) was
it sufficient that the appellant's driving was a cause of the death? We consider the answer to the questions
are clear. Blameworthy conduct was not necessary; it was sufficient that the driving was a cause. Our rea-
sons are as follows.

(1) Was fault or another blameworthy act required?

[10] As we have set out, Miss Whitehouse accepted that it was ordinarily not enough to show that what had
happened which was charged as a crime was caused by the conduct of the defendant, but that that conduct
also had to be blameworthy. It was submitted that this was established in the development of the common
law.

[11] Clearly this must be so; there had been a time when the criminal law imposed strict liability, but there
developed the requirement that morally blameworthy conduct was required: see Russell on Crime (12 edn,
1964) pp 18-25. We agree with Miss Whitehouse that R v Dalloway (1847) 2 Cox CC 273 (to which she ini-
tially referred us) is not clear authority for the general proposition that there must be a blameworthy act to
prove that a defendant caused a result in a legal sense. The general principle is, however, clear. Although
the requirement of morally blameworthy conduct is the background against which the intenti on of Parliament
in attributing criminal liability without blameworthy conduct must be considered (cf Sweet v Parsely [1969] 1
All ER 347 at 349, [1970] AC 132 at 149 and Gammon (Hong Kong) v A-G of Hong Kong [1984] 2 All ER 503
at 508, [1985] AC 1 at 14), the question for the court is whether when Parliament enacted this offence it in-
tended to and did depart from the general principle.

[12] The 1988 Act (as amended) contains three other provisions creating offences where the defendant's
driving has caused death: (i) causing death by dangerous driving (ss 1 and 3) where the penalty is 14 years'
imprisonment; (ii) causing death by careless driving when under the influence of drink or drugs (s 3A) where
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the maximum penalty is 14 years' imprisonment; (iii) causing death by careless or inconsiderate driving (s
2B) where the maximum penalty is five years' imprisonment. Section 3ZA defines careless and inconsiderate
driving in the following terms:
'(2) A person is to be regarded as driving w ithout due care and attention if (and only if) the w ay he drives falls below
w hat would be expected of a competent or careful driver ...

(4) A person is to be regarded as driving w ithout reasonable consideration for other persons only if those persons are
inconvenienced by his driving.'

[2011] 3 All ER 969 at 974

[13] It was therefore submitted on behalf of the Crown that it could be inferred that as Parliament had en-
acted the offence of causing death while driving whilst unlicensed, disqualified or uninsured, Parliament
cannot have intended that any fault was necessary as it had already provided for death by driving involving
simple or low level fault with the offence of death by careless or inconsiderate driving.

[14] In R v Marsh [1997] 1 Cr App Rep 67 the court had to consider the provision under s 12(A)(1) of the
Theft Act 1968 relating to aggravated vehicle taking. That section provided that a person who committed the
basic offence of vehicle taking was to be convicted of aggravated vehicle taking, if it was proved that the ve-
hicle was driven or injury or damage caused in circumstances including: 'That, owing to the driving of the ve-
hicle, an accident occurred by which injury was caused to any person.' The defendant in that case was con-
victed of the offence in circumstances where an accident had happened where he had not been at fault. It
was asserted on his behalf, both in the Crown Court and on appeal, that no liability could attach to him under
the section unless it was proved that the accident had been occasioned by culpable driving on his part. In the
judgment of the court, upholding the direction of the Assistant Recorder that fault was not required, it was
said:
'In a sense, of course, the manner in w hich the vehicle w as being driven is necessarily relevant. If in this case the car
w as being reversed at the time, the accident w ould not have occurred. But it is unhelpful, in our judgment, to gloss the
statute by referring to the manner or mode of driving: the w ords are plain and simple. In our view the question for the
court on their proper construction is, w as the driving of the vehicle a cause of an accident? Any other approach w ould
require the court to read in w ords which are not there.'

We consider that the approach of this court in R v Marsh applies even more clearly to the offence under s
3ZB; fault is not required. The simple question for the court is whether the death was caused by driving
without insurance or without a driving licence.

[15] Indeed this appears to have been the view of the many who have commentated upon the section. For
example in Smith and Hogan Criminal Law (12th edn, 2008) p 1111 the current editor, Professor Ormerod
says:
'The Road Safety Act 2006 introduced in s.21 these controversial new offences of causing death w hile driving when un-
licensed, disqualified or uninsured ... These are stark examples of constructive liability offences where the culpable
conduct is unrelated to the manner of the causing of the death. All that needs to be proved is that the defendant w as
driving w hen he did not have a valid licence or insurance or had been disqualified from driving, and w as involved in a
fatal collision. Even if D's driving w as flawless and the collision w as solely the fault of another, or even if V w as solely at
fault in running out in front of D, D w ill be convicted of the statutory homicide offence. Commentators have been scath-
ing of the breadth of the offences with Ferguson for example, describing them as a "fundamental alteration of criminal
law policy". There is nothing more than a factual causal link betw een D being unlaw fully on the road and the fatality.
Some commentators argue how ever, that such offences are not objectionable in themselves because they reflect the
enormity of the consequence of death, but that the sentence is inappropriately harsh. The

[2011] 3 All ER 969 at 975

argument that the culpability of the unlaw ful driver for being on the road w hen he w as uninsured poses a danger w hich
justifies a homicide offence if a fatality arises is a w eak one, and only marginally stronger in cases of unlicensed or
disqualified drivers. The truth is that these offences are simply concessions to the expectations of the general public
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that because a death has occurred, someone ought to be blamed for it. The mismatch betw een fault and consequenc-
es is striking.'

[16] To similar effect it is the view in Wilk inson's Road Traffic Offence (24th edn, 2009) under the distin-
guished editorship of Mr Kevin McCormac where it is said:
'The question of causation may w ell prove problematical in practice for both the courts and prosecuting authorities. It
w ould appear from the w ay in w hich the statute has been framed that the nature and quality of the driving concerned is
irrelevant; it is the very act of driving a motor vehicle on a road (but not on any other public place) w hich constitutes the
first element of the offence. Whilst a disqualified driver may generally speaking be presumed to be aw are of the crimi-
nality of his actions w hen deciding to drive, it is not hard to envisage circumstances in w hich due to inadvertence, or
ignorance of the actions of other parties such as banks or insurance companies (or indeed the DVLA), an otherw ise
law -abiding motorist w ho despite driving perfectly properly is involved in an accident w hich leads to the death of anoth-
er person may be faced w ith the prospect of prosecution and potential incarceration for an offence under this legisla-
tion.'

[17] Similarly Professor Michael Hirst in an article in the Criminal Law Review [2008] Crim LR 339 entitled
'Causing Death by Driving and Other Offences: A Question of Balance' says at p 344:
'Lack of sympathy for disqualified or uninsured drivers should not how ever blind us to the fact that this new offence
corrupts the usual principles governing causation. It appears that D may be convicted of "causing" death w ithout his
actual driving being at fault. If D's uninsured car is involved in a collision w ith V's motorcycle and V is killed, D w ill au-
tomatically be guilty, even if the accident w as entirely V's fault. It is clear from the authorities that D may still be "driv-
ing" even w hen his vehicle is stationary. It may be no defence, therefore, that D w as waiting patiently at traffic signals
w hen V rode into the back of his car.'

[18] Although each of these passages sets out severe criticism of the policy of Parliament in enacting the
provision, none suggests that the words are other than clear and that the offence can occur without any
blameworthy conduct. In our view, as a matter of simple statutory construction, that is plainly right.

[19] Furthermore if the section were to be interpreted to require any blameworthy conduct, bearing in mind
the very wide scope of the offence of causing death by careless and inconsiderate driving, it is difficult to see
what purpose the offence could have. Indeed Miss Evans, when asked by the court if she could give an ex-
ample of circumstances where there could be some fault or blameworthy conduct on the part of an uninsured
or unlicensed driver which would not also be caught by the offence of causing death by careless or inconsid-
erate driving, she very fairly accepted she could think of none, though
[2011] 3 All ER 969 at 976

she added, quite rightly, that the fact that an illustration could not be readily identified did not mean that one
might not exist. To hold that blameworthy conduct was required would be to re-write s 3ZB.

(2) Was it sufficient that the appellant's driving was a cause of the death?

[20] The judge in his directions to the jury was clear and unequivocal. He told the jury that providing the
appellant's driving was a cause which was not minimal then the appellant was guilty of the offence. It is clear
from the question asked by the jury that they had considered this carefully, as they wished to know whether it
had to be a major cause. They were told it did not in unequivocal terms.

[21] Miss Evans argued that if, contrary to our view, no blameworthy conduct was required, Parliament
must have intended that it was insufficient if the driving was simply a cause; it had to be shown to be a major
or substantial cause. The judge's direction in this respect was wrong. As was shown by the jury's question, if
the jury had been directed that it had to be a major or substantial cause, the verdict may well have been dif-
ferent.
 Page 8

[22] In our view the correctness of the judge's direction is clear from R v Hennigan [1971] 3 All ER 133. In
that case this court, presided over by the then Lord Chief Justice, Lord Parker CJ, had to consider the ques-
tion of causation in the context of the offence of causing death by dangerous driving. In answer to a question
from the jury the trial judge said:
'You have only one man before you, and you are not concerned in any civil claim or w ith compensation. All you have to
find is w hether this man, in your charge, w as guilty of dangerous driving which was a substantial caus e of the death of
these tw o people, and I hope I have explained "substantial" to you effectively.'

This court observed (at 135):

'What is said, as the court understands it, is that that conveyed the impression to the jury that they could find the ap-
pellant guilty if he w as only little more than one-fifth to blame. The court w ould like to emphasise this, that there is of
course nothing in s 1 of the Road Traffic Act 1960 which requires the manner of the driving to be a substantial cause,
or a major cause, or any other description of cause, of the accident. So long as the dangerous driving is a cause and
something more than de minimis, the statute operates. What has happened in the past is that judges have found it
convenient to direct the jury in the form that it must be, as in one case it w as put, the substantial cause. That case w as
the case w hich Finnemore J gave a direction to the jury in R v Curphey [(1957) 41 Cr App Rep 78]. That, in the opinion
of this court, clearly w ent too far, and Brabin J in a later case of [R v Gould [1963] 2 All ER 847n, [1964] 1 WLR 145],
left it to the jury in the form of "a substantial cause". Although the w ord "substantial" does not appear in the statute, it is
clearly a convenient w ord to use to indicate to the jury that it must be something more than de minimis, and also to
avoid possibly having to go into details of legal causation, remoteness and the like. That appears from the further direc-
tion of the trial judge, w ho in terms said that it must not be remote, and that it must be a real cause as opposed to being
a minimal cause. It is perhaps unfortunate that he dealt w ith the matter in the illustration he gave on the basis of appor-
tioning

[2011] 3 All ER 969 at 977

blame, but w hen one analyses it, it is quite clear that the direction, if anything, w as much too favourable to the appel-
lant in that the court is quite satisfied that even if he w as in this case only one-fifth to blame, he w as a cause of the
death of these tw o people. In these circumstances the appeal is dismissed.'

[23] That is the short and simple answer to the submission. However, in deference to the argument of Miss
Evans, we will set out our reasons for the rejection of her argument at greater length. It was contended by
Miss Evans that the appellant could not have been said in any ordinary sense of the word 'cause' to have
caused the death of Mr Loosemore when the established facts were such that the cause of the accident were
the actions of Mr Loosemore and not those of the appellant. It was pointed out that there could be no sus-
tainable civil claim by Mr Loosemore or his estate against the appellant because he had not been in any way
at fault; the fact that he was uninsured made no difference as there could be no call upon the insurers. It was
also submitted that the absence of a licence and insurance played no part in the occurrence of the accident;
they were in no sense causative, as the accident was caused by Mr Loosemore's fault. If the Crown's con-
struction of the section was correct, an uninsured or unlicensed driver would have committed the offence
even where (1) a drunk driver or a person driving dangerously drove his vehicle into the defendant's vehicle
and then died, or (2) a pedestrian who intended to commit suicide stepped into the path of the defendant's
vehicle or (3) where in a multiple car pile-up the uninsured driver was towards the back of the chain of cars in
the pile-up.

[24] It was also submitted that support could be found in the Crown Court Bench Book , published by the
Judicial Studies Board in 2010, in the explanation provided in relation to the general rule on causation at pa-
ra (9)3:
'There may be more than one cause. The prosecution must usually establish that the defendant's act w as a substantial
cause of the "result", by w hich is meant more than a minimal cause. (Hennigan). In 2002, a Law Commission Working
Party, making proposals for codifying the concept of causation in the criminal law settled on the description "made a
substantial and operative contribution to" w hich, it is suggested, is an elegant and accurate synonym of "caused".'
 Page 9

[25] The report of the Law Commission Working Party referred to in the Bench Book was never published.
However, as it had been referred to in a public document and was strongly relied on by Miss Evans for the
appellant, we are grateful to the Law Commission for making available to the parties and to the court a draft
report of 2003 containing the wording referred to in the Bench Book . We were told that there was no final
version of the report; the drafts had not been circulated beyond the Law Commission and consultees; a sub-
sequent draft had omitted the words referred to in the Bench Book .

[26] The 2003 draft report is in fact a commentary on elements of the draft criminal code annexed to a Law
Commission report A Criminal Code for England and Wales (Law Com no 17) published in 1989 which is
based on a draft criminal code contained in a report in 1985 to the Law Commission by a team led by the late
Professor Sir John Smith.

[27] It would not normally be apposite for a court to be referred to an unpublished working draft of a Law
Commission working party report which had subsequently been revised, but as it has been referred to in the
Crown Court
[2011] 3 All ER 969 at 978

Bench Book as containing an 'elegant and accurate synonym' for causation, it is necessary to consider it.
Moreover as the draft is not publicly available, it is necessary to explain the background and refer to the rel-
evant paragraphs in the draft.

[28] The 1989 draft code had contained at 17(1) a definition of causation for a result crime (as the offence
of causing death by driving can be categorised) that included doing: 'an act which makes a more than negli-
gible contribution to its occurrence.'

[29] A debate had then ensued as to whether a definition of causation should be included in the code: see
for example, Professor Glanville Williams: 'Finis for Novus Actus' [1989] CLJ 391 at 396-397. Indeed Pro-
fessor Glanville Williams wrote to the Law Commission to say that the definition did not give the barest indi-
cation that a question of moral responsibility or causation was involved; he suggested a definition which re-
quired the defendant to do an act that in fact caused the result and was not 'too remote, too trivial or too ac-
cidental to have a just bearing on the doer's liability or on the gravity of the offence'. The Law Commission
considered that it should look into the issue more fully, rejecting the view that in most cases the jury were not
concerned with moral questions but with an issue of fact.

[30] Amongst the tasks of the Working Party was to examine the issue of definition of 'cause'. Two para-
graphs of the 2003 draft report are relevant to the term used in the Crown Court Bench Book . After referring
to the draft definition in 17(1) of the 1989 code, the draft 2003 report continues:
'The case law refers to the terms "substantial" ([R v Smith [1959] 2 All ER 193, [1959] 2 QB 35], Hennigan, [R v Not-
man [1994] Crim LR 518]) or "significant" ([R v Cheshire [1991] 3 All ER 670, [1991] 1 WLR 844]) rather than "more
than negligible". We take the view that there is no need to employ the more complex notion of more than negligible
w hen a single common place w ord will suffice. We therefore propose to replace "more than negligible" w ith "significant"
so that 17(1) w ill read:

"... he does an act that w hich makes a significant contribution to its occurrence"

We have chose the w ord "significant" rather than "substantial" because, as a number of our respondents pointed out,
there may be a discrepancy between the popular and the legal meaning of substantial. The popular use for the w ord
normally connotes something akin to "principal" or "predominant". On the other hand, the courts have treated the w ord
"substantial" as meaning more than "de minimis". In order to remove any confus ion we prefer to use the w ord "signifi-
cant". The case law has made it clear that a cause need not be the sole or main cause for it to be a legal cause and
therefore it w ould be w rong for the fact finders to be thinking in those terms. In order to make it absolutely clear that a
cause may be "significant", even if it is not the sole or main cause, w e are proposing to add an additional subsection:
 Page 10

"A defendant's act may significantly contribute to the occurrence of a result even though his act is not the sole or main
cause of the result."

[31] It is, we think, necessary to refer to these authorities. (i) We have set out at length the decision in R v
Hennigan [1971] 3 All ER 133. (ii) R v Smith [1959] 2 All ER 193, [1959] 2 QB 35 was a case where the issue
of causation arose in a
[2011] 3 All ER 969 at 979

murder where the defendant had stabbed a fellow soldier and a number of further events occurred which
bore on the cause of death. It was in essence a case about breaking the chain of causation, as the citation of
a well-known passage of Lord Wright in Lord v Pacific Steam Navigation Co Ltd, The Oropesa [1943] 1 All
ER 211, [1943] P 32 demonstrates. This court rejected the submission that the original wound had to be the
sole cause; it was sufficient if the wound had been 'an operating cause and a substantial cause' ([1959] 2 All
ER 193 at 198, [1959] 2 QB 35 at 42). The court continued:
'Only if it can be said that the original w ounding is merely the setting in w hich another cause operates can it be said
that the death does not result from the w ound. Putting it in another w ay, only if the second cause is so overwhelming as
to make the original w ound merely part of the history can it be said that the death does not flow from the w ound.' (See
[1959] 2 All ER 193 at 198, [1959] 2 QB 35 at 43.)

(iii) R v Cheshire [1991] 3 All ER 670, [1991] 1 WLR 844 was a case where the defence to murder was that
there had been negligent treatment of the injuries. This court reviewed the authorities in cases where a sub-
sequent matter had been said to be a cause of the death. This court concluded that there were real difficul-
ties in formulating and explaining a general concept of causation; in cases of negligent treatment, it was or-
dinarily sufficient for the judge to direct the jury that they must be sure that --
'the acts of the accused caused the death of the deceased, adding that the accused's acts need not be the sole cause
or even the main cause of death, it being sufficient that his acts contributed significantly to that result ... We think the
w ord "significant" conveys the necessary substance of a contribution to the death w hich is more than negligible.' (See
[1991] 3 All ER 670 at 677, [1991] 1 WLR 844 at 852.)

(iv) The very brief report of R v Notman [1994] Crim LR 518 (whether an injury had been caused by the de-
fendant charged with an assault occasioning actual bodily harm) makes clear that the court was following R v
Hennigan.

[32] These cases demonstrate, in our view, that is not always possible to deal with the issue by the use of
'significant' or 'substantial'. Indeed as the decisions in relation to causing death by dangerous driving in R v
Sk elton [1995] Crim LR 635, R v Barnes [2008] EWCA Crim 2726, [2009] RTR 262 and R v Girdler [2009]
EWCA Crim 2666, [2010] RTR 307 illustrate, more elaborate directions may be needed. The need for a tai-
lored approach is clear from Empress Car Co (Abertillery) Ltd v National Rivers Authority [1998] 1 All ER
481, sub nom Environment Agency (Formerly National Rivers Authority) v Empress Car Co (Abertillery) Ltd
[1999] 2 AC 22. In that case the House of Lords had to consider the meaning of cause in the context of an
offence of causing a pollutant to enter a river where a stranger had opened a valve which allowed discharge
of pollutant into the river. Lord Hoffmann made clear ([1998] 1 All ER 481 at 486, [1999] 2 AC 22 at 29):
'The courts have repeatedly said that the notion of "causing" is one of common sense. So in Alphacell Ltd v Woodward
[1972] 2 All ER 475 at 490, [1972] AC 824 at 847 Lord Salmon said: "... w hat or w ho has caused a certain event to oc-
cur is essentially a practical question of fact w hich can best be answ ered by ordinary common sense rather than by ab-
stract metaphysical theory." I doubt w hether the use of abstract metaphysical

[2011] 3 All ER 969 at 980

theory has ever had much serious support and I certainly agree that the notion of causation should not be overcompli-
cated. Neither, how ever, should it be oversimplified. In the Alphacell case [1972] 2 All ER 475 at 479, [1972] AC 824 at
834, Lord Wilberforce said in similar vein: "In my opinion, 'causing' here must be given a common sense meaning and I
 Page 11

deprecate the introduction of refinements, such as causa causans, effective cause or novus actus. There may be diffi-
culties w here acts of third persons or natural forces are concerned ..." The last concession was prudently made, be-
cause it is of course the causal significance of acts of third parties (as in this case) or natural forces that gives rise to
almost all the problems about the notion of "causing" and drives judges to take refuge in metaphor or Latin.'

Lord Hoffmann then considered the way common sense notions of causation treat the intervention of third
parties or natural forces, concluding after a review of some cases:
'These examples show that one cannot give a commonsense answer to a question of causation for the purpose of at-
tributing responsibility under some rule w ithout knowing the purpose and scope of the rule.' (See [1998] 1 All ER 481 at
488, [1999] 2 AC 22 at 31.)

[33] In our view, applying this approach, it is therefore necessary for us to consider the meaning of cause
as used in s 3ZB of the 1988 Act in the context of the intention of Parliament. First, the meaning of cause in
death by dangerous driving was decided by R v Hennigan. That decision makes clear it is a cause if it is
more than negligible or de minimis. We do not think that Parliament can have intended any different defini-
tion for s 3ZB. Indeed the presumption is to the opposite effect --see Bennion on Statutory Interpretation (5th
edn, 2008) p 711, s 235:
'Tacit legislation Parliament is normally presumed to legislate in the know ledge of, and having regard to, relevant judi-
cial decisions. If therefore Parliament has a subsequent opportunity to alter the eff ect of a decision on the legal mean-
ing of an enactment, but refrains from doing so, the implication may be that Parliament approves of that decision and
adopts it. This is an aspect of w hat may be called tacit legislation.'

[34] Secondly, in the context of the other offences where death results from driving (as we have set out at
para [12], above), it is difficult to conceive of any other intention of Parliament than that if a person drove un-
licensed or uninsured, he would be liable for death that was caused by his driving however much the victim
might be at fault; it was therefore sufficient that the cause was not negligible. It may be a harsh and punitive
measure with an evident deterrent element, but it is difficult to see how anything else can have been intend-
ed.

[35] As is clear from all the cases, it is for the judge in each case to determine how to explain the meaning
of causation to the jury in the context of the offence before the court. In many cases, no need will arise. But
where it does the use of the terms 'substantial' and 'significant' have been suggested in that context as con-
veying the meaning that the cause must be 'more than negligible'. The tenor of the draft 2003 report is to the
same effect, though in the context of the much more definitive task of codification. However the words 'sub-
stantial' and 'significant' can give rise to further difficulty. For
[2011] 3 All ER 969 at 981

example, substantial can be defined in this context as 'essential or material' or 'firmly established' or
'weighty'; 'significant' can be defined to mean 'important'. The terms may not convey the necessary clarity
required in every case.

[36] In a case such as the present, it seems to us that the task of the judge is to explain to the jury what is
meant by cause. A simple reference to 'significant' or 'substantial' would in the present case have been insuf-
ficient, as the terms could easily have been misunderstood. It is evident from the jury's question that they
considered 'the principal, main or major' cause of the death was Mr Loosemore stepping into the road. Had
the judge used the terms 'significant' or 'substantial', he would not have conveyed the meaning as decided in
R v Hennigan (and as applied in R v Barnes and R v Girdler) and in our view plainly intended by Parliament
in relation to s 3ZB. As the comments in relation to this offence we have set out at paras [15] -[17], above,
make clear, some take the view that the offence is objectionable in principle. It is therefore particularly im-
portant that the jury is given clear guidance as to the meaning of the section in cases such as this; the rea-
 Page 12

sons are well explained by Mrs Nicola Padfield in 'Clean Water and Muddy Causation: is causation a ques-
tion of law or fact or just a way of allocating blame' [1995] Crim LR 683 pp 692-693. A jury must clearly un-
derstand the statutory legal requirements. The judge was right therefore to explain to the jury that what was
necessary was a cause that was more than minute or negligible, as that is what Parliament clearly i ntended.

Conclusion

[37] We therefore dismiss the appeal for the reasons set out. At the hearing, we allowed the appeal against
sentence and substituted a sentence of 24 weeks. A custodial sentence was plainly appropriate, but in the
light of all the circumstances, too long.

Appeal against conviction dismissed. Appeal against sentence allowed.

Carla Dougan-Bacchus Barrister.