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Royal Courts of Justice

The Strand

London WC2

Thursday 15th April 1999

B E F O R E :

LORD JUSTICE LAWS

MR JUSTICE GARLAND

and

HIS HONOUR JUDGE CRANE

(Acting as a Judge of the Court of Appeal Criminal Division)

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R E G I N A

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STEPHEN RICHARD LANG

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Computer Aided Transcript of the Stenograph Notes of

Smith Bernal Reporting Limited

180 Fleet Street, London EC4A 2HG

Tel No: 0171 421 4040 Fax No: 0171 831 8838

(Official Shorthand Writers to the Court)

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MISS JULIA SMART appeared on behalf of the APPELLANT

MISS EMMA SMITH appeared on behalf of the CROWN

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JUDGMENT

( As approved by the Court )

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Crown Copyright

Thursday 15th April 1999

LORD JUSTICE LAWS: On 23rd July 1998 at the Maidstone Crown Court the appellant was convicted of a single count of dangerous driving after trial by a jury before His Honour Judge Neligan. He was fined £100, with seven days' imprisonment in default and was disqualified from driving for twelve months. There were two other matters before the court which had been committed under section 41 of the Criminal Justice Act 1988. One was using a vehicle without insurance and the other, failing to provide a specimen of breath. However, the Crown Court found that the pleas which had been entered to those charges had been equivocal and so, as was appropriate, they were remitted to the magistrates' court. The appellant now appeals against his conviction for dangerous driving by leave of the single judge.

In outline the prosecution case was as follows. It was at about 1.30 pm on 3rd September 1997 in Ashford that the appellant was driving a rented Volkswagen Polo. In the car were six children aged between 6 and 15. The time came when he was followed for some distance by a detective constable in an unmarked car. His evidence was to be that the appellant swerved across the carriageway and exceeded the speed limit. The appellant, who gave evidence on his own behalf, told the jury (in answer, as it happens, to a question from the judge) that he was driving perfectly normally until he realised he was being followed. He was to say he thought he was being followed by someone in what is now called a 'road rage' and so was seeking to get away from him. The officer, following at speed, eventually brought the appellant's car to a halt because the two vehicles collided. He arrested the appellant not on suspicion of dangerous driving but for theft, his suspicion being that the car may have been stolen. The appellant was taken to the police station, where he was held for some time before in due course he was told that he was being reported for dangerous driving.

In view of the single ground of appeal upon which we have found it necessary to hear argument, it is appropriate to describe the evidence in the case in rather more detail.

The detective constable in question was Mr Apperley. He was the only Crown witness as to the manner of the appellant's driving. He was on duty in Ashford in plain clothes at the time and, as we have said, driving an unmarked police car. He noticed the appellant's Volkswagen Polo at about 1.20 pm, when it was on his offside as he waited at a set of traffic lights. He was to tell the jury that the Polo's engine was being revved at a very high pitch. The lights changed. DC Apperley said the Polo pulled away some six lengths in front of him. It moved from the offside of the three lanes of traffic across to the nearside, then into a slip road and on to Romney Marsh Road, which is a dual carriageway. According to the officer, as the Polo turned the corner its brakes were applied so that the car, as it were, leant over on one side. Then it accelerated off at speed. The officer estimated the speed to be about 60 mph by reference to his own speed. The prevailing speed limit was 40 mph. The Polo negotiated a second roundabout at speed again, and again leaning over, as if careening on two wheels. DC Apperley said he was seven or eight car lengths behind the Polo at this point and could see the heads of children inside the vehicle. He estimated the Polo's speed at 70-75 mph as it drove towards the Bad Munstereifel Road. It approached the roundabout there and swerved from the offside to the nearside lane. Then it braked hard, entered the roundabout in the middle lane and continued straight over. DC Apperley said the car was being driven erratically and at high speed, moving across the carriageway, accelerating and braking hard.

He told the jury that he then contacted the police station at Ashford on his police radio so that a marked police vehicle could be alerted and brought to the scene. As will become apparent, this reference to the radio message is at the centre of the appeal. The officer continued to follow the Polo along the Ashford Road, where it again accelerated to a speed in excess of the prevailing limit of 40 mph. At the Magpie Hall turn the Polo indicated an intention to turn right and at this stage DC Apperley caught up with it. He followed it into Magpie Hall Road. It approached the Stubbs Cross turn and again accelerated hard. The speed by now was estimated by the officer at about 70 to 75 mph. The car then pulled into the nearside. The officer said as he stopped behind it, it pulled out directly in front of another vehicle, a four-wheel-drive Shogun and accelerated away. The officer followed. Temporarily he lost sight of the Polo because the Shogun was between the two of them. As he passed the entrance to a quarry in Mock Lane he saw a cloud of dust and stopped sharply and reversed back along Mock Lane towards the quarry entrance. Then it was that his vehicle and the Polo collided. DC Apperley opened his car door and told the appellant that he was a police officer. The appellant, on the officer's evidence, shouted back, saying that the officer was harassing him and scaring his children. He said that he did not believe that Mr Apperley was a police officer and attempted to leave the scene. The officer said that he restrained him against one of the vehicles and showed him his warrant card. The appellant then calmed down. DC Apperley arrested the appellant, as we have said, on suspicion of theft of the Polo.

Other officers arrived at the scene, but it is not necessary to describe any of the other evidence given on behalf of the Crown.

The appellant told the jury that he had been driving a hired Volkswagen Polo on the day in question because his own car had been earlier stolen. He was on his way with the children to his sister's house and he knew the route well. He said he drove at the same speed as the rest of the traffic as he went down Station Road, although he thought he had driven somewhat over the speed limit of 70 on the dual carriageway. He denied that his car had leaned over to one side as he moved from the centre lane to the nearside lane to exit on the slip road towards Romney Marsh Road. On that road he said he noticed a Peugeot very close behind him. This was the officer's unmarked car. He said he was driving perfectly normally as he negotiated the roundabout at the junction with Bad Munstereifel Road. He then realised that there was a car extremely close to him accelerating, as he thought, to keep up with him. The appellant was aware that the Peugeot driver was upset by something and he feared a road rage incident. So it was that he increased his speed to 60 or 70 mph in an effort to get away from the Peugeot car. In Magpie Hall Road, fearing that the appellant driver was chasing him, he stopped so that it might pass by. But the Peugeot also stopped. So, he said, he became yet more frightened. He deliberately pulled out in front of the Shogun so as to put it between his car and the Peugeot. He said that he had not then turned into Tally Ho Road, which is where he intended to go, because he wanted to get away from the Peugeot. He thought at this point that his speed was about 50 mph. The Shogun was behind him. He turned into Mock Lane, then into the quarry entrance, hoping that the Peugeot would pass and its driver would not see him. Indeed, the Peugeot shot past but, on the appellant's evidence, it then stopped and violently reversed. The appellant tried to turn out of the quarry in the direction from which he had come, but the Peugeot continued to reverse at speed, crashing into his car. It was the appellant's view that the Peugeot driver had deliberately collided with his car. He had been very frightened during the course of the incident. He said that he opened his door and reversed a short distance in order to try to get around the Peugeot and caught the open door of the Peugeot as he did so. He shouted at DC Apperley, who took hold of him and pushed him against the car. The appellant thought he was being assaulted and said that he was relieved when he saw the officer's warrant card and realised that he was indeed a police officer. As we have said, it was in answer to a question from the judge that the appellant told the jury that he drove responsibly and carefully throughout the incident, having, as was the fact, children in the car.

Two of the children gave evidence for the defence, but it is not necessary to describe the details of their testimony.

The first ground of appeal and, as will appear, the only one which it is necessary to canvass is that the learned judge ought to have acceded to a submission which was made to him that he should stay the proceedings as an abuse of the process of the court. That submission related to the evidence of DC Apperley to the effect that he had alerted other officers to the appellant's driving by using his police radio. The radio message would certainly have been recorded. However, the tape which recorded the message or messages had been destroyed. This matter was raised before the judge. The judge, rightly in our view, found that since the tape was material relevant to an investigation under paragraph 2.1 of the relevant statutory Code of Practice, its destruction was in breach of the mandatory requirements of paragraph 5.1 of the code. But the appellant sought not only such a finding from the judge but, as we have said, an order that the case be stopped. It was said that without the tape the appellant was deprived of an essential piece of material without which his trial could not be fair.

Faced with this submission the judge heard evidence from DC Apperley on a voir dire in the absence of the jury. He said this:

"It is submitted to me that its destruction [that is the tape] was such an abuse of the process of the court that I ought not to permit this prosecution to continue. It relates, it is submitted, to the very issue, the nature of the driving, that the jury will have to decide. If that were right, I would agree with that submission.

In order to test the matter, I heard from the officer whose messages were recorded. He has told me that he used his radio to report a dangerous driver and to request uniformed officers in a marked car to attend to stop the defendant's vehicle. Such messages as he passed were designed to inform those officers of his whereabouts so that they might go to the right place. He may, he told me, have made reference to the manner of the driving, but it was not a full commentary of the driving now complained of. Furthermore, he made his statement within a short time of the incident in which the driving was described.

I do not think the destruction of the messages relating primarily to whereabouts rather than to the manner of the driving is such an abuse of the process of the court that it requires my intervention."

Miss Smart by her grounds and skeleton argument submits that DC Apperley's evidence about what he said over the radio is in apparent conflict with a computer aided record; that the officer accepted at the least that he made some comments about the nature of the appellant's driving; that since DC Apperley was the only Crown witness as to the manner of the driving and given that at the scene he arrested the appellant for theft, not dangerous driving, the tape would or, at the very least, might have provided critical material for cross-examination of the officer. She refers to the authority of this Court in the case of Birmingham [1992] Crim LR 117 where the Court held that an abuse of process for want of fairness arose by reason of the fact that a video recording of a scene relevant to the prosecution was not available.

Miss Smith for the Crown accepts, as she must, that there was a breach of the code in the destruction of the tape. However, she says that did not yield such unfairness that the judge must properly have stopped the case. She submits that the trial process itself protected the appellant, who through his counsel was able to conduct a thorough cross-examination of DC Apperley, no doubt in the voir dire as well as before the jury, so that any points of inconsistency or the like were thoroughly explored.

Elegant though Miss Smith's submission was, it does not confront the critical question in the case. On the facts here what difference might have been made if this tape had been available? We repeat: DC Apperley was the only witness of the driving and he arrested the defendant for theft not for dangerous driving. It seems to us inescapable that there exists more than a fanciful chance that had this tape been available there would have been material contained on it upon which the appellant would properly have wished to cross-examine Mr Apperley. The matter is not marginal or tangential. The tape would have constituted a contemporary record of the words the officer spoke as he followed the appellant in the car. We make it clear that nothing is to be inferred from this judgment to the effect that a breach of the mandatory requirements of paragraph 5.1 of the code will generally or even frequently give rise to a state of affairs in which it would be right to stop the prosecution: far from it. We have emphasised the particular specific features of this case however which, upon the facts here, do properly give rise to that result. For that reason this appeal will be allowed.

It is unnecessary in the circumstances to go into the second ground of appeal which concerned a question of whether a defence of necessity arising out of the appellant's stated belief that he was being pursued by a man in a road rage should have been left to the jury. We say no more about that aspect of the case.