Practice and Procedure


PUBLISHED April 14, 2003

On a charge of causing death by dangerous driving where the only issue was whether the defendant had been asleep, the judge was right not to put before the jury the alternative offence of causing death by careless driving.Renewed application for leave to appeal conviction following refusal by the single judge. On 11 January 2002 at Leeds Crown Court, before Mackay J, the applicant ('H') was convicted on ten counts of causing death by dangerous driving. He was sentenced to a total of five years imprisonment and banned from driving for five years. The deaths resulted from the Selby train crash on 28 February 2001. H was a construction contractor, he was an experienced driver and had been driving since 1983. On 28 February H left for work at 4.30 am. He had not been to sleep on that night as he had been on the phone to a woman he had met over the internet. He was driving a land rover with a trailer in tow. At 6.10 am he approached the bridge over the main line railway. It was snowing and dark. The land rover and trailer left the slow lane, crossed the hard shoulder and went down the steep embankment, the vehicle managed to remain upright and came to stop on the railway line. An express train, going over 100 m.p.h. struck the vehicle and derailed into the path of a goods train which was going 50 m.p.h. The trains collided and 10 men died. It was the Crown's case that H fell asleep when he knew or could have been expected to know that this would happen before it did. A petrol tanker driver was called who said that he saw two wheel tracks in the snow leaving the motorway at a shallow angle. That was consistent with police evidence of the land rover's wheel marks. There was no evidence of breaking or steering, the angle showed H had drifted off the motorway as though he had fallen asleep. There was nothing to suggest there had been any mechanical failure of the vehicle. The Crown called an expert on sleep who gave evidence that the tell tale sign was that the vehicle ran off course with no evasive action being taken by H. H denied falling asleep and gave evidence that he had seen a services road sign about four-fifth of a mile earlier. Six witnesses were called who all gave evidence that they had seen H before the accident and there was nothing unusual or erratic about his driving. H renewed the application for leave to appeal conviction on the grounds that; (i) the judge should have directed the jury as to the availability of an alternate offence of causing death by careless driving and; (ii) the jury's verdicts were unsafe particularly having regard to eyewitness evidence that H had been driving in a sensible and appropriate manner.HELD: (1) Whether or not to leave to the jury causing death by careless driving as a possible alternative was a matter for the judge's discretion. There was no suggestion that he had misdirected himself as to the relevant law. (2) Where there was scope for different views as to the quality of a particular piece of driving it was generally appropriate to leave alternatives to the jury for them to decide whether the driving was truly dangerous or careless. However, in the present case the Crown said falling asleep was dangerous and H did not argue to the contrary. H's case was that he had never fallen asleep. (3) In those circumstances the only question was whether H had fallen asleep and thereby, as a consequence, caused the deaths. The crucial question the judge had to focus the jury's attention on was whether H had fallen asleep. The judge was entitled not to put careless driving as an alternative and he was right not to do so. (4) There was ample material before the jury that entitled them to reach the conclusion they did.Application dismissed.