Recent case of Holder [2023] EWCA Crim 5, considered the difference between careless and dangerous driving

The recent case of Holder [2023] EWCA Crim 5, considered the difference between careless and dangerous driving, specifically in the context of the offences of causing death by dangerous driving and causing death by careless driving. Let’s have a look at a quick run-down of the facts of the case:

1. The case was an appeal against sentence, following a conviction of causing death by dangerous driving.
2. The appellant was riding a stolen motor scooter without a licence or insurance, in a residential area, on a road with a single lane each way with a speed limit of 20mph.
3. The appellant had a friend as a pillion passenger.
4. The passenger was 14 years old, the appellant was 17 years old.
5. Neither the appellant nor the passenger was wearing a helmet.
6. The appellant was looking over his shoulder and backwards for a time, communicating with some others on the pavement.
7. It was agreed that the appellant was travelling at approximately double the speed limit, between 37-44mph.
8. The speed coupled with the appellant’s distraction (looking behind him and over his shoulder) caused him to lose control of the scooter which veered left and hit a kerb.
9. Both the appellant and the passenger were thrown from the scooter.
10. The passenger was killed having suffered fatal head and spinal injuries after sliding into two poles and a telephone junction box in the collision.
11. Before trial (PTPH) the appellant offered a guilty plea to the charge of causing death by careless driving, accepting that his driving was careless and that this caused the death of his passenger. This was not accepted by the prosecution although it was added to the charges as an alternative to causing death by dangerous driving.

The defence argued the fact that the passenger was not wearing a helmet was an aggravating feature of the carelessness of the appellant’s driving. It was therefore relevant for sentencing, but it was irrelevant to the standard of the appellant’s driving. The defence argued that the absence of helmets could not be relevant to the standard of driving as Sikhs who are wearing turbans are explicitly exempt from wearing helmets under section 16(2) of the RTA 1988. This was ultimately rejected by the trial judge who explained that “the exemption is plainly intended to balance the public interest in protecting those travelling by scooter from harm with an individual’s right to exercise his or her religion”. In any case, apart from the exemption it is compulsory to wear protective headgear when riding a motorcycle or scooter and failure to do so is an offence under section 16(4) RTA 1988 and this is clearly set out within the Highway Code, rule 83. Furthermore, a person commits an offence if they have a passenger on a scooter who is under the age of 16 and is not wearing a helmet.

The judge considered that the real question regarding the standard of driving was whether, when driving a scooter carrying a passenger under 16 who is not wearing a helmet was properly to be considered “part and parcel” of the driving for the purposes of an offence of causing death by dangerous driving. The fact that this did not relate to any way in which the scooter was physically manoeuvred did not stop it from being considered as part of the standard of driving, in the same way that if a vehicle was in a dangerous condition, this would not prevent a jury finding that the driving of that vehicle was dangerous (s.2A(2) RTA 1988). The appeal was dismissed.