Starting a Car’s Engine From Outside the Vehicle Can Amount to “Driving” for Road Traffic Act Offences

1. Introduction

In R v OFM [2026] EWCA Crim 599, the Court of Appeal (Criminal Division) considered a narrow but important threshold question: whether there was evidence on which a properly directed jury could conclude that the respondent’s conduct amounted to “driving” a motor vehicle.

The case arose from a fatal incident in a car park in which a six‑month‑old child was struck after a manual vehicle moved forward when the respondent, standing outside the vehicle, turned the ignition key to start the engine. The Crown Court upheld a submission of no case to answer on the basis that the respondent was not “driving” at the material time. The prosecution appealed under section 58 of the Criminal Justice Act 2003.

Parties and charges

  • Appellant: The King (prosecution)
  • Respondent: OFM (anonymised initials)
  • Counts:
    • Causing death by dangerous driving (s.1 Road Traffic Act 1988)
    • Causing death by careless driving when under the influence of drink or drugs (s.3A(1)(ba) Road Traffic Act 1988)

Key issue

Whether starting the engine by turning the ignition key, while standing outside the vehicle and not operating other controls, could amount to “driving” such that the case should be left to the jury.

2. Summary of the Judgment

The Court of Appeal (Lord Justice Edis VP, Lady Justice Whipple, and HHJ Conrad KC) held that the Crown Court was wrong to withdraw the case from the jury. The court concluded that:

  • It was open to a reasonable jury to find that the respondent’s act of starting the engine was an act of “driving”.
  • The “substantial control” concept drawn from earlier authorities is a necessary but not sufficient consideration, and must not be treated as a rigid statutory formula.
  • Lack of intention for the vehicle to move is relevant but not decisive; unintended consequences of a deliberate act can still fall within “driving”.
  • “Control” does not require effective control at all moments; otherwise, a careless driver would cease to be “driving” upon losing control.

The appeal was allowed and proceedings were ordered to be resumed in the Crown Court.

3. Analysis

3.1 Precedents cited and their influence

R v McDonagh [1974] RTR 372 (“McDonagh”) and Ames v MacLeod 1969 JC 1 (“Ames”)

These cases anchored the debate about “driving” beyond the paradigm of sitting at the wheel with the engine propelling the car. In McDonagh, the defendant pushed a vehicle while standing in the road, with limited use of the steering wheel. The conviction was quashed, emphasising the risk of defining “drive” so broadly as to include conduct that is not “driving” in ordinary language.

The Court of Appeal in OFM drew two linked propositions from McDonagh (including its discussion of Ames):

  • A necessary consideration is whether the person is, “in a substantial sense controlling the movement and direction” of the vehicle.
  • But that is not exhaustive: it is still necessary to ask whether the activity falls within the ordinary meaning of “driving”.

Critically, the court used McDonagh to support a fact-sensitive approach and to resist mechanical application of “control” as a single determinative test.

R (oao Planton) v. DPP [2001] EWQHC Admin 450

The court relied on Pill LJ’s warning against treating McDonagh as if it were a statute. Planton was used to illustrate that “driving” can continue even when the vehicle is not moving (e.g., stopped at traffic lights), reinforcing that “driving” is not reducible to vehicle motion at a snapshot in time.

Although the facts of OFM involved the commencement of movement rather than cessation, the cited passage supported the broader interpretive point: the legal inquiry is flexible and contextual.

Blayney v Knight [1975] RTR 279

Blayney was central to the treatment of intention. There, the defendant depressed the accelerator during a struggle without intending to operate the controls; the absence of intent was an important factor in concluding he was not driving, despite the vehicle moving.

In OFM, the Court of Appeal distinguished Blayney on the basis that the respondent’s operation of the ignition was deliberate, even though the forward movement was unintended. The court thereby framed intention not as a threshold requirement, but as an evidential factor whose weight depends on how the control was engaged (accidentally vs deliberately).

Leach v DPP [1993] RTR 161

The Crown Court had considered Leach, which contains a brief statement agreeing that a person sitting in the driving seat of a stationary vehicle, who turns the ignition key and places hands on the wheel, could not be “driving” for s.163 RTA 1988. The Court of Appeal held this aspect of Leach to be:

  • wholly unexplained,
  • not part of the decision (i.e., not ratio), and
  • not relevant authority for the issue before the court.

This is an important clarifying move: the court effectively cautioned against relying on unreasoned or collateral remarks in a stated case to resolve a contested “driving” threshold.

Other authorities and commentary (as referenced)

The Crown Court reviewed additional decisions including R v Roberts (1964) 48 Cr App R 296, Burgoyne v Phillips [1983] RTR 49, and Wilkinson’s Road Traffic Offences (32nd ed). The Court of Appeal also referenced a line of cases (noting their statutory context) extracting the broader idea that “driving” can include conduct connected with driving, and that the question is often one of fact and degree, including Pinner v Everett [1969] 3 All E.R. 257 HL, Regan v Anderton [1980] R.T.R. 126, and Stevens v Thornborrow [1969] 3 All E.R. 1487.

3.2 Legal reasoning

(a) The correct appellate lens: “no case to answer”

The prosecution appeal concerned whether the case should have been removed from the jury before evidence was called on agreed facts. The Court of Appeal approached the question as whether it was open to a properly directed jury to find “driving” proved, not whether the appellate court itself would reach that conclusion.

(b) Ignition as a “principal control” and the ordinary meaning of driving

The court treated the ignition as one of the vehicle’s principal controls. Starting the engine is “classically” the point at which “driving” begins in ordinary circumstances. The respondent’s unusual posture (standing outside, leaning in) did not, as a matter of law, prevent the act from being characterised as “driving”; it instead formed part of the factual matrix for a jury.

(c) Foreseeability and self-deprivation of control

The agreed expert evidence was that the forward propulsion occurred because the vehicle was left in gear, lacked a clutch interlock, and the handbrake was not fully applied. The Court of Appeal reasoned that a jury could view the respondent’s method of starting the car—without checking gear/handbrake/clutch and without being positioned to use brake/handbrake—as creating a foreseeable risk of movement. Importantly, the court framed this as consistent with “driving”:

  • The respondent was “the person who was able to control it, but chose to deprive himself of the means to do so.”
  • “Control” for definitional purposes does not mean continuous effective control; otherwise, careless drivers would stop being drivers when they lose control.

(d) Intention: relevant, not decisive

The respondent did not intend the vehicle to move. The court held that this did not preclude “driving”, since many driving offences concern unintended outcomes arising from deliberate acts. What mattered was that the respondent intended to start the engine; the unintended movement went to culpability and factual evaluation rather than excluding “driving” categorically.

(e) The resulting legal proposition

The court’s core clarification is that the “substantial control” and “ordinary meaning” tests guide the inquiry but do not impose a requirement that the defendant must be positioned to exercise effective control at all times. A jury may conclude that starting the engine (even from outside the vehicle) is an act of driving, depending on the circumstances.

3.3 Impact

Practical implications for charging and trial rulings

  • Threshold to go to the jury: Prosecutors can argue that “driving” may begin with engagement of the ignition/engine-start sequence, even before the defendant is seated, where the act is a meaningful exercise of a principal control connected with vehicle movement.
  • No-case submissions: Trial judges should be cautious about withdrawing cases involving unconventional interactions with vehicles. Where the defendant deliberately operates a control capable of causing movement, “driving” may be a jury question.
  • Control is not “successful control”: The decision resists an approach that would let a defendant avoid “driving” by starting a car in a way that predictably prevents effective intervention once it moves.

Doctrinal implications

  • Re-weighting “substantial control”: The case emphasises that “substantial control” is not a single dispositive threshold; it operates alongside ordinary-language meaning and the defendant’s reliance on driving controls.
  • Containment of weak authority: The court’s treatment of Leach v DPP reduces the risk that unexplained dicta will be used to narrow “driving” in future cases.

4. Complex concepts simplified

“No case to answer”
A ruling that the prosecution evidence is insufficient in law for a conviction, so the jury should not consider the charge. On appeal, the question is whether a reasonable jury could convict on a proper direction—not whether it would.
“Driving” as a question of fact and degree
“Driving” does not have one rigid definition. Courts assess what the person did, which controls they used, the connection to vehicle movement, and whether ordinary language would describe it as driving.
“Substantial control”
A helpful idea from earlier cases: the person must be involved in controlling movement/direction in a meaningful way. In OFM, the Court of Appeal clarified that this does not mean the person must be successfully controlling the car at every moment.
Ratio vs obiter
The binding part of a case is the reasoning necessary to decide it (ratio). Side comments not needed to decide the case (obiter) are not authoritative. The court treated the relevant passage in Leach v DPP as unexplained and non-binding.

5. Conclusion

R v OFM [2026] EWCA Crim 599 establishes that a jury may be entitled to find “driving” where a defendant deliberately starts a vehicle’s engine by operating the ignition, even if the defendant is standing outside the vehicle, does not intend the vehicle to move, and is poorly positioned to stop it once it does. The Court of Appeal’s central contribution is to decouple “driving” from a requirement of continuous effective control, reinforcing that “driving” is a contextual evaluation grounded in ordinary language and the defendant’s engagement with key driving controls.