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OFM, R. v
Factual and Procedural Background
This is an appeal by the Prosecution against a Crown Court judge's acceptance of a submission of no case to answer on two counts of causing death by driving offences. The Respondent (identified by initials in the original to permit publication) started the engine of a parked manual car while standing outside it by leaning into the driver's door and turning the ignition key. The vehicle subsequently moved forward under its own momentum, crossing a carpark lane and colliding with a six‑month‑old child's stroller, causing the child's death. The parties agreed the facts and invited the trial court to rule on no case to answer before evidence was called. The trial judge concluded there was insufficient evidence that the Respondent was "driving" at the material time and upheld the submission of no case to answer. The Prosecution appealed under section 58 of the Criminal Justice Act 2003 and the Court of Appeal allowed the appeal, remitting the matter to the Crown Court for trial to resume.
Legal Issues Presented
- Whether, on the agreed facts, there was evidence on which a properly directed jury could conclude that the Respondent's acts amounted to "driving" the vehicle for the purposes of the Road Traffic Act offences charged.
- Relatedly, whether starting the engine by turning the ignition key while outside the vehicle can constitute "driving" when the actor did not intend the vehicle to move and was unable to control other driving controls at the time.
Arguments of the Parties
Appellant's (Prosecution) Arguments
- The question of whether the Respondent was driving was one of fact and degree for the jury; it could not be decided as a matter of law that he was not driving.
- The Respondent assumed control of a principal vehicle control (the ignition) by deliberately turning the key and starting the engine.
- By operating the ignition the Respondent assumed risk in connection with other controls; a jury could find it was foreseeable the car might move given how it was parked.
- The car moved as a direct result of the Respondent operating the ignition; he remained in contact with the car and proximate to controls while attempting to stop it; the movement occurred on a public road area.
- Accordingly, a reasonable jury could conclude the Respondent was driving such that his driving caused death.
Respondent's Arguments
- The trial judge was entitled to conclude there was insufficient evidence of driving; her ruling was neither wrong in law nor unreasonable.
- The Prosecution had accepted at trial that inserting the key and starting the engine did not amount to driving and instead relied on an argument that failure to "regain control" could amount to driving; that is impermissible because one cannot regain control of something one never had (no liability for omission).
- It was accepted that the Respondent would not have been able to stop the vehicle once the ignition was turned on given his position outside the car.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| R v Roberts (1964) 48 Cr App R 296 | Cited in the judge's review of the law on what constitutes "driving". | Cited as part of the background review; no specific application beyond inclusion in the judge's survey of authorities is recorded in the opinion. |
| Ames v MacLeod 1969 JC 1 ("Ames") | Test that a person must be "in a substantial sense controlling the movement and direction of the car". | Relied on to support the requirement that substantial control is necessary, and cited for the proposition that ordinary meaning of "driving" remains relevant. |
| R v McDonagh [1974] RTR 372 ("McDonagh") | Explains that control of movement and direction in a substantial sense is a primary consideration; gives examples of varied ways control may be exercised. | Used to explicate that the MacDonagh test is necessary but not exhaustive and to frame the court's analysis of control and ordinary meaning of "driving". |
| Blayney v Knight [1975] RTR 279 | Demonstrates that lack of intent can be an important factor where operation of a control was accidental. | Distinguished: court noted Blayney concerned accidental operation of a control and absence of intent was significant there, whereas here the Respondent deliberately started the engine though not intending the resultant movement. |
| Leach v DPP [1993] RTR 161 | Cited in the judge's review (question referred about whether sitting in the driving seat and starting the engine could constitute driving). | The court stated that Leach does not provide relevant authority for decision in this case; the particular passage relied on is not part of the ratio and is unexplained. |
| Burgoyne v Phillips [1983] RTR 49 | Cited in the judge's review of authorities on "driving". | Cited as part of the judge's survey; no distinct application or further analysis of this authority is recorded in the opinion. |
| R (oao Planton) v. DPP [2001] EWQHC Admin 450 | Interpretation of MacDonagh's definition and explanation that lack of movement at the material time does not necessarily preclude driving; reliance and factual degree are relevant. | Quoted to show MacDonagh should not be treated as a statute and that cessation of movement does not automatically mean absence of driving; used to support that starting a stationary vehicle may still be "driving". |
| Pinner v Everett [1969] 3 All E.R. 257 HL | Illustrative cases where driving may continue even if not literally at the controls (examples of continuing driving while not physically controlling the vehicle). | Used via secondary sources to support proposition that once a person is driving, the driving may continue despite temporary absence from controls; assists in framing factual inquiry of "doing something connected with driving". |
| Regan v Anderton [1980] R.T.R. 126 | Example of being connected with driving while not literally at the wheel. | Cited (through discussion in texts) to support the principle that whether a person is "doing something connected with driving" is the overriding practical test. |
| Stevens v Thornborrow [1969] 3 All E.R. 1487 | Extracts propositions from Pinner v Everett: question of fact; easier to find driving if at the wheel; overriding principle of doing something connected with driving. | Used to summarise accepted propositions about factual nature of "driving" and to support the court's statement of the jury's factual task. |
Court's Reasoning and Analysis
The Court of Appeal reviewed the statutory charges and the agreed facts. It accepted the judge's summary of legal principles: (a) primary consideration is factual control over direction and movement; (b) the person must be, in a substantial sense, controlling movement and direction; (c) the activity must also fit the ordinary meaning of "driving"; and (d) intention is relevant but not decisive.
The court analysed authorities, particularly McDonagh and Ames, to explain that substantial control is necessary but not exhaustive; ordinary meaning and reliance on driver's controls are relevant. The court noted that starting an engine is classically the point at which "driving" begins and that the ignition is one of the principal controls.
The court rejected a rigid rule that absence of movement at the moment of an act excludes driving, citing Planton. It distinguished Blayney (where operation of a control was accidental and lack of intent important) because here the Respondent deliberately started the engine. The court also found Leach unhelpful to the present decision.
Applying these principles to the agreed facts, the court concluded that starting the engine from outside the vehicle—by turning the ignition key—was an act that a jury could properly find amounted to "driving" because it involved taking control of a principal driving control and was an ordinary part of conduct that constitutes driving, even though the Respondent did not intend the vehicle to move and was unable to use other controls at that moment. The court acknowledged that the jury might nevertheless conclude the act did not amount to driving on these particular facts, but held that this was a matter for the jury, not for a pre‑evidence no case ruling.
Holding and Implications
Decision: The Court of Appeal allowed the Prosecution's appeal, gave leave to appeal, and ordered that the proceedings should be resumed before the Crown Court.
Implications: The immediate consequence is that the trial will proceed and the jury must decide whether the Respondent's act of starting the engine amounted to "driving". The court treated the question as one of fact and degree for the jury; no novel binding precedent beyond applying established tests was announced and the opinion does not purport to set a new legislative interpretation beyond the application described above.
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