Her Majesty’s Advocate v. Nathaniel David Cooper [2016] HCJ 47

Note by trial judge:- The Accused and Kylie Elizabeth Johnston were indicted on a charge of causing death by dangerous driving contrary to section 1 of the Road Traffic Act 1988. Johnston pled guilty to the charge at a Preliminary Hearing. The Accused went to trial and was convicted of the charge by majority under deletion of the words “did move the seat back and away from the steering wheel and foot pedals”. The issue at the trial was whether the Accused was driving the vehicle for the purposes of the Road Traffic Act 1988. The circumstances of the offence were that after a day out the Accused and his on/off girlfriend Miss Johnston had decided to leave the caravan park they were staying at to go and purchase some items from a nearby shop. On the way back to the caravan park the Accused gave Johnston control of the steering wheel while she was sitting in the front passenger seat and he worked the pedals from the driver’s seat. As they turned into the access road to the caravan site the Accused stopped the car and asked Johnston whether she wanted to “have a go” sitting on his lap in the driver’s seat which she did and they moved off under the Accused’s directions letting off the handbrake and using the clutch and accelerator. The police accident investigator gave evidence that the speed of impact with the deceased who was standing beside his caravan was about 20 mph and he found signs of acceleration in the marks on the gravel, the grass and in the striation around the circumference of the tyres. The Accused told the police that the engine had revved up and suggested that Johnston had depressed the accelerator instead of the brake or had got her foot stuck between the accelerator and the brake. According to Johnston in evidence she and the Accused got their feet mixed up fighting for the brake. The issue at the trial was whether the Accused could properly be said to be “driving’ for the purposes of the Road Traffic Act 1988. The trial judge notes that the present case was unique in that it involved two people in the driver’s seat and a co-driver who did not actually operate any of the vehicle’s controls. During the course of his speech to the jury the Advocate depute submitted that a vehicle can be driven by two people at the same time and that a driver can be guilty of dangerous driving by doing nothing for example falling asleep at the wheel. During defence counsel’s speech to the jury it was submitted that the test of whether someone is driving is whether he is “in a substantial sense controlling the movement and direction of the vehicle” and in the present case the only evidence that the Accused was controlling the vehicle came from Johnston and that evidence was uncorroborated. In his directions to the jury the jury were told:- “... ‘driving’, as you might expect, is normally said to mean controlling the movement, the speed and the direction of the vehicle. In a standard manual gear change motor car such as you are dealing with here that would normally involve being in the driving seat and actually working the controls...I emphasise normally...a vehicle can have more than one driver at the same time...In cases where a vehicle goes out of control I direct you that it is open to think that the question is not so much about who has operated the controls as who has failed to operate the controls...I direct you that if a person who is in the driver’s seat of a moving vehicle with the intention of having or taking control of the vehicle puts it beyond his or her power to actually control the vehicle that does not necessarily prevent them being classed as a driver.” The trial judge then went on to give the jury directions in relation to what evidence could amount to corroboration of Johnston’s evidence of the Accused being in control. In particular, he pointed to the Accused stating during the course of his police interview:- “I can remember steering away from the caravan” and the jury were directed that it would be open to them to treat that as an admission. In addition, the trial judge referred to the police accident investigator’s evidence that the marks on the ground were consistent with Johnston’s evidence and therefore could be corroborative of it. Reference was also made by the trial judge in his charge that there was further evidence that could be taken into account, namely, it was the accused’s car, he was the only qualified driver, the journey on which he had set out was not yet complete, he intended to get his car back to the caravan site, it was his idea that Johnston should “have a go” under his directions and he remained in the driving seat to take control if need be. In his Note the trial judge states that the jury delivered a verdict of guilty to the charge by majority. He also noted that despite making certain deletions the jury did not delete “cause said motor vehicle to accelerate” which could be done by either accelerating by pressing the accelerator or failing to press the brake and he considered that the verdict was consistent with the definition of driving within the meaning of section 1 of the Road Traffic Act 1988.