Attorney General v Hall

JurisdictionJersey
CourtRoyal Court
JudgeBailhache, Bailiff:
Judgment Date24 March 1995
Date24 March 1995
ROYAL COURT
Bailhache, Bailiff:

M.C. St. J. Birt, Attorney General, for the Crown;

T.J. Le Cocq for the accused.

Cases cited:

(1) Andrews v. D.P.P., [1937] A.C. 576; [1937] 2 All E.R. 552; (1937), 53 T.L.R. 663; 106 L.J.K.B. 370; 26 Cr. App. R. 34; 35 L.G.R. 429; 101 J.P. 386; 81 Sol. Jo. 497; sub nom. R. v. Andrews, 156 L.T. 464; 30 Cox, C.C. 576, applied.

(2) Att. Gen. v. O'Neill, 1992 JLR 234, not followed.

(3) Att. Gen. v. Weston, 1979 J.J. 141, applied.

(4) R. v. Adomako, sub nom. R. v. Prentice; R. v. Holloway, [1994] Q.B. 302; [1993] 4 All E.R. 935; [1993] 4 Med LR 304; [1994] Crim. L.R. 598; (1993), 98 Cr. App. R. 262; 157 J.P. 1185; 157 J.P. Jo. 636; 137 Sol. Jo. (L.B.) 145; on appeal, [1995] 1 A.C. 171; [1994] 3 All E.R. 79; [1994] 5 Med LR 277; [1994] Crim. L.R. 757; (1994), 99 Cr. App. R. 362; 158 J.P. 653, followed.

(5) R. v. Bateman, [1925] All E.R. Rep. 45; (1925), 133 L.T. 730; 41 T.L.R. 557; 94 L.J.K.B. 791; 19 Cr. App. R. 8; 28 Cox, C.C. 30; 69 Sol. Jo. 622, applied.

(6) R. v. Lawrence, [1982] A.C. 510; [1981] 1 All E.R. 974; [1981] RTR 217; [1981] Crim. L.R. 409; (1981), 73 Cr. App. R. 1; 145 J.P. 227; 145 J.P. Jo. 294; 125 Sol. Jo. 241, not followed.

(7) R. v. Reid, [1992] 1 W.L.R. 793; [1992] 3 All E.R. 673; [1992] RTR 341; (1992), 95 Cr. App. R. 391; 158 J.P. 517; 158 J.P. Jo. 452; 136 Sol. Jo. (L.B.) 253.

(8) R. v. Seymour, [1983] 2 A.C. 493; [1983] 2 All E.R. 1058; [1983] RTR 455; [1983] Crim. L.R. 742; (1983), 77 Cr. App. R. 215; 148 J.P. 530; 148 J.P. Jo. 331; 127 Sol. Jo. 522, not followed.

(9) R. v. Woodward, [1994] T.L.R. 632, considered.

(10) Renouf v. Att. Gen., [1936] A.C. 445 ([1936] UKPC 27); [1936] 1 All E.R. 936; (1936), 155 L.T. 1; 52 T.L.R. 455; 105 L.J.P.C. 84; 30 Cox, C.C. 397; 80 Sol. Jo. 304, followed.

(11) United States (Govt.) v. Jennings, [1983] 1 A.C. 624; [1983] RTR 1; (1982), 75 Cr. App. R. 367; sub nom. Jennings v. United States Govt., [1982] 3 All E.R. 104; 146 J.P. 396; sub nom. R. v. Governor of Holloway Prison, ex p. Jennings, [1982] Crim. L.R. 748; 126 Sol. Jo. 659, not followed.

Additional cases cited by counsel:

Nettleship v. Weston, [1971] 3 All E.R. 251.

R. v. Caldwell, [1982] A.C. 341.

R. v. Cato, [1976] 1 W.L.R. 110.

R. v. Church, [1966] 1 Q.B. 59.

R. v. Evans, [1962] 3 All E.R. 1086.

R. v. Fenton (1830), 168 E.R. 1004.

R. v. Lamb, [1967] 2 All E.R. 1282.

R. v. Larkin, [1943] 1 All E.R. 217.

R. v. Lowe, [1973] 1 All E.R. 805.

R. v. Scarlett, [1993] 4 All E.R. 629.

R. v. Smith, [1979] Crim. L.R. 251.

R. v. Stone, [1977] 2 All E.R. 341.

Legislation construed:

Loi (1864) règlant la procédure criminelle.

Road Traffic (Jersey) Law 1956, art. 14(1), as amended:

"If any person drives a vehicle or rides an animal on a road or other public place recklessly, or at a speed or in a manner which is dangerous to the public, having regard to all the circumstances of the case, including the nature, condition and use of the road or place, and the amount of traffic which is actually at the time, or which might reasonably be expected to be, on the road or place, he shall be guilty of an offence under this Article."

art. 18: The relevant terms of this article are set out at page 114, lines 6-11.

Road Traffic Act 1934 (24 & 25 Geo. V, c.50), s.34: The relevant terms of this section are set out at page 113, lines 6-13.

Road Traffic Act 1960 (8 & 9 Eliz. II, c.16), s.1(1): The relevant terms of this sub-section are set out at page 113, lines 18-22.

s.2(3): The relevant terms of this sub-section are set out at page 113, lines 25-29.

Text cited:

Smith, Commentary (manslaughter), [1985] Criminal Law Review, at 788.

Criminal Procedure—conduct of trial—preliminary issues of law—court may consider direction on law to jury as preliminary issue to allow prosecution and defence to prepare submissions accordingly—not precluded by Loi (1864) règlant la procédure criminelle

Courts—Royal Court—binding force of own previous decisions—Royal Court bound by own previous decision unless convinced that wrong—court not to accept precedent it considers wrong merely because of small size of jurisdiction and small number of precedents—Court of Appeal to resolve resulting inconsistencies between judgments

Criminal Law—manslaughter—mens rea—"gross negligence" not "recklessness" required for conviction for manslaughter by breach of duty—no change to mens rea required for conviction made by Road Traffic (Jersey) Law 1956, art. 18, which merely allows conviction for reckless driving, not manslaughter, if appropriate

The accused was charged with manslaughter.

The accused allegedly drove a vehicle whilst under the influence of alcohol and caused the death of a cyclist. He was charged with manslaughter and, as a preliminary matter, the court was asked by both the Crown and counsel for the defence to consider what direction would subsequently be given to the jury at the trial on the mens rea necessary to establish the offence.

The Crown submitted that the court should refuse to follow a previous Royal Court decision which had held that the degree of culpability required to establish the offence of manslaughter by breach of duty was "recklessness," because (a) the court in that case had not followed a Privy Council decision of long-standing which held that the culpability required was "gross negligence" and which pre-dated the enactment of the Road Traffic (Jersey) Law 1956 (which, by art. 18, empowered the court to convict a person charged with manslaughter of reckless or dangerous driving instead, in appropriate circumstances); (b) it had been suggested in the case that had the Privy Council decision been made after the enactment of that Law, it would have referred to "recklessness" rather than "gross negligence" and it had therefore been considered preferable to follow certain House of Lords' decisions (which held that the test was "recklessness"); and (c) as a matter of public policy it was preferable that the culpability required be expressed as gross negligence rather than recklessness because in England the courts had encountered difficulties in applying the test of recklessness; in particular, in cases in which there was evidence that the accused had consumed alcohol prior to causing a car accident and those in which the accused had considered whether his conduct involved any risk to others and had erroneously concluded that it did not (which was arguably not "reckless").

The accused submitted in reply that the previous Royal Court decision embodied the law of manslaughter in Jersey which, as a matter of stare decisis, had to be followed unless it were plainly wrong, which it was not, because (a) it had in fact followed the Privy Council decision, as that had subsequently been interpreted in the cases decided by the House of Lords; (b) although art. 18 of the 1956 Law did not alter the general law of manslaughter, the law would be more coherent if the same criterion of culpability, namely, recklessness, applied to both the statutory offence of reckless driving and the common law offence of "motor manslaughter"; and (c) in the light of the above the court should not go on to consider the bearing of public policy on the matter.

The court considered whether it was prevented from adopting the procedure sought by the provisions of the Loi (1864) règlant la procédure criminelle.

Held, delivering the following ruling:

(1) Although such preliminary matters were normally decided once the trial had begun, there was nothing in the Loi (1864) règlant la procédure criminelle to prevent the court from making a preliminary finding on a matter of law in an appropriate case to allow both the prosecution and the defence to prepare their submissions on the basis that the jury would be directed in a particular way (page 106, lines 6-18).

(2) The Royal Court had a duty to follow its own previous decision unless it was convinced that the decision was wrong and although it would not depart from such a decision lightly, it would not be slower to do so than would an English court faced with a similar situation merely because Jersey was a small jurisdiction with fewer precedents than existed in England. It would then be for the Court of Appeal to resolve any resulting inconsistencies between the competing Royal Court judgments (page 108, lines 1-15).

(3) In Jersey, as in England, an accused person would now be taken to be guilty of manslaughter by breach of duty if that breach were committed as a result of his gross negligence rather than recklessness. Since this position had been accepted many years previously by the Privy Council, the Royal Court had been wrong to apply the later House of Lords' decision (which replaced "gross negligence" with "recklessness") in preference. Furthermore, art. 18 of the 1956 Law had not been intended to alter the mens rea required for a conviction for manslaughter (whether or not committed using a motor vehicle) but merely enabled the courts to convict a person of reckless or dangerous driving rather than manslaughter where appropriate. For these reasons and because it would avoid the problems that the English courts had faced over the definition of "recklessness," the court would refuse to follow its previous decision and when the present case came to trial would direct the jury that it could only convict the accused if it found him to have caused the deceased's death by his grossly negligent driving (page 116, line 12 - page 117, line 5; page 120, line 23 - page 122, line 41).

BAILHACHE, BAILIFF: I am sitting to determine a short but important point of law in relation to the prosecution of Anthony Kevin Hall for an offence of manslaughter. The defendant has pleaded not guilty to the indictment and his trial is due to commence before the criminal assizes on Monday March 27th, 1995.

I pause here to interpose that a minor piece of legal history has been made. This is, so far as I...

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