Case No: 200502182 D4 /200600776 D4
Neutral Citation Number: [2006] EWCA Crim 415
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURT AT SHREWSBURY
HIS HONOUR JUDGE MITCHELL
NC. No. T20047001
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: Friday, 3rd March 2006

Before :

LORD JUSTICE MOSES
MR JUSTICE JACK
and
MR JUSTICE ROYCE
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Between :

	PETER DAVID WEBSTER	Appellant	
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	THE CROWN	Respondent	

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(Transcript of the Handed Down Judgment of
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Edward Fitzgerald QC & Leonard Webster for the Appellant
Stephen Linehan QC (instructed by The CPS) for the Respondent

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Judgment
Lord Justice Moses : 
1.	On 17 February 2006 we allowed this appeal against conviction for aiding and abetting causing death by dangerous driving.  These are our reasons.  This appeal against conviction raises issues as to the ingredients of such an offence.  In March 2005 at Shrewsbury Crown Court the appellant was convicted of aiding and abetting his co-accused, Westbrook, of causing the death of Mark Tansey by dangerous driving.  Westbrook, the driver, had pleaded guilty to causing death by dangerous driving.  The evidence showed that the driver had been drinking all day.  Late in the evening, the appellant gave him and other passengers, including the appellant’s wife, a lift home.  At some point during that fatal journey the appellant permitted Westbrook to drive.  He then drove erratically and at excessive speed; the vehicle left the road and, tragically, Mark Tansey was thrown from the vehicle and died.  
2.	The prosecution put the case against the appellant in two ways, firstly, that the appellant knew that it was dangerous to permit Westbrook to drive because of Westbrook’s state of intoxication; secondly, that the appellant appreciated during the fatal journey that Westbrook was driving at a dangerous speed, that he ought to have intervened but failed to do so.  The summing-up reflected those alternative bases.  The appellant contends that the first basis was an insufficient explanation of that which the Crown was bound to prove before the jury could convict.  He contends that the judge’s directions as to the second failed adequately to focus on the factors which had to be proved to found a conviction.  
Facts
3.	There was plenty of evidence that Westbrook had been drinking both in the afternoon and evening of Saturday 23 August 2003.  He, the deceased, and another friend, Lewis Emmons, had visited a number of public houses in Wellington.  It was apparent to others that by about 5 o’clock Westbrook and his friends were drunk.  The deceased’s mother saw them at about 6 o’clock; she could see that they had been drinking and it appeared to her that it was not safe for her son to drive.  Her husband thought that they appeared to be the worse for drink.
4.	After a shower and some food the friends went out again, and continued to drink at a hotel.  There they were joined by the appellant and his wife at about 10.30pm.  The appellant did not drink.  He offered to drive the deceased and Emmons back to the village of Little Wenlock where the deceased and Emmons were spending the night.  Emmons said they had been drinking all evening and that neither he nor Westbrook were in a fit condition to drive.  He described Westbrook as being “very drunk”.  Another friend, Roberts, gave evidence that Westbrook seemed drunk.
5.	The appellant said, in interview, that Westbrook “liked a drink” but that he was unable to judge how much he had drunk that night.  Kulwender Kaur, however, gave evidence that the appellant had said to her, on the telephone, that the driver was “very drunk.  They had been drinking all afternoon.” 
6.	When he gave evidence, the appellant said that he did not know how much the driver had had to drink before he let him drive the car but thought that he had probably had at least two pints.  He said that Westbrook did not appear to him to be drunk and that he was happy to let him drive.  His telephone conversation with Kulwender Kaur related to what he had learnt after the accident.
7.	The rest of the evidence related to the speed at which Westbrook had driven once Webster had handed over the driving.  It is difficult to understand the relevant distances from the summing-up.  But we were told, by reference to a map, that the total journey from Little Wenlock to the scene of the accident was about 2½ miles.  At Forest Glen, for reasons that seem not to have been fully canvassed in evidence, the appellant handed over the keys to Westbrook and permitted him to drive.  For the first part of the journey, we were told, the driver drove at no more than 30mph.  Expert evidence subsequently revealed that it was not possible, on that part of the road, to drive any faster.  The road was narrow and would barely permit two vehicles to pass.  But at the top of a hill, described both by the judge, and the appellant in interview, as Withimoor Bank, Westbrook drove at speeds of between 65-70mph.  He then slowed down near a kink in the road to a speed between 40-50mph.  Thereafter, he accelerated to a speed of about 75mph by an old quarry plantation.  Shortly after, the car left the road, went through a hedge and landed in a field.  Both the deceased, Mark Tansey, and Emmons, sitting in the back of the vehicle, were thrown out and, as we have recalled, Mark Tansey was killed.
Dangerous driving
8.	Since much of the dispute in the instant appeal related to the meaning to be given to the statutory definition of “dangerous driving”, we should start by setting out the relevant provisions of Section 2 of the Road Traffic Act 1988, as substituted by Section 1 of the Road Traffic Act 1991 (“the 1988 Act”).  Section 2A provides:-
“ (1) For the purposes of Sections 1 and 2 above a person is to be regarded as driving dangerously if (and, subject to subsection (2) below, only if)— 
(a) the way he drives falls far below what would be expected of a competent and careful driver, and

(b) it would be obvious to a competent and careful driver that driving in that way would be dangerous.

(2) A person is also to be regarded as driving dangerously for the purposes of Sections 1 and 2 above if it would be obvious to a competent and careful driver that driving the vehicle in its current state would be dangerous.
(3) In subsections (1) and (2) above "dangerous" refers to danger either of injury to any person or of serious damage to property; and in determining for the purposes of those subsections what would be expected of, or obvious to, a competent and careful driver in a particular case, regard shall be had not only to the circumstances of which he could be expected to be aware but also to any circumstances shown to have been within the knowledge of the accused.

(4) In determining for the purposes of subsection (2) above the state of a vehicle, regard may be had to anything attached to or carried on or in it and to the manner in which it is attached or carried.”
9.	As we have said, the prosecution advanced its case against the appellant in two distinct ways.  The first related to the time immediately before Westbrook started to drive from Forest Glen.  The prosecution alleged that the appellant was guilty because he permitted Westbrook to drive at a time when the appellant knew that it was dangerous to permit him to do so because of his state of intoxication.  There was no dispute but that the appellant had stopped the car and had permitted Westbrook to drive.  The dispute focussed upon the appellant’s state of mind at the time he allowed Westbrook to drive.  The prosecution asserted that it was sufficient to prove that the appellant:-
“knew that it was dangerous to authorise Westbrook to drive because of Westbrook’s state of intoxication…”
That contention derived from the proposition that:-
“The person who drives a vehicle in a state of intoxication is to be regarded as driving dangerously if it would be obvious to a competent and careful driver that to drive a vehicle in that state would be dangerous.”
We have set out the proposition ipsimissis verbis to demonstrate the stark and  unequivocal nature of the prosecution case.  A person is guilty of aiding and abetting dangerous driving, and if death is the result of that dangerous driving, of aiding and abetting causing death by dangerous driving if he permits someone else to drive a car when he knows the driver is intoxicated.  We shall consider later the imprecision of that description of the state of the driver.
10.	The question thus arises as to whether it is sufficient, in order to prove the offence of aiding and abetting causing death by dangerous driving to prove knowledge of the intoxicated state of the driver at the time permission is given.  That question turns on whether a driver can be guilty of dangerous driving when the reason for danger is the state of the driver rather than the manner of his driving.
11.	In order to determine whether the drunken condition of a driver is, of itself, sufficient to establish the offence of dangerous driving, it is as well to start with the wording of the statute itself.  Section 2A poses two questions:-
1.  Did the defendant’s driving fall far below the standard of a competent and careful driver? and
	2.  Would it have been obvious to a careful and competent driver that driving in that way would be dangerous?
It is of note that Section 2A underlines the proposition that those two questions provide the limitations of the offence in the use of the words “only if”.  Those statutory questions direct attention only to the manner of driving in their references in both (a) and (b) to the way he drives and that way.
12.	Section 2A(2) provides an additional test in the use of the words also to be regarded.  Section 2A(2) plainly refers to the defective state of the vehicle and not to the defective state of the driver.
13.	If the argument finished there it would be plain that Section 2A(1) refers only to the manner of driving.  The extension of the definition of dangerous driving in Section 2A(2) is limited to the dangerous consequences of driving a defective vehicle.  There is nothing in the wording of the statute to justify extending the offence to danger occasioned merely by reason of the defective condition of the driver.  
14.	The argument does not stop there.  The prosecution’s case derived from a dictum of this court in R v Woodward [1995] 3 All ER 79.  The issue in that appeal, against conviction for causing death by driving, was whether the evidence, that the defendant had been drinking before he drove, was admissible (see page 85(b)).  Lord Taylor CJ, in giving the judgment of the court, concluded that evidence that the defendant had been drinking before he drove, was admissible on the issue of whether the defendant was driving dangerously.  His reasoning started with previous decisions of the court to that effect such as R v McBride [1962] 2 QB 167 at 172.  The Lord Chief Justice then considered whether the introduction of the definition of dangerous driving by Section 2A of the 1988 Act as amended ousted the principle laid down in McBride.  He concluded that it did not and that, as he put it, McBride was still good law in relation to the offence of dangerous driving or causing death by dangerous driving following the amendments to the 1988 Act (see page 85(j)).  But in the course of considering that question of admissibility the Lord Chief Justice referred to Section 2A(3) and said:-
“The fact (if it be so) that an accused has ingested a large quantity of alcoholic drink is a circumstance within the knowledge of the accused.  Accordingly, the statute requires that “regard shall be had” to it.”
Section 2A(3) supports the proposition that evidence of drinking is admissible.  The Lord Chief Justice also relied upon Section 2A(2).  He said:-
“It would be strange if Parliament intended to make driving a vehicle in a dangerously defective state an offence under the section but not driving when the driver is in a dangerously defective state due to drink.”  (see page 85(g)).
15.	It is that single sentence which forms the basis of the prosecution’s case that in order to prove dangerous driving it is sufficient to rely upon the defective condition of the driver.  As Mr Linehan QC, for the prosecution, pointed out, a driver’s ability to judge the condition of the road, his speed, the actions of other road users, and reaction to dangers and emergencies will be gravely impaired.  He cannot drive safely and accordingly drives in a way which falls far below that which would be expected of a competent and careful driver.  It would be obvious to a competent and careful driver that driving in that condition would be dangerous.
16.	 As a submission of good sense, that cannot be faulted.  Even if, from time to time, one who has been drinking, manages to drive without causing danger during the course of his journey it is none the less “dangerous” to drive if one has been drinking.  One cannot foresee whether a sudden emergency might arise with which the driver, his faculties blunted through drink, is unable to deal.
17.	However, in our view, the closely drafted definition of “dangerous driving” does not permit proof of that offence to be limited to the danger occasioned by the condition of the driver.  Firstly, the wording of the statute excludes such a possibility.  Section 2A(1) refers only to the manner of driving.  The definition is broadened by Section 2A(2) which eschews reference to the state of the driver and is confined to the defective condition of the vehicle.  Section 2A(3) permits regard to circumstances which may well include the condition of the driver. But that condition is not dispositive of the question whether the person was driving dangerously.  His condition will, by virtue of subsection (3) be relevant to whether there was danger of injury or serious damage but no more.
18.	Secondly, the authority on which the prosecution relied is not authority for the proposition that dangerous driving may be established merely by reference to the condition of the driver.  The sentence on which the prosecution relied must be read in the context of the decision as a whole.  That case decided that evidence of drink taken before driving was admissible.  It did not decide that evidence of drinking before driving was sufficient to prove the offence.  Although, the Lord Chief Justice’s reference to the statute has been praised as improving on the law laid down by Parliament but criticised for misreading that law (see e.g. Archbold News Issue 2, 1 March 1995 and Smith & Hogan 11th Edn., page 1014), that single sentence is not the basis of the decision.  The decision in R v Marison [1996 Crim. L.R. 909] which followed Woodward can be regarded as a decision that the defence of automatism was not available to an hypoglycaemic driver who clearly drove in a dangerous manner when he drove the vehicle on to the wrong side of the road.  It was not, in any event, the subject of any submissions before us.
19.	Thirdly, despite the recommendation in the Road Traffic Law Review Report (1988) the White Paper, The Road User and The Law (1989), Cm. 576 paragraph 2.9 demonstrated that the Government was not prepared to accept the recommendation that a new “very bad” driving offence should include reference to unfit drivers.  It is unnecessary, in order to make that good, to refer to Hansard extracts in the House of Lords in relation to the Road Traffic Bill.
20.	We conclude, for those three reasons, that it is not sufficient merely to rely upon the condition of the driver in order to prove the offence of dangerous driving or of causing death by dangerous driving.  The condition of the driver, in the instant case attributable to drink, is relevant and admissible.  But it does not determine whether the way in which the defendant drove was dangerous.
Aiding and abetting causing death by dangerous driving
21.	In relation to the first way in which the prosecution put the case against this defendant there was no issue but that the prosecution had proved a sufficient actus reus for secondary liability.  The appellant had permitted Westbrook to drive and had stopped the car and let Westbrook take over the driving.  The dispute concerned what knowledge the prosecution had to prove before the appellant could be convicted.  It was accepted that the prosecution had to prove knowledge of the “essential matters” which constituted the offence of dangerous driving (see e.g. Johnson v Youden [1951] KB 544 at 546).   
22.	If the prosecution is correct in the submission that a person who drives a vehicle when he has been drinking is to be regarded as driving dangerously, then there would be little difficulty in establishing knowledge of the essential matters which constitute the offence of dangerous driving.  Accordingly, if the prosecution could prove that the appellant knew that Westbrook had been drinking at the time the appellant permitted him to drive then the appellant was guilty of the offence, there being no dispute that Westbrook’s dangerous driving caused the death of Mark Tansey.  But for the reasons we have given, the prosecution is not correct in its submission.  The driver’s state of intoxication was relevant to whether he was driving dangerously but not conclusive evidence.  To establish secondary liability against the appellant it is important to appreciate that the real question as to the appellant’s state of mind is whether he foresaw the likelihood that the driver would drive in a dangerous manner.  Mr Fitzgerald QC, on behalf of the appellant, was at first disposed to contend that the prosecution had to prove that the appellant foresaw that the driver was bound to drive dangerously, that it was inevitable.  But during the course of argument he was, at least, prepared to accept that it was not necessary to prove the inevitability of dangerous driving.
23.	He was right to adopt that stance.  The very foundation of the decision in R v Powell & English [1999] AC 1 is acceptance of the principle that a secondary party is criminally liable for the acts of the principal if he foresees those acts even though he does not necessarily intend them to occur (see e.g. Lord Hutton at page 27 to page 28).  Evidence that the appellant knew that Westbrook had not only been drinking but appeared to be intoxicated was powerful evidence that he foresaw Westbrook was likely to drive in a dangerous manner at the time he permitted him to drive.  But evidence of Westbrook’s apparent intoxication did not determine the issue.  It was merely evidence which tended to prove the conclusion which the jury had to reach before it convicted him.  In short, the more drunk Westbrook appeared to be, the easier it was for the prosecution to prove that the appellant foresaw that he was likely to drive dangerously if he permitted him to drive.
24.	We do jib, somewhat, at the prosecution’s expression “state of intoxication”.  Anyone familiar with the variety of expressions used in criminal courts to indicate drunkenness will be aware how inexact such a phrase proves to be.  It invites interminable cross-examination leading to no precise conclusion.  The essential point, however, is whether the driver appears, by reason of the amount of drink he has taken, to be incapable of driving safely and thus likely to drive dangerously.  Such appearance is just as likely to be proved by ponderous insertion of the ignition key as by reference to unsteady gait or slurring of words.
25.	Further, we must emphasise what the prosecution had to prove in relation to the appellant’s state of mind.  It accepted that it was not sufficient to prove that the appellant ought to have foreseen that Westbrook would drive dangerously.  The prosecution had to prove that the appellant did foresee that Westbrook was likely to drive dangerously when he permitted him to get into the driver’s seat (see Blakely, Sutton v DPP [1991] Crim LR 763).  We stress the need to focus upon the appellant’s state of mind because of certain criticisms made in relation to the wording of the judge’s directions to the jury on this issue.  Generally the prosecution will be able to prove the actual state of mind of the defendant, absent any confession, by reference to what must have been obvious to him from all the surrounding circumstances.  But it is important to distinguish between that which must have been obvious to a defendant and what the defendant foresaw.  In most cases there will be no space between the two concepts; if the prosecution can prove what must have been obvious, it will generally be able to prove what the defendant did foresee.  But the danger of eliding the two concepts, namely what the defendant did foresee and what he must have foreseen, is that it might suggest that it is sufficient to prove what the defendant ought to have foreseen.  That is not enough.  It is the defendant’s foresight that the principal was likely to commit the offence which must be proved and not merely that he ought to have foreseen that the principal was likely to commit the offence. 
26.	We conclude that in order to prove that the appellant was guilty of aiding and abetting Westbrook to drive dangerously, the prosecution had to prove that at the time he permitted him to drive he foresaw that Westbrook was likely to drive in a dangerous manner.
Liability for failure to intervene
27.	The alternative way in which the prosecution put its case against the appellant related to the course of the journey.  The prosecution said that there came a time during the course of the journey, when the appellant knew that Westbrook was driving dangerously at a speed of 75mph before he lost control and the car left the road.  He should have intervened and attempted either to make him slow down or to stop.  His failure to do so demonstrated his participation in the dangerous driving.  On this approach there is no difficulty as to what the prosecution had to prove in relation to the appellant’s state of mind.  It was not foresight as to what was likely to happen but rather knowledge of what was actually happening at the time.  The real issue related to the act of assistance or encouragement.  The prosecution had to prove that there was an opportunity to intervene and that his failure to take the opportunity to exercise his right as owner of the car demonstrated the appellant’s encouragement or assistance.
28.	There was no dispute about the law in relation to this approach.  Du Cros v Lambourne [1907] 1 KB 40 establishes that a defendant might be convicted of aiding abetting dangerous driving if the driver drives dangerously in the owner’s presence and with the owner’s consent and approval.  The owner was in control and ought to have prevented or attempted to prevent the driver driving in a dangerous manner.  We derived assistance from the decision of Smithers J. in Dennis v Pite [1968] 11 FLR 458.  This concerned an appeal in the Australian Capital Territory against a conviction for aiding and abetting the driving of a motor vehicle in a dangerous manner.  The appellant was joint owner with the driver of the motor vehicle.  It appeared from his evidence that he may not have appreciated, until it was too late to prevent, the dangerous manner in which the vehicle was driven.  The court concluded it could not be satisfied that he had sufficient awareness that the manner of the driver’s handling of the vehicle was dangerous to conclude that he assented or concurred in the dangerous driving.  Smithers J. emphasised that mere presence with knowledge was not enough.  The joint owner did not appreciate, until it was too late, that there was any need for him to take action to intervene (see in particular page 465).  Dennis v Pite is a powerful demonstration of the need to establish not only knowledge of the dangerous driving but knowledge at a time when there was an opportunity to intervene.  
29.	In pursuance of this second approach, we conclude that the prosecution had to prove that the appellant knew that Westbrook was, by virtue of the speed the vehicle was travelling, driving dangerously at a time when there was an opportunity to intervene.  It was the appellant’s failure to take that opportunity and, exercise his right as owner of the vehicle, which would lead to the inference that he was associating himself with the dangerous driving.
The judge’s summing up  
30.	With those principles in mind we turn to the judge’s directions.  The judge warned the jury in his summing up that the mere fact that someone has had a drink:-
“…does not of itself mean that he is unfit and that it would be dangerous for him to drive.”
He made a similar comment in relation to speeding, pointing out that the mere fact of exceeding the speed limit does not of itself mean that the driving is dangerous.  He continued that there was no issue but that Westbrook was driving dangerously and that he caused the death of Mark Tansey.  Further, he pointed out that the appellant admitted inviting Westbrook to drive his car and:-
“…he sat in it without demur, whilst Westbrook drove as he did.”
The judge continued:-
“What the prosecution have to prove is that at the time he did either or both of those things he recognised or that it would have been obvious to him that it would be dangerous to allow Westbrook to drive the car at all or to allow him to go on driving at the speed he was without attempting to stop him or at least slow him down.
We now know that Westbrook was nearly three times over the drink/drive limit.  It is not, of course, suggested Mr Webster could have been aware precisely how much Westbrook had drunk, but what the prosecution says is that all the circumstances would have made it obvious that Westbrook was not fit to drive.  So far as the speed is concerned, so the prosecution say, it was known or would have been obvious to Mr Webster that the speed was excessive and dangerous and that he should have intervened.” (page 7)
31.	The judge then, after consultation with counsel, handed to the jury written questions based on those directions.  The written directions read as follows:-
“(1) Do you find it proved that it was dangerous for Westbrook to be permitted to drive and that the defendant either recognised that or that it would have been obvious to him before he invited Westbrook to take the wheel?
(2) Do you find it proved that the speed at which Westbrook was driving was dangerous and that the defendant either recognised that or that it would have been obvious to him and that he should have attempted to intervene?
(3) If your answers to both the above questions is “No”, then you must find the defendant not guilty – so if you answer “No” to the first two questions that is the end of the matter – but if the answer of all of you – and I’ll come back to that in a moment – to either or both is “Yes”, if you find it proved that that was a contributory cause to the death of Tansey?  If your answer is “No” you must find the defendant not guilty, but if your answer is “Yes” the defendant is guilty.”
32.	Applying those principles of law which we have concluded are applicable, it appears to us that the directions as to the first way in which the prosecution put its case against the defendant were incorrect.  Twice the judge had referred to the issue as whether it was dangerous to allow Westbrook to drive the car at all, both in the earlier passage (at page 7) and in question (1).  But putting the question in that way was ambiguous.  Few would deny that it was dangerous to allow a man who had been drinking to drive.  But that is not the question posed by Section 2A of the 1988 Act as amended.  The question was whether the appellant recognised, by virtue of what he saw to be Westbrook’s drunken condition, that Westbrook was likely to drive dangerously.  It is one thing to set out to prove that it was dangerous to permit Westbrook to drive because he had been drinking or was drunk.  It is a quite different question whether, by virtue of the amount it was apparent to the appellant that Westbrook had drunk, the appellant realised Westbrook was likely to drive dangerously.  The defect in the judge’s direction at (1) is that it fails to distinguish between those two questions.  The prosecution must prove that, by reason of the amount Westbrook appeared to have drunk, the appellant realised he was likely to drive dangerously.  Only the second question is correct in applying Section 2A of the 1988 Act.  It permits the jury to find the appellant guilty merely because he realised Westbrook had been drinking.  That was part of the prosecution’s case against the appellant but it was not conclusive.
33.	There was a further defect in the way the judge directed the jury under question (1).  He rightly directed the jury as to the appellant’s state of mind “either recognised” but he posed as an alternative the question whether it “would have been obvious to him”.  The danger with that way of putting it was that it might suggest to the jury that it was sufficient to prove that the appellant ought to have recognised the danger rather than the need to prove that he did recognise the danger.  As we have already observed, if the prosecution could prove that it must have been obvious to the appellant that by reason of his condition Westbrook was likely to drive dangerously the jury would have had little difficulty in concluding that the appellant did recognise that it was likely Westbrook would drive in that way.  But, without being unduly prescriptive, the judge ought to have directed the jury in such a way that the jury did not confuse the two propositions, namely whether the defendant did recognise the danger or whether he must have recognised the danger.  The only question for the jury was whether the appellant did recognise the danger; if the facts demonstrated that he must have done, then the jury would have no difficulty in concluding that he did recognise that danger.  
34.	In relation to the second way in which the prosecution put its case against the appellant, we take the view that the judge also fell into error.  Both in the earlier passage at 7C to D and in question (2) the judge did not leave to the jury the issue as to whether, at the time the appellant recognised that Westbrook was driving at a dangerous speed, he had an opportunity to intervene but failed to take that opportunity.  The question whether the appellant should have attempted to intervene assumes that he had an opportunity to do so.  But the issue of opportunity was an issue which should have been left to the jury.  The way the judge directed the jury did not sufficiently draw the jury’s attention to that issue, which had to be resolved, before the jury could convict.  The second question also discloses a similar defect in the reference to what “would have been obvious” to the appellant.  We commend the decision of the judge to give short written questions to the jury.  Perhaps this case demonstrates, like so many others, the need to spend sufficient time in discussing the law before speeches and summing-up.  As the adjutant used to say, “time spent in reconnaissance is seldom time wasted”.  There was a discussion but the points now taken were not canvassed by counsel.
The safety of the verdict
35.	Mr Linehan QC rightly pointed out that the questions to the jury had been the subject of submission and, in their final form, laid before the jury without protest.  In those circumstances he contended that there was really no issue but that if the appellant saw Westbrook’s condition he recognised he was likely to drive dangerously.  We do not agree.  Although there was an abundance of evidence as to Westbrook’s state of intoxication, it must be recalled that both the appellant and his wife were willing to stay in the car when he drove.  The appellant’s own evidence was that Westbrook did not appear so drunk that it was likely he would drive dangerously.  If he had thought he was in that condition, it remains inexplicable why he should let Westbrook drive, since he himself had not been drinking, still less permit his wife to travel in the back of the car as a passenger.  It was, accordingly, for a jury to assess the significance of the fact that the appellant let his wife travel in the back of the car and permitted Westbrook to take the wheel.  We are unable to say that the resolution of the issues, if they had been laid before the jury correctly, would have inevitably been resolved against the appellant.  One jury disagreed.  The second jury was not unanimous.  We take the view that the errors in the directions in relation to the first way the prosecution put its case against the defendant did affect the safety of the verdict.  Since we cannot know on what basis the jury did convict, that is sufficient to dispose of this appeal.  
36.	However, we should consider whether a conviction on the second basis was inevitable.  The evidence of the speed at which Westbrook was driving on a narrow country road was overwhelming.  But the question whether or when the appellant had an opportunity to intervene is less clear.  We did not see the police video of the journey.  True it is that it would only have taken a moment for the appellant to shout out a command to stop or to slow down, as was his right as owner of the car.  But when he ought to have done so cannot be solved by us.  It was a matter for the jury to assess and we repeat that the jury never seems to have found the matter free from difficulty.  In those circumstances we allow the appeal.
37.	We also indicated that we would not order a re-trial.  We appreciate how distressing this resolution of the appeal must be to those whose impact statement we have read and for whom we have every sympathy.  They, as the impact statement revealed, have had to relive this tragedy during two trials and now during this appeal.  However, we have to bear in mind that this appellant has already served ten months out of a sentence of imprisonment of five years.  Had the appeal been dismissed we would have had to consider the propriety of a sentence of five years.  The driver, who pleaded guilty, was sentenced to 3½ years imprisonment.  Despite the fact that this appellant pleaded not guilty, there was a serious argument as to whether the five years imprisonment was wrong in principle, let alone manifestly excessive.  We cannot and do not resolve that issue but we do take the view that there was a real prospect of a substantial reduction in that sentence even if the appeal against conviction was dismissed.  In those circumstances the appellant might be regarded as having served a substantial proportion of the appropriate sentence.  It is for that reason, together with the fact that he has already been tried twice in respect of this offence, that we did not order a re-trial.  
38.	In reaching our conclusion we do not in any way intend to discourage prosecution for an offence of aiding and abetting causing death by dangerous driving.  It seems to us an important and powerful weapon in the armoury deployed to discourage owners of vehicles permitting those who have been drinking from driving.  Anyone who does so runs the risk of not merely a prosecution for aiding and abetting driving with excess alcohol but, should tragedy occur, for a far more serious offence.