New Appeal: Is careless driving a strict liability offence?

In this determination (DPP v O’Shea) the Supreme Court granted the DPP leave to appeal the Court of Appeal’s decision that careless driving is not a strict liability offence.

Background

On the 9th of January 2013, O’Shea, who was seventy years of age at the time, was driving on a public road in County Kildare. He collided with a JCB which was performing roadworks, pinning Kevin O’Sullivan, who was on traffic control duty, to the JCB, causing his death. O’Shea was not speeding, nor was he intoxicated and his car was fully roadworthy. He claims that there was no pre-warning sign, the sun was low in the sky and he was blinded by strong sunlight.

The DPP charged O’Shea with careless driving causing the death of Kevin O’Sullivan, under s 52 of the Road Traffic Act 1961 (as substituted by s 4 of the Road Traffic Act No 2 2011) (here). At trial, the trial judge instructed the jury that careless driving is a strict liability offence. The jury found O’Shea guilty. The trial judge fined O’Shea €5,000, suspended him from driving for four years and ordered that he re-sit a driver competency test before his licence is returned.

O’Shea appealed his conviction to the Court of Appeal on a number of grounds which related to the argument that the trial judge had misdirected the jury in stating that careless driving is a strict liability offence.

The COA (here) overturned O’Shea’s conviction and ordered a retrial. It held:

10. This court is satisfied that the offences of dangerous or careless driving causing death are not offences of “strict liability”. The extract opened to the court from Mr. Pierce’s Road Traffic Annotated Legislation 1961-2011 at para. 52 provides a useful insight into the nature of the charge of careless driving causing death:

This RTA 2011 version (RTA 2011, s.4) of this section makes careless driving a much more serious offence than hitherto, especially if death or serious bodily harm occurs. It is an indictable offence when death or serious bodily harm results where a jury does not convict of dangerous driving causing death or serious bodily injury but convicts of careless driving causing death or seriously bodily harm the penalty now open to the judge are much heavier.

This new version of criminal careless driving must certainly raise a big issue of whether mens rea arises and at what level or degree it applies to such a serious offence.

11. Mens rea is a necessary pre-requisite to establishing guilty in any indictable offence. In relation to this case specifically, in order to convict, a jury would have to be satisfied that there had been intentional or reckless behaviour in the manner of the appellant’s driving. The issue of recklessness was not addressed by the learned trial judge in his address to the jury, and indeed was specifically excluded by him as being relevant to the offence when he declined to discharge the jury on the basis that recklessness had not been established by the prosecution.

The DPP sought leave to appeal that decision to the Supreme Court. The DPP argued that the issue is one of general public importance and will affect many other cases; that the test for reckless driving is recognised across the common law world as an objective test; that fault is failure to meet an objective standard of driving; and, fault does not require intentional or reckless conduct or intentional disregard for proper standards of driving.

The Supreme Court granted the DPP leave to appeal on the question “what are the ingredients of the offence created by, and what must be proved in order to sustain a conviction under s 4 of the Road Traffic (No 2) Act 2011?”

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