R v Backhouse and others [2010] EWCA Crim 1111
COMMENT
In Needham [2016] EWCA Crim 455, Treacy LJ said;
The general purposes of disqualification were expressed in R v Backhouse [2010] EWCA Crim 1111 at [21]:
"An order of disqualification has the purpose of protecting the public … disqualification is also intended to punish and deter offenders and others. A balance, however, has to be struck and the court should not disqualify for a period that is longer than necessary and should bear in mind the effects of a ban on employment or employment prospects".
Principles of the sort referred to above will continue to hold good for judges in calculating the "discretionary" element of a sentence of disqualification. As is obvious the new provisions importing an "extension period" or applying section 35B have the potential to alter the overall approach of the court where disqualification and custody are imposed.
In December 2008, I was instructed by all four defendants in this three-week trial. All defendants were found 'not guilty' of causing death by dangerous driving and the alternative dangerous driving charge, but convicted of a separate dangerous driving offence. I appeared at the Court of Appeal (Criminal Division) in the subsequent appeals against sentence. This case is a leading authority on the purposes of disqualification from driving; see Archbold 2019 at 5A-469 and 5A-477 and Wilkinson’s Road Traffic Offences at 20-26.
The facts
"On Sunday 15th October 2006 the appellants and a friend of theirs took their high powered motorcycles on a 145 mile run from Sherburn-in-Elmet to the east coast of Yorkshire and back. Each rider, with the exception of one, drove very powerful 1000cc motorcycles. Analysis from CCTV footage from sighting at points along their route demonstrated that they were travelling at such high speeds as to amount to dangerous driving. The footage revealed that at one point, they had covered a distance of just over 28 miles in about 27 minutes. This indicated an average speed of approximately 62 miles per hour.
That route included a 3-mile stretch of road where the speed limit was 30 miles per hour or less. In order to maintain an average speed of around 60 miles per hour there would have been instances where the riders would have decelerated around bends or at roundabouts and then accelerated to speeds well in excess of the maximum limit in order to sustain an average speed. An experienced police officer undertook the same route in a high powered motor cycle, driving as far as possible within permitted speed limits. On two separate occasions it took him 37 minutes to complete that particular part of the journey.
Another section of their journey was calculated with reference to CCTV sightings. The group had travelled 10.12 miles in 10 minutes and 12 seconds, giving an average speed of approaching 65 miles per hour. The route took in a number of tight bends and junctions. A police motorcyclist attempted to replicate the journey. He kept at the lower speed limits but drove as fast as he could in the 60 miles per hour. He reached speeds exceeding 100 miles per hour on four occasions, but nonetheless failed to match the appellants' time. He completed the route in 11 minutes.
There was evidence from various eyewitnesses, some of whom estimated that the group was riding past them at speeds exceeding 80 to 100 miles per hour. The group was seen to be spread out across the road, side by side on their motor bikes. Three or four of them were seen to have been doing what are known as wheelies, that is deliberately raising the front wheel off the road at excessive speeds. Their companion was seen to break away from the group and to have gone on ahead of the others. He was seen by a witness doing a wheelie at speeds exceeding 100 miles per hour and then to lose control of his motor bike and hit a verge. Tragically he was thrown from his motorcycle and died at the scene.
When the judge passed sentence, he said that he considered that a significant element of the appellant's punishment was to take each of the appellants off the road for a very considerable period, as a way of protecting other road users, if any of these appellants were to ride a motorcycle in the way in which they were shown to have done in this case.
These four appellants were convicted of dangerous driving in the Crown Court at York on 12th December 2008. Each of them was acquitted of an allegation of causing death by dangerous driving [and a further charge of dangerous driving immediately before the fatal accident]. On 23rd January 2009 each appellant was sentenced to 9 months' imprisonment suspended for 2 years. Each appellant was disqualified from driving for 4 years and ordered to take an extended driving test."
The appeal grounds
"The submissions made by Mr Thompson, on behalf of all four men, is that no immediate term of custody was imposed, so that the consequences of the full period of disqualification are visited upon these appellants. He points to what he submits is a limited level of driving convictions in their cases, and points out that each had a clean driving licence at the time of the offence. He draws our attention to authorities which indicate that long disqualifications should be carefully considered by the courts, as they may lead to further offences being committed, by reason of a temptation to drive unlawfully, where a very long disqualification has been imposed. We have also taken account of those authorities which enjoin the court to have regard to the length of a period of disqualification in terms of a hampering effect upon an ability of an offender to obtain or maintain employment."
Judgment
"The essential question in this case is whether the judge imposed an excessive term of disqualification. He plainly reflected very carefully on sentence, and had the benefit of having seen these appellants during the course of the trial, and considering the detailed evidence given at the trial, concerning them and their driving. Notwithstanding Mr Thompson's submissions, we are not persuaded that in the circumstances the term imposed was excessive. It was undoubtedly firm but that was, in our judgment, what was needed. The judge was justified in having public protection at the forefront of his mind in this case."
The general purposes of disqualification
"The judge was justified in having regard to a need to protect the public and to demonstrate to these appellants their need to learn from what had happened. An order of disqualification has the purpose of protecting the public, and we take the view that such a purpose is served in this case, where the driving was deliberate and prolonged and where there is clear evidence of a failure on the part of the appellants properly to appreciate its consequences. Disqualification is also intended to punish and deter offenders and others. A balance, however, has to be struck and the court should not disqualify for a period which is longer than necessary and should bear in mind the effect of a ban on employment or employment prospects."