High Court judge issues note on ‘unique’ death by dangerous driving case where two accused were sitting in driver’s seat

Nathaniel Cooper and Kylie Johnston were charged with causing the death of Andrew Mackay in July 2013 after Mr Cooper had invited Ms Johnston, who did not have a driving licence, to sit on his lap and take control of his vehicle, only for the pair to lose control and crash into Mr Mackay in a caravan park.

Ms Johnston pled guilty at a preliminary hearing and was cited as a prosecution witness, but Lord Stewart said a key factual point of controversy at the trial in April 2015 was whether Mr Cooper operated the 4x4’s controls, in particular the steering wheel, the brakes and the accelerator, as the accident occurred.

The judge said the jury’s verdict was “consistent” with the broader view, contended for by the Crown, of what constituted “driving” within the meaning of section 1 of the Road Traffic Act 1988.

The charge alleged that: “… you Nathaniel David Cooper and Kylie Elizabeth Johnston did cause the death of Andrew Harry Mackay… by driving a mechanically propelled vehicle… dangerously… and at the said… East Balthangie access road you Nathaniel David Cooper while sitting in the driver’s seat, did move the seat back and away from the steering wheel and foot pedals and you Kylie Elizabeth Johnston without holding a licence authorising you to drive… did move over from the front passenger seat and sit in front of and on the lap of you Nathaniel David Cooper and you did both drive said motor vehicle along the said access road and into the said East Balthangie caravan park, fail to keep proper control of said motor vehicle, cause said motor vehicle to accelerate, lose control of said motor vehicle whereby said motor vehicle was caused to leave the pathway, cross an area of grass, drive through a fence and collide with said Andrew Harry Mackay and a caravan in front of which he was then standing whereby the said fence, motor vehicle and caravan were all damaged and said Andrew Harry Mackay was so severely injured that he died: contrary to the Road Traffic Act 1988 section 1.”

The High Court in Aberdeen heard that the couple, who were in an on-off relationship, had taken two children for a weekend camping at East Balthangie.

After a day out in the car they returned to the caravan park and then decided to go out again to the nearest petrol station to buy cigarettes and sweets.

On the way back from the petrol station, as they turned into the access road to the caravan site, he stopped the car and asked her whether she wanted to “have a go” sitting on his lap in the driver’s seat, to which she agreed.

After stalling on a couple of occasions and Mr Cooper restarting the engine, Ms Johnston then succeeded in moving off under Mr Cooper’s directions, letting off the handbrake and using the clutch and accelerator.

However, the court was told that things began to go wrong as the vehicle passed between a shed and a toilet block, when the driver’s side of the car passed close to the toilet block and Ms Johnston “panicked”.

Instead of turning immediately right into the park, the car headed towards a static caravan and then arced right through 180 degrees on a course that took it back across a gravelled area and onto the grass park towards the static caravan belonging to Mr Mackay.

The car, which stayed in first gear all the way and probably did not travel at more than about 10 mph, crashed through the wooden fence then ran Mr Mackay down as he stepped out of his caravan to get some fresh air and crashed into his caravan.

Counsel agreed that the case was “unique” so far as their researches went as none of the previous cases had featured two people in the driver’s seat with one sitting on the other’s lap and none involved a co-driver who did not actually operate any of the controls.

In his speech to the jury the advocate depute submitted that a vehicle could be driven by two persons at the same time.

It was possible, he said, to be guilty of dangerous driving by doing nothing – imagine a driver falling asleep, or a driver driving on a motorway and climbing into the back seat leaving the car to steer itself.

Counsel for the defence told the jury that the test of whether someone was driving was whether that person was “in a substantial sense controlling the movement and direction of the vehicle”.

He submitted that the only evidence that Mr Cooper was controlling the vehicle came from Ms Johnston, which was uncorroborated and in any event, her evidence should be rejected because it was incredible and unreliable.

The judge explained his directions to the jury, which ultimately took one hour to reach its verdict.

In his written note, Lord Stewart said: “By a majority they returned a verdict of guilty under deletion, as already stated, of the words ‘did move the seat back and away from the steering wheel and foot pedals’. They did not delete the words ‘cause said motor vehicle to accelerate’.

“Of course causing the vehicle to accelerate could be seen as both a function of depressing the accelerator and as a function of not depressing the brake pedal. I think the verdict is consistent with the broader view, contended for by the Crown, of what constitutes driving within the meaning of section 1 of the Road Traffic Act 1988.”