1 On 14 December 2005 at the Truro Crown Court before Her Honour Judge Robertshaw and a jury the appellant was convicted of an offence of causing death by dangerous driving. On 15 January 2007 he was sentenced to three-and-a-half years' imprisonment. He now appeals against his conviction by leave of the single judge.

2 The deceased was Ian Foster, a young man aged 23. He was killed on 22 September 2006 on Harmony Road in Cornwall when the Kawasaki ZX 600 motorbike he was riding was in collision with a Scania articulated lorry being driven by the appellant. The deceased's friend David Thomas was riding his own bike but was some distance behind the deceased and out of sight when the accident happened.

3 The appellant was driving in the opposite direction to the deceased. At the moment of collision he was in the course of turning right across Harmony Road to go into Tregoss Road. The appellant's lorry was fitted with a tachograph. The speed limit in Harmony Road was 30mph. The tachograph was examined by Mr Emprigham who gave evidence at trial as to what it showed. For a period the appellant had been driving along Harmony Road as a speed of 45mph. His speed reduced to between 31 and 35mph as he approached the junction to cross it. There was no dispute about the evidence of speed.

4 The Crown sought to adduce evidence of bad character pursuant to section 101(d) of the Criminal Justice Act 2003 as showing a relevant propensity. The evidence consisted of one previous conviction for speeding on an occasion in May or June 2004 when the appellant had driven at 53mph on a road where the speed was restricted to 40mph. The judge admitted this evidence by a ruling given on 11 December 2006, and she gave full reasons for doing so on 14 December 2006. On that occasion the judge said this:

“… there is clearly an issue between the prosecution and the defence as to whether this defendant has a propensity for driving his HGV vehicle too fast. The fact that the defendant accepts the tachograph and expert evidence that he was driving at the speeds alleged does not mean that speed and the defendant's attitude are not issues as between the Crown and the defence.

Secondly, this evidence, taken at face value, would demonstrate that the defendant has such a propensity; thirdly, that having this propensity makes it more likely that he was driving at an excessive speed on 22 September.”

5 We regard this ruling as extremely surprising and entirely misconceived. There was no issue between the parties as to the speed at which the appellant was driving; it was admitted. There was no basis for admitting this evidence on propensity grounds; again, the relevant facts were admitted. The judge appears to have been moved by what she referred to (Ruling, page 4E) as “the defendant's attitude”. In her summing-up the judge was to deal with the character evidence as follows:

“You heard about the defendant's conviction because it may help you understand other evidence in the case and because it might help you to resolve an issue between the defence and the prosecution, namely the defendant's propensity to drive at excessive speed and his attitude towards that, matters that the Crown say in this case are at the heart of the allegation that he drove dangerously ….

You may use the evidence about the defendant's previous conviction in this way: if you think it right, and it is a matter for you, you may take it into account when deciding whether or not the defendant indeed has a propensity to drive at an excessive speed and his attitude towards that and, therefore, whether he committed the offence with which he is charged, although remember, members of the jury, that speed is only one part of the Crown's case and you would not convict any person of dangerous driving on speed alone. You must decide the extent to which, if at all, his character helps you when you are considering whether or not he is guilty.”

6 These references to the appellant's attitude are quite inappropriate. The test of dangerous driving is objective. It does not require that the appellant intended to drive dangerously or was reckless whether his driving was dangerous, but the jury may have thought that that was required. The judge dealt with this matter both in her ruling and in her summing-up wholly inappropriately. We cannot understand, despite the helpful submissions made by Mr Melville-Shreeve for the Crown, how the Crown came to persist in the application to adduce this evidence. The Crown say that the case against the appellant was in any event a strong one. That may well be right. Moreover, the overarching fact is the tragedy of a young life needlessly lost. But the appellant may have been convicted on an entirely wrong basis. In those circumstances the conviction is unsafe and cannot stand. The appeal is allowed.