Government to toughen sentences for drivers who kill or seriously injure
Following its consultation from late last year, the government has confirmed its intention to impose tougher sentences on drivers who kill or seriously injure as a result of bad driving.
The responses to the consultation from various parties, including victims of road traffic offences, criminal justice professionals and road safety experts, overwhelmingly supported a change in the law. We take a look at the key proposals made by the government and the likely effect that this will have on drivers and their insurers.
The three key proposals arising from the consultation are:
The maximum sentence for drivers convicted of causing death by dangerous driving will increase to life imprisonment.
The same maximum sentence will also apply to those convicted of causing death by careless driving whilst under the influence of drink or drugs.
The creation of a new offence of causing serious injury by careless driving.
Increased maximum sentences for causing death
The offence of causing death by dangerous driving occurs when a driver causes a death by driving in a way which falls far below the standard of a competent and careful driver (and it is obvious to a careful and competent driver that driving in that way would be dangerous).
Causing death by careless driving whilst under the influence of drink or drugs occurs when death is caused as a result of the standard of driving having fallen below (rather than far below) that expected of a reasonably competent and capable driver, however the new life sentence will apply if either the person is unfit to drive through drink or drugs, having consumed so much alcohol or drugs as to be over the prescribed limit, or having failed without reasonable excuse to provide a sample (for example of breath or blood).
Examples of dangerous driving include:
Driving above the speed limit at a speed which is inappropriate for the prevailing conditions.
Driving whilst distracted by a grossly avoidable distraction (such as a mobile phone).
Engaging in racing or competitive driving against another driver.
Examples of careless driving include:
Failing to see or react to a hazard for a short period of time.
Turning right across oncoming traffic.
Loss of control due to speed or mishandling.
The current maximum sentence that can be imposed by the court for the most severe cases of causing death by dangerous driving and causing death by careless driving whilst under the Influence of drink or drugs is 14 years' imprisonment, which would ordinarily only apply on conviction following a not guilty plea and trial, as discount for an early guilty plea can reduce the sentence by up to one third. When a custodial sentence is passed the person will then ordinarily only serve around half of that period in custody and the remainder on licence in the community. In real terms, this means that currently, even for the most serious of cases, with an early guilty plea a person may spend a maximum of around 5 years in prison.
70% of those who responded to the consultation agreed with the suggestion that the maximum sentence for these offences should be increased to life.
What impact will this have?
It is likely the new maximum sentence will be reserved for the most serious of cases. That being said, recent sentencing decisions have taken a hard line on, for example, those who use mobile telephones whilst driving. In theory therefore, a driver who happens to be involved in a fatal collision as a result of using a mobile telephone could now face life imprisonment.
What does life mean?
Life imprisonment does not mean that the person will be incarcerated for the rest of their life, but they will remain under the provisions of the sentence for the rest of their life. When passing a life sentence, the court will place a tariff, or minimum term that the person will spend in custody before they can be considered for release on licence back into the community. The sentence however remains in place for the rest of their life and they can be recalled to prison if they beach the terms or conditions of their release.
This will also mean that the court will have the power to impose longer minimum terms on those convicted of the most serious fatal driving offences.
New offence of causing serious injury by careless driving
The consultation invited responses as to whether a new offence of causing serious injury by careless driving should be introduced. The law currently provides that it is an offence to cause serious injury by dangerous driving (with a maximum sentence of 5 years imprisonment). There is no corresponding offence in respect of acts of careless driving (the maximum sentence for which is a fine and the endorsement of penalty points / a period of disqualification). It has long been suggested by commentators that the absence of a like offence in respect of careless driving is unjust, e.g. where the driving results in a life changing injury. The proposed new offence is aimed to bridge the gap.
73% of those who responded were of the view that the maximum sentence to be imposed for this offence should be 3 years' imprisonment or more.
What does this mean for motorists and their insurers?
All drivers are expected to drive at a certain standard and are judged objectively against that which a careful and competent driver would be expected to do. Careless driving is a wide ranging provision and whilst it can apply to cases which are borderline dangerous, it does not always represent a significant departure from the required standard of driving or conduct that would be considered reprehensible. It is often an error rather than an intentional act of bad driving. A momentary lapse of concentration or misjudgement even at low speed is all that may be required.
Whilst the consultation recognised the concern that some respondents had regarding the terminology used and the legal test for careless / dangerous driving, the government remains of the view that the current test in place is 'fit for purpose', although it will give consideration as to how the test and decisions made under it can be more transparent and understandable by victims and the public
As with the existing offence of causing death by careless driving, the creation of this new offence will mean that sentences are determined by the consequences of what has happened rather than the culpability of the driver – which of itself is a generally unfair proposition many would say.
The serious injury for the purposes of the offence does not have to be life changing. The legal definition is an injury which would amount to grievous bodily harm, or really serious harm. A broken bone would be sufficient.
In practical terms, whenever a vehicle collides with another road user, especially a pedestrian, cyclist or motorcycle, there is a real likelihood that serious injury will be caused. This could result in ordinary motorists who have been involved in an accident where their driving is judged to have fallen below (not far below) the standard of a careful and competent driver, but where the effects of this result in serious injury, facing prosecution for a potentially imprisonable offence, resulting in the loss of their driving licence, livelihood and liberty.
It is anticipated that this will become a very common offence to be charged. This will mean that ordinary motorists who are involved in an accident will require expert legal representation from an early stage, prior to any police interviews being conducted where possible.
Other issues for consideration
The calls for causing serious injury by careless driving to carry a custodial sentence and increased sentences for causing death by dangerous driving raise the question as to whether the sentencing provisions and guidelines for causing death by careless driving will also be reviewed and increased.
The consultation requested a response from those consulted as to whether the minimum period of disqualification imposed as a result of a conviction for causing death by driving should be increased. Whilst those consulted indicated broad support for an increase in the minimum disqualification period (2 years), there was no clear consensus on what the minimum period should be increased to.
Implementation and effect
As a result of the consultation, the government has announced plans to action these matters as soon as parliamentary time allows, although that has to be considered in light of the government's Brexit priorities.
Primarily the increases in sentence will have a dramatic effect on drivers convicted of causing death by driving. The court's sentencing powers are substantially increased in respect of the most serious cases and it is likely that an increase in the severity of sentencing in respect of top category dangerous driving offences will have a knock on effect in respect of incidences of dangerous driving where the offender is deemed to be less culpable. 157 people were convicted of causing death by dangerous driving in 2016, and a further 32 were convicted of causing death by careless driving whilst under the influence of drink or drugs.
This will result in an increased need for legal representation for drivers in respect of defending road traffic offences, where their driver is at risk of disqualification and/or a custodial sentence. Given the seriousness of the penalties for the offences, it may be that more drivers will wish to defend prosecutions to trial.
Clearly transport operators will need to educate their drivers on the increasing severity of penalties in relation to the "causing death by" offences, given the time that 'vocational' drivers spend on the road and the types of vehicles that they drive, which are arguably more likely to cause death or serious injury if involved in an accident. The response to the consultation notes that (in relation to an increase in the fine / fixed penalty for using a mobile phone whilst driving – from £100 / 3 points to £200 / 6 points earlier this year) the imposition of higher penalties has particular consequences for drivers of large commercial vehicles as strong action by traffic commissioners is likely to lead to suspension of the vocational entitlement of these drivers for one such offence.
Many of those consulted indicated that they would like courts to make greater use of the higher sentencing powers available to them in circumstances of bad driving. Whilst the government noted that sentencing remains a matter for independent judges, with decisions based on the full facts of each case, it remains to be seen whether the judiciary will seek to implement more severe sentences as a result of the response to the consultation. New sentencing guidelines which will reflect the increased sentencing powers and provide clarity as to application to different situations, are awaited with interest.
This article was written by DWF’s Motor Prosecutions Unit, a specialist team dedicated to defending criminal prosecutions brought against drivers and companies. For further information, please contact Lee Foulser at email@example.com or on 0161 603 5168, or Andrew Barton at firstname.lastname@example.org or on 0161 604 1758.
This information is intended as a general discussion surrounding the topics covered and is for guidance purposes only. It does not constitute legal advice and should not be regarded as a substitute for taking legal advice. DWF is not responsible for any activity undertaken based on this information.