10 April 2007

Prosecuting Bad Driving - Consultation on CPS Policy and Practice - Response by RoadPeace

Summary

RoadPeace, UK's national charity for road crash victims, welcomes the opportunity to respond to this consultation - in order to achieve greater justice and fairer treatment for the victims of road crashes. Already in June 1992, the CPS pledged greater openness about its decision making, and greater effectiveness (attached is article from Independent of 5 June 1992), which is repeated in this consultation, 15 years later. RoadPeace had responded to countless consultations during those 15 years, setting out the problems with the existing law and the low priority given to road death and injury within the criminal justice system, reflected - crucially - in inadequate investigations of road crashes (in part due to inadequate resources), followed by unsatisfactory prosecutions. RoadPeace is also committed to the reduction of road danger and believes that more should be done to reduce the threat posed by bad driving, before casualties occur.

Q1 Manslaughter vs. Causing Death by Dangerous Driving

• RoadPeace's position remains that all culpable road deaths should be charged as manslaughter.
• Manslaughter should be the starting point for consideration by the CPS, similar to the ACPO guidance that police approach all road deaths as 'unlawful killings' until the contrary is proven.
• Fatal crashes involving excessive speeding or drink driving should be charged as manslaughter-drivers cannot be unaware of the much greater risk they pose by driving grossly over the speed limit (20 mph or more) or excessively over the alcohol limit.

Q2 Charging standards

• Dangerous driving is too rarely used, with less than 7,000 convictions a year (20 a day).
• All current examples for charges of careless driving should be classified as dangerous.
• The charging standards for dangerous and careless driving should be based on those standards used by the Driving Standards Agency (DSA) in driving tests.
• Charging standards should include examples specific to vulnerable road users, since vulnerable road users account for almost half of all road deaths.

Q3 Momentary inattention and single misjudgement

• As with sharp implements and dangerous machinery, momentary inattention and single misjudgement while driving can have serious or fatal consequences and should thus rightfully qualify as dangerous.
• Charging standards for dangerous driving already state that single events do qualify as dangerous driving; multiple or ongoing violations only aggravate the crime.
• Inattention and misjudgement should not be presumed to be momentary or one-off events as these problems may well be habitual. We believe that the majority of drivers who speed or violate traffic lights are repeat offenders.

Q4 Role of excessive speed

• Driving at excessive speed kills and seriously injures twice as many people as does drink driving. It is the most common factor in fatal crashes and its importance should not be under-estimated. Prosecutors should receive specific training on the contribution of speed to crashes and on its estimation.
• Vehicle speeds are difficult to determine and the police provide conservative estimates.
• Charging standards should determine that excessive speeding (10-19 mph over the limit) qualifies as dangerous driving.

Q5 Employer/corporate liability

• At work drivers are involved in at least 25% of all road deaths and employers must take more responsibility for the danger posed by their vehicles and drivers.
• Liability should include prosecution for not enforcing safety checks in respect of both vehicle and driver (such as the annual apnoea test requested by unions), elimination blind spots, etc.

Q6 'Nearest and dearest' policy change

• The proposed change is welcomed and long overdue. The CPS does not downgrade charges on the basis of 'Nearest and dearest' in other circumstances, such as domestic violence, nor should it with road deaths; it is not in the public interest to do so.
• Any genuine remorse associated with 'Nearest and dearest' cases can be considered as a mitigating factor at the sentencing stage.

Q7 CPS treatment of victims of road crashes, particularly bereaved families.

• Very few road crash victims ever have any contact with the CPS; the police still make most of the charging decisions in road death and injury cases.
• Sympathy is no substitute for justice-victims do not want improved communication over properly trained and resourced prosecutors.
• CPS policy should be consistent. All bereaved families should receive the same treatment, regardless of whether the crime occurred on the road or in other circumstances. This means that families bereaved through a road death should meet the CPS before the charging decision is made.
• CPS should make charging decision in all serious and fatal crashes (not the police) and families should be informed of the charging decision by the CPS, not via the police.
• CPS should extend the Victim's Code to all those injured in crashes involving crimes.
• Road victims, both bereaved and injured, deserve better information on collision investigation and their rights. For instance, injured road victims must be warned that 'careless driving' charge must be laid within six months of crash. RoadPeace has requested a joint working group to ensure quality information for victims, as in Scotland.
• CPS charging decisions and their reasons should be published on the CPS website and the legal outcome monitored so as to compare the conviction rate over time and between areas. Injury crashes should be monitored separately from non-injury cases.
• Specialist case prosecutors should deal with cases involving commercial vehicle drivers.
• CPS training should include more on the role of speed in crash causation and injury severity determination, and the difficulty in estimating speed.

Q8 Should case prosecutors attend inquests?

• Yes, this would ensure that CPS will be better prepared for the criminal trial as additional evidence may emerge from witness and driver statements. They will also be able to ask the collision investigator questions.

Q9 Should case prosecutors prosecute fatal crashes?

• Yes, case prosecutors are already used in other cases involving a death and it is regrettable that this question even has to be asked.

Q10 Anything in document strongly disagree with or other comments?

• We believe that the police, not the CPS, make the charging decisions in many, if not most, serious injury crashes. The statistics do not show the number of dangerous driving convictions as increasing.
• See list on last page

RoadPeace's response to the CPS Consultation on their Policy and Practice of Prosecuting Bad Driving

Introduction

RoadPeace, the national charity for road crash victims, was established in 1992, after the founder's son was killed by a red light violator who was only charged with 'careless driving', since the police stated 'everyone goes through red'. He was fined £250 and no mention was made of the life he had taken. Thus criminal charges and charging standards have always been important to RoadPeace.

For 15 years, RoadPeace has been supporting victims and campaigning for justice for victims and a greater priority for road danger reduction. In 1998, RoadPeace launched its Justice Campaign, which called for * Victims' right to information and consultation * national standards for the investigation of crashes * criminal and civil justice * national standards for medical care and * partnership work between all relevant government departments. Part of the Justice Campaign included the setting up of an All Party Parliamentary Group for Justice for Road Traffic Victims, which now has 150 MPs and Peers as members.

This is the first time the CPS has consulted on its charging standards. It has been a long wait, during which time over 60,000 people have been killed on our roads and over ten times as many reported seriously injured. This consultation is as much welcome as it is overdue. Families are still shocked, as the case studies in this response will show, that their loved ones' deaths are attributed to nothing more than 'careless driving'.

There are over 30 million motor vehicles in the UK and even more drivers. Yet there are only 7,000 dangerous driving convictions, 31,000 careless driving prosecutions, and over 90,000 drink driving convictions each year. This is an average of 20 dangerous driving convictions, 90 careless driving prosecutions and 250 drink driving convictions each day. We believe this reflects the low level of traffic law enforcement and the high tolerance for bad driving.

The Transport Select Committee's 2004 Report on Traffic Law and Enforcement, stated: "One of the themes of this report is that the law on our roads should not be seen as somehow different from ordinary law...The penalties for road traffic offences must match the penalties for other crimes against the person, and for crimes against property. Offenders must not face lower sentences, simply because their crime involved a car."

This consultation covers all bad driving and is not restricted to fatal crashes. Nor should it be. RoadPeace agrees that penalties should be determined by the culpability, but this means that all dangerous driving, including driving involving injury or intimidation, should be included. For too long RoadPeace has been calling for the fact of death and serious injury to be mentioned in the criminal charge. This year will finally see the introduction of a charge mentioning the fact of death, by careless driving, no such progress has been made in respect of serious injury.

For a crime to be defined as 'Violent crime', it is not necessary for injury to occur. Domestic violence refers to financial, emotional, psychological harm as well as physical injury. The same should be the case with road crimes.

Reponses to specific questions

1. What are your views on the approach proposed and in particular where do you think the boundaries between causing death by dangerous driving and gross negligence manslaughter may lie?

As stated repeatedly over the years, RoadPeace believes that the appropriate charge for all culpable road deaths is that of manslaughter. This, we believe, is the most practical way to ensure the crown courts will give culpable road death the deserved priority.

The Secretary of State for Transport, Alistair Darling, said on 11 January 2005 at the Second Reading of the Road Safety Bill: "Someone who kills someone else using a car is just as guilty and just as culpable as someone who uses a weapon to do so." In the Transport Select Committee's report on Traffic Law and Enforcement, the Metropolitan Police suggested that charges of manslaughter should be used more than at present.

As the Road Safety Act of 2006, when implemented, will allow an alternative charge to manslaughter, we believe that the CPS advice on manslaughter should be updated. Manslaughter should be the first charge considered, similar to the guidance given in the ACPO Road Death Investigation Manual that police should approach all road deaths as unlawful killings until the contrary is proven (ACPO, 2004).

At present, some 20 road deaths a year are convicted as manslaughter, but these mainly involve commercial firms. We believe the charging standards for manslaughter should include racing or competitive driving, callous behaviour, and driving grossly over the limit (20 miles or more).

2. Does the guidance for prosecutors (including the examples cited for each offence) need amending? If so, please say why.

The guidance needs amending very much. RoadPeace believes that the examples given for careless driving qualify as dangerous driving and only those examples listed as inconsiderate driving can be considered as careless driving. The following case studies, both known to the CPS, are good examples of where we believe the CPS undercharged. Both these charging decisions were made after the CPS announced its review of bad driving prosecutions, when it acknowledged the problem of undercharging.

As in past consultations, RoadPeace recommends that, as long as the dangerous and careless categorisation exists, the CPS should use the Driving Standards Agency (DSA) testing standards for differentiating between dangerous and careless driving. The DSA use four categories of fault and the higher two, serious and dangerous, both justify immediate failure after one incident. Lower risk faults can be committed up to 16 times before an applicant fails the driving test. Thus any offence which is regarded as so serious as to fail the driving test applicant after just one incident, should be classified as dangerous by the CPS. Low risk faults, which an applicant can make up to some 16 times before failing, are the standards for careless driving. Drivers should learn that the driving test standard is expected for life.

The Metropolitan Police have also suggested this approach. In their testimony to the Transport Select Committee, they stated that "when any assessment of bad driving is to be made, the question (should be) 'would the manoeuvre or series of manoeuvres have caused the driver to fail the driving test?". If the answer is yes, then the case for bad driving is complete. This seems a far better benchmark than those in the charging standards."(Transport Select Committee Report, 2004).

Some have suggested the Highway Code as the base for differentiating between dangerous and careless, but we believe the DSA testing standards are more specific. The Highway Code is also in the process of being updated and many changes have been requested by road danger reduction campaigners representing vulnerable road users. The charging standards used by the CPS should include specific vulnerable road user (VRU) related examples, especially as VRUs account for half of all those killed on our roads and both walking and cycling are being promoted by the government for many good reasons.

We recommend that the charging decision is based not solely on the driving behaviour, but that it should be put into context and that consideration is given to the local environment (was it on a busy street?) and the vehicle type involved. For instance, a lorry driver's turning without looking into his mirror can have much worse consequences than a driver in a small vehicle committing the same offence. Large vehicles have a much greater damage potential and therefore requirements regarding driving of these vehicles must reflect this.

3.What are your views on momentary inattention and single misjudgements? Where do you think the boundaries are between dangerous and careless driving?

We believe that the traditional leniency towards so-called 'momentary inattention' and 'single misjudgement' has contributed to the situation where risk on the road is tolerated much more than anywhere else. Possession of a gun by an adult warrants a five year sentence, but possession of a speeding vehicle rarely results in anything more than a £60 fine and three penalty points. Yet the crime of speeding kills 20 times more people than does gun crime.

Single incidents can be dangerous, repeated occurrences are even more dangerous acts. Paragraph 18 states that driving can be dangerous even 'if it is only for short time'.

We cannot imagine that this defence is used with other crimes. The leading cause of manslaughter is loss of temper. This is not premeditated nor does it imply a long lasting state. We would imagine that the vast majority of shootings and stabbings are single incidents.

Sweden's and the Netherlands' transport policies accept that humans make mistakes and that the system needs to be designed in such a way that these mistakes do not result in the death penalty. Roads used by VRUs should not have speed limits over 30kph (20 mph) in order to reduce the outcome severity of any crash not prevented. RoadPeace accepts that honest mistakes can be made and has campaigned for many years for slower speeds and a more 'forgiving' road network.

4.Please provide any views, comments and examples of cases involving excessive speed where the decision as to whether the driving was careless or dangerous was not clear.

Speed limits are the maximum recommended speeds and as stated in the Highway Code, there are many circumstances, including bad weather and the presence of VRUs (basically all urban streets in daytime), where drivers should drive slower. Speeding drivers kill and seriously injures twice as many people as do drink drivers. Just as any alcohol intake over the limit is considered dangerous, so do we consider any speed in excess of the limit as dangerous. We accept the need for a technical tolerance, but no more. The DfT states that the majority of pedestrians hit at 30 mph will survive, whereas the vast majority of those hit at 40 mph will not. Drivers should not be allowed to underestimate the potential damage of breaking the speed limit by 'only' a few miles. Speeding could only be described as 'Careless driving' under exceptional circumstances - where there was conclusive proof that the speeding was momentary and minimal.

As previously noted, we believe that any fatal crashes involving speeds 20 mph or more over the limit should be charged with manslaughter. Vehicle speeds are difficult to estimate and the police must provide a conservative estimate. We believe that the CPS has erred on the conservative side in the past.

5.Please provide any views and comments on prosecution practice in the area of employer/corporate liability.

At work vehicles are known to be involved in at least 25% of all fatal crashes, and company drivers have been proven to be more likely to speed. Much more could be done by companies and employers to reduce the risk their vehicles and drivers pose to others. The 'blind spot' is a good example of where unnecessary risk is tolerated on the road.

We support the CPS guidance, but also call for prosecution in the other areas suggested. These include:

• Operator/director fails to conduct required medical checks on employees. (this should include annual apnoea tests for lorry drivers as requested by the unions.
• Operator/director employs a driver not qualified or trained to drive the class of vehicle being driven.

Employers and companies should be prosecuted whenever they:

• Allow a vehicle to be used that has a defect (they do not have to be aware of the defect as ignorance should not be an excuse). Blind spots are easily avoidable.
• Fail to ensure that their vehicles are routinely checked for safety, such as blind spots, or drivers for medical defects - poor vision, sleep apnoea, etc.
• Allow an unqualified driver to drive a vehicle they are not licensed or trained to drive.
• Encourage drivers to break laws, including using mobile phones (including hands free as research has shown these to be just as dangerous) while driving or speeding.

6.What do you think of the proposed revision of the CPS 'nearest and dearest' policy?

The proposed revision is welcomed, but is also long overdue. In our 2002 response to the Sentencing Guidelines Council consultation on Causing Death by Dangerous Driving, RoadPeace argued that the CPS policy in respect of 'nearest and 'dearest' was inappropriate. Quarrel and loss of temper are the leading causes of manslaughter and while there must be much regret with many 'nearest and dearest' manslaughter cases, we cannot imagine that there was a similar downgrading policy.

7.Please provide any views and comments on the following:
a.Where do you think the CPS currently falls down in terms of victim and witness care on road traffic cases, in particular those involving a death?

As previously stressed to the CPS, the most important issue for families is that justice is done and this requires properly qualified and resourced prosecutors. 'Sympathy is no substitute for justice' and no amount of contact with families can compensate for the incorrect charging decisions or prosecution problems (lack of familiarity with case, etc.).

Three key problem areas in connection with victim care include:

Meetings. Meetings are not always offered to the bereaved. When they occur, it is after the charging decision has been made and families are left feeling they have taken part in nothing more than a publicity or token exercise.

Charging decisions. Bereaved families most often hear the charging decision from the police and not the CPS. The police may also discourage families from meeting the CPS to query the decision.

As the Victim Code excludes all those injured in crashes, regardless of the level of criminality involved or disability incurred, there is no obligation on the part of the police or CPS to inform the victims of the charging decision.

Information. We believe that minimal and misleading information is given to bereaved families. Only now, in the 2007 edition, does the Home Office funded booklet warn bereaved families that the careless driving charge must be laid within six months. This time limit was included in the draft leaflet proposed by the Independent Working Party in 1994 and it should not have taken 13 years of campaigning for it to be publicised by the Home Office (See Appendix A for the recommendations for the CPS by the Independent Working Party.

Injured victims rarely receive any information about the investigation and prosecution procedures, including who should make the charging decision. They are not warned of the six month deadline relating to the careless driving charge, although drivers are 13 times more likely to be charged with careless driving than dangerous driving.

b.What steps in your view can be taken to rectify these failures and improve witness care, in particular offering an enhanced service to bereaved families?

Victim Care

The CPS should adopt a policy of parity; victims of culpable road crashes should receive the same treatment as other victims of crime.

Meetings. As already is practiced with families of murder and manslaughter, and suggested in this document, the CPS should meet with families bereaved through road death before the charging decision is made. Families should be allowed to bring friends, MPs, and representatives of road victim charities. Minutes should be taken at these meetings.

CPS Charging decisions. The CPS should inform victims, both bereaved and seriously injured, of the charging decision in writing. This notice should include mention of a meeting and the contact details to arrange a meeting.

Information. RoadPeace has previously recommended that joint working groups produce guides for people bereaved and injured in road crashes, as is the case in Scotland. This would help avoid insensitive terminology such as referring to the victim as the 'body' and civil compensation described as 'claiming money'. Victims and their families should get a list of their rights and entitlements.

General policy

Other key points for the CPS to consider and adopt include:

Public interest. As the Code of Prosecutors requires the CPS to make decisions in the public's interest and not the victim's, we believe this information should be available to the public. All charging decisions and their reasons should be posted on the CPS website.

Victim's Code. The CPS should extend its Code commitment to all those injured in crashes. There can be no justification for injured victims from culpable crashes to be excluded.

Hit and run. The CPS should adopt a policy of prosecuting all hit and run drivers with 'attempting to pervert the course of justice' and not the much less serious offence of leaving the scene of a collision.

Appropriate terminology. Any crash that is the subject of a criminal court hearing involves a crime and should not, by anyone in the legal profession, be referred to as an 'accident' (the 'A' word, as some of our members refer to 'accident').

Training and resources. The CPS staff and not just the case prosecutors need to be properly trained and resourced. This must include information on speeding - both its contribution to crashes and the problems with estimating speed; blind spots should also be covered.

CPS reviews. Future reviews relating to road death and injury should include the police, as well as the CPS, as was the case with the review relating to rape.

Representation. The CPS should encourage the Victim's Advisory Panel to accurately reflect victims. At present no-one represents road crash victims, despite the fact that they outnumber other homicide victims by four times.

Contribution to consultations by CPS

We appreciated that the CPS responded to the Home Office's previous consultation on Bad Driving offences. We expect the CPS to respond to any future consultation on graduated speeding penalties. We, along with the Transport Select Committee and road safety organisations, reject the government's proposal for reducing speeding penalties.

Remembrance Services. The CPS should commemorate the World Day of Remembrance for Road Crash Victims, and participate in services and other events around the country. Funding should be provided by the government, which it already provides for other memorial services.

Support services and funding. Victim Support's mandate does not include support of road crash victims, therefore none of the £30 million that Victim Support receives from the government is dedicated to road crash victims. At present, only victims of sexual violence receive financial support from the Victims Fund.

8.Do you think it would be beneficial for the case prosecutor to attend the inquest? If so, why?

There are three key reasons why the case prosecutor should attend an inquest:

1. To ensure the inquest is heard before any criminal court hearings.

2. To hear any new or inconsistent evidence that may affect the charge (See below)

3. To familiarise themselves with the crash circumstances, including the sitemap, photos and have the opportunity to ask the collision investigator or witnesses any questions.

9.Should case prosecutors regularly attend court and prosecute road traffic cases where a death has occurred?

Of course they should. Would this question even be asked with a murder or manslaughter charge? That it has to be considered reveals the discrimination against road deaths from the justice sector.

10.Is there any part of the document you strongly disagree with? If so, please identify which paragraph and provide a brief explanation as to why you disagree?

There are the following points made, which we would like to question:

(2) The courts have been more willing to convict defendants of dangerous driving for acts that in the past may have been considered to be no more than careless. We do not think the statistics support this. In recent years (2002-2004), there has been a small increase (10%) in the number of causing death by dangerous driving convictions. There were less dangerous driving charges in 2004 (10,300) than in 2003 (11,400) or in 2002 (10,700) and of these, only 3000 (30%) received a custodial sentence.

(10) In all but the most minor cases, the prosecutor now makes the decision to charge. We believe the police still make the charging decision in the majority of serious injury collisions and CPS are only informed of fatal and near fatal crashes, when the police propose charges, and crashes involving police.

(18) These 'undercharging' concerns may not be entirely justified. The 2002 HM CPS Inspectorate review was only able to review cases which had been brought to the CPS attention for consideration. This was not a representative sample as it did not consider the cases the police had already 'filtered'.

With reference to Appendix C and all the examples of appeals to the Attorney General for causing death by dangerous driving sentences, we believe it would have been more relevant if the CPS had included examples of cases where they had decided to prosecute for careless driving and not causing death by dangerous driving. We believe these cases greatly outnumber the appeals to the Attorney General.

In Appendix D, the prosecutor's pledge says that the CPS will 'take into account the impact on the victim or their family when making a charging decision'. Yet in fatal road crashes, the families are only contacted by the CPS after they have made their charging decision, so the CPS has not adhered to the Code where families bereaved by road death are concerned.

Appendix A: CPS recommendations from Support for Families of Road Death Victims, 1994

This report included 78 recommendations for the various statutory organisations. Eight of these applied to the CPS and they are shown below.

Crown Prosecution Service and court personnel

6.50 Where criminal charges are dropped or reduced, the CPS should ensure that the family is contacted and the reasons explained. Cases should not be lost as a result of the statute of limitations. Families should be offered an interview with the CPS, and the interviews should be conducted by a senior Crown Prosecutor within the six month time limit to allow the family to pursue private criminal proceedings if they wish.

6.51 In every case where death or serious injury has occurred, this fact should be mentioned in court, even though it may not be part of the charge. It is recommended that coroners, judges, and magistrates address the families during summing up to reassure them and to reflect the gravity of the event.

6.52 Court personnel should make separate waiting accommodation available to families, where possible allocating them separate sections in the court and a quiet room to which they can withdraw.

6.53 When the release of the offender from prison is imminent, the family should be informed if the family has indicated its desire for this at the time of sentencing.

6.54 In deciding whether a prosecution is in the public interest, the Crown Prosecutor is required to take into account the interests of the victim and the victim's family. Victims' families should be informed of the date of any forthcoming trial, even if not required as witnesses.

6.55 Witnesses should be afforded the opportunity of keeping a copy of the statement they have made. Witnesses should be kept informed by the CPS of the progress of the case or be told if the case is to be discontinued.

6.56 During court hearings the agent lawyers of the CPS should show respect and consideration to the victim's family and abstain from inappropriately close contact with the lawyers conducting the defence. Contact with the defence should be regulated so as to avoid what to the family could seem like collusion or callous disregard for their position.

6.57 The Crown Prosecutor should ensure that he/she is fully informed about details and circumstances of the victims and victim families and uses this information, thus countering inaccurate information from the defence, particularly in pleas in mitigation.

Source: Independent Working Party convened by Victim Support (1994), Support for the families of road death victims.