27 April 2007

RoadPeace response
Sentencing Advisory Panel
Causing Death by Driving consultation

Introduction

1. RoadPeace, the national charity for road crash victims, was established in 1992, after the founder's son was killed in a crash by a driver who had driven through a bank of red traffic lights and yet was only prosecuted for 'Driving without due care and attention'. RoadPeace's campaigning has concentrated on road death and serious injury being central to any charges brought, and therefore mentioned in them, and for these charges to be tried in Crown Courts. In October 2006, the Road Safety Act introduced the new charge of Causing Death by Careless or Inconsiderate Driving - an either-way offence. Six months later, this has still not been implemented (despite the introduction of other amendments), and families continue to suffer the injustice and insult of a summary charge following a culpable road death.

2. All agree that culpability is the determining factor in sentencing; we do not know of any organisation that disagrees with this. Our campaign for the (mere) mention of death and serious injury in the charge was not at odds with this. Yet there is wide disparity in the punishment available for the same level of culpability that injures or intimidates, but does not kill. It has been over seven years since the government proposed to increase the maximum prison sentence to five years for dangerous driving. This was when the maximum sentence for causing death by dangerous driving was still 10 years. That maximum has now been 14 years for several years and so there is an even greater need to increase the maximum custody sentence for dangerous driving.

3. This consultation only addresses fatal charges, but the need to close this gap should not be forgotten. The Road Safety Act amended the Offences Against the Person Act and made wanton and furious driving an endorsable offence. This offence is very rarely used (less than once a week on average) but we expect it will be used more often now that it carries penalty points. As it is the only charge is that mentions injury from driving, we urge the Sentencing Guidelines Council to provide guidance on its usage as soon as possible.

4. Five years ago, the Sentencing Advisory Panel (SAP) consulted over the penalty for 'Causing Death by Dangerous Driving'. In our response, we explained how...

Through a national Helpline, local groups and contacts, we are constantly in touch with the bereaved and injured and their families and are able to offer a victims perspective based on hundreds of cases. Our primary purpose is to help and support victims but we would be failing them if we did not address the causes and factors involved in a daily toll of ten deaths and 1,000 injuries and use our collective experience as a resource in prevention of future road death and injury. Many victims want more than anything else to prevent others going through the same tragedy which they have suffered and are actively engaged and concerned with measures which could save lives and prevent injuries on the road (RoadPeace, 2002).

5. Five years later, these facts remain the same, except that RoadPeace has had even more experience of supporting victims whose disappointment with the justice system has aggravated their bereavement.

Background

6. While we represent road crash victims and those concerned about road danger, we are aware of the current prison crisis. In addition to consulting with our members, we have also liaised with CtC and London Cycling Campaign and also met with Justice, Liberty and Prison Reform Trust. We have summarised the key points on prison and motoring offences below.

7. What we know about prison:

• The purpose of sentencing is for punishment, crime reduction and reparation.
• The annual cost of a prison place is some £35,000.
• Prison sentences of less than 12 months have been reported to have little meaningful impact on criminal behaviour.
• Within two years of being released, over two-thirds of prisoners have re-offended, and almost 80% of 18-21 year old prisoners re-offend.
• Prisons are overcrowded and offenders are being held temporarily in police cells, costing almost £400 per night.
• More offenders are being imprisoned and for longer periods than ten years ago.
• Criminal justice reformers believe that prison should be used as a last resort, and reserved for dangerous offenders who cannot serve their punishment in the community.

8. What we would like the SAP and others to know about motoring offences, deaths and prison:

• Each year, there are about 20 cases of manslaughter involving driving, although road deaths outnumber homicides by other means by four to one.
• Of the 2,900 fatal crashes each year, involving some 4,500 drivers, on average only 240 drivers are convicted of 'Causing death by dangerous driving' and another 60 of 'Causing death by careless driving while under the influence of drink or drugs'. Some 10% of those convicted of Causing death by dangerous Driving do not receive a custodial sentence.
• Until recently, 'Causing death by careless driving while under the influence' received longer custodial sentences, than was the case for 'Causing death by (sober) dangerous driving'.
• The number of careless driving offences involving a death has never been monitored, but Home Office Ministers had stated that they anticipated no more than 130 prison places for those convicted of causing death by careless driving.
• Of the 6,600 drivers convicted of dangerous driving in 2004, less than half received a custodial sentence.
• Motoring offences account for about 3% of prison places, which includes some 340 women in prison for motoring offences.
• The maximum prison sentence for dangerous driving is two years but only 26 weeks for drink driving or driving while disqualified. Drivers can not be sent to prison for driving without insurance or speeding.
• Compensation cannot be ordered in cases involving road crashes unless the vehicle was stolen. Yet civil compensation is minimal for road fatalities aged 18 or older who do not have any dependents.
• Twenty times as many people are killed by speeding drivers as are killed by gun crime, and four times as many as are killed by knife crime, yet the penalty for speeding is minimal and may even be reduced further.
• 9.We do not know of evidence showing that prison is an effective deterrent to bad driving. Given the low level of enforcement and thus minimal chances of detection, drivers are unlikely to imagine they will ever be caught or be as 'unfortunate' as to be in a crash. However, prison can still be justified on the basis of punishment and public protection, especially if no other measures are used.

RoadPeace responses to SAP's specific questions

Q1: Do you agree with the view that significant revision to the existing guideline (for Causing Death by Dangerous Driving) is necessary only towards the top end of the scale of seriousness. If not, to what extent (if at all) should the current guidance be changed?

10. We believe the fixed starting point should be increased to two years, in keeping with that proposed for 'Causing Death by Careless Driving under the influence'. We do not think a death caused by a careless drink driver should receive a greater punishment than a death caused by a sober dangerous driver.

11. We also believe that the CPS do not prosecute for Causing Death by Dangerous Driving in cases of momentary lapses, despite their guidance to the contrary. As we noted in our 2002 response to the SAP's Causing Death by Dangerous Driving consultation 'The TRL Report (Dangerous Driving and the Law) makes the point that drivers who are seriously negligent are often charged with Careless driving rather than Dangerous driving offences (RoadPeace, 2002).

Q2: If you agree that the guideline should be revised, do you agree with the starting points and sentencing ranges proposed above? If not, what changes would you make?

12. We agree that the guideline should be revised. The upper end of the sentencing range for the first category should be increased to four years. This would provide consistency with the first category of 'Causing death by careless driving under the influence'.

13. We also believe that an extreme example of a single aggravating factor should qualify for the most serious category. In addition, the second category of seriousness should be expanded to include aggravating factors j) (multiple offences) and k) (previous convictions).

Mitigating factors

14. Regarding mitigating factors, a good driving record or absence of previous convictions should not qualify. This is likely to be due to the lack of enforcement rather than safe driving. Active speed enforcement takes place on less than two percent of the road network, with the number of safety camera housings (6000+) often mistakenly reported as the actual number of safety cameras (less than 2000). Absence of convictions should not be interpreted as absence of culpability. Bad driving is similar to domestic violence in that it is statistically highly unlikely that a first time offender would be charged. It is more likely to be habitual offenders who are caught.

15. As previously acknowledged by the Sentencing Advisory Council, serious injury as a mitigating factor only includes cases involving grievous injuries, it is not the injuries defined as serious under Stats 19, which includes overnight 'observation' stays in hospitals, or broken bones.

16. Genuine shock or remorse should only be considered as a mitigating factor with the victim family's agreement. We fear that the courts are not good judges of detecting genuine remorse and may be pressured by the prison overcrowding into accepting insincere remorse claims. For example, remorse was claimed in the case of Matt Baily's death, where the judge referred to the prison crisis in his decision to suspend the custodial sentence, yet the driver had pleaded not guilty and the family had seen no evidence of remorse.

17. We understand age is a standard mitigating factor for other offences. However we do not think age or lack of driving experience should qualify as a mitigating factor since this is inconsistent with the New Drivers Act. There has been much publicity about the higher risk of young novice drivers being involved in collisions, therefore they have been forewarned, including by their high insurance premiums.

18. Disqualification. We regret the lack of reference in this consultation to license disqualification. According to the last SAP guidance on Causing death by dangerous driving, license disqualification was intended to be forward looking and preventive, not backward looking, i.e. punitive. It also argued that drivers may be tempted to drive while disqualified if their bans were lengthy. RoadPeace found both these arguments deficient and believes the issue of disqualification is long overdue for review.

19. With the widespread introduction of Automatic Number Plate Recorder (ANPR) cameras and the establishment of the Motor Insurers Information Database, there is much greater chance of detection of disqualified and uninsured drivers. Moreover the potential penalties are also greater - vehicles being confiscated and destroyed or sold with the profits going to the police.

20. RoadPeace believes that drivers convicted of Causing death by dangerous driving or Careless driving while under the influence deserve a lifetime ban. In a survey of our members, 80% of those responding supported a lifetime ban for these drivers. We also believe that this is a small penalty compared to the death sentence they imposed on an innocent person. We are not the only ones who believe killer drivers should receive lifetime bans (See http://www.newstatesman.com/200704230020 ).

21. We also believe that drivers in fatal crashes who were proven to be over the limit at the time should have their licence suspended until bail or the trial. No one has the right to drive and it is very common for professionals to be temporarily suspended from their professions while under investigation for possible wrongdoing.

22. Driving bans should commence upon the offender's release with prison and not run concurrently. We also support the Prison Reform Trust's call for greater clarity with sentencing and their recommendation that the two parts of the sentence were expressed as discreet elements, with a clear statement that a breach of the license conditions could result in a call to custody for the remainder of the license period.

Q3: Do you agree with the definitions of offending behaviour and the starting points and sentence ranges proposed for the offence of causing death by careless driving while under the influence of drink or drugs?

23. We accept the proposed adoption of three categories, as opposed to the current four categories, but these should overlap with the four categories proposed for Causing Death by Dangerous Driving.

Q4: Do you agree that failing to supply a specimen for analysis should fall into the most serious category?

24. We think the degree of impairment should determine which category it falls into, and this should include the most serious category, but not start with the most serious category, with a recommended eight years custody. This is the same starting point as the most serious category of Causing Death by Dangerous Driving, which requires several aggravating factors.

25. This is also inconsistent with the proposed penalties for failing to supply a specimen for analysis when no death has occurred. This offence incurs a medium level fine (Band C) and a minimal disqualification period (12-16 months), whereas the penalty for being grossly over the limit has a maximum of 26 weeks custody and a three year ban.

26. We do not believe such a high penalty would have any deterrent value as we do not think failure to supply a specimen is a premeditated act. We do think failing to supply a specimen for analysis should incur a long driving ban.

Q5: Do you agree that the aggravating factors listed in paragraph 51 should apply to the offence of causing death by careless or inconsiderate driving? Are there any other factors that ought to aggravate the seriousness of this offence?

27. We have argued in our response to the recent Consultation on CPS Prosecution Policy for Bad Driving that the definition of dangerous and careless driving should be based on standards used by the Driving Standards Agency (DSA) when assessing driving test applicants. What would fail a test applicant with one incident should qualify as dangerous, whereas what qualifies as less serious, requiring 16 occurrences to fail an applicant, is careless. We believe the Aggravating Factors (A-E) would justify a 'Causing Death by Dangerous Driving' charge.

28. In addition, inappropriate speed should qualify as dangerous driving. The Highway Code states that the speed limit is a maximum and there are times when drivers should stay below the limit. These times are quite common and include the presence of vulnerable road users, bad weather, etc.

29. We disagree with the example given in paragraph 49 where a driver 'looking but not seeing' turns across another road user's path. As noted in our response to the recent CPS consultation on Bad Driving Prosecution Policy, turning in front of someone and causing a collision or even for them to take avoiding action is considered a serious fault sufficient to fail a driving test. Thus this should qualifiy as dangerous driving rather than merely careless driving.

30. Research shows that hands free mobile phones are also dangerous and should be discouraged. The aggravating factor relating to mobile phones should be amended to also include hands free phones.

31. Driving when knowingly suffering from a medical condition that could affect driving skills - we believe this should qualify for a charge of gross negligence manslaughter.

32. Other relevant conditions d) and e) both involve pre-existing conditions which the driver would be aware of and therefore should either not be on the road or take great caution.

Recent convictions should specifically state speeding as this is the leading cause of fatal crashes and responsible for twice as many deaths and serious injuries as drink driving. Research has also shown that drivers flashed by cameras have almost twice the risk of being in a casualty crash as other drivers.

33. Outcome of offence. Re multiple casualties (f and g). This could occur by chance by colliding with another vehicle or be due to the driver driving a minibus or people carrier or even just a full car. The latter should qualify as an aggravating factor. The case of Angela Dublin is an example of where it would qualify as an aggravating factor as she knew she was responsible for the safety of several children, not all of whom were wearing seat belts.

34. Irresponsible behaviour at the time of the offence. h) failing to stop is a very serious offence and should be prosecuted as attempting to pervert the course of justice.

35. enalties. We have reason to believe very few drivers convicted of Causing Death by Careless or Inconsiderate Driving will incur a custodial sentence and we would like to ensure alternative punishments are used. We believe that conviction of this charge should include a mandatory disqualification and a retest afterwards.

36. As mentioned previously, RoadPeace regrets the restriction of this consultation to custodial sentences and the minimal reference to community orders. Very few drivers are sent to prison and we believe that other penalties, which should be used much more frequently, are needed to deter bad driving. We have already discussed disqualification but consideration should have been given to other penalties, such as fines, criminal compensation, vehicle confiscation and restorative justice.

37. Fines. Fines are as cheap as prison is expensive. This is insulting to victims and sends the wrong message to drivers. We do not agree with the need for fines to be collected within 52 weeks. Grieving or recovery is not limited to 52 weeks .

38. Criminal compensation. Compensation cannot be ordered in the cases of road crashes unless a stolen vehicle is involved. This is not fair. Statutory bereavement damages are only available for young victims. There is no financial penalty for killing someone over 18 years of age if they do not have any dependents. Victims of crashes involving a crime should have the same criminal compensation rights as other victims of crime.

39. Vehicle confiscation. Vehicles should also be confiscated from drivers convicted of Causing Death by Dangerous Driving or by Careless Driving while under the influence. We do not give guns or knives back to killers, so why should we give cars back?

40. Community orders may consider driver rehabilitation programme. It should be noted that the National Driver Improvement Scheme, a remedial driver education programme for drivers guilty of careless driving in slight injury crashes, has not been proven to be effective (See http://www.dft.gov.uk/pgr/roadsafety/research/rsrr/theme3/evaluationoftheeffectiveness4766 and http://www.trl.co.uk/store/report_detail.asp?srid=5364&pid=211 ).

41. Restorative justice. Ideally, restorative justice should have started with road crashes where there was culpability, if not premeditated criminality, and drivers would have been remorseful for the devastation of their actions. Instead, restorative justice has, like the criminal justice sector in general, largely overlooked victims of crashes. The recent Smith report on Restorative Justice only categorised drink driving offences with shoplifting. We invited the Restorative Justice Consortium to speak at our last AGM and tried to explain that until society held drivers properly accountable for their actions (which would include mentioning the death or serious injury in the charge), restorative justice could not work with crash victims. Many of our members have stated that they only wanted the driver to take responsibility for their actions and to appreciate the devastation they have caused. But this has regularly been denied them.

Q6: Do you agree that the mitigating factors listed in paragraph 53 should apply to the offence of causing death by careless or inconsiderate driving? Are there other factors that ought to mitigate the seriousness of this offence?

42. See our comments under Q2 as they also apply here.

Q7: Where should the custody threshold for this offence fall? Do you agree that the starting point for the lowest category of culpability should be a high community order? If not, how should the sentence be approached?

43. We agree that the starting point for the lowest category of culpability should be a high community order and not a medium community order as stated in the table on page 32.

Q8: Do you agree with the Panel's proposed starting points for the offence of causing death by careless or inconsiderate driving? If not, where should the sentencing thresholds be placed and why? Is it appropriate to have a non-custodial starting point for this offence? If so, what should that be?

44. We believe that the charge of 'Causing Death by Careless or Inconsiderate Driving' should be put used very rarely as we believe many of the examples given as careless constitute dangerous driving. Moreover juries are able to return this verdict if they are not convinced a Causing death by Dangerous Driving charge is warranted.

45. It should be noted that the proposed custody ranger for the second category of seriousness is that received by 10% of those convicted of Causing Death by Dangerous Driving (19% with the third level of seriousness and 48% with the fourth level). Thus 78% of those convicted of causing death by dangerous driving receive a custody sentence of five years or less.

Q9: Do you agree that the aggravating factors identified in paragraph 68 are appropriate for the offence of causing death by driving while unlicensed, disqualified or uninsured? Are there any other factors that ought to aggravate the seriousness of this offence?

46. Our views on the aggravating factors for this charge are the same as for Causing Death by Careless Driving where they are also listed.

Q10: Do you agree that the mitigating factors identified in paragraph 73 should apply to the offence of causing death by driving while unlicensed, disqualified or uninsured? Are there other factors that might mitigate sentence?

47. We accept mitigating factor a) genuine and proven emergency, and have already provided comments on the factors b-e. We believe d) is better covered under genuine remorse. As worded here, it appears as if the impact on the offender is given more consideration than the impact on the bereaved family.

48. In addition, if there was proof that a defendant had good reason to believe he/she was insured, and yet this charge was still laid, then this should serve as a mitigating factor. We know of one family where this was the case, but this will be very rare, as would the genuine and proven emergency case.

Q11: In relation to all offences of causing death by driving (other than 'causing death by careless driving when under the influence of drink or drugs or having failed to provide a specimen for analysis without reasonable excuse', where the consumption of alcohol or drugs is an inherent factor) what is your view of the significance of having taken drugs or having consumed a level of alcohol that is below the prescribed limit if this is not judged to have impaired the offender's ability to drive?

49. RoadPeace is one of the many organisations that supports a reduction in our drink drive limit from 80 mg to 50 mg, in line with the rest of Europe. Thus we would argue that consumption of alcohol registering between 50 and 80 mg should be considered as an aggravating factor.

50. In other cases, if there was no impairment, then these should be handled under the other existing relevant charges. A fatal crash involving a drink driver must also show that careless driving was involved for a Section 3a charge to be laid. We are unaware of any consideration being given to requiring causation to be dropped in fatal drink drive crashes.

Q12: Do you agree with the Panel' proposed starting points for the offence of causing death by driving while unlicensed, disqualified or uninsured? If not, where should the sentencing thresholds be placed and why?

51. As we understand it, this charge is a misnomer as the drivers involved did not cause the death. If the driver had caused the crash, whether through careless or dangerous driving, then they would be charged with such, and the disqualification, lack of licence or insurance would be aggravating factors. Thus the above charge only applies to those unlicensed, uninsured or disqualified drivers who were involved in the crash, but were not held responsible for it. It should not be forgotten that a drink driver involved in a fatal crashes must be proven to have been driving carelessly before they are charged with the death. On this basis, we support the proposed starting points.

Q13: Do you have any reason to believe that the Panel's proposals are likely to impact disproportionately on certain offenders by reason of their gender, age, disability, race or ethnic group?

52. Unlike road deaths and injuries, which have been shown to impact disproportionately on the poor, we do not believe the Panel's proposals will have disproportionate impacts on any types of offenders.

53. In addition, when the Sentencing Advisory Panel consulted over the appropriate penalties for Causing Death by Dangerous Driving, it highlighted two areas: fatigue and multiple penalties. We believe extra consideration is due to speeding, which we believe is both the leading factor in fatal crashes and the most tolerated of crimes. Judges and others working in the judiciary need training on the risk associated with speeding. We believe they are unaware of the research that shows the worse effect with speeding on low speed roads than high speed roads, and the extent to which the estimates of vehicle speeds are conservative estimates.

54. The Magistrates Association is currently consulting over the appropriate penalties for charges heard in the Magistrates' Court, including motoring offences of speeding and drink driving. Speeding penalties are much lower than those for drink driving, despite speeding accounting for twice as many road deaths and serious injuries as drink driving.

55. We do not believe imprisoning more drivers will have a significant effect on reducing the risk taken on our roads or future road deaths. This is more likely to come from increased enforcement and tougher penalties for law breaking on the roads before a death has occurred. But, as mentioned previously, imprisonment can still be justified on the basis of punishment and public protection.