Prosecution decisions in road death and injury cases

Key facts

  • In 2015, there were 644,181 prosecutions for motoring offences in the Magistrates Courts [1];
  • In 2015, 188 drivers were charged with ‘causing death by dangerous driving’, while 201 were charged with ‘causing death by careless driving' [2];
  • The maximum sentence for causing death by careless driving is only five years, compared to 14 for causing death by dangerous driving [3];
  • Nine in 10 people want criminal drivers who kill charged with manslaughter[4];

Introduction

The Crown Prosecution Service (CPS) is the government agency responsible for prosecuting criminal cases investigated by the police in England and Wales. The CPS advises the police on cases for possible prosecution; reviews cases submitted by the police where the decision is to prosecute; determines the charge in all but minor cases; prepares cases for court; and presents cases at court. The role of the CPS is to prosecute when: there is sufficient evidence to provide a realistic prospect of conviction, and it is in the public interest to do so. [5]

Decision-making

The CPS applies the Code for Crown Prosecutors, which gives guidance on the general principles which should be take into account when making decisions about prosecutions. The CPS will only start or continue with a prosecution when the case has passed both stages of its Full Code Test. Crown Prosecutors must be satisfied that there is enough evidence to provide firstly, a ‘realistic prospect of conviction’ against the defendant on any charge, and secondly, that a prosecution is in the public interest.

Charges

According to the Code, Crown Prosecutors should select charges which:

  1. Reflect the seriousness and extent of the offending
  2. Give the court adequate powers to sentence and impose appropriate post-conviction orders
  3. Enable the case to be presented in a clear and simple way.
    This means that when there are a choice of charges, Crown Prosecutors may not always continue with the most serious charge. [6]

CPS guidelines highlight the importance of prosecuting serious road traffic offences, stating that “their prosecution is not only vital to the enforcement and promotion of road safety and the protection of the public, but is also key to the public confidence of victims and their families in the criminal justice system.” [7] This indicates that the vast majority of cases where a person has been killed in a road crash should meet the CPS ‘public interest’ test. However, such cases still need to get through the hurdle of presenting a ‘realistic prospect of conviction’.

When reviewing serious road traffic cases, resulting in death or serious injury, the CPS recommends that prosecutors “balance the circumstances of each individual case with the consequences to the driver” against the “need to ensure the safety of other road users”. If there is evidence to suggest that an individual may present a “continuing danger to other road users”, the CPS endorses prosecution of that individual. This evidence can include previous convictions (i.e. drug-driving or drink-driving) or a medical condition. [8]

Serious charges such as Causing Death by Dangerous Driving [9] will only be allowed to proceed if the CPS decides there is enough evidence to provide a realistic prospect of conviction. If they don’t think there is enough evidence, the CPS will consider whether there is enough evidence for a realistic prospect of conviction for a less serious charge. The problem arises when there is a massive difference in the possible punishments between the more serious charge and the less serious charge, yet a small difference in the definition between these charges.

For example, the only difference in the definitions of Death by Careless Driving (which carries a maximum penalty of five year imprisonment) and Death by Dangerous Driving (which carries a much stiffer maximum penalty of 14 years imprisonment) is the word ‘far’: a careless driver’s driving falls below the standard of a careful driver, and a dangerous driver’s driving falls far below that standard. Despite various guidelines available to prosecutors, the decision whether to go for the more serious charge or the less serious charge will always be subjective and inevitably influenced by cost and prospect of conviction.

Brake is advocating a review of charges for causing death and serious injury on the road, to ensure drivers are charged with offences that adequately reflect the risk taken and harm caused.

Get involved: Read about our Roads to Justice campaign.

Learn more: Read our fact page on death and injury charges.

Emergency services

In the course of their duties, emergency service providers (i.e. police officers, ambulance drivers, firefighters) can be required to drive in a manner that would, in ordinary circumstances, be considered unacceptable. It is rare that these individuals will be prosecuted on public interest grounds while responding to an emergency call.

However, in these situations the CPS must consider [10]:

  • The nature of the emergency known to or reasonably perceived by the driver. For example, whether the driver was responding to a 999 call in compliance with the agreed operating practice in that service;
  • The level of culpability of the driver (including the nature of the driving); and
  • Whether there is evidence the driver may be a continuing danger to others. For example, such evidence may include relevant convictions or internal disciplinary proceedings against the driver. 

During this process the CPS will consider evidence (in the form of police reports), professional advice (provided by the National Police Chiefs Council) and witness statements on the manner of driving


End notes

[1] Criminal justice system statistics quarterly: December 2015, Ministry of Justice, 2016  
[2] Ibid
[3] Section 1 of the Road Traffic Act 1988, as amended by section 1 of the Road Traffic Act 1991
[4] Brake Poll: 2015-16, Brake
[5] The Crown Prosecution Service
[6] The Code for Crown Prosecutors, Crown Prosecution Service, 2013
[7] Road Traffic Offences Guidance, Crown Prosecution Service
[8] Ibid
[9] Section 1 of the Road Traffic Act 1988, as amended by section 1 of the Road Traffic Act 1991
[10] Road Traffic Offences Guidance, Crown Prosecution Service


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