Brake responds to criminal driving and sentencing consultation

Ministry of Justice consultation on driving offences and penalties relating to causing death or serious injury 

Response from Brake, the road safety charity, February 2017

1. Should there be a new offence of causing serious injury by careless driving?

Serious injuries in road crashes must be taken seriously, with appropriate charges in place for causing them. For every death on the road there are more than ten times as many people seriously injured.

It is noted that there is an existing offence, introduced in 2012, of “causing serious injury by dangerous driving”. A new offence of causing serious injury by careless driving” would be welcomed within the current framework of careless and dangerous driving charges.

While welcomed, Brake notes that such a charge would unfortunately continue to ingrain in legislation the existing distinction between “careless driving” and “dangerous driving” and Brake continues to argue that the justifications for using this distinction in cases relating to death and injury are questionable. Brake does this in disagreement with the government (as stated in point 12 to 22 of the consultation). The difference between a driver “falling below” (defined in law as careless) and “falling far below” (defined in law as dangerous) the expectations of a competent and careful driver is not an easy assessment to undertake objectively and consequently causes variability in use of charges and penalties issued. The test lacks any benchmark for consistency due in large part to the variability of facts on a case to case basis. In reality, the line between below and far below is impossible to pin-point.

The consultation document makes reference to a small number of examples of practical application from the so-called “objective test” including in the list of “careless driving” offences. This includes such conduct as “turning into the path of another vehicle” or “being distracted by lighting a cigarette”. In these situations, and no doubt in others deemed “careless”, it is very difficult to understand how any competent and careful driver could consider such behaviour anything other than dangerous. The consequences of so-called “careless driving” are both life changing and life ending.

Public confidence in the existing terminology has been lost. The interpretation of the law by prosecution agencies and in the courts is being seen as arbitrary, misleading and unfair. The term ‘careless’ in itself is seen as a poor choice of language for offences resulting in such grave outcomes. This is raised by the government in section 27 and 28 of the consultation.

A minority of people convicted of death by careless driving are given a custodial sentence, and the average sentence is little over a year (see section 46 of the consultation).

Brake has long advocated for the term careless to therefore be considered for removal from legislation relating to death and serious injury from traffic offences. Driving that kills or injures is either legal or illegal. It is either safe driving or bad driving that endangers. It is not enough to simply advise the judiciary to refer to bad driving – the language of charges needs changing.

2. If yes, having regard to the maximum penalties for the existing offences of causing serious injury and assault, would either 2 or 3 years be an appropriate and proportionate maximum penalty for the new offence?

Neither two or three years are appropriate nor proportionate maximum sentences. Serious injury in a road crash is a wide definition that includes permanent and life-changing injury, notably paralysis, brain injury, loss of limbs, or facial disfigurement.

The consultation document rightly states that “though often thought of as a separate body of law, road traffic legislation is part of the criminal law and the severity of penalties available must not only take account of the relative seriousness of the range of traffic offences but must also be consistent with the penalties available in other areas of criminal law”.

These other areas of the criminal law include Sections 18 and 20 of the Offences Against the Person Act. Currently, ABH (Assault causing Actual Bodily Harm, section 20) is punishable by up to five years in prison and a possible fine and GBH (Grievous Bodily Harm), section 18) carries a potential life sentence. Sentences of three to 16 years for GBH are not uncommon. This means that a deliberately inflicted broken nose only can be subject to a prison sentence of several years while life changing injury of a road crash victim is being proposed as punishable by a sentence of only two or three years.

The differentiation between “deliberate intent” and “dangerous disregard” for the resulting injury is not relevant to the consultation as lack of intent has already been set aside as a factor in the application of existing “careless driving’ penalties. In road traffic collisions, it is reasonable to argue that failure to take care is a negligent act, as the risks of not doing so are so obviously great.

When considering the maximum sentence for a new charge of causing serious injury by careless driving, consideration must also be given to the current maximum sentence for the existing charge of causing death by careless driving, which currently is only five years. (RTA section 2b).

As stated in answer to Q1, in reality a minority of people convicted of causing death by careless driving are given a custodial sentence at all. If the current system of “careless” charges is to be kept and increased, the maximum penalty for causing death by careless driving must be reviewed and raised respectively.

3 Do you think that the maximum penalty for causing death by dangerous driving adequately reflects the culpability of the offending behaviour or should it be increased from 14 years’ imprisonment to life?

The maximum sentence should be raised to life imprisonment. It cannot be right that the average prison sentence for a driver who has killed someone through bad or illegal driving is four years.

When we consider that the minimum sentence for domestic burglary with no additional charges of bodily harm is three years, in comparison to four years for causing the death of another human being when driving dangerously, it becomes clear that the level of sentencing for death by dangerous driving is inappropriately low. (Criminal justice system statistics quarterly: December 2015, Ministry of Justice, 2016)

4 Do you think that the maximum penalty for causing death by careless driving under the influence of drink or drugs should reflect the same culpability (and therefore the same maximum penalty) as causing death by dangerous driving?

Yes; driving under the influence of drink or drugs should be recognised as an avoidable action and those choosing to drive under the influence of either of these substances should be held accountable to the same degree as is deemed appropriate for death by dangerous driving. This is reflected in the current situation of 14 years’ maximum imprisonment for both death by dangerous driving and the separate charge of death by careless driving under the influence of drink or drugs.

An increase in the maximum penalty for death by dangerous driving should be accompanied by a similar increase in the maximum penalty for causing death by careless driving under the influence of drink or drugs.

Brake does however additionally advocate the charge of death by careless driving under the influence of drink or drugs (RTA section 3A) to be changed to a charge of “causing death while driving under the influence of drink or drugs”. The term careless is unnecessary and misleading in this charge title.

There should similarly be a charge for “causing serious injury while driving under the influence of drink or drugs”.

These new two charges would be possible to bring in any case where a death or serious injury was caused and the driver had consumed above the legal limit of alcohol or drugs (those listed as illegal or illegal above certain doses). In other words, there should not be a need to prove the driving caused the death.

There is a precedent for this approach with the charge “causing death by driving: unlicensed or uninsured” RTA section 3ZB, which requires no need to prove carelessness nor dangerousness.

There are cases demonstrating the need for this change. Families have experienced a loved one being killed in a crash involving an intoxicated driver, but the driver “getting away with it” due to lack of witnesses to confirm bad driving. For example, the case of George Beresford.

Impairment by alcohol is one of the biggest killers on roads. In 2014, an estimated 13% of all road deaths in Great Britain resulted from crashes where at least one driver was above the alcohol limit [3]. A further estimated 25 road deaths per year are caused by drivers who are under the drink-drive limit, but who have significant amounts of alcohol in their blood [4].

Younger drivers (age 25-39) are a particular risk group; a quarter of drink-drive deaths in 2014 resulted from a collision with a drink driver within that age bracket. (DfT,Reported road casualties in Great Britain: Estimates for accidents involving illegal alcohol levels: 2014 (final) and 2015 (provisional), 2016.

Illegal or medical drugs was officially recorded as a contributory factor in 62 fatal road crashes and 259 crashes resulting in serious injuries in 2015 in Britain, but it’s estimated that the true figure is likely to be much higher. (Department for Transport, 2016, Reported road casualties in Great Britain 2015, table RAS50001). One in six bodies of dead drivers (18%) and 16% of the bodies of dead motorcyclists were found to have illegal drugs in their bodies, in research commissioned by the Department for Transport published in 2001. About 6% of dead drivers and dead motorcyclists had taken medicines that could have affected their driving (Transport Research Laboratory, 2001, The Incidence of Drugs and Alcohol in Road Accident Fatalities, report no. 495).

5 Should consideration be given to a longer minimum period of disqualification for offenders convicted of any causing death by driving offence?

Yes. However, ‘obligatory disqualification periods’ are not obligatory as it is possible for the courts to remove or significantly reduce the set period.

The courts should be able to impose longer disqualification sentences.

For offences relating to causing serious injury while driving it would be appropriate to impose bans of many years, commensurate with maximum prison sentences, but for a ban to follow any prison sentence, not to run concurrently. There should be lifelong bans for charges relating to causing death while driving.

At present, obligatory disqualifications often run concurrently with the offender’s custodial sentence. Unfortunately, this means that at the end of the prison sentence road traffic offenders are often able to begin driving straight away; the ban aspect of their sentence being therefore rendered theoretical only.

6 Are there any other driving offences relating to causing death or serious injury that you think should be changed?

Yes.

1. Punishment for killing or seriously injuring while interacting with screen technology (reading / messaging) or talking on a hand-held phone

At present, penalties for interacting with screen technology (reading / messaging) or talking on a hand-held phone and causing death or serious injury are addressed within sentencing guidelines with consideration of the level of distraction within the terms “ordinary avoidable distractions” and “gross avoidable distractions”. (Sentencing Guidelines Council, Definitive Guideline, Causing Death by Dangerous Driving).

Such distractions are not “momentary lapses of attention” (to use a term referred to in definitions of careless driving). They are conscious decisions to interact with technology unrelated to the driving task.

Brake considers sentencing guidance relating to ordinary / gross avoidable distractions to a large degree subjective and inadequate and advocates tough and clear legislation to deal with killing or seriously injuring while: a) Talking on a hand-held phone or similar device (which is illegal), or b) Interacting in other ways (reading / messaging things unrelated to the driving task) with connected screen technology either hand-held (illegal) or through HUD (heads up devices) / smart phones / in-built screens.

With regards to b) there could be exclusions put in place to not penalise drivers engaged in viewing certain limited and OE-fitted information directly related to the driving task and designed with due consideration to the human interface (eg visuals that are easy to read and pop up on your windscreen warning about the posted speed limit or road works ahead). Given the prevalence of GPS-driven routing information built into many vehicles this is also a likely exclusion.

Tough and clear legislation relating to screen technology or talking on a hand-held phone could be manifested as either: a) An automatic definition in law of the above behaviours as dangerous driving, and never careless driving, enabling them to result always in charges of death by dangerous driving or serious injury by dangerous driving; OR b) New charges on the statute books of killing or seriously injuring while engaged in the above behaviours and that do not require these behaviours to be defined as either dangerous or careless. Such offences would be similar to the separate, specific offence currently on the statute books for killing when driving unlicensed or uninsured (3ZB) which has no requirement to prove the standard of driving.

Either of the above proposed changes is timely as it is now technologically straightforward to identify if a driver involved in a crash was engaged in screen activity or talking on a hand-held phone at the time (as phone records can tell us so), so the time is right for an offence relating to this appalling and conscious choice of bad behaviour, particularly in light of the continued rise, and reliance, of people on smart phones and the fitting of heads-up screen technology in vehicles and availability of aftermarket heads-up devices.

A 2016 driver survey by Brake and Direct Line found more than one in three (38%) of drivers aged 25-34 admitted to regularly (several times a week or daily) reading or sending a text or instant message while driving. Nearly a third (31%) of drivers in this age range also admitted to browsing the internet, using social media or other apps while driving, at the same frequency of several times a week or daily.

To emphasise, and similar to our comments on drink / drug driving (see above), there should be no need to prove that the use of such technology caused impairing behaviour. The only requirement should be to prove the use of the technology at the time in the ways described.

Drivers who use phones, either hands-free or hand-held, have been found to be four times more likely to be in a crash resulting in injuries than drivers who are unimpeded by distraction. (Role of mobile phones in motor vehicle crashes resulting in hospital attendance: a case-crossover study, University of Western Australia, 2005) Using a smart phone in whatever way diverts part of a driver’s mind from the driving task, both during the distraction, and after it has finished. It can take nearly half a minute to regain full attention and aside from mental distraction, any distraction that takes a driver’s eyes or hands off the road for any length of time (for example to check messages or scroll through music options) is potentially lethal. At 70mph a vehicle travels 31.5m (about the length of seven cars) every second and in that time a hazard could easily emerge and go unnoticed by a distracted driver. (Smartphone use and smartphone addiction among young people in Switzerland, Severin Haug, 2015)

2. Causing death by dangerous driving – the maximum penalty is 14 years imprisonment (section 1) Vehicular manslaughter in the UK is very rarely the basis of prosecution, yet the impact of death by dangerous driving and vehicular manslaughter is the same for the family or friends of the deceased. Although a life-long driving ban would be welcomed, a more severe custodial sentence would in many cases be more appropriate than 14 years.

3. Causing death by driving: unlicensed or uninsured – the maximum penalty is 2 year imprisonment and/or a fine (3ZB) Driving uninsured or unqualified implies a deliberate disregard for safety and other road users. A minimal sentence of two years imprisonment that can be substituted by a mere fine is an inadequate deterrent in no way representative of the seriousness of the crime and should be increased to levels commensurate with ‘causing death by dangerous driving’. There should be a similar charge of causing serious injury by driving: unlicensed or uninsured. Across the board, charges for serious injury as a result of specific actions by drivers should exist where there are charges for causing death by those specific actions.

4. Causing death while driving disqualified (currently 10 years’ maximum imprisonment / and/or fine) and causing injury while driving disqualified (currently 4 years’ maximum imprisonment and/or fine). (3ZC and D) The maximum penalties for offenders who cause death or injury when driving while disqualified should be significantly increased to levels commensurate with maximum penalties for causing death and causing injury charges for dangerous driving. If a driver has been disqualified, they should not be behind the wheel under any circumstances. The law must be particularly robust in the circumstance when it has already been disregarded.

7 Does the equalities statement correctly identify the extent of the impacts of the proposed options for reform set out in this consultation paper?

Yes.