Dangerous driving and the Law (No.26)

Transcription

1 Dangerous driving and the Law (No.26) Contents Executive Summary...7 Abstract...11 Chapter Introduction...12 Chapter Current Position Current legislation Legal principles Procedures SCOTLAND ENGLAND AND WALES...22 Chapter Methodology Research design Research tasks CASE TRACKING INTERVIEWS POSTAL SURVEY ANALYSIS OF CONVICTION DATA HELD BY DVLA ANALYSIS OF CONVICTION DATA HELD BY THE HOME OFFICE ANALYSIS OF FATAL ACCIDENTS...28 Chapter Analysis of fatal accidents...29 Chapter Trends in conviction and sentencing SCOTLAND...31 Figure 1: Proceedings in Scotland: all motoring offences and Careless Driving...31 Figure 2: Proceedings in Scotland: all motoring offences and Careless Driving...32 Figure 3: Percentage of proceedings in Scotland where a charge was proved ENGLAND AND WALES...32 Figure 4: Proceedings: all motoring offences and Careless Driving...33

2 ...33 Figure 5: Proceedings: all motoring offences and Reckless/Dangerous Driving Figure 6: Percentage of proceedings with a guilty verdict...34 Chapter Police investigations...35 Chapter The decision to prosecute DECIDING ON THE CORRECT CHARGE...38 INCORRECT CHARGING (ENGLAND AND WALES)...38 INATTENTION...39 DELIBERATE ACTION SPEEDING SCOTLAND ENGLAND AND WALES...43 Chapter Delays in England and Wales...47 Chapter Prosecution in court ANALYSIS OF CASE HISTORIES Description of defendants...49

3 Offences The absence of an accident Elements of bad driving...51 DANGEROUS DRIVING ELEMENTS...51 CARELESS DRIVING ELEMENTS Lapses, violations, errors and aggressiveness...54 LAPSE IN CONCENTRATION AMONGST DANGEROUS DRIVING OFFENCES...56 ERRORS AMONGST DANGEROUS DRIVING OFFENCES...57 VIOLATIONS AMONGST CARELESS DRIVING OFFENCES...57 AGGRESSIVENESS AMONGST CARELESS DRIVING OFFENCES Penalties...58 CAUSING DEATH BY DANGEROUS DRIVING...58 DANGEROUS DRIVING...59 CARELESS DRIVING...59 Figure 7: Fines awarded for Careless Driving...60 Figure 8: Length of disqualification for Careless Driving offecnces Comparisons...61 CONSISTENCIES...63 Chapter ISSUES ARISING IN PROSECUTION Sheriff Court vs High Court (Scotland only) Plea-bargaining Technicalities Multiple offences Judges (England and Wales only) Juries Consequences The Simmonds Appeal (England only) Quality of prosecution PENALTIES The gaps between penalties Fines Community service Forfeiture of a vehicle Penalty points Disqualification Driver Improvement Scheme Imprisonment Mitigation...76 Chapter Coroners' Inquests (England and Wales)...78

4 Chapter Fatal Accident Inquiries (Scotland)...81 Chapter The role of victims' families...82 Chapter Criminal histories of persons convicted of Dangerous Driving in 1996 (England and Wales) CHARACTERISTICS OF THE SAMPLE OF DANGEROUS DRIVERS...85 Figure 9: Age distribution of those convicted of Dangerous Driving in Figure 10: Age distribution of offenders convicted of Dangerous Driving compared to those convicted of other offences CRIMINAL HISTORY OF DANGEROUS DRIVERS...86 Figure 11: Percentage of offenders convicted by number of previous court appearances...87 Figure 12: The proportion of additional offences dealt with at the same court appearance as the Dangerous Driving offence...88 Figure 13: Distribution of previous offences commited by the dangerous drivers with three or more previous court appearances...88 Figure 14: The proportion of offenders convicted of Dangerous Driving in 1996 by the number of subsequent court appearances in PENALTIES FOR DANGEROUS DRIVERS...90 Figure 15: Percentage of offenders convicted of Dangerous Driving by number of sentencing occasions and type of sentence given...90 Chapter Driving violation history of persons convicted of Dangerous Driving in CHARACTERISTICS OF THE SAMPLE...91 Figure 16: Age distribution of persons convicted of Dangerous Driving in Figure 17: ACORN categories of persons convicted of Dangerous Driving and Great Britain as a whole THE DANGEROUS DRIVING OFFENCE...92 Figure 18: The length of disqualification period...94 Figure 19: The proportion of Dangerous Driving convictions that resulted in additional sentences DRIVING VIOLATION HISTORY

5 Figure 20: Proportion of Dangerous Driving offenders with a previous conviction by type.97 Figure 21: Percentage of offences committed on the first, second and third appearance date98 Chapter Summary of re-offending and re-test analysis...99 RE-OFFENDING WITH A FURTHER DANGEROUS DRIVING OFFENCE...99 REOFFENDING WITH ANY MOTORING OFFENCE THE EFFECT OF RE-TESTING Chapter Discussion Chapter Possible changes in legislation Chapter Conclusions Key questions Profile of dangerous drivers The offences Prosecution Penalties Police investigations Victims Chapter Recommendations Chapter Further work Chapter Acknowledgements Chapter References Appendix A North Report conclusions Appendix C Re-offending and re-tests Appendix C C.1 RE-OFFENDING WITH A FURTHER DANGEROUS DRIVING OFFENCE Figure C1: Percentage of male offenders without a further Dangerous Driving offence C.1.1 PRISON SENTENCE AND RE-OFFENDING Figure C2: Percentage of male offenders without a previous Dangerous Driving offence: prison sentence C.1.2 LENGTH OF DISQUALIFICATION PERIOD AND RE-OFFENDING Figure C3: Percentage of male offenders without a previous Dangerous Driving offence: disqualification period...127

6 C.1.3 SOCIAL STATUS Figure C4: Percentage of male offenders without a further Dangerous Driving offence: social groups C.1.4 AGE Figure C5: Percentage of offenders without a further Dangerous Driving offence: age groups132 C.1.5 DRIVING VIOLATION HISTORY Figure C6: Percentage of male offenders without a further dangerous driving offence: Number of other offences Appendix C C.2 RE-OFFENDING WITH ANY MOTORING OFFENCE Figure C7: Percentage of male offenders without a further motoring offence C.2.1 PRISON SENTENCE AND LENGTH OF DISQUALIFICATION AND RE-OFFENDING Figure C8: Percentage of male offenders without a further driving motoring offence: disqualification period C.2.2 SOCIAL STATUS AND AGE C.2.3 DRIVING VIOLATION HISTORY Figure C9: Percentage of male offenders without a further motoring offence: number of other offences Appendix D Survival analysis Appendix E The Simmonds Appeal Appendix F Description of ACORN categories Appendix G Legal precedents R. v. Krawec [1984] 6 Cr.App.R.(S.) 367Lord Lane C.J. and Otton J R. v. Downing [1996] 1 Cr.App.R.(S.) 419Swinton Thomas L.J., Waterhouse and Harrison J.J R. v. Moore [1994] 16 Cr.App.R.(S).536Lord Taylor C.T., Potts and Sachs T.T R. v. Stokes [1998] 1 Cr.App.R.(S.) 282Lord Bingham C.T. and Dyson T Appendix H General gravity factors Appendix I Standard list offences Appendix J Case histories Appendix J Case histories Appendix J Case histories...167

7 Appendix J Case histories Appendix J Case histories Appendix J Case histories...216

8 Executive Summary The report describes research carried out as part of a study commissioned by the Road Safety Division of the Department for Transport, Local Government and the Regions. The purpose of the study was to evaluate the effect of the 1991 Road Traffic Act on the prosecution of dangerous drivers. Following the Road Traffic Law Review (commonly known as the North Report) in 1988, a number of legislative changes were made, reflecting concerns about the way in which motoring offences were dealt with by the criminal justice system. The objective of this research was to examine the current situation relating to the prosecution of those accused of bad driving offences, and to assess how current practice answers the intention behind the changes in legislation. It sought to identify whether there were procedural or legislative difficulties in the current system, and to evaluate potential solutions. The research aimed to establish the criteria being used by prosecutors to select one offence rather than another, and to find out what persuades courts to choose one penalty rather than another. It examined how bad driving offences are viewed by the agencies involved in the justice system. The procedures and legislation guiding each stage of the process from charging to sentencing were examined in order to identify areas of concern and to establish how decisions are taken. The conviction and sentencing trends in the period before and after the 1991 Act was introduced were analysed. Both the motoring violation history and criminal histories of those with convictions for Dangerous Driving were examined in order to identify the characteristics of those drivers. The rate at which different groups of drivers re-offend after conviction, and whether the penalties originally imposed affected reconviction rates, were examined. From a sample of 5,943 fatal accident files information was extracted on the resulting convictions. This provided information, otherwise unavailable, on the number of fatal accidents that result in convictions for Careless Driving. Views were sought from the agencies that deal with the identification and prosecution of offenders and from pressure groups representing the victims of road traffic accidents in a series of interviews. These identified areas of concern and some suggested changes in legislation that might form part of a solution. These ideas were incorporated into a questionnaire, which was sent to representatives of the agencies who implement road traffic legislation. This survey generated further ideas, as well as views on those suggestions already identified. A major part of the research was to follow live cases to trial, in order to observe how decisions are being taken, and to assess the relationship between types of offence and resulting convictions. There were four questions in particular which the research sought to answer: 1. Has the 1991 Road Traffic Act made a difference to the pattern of prosecutions and convictions for Dangerous Driving and Careless Driving? Analysis of data from 1988 to 1997 shows that there has been a steady decline in proceedings for Careless Driving and little difference in proceedings for Dangerous Driving. The intention of the

9 legislation was to simplify the conviction of those guilty of serious driving offences. Although many of those interviewed felt that the current definition was easier to prove than the earlier 'reckless' offence, it has not led to an increase in convictions for the most serious 'bad driving' offence. 2. Is there a problem in the current definitions of Dangerous Driving and Careless Driving which results in the lesser charge of Careless Driving covering a wide range of behaviour from minor inattention to serious negligence? The definition of Dangerous Driving is such that whilst violators are likely to face that charge, those guilty of serious negligence in their driving often face the same charge of Careless Driving as those guilty of very minor offences. This is seen as causing problems, in particular where the offence has resulted in a fatality. It was found that the offence of Careless Driving included a wide range of behaviour of differing severity. It is commonly perceived to be a minor offence, but is used in cases where the driving could be described as grossly negligent. The research found that the greatest concern was caused by those offences which failed to meet the criteria for Dangerous Driving, yet displayed a lack of care which was more culpable than the Careless Driving offence is perceived to indicate. 3. Is there a need for a new offence of Causing Death by Careless Driving? The research found that amongst those who responded to a postal survey, the introduction of a new offence of Causing Death by Careless Driving was favoured by 55% of respondents. There were also compelling arguments against its introduction, however, many of which related to the scale of penalties such an offence would attract. This concern stems from a view that Careless Driving, given the range of behaviour which it covers, does not imply sufficient culpability to justify taking fatal consequences, which are often a matter of chance, into account. The main purpose of the new offence would therefore be to acknowledge the fact that a death has been caused. An alternative solution, which would create an additional offence between Dangerous Driving and Careless Driving is discussed. This offence, possibly called 'Negligent Driving' would be defined such that it includes gross carelessness or a serious failure to take sufficient care whilst driving. Behaviour that involves a significant degree of violation or aggression would still be classed as Dangerous Driving. This new offence would define a duty of care which, if breached, would render the driver liable to more severe penalties than the relatively minor offence of Careless Driving. If such an offence were introduced there should also be an offence of 'Causing Death/Serious Injury by Negligent Driving.' 4. Are the heavier sanctions available for Dangerous Driving being used to the degree intended by the legislators? The maximum penalties are rarely used. Cases which appear to be very serious often receive less than half of the maximum sentence. Guilty pleas and other mitigating circumstances reduce sentences further. The research did not examine how this compares with sentencing of nonmotoring offences. In 44% of the fatal accident files examined it was found that the driver at fault was killed and in 20% of cases a pedestrian at fault was killed. Of the remainder, in 10% of the accidents a driver was reported for Causing Death by Dangerous or Reckless Driving and in 20% of cases a driver was reported for Careless Driving. The remaining 6% comprises cases where the driver was reported for other offences.

10 It was found that those convicted of Dangerous Driving were mainly young males, with threequarters of the dangerous driver offenders in 1996 being males aged under 30 years. A higher proportion of those convicted of Dangerous Driving fall into the younger age categories than those convicted of other serious non-motoring offences. It was found that 38% of offenders convicted of Dangerous Driving in 1996 had no recorded criminal history and 46% had been convicted in court on at least three occasions. [1] Just over 40% of offenders convicted of Dangerous Driving in 1996 were sentenced to immediate custody (which includes detention in a young offender institution); around 30% were given a community sentence (supervision, probation, community service, combination order or attendance centre order); and 20% were fined. The fines ranged from 10 to 2,500, with a mean value of 320. The mode and median values were both 250. A third of those convicted of Dangerous Driving in 1996 went on to commit a subsequent criminal offence in This proportion varied depending on whether the offender had a previous criminal history. Fourteen per cent of offenders with no criminal history prior to 1996 committed a subsequent offence in 1997, compared to 56% for offenders with three or more previous court appearances prior to Neither imprisonment nor disqualification were found to have much effect on reconviction rates. Many drivers who re-offend begin re-offending during their period of disqualification. Around one offender in 20 convicted of Dangerous Driving in 1996 was convicted of a further Dangerous Driving offence in Those drivers who pass a re-test are significantly less likely to re-offend than those who do not. This does not, however, prove the effectiveness of re-testing, as the difference in re-offending is apparent prior to the re-test being taken. It does indicate a means of targeting a particular group, i.e. those who do not pass a re-test, as being more likely to drive whilst disqualified and to re-offend. Whilst both the interviews and subsequent postal survey found that there were clear distinctions being drawn in some instances between Dangerous Driving and Careless Driving, there were some types of behaviour which could fall into either category. In particular, there was found to be an inconsistent approach in the extent to which excess speed was taken to indicate dangerous driving. In any offence where consequences form part of the charge (i.e. Causing Death by...), it was generally felt that serious injury should be taken into account as well as death. The current offence of Causing Death by Dangerous Driving should therefore be extended to include severe injuries. This would recognise the impact that severe and permanent injuries have both on victims and their families. In determining whether legislation is 'successful', the criteria for measuring success must be determined. Is success to be decided by the level of acceptance from those agencies who implement the legislation? The problem here is that they do not necessarily agree with each other. Is it decided by public perception that 'justice' is being done? The problem here is how to establish, in an impartial way, what the public perception is. As in any sphere, complaints against the system are heard more often than the views of those who are happy with the way things are. Or is there some objective measure of success which can be calculated by conviction rates? Conviction rates may reflect a number of factors: changes in driving behaviour and increased or decreased levels of

11 enforcement as well as the impact of legislation. Therefore, there is no single criterion by which the success of past legislation can be measured, nor the success of any future legislation anticipated. [1] In this report, criminal history refers to convictions for any Standard List offences. These are described in Appendix I.

12 Abstract The report describes research carried out as part of a study commissioned by the Road Safety Division of the Department for Transport, Local Government and the Regions. Following the Road Traffic Law Review (commonly known as the North Report) in 1988 a number of legislative changes were made, reflecting concerns about the way in which motoring offences were dealt with by the criminal justice system. The purpose of the study was to evaluate the effect of the 1991 Road Traffic Act on the prosecution of dangerous drivers and to examine criticisms of current legislation and practice. It investigates the criteria being used to determine the charges and sentences for those drivers. The report explores the extent to which the criminal justice system, in implementing the 1991 Road Traffic Act, has achieved the aims intended by the North Report and the subsequent legislation. The research identified concerns that the aims of the legislative changes have not been fully realised. A number of changes in legislation and procedures have been suggested by individuals and representatives of agencies invited to contribute to the research; the report describes and evaluates these suggestions. Areas of concern in the prosecution and conviction of dangerous drivers are identified and examined.

13 Chapter 1 Introduction This report describes the results of a study commissioned by the Road Safety Division of the Department for Transport, Local Government and the Regions to evaluate the impact of the 1991 Road Traffic Act on the prosecution of dangerous drivers. [1] The study looked at the operation of road traffic law, as it relates to Dangerous Driving. The last review of motoring offences was reported on in 1988 in the Road Traffic Law Review Report (Department of Transport and Home Office, 1988), hereinafter referred to as the North Report. The Road Traffic Law Review was set up on 31 January 1985 just after the publication of the report on road safety by the Transport Committee of the House of Commons, which examined ways of further reducing the number of road casualties. The Committee recognised the role of road traffic law as one element influencing road user behaviour and, amongst a wide range of recommendations, advocated that measures to simplify the law should be investigated. It is useful here to describe in brief how the interpretation and punishment of Dangerous Driving has changed over the years, in response to varying opinion as to how 'bad' driving should be viewed. This is a particularly difficult area of the law, as is demonstrated by history. In the Motor Car Act of 1903 the offence of reckless driving was introduced. In the 1930 Road Traffic Act there were two offences: 'Reckless or Dangerous Driving' and 'Careless Driving'. In 1956 a third offence of 'Causing Death by Reckless or Dangerous Driving' was introduced, to avoid having to employ the charge of manslaughter in these cases. It was felt, at that time, that juries were reluctant to convict drivers of manslaughter. Subsequently there was some debate as to whether the consequence (e.g. death or injury) as opposed to the nature of the driving had a place in the judgement of an offence. The James Committee on the Distribution of Criminal Business between the Crown and Magistrates' Courts (1975) and a Working Paper on Offences against the Person produced by the Criminal Law Revision Committee in 1976, both recommended the repeal of the 'causing death' offence. It was argued that, 'unless the act amounted to murder or voluntary homicide,' the fact that death was caused was purely fortuitous. In the Criminal Law Act of 1977 the offences of 'Reckless or Dangerous' were re-worded as simply 'Reckless'. However, the North Report found that this too caused a problem, in that the prosecution had to prove 'recklessness', i.e. the driver's state of mind at the time. A more objective test of 'very bad driving' was sought. The relevant conclusions from the North Report are reproduced in Appendix A. The Government response to the North Report, entitled The Road User and the Law (Home Office et al, 1989), agreed with the Report that the reckless driving offence was not operating as it should in England and Wales, where emphasis was on the driver's attitude (recklessness) rather than the objective quality of the driving (dangerousness). The response proposed to replace the offences with ones based more firmly on the actual standard of the driving. The offences relating to bad driving were reformulated in the 1991 Road Traffic Act, to more readily identify and punish dangerous drivers. Much of the Act was based on the recommendations of the North Report. The earlier offences of 'Reckless Driving' and 'Causing Death by Reckless Driving' were replaced by 'Dangerous Driving' and 'Causing Death by Dangerous Driving'. These changes were intended to move the emphasis from the driver's state of mind to the objective quality of the driving. It should be noted that this problem with the Reckless Driving offence was not

14 regarded as such within the Scottish justice system. The test for recklessness laid down in Scotland by the High Court in Allan v Patterson (Scots Law Times, 1980 JC 57; 1980 SLT 77) provided much of the basis for the wording of the replacement offence: 'Judges and juries will readily understand... that before they can apply the adverb 'recklessly' to the driving in question they must find that it fell far below the standard of driving expected of the competent and careful driver and that it occurred either in the face of obvious and material dangers which were or should have been observed, appreciated and guarded against, or in circumstances which showed a complete disregard for any potential dangers which might result from the way in which the vehicle was being driven.' (Scots Law Times, 1980.) There are four questions in particular which the research sought to answer: Has the 1991 Road Traffic Act made a difference to the pattern of prosecutions and convictions for Dangerous Driving and Careless Driving? Is there a problem in the current definitions of Dangerous Driving and Careless Driving which results in the lesser charge of Careless Driving covering a wide range of behaviour from minor inattention to serious negligence? Is there a need for a new offence of Causing Death by Careless Driving? Are the heavier sanctions available for Dangerous Driving being used to the degree intended by the legislators? The new offences of Dangerous Driving and Causing Death by Dangerous Driving replaced the offences of driving recklessly, which were much criticised in England and Wales. The intention was that the determination of what amounts to driving dangerously would be by means of a test which concentrates upon the nature of the driving rather than the defendant's state of mind (Wallis, 1991). The research examined whether such a test is appropriate in terms of culpability, and how this test is implemented in practice. The study examined the extent to which the consequences of bad driving (death or injury) play a part in the decision-making process. Although there are separate offences of Dangerous Driving and Causing Death by Dangerous Driving, and a less serious offence of Careless Driving, there is no offence of Causing Death by Careless Driving (except where alcohol or drugs are involved). This, together with the much higher penalty for Dangerous Driving where a death results, has caused some debate on how far the system does (or should) focus on the standard of the driving alone, as opposed to the consequences. Further argument centres on whether the 'deliberate' nature of some kinds of bad driving should attract the highest penalties, or whether the potential danger should be the key issue, regardless of the actual consequences. [1] Throughout the report the term 'driver' should be taken to include drivers of any motorised vehicle and riders of motorcycles.

15 Chapter 2 Current Position 2.1 Current legislation There are three offences with which this research is concerned: Section 1: Causing Death by Dangerous Driving Section 2: Dangerous Driving Section 3: Careless and Inconsiderate Driving [1] According to current legislation, a driver is guilty of Dangerous Driving if: The way he or she drives falls far below what would be expected of a competent and careful driver; and It would be obvious to a competent and careful driver that driving in that way would be dangerous Whereas dangerous is explicitly defined within the 1991 Act, careless is not. There are two forms of the Careless and Inconsiderate Driving offence: Driving Without Due Care and Attention Driving Without Reasonable Consideration for Other Road Users So far as the first is concerned, the evidence must show that the defendant's driving fell below the required standard, in that he was not displaying the proper care and attention of a reasonable, competent and prudent driver. For the second, in England, the evidence must show that other road users were inconvenienced by the inconsiderate driving of the defendant. (Dobbs and Lucraft, 1995) (Dilkes v Bowman Shaw, 1981 RTR4). As noted in Wheatley (2000), it does not appear to have been established in Scotland whether the prosecution is required to prove that actual inconvenience was caused to other road users or whether such inconvenience was merely liable to occur. Although these two different forms of the offence require quite different types of evidence, they are often referred to under the general heading of Careless Driving. The current penalties are shown in Table 1 below. For comparison, the penalties for the offence of Causing Death by Careless Driving under the influence of drink or drugs are also shown. Table 1: Penalties for offences Offence Maximum Penalties Imprisonment Fine Disqualification Penalty Points Causing Death by 10 years Unlimited Obligatory 3-11 (if

16 Dangerous Driving* Dangerous Driving* 2 years minimum exceptionally not disqualified) 2 years Unlimited Obligatory 3-11 (if exceptionally not disqualified) Causing Death by Careless Driving when under the influence of drink or drugs 10 years Unlimited Obligatory 2 years minimum 3-11 (if exceptionally not disqualified) Careless and Inconsiderate Driving - 2,500 Discretionary 3-9 * Where a court disqualifies a person on conviction for one of these offences, it must order an extended re-test - about twice as long as the ordinary driving test. The courts also have discretion to order a re-test for any other offence which carries penalty points: an extended re-test where disqualification is obligatory, and an ordinary test where disqualification is not obligatory. Recent proposals for two new unintentional killing offences as part of a reform of the law, in England and Wales, on Involuntary Manslaughter (Home Office, 2000) are: RECKLESS KILLING A person commits reckless killing if: His or her conduct causes the death of another; He or she is aware of a risk that his or her conduct will cause death or serious injury; and It is unreasonable for him or her to take that risk having regard to the circumstances as he or she knows them to be KILLING BY GROSS CARELESSNESS A person commits killing by gross carelessness if: His or her conduct causes the death of another; A risk that his or her conduct will cause death or serious injury would be obvious to a reasonable person in his or her position; He or she is capable of appreciating that risk at this material time (but did not in fact do so) and either

17 His or her conduct falls far below what can reasonably be expected in the circumstances; or He or she intends by his or her conduct to cause some injury, or is aware of, and unreasonably takes, the risk that it may do so, and the conduct causing (or intended to cause) the injury constitutes an offence 2.2 Legal principles This section examines some of the legal principles which operate in this and other areas of law. It is not an exhaustive explanation of aspects of law which impact on motoring offences, but describes some of the underlying principles which are relevant to this research. If it is reasonable to assume that driving a car demands a duty of care on the part of the driver, then Careless Driving is clearly a failure to exercise the required degree of care. It might be assumed that Dangerous Driving is a quite different type of behaviour; not a failure to exercise care but a planned behaviour - one where the driver intentionally drives in a certain way without regard to the safety of other road users, whilst being aware of the danger that driving in such a way poses. Although this appears to provide a quite clear distinction between the two offences, it is evident from the research that, in practice, the distinction is not clear. In many ways they are not regarded as distinct offences, but as an arbitrary distinction between the most 'serious' bad driving and the rest, with a significant grey area covering offences which could be interpreted one way or another. Another key issue, therefore, is the degree of care that is demanded of the driver. The North Report (Department of Transport 1988) describes how an effect of road traffic law is to place an onus or duty on the driver to exercise care, to look for signs, to keep an eye on the speedometer, and to look carefully before emerging at junctions. Offences, that Report notes, will often be ones of omission, not commission. The earlier offences of Reckless Driving and Causing Death by Reckless Driving were problematic to English and Welsh courts primarily because it was held to be necessary to prove the state of mind of the driver. This requirement to show mens rea, generally held to be central to the concept of criminal liability, involves a subjective inquiry into the actual state of mind of the accused at the time of the offence. The rejection of this principle is, perhaps, an indication of the separation of motoring offences from the rest of criminal law. The changes in legislation brought about by the 1991 Road Traffic Act were intended to focus attention on the standard of driving rather than the mental state of the driver.

18 This, taken at face value, seems to imply that a manoeuvre which poses a danger to other road users should attract equal punishment regardless of whether the driver carried out that manoeuvre deliberately (in order to make speedier progress, for example) and was aware of the risk, or by mistake. This seems at odds with most people's sense of justice. It is certainly not the way in which the law is being interpreted by the agencies involved in prosecution. Section 2A(3) of the 1991 Road Traffic Act states: 'regard shall be had not only to the circumstances of which he could be expected to be aware but also to any circumstances shown to have been within the knowledge of the accused'. Consideration is given, when deciding the appropriate charge and in debates in court, as to whether the driver was aware of the risks he or she was taking. If the defendant was driving the wrong way up a one way road, which is clearly potentially dangerous, it is natural to ask whether he or she was aware that they were entering a one way road. If in fact a driver intentionally drove up a one way road it seems likely that the verdict would be that he or she was guilty of Dangerous Driving. The difference here is one of intention. How much the intentions of the defendant should direct the charge is a key issue. In examining intentions there is a need to be clear about whether it is intention to harm, intention to violate or intention to take risks which is in question. In modern law, if A injures B, the legal consequences will depend on A's state of mind at the time. If it was A's intention to injure B, they may be liable to criminal prosecution and punishment (Jacobs, 1971). Jacobs holds that recklessness equates here with intention. If accepted, this would give the same weight to an intention to take risk as an intention to harm. If there was no intention to injure they will not be criminally liable, but B may succeed in a civil action against A if they can show that A was negligent. If this were accepted as the basis for defining the bad driving offences it would follow that 'reckless' driving would be a criminal offence requiring proof of the state of mind of the driver, and 'careless' driving would not be a criminal offence but would be a matter of civil liability. Clearly this is not the case. Elsewhere, arguments can be found for the inclusion of various degrees of negligence in criminal liability. One explanation for the differences between the meaning of expressions like 'inadvertently' and 'negligently' says that the former describes only the state of mind in which someone acted, whereas the latter also refers to the fact that he failed to comply with a standard of conduct with which any reasonable man could and would have complied (Hart, 1968). To define the degree of negligence which might be liable to criminal prosecution is a difficult task, and to describe it in such as way as to be universally interpreted in the same way even more so. One such attempt described 'such disregard for the life and safety of others as to deserve punishment' (Kenny 1946), whilst pointing out that the term 'criminal negligence' is of no help as 'To direct a jury that negligence must be criminal if they are to

19 convict, is to tell them that negligence is criminal if they are of the opinion that it amounted to a crime'. There is an argument that deaths resulting from road traffic accidents should be treated in the same way as other deaths. In particular, for example, there is some disquiet that the recent proposals to reform the law on Involuntary Manslaughter (described in Section 2.1) do not affect the current road traffic offences. The alternative view is that there are a number of fundamental differences between the behaviour that results in a road traffic fatality and that which leads to most other deaths. Attempts to grasp the underlying legal principles are confused further by the semantics used in describing both the actions and consequences of bad driving. It is common practice to refer to 'accidents', even where there is no doubt that the collision was caused entirely by the bad driving of another driver. Furthermore, the term 'careless' is generally used to refer to minor omissions with no serious consequences, whereas 'Careless Driving' may result in a death. It is one of the common complaints from those who lobby for changes in the law that 'carelessness' is not an appropriate description for a failure to drive in a responsible and safe fashion. A comment heard frequently in current debates is that 'carelessness is spilling milk'. The difficulty here is that 'careless' can refer to any failure in care, from minor instances to those where taking care is of critical importance. Whilst it clearly encompasses a failure to fulfil a duty of care, everyday use of the term has trivialised it. Another key issue, tackled by the North Report but still causing debate, is the extent to which the consequences of driving in a certain way should be taken into account. There are conflicting schools of thought on this. What is clear, however, is that two similar pieces of driving can result in a collision in one instance and have no consequences in another. Similarly, whether a fatality results from a collision depends upon a number of circumstances, some of which are unrelated to the blameworthiness of the driver. The principle that the gravity of a crime is a function not only of the offender's intention to cause harm, but of the actual harmfulness of the conduct is applied in many cases in the sentencing policy of courts, but less so in the classification of offences (Jacobs, 1971). It is apparent that actual harmfulness is relevant in motoring offences, however, in the existence of two Dangerous Driving offences (Section 1 and Section 2), the only difference between them being the consequences. The differing penalties available for these two offences further reinforce an underlying belief that the consequences alone make the offence of Causing Death by Dangerous Driving a more serious one. This difference may be regarded as reflecting the view of society on the sanctity of human life.

20 One of the key questions addressed by this research is whether there ought to be an offence of Causing Death by Careless Driving to 'fill the gap'. It is important to be clear what legal and moral principles would be behind a decision to create such an offence. The absence of this offence currently implies a view that the sort of behaviour which falls into the category of Careless Driving is not of sufficient culpability that society would wish to hold the driver responsible for the consequences as well as the behaviour itself. It is true that, as in instances of Careless Driving, whether or not an act of Dangerous Driving results in a fatality is, at least partly, a matter of chance. The difference between the two categories of offence, which lies behind the argument to create a separate offence of Causing Death by Dangerous Driving but not one of Causing Death by Careless Driving, must be that the behaviour categorised as dangerous carries sufficient culpability that it exposes the motorist to the additional risk of being held responsible for the consequences of his or her actions as well as the action itself. The disquiet expressed at some of the decisions in court is fuelled by uncertainty as to whether the consequences of bad driving should be a factor in determining both the charge and the sentence. It could be argued, for example, that as the consequences of overtaking on a blind bend may be a fatal accident in one instance, but nothing in another, the consequences should be irrelevant. The decision to undertake such a dangerous manoeuvre is what should be punished, and the fact that no car was coming the other way is sheer luck which in no way detracts from the nature of the offence. However, a recent decision in the Court of Appeal stated: 'It is often a matter of chance whether death or serious injury results from even a serious breach. Generally, where death is the consequence of a criminal act it is regarded as an aggravating feature of the offence. The penalty should reflect public disquiet at the unnecessary loss of life.' It is clear that there are a number of issues which are relevant in the determination of offences. It is not possible for this research to do more than highlight key issues, and attempt to relate them to current and proposed legislation. 2.3 Procedures The same legislation for motoring offences applies throughout Great Britain. The criminal justice system in Scotland, however, is quite different from that in England and Wales. The research has looked at both systems. The process by which a driver is convicted of Dangerous Driving involves a number of different agencies and different procedures. The first part of the process is that the police will investigate an accident

21 or incident and provide a written report. Depending on the circumstances, specialised police accident investigators may be involved. If necessary, forensic evidence will be gathered. Subsequent stages vary between the countries, and are described in the two following sections. This is not intended to be a comprehensive explanation of the legal system in either country SCOTLAND The police report of a crime is submitted to the Procurator Fiscal who will make the decision as to the appropriate charge, if any, at this stage. In serious cases appropriate for trial on indictment (solemn proceedings), either before a sheriff and jury or in the High Court, the Procurator Fiscal makes his or her own investigation of the circumstances, conducting interviews (precognitions) with the main witnesses and gathering forensic and other evidence. The Procurator Fiscal will then report the case to Crown Counsel for instructions. Crown Counsel are experienced practising members of the Faculty of Advocates appointed by the Lord Advocate to serve as his or her deputies. Crown Counsel instruct whether proceedings should be initiated and if so on what charge and in what forum (i.e. High Court, sheriff and jury or sheriff summary). In less serious cases which are appropriate for trial before a sheriff sitting alone (summary proceedings), the Procurator Fiscal will generally rely on the police investigation and will not carry out his or her own investigation, although he or she will instruct further investigation where appropriate. The Procurator Fiscal makes the final decision on whether proceedings should be taken and if so on what charge. All sudden, suspicious, accidental, unexpected or unexplained deaths are reported to the Procurator Fiscal. Therefore, where a death results from a road traffic accident the Procurator Fiscal is involved in the investigation of the death at the earliest stage. The Procurator Fiscal will enquire into the circumstances and, where there is the possibility of criminal proceedings, whether solemn or summary, will report the case to Crown Counsel for instructions. Crown Counsel will instruct whether proceedings should be initiated and if so on what charge and in what forum (i.e. High Court, sheriff and jury or sheriff summary). Therefore, in all road traffic cases in which a death is involved and there is the possibility of criminal proceedings, the final decision is taken by Crown Counsel. Road traffic cases which do not involve a death do not need to be reported to Crown Counsel, but those which are considered to be sufficiently serious to justify solemn proceedings must

22 be reported by the Procurator Fiscal to Crown Counsel for instructions. Proceedings may involve a number of appearances at court, known as 'diets'. If Crown Counsel instruct solemn proceedings in the High Court, the accused is served with an indictment which requires him or her to appear at the trial diet. A preliminary diet may be fixed to deal with preliminary issues but such a diet is not mandatory. In the case of a sheriff and jury trial, the indictment served on the accused requires him or her to appear at a first diet and a trial diet. In summary procedure, if the accused pleads not guilty at the pleading diet, an intermediate diet and trial diet are fixed. Causing Death by Dangerous Driving is a solemn offence, taken on indictment, whilst Dangerous Driving may be taken as a summary case. Careless Driving is a summary offence. In Scotland, virtually all cases are heard in the sheriff court. Some solemn cases may subsequently be remitted to the High Court, if the sheriff feels that the offence merits a greater sentence than the three years which he or she can give. In a sheriff court it is the job of the sheriff (in summary proceedings) or the jury (in solemn proceedings) to decide whether the accused is guilty of the offence with which he or she has been charged. All Death by Dangerous Driving cases are heard by jury. The sheriff will explain to a jury the criteria they should apply in making that decision. In some situations a sheriff will direct a jury; he or she may, for example, instruct a jury to acquit the accused if they feel there is insufficient evidence upon which the jury could reach a verdict. Sheriffs also direct the jury on the law and the jury are obliged to follow their directions. Sheriffs may review the evidence, but they are not obliged to do so. After the evidence has been heard, and arguments for prosecution and defence made, a verdict will be returned by the jury (in a solemn case) or a sheriff (in a summary case). The sentence will be decided by the sheriff. There is no equivalent procedure to a Coroner's Inquest in Scotland; however, in some cases a Fatal Accident Inquiry may be held to determine the cause. The scope and nature of such an inquiry are defined in the Fatal Accidents and Sudden Deaths Inquiries (Scotland) Act These apply equally to road traffic fatalities and to other sudden or violent deaths. An Inquiry must be held if a death occurred in the course of employment or whilst the deceased was in custody. If there is a criminal trial, and it is deemed that all the circumstances have been adequately explored, the Lord Advocate can waive the need to hold an Inquiry. In addition, the Lord Advocate may instruct that a discretionary Fatal Accident Inquiry be held where the circumstances of the death give rise to issues of public safety or serious public concern, or where there is suspicion that, for example, a system or procedure contributed

23 to the death. If it is felt, for example, that defective road signs contributed to an accident, a Fatal Accident Inquiry might be held to investigate that issue. In such instances the Procurator Fiscal will discuss with the next of kin their views on the desirability of a Fatal Accident Inquiry. Those views will be conveyed to Crown Counsel and will be taken into account ENGLAND AND WALES In cases involving a fatality the police will normally seek Crown Prosecution Service (CPS) advice at an early stage, but otherwise it is common practice for the police to issue process, by laying any information before a magistrates' court who then serve a summons upon the defendant. The police have the statutory power to arrest a person for an offence of Causing Death by Dangerous Driving if they have reasonable grounds for suspecting that he or she is guilty of that offence, and are then likely to charge him or her before referring the matter to the CPS. The police report will be passed to the CPS for review. They will make the final decision as to the appropriate charge, if any. Where a charge has been put to the court by the police, the CPS may apply to the court to amend the existing summons or charge, add or substitute for it further allegations, or discontinue the proceedings altogether. When reviewing the evidence against the defendant at any stage the CPS will do so in accordance with the criteria contained in the Code for Crown Prosecutors. If it is decided that there is a charge to answer, that it is in the public interest to prosecute, and that there is a realistic prospect of conviction, the case will go to court. In England, although every case involves initial appearances at a magistrates' court, the ways in which various bad driving offences are dealt with differ. Careless Driving is a summary offence, which will be dealt with by a magistrates' court. Causing Death by Dangerous Driving is an indictable offence, which must be heard in a Crown Court. Dangerous Driving is an 'either way' offence. It may be dealt with by the magistrates' court, but if the offence is deemed, by them, serious enough to warrant a greater sentence than they can impose, the case will be passed to the Crown Court. If the charge is a summary offence, the complaint must have been made (i.e. the information received by the clerk to the justices' office) within six months of the offence being committed. The CPS will appoint a prosecutor to be responsible for the case. A defence lawyer will be employed by the defendant (or appointed for them). These lawyers will represent the case for prosecution and defence in the magistrates' court. At present, if the case goes to Crown Court, a barrister will be appointed