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The Court of Appeal has reviewed the sentence of a
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Page 39
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driver jailed for causing death by dangerous driving. Transport lawyer explains how this highlights the potential consequences of being involved in such major incidents.
Attorney General's references take place when the prosecution believes an offender's punishment is inadequate. In effect it asks the Court of Appeal to review the sentence.This procedure is only available in the more serious categories of offences and the Court of Appeal will only increase a sentence if it decides the degree of leniency is 'significant'.
The case of Belgian driver Yvan Vandermeulen was heard as Attorney General's reference 146/2006; the Court of Appeal's decision was made on 14 February. Vandermeulen, 54, had spent most of his working life as a driver. While driving on the M2 on 7 September 2006 he fell asleep — which he subsequently admitted to— and his Scania drifted onto the hard shoulder where it hit a stationary Nissan Micra. The female car driver was killed and her four-year-old son was critically injured.
No signs of braking 'I he prosecution's analysis of the accident found that there had been no attempt to brake prior to the impact, indicating that the driver had not woken up until after the collision. In serious road accidents investigating police officers bring in expert evidence or analyse photographs, plans, tachograph evidence and other material to try to recreate what happened. Eye-witness accounts of vehicle movements prior to impact and the presence/absence of skid marks and their locations can be revealing.
In the case of Vandermeulen tachograph analysis was presented, revealing that in the three days prior to the accident the driver had driven for 38 of the 47 hours recorded on the tachograph. Legally he could have driven 10 hours on the first two days and nine hours on the third, at most; in effect he had carried out the equivalent of an extra day's driving.
Vanderme ulen pleaded guilty tocausing death by dangerous driving which would ordinarily entitle him to a discount on any jail sentence of approximately a third.When sentencing him the crown court judge had concluded that he was in "a high band of culpability".
Rules persistently breached
The prosecution subsequently asked for the sentence to be reviewed as the drivers' hours rules had been persistently breached. This was not a case of a driver falling asleep momentarily -Van dermeul en had been a professional driver operating a vehicle when he knew he'd had inadequate sleep.
The Court of Appeal agreed that the seriousness of this case was in the higher bracket as the drivers' hours rules were designed to prevent accidents of this type and an LGV had been involved.
Moreover it felt that Vandermeulen could not be excused his failure to have sufficient rest, even though pressure had been brought on him by his employer.
The appeal judges noted that in a recent case, following the increase of the maximum prison sentence from 10 to 14 years' imprisonment.the starting point for an offence of this kind would be between 41/2 and seven years. Applying this, they decided that Vandermeulen's sentence, as he pleaded guilty, should have been three years.
Strange though it may seem, the Court of Appeal will only alter a lower court's sentence if it is 'significantly' wrong and since the original sentence was 21/2 years, they left that in place.
This case highlights only too well the severe consequences for drivers in cases such as this. The courts are quite prepared to impose prison sentences for accidental deaths resulting from breaches of the drivers' hours rules.
It should also be borne in mind that the Road Safety Act 2006 introduces an offence of death by careless driving. This carries a maximum penalty of five years' imprisonment and is the first time that an offence relating to careless driving has been introduced which involves a custodial sentence.
At risk of jail
Truck drivers will be at risk of such sentences where courts feel that they have a particular duty of care due to the size of the vehicle being driven:This will be a developing area of the law, and judges have already made it clear that they feel some discomfort at the prospect of prison sentences being passed in fatal careless cases in which a driver has not driven deliberately or recklessly badly but engaged in an unintentional, momentary lapse, albeit a fatal one. •
• Tim Ridyard is a parmerand road transport lawyer at Barker Gotelee Solicitors (tim. ridyardebarkergotelee.co.uk).