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Careless driving costs lives
Page 29
Page 30
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The latest sentencing guidelines refer to the new offence of causing death by careless or inconsiderate driving. It was created by statutory instrument 20 (SI20) as part of the Road Safety Act 2006 (RSA 2006).'The act became law in December 2006 — and when the new offence comes into force, guilty drivers will face a mandatory ban and up to five years' jail.
Another new offence, of causing death by driving when unlicensed, disqualified or uninsured, was created by SI21; it carries a maximum of two years in jail.
The offence of causing death by careless driving fills a perceived gap in the charges that can be laid following a fatal accident.
The existing offences of causing death by dangerous driving: causing death by careless driving when unfit through drink or drugs: and motor manslaughter carry a maximum sentence of 14 years.
On the other hand, fatal accidents caused by careless driving with no question of drink or drug misuse have traditionally led to a charge of careless driving. This can only be dealt with in the magistrate's court and does not carry a prison sentence.
The new offences follow pressure from road safety groups to deal with cases where a tine, penalty points or discretionary disqualification are seen as inadequate responses to a fatality caused by poor driving.
Until now, courts have felt the need for caution when dealing with careless driving in fatal accidents, believing they must look primarily at the standard of driving and not its consequence — otherwise the outcome of the accident determines the seriousness of the offence.
This strict approach has been relaxed, allowing the courts to consider the consequence of an accident.
Defining the offences
The new offence of causing death by careless or inconsiderate driving brings together two offences with different definitions.
Careless driving is driving without due care and attention; it takes place when the way a person drives "falls below what would be xpected [from] a confident and careful driver". nconsiderate driving (established by SI30 in LSA 2006) is committed by a person who is driving without reasonable consideration for ther persons" but "only if those persons are iconvenienced by his driving" (see panel).
Even before the publication of the new roposals, the judiciary had expressed concern bout sentencing problems with such cases.
Fatal accidents are very emotive. A death lay happen where there has been a high degree f carelessness or, conversely, where there has een a momentary lapse of concentration or lerely as a matter of chance.
Should a driver be imprisoned for what ould be a relatively low level of negligence? iirguably, the new offence criminalises drivers rho have not deliberately acted in a criminal ashion. The Sentencing Guidelines Council .as now published draft guidelines to help ourts deal with these issues.
'ugly response
4embers of the victim's family might well iemand tough sanctions because of the onsequence of the accident, but this has o be tempered with regard for the level of arelessness on the part of the driver. There is an argument that it would be better o have a single imprisonable offence of areless driving to deal with all careless driving acidents.As matters stand, driving with a high ovel of carelessness that leads to serious or ierhaps long-term injury will still not carry a irison sentence.
How the courts will deal with truck drivers acing these charges remains to be seen. The aw certainly expects vocational drivers to naintain high standards — so, other things being :qua a court might be inclined to deal with a )rofessional driver more seriously than other oadusers.This means a truck driver could face jail for a low level of carelessness, such as failing to see a cyclist in his blind spot.
The Sentencing Guidelines Council notes: "Sentencing in cases where death results from the misuse of a car on the road is always extremely sensitive. Obviously the consequences are appalling. Very heavy sentences are appropriate where the standard of driving involves flagrant disregard of the safety of other road users,
-Rut sometimes death results from a relatively minor error of judgment. to which every motorist, however experienced, is liable from time to time. Cases like these present sentencing judges with very difficult decisions
because the gravest consequences have to be balanced against varying levels of culpability."
Sentencing approach
The new recommendations confirm that the court's sentencing approach must take into account that a death has been caused and the driver's culpability and the circumstances of the driving. But they stress that the offence must be the "primary determining factor" as to the seriousness of the offence.
The Sentencing Advisory Panel (SAP) recommends that a fine is never likely to be appropriate for a fatal careless accident, and if a prison sentence is not justified a community order should be imposed which could include curfew tagging and community service (see panel).
The SAP carried out a study in which 38% of participants favoured jail for careless driving, regardless of the seriousness of the offence. However the panel proposes that where the level of carelessness is low and there are no aggravating factors, a prison sentence will not be justified. •