Greenwoods Solicitors

An Overview: Harsher Terms for Death Drivers

Increasingly the Courts in England and Wales are under pressure to send drivers to prison. Recent sentencing guidelines leave little discretion to the Courts which are being directed to jail more people convicted of causing death whilst driving and, in certain of the more serious cases, to jail for increasingly longer terms.

The Sentencing Guidelines Council’s recently published paper, “Causing Death by Driving” makes clear that in any instance of a road traffic incident resulting in death, save only in cases of “momentary lapse” the Courts should impose a term of imprisonment and where prison is not considered appropriate community sentences, not fines, should be imposed.

The new Sentencing Guidelines apply to the existing offence of Causing Death by Dangerous Driving and also the new offence, introduced by the Road Safety Act 2006, of Causing Death by Careless Driving, which now carries a maximum of five years imprisonment.

It has long been established that following conviction for causing death by dangerous driving the starting point on conviction is a significant custodial term. The Criminal Justice Act 2003 increased the maximum penalty for this offence from 10 years to 14 years imprisonment. You will have your own opinion as to whether those guilty of wilfully culpable dangerous driving resulting in death should go to prison. Whether imprisonment is a suitable penalty for those guilty of careless driving, resulting in death is a far more difficult question. Until 4th August 2008 a road death arising in consequence of carelessness was otherwise punishable by little more than a fine; licence endorsement and/or discretionary disqualification.

Guidelines for the recently introduced offence of Causing Death by Careless Driving establish that for those offences
committed since the 4th August 2008, save those instances where the carelessness arose from momentary inattention, sentences of up to two years imprisonment can be justified. Those examples of carelessness falling not far short of dangerous driving are likely to attract sentences of up to three years, with a recommended starting point of fifteen months. Imprisonment for examples of driving classified as “careless” will not now be reserved for those exceptionally bad cases, on the contrary, the courts are expected to impose custody in all but the least serious of cases. Judges and Magistrates have also been reminded that a driving ban will only be effective if it extends beyond the length of the prison sentence. Disqualification periods are on the increase. Those sentenced to a significant period of imprisonment will upon release continue to suffer, at the very least, significant inconvenience but quite possibly financial hardship, in consequence of an inability to return to the workplace due to the absence of a driving licence. The convicted motorist, in the majority of cases a first time offender who is unlikely to offend again, suffers quite possibly more punitive measures than those imposed against the habitual offender, who in all likelihood is not in employment and for whom custody will have little implication beyond the loss of liberty.

It has always been recognised that sentencing in cases where death results from the mis-use of a car on the road are among the most difficult cases for Judges and Magistrates alike. There is a complex balance to be struck since the harm, (the death of the victim,) is the greatest that can be inflicted. However, the level of culpability can range from a flagrant disregard for the safety of road users (the wilfully culpable) to those engaged in a brief and transitory moment of inattention and human error.

The combination of low culpability but grave harm inevitably causes those responsible for imposing the sentence considerable difficulty in striking the right balance and ensuring that any sentence imposed is not disproportionately severe. Imprisonment should be reserved for the most culpable. The Sentencing Guidelines Council’s “Overarching Principles “ state when dealing with the issue of “seriousness” that:

“Harm must always be judged in the light of culpability” and
“The culpability of the offender in the particular circumstances of an individual case should be the initial factor in
determining the seriousness of an offence”.

A proposed increase in the maximum imprisonable term for dangerous driving from 2 years to a maximum of five years was considered in 2000 and endorsed by the Court of Appeal (R v Cooksley) but was never enacted. The Court of Appeal also opined that there was no need to increase the existing ten year tariff for Causing Death by Dangerous Driving. The Government ignored both suggestions and we now have a maximum penalty for Causing Death by Dangerous Driving that is seven times higher than that for Dangerous Driving, and yet the culpability of the offender in both instances is identical. Punishment of motorists who kill is clearly now severe. The same cannot however be said of sentences imposed for many serious but non-fatal road traffic offences for which the penalties have not been revised in recent years. Whilst the tariff for causing death by dangerous driving has been significantly raised and the new offence of causing death by careless driving recently introduced, no such revision has taken place of the existing offence of dangerous driving. A regime has been created in which the motorist who makes a fatal error or misjudgement, often following a lifetime of exemplary driving can now expect to be treated more severely than a serial traffic offender who has driven over a prolonged period displaying irresponsible driving throughout but who miraculously only leaves damaged vehicles and traumatised road users in his wake.

Such offenders who typically pose a risk of re-offending, rarely receive sentences comparable with those involved in incidents resulting in death. Simple luck or chance now plays a stronger role in shaping the sentences imposed on road traffic offenders convicted of Causing Death by Careless Driving. The position is possibly best illustrated in the following cases, the first an example of extremely dangerous driving, which did not result in a fatality; the second, an example of careless driving arising in consequence of misjudgement.

In the unreported case of Juneja, 1st December 2006 at Leicester Crown Court, the Defendant, a student, tried to outrun the Police at speeds of up to 90 mph in an untaxed car with no MOT certificate. He swerved and accelerated through city traffic with three passengers in his car and smoke trailing from its tyres. Other drivers were forced to brake and swerve to avoid him. He overtook a line of cars, went through red traffic lights, ignoring police sirens and flashing lights. He eventually overturned the car on a roundabout and crashed into a road sign. Despite this deliberate and horrendously dangerous episode of driving he was spared a custodial sentence and received a 12 month community penalty.

Compare this to the only reported case to date for the new offence of Causing Death by Careless Driving. What little authority there is illustrates only too well the difficulties presented to the Courts in striking the right balance.
R v Ann Larke (2009) EWCA Crim 870, involved a seventy-four year old female Defendant motorist who on 9th January 2009 pleaded guilty, in the Magistrates’ Court, to two offences of causing death by careless driving. The Magistrates determined that their sentencing powers were insufficient and committed the convicted Defendant to the Crown Court for sentence. On 5th February 2009 she was sentenced to two years imprisonment, concurrent on each count, and disqualified from driving. Larke appealed the sentence imposed.

In brief, the facts were that on 23rd August 2008, the two deceased, a twenty-nine year old motorcyclist, and his eleven year old stepdaughter were on a motorcycle which collided with Ms Larke’s Toyota Corolla motor vehicle. Ms Larke had parked her car in a lay-by and taken her dog for a walk. She returned to her car and endeavoured to perform a U-turn, out of the lay-by, pulling out with the intention of returning in the direction from which she had come. This was a manoeuvre which she had carried out on many previous occasions. It was not a manoeuvre that was prohibited at the time, but it was a manoeuvre which, if it was going to be carried out, required a very careful look in both directions before doing so. As she pulled out, she pulled into the path of a Honda Civic. The driver of the Honda managed to brake just in time and swerved to the left to avoid colliding with Ms Larke’s vehicle. However, the deceased, on the motorbike behind the Honda did not have the time or opportunity to avoid a collision. The motorcycle hit Ms Larke’s Toyota and in the impact, the rider and the eleven year old pillion passenger were thrown from the bike and both died at the scene.

Ms Larke had an unblemished driving record going back to 1959. She was described as a divorced woman, living on her own. Until she retired in 2005 she had worked with adults with learning disabilities. Since retiring she had engaged in voluntary work. She has three sons and five grandchildren. She described her act of pulling out from the lay-by as a terrible misjudgement. She was described as genuinely devastated by what she had done. She accepted responsibility and expressed great remorse for causing the collision which resulted in the death of two young people. Ms Larke had engaged in an act of omission in failing to concentrate properly and to ensure that the road was clear.

It was the Crown Court’s judgment that the carelessness displayed was of a high order approaching dangerous driving, where the standard of driving falls far below that of a reasonably competent driver. The Appeal Court considered that the Appellant had pleaded guilty at the earliest opportunity, had expressed considerable remorse and had an impeccable driving history. Ms Larke’s age was likely to make prison particularly harsh for her. It was acknowledged that there was considerable mitigation available to Ms Larke which should be balanced against the single aggravating feature of the case, namely the second death. The Court of Appeal concluded that the sentence imposed by the Judge, of two years following a plea of guilty, was in the circumstances manifestly excessive. It commented that they found no assistance in available authorities since there were none. The Appeal Court took the view that although the dreadful consequences of Ms Larke’s carelessness should be marked by a sentence of imprisonment in the particular circumstances of this case, a suspended sentence would have been appropriate. Accordingly the Appeal Court imposed a sentence of thirty-nine weeks imprisonment, suspended for a period of twelve months

In introducing more significant terms for “careless driving”, it appears it was the intention of Government to somehow
reinforce standards of good driving by penalising those guilty of bad driving. In doing so there is now a focus on the
consequences of someone’s poor driving rather than their degree of culpability. More significant penalties and longer terms of imprisonment are unlikely to reduce the number of deaths on the road. Harsher terms will not focus the mind of the average motorist who makes a momentary error with fatal consequence. Typically the average motorist makes a mistake and, however significant any court penalty, knowledge of that penalty would not have concentrated the drivers mind at that moment so as to avoid what amounts to human error.

Consideration of the new offence and the difficulties presented to the Courts will form the basis of future articles. However, in view of the increased willingness of the Courts to impose custody for increasingly lengthier terms and in light of the reported case referred to above and the ability of the Courts to get it “so wrong”, it has never been more important to ensure that an insured is provided with competent and effective representation. Aside from the obvious benefit to the insured of a successful defence , avoiding increasingly punitive measures, there are also potential dividends to the defence of any civil claim.

DISCLOSURE
Representation during the criminal investigation provides an opportunity to secure disclosure of key items of  evidence at the very earliest of stages so as to allow a more precise assessment of not only claims risk but also claims worth. A successful defence securing acquittal of your insured will also provide a potential windfall allowing us to recover not only the costs of representation but also any disbursements to include the recovery of the costs of a defence expert’s report if relied upon.

Experts’ reports are increasingly costly items of evidence but are often essential to a successful defence to both the criminal prosecution and the civil claim. Specialism in this increasingly complex area allows us to assist the insured and insurer to their mutual advantage. There is no better illustration of this than the criminal disclosure process that provides jewels of information which, if correctly exploited, can be used not only to the advantage of the insured Defendant during the criminal trial but also to the insurer. Disclosure is at the heart of the criminal process and correct and proper disclosure is essential to a fair trial. In what follows we provide a brief overview of the law of disclosure in an effort to illustrate the sort of information that, as representatives of your insured, we will have access to.

Once a Defendant is prosecuted the Crown is under an obligation to disclose not only the evidence upon which it will rely at trial, “its case”, but also any other material, pertaining to the case, upon which it does not intend to rely, the “unused material”. More often than not our focus is very much upon the “unused material”. The duty of disclosure provides that the prosecutor must disclose any material which might reasonably be considered capable of undermining the prosecution’s case or of assisting the case for the Defendant. Disclosure is governed by a framework of legislation which imposes a statutory duty upon the investigating police authority to record and retain all information and material gathered during any investigation. In compliance with the duty to retain material, investigators must record in a durable and retrievable form, whether in writing, video, audio tape, or computer disk, any material which may be relevant to the investigation. Such material will include negative information e.g. the number of people present at a particular place at a particular time who state they saw nothing unusual.

Information can reasonably be considered capable of undermining the prosecution case or assisting the defence if it includes anything that tends to show a fact inconsistent with elements of the prosecution case to include, information which casts doubt on the accuracy of any prosecution evidence; points to another person having committed the offence; might cast doubt on the reliability of a confession; might go to the reliability of a prosecution witness (including previous convictions); or may have a bearing on the admissibility of any prosecution evidence.

It has long been established that disclosable material is not only that material that may assist the accused or explain the accused’s actions and, support his case; provide material for cross-examination of prosecution witnesses; but also where it might support submissions that could lead to the exclusion of evidence, a stay of proceedings or a finding that any public authority had acted incompatibly with the accused’s rights under ECHR. (R v H (2004)). Previous convictions of all prosecution witnesses are disclosable (R v Masilou (2000): R v Underwood (2003)). For those matters before the Crown Court it is incumbent upon the defence to serve a Defence Case Statement, a written statement setting out the basis on which the case will be defended. Following service of the Defence Case Statement the disclosure officer must look again at the retained material and consider whether any issues now raised within the Defence Case Statement, which were not previously known, now cause the disclosure officer to believe that there are items within the retained material which may further assist the defence. Such items should be disclosed.

Although service of a Defence Case Statement, in the Magistrates’ Court, is not compulsory, we routinely file such a
statement in an effort to exploit the Crown’s disclosure obligations and to ensure that all retained material capable of
disclosure is disclosed. Material that may be relevant to an investigation is anything that appears to the investigating officer to have some bearing on any offence under investigation or any person being investigated.

In one of our current cases, we sought disclosure of the records of disciplinary procedure to which a police collision
investigator had been subject. The principal forensic collision investigator attended the scene with his colleague who was also a forensic collision investigator. Investigation of the collision was allocated initially to the principal investigator. Both officers examined the scene. The principal investigator conducted skid tests, using a device known as a Skidman, used to calculate a vehicle’s speed. Speed in the particular case was a significant issue. The Skidman produces results on two till rolls which produces data which assist in the calculation of speed. The device used was out of calibration, both till rolls had a heading in large font “I NEED CALIBRATING” in block capitals.

The principal investigator prepared his report, and included calculations within that report based upon the results from the Skidman device. He included the till roll results within his report. The completed report was internally verified by a member of the Forensic Collision Investigation Unit. By way of a written advice the Principal Investigator was told that he could not rely on the results from the original skid test and was directed to re attend the scene and undertake another skid test with a correctly calibrated device.

The principal investigator did not follow this advice and did not undertake a second test but rather cut off the tops of the two original till rolls, so as to disguise the fact that the test results subsequently submitted and relied upon for the purpose of the second report were obtained using a device out of calibration. The officers actions were subsequently discovered, his report discarded and a further independent report prepared.

Although the Crown initially refused to disclose the record of disciplinary proceedings, we successfully secured disclosure of its content . The officer in question subsequently resigned from the police force. Access to the sort of information identified within this brief article is of advantage to both insured and insurer alike. There will only be one opportunity to obtain such information. Once criminal proceedings are concluded much of the information that may otherwise have been available will not necessarily be disclosed by the police authority following an insurer request
and application.

A WORD OF WARNING
Recent legislation has made important amendments to the law relating to disclosure. Certain revisions have yet to be
implemented. Crucially at present there is no requirement that the defence reveal any material not used at trial. The legislation includes a proposal that the accused give notice to the Court and Prosecution of the name and address of any expert witness if the expert is instructed with a view to providing an expert report. Whilst not imposing a duty to disclose the report, there is no property in a witness. Therefore, if implemented, although the defence may decide not to rely upon an unsupportive expert’s report, the defence will be obliged to disclose details of that witness with the potential that the Crown may call the defence expert to trial during which the expert will be obliged to disclose the potentially damaging conclusions of his report.

For further information on any of the issues dealt with in this newsletter (other than where a contact name has been provided) please contact Tim Ingram (01908 298234) – tai@greenwoods-solicitors.com