08 October 2020
A public consultation launched in 2016, which received over 9,000 responses, has prompted the UK Government to commit to the creation of a new offence of ‘causing serious injury by careless driving’ and to increase the maximum penalty for causing death by driving whilst under the influence of drink/drugs from 14 years to life imprisonment.
Justice Secretary Robert Buckland said last week that "This government has been clear that punishments must fit the crime, but too often families tell us this isn't the case with killer drivers.
"So, today I am announcing that we will bring forward legislation early next year to introduce life sentences for dangerous drivers who kill on our roads, and ensure they feel the full force of the law."
The consultation sought views on driving offences which cause death and serious injury and the penalties available to the Court on conviction. It received an overwhelming response following concerns expressed by the public, victims, focus groups and parliamentarians and has now resulted in a White Paper produced within the last few weeks.
‘Causing serious injury by careless driving’
Since 2012, the Crown Office and Procurator Fiscal’s Service have had at their disposal the ability to prosecute individuals for causing serious injury by dangerous driving. Conviction in such cases follows where the objective test is satisfied that the standard of the accused’s driving falls far below that expected of a competent and careful driver, and where the injuries sustained as a consequence of that driving are severe. Conviction carries with it a minimum obligatory 2-year disqualification with a resit requirement and a maximum penalty of 5 years’ imprisonment.
In such cases where the standard of driving is not found to fall far below, but merely below that expected of a competent and careful driver, a conviction for careless driving will follow – regardless of the consequences of that driving. This presents a clear gap in the law which has not gone unnoticed by practitioners, or indeed the consultation respondents.
The majority of responses were in favour of the consultation proposal that a new offence of ‘causing serious injury by careless driving’ be put on the statute books. This would allow the gap to be closed and mirror the provisions for causing death by careless or dangerous driving. The consultation proposed a maximum sentence for this new offence of 3 years’ imprisonment, which also found favour with the vast majority of respondents.
If implemented, this marks a significant departure from current sentencing practice, where Scottish Courts may only dispose of careless driving convictions by way of financial penalty.
As with other offences against the person such as assault, whether an injury is serious will be assessed on a case by case basis and so it will be interesting to note how the Crown make use of these new provisions once in force. It is perhaps concerning that in cases where low culpability careless driving occurs, such as through a momentary lapse of concentration, but where serious injury arises; that accused will face a significantly increased range of sentences, including imprisonment.
Maximum penalties for causing death whilst driving
Currently, conviction for causing death by dangerous driving carries with it a maximum penalty of 14 years’ imprisonment whilst conviction for causing death by careless driving bears a maximum penalty of 5 years’ imprisonment; together with provisions for disqualification.
The majority of respondents to the consultation who thought that the existing maximum penalty for causing death by dangerous driving was insufficient, agreed that it should be increased to life imprisonment. Consultation responses also indicated that the maximum penalty for causing death by careless driving whilst under the influence of drink or drugs should reflect the same culpability as causing death by dangerous driving and, therefore, the maximum penalty for both offences should be increased. In light of the responses, the Government intends to propose that the maximum penalty for both causing death by driving offences committed whilst under the influence of drink or drugs is increased to life imprisonment.
In practical terms, this means that akin to murder, a ‘punishment part’ of the life sentence – the minimum period of imprisonment which must be served before parole is sought – will be set by the Court and the decision as to when an offender is released on life licence would rest with the Parole Board for Scotland. Again, this also marks a significant departure from current sentencing practices, and it is anticipated that this may be accompanied by guidance from the England & Wales Sentencing Council and/or the Scottish Sentencing Council.
BTO’s regulatory and criminal defence team will continue to monitor the parliamentary progress of these legislative proposals and provide further updates as the proposals move through the legislative process.
For more information, please contact David Cairns, Associate & Solicitor Advocate on 0141 2218012 or by email at firstname.lastname@example.org.