Causing Death by Careless Driving - Some recent sentencing cases

The past three months have seen a run of cases in which motorists responsible for causing the death of cyclists by careless driving have come before the Courts for sentence.  Here is a summary of the 5 cases that have come to my attention and the results.

Offender	Victim	Date of sentence	Plea	Prison	Disq’n	Community Order
Cahill	Rob Jefferies	12.01.12	Guilty	No	18 months	200 hours
Jenkinson	Alastair Pratt	16.03.12	Guilty	No	18 months	150 hours
Luker	Tomas Barrett	26.03.12	Not Guilty	No	12 months	100 hours
Roberts	Thomas Stone	30.03.12	Guilty	12 months	36 months
Mylrea	Pat Kenny	02.04.12	Not guilty	No	12 months	150 hours

One of these cases stands out as attracting a strikingly different penalty from the others.  Nadia Roberts, aged 21, had no driver’s licence and no insurance when she had an informal driving lesson from her boyfriend, Mark Headley, aged 37, in an Essex car park where Thomas Stone, age 13, was riding his bicycle with some friends.  Roberts apparently confused the accelerator and brake pedals and collided with Thomas at walking pace.  So far as the driving was concerned I would suggest that it was clearly less reprehensible than any of that involved in the other 4 cases.  What really sets this case apart was that it involved ‘real’ criminality, namely driving with no licence and with no insurance (yes, required not only on the highway but also in a car park to which the public have access, and ignorance of the law is of course no excuse).  The sentence related not merely to causing death by careless driving, but also causing death by driving whilst uninsured and whilst unlicensed.  Headley, the boyfriend was also imprisoned (8 months) and disqualified for aiding and abetting causing death whilst driving with no licence and no insurance.  The investigating police officer is reported to have commented,

. 
“Our sympathies remain with the family of Thomas Stone,  we hope that the sentences imposed by His Honour Judge King act as a deterrent to other drivers who think they are above the law by driving without a licence or insurance.”

The other cases all involved drivers who were licensed and insured but all claimed not to have seen the cyclist prior to the collision.  Cahill and Luker both used the ‘sun in my eyes’ defence which (as previously mentioned in my blog) worked so successfully for the killer of Anthony Maynard.  On the positive side the days when this kind of excuse would result in no prosecution are hopefully now behind us.  Cahill at least had the good sense (or good advice) to appreciate that he should have modified his driving so as not to drive blind into a space occupied by Mr Jefferies, and therefore pleaded guilty.  Luker, who killed Tomas Barrett on the A40 outside the Northolt Airforce base where the cyclist worked, defended the standard of his driving at a trial before a jury.  Inevitably the jury convicted.  Cahill’s sentence has attracted some understandable criticism from British Cycling, for whom Rob Jefferies was a valued volunteer.  Luker’s sentence, however, was even more lenient notwithstanding the fact that Luker had refused to acknowledge his guilt.

This blinding by the sun effect is something that puzzles me.  I have substantial driving, as well as cycling experience, but I have never been in a situation where I cannot see what I am driving into.  It is not a rare event, even in this country, for the sun to appear, and at predictable times of the day to appear low, in the sky.  It is an even less infrequent occurrence in many countries yet most motorists appear to avoid crashing into things at sunrise and sunset.  I was contemplating this when time-trialling into the setting sun last week.  Whenever I looked anxiously behind to check there was some sign that an approaching motorist had seen me I observed a long dark shadow behind me.  Luker’s account to the jury was reportedly that he had never seen the sun so low and had tried all sorts of measures involving his sun visor and caps to no avail.

Both Luker and Mylrea, who killed the veteran long distance cyclist Pat Kenny, implied that they had not expected to see a cyclist on the A40 and the A38 respectively.  Both roads have cycle tracks alongside them (though these cycle tracks have all the disadvantages that most such facilities have including not going in a direct ‘give way’ free route to the cyclist’s destination).  Luker had pulled into the nearside lane (of three) because cars behind had flashed him; Mylrea had pulled onto the slip road to exit the A38.  As already noted, Luker had the sun in his eyes but Mylrea lacked even such a fragile explanation for failing to see Pat Kenny.  That, however, did not deter him from contesting the charge.  The prosecution needed to emphasize in both cases that the cyclist victims were doing nothing wrong in cycling where they were.  Both motorists, once convicted, were given the very minimum sentence available to the Court.

Obviously Judges are not free to pass any sentence they wish.  They are constrained firstly by Parliament and second by sentencing guidelines whether set down by the appellate courts in similar cases or by the Sentencing Council.   The obligation to take account of the Sentencing Council’s guidelines is itself imposed by Parliament in the Criminal Justice Act.  The Judge also has no power over the charge and all the above cases came before the Courts as causing death by careless driving (I will not elongate this post by discussing whether some of them could or should have been charged as dangerous).

Parliament has said that the maximum sentence for causing death by careless driving is 5 year’s imprisonment and the minimum is 12 month’s disqualification from driving.  The Sentencing Council Guidelines split the circumstances three ways into

Nature of offence	Starting Point	Sentencing range
Careless or inconsiderate driving falling not far short of dangerous driving	15 months custody	36 weeks–3 years custody
Other cases of careless or inconsiderate driving	36 weeks custody	Community order (HIGH)–2 years custody
Careless or inconsiderate driving arising from momentary inattention with no aggravating factors	Community order (MEDIUM)	Community order (LOW)–Community

As the recent cases above highlight there is a real tendency on the part of the Courts to slot the careless driving into ‘momentary inattention with no aggravating factors’ in preference to ‘falling not far short of dangerous’.  The words of the Court of Appeal in R v Hall, the cyclist who knocked over and killed a pedestrian on the pavement, that “It was the sort of cycling which, in our judgment, created at least some risk of danger.  It was, therefore, not far short of dangerous cycling” are never applied to motorists who do not see cyclists in the roadspace ahead of them which they are about to occupy.  Instead it is assumed that they are driving attentively (which must surely, on all roads that cyclists are entitled to use, include scanning ahead for cyclists) until the moment when momentary inattention and the presence of a cyclist combine with fatal consequences.  The Guidelines point out that,

“Cyclists, motorbike riders, horse riders, pedestrians and those working in the road are vulnerable road users and a driver is expected to take extra care when driving near them.”

This extra care must, if it is to mean anything substantial, include extra care to notice whether the offender is driving near a vulnerable user or not.

The Guidelines indicate the sentences to be applied following a trial (that is to say they do not include the discount for a guilty plea).  The effective maximum under the Guidelines is therefore substantially less than the maximum that Parliament has set down.  The real problem, however, is not that motorists are getting three year’s imprisonment rather than five; it is that they are almost invariably categorised as third category (momentary inattention) cases. 

My suggestion is that it would be appropriate to alter these guidelines so as to make clear that failing to see a vulnerable road user through no fault of that vulnerable road user is not something that should be placed into category 3.  Category 3 should be reserved for those cases which do not in fact lead to a charge (but should) such as failing to respond with reasonable care to an emergency created by somebody else (whether the deceased or another).

It may help to explain why the sentences in all four of the cases, which resulted from the death of a cyclist using the roads, are unacceptable to almost all cyclists.  It is not that cyclists are vindictive or vengeful, many I speak to are not and some are not in favour of prison sentences for any but the worst cases.  It is because there must be some serious deterrent to bad driving.  Drivers are virtually entirely insulated from the risks around them by a substantial metal cage with increasingly effective safety aids.  It is not hard to exercise appropriate care around cyclists.  My experience and conviction is that every driver who cycles has no difficulty whatever with this.  All these deaths, and many other similar ones, were easily avoidable.  We need to ensure that cycling is not regarded as a risky activity in which we have to accept the chances of these little lapses and accidents, just as a mountaineer or ice-climber must accept some risks inherent in a sport.  This is not an attitude that will encourage cyclists onto our roads.  Motorists must have brought home to them that the consequences of failing to drive carefully around a vulnerable road user could be very severe for them, as well as to the person they endanger.  They should at least have the privilege of a driver’s licence withdrawn for a serious amount of time.  Mylrea is not even required to take a retest before regaining his licence in 12 month’s time (the minimum period that Parliament permits).

British Cycling is right to launch a campaign.  They have written to the Lord Chief Justice and the Sentencing Council.  This is an important area that The Times campaign has overlooked.