Wednesday, 7 December 2016

The Government’s Proposals on Sentencing Bad Drivers. Plenty of Retribution but No Deterrence


On 4th December, in time for the Sunday papers, the Government issued a press release entitled ‘Killer Drivers to Face Life Sentences’.  The text below that headline proclaims that ‘Government acts to introduce life sentences for causing death by dangerous driving’.  In fact the Consultation Paper issued by the Ministry of Justice on the same day invites views on proposals which include increasing the current maximum sentence of 14 years imprisonment for causing death by dangerous driving to a maximum of life imprisonment.  It seeks views on the same increase in the maximum sentence in relation to causing death by careless driving whilst under the influence of drink or drugs.  The latter offence incidentally surely already amounts to causing death by dangerous driving but is designed to circumvent a typical jury’s peculiar reluctance, in this area, to convict.
The somewhat hyperbolic press release presumably looks ahead to the Government acting once it gets the answers it expects to its consultation exercise relating to life imprisonment for these very worst offenders.  The proposals have been welcomed by many victims’ groups who have been understandably dismayed at the operation of the criminal justice system in the worst cases.  This is though all about retribution.  Retribution is not a bad concept in itself and to the extent that the proposals go some way to lessen the anger and frustration understandably experienced by many bereaved families they are to be welcomed. 
However, nobody is going to wake up the morning after these proposed changes are implemented and resolve that they will drive better because the maximum term of imprisonment is no longer limited to 14 years.  These proposals will do nothing to reduce levels of road danger imposed by bad drivers upon others and particularly upon vulnerable road users. They are an easy fix for a Government which wishes to appear tough without doing anything to stop bad driving in its tracks before it causes tragedy.  Any solace that they may provide for bereaved families are bound to be in large part offset by the constraints upon Judges which mean that sentences of life imprisonment are never in practice going to be handed out to those who kill unintentionally.   The best that can be said is that this will align the penalties with manslaughter (which of course causing death by dangerous driving already is, though the separate offence was required because juries cannot be relied upon to convict of manslaughter even in cases where the evidence of dangerous driving leading to death is very strong).  Judges are likely to be constrained to pass sentences that will appear soft compared to the maximum penalty and further angst may arise from that.
One welcome proposal is the creation of a new offence of causing serious injury through careless driving.  That this new offence is required is demonstrated by the tragic case of May Bowers, the journalist who suffered catastrophic brain injuries but lived following being run down by an HGV.  The driver was acquitted of causing serious injury by dangerous driving.  Instead he was convicted of careless driving, a minor offence with no draconian sentencing option.  Having an alternative option of causing serious injury by careless driving will fill a gap and enable a Judge where the standard of driving has been close to dangerous to sentence appropriately.  However the proposed 2 or 3 year maximum penalty is one I would argue against.  This should be a summary offence with a maximum imprisonment of 6 months.  It would then only get to a jury when associated with a charge of dangerous driving.  Were it a more serious triable either way offence then large quantities of cases currently tried in the Magistrates’ Courts would be sent, at the election of the Defendant, to a Crown Court with a hope of attracting the empathy of a jury.  Some police forces and CPS regions have a policy of only prosecuting careless driving where there has been injury so the scale of this proposed change should not be underestimated.  In the interests of deterrence I suggest that we should be willing to sacrifice an element of retribution.  It is highly doubtful that many, if any, drivers who cause serious injury by careless driving will be imprisoned for terms exceeding 6 months (the power available to Magistrates).  Why then give them the option of a jury trial?  Indeed I have previously argued we should go the opposite way and downgrade dangerous driving which causes no injury to a summary offence so that the culprits are more speedily and reliably dealt with and taken off the roads.
A further proposal is minimum driving bans.  This is clearly required but not only in the worst cases.  We have far too many potentially lethal drivers allowed back onto the roads notwithstanding the existing legislation.  This is scandalous and the Consultation Paper ought to be doing away with ‘special reasons’ and ‘exceptional hardship’ pleas to avoid an otherwise mandatory disqualification.  If you can afford it you can get a specialist lawyer to press all the right buttons to ensure you get to continue to drive.  This is an industry that must be snuffed out on the basis that an offender should have thought about the consequences of losing his licence before committing the offence.
Overall retribution is fine, though the retribution may be more illusory, than real.  However this is a long promised review of driving offences and sentencing more generally.  It is a great pity there is nothing there that might provide real deterrence.  Real deterrence involves increasing the chance of being caught and punished for the poor driving behaviour that is far too widespread before, often as an outcome of pure chance, it causes devastation.

We need a real review of what is being done at the opposite end of the scale.  Increasing penalties for use of mobile devices (a separate Government proposal) is a useful start but a dramatically increased rate of detection and the unavailability of special pleading are essential concomitants.  The Government should find time and resources for real support of the initiatives of the police in the West Midlands and in Camden which focus on poor and intimidatory driving in the vicinity of the most vulnerable.  The Consultation paper observes that the numbers of those killed on the roads has been declining since the 1960s.  It does not include the sad fact that this is not true of vulnerable road users.  Much further positive action is required to address this.

8 comments:

  1. The unspoken subtext of your call for enhanced deterrence is the need for more traffic officers, or technological solutions (e.g. having a proper, timely and welcoming procedure for accepting filmed evidence from members of the public) to identify and prosecute offenders.

    Also, small piece of subediting - it's Mary Bowers, not May.

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  2. Excellent thought provoking piece. The vast majority of cases of bad driving threatening other road users are, as you say, at the opposite end of the scale which the Government is referring to. As such these extreme cases act as a lightning conductor distracting attention away from these "everyday" types of bad driving which could be deterred with sensible use of driving bans (as opposed to going on about increasing multiple year custodial sentences by a few more years).

    Dr Robert Davis, Chair RDRF

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  3. I recall that light bulb moment when the WM Police mentioned their use of Section 59 (effectively a 12 month ASBO-for-Drivers) I just wonder if the equivalent of being bound over to keep the peace might extend beyond the period of imprisonment for the original offence such that any future offending might gets a more direct and immediate penalty, rather than being considered as a new case every time?

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  4. Every car driver believes that killing someone will never happen to them. Therefore the deterrence value of a potential life sentence is approximately zero.

    However, as suggested, a maximum penalty of six months is an excellent idea if it is regularly enforced and if a sentence of two months is routinely handed out to first offenders.

    I rather like a two month prison sentence. The short duration means that it is cheap for the government. Yet very few employers will give a two-month leave of absence for the purpose of going to prison. Similarly, it is difficult to explain a two-month disappearance to friends, neighbours and relatives. So two months has an extremely high deterrence value if car drivers know they have an extremely high probability of getting that sentence for dangerous behaviour that does not actually kill or injure anyone.

    Almost every day I see car drivers behaving in a way that poses a threat of death or injury to the public. I presume that police officers also see the same behaviour. We need to empower police to lay appropriate charges to effectively deter that behaviour BEFORE it kills or injures innocent victims.

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  5. Martin

    Thanks for a thought-provoking article, as ever.

    Could I respectfully suggest that the key aim of the framework of road traffic offences and sentencing should be neither retribution, nor deterrence, but public protection?

    Cycling UK (formerly CTC) has long argued that, for most (by no means all) offences, the legal system needs to place far greater reliance on driving bans, rather than prison sentences.

    We argue this on the basis that driving offences are uniquely difficult for the legal system to handle. That is because driving is the one activity routinely undertaken by broadly law-abiding people which can result in the death of a fellow human being. That is why (as you note) there is such reluctance among jurors, and everyone else in the legal system, to prosecute and/or convict for really serious offences. Jurors will simply think: "But that's an offence that I could easily have committed myself. I wouldn't want to see a driver like me spending a long time in prison for a momentary lapse of attention".

    I too would not want to see people facing long prison sentences for offences which are genuinely result from nothing more than a momentary lapse of attention. I would however want to see them face a reasonably long driving ban. People who lack the ability to maintain the concentration needed to drive safely need to be taken off the roads: not to be vindictive, but to protect the public. That's not fundamentally different from preventing people from driving with defective eyesight and other medical conditions.

    Clearly there are also people who drive in a more obviously reckless manner. Now, the definitions of 'careless' and 'dangerous' driving are supposed to DIS-regard the state of mind of the driver. So in theory, if a driver causes 'danger' that would have been obviously foreseeable by a careful and competent driver, judges or jurors should (but often don't) convict for a 'dangerous' driving offence. Still, once such a conviction has been reached, the judge COULD take account of the driver's apparent state of mind in determining sentence. I'd argue that, if they think the driving was "careless" in the common parlance sense of the word, they should normally impose a driving ban - with minimum-length bans set in law, and with sentencing guidance spelling out how the length of the ban should reflect the gravity of the offence. Life-time bans should be a lot more common. There are typically only about 4 of these imposed per year. That's absurd.

    By contrast, prison should be reserved for those whose driving was more obviously "reckless", and/or those with previous driving convictions, and particularly those who had breached previous driving bans.

    That way, the use of driving bans and prison alike could both be justified primarily on the basis of public protection.

    This framework would also provide a reasonable measure of deterrence and retribution. Long driving bans have serious consequences for those who face them. I'd therefore argue that they are a highly appropriate sanction for those who have caused obviously foreseeable danger, but who are not obviously such "dangerous" people that they need to be locked up for public protection. And I suspect that, if juries knew that this was how their fellow drivers were likely to be treated in that type of case, they'd be more willing to convict for a "dangerous" driving offence in the first place. By contrast, prison would be the primary sentencing option for those thought likely to present a continuing danger to the public if not locked up.

    Roger Geffen
    Policy Director
    Cycling UK

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  6. Find your blog refreshing and robust. Out of curiosity are you always right? And if not, have you ever admitted you are wrong?

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    Replies
    1. Excellent! Personally I think that anyone that drives a vehicle should realise that they are effectively controlling a weapon - since more people are killed by vehicles than guns in the UK & Europe. With that realisation and a proportionate punishment then we may see an improvement in safety for other highway users and pedestrians

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