Last night I was invited by Roadpeace to the inaugural meeting of the All Party Parliamentary Group for Justice on our Roads chaired by Baroness (Jenny) Jones. With the Queen's Speech being debated elsewhere, there were perhaps rival demands on many parliamentarians but a select few MPs and Lords (spiritual and temporal) attended to set up the group and to hear the moving evidence of 3 bereaved families whose husband, son and daughter (all I think pedestrians) had been killed by bad motoring and had all been dismayed at the sentences imposed on those responsible for the collisions which took their loved ones away.
Next week, in my capacity as an 'ambassador' for CTC I will be attending a debate on the same topic - sentencing. Sentencing comes at the very end of a process where the police, prosecution, jury (if applicable) and whole machinery of criminal justice has combined effectively to ensure the guilty party is convicted of at least some offence.
One concern raised both last night and by CTC is over the length of disqualifications from driving that the Courts are handing down. It is now nearly 5 years since I commented by reference to the Court of Appeal cases of Rice and of Hall that you are likely to get the same period of disqualification from driving if you killed somebody with your bicycle as with your car. Very often minimum periods of disqualification as prescribed by Parliament were given on the basis that the offender would otherwise have difficulty working and rehabilitating.
The sentencing guidelines, set in 2008, do not give guidance as to the length of disqualification so this is very much down to the Court of Appeal. It is striking how frequently the Court of Appeal reduces the periods of disqualification set by Judges.
In a pre-guidelines case, R v Cully (2005) which is still referred to and followed by the Court of Appeal, the Court said this when reducing the Defendant's disqualification from 5 years to 2:
“We consider that the purpose of a disqualification from driving is so far as possible to protect the public. Often it may be that drivers come before the sentencing court with an appalling driving record. In such cases an extended period of disqualification may be appropriate since the offence indicates the risk to the public in the individual continuing to drive. Where circumstances do not suggest that there is any such risk, a period of disqualification, though inevitable as it is in a case of dangerous driving, can, and should in our view, be kept to the minimum.”
There seems, to me, to be a rather unfortunate assumption that, appalling driving records aside, there is no real risk to the public and Judges should keep disqualifications to the statutory minimum.
In R v Crew (2010) the Court of Appeal dealt with a man who had flown over from San Francisco, got into a hire car and fallen asleep killing a motorist travelling in the opposite direction. He was convicted of causing death by careless driving. The Court of Appeal said this when acknowledging that the driving bordered on dangerous but reducing the disqualification from 5 years to 2 :
"We are however persuaded that the period of disqualification is manifestly excessive. The Definitive Guideline provides no guidance as to the length of disqualification and so it is important to bear in mind, first, the risk represented by the offender is reflected by the level of culpability which attaches to his driving, and secondly, the main purpose of disqualification is forward looking and preventive rather than backward looking. In that regard the applicant's previous unblemished driving record is clearly an important factor as is the absence of aggravating factors such as speed.
“As to the extended driving test, the court's powers to make such a direction are discretionary. But having regard to the extent of the applicant's culpability and to the fact that this offence bordered on an offence of causing death by dangerous driving, we are of the view that such a direction was entirely appropriate.
“We give leave to appeal the order of disqualification. We treat the hearing of the application as the hearing of the appeal. We quash the order of disqualification of 5 years and we substitute for it an order of disqualification for 2 years."
The approaches in R v Cully and in R v Crew have been followed many times since. Essentially if you have not been caught driving badly on other occasions there is an assumption that whatever bad driving brought you before the Court was a one-off and that you do not pose a risk to the public. There is a touching, but wholly misguided, faith that motorists are caught and convicted whenever they endanger anyone and not simply once they have killed or, at best, injured. It does not take much time cycling around our cities to appreciate this assumption is completely unwarranted. The lorry driver who never faced substantive justice after killing Eilidh Cairns went on to kill again and I find it hard to accept that those who have killed once (or have driven in such a way that it is is only a matter of good chance they did not kill) are not more likely to do so again.
A few more recent examples clearly indicate that the Court of Appeal is just not willing to back the few Judges who hand down sentences of disqualification significantly in excess of the minimum.
In R v Farwell (2013) it seems not even the prosecution felt like defending the Judge's imposition of a 2 year ban following the Defendant's conviction of causing death by careless driving:
“In R v Cully the court identified the purpose of disqualification as being the protection of the public. Extended periods of disqualification could be justified where there was an identified risk to the public. In the Crown's response to this appeal it is stated that given the appellant's previous good driving record, a two year disqualification could only be justified if the facts of the offence disclosed a risk to the public from the appellant being permitted to drive. In our view, no such facts are disclosed. Further, an inability to drive directly impacts upon the ability of the appellant to carry out his work. In the particular circumstances of this case any period of disqualification will have a punitive effect. Accordingly, we quash the period of 24 months' disqualification and substitute for it a period of 12 months' disqualification.”
Similarly R v Bishop (2013) reducing the disqualification following conviction of causing death by careless driving from 7 years to 4:
"In view of the appellant's youth and the need for rehabilitation after release, we are of the view that the period of disqualification was too long in the circumstances; as was said by this court I R v Crew [2010] 2 Cr App R (S) 23, disqualification addresses two considerations: punishment reflecting culpability and the need to look to the period after release.
"We therefore propose to vary the sentence to one of disqualification for a period of 4 years.“
Note that it appears this was a case where it could not be said or at least was not said, even by the Court of Appeal, that the Defendant posed no risk to the public.
And finally in a case not involving death but nonetheless one of the worst pieces of dangerous driving the Court of Appeal had seen, R v Charvill (2013):
“ [Counsel] has referred us to a number of authorities on the appropriate length of disqualification in such cases, including R v Cully [2005] EWCA Crim 3483, R v Cook [2010] EWCA Crim 121 and R v O'Connor [2012] EWCA 785, which illustrate two principles applicable to such disqualification: first, that the purpose of the disqualification is so far as possible to protect the public against the risk posed by the offender continuing to drive; and secondly, that the disqualification should not normally be imposed for such a period as might have the effect of impeding rehabilitation after serving a sentence of imprisonment.In our judgment, this was one of the worst pieces of driving this court has seen . The Recorder was entitled to pass a severe sentence to deter others from driving in this way. In our judgment, the sentence of 9 months' detention was neither wrong in principle nor manifestly excessive.However, as the applicant had no history of driving offences and appeared usually to have been a careful and competent driver, we are prepared to treat the driving on this occasion as a piece of impulsive stupidity and not that of someone who represents a continuing risk to the public. We also accept that it would assist him in getting or retaining employment on his release to be able to drive.”
The CTC and Roadpeace are right to call for Sentencing Guidelines to be reviewed. This is apparently awaiting possible changes to substantive law being considered by the Government. In relation to disqualification, driving needs to be seen as a privilege not a right. Those who cannot or will not drive carefully will have to get to work on the bus, train or bicycle like the thousands of other people who through an uninvited medical condition or through choice do not drive.
One concern raised last night was over drivers who simply ignore bans. For these miscreants the law has to come down hard just as it does for conspiracy to pervert the course of justice or taking part in a riot. Imprisonment has to be the norm for those who drive whilst disqualified with release perhaps conditional on wearing tracking or other devices to make it much harder for them to flout the law.
