It is time to rethink
a Defendant’s right to a jury in driving cases
Trial by a jury of one’s peers when accused of serious crime
is a bed rock of the English legal system.
Nonetheless in general you can incur a punishment of up to six months’ imprisonment
following conviction by the Magistrates’ Court.
In the context of road traffic offences only the most egregious of
offenders faces anything like six months in jail. Most Defendants charged with a traffic
offence like dangerous driving or causing death by careless driving which are
triable ‘either way’ (that is, by magistrates or Judge and jury) will be
advised, correctly, that they stand a much better chance of acquittal before a
jury. This is a massively expensive and
rather slow way of determining whether or not a Defendant should lose his
licence and face a non-custodial penalty.
In addition jury acquittals in the teeth of strong evidence particularly
where the harm has been to a vulnerable cyclist or pedestrian do nothing to
bolster confidence in the criminal justice system, let alone to improve actual
and perceived safety on our roads.
In recent weeks juries have acquitted a lorry driver who ran
down an elderly pedestrian couple crossing a road in a shopping centre car park
(death by dangerous driving), a lorry driver who turned left at Ludgate Circus without
ensuring there was no cyclist on his nearside (death by careless driving), a
car driver who passed a group of cyclists colliding with one and then driving
into him when he sought to remonstrate (dangerous driving and assault). Often the juries acquit in under an hour in
such cases heightening disquiet as to the result.
Juries will of course sometimes convict particularly where a
vehicle occupant is plainly endangered. In
a very recent case a jury convicted Melissa Berry of dangerous driving. She had terrified her passengers with a
sustained period of very high speed (up to 120 mph) driving in the lanes of
Devon and hit a wall spinning her car onto its roof. She
was sentenced to 12 weeks’ imprisonment which was suspended and so was very
comfortably indeed within the powers of a Magistrates’ Court. There must be a serious question over whether
she would have persisted with a ‘Non Guilty’ plea had she not had a jury trial.
The position has really not improved, arguably it has
worsened, since the way in which the justice system dealt with the drivers who
killed Rob Jefferies and destroyed the life of Mary Bowers caused such
legitimate concerns to British Cycling and The Times Newspaper
respectively. Although some driving
offence penalties have been increased, the vanishingly small prospect of
conviction negates any real deterrent effect.
The problems with jury trial for motoring offences are as
1. 1. Motoring offences are far more likely than other
serious crimes to invoke empathy and compassion from a jury. “There but for the grace of God go I” is not
a thought likely to cross many jurors’ minds in cases of murder, rape,
terrorism or knife crime. The law
excludes people who have served significant prison sentences in the past 10
years from sitting on a jury. It does
not exclude the significant proportion of the population who have been (fairly
or unfairly in their view) subject to minor penalties for road traffic
infringements. In addition we live in a
motor centric society where the overwhelming majority of jurors can be expected
to be drivers, many of whom will have been subject to lapses of concentration
or worse whilst operating a motor vehicle.
Far fewer will have similar levels of empathy to a non-motoring (and
particularly a cycling) victim. Feelings
of empathy with and compassion for an accused may confound justice in a hidden
way that is far less likely where, as in a Magistrates’ Court, reasons for a
decision are required.
2. 2. Juries have no influence over, and perhaps
little understanding of, the sentence likely to be imposed if they return a
guilty verdict. They may be aware that
on conviction the maximum sentence for dangerous driving is 2 years and feel
that imprisonment would be disproportionate to the offence. A disinclination to expose a person with whom
they may have empathy to possible imprisonment may influence their verdict.
3. 3. The resources devoted to a jury trial for a
motorist charged with dangerous driving are disproportionate. A jury trial is expensive. A trial that would take one day before
Magistrates is likely to take three days before a jury. This is not a wise allocation of limited
4. 4. Delays in the Crown Court are unavoidable
particularly where, as is overwhelmingly likely in driving cases, the Defendant
is not remanded in custody. Whatever the
aspirations of the Criminal Procedure Rules it typically takes 6 months from
the initial hearing in a Crown Court to a trial. There is some research evidence that
certainty and speed of punishment are more important factors in deterring crime
than the severity of punishment.
5. 5. There are now separate offences for causing
death by dangerous driving and for causing serious injury by dangerous
driving. A dangerous driving charge simpliciter will therefore only arise
where there has been no death or serious injury. Whatever the sentencing guidelines say,
Judges are most unlikely to impose sentences beyond the powers of the Magistrates’
Court, following conviction on a dangerous driving charge where no death or
serious injury has resulted. There are
strong arguments that the best form of punishment in such cases is a period of
disqualification in respect of which the powers of the Magistrates and of the
Crown Court are the same.
6. 6. There is a very considerable temptation on the
part of prosecutors to undercharge cases, or even not to charge, in order to
avoid a trial by jury. This is
undesirable. The offences of careless or
inconsiderate driving (for which a Defendant cannot elect jury trial) are
relatively minor offences designed to deal with momentary inattention, queue
barging, middle lane hogging, splashing pedestrians and the like. Dangerous driving that fits the statutory
definition of driving far below the careful standard and in a manner in which
danger should be obvious, should be charged as such. According to the Crown Prosecution Service
typical examples from court cases of dangerous driving include going too fast,
driving aggressively, ignoring road signs, overtaking dangerously or being
avoidably and dangerously distracted. The
CPS have just dropped a dangerous driving charge against a pop star accepting a
guilty plea to drink driving instead. The
perceived difficulties in securing convictions in motoring offences have a
knock on effect whereby the Police, who have the ability to decide on no
further action in any case and who will perhaps even overestimate these
difficulties, will often fail to take any action when they should. The Transport Select Committee has, in its
recent report on Road Traffic Law Enforcement, called on the Home Office to
commission research into how complaints of collisions or near misses involving
cyclists are handled by the Police and how this impacts upon the proportion of
people who believe it to be too dangerous to cycle.
It is suggested that there is a
clear case for removing the right to a jury trial from those charged with
dangerous driving. This could be at the discretion of the Magistrates as proposed by Jack Straw in respect of triable either way offences in 2000. It should be noted that in Scotland the mode of trial in either way offences is already not (solely) up to the Defendant as it is in England.
Many of the same
arguments could apply also to causing death by careless driving where again the
likely punishment if convicted falls within the competence of a Magistrates
Court. Causing serious injury by
dangerous driving and causing death by dangerous driving are much more serious
offences although it should be borne in mind that the most serious of these
could, and perhaps should, be charged as cases of assault occasioning grievous
bodily harm and manslaughter respectively.
If reforming dangerous driving proves to be successful in terms of
better deterring the crime then extensions to other driving offences could well
be considered. It would, of course, be
essential to take full account of the views of victims and their
representatives before extending any reform to the offences which involve
causing death or serious injury.
We must certainly do
something. A whole generation of
citizens is being brought up to be driven everywhere, particularly to school,
on the grounds that active travel is perceived by their parents to be too
dangerous. This attitude then continues
into adult life and into the jury box. It
is a small minority of bad drivers responsible for this perception and they
must be tackled.
Martin Porter QC is a leading personal injury/clinical negligence
lawyer practising at 2 Temple gardens, London.