I’ve blogged before about the new offence of Causing Death by Careless, or Inconsiderate — as opposed to dangerous — Driving, which will carry a penalty of up to five years imprisonment. Today I was involved in a case — an appeal against sentence — which perhaps highlights the problems involved in this offence, where the harm done is extremely grave but the degree of culpability is very minor.
The appellant was a middle-aged man who’d had a clean driving licence for over thirty years. He was driving with his wife one Sunday afternoon when he turned left off a roundabout onto a dual carriageway and went into the back of a woman on a cycle, whom he just didn’t see — or didn’t realise he’d seen — until he was almost on top of her. She went over the top of his car and suffered devastating injuries, including a broken back which has left her permanently paralysed from the waist down. It’s only by good fortune and the surgeons’ skill that she wasn’t killed.
He’s at a loss to explain how it happened. The most likely reconstruction anyone can come up with is that he was momentarily blinded by the sun in his eyes as he came off the roundabout; a reasonable, prudent and competent driver should have anticipated that the position of the sun as he came off the roundabout at that time of day would likely mean it was shining straight in his face, which makes it careless driving.
There were no aggravating features other than the terrible injuries the woman sustained and just about every mitigating one — immediate guilty plea, genuine remorse and so on. He was appealing against his one year disqualification on the grounds of exceptional hardship; it got reduced to 9 months, not particularly because of the hardship but because that was more in line with existing Court of Appeal guideline cases (he’d received a hefty fine, too, but he wasn’t contesting that).
Had the new law been in force and she’d died, he’d certainly have been at risk of custodial sentence, though the Sentencing Guidelines Council’s Consultation paper on causing death by driving offences (pdf) suggests a community penalty would be more likely. There they write (para 61)
A key issue for consideration in relation to this offence is where the custody threshold should lie. Without wishing to minimise the loss of life resulting from the offence, a sentencer may need to take account of the fact that an offender has an exemplary driving record and is guilty of no more than a momentary lack of attention, albeit with devastating consequences. With this in mind, the Panel has tentatively suggested that a non-custodial sentence is appropriate for the least serious category of offence but we are anxious for your views on whether this would be the correct approach and on circumstances (if any) in which a fine may be appropriate.
though they acknowledge (para 60)
Because this offence is one for which the harm is very great (death) but the degree of culpability will necessarily be rather low (otherwise a more serious offence should have been charged), the sentences we are proposing may be criticised by the deceased’s family and by others. The sentence will inevitably seem low if compared only with the magnitude of the harm done by the offender. The proposed guideline recognises that the level of the sentence for careless driving should be given some uplift when death is caused, since that is Parliament’s intention in creating this new offence, but it also recognises the need to reflect the degree of culpability.
And one can see what they mean; if it were me in the wheelchair I might not think that 9 months’ disqualification and a fine was much of a punishment for putting me there, and if my wife had been killed in such circumstances I don’t know what I’d think — probably that I’d rather see it treated as a dreadful accident than as criminal negligence of such minor criminality that it attracted pretty much the same punishment in the way of community service the driver might expect if he thumped someone during an argument in a pub.
The Sentencing Guidelines Council invite comments from members of the public; the consultation is open until 19 April. I plan to send them my comments, but the problem is that Parliament, by making this an imprisonable offence, have effectively precluded my point about treating it as a dreadful accident. Yes, I realise it was a criminal offence before this new act, but introducing penalties we clearly recognise as criminal ones — community service and prison — rather than motoring ones like fines and disqualification seems to be a gesture towards criminality which can can only ever be insultingly feeble (if you look at the harm done) or disproportionate (if you look at the culpability, particularly at the lower end of the scale).