CONSULTATION REGARDING THE GUIDANCE ON CHARGING
OFFENCES ARISING FROM DRIVING INCIDENTS
The consultation closes on 8 November 2012. Responses can be submitted
by email to HQ.DrivingConsultation@cps.gsi.gov.uk
When responding it would be helpful if you would complete the form below.
Please fill out your name and address or that of your organisation if
applicable.
You may withhold these details if you wish but we will be unable to include
you in future consultation exercises.
RESPONSE SHEET
Please complete the following information.
Manner of preferred address:
Mr/Mrs/Ms
First Name
Family Name
Any organisation you represent
Postal Mailing Address
Contact telephone number
Email Address
Ms
Ellen
Booth
Brake, the road safety charity
PO Box 548, Huddersfield, HD1 4LX
01484 559909
ebooth@brake.org.uk
Please record your comments/views on the Driving Guidance in the box
below.
About Brake
Brake is an independent charity working across the UK to make roads safer,
prevent road death and injury, and care for road crash victims. Brake carries
out research into road users’ behaviour and attitudes in relation to road safety,
engages schools and communities to spread road safety education,
disseminates research to professionals, and supports communities
campaigning for road safety. It is also a national, government-funded provider
of specialist support for people bereaved and seriously injured in road crashes,
running a national helpline and providing information packs that are handed to
bereaved families by police following every road death.
Summary
Ensuring that drivers who pose a risk to themselves and others, and
particularly those who have inflicted acute pain and suffering through
irresponsible and illegal behaviour, are properly brought to justice is of critical
importance. It is important in deterring dangerous, damaging and illegal
behaviour on roads and therefore in preventing more such needless and
violent deaths and injuries. This is very much in the public interest and it helps
to ensure public confidence in the justice system. That drivers who have killed
or injured face appropriate charges and penalties is also extremely important
to many families bereaved and injured in road crashes. When families feel
justice has not been done it can add insult to injury, worsen their pain, and
make it harder for them to deal with the appalling circumstances they find
themselves in. This is why Brake has such a keen interest in ensuring that
prosecutors take appropriate decisions that give the best possible chance at
just outcomes in court.
Brake is greatly concerned that in many cases people who kill and seriously
injure through their bad driving are receiving unduly low sentences that do not
reflect the harm they have caused, do not act as a deterrent and send out the
wrong message that taking and destroying lives on roads is treated leniently.
This is in part due to many cases of road death and serious injury being
prosecuted under careless, rather than dangerous, driving charges. Brake
believes it is inappropriate to prosecute someone whose bad driving has killed
or seriously injured for ‘careless’ driving, because if you have killed or maimed,
your actions were by definition dangerous. We therefore believe all these
cases should instead be prosecuted for causing death or serious injury by
dangerous driving. We are very concerned that fewer and fewer road death
cases are being prosecuted under the charge of causing death by dangerous
driving, and instead being prosecuted for the lesser charge of causing death
by careless driving, which carries a far lower maximum penalty1.
Brake urges the CPS to improve its guidelines so fewer drivers who kill and
maim through bad driving, inflicting loss of life, suffering and devastation, are
let off on a lesser charge, and to increase the likelihood of these drivers being
properly brought to justice and appropriate penalties being awarded.
Specifically, we recommend that the CPS makes the following adjustments to
the draft guidelines, explained in more detail below: providing clearer guidance
on when to bring a dangerous driving charge, so prosecutors are encouraged
to bring a dangerous driving charge in more cases where bad driving has led
to a death or serious injury, and in all cases where their breaking a road traffic
law has led to the casualty; encouraging prosecutors to always request
suspension of driving licence as a condition of bail for drivers charged with
causing a death through their bad driving; moving away from the acceptance
of causing death by careless driving within plea bargains for causing death by
dangerous driving cases; and taking a stronger stance towards prosecution in
cases involving nearest and dearest and emergency service drivers.
1. Nearest and dearest
Brake believes that in cases of ‘causing death by dangerous driving’ and
‘causing death by careless driving’, prosecution should be the norm regardless
1
Criminal Justice Statistics in England and Wales 2011, volume six motoring, Ministry of
Justice, 2012; and Criminal Justice Statistics, England and Wales 2010, volume six motoring,
Ministry of Justice, 2011; and Motoring Offences and Breath Test Statistics England and
Wales 2005; and Motoring Offences and Breath Test Statistics England and Wales 2005
of whether there is a continuing danger to road users and whether there was a
high or low level of culpability. The fact that the person who was killed is a
friend or relative of the offender should not affect the decision to prosecute, but
should remain a factor for consideration when sentencing the offender. The
purpose of the criminal law is not just to reflect the damage done to the person
who was killed, and their family and friends (who may or may not forgive the
perpetrator on the basis that they are a family member or friend), but to reflect
the fact that there was a breach of the criminal law, which means that the
incident damages society as a whole.
Brake is extremely concerned that this guidance gives an overriding bias
against prosecution in the majority of nearest and dearest cases because the
conditions for prosecution – based on there being evidence of continuing
danger and high culpability – are extremely narrow. Brake disagrees with the
way the guidelines narrowly define continuing danger as being evidenced
through a history of serious driving offences; there will be many cases where
the driver could continue to pose a serious public risk without having been
previously convicted of serious driving offences as defined in these guidelines.
The fact that this is a driver who has killed through bad driving should be
evidence enough that there is a strong likelihood of continuing danger. At the
very least, Brake would urge the CPS to widen these conditions, so there is a
wider definition of ‘continuing danger’ (for example, constituting any previous
breach of road traffic laws that are in place to safeguard the public, such as
speed limits and mobile phone offences) and so they recommend prosecution
should take place given either evidence of continuing danger or moderate to
high culpability.
Finally, Brake argues the CPS should acknowledge the impact nearest and
dearest cases have on other family members and friends. Within the guidance
reference is repeatedly made to the lasting impact on the perpetrator, but with
no reference to other family or friends bereaved by the crash, and the lasting
impact the death is likely to have on these groups.
2. Emergency services
Sadly, every year many people are killed, and many more suffer serious
injuries, because of crashes caused by emergency service drivers, including
when responding to call outs2 or involved in pursuits3. All these deaths and
injuries are devastating to the families involved, to the wider community and
indeed to the emergency vehicle drivers themselves.
While it is clearly important that emergency services can respond rapidly in an
emergency, and arriving a few minutes faster can in some cases make a
difference, it is not the case that all emergency response calls-outs are a
matter of life and death, and the benefits of a faster arrival time must be
balanced with the heightened risk to the public caused by them driving faster.
Brake argues that is wrong to put lives at serious risk in order to try to save
another. Even for a driver who has received extra training, driving just a bit
2
Reported road casualties Great Britain annual reports 2011, Department for Transport, 2012
Police road traffic incidents: A study of cases involving serious and fatal injuries,
Independent Police Complaints Commission, 2010
3
faster makes an enormous difference in risk posed to members of the public,
especially people on foot or bike4, because of the greater stopping distances,
which increase exponentially as speed increases. When emergency service
vehicles are driven at higher speeds, members of the public have less time to
get out of the way, and the driver has far less ability to react and avoid a
collision such as if a pedestrian steps out. Although sirens help to mitigate this
risk by warning people of the emergency service vehicle’s presence, they do
not fully compensate in all circumstances, since they may not be heard at all or
in time (by those with hearing impairments), understood (by children or those
with learning disabilities), or it might be difficult for a person to identify where
they are coming from, or to get fully out of the way quickly enough (particularly
for someone who is elderly or less mobile).
Brake believes there is a lot more that can be done to reduce instances of
death and injury caused by emergency service drivers, such as by improving
policies and procedures on responding to emergency calls-outs, and ensuring
these are applied consistently and to a high standard. Brake argues we need
to encourage work to improve safety standards with the ultimate aim of zero
deaths and injuries resulting from the driving of emergency service vehicles.
Brake’s concern with the CPS’s proposed revisions to its guidance is that it
could be detrimental to work to reduce deaths and injuries in this field. It sends
out a message that it is acceptable, and inevitable, that innocent people
should be killed or seriously injured by drivers responding to emergency callouts, and therefore emergency service drivers should not be held to account
for these devastating incidents.
Brake believes prosecution should always take place when the risky driving of
an emergency service vehicle has led to the death or injury of an innocent third
party. It would then be up to the court to decide to convict or sentence
appropriately, taking into account the circumstances, including that it was an
emergency call-out, the nature of the emergency, and whether the driver
caused undue risk and harm. That these cases are prosecuted is critical to
preventing more of them happening, and to provide justice to the families
involved.
Brake appreciates that the CPS has specified that a prosecution should
always take place where driving is judged to have been ‘dangerous’. Brake
argues this condition is too narrow to ensure justice is done. This is on the
basis that many (and increasing numbers of) cases of road death and injury
are prosecuted under ‘careless’, rather than ‘dangerous’ driving charges 5,
when Brake believes they should be treated and prosecuted for ‘dangerous’
driving, given the serious harm caused.
The effects of drivers’ speed on the frequency of road accidents, Transport Research
Laboratory, 2000
5 Criminal Justice Statistics in England and Wales 2011, volume six motoring, Ministry of
Justice, 2012; and Criminal Justice Statistics, England and Wales 2010, volume six motoring,
Ministry of Justice, 2011; and Motoring Offences and Breath Test Statistics England and
Wales 2005; and Motoring Offences and Breath Test Statistics England and Wales 2005.
4
3. Victims
Brake strongly welcomes and advocates two key points in the guidance to
prosecutors relating to treatment of victims:


to refrain from use of the term ‘accident’, in recognition of the serious
offence it can cause to bereaved and injured victims of road crashes,
and the fact that this term undermines work to prevent these
devastating events;
to encourage the use of victim impact statements and recommendations
for prosecutors to attended inquests where they occur prior to trial.
4. Bail
Brake is working with the family of Jamie Strong to call for automatic
suspension of a driving licence as a condition of bail where drivers are
prosecuted for causing death by their bad driving.
Jamie Still, a 16 year old from Leeds, was killed on New Year's Eve 2010 by a
speeding driver who was twice over the legal drink drive limit. The driver was
charged with causing death by dangerous driving, but allowed to keep his
licence for eight months while he awaited trial. Jamie's family were appalled
the perpetrator was allowed to continue driving in the run up to trial, potentially
putting more people in danger. He was later sentenced to four years in prison.
Jamie's 13 year old sister Rebecca created a petition and the campaign site
jamiestillcampaign.co.uk, calling on the government to change the law. The
petition has been signed by more than 12,000 people.
While this campaign is calling for a change in legislation, Brake urges the CPS
to guide prosecutors to always request licence suspension as a condition of
bail in cases where drivers are prosecuted for causing someone’s death
through their bad driving.
Brake argues that allowing a bailed driver facing prosecution for causing
someone’s death through bad driving to continue driving is an unacceptable
risk to the public. Around four in five drivers prosecuted for causing death or
bodily harm through their driving are successfully convicted, and a similar
proportion receive driving bans when convicted, many spanning years and
requiring strict retesting before being returned6.
Brake also notes that victim families can find it incredibly upsetting to know
that the person accused of killing their loved one is able to continue using a
vehicle in the run up to trial, despite driving badly being the reason they await
trial for causing someone’s death. In many cases these incidents happen in
close knit communities and the victim family may know the driver, or even see
6
494 convictions in England and Wales in 2011 out of 614 prosecutions for causing death or
bodily harm. Causing death or bodily harm constitutes the following offences: Causing death
by dangerous driving; Causing death by careless driving under influence of drink or drugs;
Causing death by careless or inconsiderate driving; Causing death by driving unlicensed,
disqualified or uninsured drivers; Causing death by aggravated vehicle taking; Causing bodily
harm. Criminal Justice Statistics Quarterly Update to December 2011, Ministry of Justice,
2012
them freely using a vehicle in their community in the run up to trial, which can
cause great distress.
5. Charges
Brake believes ‘careless’ driving charges are inappropriate where death or
injury has occurred, because if you have killed or maimed through bad driving,
your actions have already been shown to have been dangerous. We therefore
believe that the charge of causing death by careless driving should be
scrapped, with drivers who have caused harm through their bad driving to be
charged with causing death or serious injury through dangerous driving, and
sentenced appropriately.
Drivers prosecuted for causing death by careless driving face much more
lenient sentences, despite the distinction between causing death by dangerous
or careless driving being very slight. The intangibility of the distinction between
the two charges also helps lead to a bias towards charging and convicting for
the lesser charge of causing death by careless driving. In 2011, 538 drivers
were tried for causing death by careless driving in England and Wales,
compared to 201 tried for causing death by dangerous driving7. Through
Brake’s support services we very commonly hear from bereaved families that
they feel gravely let down by our justice system because the driver who has
killed their loved one by taking serious risks is prosecuted for the lesser
offence and receives only a short or sometimes no custodial sentence as a
result.
While the CPS has no power to abolish the charge of causing death by
careless driving, it does have power to help address this injustice. It can do
this by amending its guidance to prosecutors to favour the charge of causing
death by dangerous driving whenever a driver has caused a death through
bad driving. Equally, when a serious injury has occurred as a result of bad
driving, a charge of dangerous driving should be preferred (or when new
charges for causing serious injury are introduced, causing serious injury by
dangerous driving).
The examples of dangerous and careless driving given in this guidance are
confusing in places, as there is a great deal of overlap, which the CPS itself
acknowledges. For instance the guidance suggests driving using a hand-held
mobile phone could constitute either dangerous or careless driving. It also
notes that speed is an indicator of dangerous driving ‘particularly’ when
‘inappropriate for the prevailing road or traffic conditions’, which suggests there
is tolerance for breaking speed limits or driving too fast for conditions within the
charge of causing death by careless driving. Brake strongly disagrees with the
notion that breaking traffic laws designed to protect public safety on roads,
such as by speeding or using a mobile, should be treated as ‘careless’.
Brake recommends clarifying to prosecutors that when a driver breaks safety
laws such as by speeding, using a mobile phone, or driving impaired and as a
7
Criminal Justice Statistics in England and Wales 2011, volume six motoring, Ministry of
Justice, 2012
result kills someone they should always face the charge of causing death by
dangerous driving. Brake recommends the CPS also guides prosecutors that
in the majority of cases of causing death by bad driving, where deciding
between dangerous and careless, the higher charge of dangerous driving
would be appropriate. This would give prosecutors greater confidence to
prosecute for the stronger charge and therefore allows the court the
opportunity to convict and sentence on this higher charge, giving it greater
freedom to hand out a greater range of custodial sentences, and giving
grieving families a better chance of seeing justice done.
6. Plea bargaining
Brake is concerned that plea bargaining in cases of causing death by
dangerous driving is resulting in low sentences for drivers who kill through their
bad driving. Brake believes plea bargaining to the lesser charge of causing
death by careless driving is not appropriate because the maximum sentence
for this offence is so much lower than the maximum sentence for causing
death by dangerous driving. While Brake acknowledges CPS guidance stating
such plea bargains are discussed with bereaved families, and agrees it is
always appropriate to keep victim families informed, it is Brake’s experience,
through its support services, that many bereaved families are distressed by
perpetrators being convicted under the lesser charge instead. Brake
recommends the CPS discourages plea bargaining from causing death by
dangerous driving to causing death by careless, for the above reasons, but
also because the court has the option to return with a conviction of the lesser
charge when a prosecution proceeds for causing death by dangerous driving.