• The majority of those surveyed, 74%, felt that it should not be necessary to prove that an action was deliberate in order to prove a charge of Dangerous Driving.
• A significantly smaller number, 55% to 58%, felt that it was not currently necessary to prove that specific actions were deliberate in order to prove a charge of Dangerous Driving (the exact percentage varying between the specified actions).
• The use of the 'careful and competent' driver as the standard to which the defendant's driving should be compared was felt to be sufficiently clear to 70% of respondents to the survey. There was, however, significant variation in the percentage of the driving
population the respondents thought could be described as 'careful and competent.' This suggests that the term is being interpreted differently.
• From the cases examined it was found that the majority of offences described as violations or aggressiveness were brought as Dangerous Driving, rather than Careless Driving. • A variety of reasons may lead to the ultimate conviction being for Careless Driving where
proceedings are for Section 1 or 2. Insufficient evidence is one reason, direction by the court is another; other jury decisions are less easy to understand. Concern has been
expressed by many interviewees about those cases in which the prosecution accepts a plea to the lesser charge.
• There is no clear agreement amongst those surveyed about the level of inattention indicated by different activities. Whilst there will always be a need to assess individual cases on their merits, the extent of the disagreement may suggest a need for clearer guidelines (where guidelines exist) or the introduction of guidelines where they do not.
• Lapses of attention vary from minor to prolonged. Whilst Careless Driving satisfactorily covers the minor cases, where a major lapse occurs the charge of Careless Driving does not satisfy many of the victims' families that justice is being done. The inconsistency in the way they are treated by the system indicates uncertainty as to whether Dangerous Driving or Careless Driving is the appropriate offence. It may be desirable to separate major lapses of attention into a different offence.
• There is a need to distinguish between minor 'carelessness' and a more substantial negligence in driving, in order that sufficient consideration is given to drivers who substantially fail in their duty of care to other road users.
• The extent to which the consequences of the driving, rather than the driving itself, are taken into account appears to vary both in terms of offence and of penalty. This is not surprising, given the radically different views held by individuals working within the justice system.
• Excessive speed was the most common element amongst the Dangerous Driving cases followed in the research. However, there is a lack of consistency in the way in which speed is taken as an indication of Dangerous Driving. Both the responses to the survey, and the cases tracked as part of the research, showed that speeding, and the extent to which a speed limit is exceeded, is sometimes but not consistently used to determine Dangerous Driving. • The majority of respondents to the postal survey, and many of those interviewed, felt that
fixed penalty notices should be available for some minor Careless Driving offences. In particular, they were suggested as an effective means of dealing with poor lane discipline (including undertaking), close following (or tailgating) and the use of mobile phones whilst driving.
• Whilst an accident can provide forensic evidence, which points to proof of what happened, it is clear that Dangerous Driving will not always result in an accident. The research found that few prosecutions for Dangerous Driving were brought where an accident had not occurred. There was some indication that the absence of an accident was used by defence lawyers to dispute the allegation of dangerousness.
7.4 Prosecution
• There was some evidence that the character or 'respectability' of the defendant was held to be significant in determining their guilt of a serious motoring offence both by judges and juries.
• There are significant numbers of cases in England and Wales which police would like to pursue as Dangerous Driving, but either the CPS will only put forward as Careless Driving or the police themselves do not pursue because they are confident the CPS would
'downgrade.'
• There are some indications that 'plea-bargaining', initiated by the prosecution to ensure at least a conviction for Careless Driving, is commonplace in England and Wales. Two main reasons are given. The acceptance of a plea saves time and money, and there are pressures on prosecutors to heed this. Accepting a plea ensures a conviction, and avoids the need to satisfy the fairly demanding criteria of a Dangerous Driving conviction. This practice causes concern amongst police and judges as well as victims' families.
• The standard of prosecution is variable. In some instances, counsel do not appear well prepared. This may be through lack of time, or lack of experience in dealing with road traffic cases. This was more commonly reported in Scotland, by pressure groups in particular, but was also observed In English cases.
• Analysis of 5,943 fatal accident files found that in 44% of fatal accidents the driver at fault was killed and in 20% of cases a pedestrian at fault was killed. Of the remainder, in 10% of the accidents a driver was reported for Causing Death by Dangerous/Reckless Driving and in 20% of cases a driver was reported for Careless Driving.
• Delays in bringing a case to trial are common. A number of reasons have been given by contributors to the research and some have been found in the cases tracked. The most apparent reason reported in England and Wales appeared to be delays in transferring evidential paperwork between prosecution and defence.
• The practice of restricting the number of offences charged in a case causes concern to pressure groups. It is felt that this results in similar penalties for offenders regardless of the number of offences committed, and in some cases denies the jury further insight into the attitude and behaviour of the defendant.
7.5 Penalties
• Penalties for convictions for Careless Driving were significantly higher in those cases involving a fatality.
• It was evident in many cases of Causing Death by Dangerous Driving that defendants were
profoundly affected by the accident and would carry the burden of responsibility for the rest of their lives. Whilst this cannot be compared to the grief felt by bereaved relatives, it may be that many in this group do not need a prison sentence in order to deter them from re- offending (although society demands that they are punished). Those dangerous drivers who, by chance, do not cause a fatality, do not have remorse to act as a deterrent and so may be in greater need of deterrence.
• Imprisonment has little effect on re-offending rates.
• It is common for defence counsel to argue that disqualification and/or prison sentence will cause hardship both to the defendant and their family.
• Current penalties are not acting as a sufficient deterrent against re-offending in many cases. Of particular concern is the existence of a group who are repeatedly convicted of Dangerous Driving offences.
• Many drivers who re-offend begin re-offending during their period of disqualification. • Those drivers who pass a re-test are significantly less likely to re-offend than those who do
not. This does not, however, prove the effectiveness of re-testing, as the difference in re- offending is apparent prior to the re-test being taken. It does indicate a means of identifying a particular group, i.e. those who do not pass a re-test, as being more likely to drive whilst disqualified and to re-offend.
7.6 Police investigations
• There is some dissatisfaction, even amongst the police themselves, with the quality of police investigations of accidents. It is perceived that the limited resources allocated to investigating fatal road traffic accidents, as opposed to other violent deaths, indicate that deaths on the road are not viewed with sufficient concern.
• A manual for police investigating fatal road accidents is due shortly. This may result in such accident investigations being more like investigations of other violent deaths.
7.7 Victims
• It is not always clear that the interests of the victims or the bereaved are being looked after. Whilst many individuals within the police, CPS and Procurator Fiscal's office are extremely caring, the level of care is variable.
• There is disparity in the funding provided by government for the support of victims of crime and the victims of road traffic accidents. This results in victim support being carried out by organisations who receive no government funding, and who also act as pressure groups. In england, the funding issue is further complicated by the responsibility for road traffic victims and victims of other crimes being held by different departments within the home office.
Chapter 8
Recommendations
This review has examined in depth the current legislation and how it is being implemented. The legal principles concerned were also examined. In making recommendations that are based on sound logic, whilst recognising the need for pragmatism, it is important that any proposals can be justified as sitting correctly within a fair criminal justice system. It is worth noting, for that reason, that whilst the views of those invited to contribute were taken into account and described in this report, the final recommendations are based on all aspects of the research. The recommendations are:
• In any offence where consequences form part of the charge, then serious injury should be taken into account as well as death. The current offence of Causing Death by Dangerous Driving should therefore be extended to include severe injuries. This would recognise the suffering and impact that severe and permanent injuries have both on the victim and their family.
• A consultation exercise should be carried out to assess how the introduction of an
intermediate offence, to sit between the current offences of Dangerous Driving and Careless Driving, would be received by the agencies responsible for implementing road traffic legislation and other concerned groups. This offence might be called 'Negligent Driving' and would be defined such that it includes gross carelessness or a serious failure to take sufficient care whilst driving. Behaviour which involves violation or aggression would still be classed as Dangerous Driving. This new offence would define a duty of care which, if breached, would render the driver liable to more severe penalties than the relatively minor offence of Careless Driving. If such an offence was introduced, there should also be an offence of 'Causing Death/Serious Injury by Negligent Driving.' The penalty for such offences, which would probably be an 'either way' offence (i.e. can be tried in either
magistrates' court or Crown Court), would fall between the penalties for Dangerous Driving and Careless Driving and would include imprisonment, disqualification and community service.
• The research did not find sufficient argument to recommend the introduction of an offence of Causing Death by Careless Driving. It was sufficiently popular, however, amongst respondents that it should also be included in the consultation exercise. If it is decided to introduce such an offence, the range of penalties, and whether they would differ from those available for Careless Driving, should be carefully considered. It may be necessary to make clear that the purpose of the new offence would be to recognise the fact that a death has been caused but there should be a clear statement that penalties must be in proportion to culpability.
• There should be a requirement that statistics are kept on the outcome of cases involving fatalities and serious injuries where these do not form part of the charge.
• There is a significant amount of re-offending, suggesting that current penalties are not acting as a sufficient deterrent. As the worst offenders often disregard a disqualification, alternative penalties should be considered. Increased use of vehicle forfeiture and community service could be part of the solution.
• There should be a requirement that convictions for the bad driving offences are kept by DVLA, if not on the 'live' driver record at least in an archive, in order that future monitoring of re-offending can be carried out.
• The extension of the use of Fixed Penalty Notices for certain offences, with substantial fines, should be considered. These include close following (or tailgating), poor lane discipline (including undertaking) and the use of mobile phones whilst driving.
• There should be a clear message about the relationship between speeding and Dangerous
Driving. The research highlighted serious inconsistencies in the way in which speed is seen as a criterion in determining the charge. The proportion of offences, and accidents, in which excess speed is a factor is high. Clear guidelines would ensure that drivers who exceed the speed limit by a significant amount would face prosecution for Dangerous Driving. These guidelines would take into account the relative risk associated with speeding in different conditions.
• The feasibility of specialised prosecutors should be investigated.
• There should be an investigation into the funding of victim support for the victims of road traffic accidents. The pilot scheme in South Lanarkshire should be looked at as a possible model.
Chapter 9
Further workA number of related issues have not been fully explored within the research leading up to this report. The research is planned to continue, in order to address these important areas. The planned work includes:
A consultation exercise, already planned, with victims and victims' families, to establish their views on any proposed changes to the law.
A survey of drivers who have been convicted of Dangerous Driving or Careless Driving. This will look at the motivations and attitudes of these drivers compared to the non-offending population. It will examine the attitudes both of offenders and non-offenders to different types of penalty and the impact those penalties might have.
Further work might include:
Looking more closely at the duty of care to be defined were a charge of Negligent Driving to be introduced.
Looking at the definition of serious injury to be used where a charge of 'Causing Death or Serious Injury by...' is introduced.
Chapter 10
AcknowledgementsThis research was carried out by the Safety and Environment Division of TRL Limited (Transport Research Laboratory). The authors would like to acknowledge the assistance of Dr Sofia Marcal (DTLR), Robert Davies (DTLR), Chris Gazzard (DTLR), David Rowe (formerly Police Liaison Officer at DTLR now TRL), Peter Openshaw (DTLR), Dr Rob Tunbridge (formerly DTLR now TRL), Dr Graham Grayson and Gavin Buckle (both TRL), Judith Sharples, Tahira Sattar and Lorraine Henning (all TRL Scotland). The assistance and co-operation of all the agencies that have participated has been invaluable: Thames Valley Police, Norfolk Constabulary, Greater Manchester Police, Tayside Police, Devon and Cornwall Police, Essex Police, Lothian and Borders Police, West Midlands Police, ACPO and ACPOS, the Casework Services Division of the Crown Prosecution Service, the Crown Office Policy Group (Scotland), the Regional Procurators Fiscal and Chief Crown Prosecutors, and the coroners, magistrates, judges and helpful staff in the courts we visited. The contributions made by SCID (Scottish Campaign Against Irresponsible Drivers), RoadPeace and BRAKE were invaluable, and the authors thank them for their time.
Chapter 11
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Appendix A
North Report conclusions
Reproduced here, with their original numbering, are those conclusions from the North Report (Department of Transport, 1988) most relevant to the current research.
15. The law in relation to the bad driving offences is defective and should be reformed. 16. The law should continue to provide for two levels of bad driving offence.
17. Statutory reformulation of the offences now found in Sections 1 and 2 of the Road Traffic Act 1972 is needed and should be introduced.
18. The term 'reckless' should no longer be used in road traffic legislation.
19. Statutory reformulation of the bad driving offences should apply both to England and Wales and to Scotland.
20. The reckless driving offence found in Section 2 of the Road Traffic Act 1972 should be replaced by a new offence with similar maximum penalties. This offence should include the following elements:
(i) a test that is fully objective in nature;
(ii) a statement of the standard of badness of the driving based on that of the competent and careful driver;
(iii) reference to the particular circumstances in which the driving occurred;
(iv) the test should cover the fact of driving the vehicle at all in the circumstances as well as the way in which it was driven.
21. There should continue to be an offence of driving without due care and attention or consideration for other road users.
22. The Associations of Chief Police Officers should consider the provision of guidance on what is or is not minor carelessness.
27. A separate causing death offence should be retained but it should be reformulated in terms consistent with our recommended very bad driving offence.
28. The maximum penalty for the new offence of Causing Death by very bad driving should be the same as for the present offence, under Section 1 of the Road Traffic Act 1972, of Causing Death by Reckless Driving; that is, a maximum of five years' imprisonment, an unlimited fine and obligatory disqualification for 12 months (or two years under the Criminal Justice Bill).
29. If the period of obligatory disqualification for the offence under Section 1 of the Road Traffic