Dangerous driving and the Law (No.26)
Contents Executive Summary ...7 Abstract...11 Chapter 1 ...12 Introduction...12 Chapter 2 ...14 Current Position ...14 2.1 Current legislation...14 2.2 Legal principles...16 2.3 Procedures ...19 2.3.1 SCOTLAND ...202.3.2 ENGLAND AND WALES ...22
Chapter 3 ...24 Methodology ...24 3.1 Research design...24 3.2 Research tasks ...24 3.2.1 CASE TRACKING ...24 3.2.2 INTERVIEWS ...26 3.2.3 POSTAL SURVEY...27
3.2.4 ANALYSIS OF CONVICTION DATA HELD BY DVLA...27
3.2.5 ANALYSIS OF CONVICTION DATA HELD BY THE HOME OFFICE...27
3.2.6 ANALYSIS OF FATAL ACCIDENTS...28
Chapter 4 ...29
4.1 Analysis of fatal accidents...29
Chapter 4 ...31
4.2 Trends in conviction and sentencing...31
4.2.1 SCOTLAND ...31
Figure 1: Proceedings in Scotland: all motoring offences and Careless Driving...31
Figure 2: Proceedings in Scotland: all motoring offences and Careless Driving...32
Figure 3: Percentage of proceedings in Scotland where a charge was proved...32
4.2.2 ENGLAND AND WALES ...32
...33
Figure 5: Proceedings: all motoring offences and Reckless/Dangerous Driving...33
...33
Figure 6: Percentage of proceedings with a guilty verdict...34
Chapter 4 ...35
4.3 Police investigations...35
Chapter 4 ...38
4.4 The decision to prosecute...38
4.4.1 DECIDING ON THE CORRECT CHARGE ...38
INCORRECT CHARGING (ENGLAND AND WALES)...38
INATTENTION...39
DELIBERATE ACTION ...40
4.4.2 SPEEDING ...42
4.4.3 SCOTLAND ...42
4.4.4 ENGLAND AND WALES ...43
Chapter 4 ...47
4.5 Delays in England and Wales...47
Chapter 4 ...49
4.6 Prosecution in court...49
4.6.1 ANALYSIS OF CASE HISTORIES ...49
4.6.1.2 Offences ...49
4.6.1.3 The absence of an accident...51
4.6.1.4 Elements of bad driving ...51
DANGEROUS DRIVING ELEMENTS ...51
CARELESS DRIVING ELEMENTS ...53
4.6.1.5 Lapses, violations, errors and aggressiveness ...54
LAPSE IN CONCENTRATION AMONGST DANGEROUS DRIVING OFFENCES ...56
ERRORS AMONGST DANGEROUS DRIVING OFFENCES ...57
VIOLATIONS AMONGST CARELESS DRIVING OFFENCES ...57
AGGRESSIVENESS AMONGST CARELESS DRIVING OFFENCES...58
4.6.1.6 Penalties ...58
CAUSING DEATH BY DANGEROUS DRIVING...58
DANGEROUS DRIVING ...59
CARELESS DRIVING ...59
Figure 7: Fines awarded for Careless Driving...60
Figure 8: Length of disqualification for Careless Driving offecnces ...61
4.6.1.7 Comparisons...61
CONSISTENCIES ...63
Chapter 4 ...64
4.6.2 ISSUES ARISING IN PROSECUTION...64
4.6.2.1 Sheriff Court vs High Court (Scotland only) ...64
4.6.2.2 Plea-bargaining...64
4.6.2.3 Technicalities ...65
4.6.2.4 Multiple offences...65
4.6.2.5 Judges (England and Wales only) ...66
4.6.2.6 Juries ...66
4.6.2.7 Consequences...68
4.6.2.8 The Simmonds Appeal (England only)...68
4.6.2.11 Quality of prosecution...71
4.6.3 PENALTIES ...72
4.6.3.1 The gaps between penalties...72
4.6.3.2 Fines ...73
4.6.3.3 Community service ...74
4.6.3.4 Forfeiture of a vehicle ...74
4.6.3.5 Penalty points ...74
4.6.3.6 Disqualification ...75
4.6.3.7 Driver Improvement Scheme ...75
4.6.3.8 Imprisonment ...76
4.6.3.9 Mitigation...76
Chapter 4 ...78
Chapter 4 ...81
4.8 Fatal Accident Inquiries (Scotland)...81
Chapter 4 ...82
4.9 The role of victims' families...82
Chapter 4 ...85
4.10 Criminal histories of persons convicted of Dangerous Driving in 1996 (England and Wales) 85 4.10.1 CHARACTERISTICS OF THE SAMPLE OF DANGEROUS DRIVERS ...85
Figure 9: Age distribution of those convicted of Dangerous Driving in 1996...86
Figure 10: Age distribution of offenders convicted of Dangerous Driving compared to those convicted of other offences...86
...86
4.10.2 CRIMINAL HISTORY OF DANGEROUS DRIVERS ...86
Figure 11: Percentage of offenders convicted by number of previous court appearances ...87
Figure 12: The proportion of additional offences dealt with at the same court appearance as the Dangerous Driving offence ...88
Figure 13: Distribution of previous offences commited by the dangerous drivers with three or more previous court appearances ...88
Figure 14: The proportion of offenders convicted of Dangerous Driving in 1996 by the number of subsequent court appearances in 1997 ...89
4.10.3 PENALTIES FOR DANGEROUS DRIVERS ...90
Figure 15: Percentage of offenders convicted of Dangerous Driving by number of sentencing occasions and type of sentence given ...90
Chapter 4 ...91
4.11 Driving violation history of persons convicted of Dangerous Driving in 1999 ...91
4.11.1 CHARACTERISTICS OF THE SAMPLE...91
Figure 16: Age distribution of persons convicted of Dangerous Driving in 1999 ...91
Figure 17 ...92
: ACORN categories of persons convicted of Dangerous Driving and Great Britain as a whole 4.11.2 THE DANGEROUS DRIVING OFFENCE...92
Figure 18: The length of disqualification period...94
Figure 19: The proportion of Dangerous Driving convictions that resulted in additional sentences 95 4.11.3 DRIVING VIOLATION HISTORY...95
Figure 20: Proportion of Dangerous Driving offenders with a previous conviction by type.97 Figure 21: Percentage of offences committed on the first, second and third appearance date98
Chapter 4 ...99
4.12 Summary of re-offending and re-test analysis ...99
RE-OFFENDING WITH A FURTHER DANGEROUS DRIVING OFFENCE ...99
REOFFENDING WITH ANY MOTORING OFFENCE...100
THE EFFECT OF RE-TESTING ...101
Chapter 5 ...102
Discussion ...102
Chapter 6 ...106
Possible changes in legislation...106
Chapter 7 ...110
Conclusions ...110
7.1 Key questions ...110
7.2 Profile of dangerous drivers ...110
7.3 The offences ...111 7.4 Prosecution...112 7.5 Penalties ...113 7.6 Police investigations...113 7.7 Victims ...113 Chapter 8 ...114 Recommendations ...114 Chapter 9 ...116 Further work...116 Chapter 10 ...117 Acknowledgements ...117 Chapter 11 ...118 References ...118 Appendix A ...120
North Report conclusions...120
Appendix C ...122
Re-offending and re-tests ...122
Appendix C ...124
C.1 RE-OFFENDING WITH A FURTHER DANGEROUS DRIVING OFFENCE ...124
Figure C1: Percentage of male offenders without a further Dangerous Driving offence...124
C.1.1 PRISON SENTENCE AND RE-OFFENDING...125
Figure C2: Percentage of male offenders without a previous Dangerous Driving offence: prison sentence...126
C.1.2 LENGTH OF DISQUALIFICATION PERIOD AND RE-OFFENDING...126
Figure C3: Percentage of male offenders without a previous Dangerous Driving offence: disqualification period...127
C.1.3 SOCIAL STATUS...127
Figure C4: Percentage of male offenders without a further Dangerous Driving offence: social groups ...129
C.1.4 AGE...130
Figure C5: Percentage of offenders without a further Dangerous Driving offence: age groups132 C.1.5 DRIVING VIOLATION HISTORY ...133
Figure C6: Percentage of male offenders without a further dangerous driving offence: Number of other offences ...136
Appendix C ...137
C.2 RE-OFFENDING WITH ANY MOTORING OFFENCE...137
Figure C7: Percentage of male offenders without a further motoring offence...138
C.2.1 PRISON SENTENCE AND LENGTH OF DISQUALIFICATION AND RE-OFFENDING ...139
Figure C8: Percentage of male offenders without a further driving motoring offence: disqualification period...140
C.2.2 SOCIAL STATUS AND AGE...140
C.2.3 DRIVING VIOLATION HISTORY ...142
Figure C9: Percentage of male offenders without a further motoring offence: number of other offences ...143
Appendix D ...145
Survival analysis ...145
Appendix E ...146
The Simmonds Appeal...146
Appendix F...147
Description of ACORN categories...147
Appendix G...148
Legal precedents...148
R. v. Krawec [1984] 6 Cr.App.R.(S.) 367Lord Lane C.J. and Otton J. ...148
R. v. Downing [1996] 1 Cr.App.R.(S.) 419Swinton Thomas L.J., Waterhouse and Harrison J.J. ...148
R. v. Moore [1994] 16 Cr.App.R.(S).536Lord Taylor C.T., Potts and Sachs T.T. ...149
R. v. Stokes [1998] 1 Cr.App.R.(S.) 282Lord Bingham C.T. and Dyson T. ...150
Appendix H...151
General gravity factors...151
Appendix I ...153
Standard list offences ...153
Appendix J ...154 Case histories ...154 Appendix J ...155 Case histories ...155 Appendix J ...167 Case histories ...167
Appendix J ...180 Case histories ...180 Appendix J ...199 Case histories ...199 Appendix J ...216 Case histories ...216
Executive Summary
The report describes research carried out as part of a study commissioned by the Road Safety Division of the Department for Transport, Local Government and the Regions. The purpose of the study was to evaluate the effect of the 1991 Road Traffic Act on the prosecution of dangerous drivers.
Following the Road Traffic Law Review (commonly known as the North Report) in 1988, a number of legislative changes were made, reflecting concerns about the way in which motoring offences were dealt with by the criminal justice system.
The objective of this research was to examine the current situation relating to the prosecution of those accused of bad driving offences, and to assess how current practice answers the intention behind the changes in legislation. It sought to identify whether there were procedural or legislative difficulties in the current system, and to evaluate potential solutions.
The research aimed to establish the criteria being used by prosecutors to select one offence rather than another, and to find out what persuades courts to choose one penalty rather than another. It examined how bad driving offences are viewed by the agencies involved in the justice system. The procedures and legislation guiding each stage of the process from charging to sentencing were examined in order to identify areas of concern and to establish how decisions are taken.
The conviction and sentencing trends in the period before and after the 1991 Act was introduced were analysed. Both the motoring violation history and criminal histories of those with convictions for Dangerous Driving were examined in order to identify the characteristics of those drivers. The rate at which different groups of drivers re-offend after conviction, and whether the penalties originally imposed affected reconviction rates, were examined.
From a sample of 5,943 fatal accident files information was extracted on the resulting convictions. This provided information, otherwise unavailable, on the number of fatal accidents that result in convictions for Careless Driving.
Views were sought from the agencies that deal with the identification and prosecution of offenders and from pressure groups representing the victims of road traffic accidents in a series of interviews. These identified areas of concern and some suggested changes in legislation that might form part of a solution. These ideas were incorporated into a questionnaire, which was sent to representatives of the agencies who implement road traffic legislation. This survey generated further ideas, as well as views on those suggestions already identified.
A major part of the research was to follow live cases to trial, in order to observe how decisions are being taken, and to assess the relationship between types of offence and resulting convictions. There were four questions in particular which the research sought to answer:
1. Has the 1991 Road Traffic Act made a difference to the pattern of prosecutions and convictions for Dangerous Driving and Careless Driving?
Analysis of data from 1988 to 1997 shows that there has been a steady decline in proceedings for Careless Driving and little difference in proceedings for Dangerous Driving. The intention of the
legislation was to simplify the conviction of those guilty of serious driving offences. Although many of those interviewed felt that the current definition was easier to prove than the earlier 'reckless' offence, it has not led to an increase in convictions for the most serious 'bad driving' offence.
2. Is there a problem in the current definitions of Dangerous Driving and Careless Driving which results in the lesser charge of Careless Driving covering a wide range of behaviour from minor inattention to serious negligence?
The definition of Dangerous Driving is such that whilst violators are likely to face that charge, those guilty of serious negligence in their driving often face the same charge of Careless Driving as those guilty of very minor offences. This is seen as causing problems, in particular where the offence has resulted in a fatality. It was found that the offence of Careless Driving included a wide range of behaviour of differing severity. It is commonly perceived to be a minor offence, but is used in cases where the driving could be described as grossly negligent. The research found that the greatest concern was caused by those offences which failed to meet the criteria for Dangerous Driving, yet displayed a lack of care which was more culpable than the Careless Driving offence is perceived to indicate.
3. Is there a need for a new offence of Causing Death by Careless Driving?
The research found that amongst those who responded to a postal survey, the introduction of a new offence of Causing Death by Careless Driving was favoured by 55% of respondents. There were also compelling arguments against its introduction, however, many of which related to the scale of penalties such an offence would attract. This concern stems from a view that Careless Driving, given the range of behaviour which it covers, does not imply sufficient culpability to justify taking fatal consequences, which are often a matter of chance, into account. The main purpose of the new offence would therefore be to acknowledge the fact that a death has been caused.
An alternative solution, which would create an additional offence between Dangerous Driving and Careless Driving is discussed. This offence, possibly called 'Negligent Driving' would be defined such that it includes gross carelessness or a serious failure to take sufficient care whilst driving. Behaviour that involves a significant degree of 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 were introduced there should also be an offence of 'Causing Death/Serious Injury by Negligent Driving.'
4. Are the heavier sanctions available for Dangerous Driving being used to the degree intended by the legislators?
The maximum penalties are rarely used. Cases which appear to be very serious often receive less than half of the maximum sentence. Guilty pleas and other mitigating circumstances reduce sentences further. The research did not examine how this compares with sentencing of non-motoring offences.
In 44% of the fatal accident files examined it was found that 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 or Reckless Driving and in 20% of cases a driver was reported for Careless Driving. The remaining 6% comprises cases where the driver was reported for other offences.
It was found that those convicted of Dangerous Driving were mainly young males, with three-quarters of the dangerous driver offenders in 1996 being males aged under 30 years. A higher proportion of those convicted of Dangerous Driving fall into the younger age categories than those convicted of other serious non-motoring offences.
It was found that 38% of offenders convicted of Dangerous Driving in 1996 had no recorded criminal history and 46% had been convicted in court on at least three occasions.[1]
Just over 40% of offenders convicted of Dangerous Driving in 1996 were sentenced to immediate custody (which includes detention in a young offender institution); around 30% were given a community sentence (supervision, probation, community service, combination order or attendance centre order); and 20% were fined. The fines ranged from £10 to £2,500, with a mean value of £320. The mode and median values were both £250.
A third of those convicted of Dangerous Driving in 1996 went on to commit a subsequent criminal offence in 1997. This proportion varied depending on whether the offender had a previous criminal history. Fourteen per cent of offenders with no criminal history prior to 1996 committed a
subsequent offence in 1997, compared to 56% for offenders with three or more previous court appearances prior to 1996.
Neither imprisonment nor disqualification were found to have much effect on reconviction rates. Many drivers who re-offend begin re-offending during their period of disqualification. Around one offender in 20 convicted of Dangerous Driving in 1996 was convicted of a further Dangerous Driving offence in 1997.
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 targeting 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. Whilst both the interviews and subsequent postal survey found that there were clear distinctions being drawn in some instances between Dangerous Driving and Careless Driving, there were some types of behaviour which could fall into either category. In particular, there was found to be an inconsistent approach in the extent to which excess speed was taken to indicate dangerous driving. In any offence where consequences form part of the charge (i.e. Causing Death by...), it was generally felt that 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 impact that severe and permanent injuries have both on victims and their families.
In determining whether legislation is 'successful', the criteria for measuring success must be
determined. Is success to be decided by the level of acceptance from those agencies who implement the legislation? The problem here is that they do not necessarily agree with each other. Is it decided by public perception that 'justice' is being done? The problem here is how to establish, in an
impartial way, what the public perception is. As in any sphere, complaints against the system are heard more often than the views of those who are happy with the way things are. Or is there some objective measure of success which can be calculated by conviction rates? Conviction rates may reflect a number of factors: changes in driving behaviour and increased or decreased levels of
enforcement as well as the impact of legislation. Therefore, there is no single criterion by which the success of past legislation can be measured, nor the success of any future legislation anticipated. [1] In this report, criminal history refers to convictions for any Standard List offences. These are described in Appendix I.
Abstract
The report describes research carried out as part of a study commissioned by the Road Safety Division of the Department for Transport, Local Government and the Regions. Following the Road Traffic Law Review (commonly known as the North Report) in 1988 a number of legislative changes were made, reflecting concerns about the way in which motoring offences were dealt with by the criminal justice system. The purpose of the study was to evaluate the effect of the 1991 Road Traffic Act on the prosecution of dangerous drivers and to examine criticisms of current legislation and practice. It investigates the criteria being used to determine the charges and sentences for those drivers. The report explores the extent to which the criminal justice system, in implementing the 1991 Road Traffic Act, has achieved the aims intended by the North Report and the subsequent legislation. The research identified concerns that the aims of the legislative changes have not been fully realised. A number of changes in legislation and procedures have been suggested by
individuals and representatives of agencies invited to contribute to the research; the report describes and evaluates these suggestions. Areas of concern in the prosecution and conviction of dangerous drivers are identified and examined.
Chapter 1
IntroductionThis report describes the results of a study commissioned by the Road Safety Division of the Department for Transport, Local Government and the Regions to evaluate the impact of the 1991 Road Traffic Act on the prosecution of dangerous drivers.[1] The study looked at the operation of road traffic law, as it relates to Dangerous Driving. The last review of motoring offences was reported on in 1988 in the Road Traffic Law Review Report (Department of Transport and Home Office, 1988), hereinafter referred to as the North Report. The Road Traffic Law Review was set up on 31 January 1985 just after the publication of the report on road safety by the Transport
Committee of the House of Commons, which examined ways of further reducing the number of road casualties. The Committee recognised the role of road traffic law as one element influencing road user behaviour and, amongst a wide range of recommendations, advocated that measures to simplify the law should be investigated.
It is useful here to describe in brief how the interpretation and punishment of Dangerous Driving has changed over the years, in response to varying opinion as to how 'bad' driving should be viewed. This is a particularly difficult area of the law, as is demonstrated by history.
In the Motor Car Act of 1903 the offence of reckless driving was introduced. In the 1930 Road Traffic Act there were two offences: 'Reckless or Dangerous Driving' and 'Careless Driving'. In 1956 a third offence of 'Causing Death by Reckless or Dangerous Driving' was introduced, to avoid having to employ the charge of manslaughter in these cases. It was felt, at that time, that juries were reluctant to convict drivers of manslaughter. Subsequently there was some debate as to whether the consequence (e.g. death or injury) as opposed to the nature of the driving had a place in the
judgement of an offence. The James Committee on the Distribution of Criminal Business between the Crown and Magistrates' Courts (1975) and a Working Paper on Offences against the Person produced by the Criminal Law Revision Committee in 1976, both recommended the repeal of the 'causing death' offence. It was argued that, 'unless the act amounted to murder or voluntary homicide,' the fact that death was caused was purely fortuitous.
In the Criminal Law Act of 1977 the offences of 'Reckless or Dangerous' were re-worded as simply 'Reckless'. However, the North Report found that this too caused a problem, in that the prosecution had to prove 'recklessness', i.e. the driver's state of mind at the time. A more objective test of 'very bad driving' was sought. The relevant conclusions from the North Report are reproduced in
Appendix A.
The Government response to the North Report, entitled The Road User and the Law (Home Office et al, 1989), agreed with the Report that the reckless driving offence was not operating as it should in England and Wales, where emphasis was on the driver's attitude (recklessness) rather than the objective quality of the driving (dangerousness). The response proposed to replace the offences with ones based more firmly on the actual standard of the driving.
The offences relating to bad driving were reformulated in the 1991 Road Traffic Act, to more readily identify and punish dangerous drivers. Much of the Act was based on the recommendations of the North Report. The earlier offences of 'Reckless Driving' and 'Causing Death by Reckless Driving' were replaced by 'Dangerous Driving' and 'Causing Death by Dangerous Driving'. These changes were intended to move the emphasis from the driver's state of mind to the objective quality of the driving. It should be noted that this problem with the Reckless Driving offence was not
regarded as such within the Scottish justice system. The test for recklessness laid down in Scotland by the High Court in Allan v Patterson (Scots Law Times, 1980 JC 57; 1980 SLT 77) provided much of the basis for the wording of the replacement offence:
'Judges and juries will readily understand... that before they can apply the adverb 'recklessly' to the driving in question they must find that it fell far below the standard of driving expected of the competent and careful driver and that it occurred either in the face of obvious and material dangers which were or should have been observed, appreciated and guarded against, or in circumstances which showed a complete disregard for any potential dangers which might result from the way in which the vehicle was being driven.' (Scots Law Times, 1980.)
There are four questions in particular which the research sought to answer:
• Has the 1991 Road Traffic Act made a difference to the pattern of prosecutions and convictions for Dangerous Driving and Careless Driving?
• Is there a problem in the current definitions of Dangerous Driving and Careless Driving which results in the lesser charge of Careless Driving covering a wide range of behaviour from minor inattention to serious negligence?
• Is there a need for a new offence of Causing Death by Careless Driving?
• Are the heavier sanctions available for Dangerous Driving being used to the degree intended by the legislators?
The new offences of Dangerous Driving and Causing Death by Dangerous Driving replaced the offences of driving recklessly, which were much criticised in England and Wales. The intention was that the determination of what amounts to driving dangerously would be by means of a test which concentrates upon the nature of the driving rather than the defendant's state of mind (Wallis, 1991). The research examined whether such a test is appropriate in terms of culpability, and how this test is implemented in practice.
The study examined the extent to which the consequences of bad driving (death or injury) play a part in the decision-making process. Although there are separate offences of Dangerous Driving and Causing Death by Dangerous Driving, and a less serious offence of Careless Driving, there is no offence of Causing Death by Careless Driving (except where alcohol or drugs are involved). This, together with the much higher penalty for Dangerous Driving where a death results, has caused some debate on how far the system does (or should) focus on the standard of the driving alone, as opposed to the consequences.
Further argument centres on whether the 'deliberate' nature of some kinds of bad driving should attract the highest penalties, or whether the potential danger should be the key issue, regardless of the actual consequences.
[1] Throughout the report the term 'driver' should be taken to include drivers of any motorised vehicle and riders of motorcycles.
Chapter 2
Current Position 2.1 Current legislationThere are three offences with which this research is concerned: Section 1: Causing Death by Dangerous Driving
Section 2: Dangerous Driving
Section 3: Careless and Inconsiderate Driving [1]
According to current legislation, a driver is guilty of Dangerous Driving if:
• The way he or she drives falls far below what would be expected of a competent and careful driver; and
• It would be obvious to a competent and careful driver that driving in that way would be dangerous Whereas dangerous is explicitly defined within the 1991 Act, careless is not.
There are two forms of the Careless and Inconsiderate Driving offence:
• Driving Without Due Care and Attention
• Driving Without Reasonable Consideration for Other Road Users
So far as the first is concerned, the evidence must show that the defendant's driving fell below the required standard, in that he was not displaying the proper care and attention of a reasonable, competent and prudent driver.
For the second, in England, the evidence must show that other road users were inconvenienced by the inconsiderate driving of the defendant. (Dobbs and Lucraft, 1995) (Dilkes v Bowman Shaw, 1981 RTR4). As noted in Wheatley (2000), it does not appear to have been established in Scotland whether the prosecution is required to prove that actual inconvenience was caused to other road users or whether such inconvenience was merely liable to occur.
Although these two different forms of the offence require quite different types of evidence, they are often referred to under the general heading of Careless Driving.
The current penalties are shown in Table 1 below. For comparison, the penalties for the offence of Causing Death by Careless Driving under the influence of drink or drugs are also shown.
Table 1: Penalties for offences
Offence Maximum Penalties
Imprisonment Fine Disqualification Penalty Points
Dangerous Driving*
2 years minimum exceptionally not disqualified) Dangerous
Driving* 2 years Unlimited Obligatory
3-11 (if exceptionally not disqualified) Causing Death by
Careless Driving when under the influence of drink or drugs
10 years Unlimited Obligatory 2 years minimum 3-11 (if exceptionally not disqualified) Careless and Inconsiderate Driving - £2,500 Discretionary 3-9
* Where a court disqualifies a person on conviction for one of these offences, it must order an extended re-test - about twice as long as the ordinary driving test. The courts also have discretion to order a re-test for any other offence which carries penalty points: an extended re-test where disqualification is obligatory, and an ordinary test where disqualification is not obligatory.
Recent proposals for two new unintentional killing offences as part of a reform of the law, in England and Wales, on Involuntary
Manslaughter (Home Office, 2000) are: RECKLESS KILLING
A person commits reckless killing if:
• His or her conduct causes the death of another;
• He or she is aware of a risk that his or her conduct will cause death or serious injury; and
• It is unreasonable for him or her to take that risk having regard to the circumstances as he or she knows them to be
KILLING BY GROSS CARELESSNESS A person commits killing by gross carelessness if:
• His or her conduct causes the death of another;
• A risk that his or her conduct will cause death or serious injury would be obvious to a reasonable person in his or her position;
• He or she is capable of appreciating that risk at this material time (but did not in fact do so)
• His or her conduct falls far below what can reasonably be expected in the circumstances; or
• He or she intends by his or her conduct to cause some injury, or is aware of, and unreasonably takes, the risk that it may do so, and the conduct causing (or intended to cause) the injury constitutes an offence
2.2 Legal principles
This section examines some of the legal principles which operate in this and other areas of law. It is not an exhaustive explanation of aspects of law which impact on motoring offences, but describes some of the underlying principles which are relevant to this research. If it is reasonable to assume that driving a car demands a duty of care on the part of the driver, then Careless Driving is clearly a failure to exercise the required degree of care. It might be assumed that
Dangerous Driving is a quite different type of behaviour; not a failure to exercise care but a planned behaviour - one where the driver intentionally drives in a certain way without regard to the safety of other road users, whilst being aware of the danger that driving in such a way poses. Although this appears to provide a quite clear
distinction between the two offences, it is evident from the research that, in practice, the distinction is not clear. In many ways they are not regarded as distinct offences, but as an arbitrary distinction between the most 'serious' bad driving and the rest, with a significant grey area covering offences which could be interpreted one way or another. Another key issue, therefore, is the degree of care that is demanded of the driver.
The North Report (Department of Transport 1988) describes how an effect of road traffic law is to place an onus or duty on the driver to exercise care, to look for signs, to keep an eye on the speedometer, and to look carefully before emerging at junctions. Offences, that Report notes, will often be ones of omission, not commission. The earlier offences of Reckless Driving and Causing Death by Reckless Driving were problematic to English and Welsh courts primarily because it was held to be necessary to prove the state of mind of the driver. This requirement to show mens rea, generally held to be central to the concept of criminal liability, involves a subjective inquiry into the actual state of mind of the accused at the time of the offence. The rejection of this principle is, perhaps, an indication of the separation of motoring offences from the rest of criminal law.
The changes in legislation brought about by the 1991 Road Traffic Act were intended to focus attention on the standard of driving rather than the mental state of the driver.
This, taken at face value, seems to imply that a manoeuvre which poses a danger to other road users should attract equal punishment regardless of whether the driver carried out that manoeuvre
deliberately (in order to make speedier progress, for example) and was aware of the risk, or by mistake. This seems at odds with most people's sense of justice. It is certainly not the way in which the law is being interpreted by the agencies involved in prosecution. Section 2A(3) of the 1991 Road Traffic Act states: 'regard shall be had not only to the circumstances of which he could be expected to be aware but also to any circumstances shown to have been within the
knowledge of the accused'. Consideration is given, when deciding the appropriate charge and in debates in court, as to whether the driver was aware of the risks he or she was taking. If the defendant was driving the wrong way up a one way road, which is clearly potentially dangerous, it is natural to ask whether he or she was aware that they were entering a one way road. If in fact a driver intentionally drove up a one way road it seems likely that the verdict would be that he or she was guilty of Dangerous Driving. The difference here is one of intention. How much the intentions of the defendant should direct the charge is a key issue. In examining intentions there is a need to be clear about whether it is intention to harm, intention to violate or intention to take risks which is in question.
In modern law, if A injures B, the legal consequences will depend on A's state of mind at the time. If it was A's intention to injure B, they may be liable to criminal prosecution and punishment (Jacobs, 1971). Jacobs holds that recklessness equates here with intention. If
accepted, this would give the same weight to an intention to take risk as an intention to harm. If there was no intention to injure they will not be criminally liable, but B may succeed in a civil action against A if they can show that A was negligent. If this were accepted as the basis for defining the bad driving offences it would follow that 'reckless' driving would be a criminal offence requiring proof of the state of mind of the driver, and 'careless' driving would not be a criminal offence but would be a matter of civil liability. Clearly this is not the case. Elsewhere, arguments can be found for the inclusion of various degrees of negligence in criminal liability. One
explanation for the differences between the meaning of expressions like 'inadvertently' and 'negligently' says that the former describes only the state of mind in which someone acted, whereas the latter also refers to the fact that he failed to comply with a standard of conduct with which any reasonable man could and would have complied (Hart, 1968). To define the degree of negligence which might be liable to criminal prosecution is a difficult task, and to describe it in such as way as to be universally interpreted in the same way even more so. One such attempt described 'such disregard for the life and safety of others as to deserve punishment' (Kenny 1946), whilst pointing out that the term 'criminal negligence' is of no help as 'To direct a jury that negligence must be criminal if they are to
convict, is to tell them that negligence is criminal if they are of the opinion that it amounted to a crime'.
There is an argument that deaths resulting from road traffic accidents should be treated in the same way as other deaths. In particular, for example, there is some disquiet that the recent proposals to reform the law on Involuntary Manslaughter (described in Section 2.1) do not affect the current road traffic offences. The alternative view is that there are a number of fundamental differences between the behaviour that results in a road traffic fatality and that which leads to most other deaths.
Attempts to grasp the underlying legal principles are confused further by the semantics used in describing both the actions and
consequences of bad driving. It is common practice to refer to
'accidents', even where there is no doubt that the collision was caused entirely by the bad driving of another driver. Furthermore, the term 'careless' is generally used to refer to minor omissions with no serious consequences, whereas 'Careless Driving' may result in a death. It is one of the common complaints from those who lobby for changes in the law that 'carelessness' is not an appropriate description for a failure to drive in a responsible and safe fashion. A comment heard frequently in current debates is that 'carelessness is spilling milk'. The difficulty here is that 'careless' can refer to any failure in care, from minor instances to those where taking care is of critical importance. Whilst it clearly encompasses a failure to fulfil a duty of care, everyday use of the term has trivialised it.
Another key issue, tackled by the North Report but still causing debate, is the extent to which the consequences of driving in a certain way should be taken into account. There are conflicting schools of thought on this. What is clear, however, is that two similar pieces of driving can result in a collision in one instance and have no
consequences in another. Similarly, whether a fatality results from a collision depends upon a number of circumstances, some of which are unrelated to the blameworthiness of the driver.
The principle that the gravity of a crime is a function not only of the offender's intention to cause harm, but of the actual harmfulness of the conduct is applied in many cases in the sentencing policy of courts, but less so in the classification of offences (Jacobs, 1971). It is apparent that actual harmfulness is relevant in motoring offences, however, in the existence of two Dangerous Driving offences
(Section 1 and Section 2), the only difference between them being the consequences. The differing penalties available for these two
offences further reinforce an underlying belief that the consequences alone make the offence of Causing Death by Dangerous Driving a more serious one. This difference may be regarded as reflecting the view of society on the sanctity of human life.
One of the key questions addressed by this research is whether there ought to be an offence of Causing Death by Careless Driving to 'fill the gap'. It is important to be clear what legal and moral principles would be behind a decision to create such an offence. The absence of this offence currently implies a view that the sort of behaviour which falls into the category of Careless Driving is not of sufficient
culpability that society would wish to hold the driver responsible for the consequences as well as the behaviour itself. It is true that, as in instances of Careless Driving, whether or not an act of Dangerous Driving results in a fatality is, at least partly, a matter of chance. The difference between the two categories of offence, which lies behind the argument to create a separate offence of Causing Death by Dangerous Driving but not one of Causing Death by Careless
Driving, must be that the behaviour categorised as dangerous carries sufficient culpability that it exposes the motorist to the additional risk of being held responsible for the consequences of his or her actions as well as the action itself.
The disquiet expressed at some of the decisions in court is fuelled by uncertainty as to whether the consequences of bad driving should be a factor in determining both the charge and the sentence. It could be argued, for example, that as the consequences of overtaking on a blind bend may be a fatal accident in one instance, but nothing in another, the consequences should be irrelevant. The decision to undertake such a dangerous manoeuvre is what should be punished, and the fact that no car was coming the other way is sheer luck which in no way detracts from the nature of the offence. However, a recent decision in the Court of Appeal stated:
'It is often a matter of chance whether death or serious injury results from even a serious breach. Generally, where death is the
consequence of a criminal act it is regarded as an aggravating feature of the offence. The penalty should reflect public disquiet at the unnecessary loss of life.'
It is clear that there are a number of issues which are relevant in the determination of offences. It is not possible for this research to do more than highlight key issues, and attempt to relate them to current and proposed legislation.
2.3 Procedures
The same legislation for motoring offences applies throughout Great Britain. The criminal justice system in Scotland, however, is quite different from that in England and Wales. The research has looked at both systems.
The process by which a driver is convicted of Dangerous Driving involves a number of different agencies and different procedures. The first part of the process is that the police will investigate an accident
or incident and provide a written report. Depending on the circumstances, specialised police accident investigators may be involved. If necessary, forensic evidence will be gathered.
Subsequent stages vary between the countries, and are described in the two following sections. This is not intended to be a
comprehensive explanation of the legal system in either country. 2.3.1 SCOTLAND
• The police report of a crime is submitted to the Procurator Fiscal who will make the decision as to the appropriate charge, if any, at this stage.
• In serious cases appropriate for trial on indictment (solemn proceedings), either before a sheriff and jury or in the High Court, the Procurator Fiscal makes his or her own
investigation of the circumstances, conducting interviews (precognitions) with the main witnesses and gathering forensic and other evidence. The Procurator Fiscal will then report the case to Crown Counsel for instructions. Crown Counsel are experienced practising members of the Faculty of Advocates appointed by the Lord Advocate to serve as his or her deputies. Crown Counsel instruct whether proceedings should be initiated and if so on what charge and in what forum (i.e. High Court, sheriff and jury or sheriff summary). • In less serious cases which are appropriate for trial before a
sheriff sitting alone (summary proceedings), the Procurator Fiscal will generally rely on the police investigation and will not carry out his or her own investigation, although he or she will instruct further investigation where appropriate. The Procurator Fiscal makes the final decision on whether proceedings should be taken and if so on what charge.
• All sudden, suspicious, accidental, unexpected or unexplained deaths are reported to the Procurator Fiscal. Therefore, where a death results from a road traffic accident the Procurator Fiscal is involved in the investigation of the death at the earliest stage. The Procurator Fiscal will enquire into the circumstances and, where there is the possibility of criminal proceedings, whether solemn or summary, will report the case to Crown Counsel for instructions. Crown Counsel will instruct whether proceedings should be initiated and if so on what charge and in what forum (i.e. High Court, sheriff and jury or sheriff summary). Therefore, in all road traffic cases in which a death is involved and there is the possibility of
criminal proceedings, the final decision is taken by Crown Counsel.
• Road traffic cases which do not involve a death do not need to be reported to Crown Counsel, but those which are considered to be sufficiently serious to justify solemn proceedings must
be reported by the Procurator Fiscal to Crown Counsel for instructions.
• Proceedings may involve a number of appearances at court,
known as 'diets'. If Crown Counsel instruct solemn
proceedings in the High Court, the accused is served with an indictment which requires him or her to appear at the trial diet. A preliminary diet may be fixed to deal with preliminary issues but such a diet is not mandatory. In the case of a sheriff and jury trial, the indictment served on the accused requires him or her to appear at a first diet and a trial diet. In summary procedure, if the accused pleads not guilty at the pleading diet, an intermediate diet and trial diet are fixed. Causing Death by Dangerous Driving is a solemn offence, taken on indictment, whilst Dangerous Driving may be taken as a summary case. Careless Driving is a summary offence. • In Scotland, virtually all cases are heard in the sheriff court.
Some solemn cases may subsequently be remitted to the High Court, if the sheriff feels that the offence merits a greater sentence than the three years which he or she can give. • In a sheriff court it is the job of the sheriff (in summary
proceedings) or the jury (in solemn proceedings) to decide whether the accused is guilty of the offence with which he or she has been charged. All Death by Dangerous Driving cases are heard by jury. The sheriff will explain to a jury the criteria they should apply in making that decision. In some situations a sheriff will direct a jury; he or she may, for example, instruct a jury to acquit the accused if they feel there is insufficient evidence upon which the jury could reach a verdict. Sheriffs also direct the jury on the law and the jury are obliged to follow their directions. Sheriffs may review the evidence, but they are not obliged to do so.
• After the evidence has been heard, and arguments for prosecution and defence made, a verdict will be returned by the jury (in a solemn case) or a sheriff (in a summary case). • The sentence will be decided by the sheriff.
• There is no equivalent procedure to a Coroner's Inquest in Scotland; however, in some cases a Fatal Accident Inquiry may be held to determine the cause. The scope and nature of such an inquiry are defined in the Fatal Accidents and Sudden Deaths Inquiries (Scotland) Act 1976. These apply equally to road traffic fatalities and to other sudden or violent deaths. An Inquiry must be held if a death occurred in the course of employment or whilst the deceased was in custody. If there is a criminal trial, and it is deemed that all the circumstances have been adequately explored, the Lord Advocate can waive the need to hold an Inquiry. In addition, the Lord Advocate may instruct that a discretionary Fatal Accident Inquiry be held where the circumstances of the death give rise to issues of public safety or serious public concern, or where there is suspicion that, for example, a system or procedure contributed
to the death. If it is felt, for example, that defective road signs contributed to an accident, a Fatal Accident Inquiry might be held to investigate that issue. In such instances the Procurator Fiscal will discuss with the next of kin their views on the desirability of a Fatal Accident Inquiry. Those views will be conveyed to Crown Counsel and will be taken into account. 2.3.2 ENGLAND AND WALES
• In cases involving a fatality the police will normally seek Crown Prosecution Service (CPS) advice at an early stage, but otherwise it is common practice for the police to issue
process, by laying any information before a magistrates' court who then serve a summons upon the defendant. The police have the statutory power to arrest a person for an offence of Causing Death by Dangerous Driving if they have reasonable grounds for suspecting that he or she is guilty of that offence, and are then likely to charge him or her before referring the matter to the CPS.
• The police report will be passed to the CPS for review. They will make the final decision as to the appropriate charge, if any. Where a charge has been put to the court by the police, the CPS may apply to the court to amend the existing
summons or charge, add or substitute for it further allegations, or discontinue the proceedings altogether.
• When reviewing the evidence against the defendant at any
stage the CPS will do so in accordance with the criteria contained in the Code for Crown Prosecutors. If it is decided that there is a charge to answer, that it is in the public interest to prosecute, and that there is a realistic prospect of
conviction, the case will go to court.
• In England, although every case involves initial appearances at a magistrates' court, the ways in which various bad driving offences are dealt with differ. Careless Driving is a summary offence, which will be dealt with by a magistrates' court. Causing Death by Dangerous Driving is an indictable offence, which must be heard in a Crown Court. Dangerous Driving is an 'either way' offence. It may be dealt with by the
magistrates' court, but if the offence is deemed, by them, serious enough to warrant a greater sentence than they can impose, the case will be passed to the Crown Court.
• If the charge is a summary offence, the complaint must have been made (i.e. the information received by the clerk to the justices' office) within six months of the offence being committed.
• The CPS will appoint a prosecutor to be responsible for the case. A defence lawyer will be employed by the defendant (or appointed for them). These lawyers will represent the case for prosecution and defence in the magistrates' court. At present, if the case goes to Crown Court, a barrister will be appointed
by the CPS to argue the case in court. This is in the process of changing, so that CPS prosecutors will be able to prosecute cases in Crown Court without having to appoint a barrister. • In a Crown Court, the job of the jury is to decide whether a defendant is guilty of the offence with which they have been charged, The judge will explain to a jury the criteria they should apply in making that decision. In some situations a judge will direct a jury; they may, for example, instruct a jury to acquit the defendant if they feel there is insufficient
evidence upon which the jury could reach a verdict. The role of the judge is central, as he or she is in a position both to interpret the law for the jury and to summarise what they see to be the key elements of the case.
• After the evidence has been heard, and arguments for
prosecution and defence made, a verdict will be decided. This may be the decision of a panel of three lay magistrates or one District judge (magistrates court) (formerly known as a Stipendiary Magistrate) in the magistrates' court or a jury in a Crown Court. In a magistrates' court advice on matters of law, practice and procedure will be given to lay magistrates by a justices' clerk, who will generally be a barrister or solicitor with a magistrates' court qualification. A District judge (magistrates' court) will also have legal qualifications. • The sentence will be decided, based on guidelines, by the
magistrates or the Crown Court judge.
• Where a death has occurred, a Coroner's Inquest will be held. The purpose of the inquest is to establish the cause of death. This process is begun prior to the criminal proceedings, but where a charge of Causing Death by Dangerous Driving (or manslaughter) has been brought, the inquest is adjourned until the case has been heard. When the trial is over the coroner will not normally resume the inquest.
Chapter 3
Methodology3.1 Research design
The objective was to gain an understanding of the current situation relating to the prosecution of those charged with bad driving offences, and to assess how current practice satisfies the intention behind the changes in legislation. This was done in a number of ways:
• Examining individual cases and their outcomes (case tracking)
• Interviews with representatives from the Crown Office and the Crown Prosecution Service
• Interviews with individual Crown Court judges, magistrates, sheriffs, police officers, lawyers, Crown Prosecutors and Procurators Fiscal
• Interviews with victims' families and representatives from victim support organisations • A postal survey to assess agreement with views expressed in discussions with interviewees
• Analysis of conviction data held by DVLA
• Analysis of non-motoring conviction data held by the Home Office
• Analysis of the prosecutions and convictions resulting from a sample of fatal accidents The research examines the prosecution of Dangerous Driving both in England and Wales and in Scotland. The 1991 Road Traffic Act applies throughout Great Britain, but in the context of quite different legal systems. In addition, different legal precedents are applied.
In order to avoid the effects of regional variation, eight geographical regions were selected for examination. Contacts were established in eight police forces, representing six urban, provincial and rural areas in England and two forces in Scotland. These areas were used to provide the individual cases to be followed as well as the qualitative interviews.
3.2 Research tasks
3.2.1 CASE TRACKING
A major part of the work carried out has been the identification and 'tracking' of a number of current cases where a charge of Careless Driving, Dangerous Driving or Causing Death by Dangerous Driving had been brought. This involved identifying potentially suitable cases,
attending the trial and/or sentencing hearing, and, in some cases, conducting interviews with police, prosecutors, judges or magistrates. Over 100 cases were identified as suitable to be 'followed'. A number were rejected from the study as being such minor offences as to be of little interest. Others had not reached a conclusion by the time of writing, due to adjournments or because the defendant had absconded. Eighty-four cases of Causing Death by Dangerous Driving, Dangerous Driving, and Careless Driving were analysed. Sixty-four of the trials were attended by TRL researchers. A further 20 cases, for which details of the incident and outcome were obtained, have been included in the analysis. This was a huge task, as frequent adjournments, absconding defendants and 'provisional' trial dates required a constant monitoring of developments.
The cases were identified through contacts within the eight police forces and also through the CPS and Procurators Fiscal's Office. The criteria for selection were that the cases were coming to trial during the duration of the research and that the charge was Causing Death by Dangerous Driving, Dangerous Driving or Careless Driving.
By identifying how common features across a number of cases are dealt with, it was hoped to highlight the areas which require further clarification or guidelines. By attending trials the researchers were able to listen to the arguments made by both prosecution and defence. This provided much information on how those who deal with the legislation understand the relevant criteria for determining whether a driver is guilty of Dangerous Driving, or of the lesser offence of Careless Driving. In addition, once a verdict had been reached, the researchers were able to hear explanations of any mitigating or aggravating factors in the final sentence.
It was decided at an early stage to reject from the study cases where alcohol or theft of the vehicle were involved. It has been indicated that where another serious charge was put forward which was easier to prove, there might be less pressure on the prosecution to prove that the driving was dangerous. This is because, in many cases which involve multiple offences, not all of the possible charges are brought (see Section 4.6.2.4). Therefore, for the purpose of this research it was decided to concentrate on those cases which rested solely on the standard of driving alone (and, arguably, its consequences), in order to fully examine how the procedures and legislation were applied. In a few cases which were followed, some suspicion that alcohol was involved emerged, but without the evidence to pursue a drink driving charge. It was felt that in those cases (S4 being an example) the Dangerous Driving charge would be of paramount importance.
Each case was attended and a summary report written describing what was known about the incident leading to the charge, and the arguments, evidence, verdict and sentence. As trials can be lengthy and involve much technical evidence, a condensed report was produced containing the key features of each case. These are presented in full in Appendix J.
During several of the trials attended during the research, opportunities arose to meet and discuss both specific and general issues with those involved in the case, who included barristers, police officers, accident investigators and forensic scientists as well as the families of victims.
These explorations sought to investigate a number of claims which have been made, including: • Whether 'lesser' charges, e.g. Careless Driving, are being brought where a charge of
Dangerous Driving might be appropriate given the circumstances of the incident
• Whether judges, magistrates and sheriffs do not use the full extent of the sentencing powers available to them
• Whether proper consideration is given to the families of victims who may be attending the trial
• Whether prosecutors have sufficient understanding of both the specific incident and road traffic law in general to present the case strongly enough
• Whether lay magistrates (in England and Wales) in particular are too lenient in dealing with bad driving
In addition, a database was created to facilitate analysis of the cases. In creating the database a system of categorising cases was developed in order to compare the treatment of different types of bad driving. The categories were based on the concept developed by Reason et al (Reason, 1990). Cases were assessed on the basis of the description of the incident as being either a violation, error or lapse. An additional category of aggressiveness was added, as it was felt that violation itself as a category did not draw sufficient distinction, for the current purpose, between, for example, a simple contravention of a road traffic signal and a display of blatantly aggressive driving which may or may not include specific violations. It should be understood that these terms have been used in this research as a useful means of distinguishing between broad categories of driving behaviour. They
are not being used as intended by the originators. Each case was examined and a judgement made on the basis of available facts. A rough definition of the categories follows:
• Violation: instances where traffic laws were breached, e.g. excessive speed, ignoring traffic signs
• Error: instances where it appeared that the defendant made an error of judgement; for
example, pulled out of a junction having misjudged the speed of, or failing to see, oncoming traffic
• Lapse: instances where the accident appeared to have been caused by inattention, whether momentary or prolonged
• Aggressiveness: instances where the evidence suggested deliberate and blatant bad driving 3.2.2 INTERVIEWS
Interviews were held with representatives from the Crown Office and the Crown Prosecution Service, individual Crown Court judges, magistrates, sheriffs, police officers, lawyers, Crown Prosecutors, Procurators Fiscal, victims' families and representatives from victim support organisations.
By discussing the procedures with those involved, it was hoped to gain an understanding of the strengths and weaknesses of both road traffic legislation and the procedures themselves.
The interviews were carried out with the aim of identifying:
• The criteria used to determine what constitutes Dangerous Driving • Views on bad driving and how it should be dealt with
• The procedures followed in cases of bad driving
• The problems encountered in applying the provisions of the 1991 Road Traffic Act
• Individual cases which might illustrate how the system deals with bad driving
• Views on how the system might be improved
As well as covering the above objectives, the interviewees were encouraged to discuss freely any views they might feel were relevant to the research. This informal approach provided the
researchers with a broader picture of the problems encountered in the enforcement of Road Traffic Law.
The interviews were qualitative, rather than quantitative. This provided some in-depth information on the problems encountered by the individuals and their respective agencies.
Interviews were carried out with representatives of the eight selected forces to gain an
understanding of their role in identifying Dangerous Driving. Officers at different levels within the force participated, including those involved in active traffic policing, accident investigation and senior officers responsible for a more strategic view. Some time was also spent accompanying traffic police on patrol in two of the selected areas. Twenty-nine interviews were carried out with police officers.
Interviews were also carried out with representatives of the Crown Prosecution Service in England and the Crown Office in Scotland, to examine their role in the prosecution of offenders. These covered both the 'policy' view of those in central policy units and individual views of prosecutors in
regional offices. This included six interviews with CPS prosecutors and five interviews with Procurators Fiscal.
Discussions took place with representatives of victim support organisations, namely BRAKE, RoadPeace and SCID. Through these contacts it was hoped to gain awareness of the operation of the criminal justice system from the perspective of the victim.
Interviews were also held with 10 magistrates, eight justices' clerks, four Crown Court judges, two sheriffs,[1] two coroners and four barristers. Some time was spent 'shadowing' a crown court judge during a Dangerous Driving trial to gain further insight into the process in English courts.
All of the views expressed have contributed towards an understanding of the complex system of justice and the way in which road traffic offences are viewed.
3.2.3 POSTAL SURVEY
Having established a number of key issues, a more quantitative survey was carried out to establish the extent of agreement with the views expressed in earlier interviews. This survey was distributed to a sample of police officers at different levels in Scotland and England, magistrates, CPS
prosecutors, Procurators Fiscal and Crown Court judges. Responses were received from 79 police officers, 34 CPS prosecutors, 11 magistrates and 10 Crown Court judges. A copy of the
questionnaire is reproduced in Appendix B. It was not possible to obtain views from a sample of sheriffs, but a brief statement was provided from the Council of the Sheriffs' Association, stating that their members find no difficulty in convicting or sentencing drivers under current legislation. It should also be noted that a number of Procurators Fiscal participated on the basis that their views would not be attributed.
3.2.4 ANALYSIS OF CONVICTION DATA HELD BY DVLA
The driver history of all drivers with a conviction for a Dangerous Driving or Careless Driving offence between 1987 and February 2000, where that conviction was still on file, was obtained from DVLA. Analyses of these records are described in Sections 4.11 and Appendix C. The analysis examined the characteristics of offenders, such as age, sex and socio-economic grouping, and patterns of re-offending. A 'survival' analysis (see Appendix D for full explanation) was carried out to determine whether particular groups were more likely to re-offend, and whether there was a relationship between re-testing penalties and re-offending.
3.2.5 ANALYSIS OF CONVICTION DATA HELD BY THE HOME OFFICE
An analysis of the criminal history of dangerous drivers was carried out based on a sample of offenders drawn from the Offenders Index. The Index, held by the Home Office, is one of the largest criminal databases in Europe and holds the criminal histories of all those people convicted of a standard list offence[2] in England and Wales from 1963 onwards. The sample consisted of offenders convicted on 30 particular days in 1996 (1-15 March 1996 and 1-15 November 1996), 42,879 offenders in total which is equivalent to around 14% of all offenders convicted of an indictable offence in 1996. The analysis is described in Section 4.10 and examines the relationship between driving offences and other criminal offences.
3.2.6 ANALYSIS OF FATAL ACCIDENTS
In order to examine what happens, in terms of convictions, after a fatal accident, the police files for 5,943 fatal accidents in England and Wales were examined. These accidents occurred between1989 and 1995, which covered the introduction of the 1991 Road Traffic Act. The majority of these files hold information on any offence for which a driver was reported, prosecuted or convicted. In many cases the sentence was also recorded. The files also record where the initial investigation found that the driver at fault was killed, or that a pedestrian fatality was deemed to have been caused primarily by the actions of the pedestrian. This information was collected and analysed as part of this
research.
[1] It should be noted that Sheriffs' remarks contained in the Report are personal observations and do not represent the views of the Sheriffs' Association.
[2] Standard list offences are all indictable or triable either way offences (explained in Section 2.3.2) plus a few of the more serious summary offences. Examples are given in Appendix I.
Chapter 4
4.1 Analysis of fatal accidents
The analyses described in this section are based solely on information from accidents in England and Wales. It was not possible to obtain similar information for Scottish fatal accidents within this research.
There are many sources of information on convictions and sentences for different motoring offences, in particular the statistics published annually by the Home Office. Analysis of driver records held by DVLA, carried out as part of this research, provide further information, which is described in Sections 4.2 and 4.11. What these do not show is the relationship between fatal accidents and judicial consequences. It is simple to establish how many of the 3,600 fatalities in a year result in someone being convicted of Causing Death by Dangerous Driving (although it is not clear whether multiple fatalities from one incident always result in multiple convictions), but no records are kept to indicate how many of those fatalities result in a conviction for Careless Driving, as the offence statistics do not indicate whether a fatality was involved. There are also cases
involving fatalities where there may be a prosecution or conviction for Dangerous Driving. This would happen where there was sufficient evidence to prove that the driving was dangerous, but not that it was the cause of the fatality. Case U2 in Appendix J is an example of this.
The files examined were provided by several different police forces in England and Wales, and spanned a period of time (1989 to 1995), which included the introduction of the 1991 Road Traffic Act.
Of the 5,943 files examined, only 73 did not contain any information on reporting, prosecution or conviction. Because the events leading to sentencing may take months, if not years, some files contained information on the first 'stages' but not the final outcome. There was sufficient information recorded, however, to provide some useful findings. Where percentages are given below these are percentages of cases where the relevant information was recorded.
Of those fatal accidents where information on reported offences was available on the file (5,870): • In 2,581 cases (44%) the driver at fault was killed
• In 1,171 cases (20%) a pedestrian at fault was killed
• In 10% of cases a driver was reported for Causing Death by Dangerous Driving or Causing
Death by Reckless Driving
• In 20% of cases a driver was reported for Careless Driving
• In 1% of cases a driver was reported for Dangerous Driving or Reckless Driving • In 4% of cases the file was simply marked as no prosecution
• There were a number of other offences for which drivers were reported, none individually accounting for more than 2% of the total; in some cases these offences were unrelated to the accident, but will have been detected during the accident investigation
Examining what happened subsequent to a driver being reported[1] for an offence by the police, the following tables show the percentage of each where the CPS decided to prosecute (based on the criteria contained in the Code for Crown Prosecutors (Crown Prosecution Service, 1994)) for the offence originally reported.
Table 2: Prosecutions as a percentage of offences reported (Before the 1991 Road Traffic Act)
% of Prosecutions
Offence reported Causing Death by
Reckless Driving Careless Driving Other offences No prosecution Causing Death by Reckless Driving 86 0 0 14 Careless Driving <1 73 1 26
Table 3: Prosecutions as a percentage of offences reported (After the 1991 Road Traffic Act)
% of Prosecutions
Offence reported Causing Death by
Reckless Driving Careless Driving Other offences No prosecution Causing Death by Reckless Driving 85 4 1 10 Careless Driving 0 77 1 22
The following figures show the percentage of convictions resulting from those prosecutions:
• Of drivers prosecuted for Causing Death by Dangerous
Driving 79% were convicted of that offence
• Of drivers prosecuted for Causing Death by Reckless Driving
89% were convicted of that offence
• Before the Act, of drivers prosecuted for Careless Driving 87% were convicted of that offence
• After the Act, of drivers prosecuted for Careless Driving 92% were convicted of that offence
[1] Meaning that the police officer who was first informed of the accident, or subsequently investigated it, reported the driver internally to his superiors as having committed a particular offence.
