29 November 2023

Death by dangerous or careless driving cases can often be challenging as clients can underestimate the severity of penalties that can be imposed for acts or omissions that, though negligent, are largely unintended. The stakes are high and they are cases which require expert legal advice to navigate from the outset.

The first question that an individual will usually want to know when charged withany criminal offence is: Do I have a defence?  The legal test for careless driving is that the standard of driving fell below that of a careful and competent driver.  The legal test for dangerous driving is that the standard of driving fell far below that of a careful and competent driver.  It is not the clearest of distinctions and there can be fine margins as to what category the standard of driving falls under.

A person accused of dangerous driving will often accept that they were at fault for the accident, but will argue that the driving should be deemed careless, rather than dangerous.  There is a very good reason for this, as a conviction for causing death by dangerous driving will almost inevitably result in a custodial sentence, whereas there is a greater possibility that a person convicted of causing death by careless driving may avoid a prison sentence.

Which leads me on to what will usually be the next big question when a person is charged with a criminal offence: What will the sentence be if I am found guilty? This tends to be a very difficult question to answer, as it will depend on multiple factors.  However, from 16 January 2024, the Statutory Offences of Causing Death by Driving Guideline will come into force and this should hopefully bring a greater degree of certainty to the sentencing process.

How the Guideline Will Operate

After it comes into force, a court will need to have regard to the Sentencing Guideline when sentencing an offender convicted of a relevant offence.  If the court decides not to follow the guideline, then it will need to state the reasons for its decision.  It is difficult to envisage any scenario whereby the court would disregard the Guideline completely, so we can expect its universal application.

The Guideline sets out an 8 step process to arrive at the appropriate sentence.  Steps 1 – 4 are used to arrive at the “headline” sentence for the offence under consideration.  The headline sentence is selected by the court after assessing the seriousness of the offence and taking into account any aggravating and mitigating factors. 

Steps 5 – 7 will involve the Court taking into account any discount that should be applied to the case as a consequence of an offender pleading guilty at an early stage, or to reflect any time already spent in custody before sentence.  As a general rule, the earlier in the proceedings that a plea of guilty is entered, the greater the discount that should be applied to the sentence.

Step 8 involves the Court deciding on the actual sentence that is to be imposed.

The guideline will cover  the offences of causing death by dangerous or by careless driving.  The factors to be taken into consideration when arriving at the headline sentence for those offences will be looked at below:

1. Road Traffic Act 1988 Section 1: Causing Death by Dangerous Driving

Step 1 will involve an assessment as to the seriousness of the offence.  The two main factors that the court will look at in determining what category the standard of driving should come under are the “nature or manner of the driving” and the “capacity of the driver”.

Level A is the most serious category:  It covers a prolonged and deliberate course of bad or aggressive driving, with a disregard for the danger being caused to others; and it covers racing. 

It also covers cases involving gross impairment through the consumption of alcohol or illegal drugs. 

Level B is the middle category:  It includes driving that created a very significant risk of danger to others, aggressive driving (for example, persistent tailgating), grossly excessive speed for the road and/or prevailing conditions, and repeated disregard of road signals or signs (for example, traffic lights).

It will also cover cases involving impairment through the voluntary consumption of alcohol or illegal drugs, driving while avoidably distracted for a prolonged period (for example, through use of a mobile phone), and impairment as a result of driving when knowingly suffering from a medical or physical condition.  It will also cover ignoring warnings from others (for example, passengers).

Level C is at the lower end of the scale:  It includes a single dangerous manoeuvre or other driving which created a significant risk of danger to others, and driving at excessive speed for the road and/or the prevailing conditions.

It will also cover driving while knowingly deprived of rest, and driving while avoidably, but momentarily, distracted (for example, through the use of a mobile telephone).  It will also cover knowingly driving a vehicle which is in a dangerous state.

Step 2 will involve the Court selecting the appropriate sentence range.  The maximum sentence allowed by law for the offence of causing death by dangerous driving is imprisonment for life, however, the recommended sentencing range for each of the categories is as follows:

Level A: 7 – 12 years’ custody

Level B: 4 – 7 years’ custody

Level C: 2 – 5 years’ custody

The offender must also be disqualified from driving for a minimum period of five years and until an extended driving test has been passed. 

Step 3 will involve the court considering any factors which may aggravate or mitigate the offence.  Some examples are highlighted within the guideline, however, it is noted that the list is non-exhaustive and that the court may take into account any factors which it deems appropriate in the circumstances of the case.

Listed aggravating features include if more than one person was killed, or if serious injury was caused to any other individuals.  A mitigating factor would be if the accused person sustained a serious injury in the accident.

An aggravating feature would be if the offender has any relevant previous convictions.  A mitigating factor would be if the offender has a previous good record for driving.  Another mitigating factor would be if the offender was a family member or close friend of the deceased, and if they have shown remorse for the accident.

The circumstances of the accident and the offender’s actions at the scene will be taken into consideration.  If other offences were committed at the same time (for example, driving while disqualified or without insurance), then that would aggravate the offence.  However, if the offender provided assistance at the scene of the accident, then that would mitigate the offence.

How much weight will be attached to aggravating or mitigating factors will depend upon the views of the sentencing judge or Sheriff.  However, they can have a significant impact upon the headline sentence as it is noted in the guidelines that in some cases, they may move the headline sentence outside the range selected at step 2.

Step 4 will be to select the headline sentence.

2. Road Traffic Act 1988 Section 2B: Causing Death by Careless, or Inconsiderate, Driving

Step 1 is to identify the seriousness of the offence.  There are the following three categories: 

Level A – Careless or inconsiderate driving which falls not far short of dangerous driving.

Level B – Careless or inconsiderate driving which does not fall into level A or C.

Level C – Careless or inconsiderate driving arising from momentary inattention.

There is no guidance provided as to what specific actions by the driver may bring the offence under category A, B, or C.

Step 2 is to select the sentencing range:

Level A - Level 2 community payback order – 2 years in custody

Level B - Level 2 community payback order

Level C - Fine of up to £10,000 - Level 2 community payback order

The maximum sentence provided by law for this offence is 5 years imprisonment and the offender must be disqualified for a minimum period of twelve months.

Step 3 is to identify aggravating or mitigating factors.  These are almost identical to the factors in relation to dangerous driving, with one fairly significant addition to the mitigating factors – it will be considered a mitigating factor in relation to this offence if the offender was an inexperienced driver.

Step 4 will be to select the headline sentence.

Step 3 is to identify aggravating or mitigating factors.  These are almost identical to the factors in relation to dangerous driving, with one fairly significant addition to the mitigating factors – it will be considered a mitigating factor in relation to this offence if the offender was an inexperienced driver.

Step 4 will be to select the headline sentence.

Comment

The guidelines provide detailed and clear guidance in relation to what category offences of causing death by dangerous driving should come under, whereas, the guidance in relation to death by careless driving is in my view fairly ambiguous.  The reason for this can probably be found in the wide variety of actions that can render driving dangerous and the severity of the sentences that can be imposed – the lowest recommend headline sentence for causing death by dangerous driving is 2 years in prison and the highest is 12 years.

I consider that the main impact of the sentencing guidelines for defence solicitors is that the wording of the final charge that a client is convicted of will take on greater significance.  If the guideline is applied properly, then it should be apparent from the wording of the final charge what category it will come under.

An example would be if a client has been charged with causing death by dangerous driving and it is stated in the libel that he was racing another vehicle whilst travelling at excessive speed for the road.  The client does accept that he was traveling at an excessive speed for the road, but denies that he was racing another vehicle.  If he is convicted of the charge as it is libelled, then the offence would come under category A and the headline sentence range would be 7 – 12 years.  If the defence was able to persuade the Crown to delete from the libel that the client was racing (or manage to get that part deleted after a trial) and the client was convicted of causing death by dangerous driving solely as a consequence of travelling at excessive speed for the road, then it would bring the offence down to level C and the headline sentence range would be 2 – 5 years, which is potentially a big difference in the sentence. 

It has always been the case that reducing the level of culpability for the offence should reduce the sentence imposed, but this has not always been reflected in practice.  Judges or Sheriffs when imposing sentences for the offences covered by the guideline will now need to provide a reasoned explanation for their decision based on the guideline.  If the sentence imposed does not reflect correctly what is contained in the guideline and a good reason for the deviation is not provided, then the decision will be open to challenge on appeal.  One would hope that this should lead to more consistency in the sentences that are imposed.

BTO’s Regulatory and Criminal Defence team are experts at representing drivers across Scotland in road traffic matters in both the Sheriff and High Courts. If you are charged with any road traffic offence, or if you have any queries, our team will be happy to assist you.

Neil Macdonald, Associate: nmd@bto.co.uk / 0141 221 8012