Why new sentencing guidelines won’t deliver road justice

Last month (June 2023), the Sentencing Council (SC) issued new sentencing guidelines for road traffic offences in England and Wales. Cycling UK responded last year to a consultation on a draft version of these guidelines. Unfortunately, the SC’s final version has taken on board very little of our input.

It has to be said straight away that some of the fundamental problems with road traffic offences and sentencing are beyond what the SC could fix – most of the changes required can only be made by the UK Parliament.

That’s because many of the problems stem from the fact that the offences themselves are poorly defined – particularly the distinction between ‘careless’ and ‘dangerous’ driving offences. Moreover, the statutory maximum sentences for these offences are in many ways inconsistent and irrational. These too are set by the UK Parliament, and the SC’s guidelines have to reflect these.

However, there are steps that the SC could and should have taken to improve things – particularly by reducing the legal system’s over-reliance on custodial sentencing and under-use of driving bans. Before explaining, though, let me start though by recapping Cycling UK’s wider concerns about the framework of road traffic offences and penalties (this article includes a fuller explanation of our thinking).

Difficult definitions

Firstly, the definitions of ‘dangerous’ and ‘careless’ driving offences – including those involving causing death or causing serious injury – may be logical, but they are highly counter-intuitive. So it’s unsurprising that they are widely misunderstood and misinterpreted, by prosecutors, the courts and the public.

The key point is that the current legal definitions of these offences are not about the state of mind of the driver – even though ‘careless’ driving sounds like it’s a state of mind.

‘Dangerous’ driving is defined as driving that fell sufficiently “far below what would be expected of a competent and careful driver”, such that it caused danger of “personal injury or serious property damage”, that would be “obvious to a competent and careful driver”. By contrast, ‘careless’ driving merely falls “below” (not “far below”) what would be expected of such a driver, and does not involve causing danger that would be “obvious” to that driver.

It should be clear, though, that what distinguishes these offences is the level of obviously foreseeable danger that is caused, not the state of mind of the driver who causes it. The current legal definitions replaced the previous offences of ‘reckless’ and ‘careless’ driving, which existed prior to 1991 – because of the difficulty of proving a ‘reckless’ state of mind in court to the standard required for a criminal conviction, that is, “beyond reasonable doubt”.

Over-reliance on prison, under-use of driving bans

However, the post-1991 legal definitions gave rise to a different problem, namely an assumption that ‘dangerous’ driving offences should normally attract prison sentences.

We feel this is a fundamental flaw in the legal system, because it often seems to lead prosecutors, judges and juries to prefer a ‘careless’ driving prosecution or conviction, rather than leaving a normally reasonable driver open to a long prison sentence for killing or maiming another road user, through what they perceive as an act of momentary ‘carelessness’.

In cases like this, the driver often isn’t a ‘dangerous’ person who needs to be locked up for the public’s protection. A lengthy driving ban might be a much better way to achieve that objective. Conversely, prison should be used for more obviously ‘reckless’ drivers who might reoffend even if they were banned, and particularly for those who have previously breached a driving ban.

Unfortunately, though, politicians respond mainly to cases that make the headlines. These typically involve the courts handing down absurdly lenient sentences to drivers who have been convicted of obviously outrageous offences.

As a result, Parliament recently made a few headline-grabbing changes to the legal framework, notably to increase the maximum sentence for causing death by dangerous driving from 14 years to a life sentence. Indeed, it was these changes that then prompted the SC to consult on a wider review of the accompanying sentencing guidelines.

These additional sentencing powers will occasionally be useful and necessary, in extreme cases of appallingly bad driving. Unfortunately, though, they will do nothing to tackle the far more common cases where the courts hand down even more absurdly lenient sentences in less obviously outrageous offences.

This includes those cases where the victim has been seriously injured rather than killed, or where the prosecutors or courts decide that the driving was merely ‘careless’. This is because the sentencing options for non-fatal or careless driving offences are far more restricted.

Our fears come true

We have feared all along – correctly, unfortunately – that Parliament’s decision to increase the maximum sentence for causing death or causing serious injury by dangerous driving would lead the Sentencing Council to increase custodial sentencing for dangerous driving offences across the board.

The bad news is that the new sentencing guidelines now effectively rule out any possibility of a non-custodial sentence for any dangerous offences that cause death or serious injury. And although the sentences available for causing death or serious injury by careless driving are much lower, there are still a lot of situations where these too will probably involve custody.

As Lord Hope argued when the Lords were debating these new offences, it makes no sense to imprison people for driving that is deemed to be merely careless.

If the problem is that the courts’ sentencing options are often absurdly lenient in cases where prosecutors or juries have decided that the driving was merely careless, then the right response is to clarify situations when it should correctly be classified as dangerous driving – not (as has happened) to add yet more potentially imprisonable ‘careless’ offences to the legal framework.

There will now be an even stronger incentive for prosecutors and the courts to opt for careless driving offences where they fear that a long custodial sentence would be inappropriate. If they previously feared that a ‘causing death by dangerous driving’ conviction could leave the driver at risk of up to 14 years in prison, that fear will be even stronger now that the driver could face a life sentence. Similar problems will arise in non-fatal cases.

Therefore, the increases in the maximum sentences in a small number of extreme cases are likely to have the opposite effect in a much larger number of less obviously outrageous cases. Meanwhile, driving bans will continue to be under-used, despite their crucial importance for protecting the public from those who have driven in a way that self-evidently caused danger, regardless of how the legal system categorised their driving.

Mis-classification of ‘careless’ offences

We are particularly concerned that a number of offences are listed in the new guidelines not just as being merely ‘careless’, but only in the ‘medium’ culpability category of careless offences, despite the fact that they will almost invariably be the result of deliberate decisions by the driver. These include:

• Driving at a speed that is inappropriate for the prevailing road or weather conditions
• Driving impaired by consumption of alcohol and/or drugs
• Driving vehicle which is unsafe or where driver’s visibility or controls are obstructed
• Driving impaired as a result of a known medical condition and/or in disregard of advice relating to the effects of medical condition or medication
• Driving when deprived of adequate sleep or rest

If these offences have caused death or serious injury, it seems hard to argue that this ‘danger’ would not have been “obvious to a competent and careful driver”. Yet they are not only listed as examples of careless driving, but as merely medium culpability examples of this offence. We believe this is wrong in law.

Insufficient custodial sentences for causing death by driving while disqualified

Although we are generally concerned by that the guidelines are over-reliant on custodial sentences (rather than driving bans), there is one offence where we think the SC has erred badly in the opposite direction. This is the offence of causing death by driving while disqualified.

If people drive while disqualified without an extremely good excuse (they genuinely had reason to be unaware of their disqualification, or they were dealing with an extreme emergency, for example), that is a really serious offence. A further disqualification is clearly an insufficient punishment.

Yet this is the one offence where the SC has recommended that even the worst offences should attract significantly lower sentences than the 10-year maximum provided for by Parliament.

Instead, the SC has suggested that the ‘starting point’ (that is, the normal sentence for a case without additional aggravating or mitigating factors) should be just five years, and that taking account of these factors should result in sentences ranging from four to seven years – well short of the maximum. This too strikes us as irrational.

An exception that proves the rule

The one place where the SC’s guidelines do explicitly include a role for driving bans is for offences involving driving, attempting to drive or being in charge of a motor vehicle “with a specified drug over the specified limit”. But that only makes it even stranger that they haven’t seen fit to adopt this approach for any of the other motoring offences.

A wider review is still needed

Cycling UK continues to argue that the government needs to conduct the wider review of road traffic offences and penalties that it promised in 2014, and which it promised again in 2021 in response to our lobbying while the recent law changes which prompted this review were going through Parliament. Almost 10 years later, we’re still waiting …