Death by Driving Public Consultation

In causing death by dangerous driving, there are several offences listed as category B which should be Category A, specifically: creating a substantial risk or danger to others, aggressive driving, grossly excessive speed, prolonged distraction and ignoring the warnings of others. Where those behaviours have happened, the offender is clearly culpable of the worst category of offence.

The draft guidelines also currently outline a ‘single dangerous manoeuvre which could create a significant risk of danger to others’ as a Level C in the criteria. This could be changed from C to B as an action such as a close pass only needs to happen once to be fatal. There could also be a change from C to B for the ‘Excessive speed for the road, and/or prevailing conditions, and/or the particular vehicle being driven as again you only need to be slightly over the speed limit to cause damage.

In the offence of causing death by careless, or inconsiderate, driving, while the complexities are noted, the absence of examples of behaviour leaves a gap in the guidance available, in particular for Category A offences.

This should be re-examined. It is arguable that a key gap is in the quality of driving between level C seriousness for death by dangerous driving and level A death by careless driving.

We think that, as in the England and Wales guidelines, starting points should be included to ensure that courts are able to see the full ranges that they can use to sentence. Without them, courts could be more likely to select the middle of sentencing ranges which has the potential to result in shorter sentences. This will also acknowledge the significant gap between the views of sentencers and the views of victims, highlighted in this paper.

While we appreciate that the ranges reflect current practice, we feel that these need to be monitored as for road safety to be improved it's important that dangerous and careless driving is prosecuted proportionally. The sentencing ranges for death by careless driving and death while driving uninsured are also low.
Maximum sentences should be included within the guideline to echo recent changes within the law, namely a change of the statutory maximum from 14 years imprisonment to imprisonment for life for the offences of causing death by dangerous driving or careless driving under the influence of alcohol or drugs.

We disagree with the ranges within the guideline tables as these should have higher ranges available up to the maximum sentence specified in the bullet points under the tables. As the consultation states, as ranges become wider the case becomes stronger for the inclusion of starting points.

While this is unlikely to apply to most cases, the aggravating and mitigating circumstances that could increase or decrease the sentences are set out in the document already, giving flexibility when this is needed.

Including guidance on appropriate periods of disqualification must be explored as an additional option that would allow the courts to stay under the maximum possible sentence. Disqualifications would improve road safety and may serve as an additional deterrent against dangerous driving behaviour. RoadPeace has also called for an increase in bans and for driving to be seen in a new light, as a privilege rather than a right, when sentencing – they have pointed out that in England Wales 54% fewer driving bans (of all lengths of duration) have been given out since 2008. In the same period, offences decreased by only 3%.

This should be considered a mitigating factor as this reduces future harm and because age is taken into account for young people when setting offences. We also support the line that ‘the Council may decide in future to prepare further general guidelines dealing with certain types of an offender, such as for persons with mental welfare difficulties or the elderly’.

We partially agree, Research into public perceptions of sentencing in Scotland shows that the public does not have a consistent understanding of how sentencing is done and has also presumed that sentences would be higher in example cases, the guidelines could help the public understand how sentencing decisions in death by driving cases are made. In order to increase public understanding, it is vital that further guidance is introduced on driver disqualification periods.

The comment in the consultation document that “Sentencers mentioned that in many of these cases the accused had never been in any trouble before” highlights a gap between the views of sentencers and the general public that Sentencing Guidelines should acknowledge. Fundamentally, it should not be relevant whether an accused has been in trouble before if they are culpable for causing death by dangerous driving. The culpability of an offender convicted of causing death by dangerous driving should not be perceived as any more complex than other offences which result in a fatality.

This guideline can make it easier to understand the Scottish legal context and can also help the public see the reasoning for decisions on offenses.

Cycling Scotland’s road safety campaign and other evaluation and research have shown that one of the most powerful deterrents for dangerous driving around people on bikes is the potential risk to themselves – such as points on their licence or a fine.

This drafting guideline should also include reference to vulnerable road users and the impact of dangerous driving on their real and perceived safety. It is important that court staff are familiar with the context that people cycle in, such as the responsibility of vehicle drivers (identified in the Highway Code hierarchy of road users), and the numbers of killed and seriously injured people on bikes, when considering the appropriate sentence for drivers who cause deaths of people cycling.

The final guideline could also be beneficial by considering changes to the reflective hardship in death by driving sentences. Charities such as Brake have called for a re-examination of this and for taking drivers who kill and seriously injure off the road as a condition of bail.

Additional training that includes the awareness of the safety of vulnerable road users could also be added as an option when looking at disqualification and extended driving test requirements, for example, Practical Cycle Awareness Training (PCAT) for professional drivers.