Brake’s response to the CPS’s consultation on:

Prosecuting bad driving

What Brake does
Brake is the national road safety charity, dedicated to stopping deaths and injuries on roads and caring for people bereaved and affected by road crashes. It is funded by donations and Government departments – Home Office, Department for Transport, and the Department of Health.

Brake’s education division produces and distributes road safety resources to a range of audiences including schools, companies and members of the public. It also carries out research into road users’ attitudes on various aspects of road safety, including traffic law and its enforcement.

Brake works with people bereaved and seriously injured in road crashes to campaign for changes in the law, which will benefit road safety and provide much needed support for road crash victims.

Brake also provides support services for people affected by road crashes through its division BrakeCare. Services include the production and distribution of a range of support literature, including the Home Office funded bereavement pack ‘Information and advice for families and friends following a death on the road in England and Wales’, a support helpline and a limited face to face support service. BrakeCare also provides support and training for professionals working with people affected by road crashes.

The current situation

In 2005, 3,201 people died and 28,954 were seriously injured in road crashes in Britain. Nearly all of these crashes involve ‘bad’ driving: by this we mean that most crashes can be traced back to someone not driving properly and safely – whether from speeding, being inattentive or being distracted, or taking an unnecessary risk. There are very few instances which can properly be described as ‘accidents’, a word which suggests a lack of fault.

The criminal justice system has inadequate measures for dealing with ‘bad’ drivers, particularly those who kill and maim innocent victims. It is geared towards leniency from the outset – from the lack of police resources allotted to investigating crashes, to the charges brought by the Crown Prosecution Service, to the failings of the prosecution guidance, to the paltry sentences handed out in court.

If 3,201 people were killed in any one year by people using knives or in industrial settings, it is without doubt that radical steps would be taken, involving prosecutions for serious offences and deterrent sentences. There would be no demur from the proposition that action had to be taken to stop the carnage. Brake cannot see why road-related deaths and serious injuries are any different.

General comments about treatment of road traffic offenders

Like anyone who breaks the law, drivers who break laws on the road should expect to be caught and punished for their dangerous behaviour. Drivers who cause death or injury, or put their own and others’ lives at risk through illegal driving should be penalised through effective and appropriate charges and punishments. This is expected by all responsible members of society andthe deterrent effect is required for the protection of other road users and pedestrians.

In order to reduce the horrifying frequency of road deaths and injuries, the criminal justice system should send ‘bad’ drivers the message that traffic offences are not minor – particularly when they result in the tragic loss of a life or a debilitating injury. The CPS can help to achieve this by providing guidance which ensures that road traffic offenders are charged with an appropriately tough charge. By liaising with victims to ensure that the consequences of the offence are taken into account, and that all relevant information and evidence has been considered, and by communicating its decisions to victims in a clear and transparent way, the CPS can send the message thatroad traffic offences and their impact upon victims is being taken seriously by the justice system.

The definition of ‘bad driving’

While Brake recognises that many of the much-needed changes to the criminal justice system are not directly relevant to the CPS, it has briefly outlined the shortcomings of the current charges in order to put its response to this consultation into context:

Brake takes issue with the categories of ‘careless’ and ‘dangerous’ driving. Both charges are defined against the standard expected of a ‘competent and careful driver’, and whether driving falls ‘below’ this standard or ‘far below’ this standard. This means that judgements as to which of these crimes an offender is guilty of are extremely subjective. Most drivers, when surveyed by Brake and other reputable road safety bodies, consider themselves competent and careful drivers. However, the same majority of drivers also admit to breaking the law when driving. In other words, the majority of the public, which of course includes jurors, judges and magistrates, and CPS prosecutors, erroneously consider that many types of bad driving that can and do result in death and injury, are in fact characteristics of ‘careful and competent drivers’.

Brake also rejects the concept of ‘careless driving’. ‘Careless’ suggests a minor action that causes little danger, but this charge is frequently brought in cases where bad driving has caused death or injury. In short, the word does not convey the criminality involved.

Brake would like to see a charge of ‘bad’ driving meaning a standard of driving that fails to meet the legal requirements applicable to a holder of a driving licence, including compliance with the Highway Code. All driving that is not conducted within the Highway Code with extreme care is risky and therefore bad. There would be a more serious charge of ‘aggravated bad driving’ for cases when bad driving is accompanied by some aggravating feature. This definition is far less subjective that the existing definitions of dangerous and careless driving.

For the purpose of this consultation, Brake will give recommendations for the charges of ‘careless’ and ‘dangerous’ driving, and their existing definitions. However, it should be understood that Brake does not believe that these charges are appropriate and would prefer them to be replaced with charges of ‘bad’ and ‘aggravated bad’ driving, with the definition relating to a standard of driving which meets the requirements of the Highway Code, and not those expected of a ‘careful, competent driver’.

1. What are your views on the approach proposed, and in particular where do you think the boundaries between causing death by dangerous driving and gross negligence manslaughter may lie?

Brake would like to see the CPS being less conservative in its approach to cases which may be considered to be borderline between manslaughter and causing death by dangerous driving. While Brake agrees that the alternative verdict provision in the Road Safety Act 2006 ought not to mean that manslaughter charges are brought when they are not appropriate simply because the risk of coming away with nothing has been removed, this new provision should allow the CPS to be less cautious in bringing the charge of manslaughter. We wish to make the point that the definition of dangerous driving means that it is almost inevitable that the facts will support a finding of gross negligence manslaughter, given that the risk of death in road crashes is almost self-evident in light of the number of fatalities which occur.

The reason Brake would like to see more charges of manslaughter being brought in the first instance is simply that a higher penalty applies for this offence than for causing death by dangerous driving, and Brake believes that a higher penalty is often more fitting for the seriousness of a driver’s actions when somebody has been killed. A maximum life sentence reflects the fact that a crime is a homicide, while the lower maximum sentence that exists for causing death by dangerous driving reinforces the impression that deaths caused in road traffic crashes are somehow less important.

Although not a matter for the CPS, it should be noted that Brake has previously called for the maximum penalty for causing death by dangerous driving to belife imprisonment. This is because there are many instances of dangerous driving where a death or serious injury is caused that should be punishable by more than the maximum 14 years: aggravating features may be present, such as multiple victims, or a history of bad driving which makes it plain that the driver concerned has no care for the safety of others. It would be less of a priority for this to be introduced ifmanslaughter cases are brought on a much more regular basis, following the alternative verdict provision introduced by the Road Safety Act 2006.

Equally concerning as the lower maximum penalty for causing death by dangerous driving is the fact that thepenalties awarded for causing death by dangerous driving are consistently at the lower end of the scale. The sentencing guidelines urgently need to be addressed to rectify this issue, which allows killer drivers to get away with pitiful sentences, sending a very poor message to society about the seriousness of road crimes.

If the maximum sentence for causing death by dangerous driving were life, and the sentences awarded for causing death by dangerous driving were regularly at the higher end of the scale, then it would not be a particular concern for Brake whether the CPS was conservative in its approach to manslaughter cases.

2. Does the guidance as stated above (including the examples cited for each offence) need amending? If so, please say why.

  1. Brake believes that the guidance on the prosecution of dangerous driving and careless driving should be amended. The examples of dangerous driving should include:
  • Driving at a speed which is significantly over the specified limit. Driving slightly over the speed limit may, sometimes, be considered careless, but driving significantly above the limit should be considered dangerous. Drivers driving significantlyabove the speed limit do so intentionally and should be considered to be driving ‘far below’ the required standard.Guidelines could recommend a certain percentage over the limit which could be said to be ‘significant’. This percentage should be low, and could vary depending on how high the limit is and what additional risk is posed to road users. For example, 15% over the 30mph limit could be deemed significant, in order to reflect the fact that at 35 mph you are twice as likely to kill someone as you are at 30 mph[1]. Alternatively, the percentage could reflect the fact that for every1% reduction in average traffic speed, crashes reduce by an average of 5%[2].

The evidence is plain: the higher the speed of the collision, the greater the risk of death or serious injury. The number of television and other media adverts which make this plain are such that no-one can claim to be unaware of what is, in any event, self-evident.

  • Driving while using a hand-held mobile phone should always be considered to be dangerous driving and should never be deemed to be careless driving. Using a mobile phone while driving is always an intentional action which distracts drivers, increases stopping distances and increases a driver’s chance of crashing by an average of 400%.[3] Drivers using mobile phones are therefore driving far below the required standard. Brake also believes that legislation should be extended to ban the use of hands-free mobile phones while driving, but realises that this is not a matter for the CPS. However, the CPS should include the use of a hands-free mobile phone while driving in its list of aggravating factors for careless and dangerous driving.
  • Driving inappropriately close to another vehicle (which breaches the Highway Code) should always be classed as an example of dangerous driving if the distance is extremely small (i.e. less than a two second gap in fair conditions, or less than a four second gap on wet or icy roads), and should never in these instances be deemed to be careless driving. This is aggressive driving which falls far below the required standard.
  • Driving while reading a newspaper/map, applying make-up, eating a meal or performing some other action in the vehicle which requires taking your eyes, hands or concentration off the road for an unsafe period (i.e. more than a split second) should be deemed to be dangerous driving because of the clear level of risk posed.
  • Driving while serving a driving ban or without a licence or insurance. The Greenaway report on uninsured driving[4], notes that “These drivers are also more likely to be involved in road traffic accidents, more likely to be non-compliant with other road traffic requirements and obligations and potentially involved in other criminal activity.” In other words, if an offender is uninsured, it is reasonable to class their driving as falling well below the required standard. No careful driver would consider driving without insurance.
  • Driving through a red light is an action which endangers other road users, and should always constitute dangerous driving, and never careless driving; there can never be any excuse for going through a red light.
  • Hitting a pedestrian on a pedestrian right of way such as a crossing or pavement, or hitting a cyclist on a designated cycle path. Causing the death of a vulnerable road user who is using the highway according to well-established safety laws means the driver was obviously driving dangerously if they were unable to stop in time / avoid the vulnerable road user.

Unnecessarily slow driving should not be given as an example of inconsiderate driving. Only in very extreme cases where a driver is intentionally braking abruptly or going extremely slowly in order to annoy the driver behind, could going slowly be considered inconsiderate. In general, driving slowly is not dangerous – in fact, it is often much safer – andis at worst a mild irritation which could marginally lengthen a journey time. It is therefore not comparable to the other genuinely dangerous or aggressive behaviours listed.

  1. What are you views on momentary inattention and single misjudgements? Where do you think the boundaries are between dangerous and careless driving?

Momentary inattentions and single misjudgements can still result in danger – a fact that is abundantly clear from the number of road crashes, injuries and deaths that result from momentary inattentions and single misjudgements. Brake therefore agrees that the standard of the driver’s driving and the risk posed to life should determine which charge is brought, and drivers’ ‘intentions’ (i.e. whether they took a deliberate risk) should not reduce a charge from dangerous driving to careless driving. Deliberate risk-taking should be an aggravating factor which will increase a charge from careless driving to dangerous driving, but the absence of deliberate risk-taking should not reduce a dangerous driving charge to careless driving.The fact that the danger caused by dangerous driving was due to a momentary inattention or single misjudgement could, if appropriate, be considered as a mitigating factor in sentencing.If momentary inattention and single misjudgements were considered when prosecuting, and as mitigating factors when sentencing, this could lead to a double discount in penalty.

One of the major difficulties with the current distinction between careless and dangerous driving is that it is a purely subjective one, based onwhether someone has fallen ‘below’ or ‘far below’ the standard of a careful and competent driver. Since many of those making the decisions will be drivers, it would be better to use a more objective standard, such as non-compliance with the Highway Code, to determine how a driver should be prosecuted, rather than relying on their flawed judgement. Please see the section above on ‘the definition of bad driving’.

Brake’s proposals for replacing the charges of careless and dangerous driving with ‘bad driving’ and ‘aggravated bad driving’ would provide a good framework for a more objective test of non-compliance with the Highway Code, but evenunder current legislation, the CPS could be applying the principle of being as objective as possible in its prosecution guidance on what constitutes ‘careless’ and ‘dangerous’ driving.

Brake proposes that a charge of dangerous drivingis brought if a person’s driving fails to meet the legal standards required by the Highway Code, and is accompanied by any aggravating factor. (In Brake’s view, aggravating factors should include: the consequences of the driving, the risk posed by the driver to themselves, their passengers, or other road users,the condition of the driver, or some other feature which makes the matter even worse).

‘Careless driving’ should apply in cases where a person’s driving falls below the legal standard required of a driver, as outlined in a Highway Code, without any aggravating factors.

For any borderline cases, it is important that the higher charge is brought, with the possibility of an alternative verdict of the lower charge. This is especially important with the introduction of the charge of causing death by careless driving. It would be a step backwards if the introduction of this charge meant less people were charged with causing death by dangerous driving.