18 St John Street’s Criminal Department are writing a series of Blogs detailing the new changes in legislation proposed in Police, Sentencing and Court Acts 2022. The government has proposed a long-awaited addition to the suite of serious driving offences available to prosecutors, and increased sentences in the most serious cases.
Criminal Specialist Andy Evans kick starts the series covering Sections 86 to 88 of the Act that come into force on 28 June 2022.
CLOSING THE NET – NEW DRIVING OFFENCES FOR SUMMER 2022
As part of a raft of new legislation proposed in the Police, Sentencing and Courts Act 2022, the government has proposed a long-awaited addition to the suite of serious driving offences available to prosecutors, and increased sentences in the most serious cases.
Sections 86 to 88 of the Act come into force on 28 June 2022.
INCREASES IN MAXIMUM SENTENCE FOR DEATH BY DANGEROUS AND DEATH BY CARELESS (UNDER THE INFLUENCE)
Section 86 represents the outcome of campaigning by the families of those killed by dangerous drivers or drivers under the influence.
The offence at section 1 of the Road Traffic Act 1988, Causing Death by Dangerous Driving, now carries a statutory maximum of life imprisonment, uplifted from 14 years in custody.
The offence at section 3A of the same Act, causing Death by Careless Driving Whilst Under the Influence of Drink or Drugs, continues its evolution. First appearing in 1992, with the statutory maximum sentence upped to 14 years in 2003, the ambit of the offence was extended from just alcohol to add “specific controlled drugs above the limit” in 2013 and now it too will carry a maximum sentence of life imprisonment, pursuant to s86 of the 2022 Act.
Minimum disqualification periods extend too. For a first offence under s1 or s3A the minimum disqualification rises from 2 to 5 years. For what would be surely be a rarely encountered second offence of s3A the minimum disqualification will rise from 3 to 6 years.
NEW OFFENCE – CAUSING SERIOUS INJURY BY CARELESS DRIVING
Lawyers have long been familiar with the key distinction between Driving Without Due Care and Attention (“Careless Driving”) and Dangerous Driving – the jury-friendly consideration of whether the standard of driving was “below” or “far below” the standard expected of a competent and careful driver. This distinction has been with us since an amendment to s2 of the Road Traffic Act 1988 did away with the concept of “reckless driving” in July 1992.
Successive amendments to the 1988 Act have added to the originally drafted triumvirate of s1 Causing Death by Dangerous Driving, s2 Dangerous Driving and s3 Careless Driving.
August 2008 brought us s2B “Causing Death by Careless Driving”, and December 2012 saw the addition of s1A “Causing Serious Injury by Dangerous Driving” – “serious injury” being aligned exactly with the definition of Grievous Bodily Harm.
As of the turn of 2022, the list of offences within the much-amended RTA 1988 were:
- S1 – Causing Death by Dangerous Driving
- S1A – Causing Serious Injury by Dangerous Driving
- S2 – Dangerous Driving
- S2B – Causing Death by Careless Driving
- S3 – Driving Without Due Care and Attention (commonly termed “Careless Driving”)
This left a lacuna in the suite of offences. Dangerous Drivers faced offences of causing death, serious injury or the basic offence, whilst Careless Drivers faced the standard s3 offence or s2B where a death was caused. What of the careless driver who caused serious injury?
No such offence existed beyond s3, a summary only offence carrying no more than a financial penalty and disqualification.
Prosecutors were left in the difficult position of determining which side of the gap to position their case.
The difference is stark when sentence is considered. The s1A offence, despite being with us for nearly a decade, is not yet the subject of a sentencing guideline. There is a statutory maximum of up to 5 years, with Banks proposing practitioners consider the s1 Death by Dangerous Guidelines which range from 2 to 14 years.
Such guidance meant that that client conferences with those charged with s1A frequently ended with that difficult refrain “you need to consider the real possibility of immediate custody”.
Those clients were often unfamiliar with the CJS, and scared of prison. These offences are disproportionately committed by clients with limited, or no, criminal record. Many of you reading this will be familiar with the tragic scenario where a young client of good character finds themselves in the dock having over-estimated their abilities behind the wheel, often to horrifically injurious effect. Such clients would rarely be willing to plead to an offence carrying a prison term.
Trials on the standard of driving were therefore common. The Defence Statement wrote itself: “the Defendant admits being the driver, and that injury was caused by his actions, but does not accept that the standard of his driving fell far below the standard of the reasonable and competent driver”.
The enactment of s87 of the Police, Sentencing and Courts Act 2022 on 28/6/22 closes this lacuna, and changes the landscape. It inserts the missing piece of the jigsaw into the RTA ’88: s2C, causing serious injury by careless driving, an either way offence. This may lead to fewer trials, as the Crown can now accept a serious offence existing between s3
Careless Driving and s1A Causing Serious Injury by Dangerous Driving.
What about the Police resource to investigate this new offence? Prior to the creation of the 2012 offence, the only two tiers were cases where a fatality had occurred and those where one had not. The more serious cases were raw, emotive affairs, as the deceased were often entirely blameless, and frequently, tragically, victims of terrible misfortune – classic cases of being in the wrong place at the wrong time. Significant Police resource was therefore (rightly) engaged in towards investigating such tragedies. “Death cases” were afforded expensive experts, forensic reconstructions, painstaking efforts to reproduce the crash site for the jury, and to determine the cause to be the errant driver.
In the writer’s experience those skills within the Police were brought to bear on the new “serious injury” offence, but the expanded number of Defendants falling into the new middle tier matched with the constant ebbing tide of Police cuts led to tension – not all injury cases received that level of resource.
The public expectation will be that the same standards of investigation can be met, despite the increase in numbers of such “serious” cases – Careless Driving Defendants normally remaining in the Magistrates Court will now, where injury is caused, have the right to elect Crown Court trial. Whether Police resource can meet this seems unlikely in 2022, particularly in rural areas where tricky roads, drink driving and a culture of fast driving amongst young people come together to cause such incidents. At the same time Police are stretched ever thinner across the hills and dales as cuts bite. Practitioners should not expect full investigations for this new offence.
A key impact for the Defence may well be an altered type of Crown Court client base. It’s been said before that a careless driver could be anyone who happens to be guilty of a momentary lapse of concentration whilst at the wheel. Race, age, gender, financial background, substance use – all the usual factors forming patterns of offending – have little bearing on how, where and when this offence can be committed. It seems a fair assessment that this offence will lead to more Defendants of hitherto good character – and perhaps Defendants finding themselves above Legal Aid earnings thresholds – finding themselves before the Crown Court.
From an academic perspective change is required. Ever since the first “Serious Injury” offence appeared in 2012 there existed a clear gap in the coverage of the offences upon the statute book.
The real impacts of this academically sound project remain to be seen. It is hoped that they will not extend to under-investigated crash sites, terrified elderly clients facing jury trial or custody, and yet more Defendants before the Crown Court finding themselves beyond the boundaries set by the Legal Aid means test, but only time will tell.
18 St John Street Chambers
Manchester M3 4EA
Andy is a Category 3 CPS Prosecutor accepting instructions in Prosecution and Defence. He has appeared in cases at every “tier” of the expanded Road Traffic Act 1988, and awaits his first brief where s2C, whether as an uplift from Careless Driving, or as an alternative to the s1A offence.