Crime and Punishment: part 2

So, you made it through part 1? Well done you. That’s a lot to take in. And some difficult concepts. But it’s time to go further. In this part I’ll try to deal with the contentious stuff. The stuff that you might, justifiably, feel outraged about. In essence there are two parts to our tale. The first is to deal with those cases where you might believe that the motorist has “gotten away with it.” The second is to deal with how we sentence motorists where they’ve either pleaded guilty to an offence or been found guilty following a trial. I hadn’t planned on a third, but a case reported just as I finished this piece caused me to look at something else, a case where it didn’t even get to trial. Prepare to be outraged.

But, look, at this juncture let me say this. There are a huge number of cases passing through our Court system every year. A small proportion of them relate to car on bike action. By and large they go the way you’d expect. Those cases aren’t particularly newsworthy. But since the media created the war on our roads it’s become quite common to see those cases where there’s something more juicy going on. And sometimes, in those cases, even someone who understands the system may well have a “what the F*** moment.”

Before we proceed remember that there are very few specific driving offences. Indeed, it took an awful long time for the “causing serious injury by dangerous driving” to get introduced. Prior to that injuries were just a factor to take into account when sentencing a careless or dangerous case. There is still no causing serious injury by careless driving offence despite a petition calling for it to be so.

And, so that you understand what we’re dealing with here, it’s worth, in brief setting out what each of the offences we are concerned with requires. What is the definition of each defence? (Note, there are a few more but the chiefly add to these with drink/drugs etc).

OFFENCE DEFINITION
Careless Driving The offence is committed when the defendant’s driving falls below the standard expected of a competent and careful driver

 

Dangerous Driving The offence is committed when a person’s standard of driving falls far below what would be expected of a competent and careful driver and it would be obvious to a competent and careful driver that driving in that way would be dangerous.

 

Causing injury by Dangerous Driving The offence is committed when the manner of the defendant’s driving is dangerous (as for dangerous driving) and results in another person suffering a serious physical injury.

 

Causing death by Careless Driving The offence is committed when the manner of the defendant’s driving falls below the standard expected of a careful and competent driver and when the manner of the suspect’s driving causes the death of another person.

 

Causing death by Dangerous Driving The offence is committed when the suspect’s driving is a cause or factor in the death of another person and the driving was dangerous. By “dangerous” we mean that the standard of driving falls far below what would be expected of a competent and careful driver and it would be obvious to a competent and careful driver that driving in that way would be dangerous.

 

So, let’s recap. How did we get here? Well, evidence has been collected, the Police have taken statements, conducted interviews, the CPS has decided that there is sufficient evidence on which to base a charge, the Defendant is charged and comes before the Court. He pleads not guilty, there’s a trial. Then he “gets away with it.” Cue the outrage.

In most of the cases I deal with here there has been a Crown Court trial. If there has not been I will say so. So most of these cases will have been tried by a Jury. 12 men and women who are exactly like you. Sometimes they do what you expect, sometimes they don’t. But, you weren’t there so remember you don’t have all of the information they had. It’s easy to believe that someone should be held to account, the problem, in many cases, is who that should be and whether we can be certain that the person we want to hold to account is guilty. Put yourself in their position, with all their doubts and questions. And consider these cases with that in mind. I’m not asking you to sympathise with them, indeed, your sympathy will lie with the victim I am sure.

Let’s have a look at three very similar cases. I’ve started with these as there’s been a glut of them.

Blinded by the Sun (death by CARELESS driving)

Sam Burrows, 29, hit 73-year-old Colin Crowther on the Old London Road, Ipswich, on January 16, 2014 when the sun reflected off the road and temporarily blinded him.

The Ipswich Star reports Mr Burrows had lowered his sun visor as a precaution and had his foot over the brake pedal in case he needed to brake.

“All of a sudden without warning I was blinded by the sun. It was a mixture of glare coming off the road and my bonnet,” Burrows said in court. Mr Burrows was unanimously acquitted by the jury at Ipswich Crown Court after a three-day trial.

Blinded by the sun 2 : double team (death by DANGEROUS driving)

Cyclist Stan Coates, 55, had been knocked off his bike by Michael Elton, 25, who was waiting for an ambulance with Coates when the cyclist was struck by a second car and dragged along the road. Mr Coates died in hospital the next day due to multiple injuries sustained during the incident in October 26, 2012. Cleared by a Jury at Newcastle Crown Court. 

And then read this summary, and it should be treated only as such, where Judge directed a Jury to ignore what the Highway Code says about being blinded by the sun.

Blinded by the sun 3 : even the Judges are our Peers (death by CARELESS driving)

Blinded by the Sun 3 : the inevitable acquittal

On the face of it three slam dunk cases. Yet all fail. Why? Well, we need to take them one step at a time.

Let’s deal with the first of the cases. There was “nothing that the driver could have done,” that was the evidence. The Jury needed to consider whether the manner of the defendant’s driving fell below the standard required. He was clear in his evidence, from the limited reports, that there was nothing he could do. He had taken action by pulling down his visor, he had put his foot over the pedal, he was ready. Yet he could not see and did not see the cyclist. He was not aware of his surroundings. That he caused the death was unarguable. But was that death due to his driving? Only if the Jury could be sure that his standard fell below what was required could they convict. And, it seems, they did not struggle at all. Every one of them agreed that they could not be sure. And the acquittal followed.

It’s correct to say that the Highway Code, which tells driver not to take more care when there is glare, for example, is not law. It operates as a fairly good indicator of negligence in the civil law. And, in both civil and criminal proceedings any of its provisions “may be relied on by any party to establish or negative any liability which is in question in those proceedings.”

And there’s a problem here. And that’s what the Highway Code says about driving. Remember it’s divided into mandatory requirements (do (must) or do not) and advisory ones (should or should not).  And what does it say about sun? “If you are dazzled by bright sunlight, slow down and if necessary, stop.” Well, how helpful. No do or do not, no should or should not. Indeed, it is hidden away in the hot weather section, and, in my view, winter sun is by far a more deadly scenario especially when combined with wet roads.

As a matter of common sense it seems clear. You should stop, if you cannot see where you’re going. You’re in charge of a killing machine. You may plow into the back of something bigger than you. There could be so many things going on. Indeed, why is it a surprise at all. This sun thing happens twice a day. It varies in its intensity, position and whether it comes out at all. But it’s a constant. It’s not a surprise.

It seems clear, if the evidence is that the driver didn’t stop, as advised by the Highway Code, then that standard falls below a competent and careful driver. It seems clear. But the Jury must determine whether it does. It requires direction from the Court but, ultimately, the Jury will listen to the defendant and judge that story according to what is heard. And, you know what, the jury has specific, expert, detailed knowledge. They’ve been there and they’ve seen this sort of thing happen. It’s all too common, it’s not a surprise. Poor driver, I can see how that could happen to me. But, at the end of the day, this Jury could not be sure so an acquittal had to follow. Are you outraged yet?

So, onto case 2. Bloody hell. What a tangled mess. One driver hits him, because, despite being blinded by the sun, he only sees him at the last second. The last second. There is more than one second, how many more we don’t know, but more than one. And during this unspecified time of travelling at up to 50 mph he does not, it seems, slow down, pull down his visor or take his foot of the accelerator. But, luckily, the cyclist lives. Until, moments later, along comes another one. Visor down because he cannot see, only 40 mph or so now, because it’s dangerous. And there’s a second collision.

Both were acquitted of causing death by dangerous driving though, bizarrely, the second driver is convicted of careless driving. It appears there was no charge of careless driving in relation to the first at all. And no alternative charge of causing death by careless driving at all. All very weird.

I suspect that, in this case, there was something else at play. The charge of causing death by dangerous driving was preferred because it does not require that the defendant’s actions were the cause of the death but, instead, a cause or factor. So it was a better way to deal with two defendants and, if one or other could be shown to have caused or been a factor in, they would have been convicted. If both could have shown to have been a factor, both convicted. But, imagine you are a Juror here. You need to be sure. Can you be sure? Which one do you ascribed the blame to? Can you do it? Which one are  you sure about? It’s very difficult. Imperfect once again. Despite the fact that everyone just ploughed on in conditions where it was clearly unsafe to do so, there’s an acquittal.

And the third? Here we go again. Though, this time, there’s no allegation that the second driver did anything wrong. You’re probably past outrage now and at a state of numb. You have to sympathise with the Jury here. Even the Judge tells them to ignore the Highway Code. What were they supposed to do?

Why do juries act this way? Well, I have some sympathy for them. They’re dealing with complex legal issues and being asked to be sure of a thing. Not just reasonably sure, not just sure enough, sure. That’s difficult. Faced with a sufficiently contrite defendant who “could not have done anything differently” they will probably acquit. Because they can’t be sure. The fact that the driver could have done something differently does not necessarily mean that what was done was wrong. A reasonable and careful driver has options. Juries realise that, and they act accordingly.

The oft used saying in life is “there but for the grace of God, go I,” or, to put it another way, “ that could happen to me.” We as human beings, have an intrinsic belief that the vagaries of life could so easily be visited upon us. In certain situations we are uncomfortable with judging others for actions which we have experienced or know that we will. There’s an increasing reliance on this doctrine when faced with commentating on those charged with criminal offences and, in particular, those offences which any one of us could be guilty of. Few people would ever look at Huntley, Hindley or Watkins and think “there but for the Grace of God.” Such thoughts would be perverse given the nature of said crimes. But as the crime becomes softer, as the circumstances become more relatable there is an increasing tendency to impose our own fear of finding ourselves in the same set of circumstances as a justification for excusing those others who do.

So, with the caveat that we do not know the evidence, we have not seen the manner of the accused, my view is that Juries are too close to this. That is no criticism of them. They are human beings and they act accordingly. We cannot possibly know why these cases led to an acquittal. Everything depends on what they heard, what they saw and, ultimately, what the Judge directed them. But they can see how easily it would happen to them. And they hope that, if it were to happen to them, a jury would put itself in their position. It’s imperfect. Imperfection leads to doubt. Doubt cannot equate with certainty. Doubt leads to acquittals. Perhaps it’s time for a change.

SENTENCING

Idiocy on a grand scale.

Google the Defendant. What a “character.” Indeed, if my googling is correct he was actually produced from Prison to stand trial in relation to these offences. What a character.

Let’ start with the disqualification. 2 years. Don’t worry, he serves that when he gets out of prison. So that’s ok. It’s far too short in my view. We seem to have created a society where driving is a right, rather than a privilege, and bans for such idiotic lunacy are rarely for very long. You might feel justifiably outraged. Indeed, you may feel that 10 year ban in this case, or a lifetime one, would be better than a prison sentence at all. I might even agree with you. But, the problem with driving bans, is they require constant supervision. People who are banned from driving aren’t at all put off by their driving ban. Indeed, circumventing it is part of the challenge.

2 and a half years? Are you outraged. Actually, don’t be. Not in the sense of what the Judge gave. By all means rail against our sentencing generally, but this one isn’t bad. Cast your mind back to part 1. This is a Crown Court case so the maximum possible sentence is 2 years. This guy got more. That’s confusing in itself. Let me explain, he was charged with 3 counts of dangerous driving. He was acquitted of 1. 2 remained. The press reports are not clear but, what will have happened here, is that he will have been sentenced in relation to each count.

Where there is more than one count, and therefore more than one conviction, the Court has the opportunity to sentence concurrently (i.e. all time runs at the same time) or consecutively (i.e. you add them all up). That happened here. It’s not possible to say what was added up, it might be 1 year and 1 1/2 years. It could be 6 months and 2 years (the maximum). I suspect that it’s 1 year and 3 months for each offence. That would make sense. In part at least, because, you might wonder, why was 9 months taken off for each offence, why didn’t he get the book thrown at him? He didn’t plead guilty, so he gets no credit. That can’t be the explanation. So something else must be going on. So, we have to look at sentencing of offenders.

It’s probably right that certain sentences aren’t harsh enough. Dangerous driving carries a maximum of two years. To get that you have to be the worst of the worst. You probably need to cause an injury but not so severe as to take it into the causing serious injury by dangerous driving charge.

In our Courts we use Sentencing Guidelines. Sentencing guidelines are available for most of the significant offences sentenced in the magistrates’ court and for a wide range of offences in the Crown Court. There is also guidance on general sentencing issues and principles. These guidelines are not specific to individual offences. Where no guideline exists, judges refer to court of appeal judgments to examine how sentences have been reached for similar cases in the past.

In very general terms, in a very complex area, offences will have a starting point. That point is broadly defined by the seriousness of the act. Most of the time we start by weighing up culpability (how bad was the act) and harm (how serious was the effect). But in cases where the harm is death then the starting point is determined by culpability alone because harm (death) is part of the offence itself.

Once we’ve determined the seriousness of the case, and the staring point, then the other matters will be weighed up.  Then there will be a balancing of aggravating and mitigating factors, matters which tend to make the case better or worse than a case of its type. There will be consideration of the previous convictions of the Defendant and there will be a consideration of their personal circumstances. Finally, consideration will be given to whether the Defendant has pleaded guilty. If he has then he will gain credit of up to a 1/3 off his sentence. Up to. It depends when that plea is entered. If it’s on the “first occasion” then it will likely be 1/3. If it’s on the day of the trial it will be much less. If it’s a not guilty plea and he is convinced following trial then no credit will be given. None of this is an exact science but it does tend to lead to the right results. What IS a problem is that sentences for many offences are not as high as we might think that they should be.

So back to our chap from the case above. The maximum is 2 years. Sadly, for this offence, there are no Sentencing Guidelines. But, clearly, we can determine the seriousness of the offence very easily. It’s high culpability. But probably low harm. It will have a high starting point. We know that the Judge will have gone on to balance aggravating and mitigating factors, his personal circumstances and his, frankly, extensive list of previous convictions.

Let’s assume that he got 1 year 3 months for each count. Why was 9 months taken off? Without hearing the Judge’s reasoning we won’t know. It’s quite hard to comment. As I’ve said, generally we look to previous cases for guidance, in R v Arthur [2001] the Defendant engaged in racing on a public highway in circumstances where the other driver died (but this was only a dangerous driving case). Other aggravating features were excessive speed, a prolonged course of driving and a very real danger to other road users. D did not accept that his driving was dangerous although he did accept it was stupid. 20 months imprisonment and 5 year disqualification upheld. You can see that the aggravating factors are worse, it merits a longer sentence. In R v Butt the Court concluded that when judges asked themselves whether they should pass the maximum sentence, they should not conjure up unlikely worst possible kinds of case scenarios. Instead they should consider the worst type of offence which came before the court and ask themselves whether the particular case they were dealing with came within the broad band of that type.

Back to our case, in my view, while the actions were deliberate, it is perhaps possible to distinguish them from the very worst type of case that a Judge might see. There is no prolonged driving, there is no injury, there is the perception of a very high risk only. Crucially, there is no harm. Indeed, the Judge here had the option of a consecutive sentence available to him. It’s a pretty good sentence overall. There is some bad news though. The Defendant, if my googling is correct, was already inside for burglary. His overall sentence for the driving offences will be shortened because they will run concurrently with his burglary sentence. He’d been in for 5 months and had another 13 to run. So, whilst serving that 13, 13 of the months for his motoring convictions will also elapse. That’s not perfect, but he’s off the roads. Indeed, only when he comes out does his ban start.

Let’s deal with a bad one. A really bad one.

This one has it all

Two deaths. Two charges of causing death by dangerous driving. Crown Court. Maximum sentence is 14 years. In addition he admitted seven offences altogether including aggravated vehicle taking, driving whilst disqualified and having no insurance. There’s a lot going on here. The reporting of this one is pretty good. We get a clear(er) indication of what sentence was handed down for each offence. But, essentially, he gets 10 yrs 3 months in total as each of the offences runs concurrently.

You can write a book on consecutive v concurrent sentencing. It’s quite hard to rationalise. But, essentially, it’s based on proportionality and the theory that you shouldn’t be punished twice for single acts. Here we have two deaths, but they arise out of the same act. That’s different to our chap above who did it twice on separate occasions. It’s hard to rationalise though, you might feel a little outraged by it. Perhaps more than a little. That there were two deaths will be an aggravating factor. It will lead to a harsher sentence. Though perhaps not as harsh as you might believe is warranted.

So, how did we get to 10 yrs 3 months for the dangerous driving? Well, pretty easily. The maximum was 14 years. He pleaded guilty at the earliest opportunity (you might feel he had little choice) and got about a 1/3 off his sentence. That equates to around 9 1/2 years. He got a little more. In terms of sentencing this chap has pretty much been given the absolute maximum sentence available.

Is it enough? Isn’t what he did worse than causing death by dangerous driving? Isn’t he guilty of murder? Well, no. And this one has some history. Murder requires the direct intention to kill or cause grievous bodily harm. A jury might infer that intention from all the circumstances. But, it’s hard, very hard, to demonstrate that. No, it’s more likely that the driver’s intention was to drive. So, that’s out.

But hang on:

Driver jailed for cyclist’s murder

That’s an anomaly. It’s not really about driving at all. Just the fact that one bloke used a massive weapon to kill another bloke on a bike. This was a deliberate case, there was clear intention, he wanted to kill him (or cause him really serious harm). So we can overlook that one. Indeed, there are few cycling related murder cases.

Manslaughter next. This is where it gets interesting. The offence of causing death by dangerous driving was a direct consequence of the difficulties in obtaining a manslaughter conviction in road traffic cases. And manslaughter has a real benefit in terms of ‘punishment’ in that it carries, potentially, a sentence of life imprisonment.

Manslaughter is extraordinarily difficult to use in cycling cases. Indeed, it wasn’t being used at all. Hence the rather easier charge of causing death by (insert type) driving.  But here’s an interesting one. It’s not a sentence, it’s an acquittal.

Cyclist killed when man opens door

That’s a very weird case. Manslaughter was used there because the easier to prove offence of causing death by dangerous driving was not available. Because, sadly, opening a car when stationary is not driving. So, the jury had to consider manslaughter. Specifically gross negligence manslaughter. They had to ask themselves whether the 4 stages of the Adamako test were satisfied. They probably found the first three easily, essentially a breach of the duty of care owed to the victim which caused his death. But, given the acquittal, it seems they could not find that opening a car door was grossly negligent, despite not looking, despite the tinted windows. Just a bit negligent then, just a bit careless. You’re probably grossly outraged right now.

And then there are those cases where no one goes to prison. Those are probably the most difficult to rationalise.

Here’s a starter for ten

This one’s quite hard to follow. It’s in the Crown Court because, remember, the offence of causing death by careless driving is either way but, crucially, there was also a charge of causing death by dangerous driving. That’s Crown Court only and, where they are tried together, it goes to the higher Court. She’s acquitted of the worse charge. Though, not by a Jury. Instead the CPS, once she gives in on the dangerous charge, accepts the lesser one. Remember she gets some credit for a guilty plea. Not as much as an early one. Indeed it will be a very small percentage indeed because she changed her plea.

There are some guidelines available. Have a read of them. Specifically have a look at the starting point for causing death by careless driving. Here the culpability is low, it is, however you feel, a one off moment of inattention. We know that the harm is great, but, in assessing this type of offence where harm is already included, we ignore that harm.

It’s a talking point isn’t it? How do you value life. We saw above a 2 1/2 year sentence where no harm was caused. Here, a 12 month suspended sentence where there is a fatality. Comparing sentences for different offences isn’t easy, nor is it always fair. But you might wonder how this is a suspended sentence. The truth is that suspended sentences are very serious.

Crucially, see page 15. Have a look at the staring point. This is not a case which falls just short of dangerous driving. Take the emotion out of it if you can. Indeed, you can make an argument that it falls within the bottom category and merits only a community order. A suspended sentence in this case is a very serious sentence within the scope of the guidelines. This is the type of case that opens the debate about punishment. Do we want to punish and seek revenge? Will a prison sentence do any good here? Form your own outrage, but I say this, each case of this type sends a signal, a confirmation that you can be inattentive, that you get another chance. A chance denied to the victim for ever more. As someone who understands sentencing, who can appreciate that this sentence is arguably correct, I think that the bigger picture is missed. Why is inattention in a two ton killing machine treated in such a relatively light manner?

But there does need to be proportionality. And that is the difficult balance. The Judge is right that she will have to live with it, but at least she gets the chance to live. That’s the bigger debate to be had. Whether you agree with our starting points. That’s what we need to have a discussion about.

And, so onto the last case. It’s made the news in the last few days. It’s outrageous. Properly outrageous. Take a look.

£150 for a hit and run

Look. It’s not £150 for a hit and run. There’s no such thing, in criminal law, as a hit and run. It’s dangerous driving. It’s not causing serious injury by dangerous driving. It might be an assault, if you could prove such a thing.

But the big news item here is the loophole. It appears, from the media reports, that someone has gotten away with this by failing to name the driver. It’s a courtesy car apparently, which loads of people have access to. How the hell did this happen? Cast your mind back to part 1. We need evidence. We cannot bring a prosecution without it.

What happened here appears to be this. The police required the people who “owned” the car to identify who was driving. It’s an offence not to provide this information. There was a man, and a  woman. It looks like they were interviewed. Then the male was charged with failing to respond to a legal request for the driver’s details. The CPS decided there was no (not enough) evidence to charge with, for example, failing to stop or failing to report an accident. (Note, no one even considered careless or dangerous driving).

We don’t know what was said in the interview, but we can have a guess. My view is that this is likely to have been, as permitted in law, a no comment interview. There was simply no evidence to confirm who was driving. There was no CCTV, the video is unclear. The CPS could not realistically hope for a conviction. There was no obligation on the person being interviewed, if they were the driver, to incriminate themself. You might be morally outraged. Fine. Don’t be legally outraged.

They could proceed with the charge of failing to name because, in essence, if you don’t name you can’t defend that charge at all. There are good policy reasons for that. We can’t just have a situation where someone can fail to name and face no punishment. He was fined £150 (the maximum is £1000) and docked the mandatory 6 points.

It’s a loophole apparently. Well, not really. The problem here is caused because, if you’re not prepared to incriminate yourself or others, there’s a neat way out. Don’t tell who did it and you’ll just get a fine and some points. It’s not a loophole. It’s an unwanted alternative.

The solution? That’s easy. Parliament has already decided that, for example, failing to provide a sample is as serious (perhaps more) than drink driving. That’s perfectly sensible. So, in cases such as this, and petition your MP, I suggest that there maximum sentence for failing to provide details matches the ancillary offence. So, if you’re speeding, then the max should be the existing (£1000 and 6 points). If it’s dangerous driving then the maximum should be 6 months / 2 years custody depending on the Court that the ancillary offence is tried/sentenced in). That would remove the “loophole” very quickly indeed.

After reading this, and I’ll keep reporting on more matters as they arise, you might still feel outraged. But, I hope, you have a bit more understanding of how things are as they are. You might feel that it’s time for a change. That’s fine by me. You have the knowledge now and knowledge can be a dangerous thing. Use it wisely.

 

 

 

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3 thoughts on “Crime and Punishment: part 2

  1. Outraged is about right. Outraged and frightened that people can get away with what was done in Nottingham,. But since most drivers I see break the law every day (go and stand where you can see a speed sign -if more than 20% fail to light it up I’ll be amazed) I have no faith that any jury of drivers will ever convict for anything but overwhelming evidence of awesomely bad behaviour.

    I think you’re right to say that it’s easier for juries to be sympathetic to killer drivers than to obvious ‘bad people’. What they don’t get is that those nice, sympathetic, drivers will kill more people than an entire coven of Hindleys.

    Liked by 1 person

    1. There are so few cases as well. The bad ones are pleaded. The borderline ones occasionally go the way you’d want it. The rest……….. what remains absolutely true is despite one class of road users breaking the law almost to a man every single day, it’s the other sub group that’s labelled as persistent law breakers. Anyway, wait till my helmet piece, that’ll be provocative.

      Like

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