Crime and Punishment 3: what the hell just happened?

Are you outraged yet?

You should be. But first I refer you to my previous articles on this subject. Read Crime and Punishment : Chapter 1 followed by Crime and Punishment: part 2. You will need a good few minutes. You’ll need to understand the quite limited charging regime we have in relation to cycling cases and how the Court system’s hands are tied by our existing sentencing guidelines (where they are even available).

Let’s put the above case into some context. It’s a case of careless driving where an experienced cyclist was left unable to care for himself. It’s a wholly unacceptable state of affairs. Hey, but, on the flip side,  don’t worry, cyclists get fined as well. Wow. I mean, I’ve cautioned against outrage before haven’t I. But you must be outraged at that comparison. And, I have to say, so am I. But how did we get here? To understand that we have to look at the offences and sentences available to the Courts. Is this a failure of the Judge and/or Court system? A failing of justice? Or has justice just got itself comparatively arse backwards.

Oh, and there’s this one as well. Properly epic. No one was hurt in the making of this one. But the capacity for harm was great. Practically off the scale really. A short ban and a small fine followed.

I’ve talked about rationalisation before. I hope that I’ve been able to show that most cases are treated within the guidelines of what the Court has available to them. That they might breach some theory of natural justice is a separate point. Sometimes we have to be careful to ascertain what type of justice has failed. The theory of it? Or actual justice. In this third part of crime and punishment there might be some of both. So, let’s start at the beginning.

In the piece I led with above, Rod Bartley, an experienced cyclist, was hit by a tractor and left with life changing injuries. His family are, quite naturally, aghast at the sentence he received. They are right to be because it simply should not be the case that such actions, however transient and fleeting, are punished less harshly than other more trivial incidents. Bear in mind that it’s not much worse than a middling sentence for speeding. One of the critical issues of our legal system is that it sets out clear guidelines as to what should be taken into account when sentencing certain offences but, in relation to some, the outcome is broadly irrelevant. You could write a thesis on that, and I might well do in due course, but there are good arguments that the outcome shouldn’t set the entry point to the offence but the actions which led to it should. Of course, in some offences such as causing death by, the outcome defines the offence. In Rod Bartley’s case it might appear that the legal system is relatively unconcerned at the outcome.

The offence the tractor driver was charged with was careless driving or what we once knew as driving without due care and attention. There’s a pretty big clue in the title here of what type of offence this is. It’s one which isn’t about danger per se, it’s about taking your mind off the task at hand, forgetting about your responsibility for a moment. And from that notion you realise that this is going to be an uphill struggle. To demonstrate careless driving the Court has to be satisfied that the driving fell below the standard of a competent and careful driver. It’s a test which is not actually that hard to satisfy and that’s why it’s often preferred to a dangerous driving charge. And in determining what is to be expected of a competent and careful driver, the prosecutor must take into account not only the circumstances of which the driver could be expected to be aware, but also any circumstances shown to have been within the driver’s knowledge.

We don’t know the facts of this case. What is clear is that the tractor driver turned right across Rod’s path. Not the tractor, the tractor driver. It’s a conscious (or at least subconscious) act of a human being and not the act of a mechanical object. We don’t know much more because we were not there but, anecdotally at least, we know that tractors are large vehicles with occasionally poor sight lines. Flawed road vehicles and they should be driven as such.

What we do know is the sentence. An £80 fine and 6 points. No ban, no community penalty, no prison sentence. Meanwhile, Rod Bartley got a life sentence. From the ban we can extrapolate a view of the seriousness of this offence.  Here are the sentencing guidelines, it can only be tried in the Magistrates Court.

Identify the appropriate starting point Fine Sentence
Momentary lapse of concentration or misjudgement at low speed Band A fine 3-4 points
Loss of control due to speed, mishandling or insufficient attention to road conditions, or carelessly turning right across on-coming traffic Band B fine 5–6 points
Overtaking manoeuvre at speed resulting in collision of vehicles, or driving bordering on the dangerous Band C fine Consider disqualification OR 7 – 9 points

 

And there we are. We know the driver got 6 points so we can extrapolate the circumstances of the offence. This was one where there was insufficient attention, indeed an example is given of carelessly turning right. We can also tell something about the financial circumstances of the offender. A Band B fine provides a range of 75-125% of their weekly income. Essentially a low earner. So, while we didn’t hear or see the trial we can safely assume how the Judge sentenced it.

The above are the starting points. You then move on to consider culpability and harm factors. But, in this scenario, they don’t really mean very much. If the starting point is a momentary lapse then greater culpability or harm don’t really mean very much, another point on the licence. One of the factors indicating greater harm is, as you’d imagine, injury to others. But the nature of that injury is drawn broadly and no extra weight is seemingly given to the extent of it. So if you enter at the mid point a 5 point ban becomes a 6. In fact, given the nature of the guidelines you might as well plead guilty, sit down and don’t bother doing much mitigation, the outcome will be pretty much the same.

If you do decide to speak up then the final step is to consider credit for an early guilty plea (up to a third) and offender mitigation (effectively impact on them, how sorry they are or say that they are etc). In this case the sentence seems clear and, importantly, it seems correct. This was a moment of inattention and the sentence handed down is clearly within the scope of the guidelines.

So, why should we feel outraged? Has justice been done or has it been seen to be done? It’s an interesting one and it begs the question what is justice. I read a lot of comments on various forums about this case and the failure of the CPS, Courts and this (insert expletive) Judge. But there’s no obvious failure here if the evidence did not support a charge of dangerous driving. Indeed, on what we know there’s no failure of justice at all, not in the sense of the current legal regime. But there is clearly a failure of what justice should be and we are right to be outraged. We’ll return to why in a bit but let’s contrast another case.

In the case of the cyclist fined for going through a red light there were no points on a licence. There cannot be because cycling offences do not create licence points. But the “fine” was significant. Depending on which source you read it was £220 plus a victim surcharge and Court costs. That there was no victim is irrelevant, think of it as an admin charge. What’s not clear is how this case got to Court. The fine for running a red is based on a fixed penalty notice and it’s a non endorsable offence. That means that the fine is £50. A ticket is issued and it is paid. It can be challenged or, if it is not paid, it can be enforced. It’s not clear whether this was a case brought on the basis of a fixed penalty notice. It’s possible that it might have been a charge of dangerous or careless cycling, those offences have fines of £2500 and £1000 respectively. It fits but I think that’s unlikely given that the existence of the FPN procedure is well established. What is clear, however you view it, is that an action with a risk of harm was punished more substantially than an action which created actual harm. Even if the case had not gone to Court the fines would have been similar and grossly different in terms of harm.

And then you have the 154 mph motorist. A short ban of 56 days, a reasonably small fine, no points. Why? Well, our currently drafted legislation requires one or the other. If you have points, no ban. If you have a ban, no points. You will all have read cases where people have been jailed for such high speeds so how come this one wasn’t? Well, it all comes back again to the nature of the offence and, rather oddly, it seems that this case was charged as speeding. Yep, not even careless and not approaching dangerous. Just speeding. Speeding at more than twice the national speed limit. In terms of the correct sentence being doled out then, once again, this is correct. The maximum ban for speeding was given. That said the sentencing guidelines only go up to 110mph for speeding offences. For a prison sentence to even be a legal possibility there had to be a charge of dangerous driving because, as we have seen, careless driving doesn’t come close.

Why wasn’t there? Well, that’s a weird one. It seems he was caught red handed. It seems there was physical evidence of speed. One would imagine there would be witness statements and, conceivably, video evidence of the manner of the driving. But the CPS charge according to the evidence that they have and it’s theoretically possible here that the driving standard was good, that the road was clear, that there was no risk to anyone else, that the standard did not fall below the standard required. Which is, frankly, poppycock. Competent and careful drivers don’t do 154 mph. So it’s baffling as to why a charge of careless driving wasn’t considered. Indeed, the test for dangerous driving, FAR below what is expected of a careful and competent driver, appears to be made out. Also, the nature of the sentence allows us to extrapolate that the Court felt that the driving felt just short of dangerous. How can that possibly be the case? But then the Court can only sentence according to the charge that is laid, not in relation to how the Court thinks the offence should be charged.

And there’s a clear dichotomy in even the CPS’s charging standard where, on the one hand “It is important to remember that the manner of the driving must be seen in the context of the surrounding circumstances in which the driving took place (for example amount of traffic, visibility, weather conditions, excess speed etc) and these unique factors will be relevant in reaching an appropriate charging decision in each case,” but, on the other, “It is not necessary to consider what the driver thought about the possible consequences of his actions: simply whether or not a competent and careful driver would have observed, appreciated and guarded against obvious and material dangers.”

So, even if it were a wholly deserted road bathed in good light with not a soul around it should fall way short of what is safe. Indeed, at 8:55 pm on dark April evening, an hour after sunset, it seems to define what is dangerous. And only that charge would be enough to open up the possibility of a much harsher sentence.

There is talk of an appeal of sentence here. That I am afraid is doomed to fail, it’s the failure on the first charge in the first place that is to blame. But the CPS do good work and there must be a good reason why only speeding was charged. There must be, because everything else is a failure of justice.

Three cases, three similar result, three very different outcomes or, at least, potential ones. Is there any comparison? Well, not really, but what it does show is that there are anomalies out there and that comparing cases on a like for like basis is a futile one. Well, mostly, because, what I’m about to go on and discuss is why it’s time for a change.

In terms of harming cyclists, pedestrians and the operators of motorised vehicles the justice system works well within its defined parameters. But there are two issues, the complete absence of a suitable offence dealing with injured parties and the dubious overlap of sentencing both internally (i.e. motoring offences) and externally (in comparison with other criminal offences).

As I outlined in part 1 of my discussion there are a limited number of motoring offences that determine the nature of the driver’s actions and the harm that they cause to others. At the bottom of the pile was have careless driving and dangerous driving. Both offences are modified where there is a death involved to become a more serious charge. There is also a charge of causing SERIOUS injury by dangerous driving but no mirror charge in relation to careless driving. And there is no charge of causing ANY injury by either careless or dangerous driving. In law we call it a lacuna. Or a gap. You might call it a %^£&%$^£$ disgrace. And that’s a problem. If such an offence had existed in relation to Rod Bartley then it’s certainly the case that we’d have seen a sentence more broadly aligned with actual justice. There are alternatives. So, for example, where an injury is caused in a careless driving case it’s theoretically possible for an assault to be charged. Theoretically but I’ve never seen it happen and proving an assault without intention (for careless driving is an act of omission arguably) is always going to be difficult.

Let’s consider the current sentencing guidelines and how they overlap with each other in relation to each offence. I’ve only referred here to the death by charges and that of causing serious injury by dangerous driving. Bear in mind also, for that serious injury element to succeed, there has to be an injury akin to grievous bodily harm within the meaning of the Offences against the Person Act. Though it will be interesting to consider the thresholds the CPS have used when considering whether to bring such a charge.

Causing Death by Dangerous Driving

Because this is the most serious case it can only be tried/sentenced in the Crown Court.

Nature of Offence Starting Point Sentence Range
Level 1 The most serious offences encompassing driving that involved a deliberate decision to ignore (or a flagrant disregard for) the rules of the road and an apparent disregard for the great danger being caused to others 8 years custory 7-14 years custody
Level 2 Driving that created a substantial risk of danger 5 years custody 4- 7 years custody
Level 3 Driving that created a significant risk of danger [Where the driving is markedly less culpable than for this level, reference should be made to the starting point and range for the most serious level of causing death by careless driving 3 years custody 2-5 years custody

Causing Death by Careless Driving

You’ll note here that not every case will attract custody. This is an offence than can be tried/sentenced in the Magistrates Court or Crown Court depending on its seriousness.

Nature of Offence Starting Point Sentence Range
Careless or inconsiderate driving falling not far short of dangerous driving 15 months custody 36 weeks – 3 years custody
Other cases of careless or inconsiderate driving 36 weeks custody Community order (HIGH)–2 years custody
Careless or inconsiderate driving arising from momentary inattention with no aggravating factors Community order (MEDIUM) Community order (LOW) – Community order (HIGH)

Causing Serious Injury by Dangerous Driving

Creating a table for this one is a bit more difficult. It’s an offence triable either in the Magistrates Court or the Crown Court depending on the seriousness of the case. So the maximum sentence in the Magistrates Court is 6 months custody and in the Crown Court 5 years.

The question that we must ask is whether the full range of sentencing is available. Does the overlap in the charges provide a logical sequence of escalation in relation to sentencing? Is that logical escalation consistent internally or externally?

Let’s take the least serious of the dangerous cases. Level 3 is further expanded in the text to the sentencing guidelines and can include matters such as inappropriate speed, being distracted and failing to have regard to vulnerable road users. The last point is apposite. But, evidentially, such matters have an obvious overlap with careless driving because of the threshold that they occupy. There’s actually a fairly logical progression between the upper tier of careless and the lower tier of dangerous. In effect an act might occupy either of those and be penalised by a custodial penalty of 15 months – 5 years. Below this the matters de-escalate into non custodial penalties.

When we get to causing serious injury by dangerous driving it’s difficult to draw any real conclusion in the absence of sentencing guidelines so we have to look to recent case law for a steer. And the problem with that is that to succeed in the charge the prosecution have to prove dangerous driving AND serious injury. The latter is a matter of fact, the former a matter of evaluation by the Jury.

So in this case we get no sense of it because the Jury acquitted essentially on the dangerous element. We would have got a steer in the case of John Radford but sadly John died and therefore the more serious charge was applied.

Comparisons are quite difficult to draw. There’s no reason why you couldn’t get a community penalty for a death by careless, a fine for careless, a long custodial sentence for a serious injury by dangerous or a short sentence for a death by dangerous depending on the facts of the case and their seriousness. There’s nothing wrong with that as a principle. Much will depend on the standard of the driving and only on conviction will the relevant guidelines be applied. On the face of it, so far, so logical. Though, of course, you could get 6 points for putting someone in a wheelchair or a ban for going at twice the national speed limit. That seems to me to be internally inconsistent within motor vehicle offences.

And, of course, everything falls on how that case is initially investigated and charged. That turns, once again, on the evidence. Consider this little peach which arose at the time of writing. On the face of it, it’s an evidential slam dunk and textbook dangerous. But all it needs is for the driver to claim he was shocked by the water in the eye and inadvertently swerved. It may be that no charges are brought. Even when you think the evidence is clear cut and physical nothing might happen. And it’s at that initial stage that many of the problems with whether the case IS charged and, if so, WHAT charge, begin. Sometimes all the CPS can reasonably do is bring a lesser charge and hope that some justice, if not all justice, is actually served.

One of the real issues in my view is the lack of a charge of causing serious injury by careless driving because, in Rod Bartley’s case it seems, justice would only be interested in his death and not his lack of living. It would be relatively easy to create a new offence, as easy as legislation is. But the problem occurs with where you slot it on the sentencing scale. Or, if you like, is the reason why it hasn’t yet been created because it would require a wholesale review of current sentencing guidelines?

It seems fairly obvious that, for the sake of internal consistency, a sentence for causing serious injury through careless driving should be set at a level below that of the same offence through dangerous driving. And that’s probably where our problems begin. The dangerous charge is 6 months – 5 years. Though, of course, the 6 months is simply a reflection of the maximum sentence available to the Magistrates. They can, however, transfer the case to the Crown Court for sentencing. There seems to be no good reason not to have a custodial range of 6 months to, let’s say, 2 years for such an offence. And, of course, depending on the nature of the driving, other sentences would become available such as a community penalty, suspended sentence etc.

But that it was that easy. You see, that type of sentencing range would then mean that the sentencing range was similar to a level 3 case of causing death by dangerous driving. Is that correct? Is it internally consistent? Does that even matter or should we just let the Court find the right place? Alternatively do we just up the rest to reflect a new lower starting point for this offence.

It may well be that our existing sentencing powers are inadequate and a failure to reflect the nature of the offence. And whilst I don’t necessarily ascribe to the external consistency argument (equating an intentional GBH to a careless injury) there should at least be an examination in relation to parity. So while it looks easy to create a new offence to deal with this sort of thing, the practical reality is that there are effects and sorting out those effects is a not inconsiderable task. But we should try.

And I think that’s the issue, one which I won’t address at length here, but I might try and database it out in due course. Creating a system of sentencing which properly works from doing 35 in a 30 up to mowing down cyclists while on drugs needs some work. It’s right that some offences are penalised less than others. I’m not necessarily sure that the highest sentencing powers are high enough (though such offences then need to be externally consistent with the types of sentences we see in murder cases). But I’m pretty confident that much of what passes for a moment of inattention isn’t given the gravitas that it deserves. If this was a Health and Safety environment then taking your eye off the ball when operating a multi tonne machine would be quite heavily penalised. That driving is a normal, everyday aspect of human behaviour should not rationalise or excuse any failure to carry out that activity in the proper way. This should not be treated, at the lower end, as some sort of soft civil crime.

So, this is difficult. I’m firmly of the view that the range of driving offences is still too narrow and that the whole thing needs to be looked at in terms of the sentences that society might expect. The thing is that society might not actually want or be happy with the outcome because, well, it could happen to you. I’m also of the view that a new offence of causing serious injury by careless driving is necessary because it will provide the cases such as Rod Bartley and Miriam Parker at least SOME sense of justice being served. Sadly, given what our Government have to deal with in relation to Brexit I doubt that the much vaunted review of road traffic offences will be concluded any time soon. That’s no excuse. to perpetuate a system of sentencing which only properly operates where the victim is deprived their life and fails to reflect their quality of life is clearly in need of an overhaul.

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4 thoughts on “Crime and Punishment 3: what the hell just happened?

  1. In my experience, the CPS often undercharge, and particularly where a jury trial might be on the cards (and if it’s avoided by undercharging, so much the better, their thinking goes), and especially where the offence involves driving. Though frankly if I was to start listing and trying to deal with the shortcomings of the CPS this would be a very long post.

    As Martin Porter found out, juries who are mostly made up of drivers will tend not to convict a fellow driver who made the sort of mistakes that they themselves make or might make. They’ll happily convict another driver who has done something outrageous, but if he excuse sounds halfway reasonable the verdict will come back as “not guilty”.

    My view is that to address such matters we need to make several changes. Chielfy we need drivers to recognise cyclists as people, and to understand how they should drive differently as a result of those people being vulnerable on the road. Instead of – as it is at the moment – the motorist feeling that the cyclist is both a different breed as well as being a nuisance, taking up space that “belongs” to cars. I’d Roy to bring about such a change by requiring some cycling to be part of the pathway towards holding a driving licence. I’d also bring in strict liability (well, a shifted burden of proof) in civil claims where a motorist collides with a car. That won’t affect criminal convictions, but might help to hammer home the message that the driver is supposed to be driving responsibly when in charge of a tonne of metal in a public place.

    Liked by 1 person

  2. Ah, yes. jurisprudence and the purpose of criminal law and the efficacy of punishment. Justice according to the law and lawyers applying the law not making it, though having to deal with the fall-out.

    Can recall many, many moons ago a prosecutor saying that all speeding should be be prosecuted as driving without due carea and attention. tests

    Perhaps there should sliding scales of strict liability (Richard above) which take into account vulnerability of road users and in effect applying the civil maxim res ipsa loquitur (death, ect ) and which is similar to a simplified system of assessment of civil level of damages to apply in weighing the level of crime, as well as sentence. Again, as Richard mentions, perhaps there should be a shiting of the burden of proof and/or standard of proof. Perhaps bring in other civil law tests “reasonable foreseeability” or concepts of consequences in to criminal law. (Been so long out of law that I don’t know how much law has changed.)

    But if that happened, I might stop driving as I am only human and do err. But I suppose that is alright if it is on the side of caution and to do that irks an increasing number of drivers.

    Liked by 1 person

  3. Might be nice if changes in the law made many people stop driving, because we do indeed all have the capacity to err, and erring while in charge of a car, or something bigger, is often dangerous.

    Like

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