The legal framework and sentencing policy
By Cherry Allan
Tuesday, 18 July 2017
The legal framework and sentencing policy
- All road users should share the roads responsibly, with respect for the law and the safety and comfort of others. Irresponsible driving, however, poses a disproportionate threat to pedestrians and cyclists and puts people off travelling by foot or cycle, despite its health, environmental and economic benefits.
- Driving a car is the one situation in which normally law-abiding citizens put other people routinely at risk. Such people do not deliberately set out to cause harm, but a moment’s inattention may cause serious injury and sometimes death. This is a dilemma for the justice system, and one that has yet to be solved effectively.
- Society expects high safety standards in various aspects of our lives where there are inherent risks – e.g. rail and air travel, in workplaces or on construction sites – and the law creates strong obligations to avoid or minimise the risks. However, there is a different culture on the roads. Lapses there are regularly dismissed merely as ‘accidents’ or ‘carelessness’ rather than something that is avoidable. Likewise, the penalties seem to reflect the attitude that the absence of care and the resultant collisions are inevitable.
- An overhaul of the framework of bad driving offences and sentencing is one of the solutions. In particular, the system should ensure that dangerous driving is never dismissed as being merely ‘careless’; and there should be far greater use of lengthy driving bans both as a penalty and to protect the public. This would make it clearer that it is unacceptable to endanger other road users, and it would help encourage more and safer cycling.
Policy Key facts
- In Great Britain, from 2011-15, under 2% of all trip stages were made by cycle, but cyclists represented around 6% of fatalities and 14% of serious injuries.
- Over the same period, c.84% of cyclists’ road fatalities reported by the police happened in crashes involving a motor vehicle.
- Between 2005 and 2016 in England and Wales, the number of people disqualified from driving directly by the courts dropped from 155,484 to just 62,822 – a fall of 60%.
- In 2016, 90% of drivers sentenced for killing another road user were directly disqualified by the courts, compared to 96% in 2005 (100% were banned in 2006 and 2008).
- In January 2017, there were 9,909 drivers still able to drive even though they had amassed 12 points or more on their licence increases, even though those who accumulate this number automatically face disqualification.
- For dangerous driving with a fatal outcome, the maximum sentence is 14 years; for both dangerous driving that causes a serious injury, and causing death by ‘careless’ driving, the maximum prison sentence is five years.
- The legal framework should make it clear that it is unacceptable to endanger and intimidate other road users. This is particularly important for cyclists and pedestrians because they are disproportionately likely to be the victims of road crashes.
- The current legal definitions for ‘careless’ and ‘dangerous’ driving have led to confusion, inconsistency and injustice. As a result, too many drivers who have obviously and evidently caused ‘danger’ are convicted of ‘careless’ rather than ‘dangerous’ driving due to confusion over the standard of driving to be applied. As a result, they may receive derisory penalties, or are acquitted altogether.
- The definitions of ‘careless’ and ‘dangerous’ driving should therefore be revised, along with the available penalties as part of the Government’s ongoing review of driving offences and penalties.
- To eliminate the element of subjectivity when determining how far a driver has fallen short of the standards expected of a careful and competent driver, their driving should be measured against a clear, objective standard. This could be based, for example, around the standard required to pass the driving test, which should surely be the minimum expected of a careful driver.
- Prosecution guidelines should be amended to reflect the above.
- The underlying principle of sentencing must be that road crime is treated as real crime, and not minimised as mere ‘traffic offences’.
- Whether a seriously injured victim happens to survive or die makes too much difference to the sentences available. Instead, sentencing should primarily reflect the standard of driving, rather than its outcome.
- Too often, discussions on how the justice system should penalise offending drivers centre on custodial sentences. This neglects the value of driving bans both as a penalty and as a means to protect the public:
- Driving bans should be more widely used as a penalty and to ensure that those who cause danger are not allowed to driver again until they can prove they can do so safely.
- Those who appear to have driven recklessly or with intent to cause danger should still normally receive prison sentences, as should repeat offenders, particularly those who have breached past driving bans. Long-term or lifetime disqualification should also be the norm in such cases.
- Banned drivers, especially those who drive professionally, should be retested before regaining their licence.
- The courts should be given the power to impose driver retraining as a sanction for convicted drivers.
- The definition of ‘exceptional hardship’ should be revised to prevent the routine use of this defence by drivers seeking to avoid driving bans.
- An offence of causing serious injury or death by car-dooring should be introduced, with much tougher penalties than fines.
- The Government’s ongoing review of driving offences and penalties should include all the above proposals.
- Fines in serious or fatal cases can trivialise the seriousness of the offence, particularly when the fine is small.
- The above proposals should be reflected in revisions to sentencing guidelines.
2017-07-18 00:00:00 Europe/London