Groundhog day as Gard the texting driver pleads for leniency - again

I promised to lock my phone up, but please don't lock me up

Yesterday the BBC reported that the Court of Appeal had granted 30-year-old Christopher Gard permission to appeal the nine-year prison sentence imposed by Winchester Crown Court in September, for causing the death of 48-year-old cyclist Lee Martin by dangerous driving on 12 August 2015. Stage one of a two-stage appeal process, with the full appeal hearing to take place on a later date.

Gard drove into Lee from behind in daylight on a dual carriageway in Hampshire. Too busy exchanging texts, Gard failed to see the cyclist right in front of him. As Cycling UK reported in September, he was still able to drive that day because, six weeks earlier, Magistrates had allowed him to keep his licence, accepting his plea that his family would suffer exceptional hardship if he lost his licence and his promise that in the future he would lock his phone in the boot whilst driving. 

Nine lives and Gard's need to drive

Gard had six previous convictions for driving whilst using a mobile phone when he appeared before the Aldershot Magistrates and had twice avoided a conviction and penalty points by attending a driver awareness course. Eight lives used and with over twelve points on his licence in three years he was liable to disqualification under the totting up provisions, but he used his ninth life to dodge a ban using the exceptional hardship loophole. 

Some might suggest that the consequences of continually accruing penalty points for the same offence, and then being banned from driving, should have registered with Gard long before he was caught for the ninth time. The Magistrates' acceptance, in this and so many other cases, that the need to drive trumps the necessity to remove dangerous drivers from the roads, and their inability to distinguish between predictable inconvenience and what is truly exceptional, demonstrates why disqualification of drivers for non-imprisonable and repeat offences, before they kill people, has to be reviewed urgently.

Minimum effort to increase maximum sentences

Following Road cc's article about Gard's appeal, many people have expressed incredulity that the sentence might be reduced by the Court of Appeal. Unfortunately, swallowing hard, if that happens there is no point blaming Judge Susan Evans QC, the sentencing judge, or the Court of Appeal. The problem lies with Government and its failure to progress the motoring offences and penalties review, announced back in May 2014, which was supposed to consider raising the maximum sentences for those who kill or cause serious injury on the roads.

Currently, the maximum prison sentence for causing death by dangerous driving is 14 years. Sentencing policy has however for many years sought to provide an incentive for defendants who plead guilty, rather than putting victims and their families through a trial, by providing a discount on sentence for those who admit their guilt. This is not a specific road traffic law issue. It applies, rightly or wrongly, across the whole criminal justice system.

The Sentencing Council Guidelines recommend a one-third discount for a guilty plea at the first opportunity, and a reduced discount for a late guilty plea. Gard originally denied dangerous driving but pleaded guilty just before the trial started, so the Judge was obliged to give him some discount for that plea, and was therefore restricted to a sentence less than the maximum.

On appeal, Gard's lawyers will argue that the maximum sentence has to be reserved for the absolute worst example of a particular type of offence. However appalling Gard's conduct, they will point out that he was not travelling at a speed vastly exceeding the speed limit, he was not over the alcohol limit, he was not a banned driver, and he did not flee the scene. Put bluntly, there are aggravating factors which were not present, so they will say this can't be the most despicable example of this offence.

No comfort for Lee's family, but sadly, legally correct. Judge Evans was therefore compelled to allow a guilty plea discount on a sentence, the starting point for which, had to be less than 14 years. That is the incredibly frustrating reality with Gard's appeal.

Before anyone shoots the messenger, Cycling UK is not suggesting in any way that a nine-year prison sentence, in this case, was not appropriate morally. The Court of Appeal is however stuck with a fourteen-year maximum sentence that parliament has given them to operate within. If their powers were less fettered, and for example, a 20-year maximum sentence had been available to Judge Evans, then who knows, she might have imposed a longer sentence, and if not, Gard's prospects of challenging a sentence not far off the maximum might look somewhat different.  

The Ministry that likes to say - Manyana

Back in May 2014 the then Justice Secretary , Christopher Grayling MP, promised to carry out a review of motoring offences and penalties within "the next few months", that this would be a "full review of all driving offences and penalties", and that those who cause harm should face "much tougher maximum sentences". Replaced a year later as Justice Secretary by Michael Gove MP, and then by Elizabeth Truss MP in July this year, those promises remain empty rhetoric. 

There seems to be a revolving door at the Ministry of Justice (MOJ),  recycling promises that the consultation will commence soon, shortly, or in due course, but with no tangible progress.

In September, Cycling UK reported on our meeting with MOJ officials about this review. They were still planning to commence this before the end of the year and review maximum sentences for the most serious offences, but disqualification for non-imprisonable and repeat offences, and the exceptional hardship loophole, were off the agenda despite our representations. Of course, it was the failure of the justice system to deal with those very issues which allowed Gard to keep his licence, and then destroy the lives of Lee's family.

Tough talk - but time for action from Truss

Over recent weeks politicians including the Prime Minister  have talked tough about people using mobile phones whilst driving, but imposing fines and penalty points will be merely cosmetic if drivers aren't banned for repeat offences, and that means looking at totting up disqualifications and exceptional hardship.

Last week, before hearing the news regarding Gards's appeal, Cycling UK wrote to the Justice Secretary Elizabeth Truss, quoting the Prime Minster's comments about "taking action against those who flout the law", referring to the Gard case as example of why disqualification from driving has to be included within the overdue review, and requesting confirmation that its remit will now be extended to include this.

Lee Martin and his family have already been tragically let down by the criminal justice system. They have also been let down by the Government's failure to progress a review, which should by now have addressed both maximum sentences for serious driving offences, and the use of disqualification powers to get drivers like Gard off the road before, not after, they blight the lives of others. 

If the Prime Minster is serious about taking action, and determined as she claimed last week "to make our roads safer", we need the MOJ to give us a date, this year, when the review will commence, and confirm that the review will not be limited just to the most serious offences and penalties, which would completely ignore the repeat offender problem where disqualifications are avoided with tragic consequences for others, so cruelly demonstrated in the Gard case.