Changes to careless driving laws offer little comfort to families

IT WAS always a difficult circle to square. In the dock was the driver who had been at the wheel of a vehicle which was involved in a collision in which someone had died. The circumstances of the incident indicated the driver had lost concentration for a brief moment in the way that many of us acknowledge we have experienced ourselves from time to time. But the consequences on this occasion had been fatal.

In the well of the court was the procurator-fiscal, prosecuting a charge of careless driving. A charge of causing death by dangerous driving might have been initially considered, but its evidential requirements might not have fitted the circumstances of this particular incident and in general is notoriously difficult to prove.

In the public gallery were the friends and family of the deceased, who could not understand how such a trivial-sounding charge remotely acknowledged the fact that the life of someone going innocently about their business had been abruptly ended. Worse than that was the outrage they felt when they discovered that if the driver was convicted, the judge was not allowed to send him or her to jail. Even the maximum fine didn't seem much.

On the steps of the court were journalists waiting to ask the friends and family how they felt about the outcome. Angry headlines followed.

Politicians felt the pressure – road traffic law is reserved to Westminster, but MSPs were under no less pressure than MPs to do something.

The result was the Road Safety Act 2006, which introduced several new offences – most notably causing death by careless driving (amending Section 2B of the 1988 Road Safety Act) and causing death by driving by unlicensed, disqualified or uninsured drivers (amending Section 3ZB of the 1988 Act).

The potential penalty for causing death by dangerous driving in a solemn case before sheriff and jury is five years' imprisonment, and 12 months imprisonment in summary cases. The potential penalty for a Section 3ZB conviction is two years' jail following sheriff and jury trial, and 12 months in a summary case. There does not have to be any element of poor driving in such cases. The new offences came into force on 18 August, 2008.

There have been only a handful of cases completed in Scotland. The case summaries all reflect a nightmare for those involved: a father whose son died when their car was hit as it carried out a U-turn; the driver of a council road sweeper who reversed into a pedestrian; an elderly man who misjudged the speed of a motor cyclist as he tried to turn right at a junction.

In each of these cases the driver plead guilty to the charge of causing death by careless driving and each was fined 1,000 and disqualified from driving for 15 months in two cases and for three months in the other case.

Several more guilty pleas in the more serious solemn cases are due in the coming weeks but so far no drivers have been jailed. The pattern in Scotland appears similar to that in the rest of the UK from the early statistics with comparatively few jail sentences in England and Wales.

The Crown Office in Scotland has published its policy on causing death by driving on its website and lists the factors that will be taken into account when reaching its decision at which level to prosecute. The decision will be made at Senior Crown Counsel level – they will review the evidence and the need for further enquiries before instructing the local fiscal's office. The stated intention is to strive for a more consistent approach to cases across Scotland and to ensure that if the case might be prosecuted as causing death by dangerous driving it will not founder in court due to insufficient investigation in the early stages.

The policy lists the mitigating and aggravating factors that will direct some cases to summary proceedings and others to sheriff and jury. Aggravating factors include previous convictions; the conduct of the accused at the time of the incident; more than one fatality and serious injury to others as well as a fatality. Mitigating factors include serious injury to the driver; closeness of relationship to the deceased; positive assistance to the deceased at the scene and the contribution of the deceased to the incident.

So what difference has the new offence and its associated charging regime made? The family of a mechanic, Kevin Mykoliw, who was killed while testing brakes on a coach due to what was described by the sheriff as "momentary inattention" by the coach driver, expressed their anger at the sentence of 210 hours community service and a three-year driving ban handed down in Inverness just under a fortnight ago. The sheriff explained that his decision was based on the previous good character of the accused.

Graham Walker, a solicitor who specialises in motoring cases, is uneasy about the legal coherence of the new offence and whether it really moves matters on from the previous situation, either from the point of view of the surviving family or from the interests of justice.

He said: "I think the politicians raised expectations among the victims lobby that 'justice' for the deceased will somehow be created by more punishment for drivers in fatal accidents. Sometimes death results from a relatively minor error of judgment, to which every driver, however experienced, is liable from time to time.

"In Scotland our judicial system has always been guided by the principle that to commit a crime there requires to be criminal intent. However, in the UK we now have a crime where the accused can be shown to be acting in good faith and could be said to being doing his or her best, but that in the particular circumstances of the case failed to drive at a standard considered to be that of a competent and careful driver and therefore may face a jail sentence due to the grave consequences of the driving. If it doesn't turn out that way the family of the deceased will feel just as let down as before."

Graham Robertson, an advocate, said: "It's too soon to get a real sense of how it is working in practice. At High Court level I'm grateful and the accused is pretty relieved. The new offence may be libelled for incidents that might previously have been charged as dangerous driving with much more severe potential penalties. At Sheriff Court level I'm more worried. The definition of what constitutes carelessness remains quite subjective whatever the tragic outcome. I regret the changes may not make much difference to the surviving families."

Cathy Keeler, deputy chief executive of the road safety charity Brake, which campaigned for the change, said: "It's difficult to say yet whether the new charge is working as we haven't seen statistics yet on cases brought and the outcomes. Brake hopes when they are published we will see that the courts are using the full range of their sentencing powers, reflecting the extreme harm caused and acting as a deterrent to drivers from taking risks."