Death by dangerous driving sentences are up for debate – Zoe McDonnell & Julie Brodtkorb

Proposed changes to the law in England could have implications for terms of imprisonment in Scotland, write Zoe McDonnell and Julie Brodtkorb
Zoe McDonnell is Head of Regulatory, Scotland, BLMZoe McDonnell is Head of Regulatory, Scotland, BLM
Zoe McDonnell is Head of Regulatory, Scotland, BLM

Drivers across the UK should take note of a proposal on the sentencing of dangerous drivers who cause death discussed at the UK Parliament on 21 July.

Former Prime Minister Theresa May MP presented a Private Member’s Bill to increase the maximum sentence for causing death by dangerous driving from 14 years to life imprisonment. Second reading for this bill, when MPs will debate its key themes and principles, is scheduled for 16 October.

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The criminal offence of dangerous driving is defined as driving in a way which falls far below what would be expected of a competent and careful driver where it would be obvious to a competent and careful driver that driving in that way would be dangerous. Dangerous driving can include falling asleep at the wheel, accidentally pressing the accelerator instead of the brake, ignoring road signs or signals, racing, and being distracted by using a mobile phone.

Julie Brodtkorb is a Solicitor, BLMJulie Brodtkorb is a Solicitor, BLM
Julie Brodtkorb is a Solicitor, BLM

The Sentencing Council for England & Wales implemented sentencing guidelines for causing death by dangerous driving in August 2008, giving a range of two years to the current UK statutory limit of 14 years imprisonment. These guidelines distinguish between three levels of seriousness and provide for each level a starting point and range of sentences. The guidelines also set out aggravating and mitigating factors. Aggravating factors include previous road traffic convictions, causing multiple deaths and failing to stop at the scene. Mitigating factors can include the offender also sustaining very serious injury and having a close relationship with the deceased. Scottish judges have regard to these guidelines but do not follow them mechanistically due to the different sentencing regime north of the border.

A sentence of nine years and four months imprisonment was imposed in England on a 23-year-old driver after he killed a four-year-old girl and caused serious injury to her grandmother in a “hit and run” incident in 2017. The offender was driving without a licence and had mounted a pavement when driving at excessive speed.

The Scottish Sentencing Council, established in 2015, is undertaking research with a view to implementing its own guidelines on causing death by dangerous driving. This Scottish body issued its first guidance – on the principles and purposes of sentencing – in 2018, stipulating that sentences should be fair and proportionate and their purpose may include protecting the public, rehabilitating offenders and allowing them to make amends, punishing the offender and expressing disapproval of the offending behaviour.

Examples of Scottish sentences for causing death by dangerous driving in the years 2007-2017 include three community-based rather than custodial sentences. In one case, a 29-year-old mother of two young children received a community payback order requiring 300 hours of unpaid work. Her defence team argued custody would breach her family’s right to a private and family life in terms of the European Convention on Human Rights. She was the main caregiver and due to the impact a custodial sentence would have on her children, their schooling and the family’s finances, a non-custodial sentence was deemed appropriate.

Two other Scottish examples in recent years are worth reflecting on. Two years’ imprisonment was imposed upon a 60-year-old man who pled guilty to causing death by dangerous driving after falling asleep and crashing his van into a car parked on the hard shoulder, killing a person inside the car. The offender expressed genuine remorse and accepted entire responsibility though explained that he was under considerable pressure from his employer to meet delivery targets. 12 years’ imprisonment was imposed upon a 27-year-old man convicted of causing death by dangerous driving after he drove a Maserati hire car on the wrong side of the road at “ridiculously excessive speed”, killing the driver of an oncoming van in a head-on crash. The offender had been drinking alcohol for eight hours before driving and, in the judge’s assessment, not only showed no remorse but gave evidence with “staggering arrogance”.

70 per cent of respondents to a UK Government consultation thought the maximum sentence should be increased to life imprisonment. If this becomes law, how it will be addressed by the Scottish Sentencing Council – and how many cases where the offence is so serious that the principles and purposes of sentencing can only be met by a life sentence – remain to be seen.

Zoe McDonnell is Head of Regulatory, Scotland, and Julie Brodtkorb is a Solicitor, BLM

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