Scotland’s first offence sentencing guideline: Have your say on punishments for death by driving offences – Louise Arrol

A draft guideline on sentencing death by driving offences is now open for consultation. It is Scotland’s first offence guideline and the Scottish Sentencing Council is keen to hear your views before it is finalised. Here, Louise Arrol, the council’s advocate member, explains more.

Motorists who commit a driving offence that results in someone's death can receive a lengthy prison sentence (Picture: Dan Kitwood/Getty Images)
Motorists who commit a driving offence that results in someone's death can receive a lengthy prison sentence (Picture: Dan Kitwood/Getty Images)

One of the functions of the Scottish Sentencing Council is to develop and publish sentencing guidelines. These guidelines provide an essential framework for sentencing in Scottish courts, and help the public better understand how judges arrive at sentencing decisions. Any guidelines developed by the council must be approved by the High Court of Justiciary before they have effect.

To date, the council has published three general sentencing guidelines on the principles and purposes of sentencing, on the process of deciding sentences and on sentencing young people.

As the council enters a new phase of its work, we have launched a consultation on Scotland’s first sentencing guideline for a specific offence. It covers the statutory causing death by driving offences: causing death by dangerous driving; causing death by careless driving when under the influence of drink or drugs; causing death by careless or inconsiderate driving; and causing death by driving: unlicensed, uninsured, or disqualified drivers.

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Sentencing is an important part of the process of justice and, having spent the past two decades working in the High Court conducting criminal trials and appeals, I believe a guideline covering death by driving offences will greatly assist judges in making what, at times, can be challenging decisions.

The offences covered by the draft guideline are very serious in nature and can have a devastating effect on the families of victims and others affected by the offence.

Death by driving offences are often among the most emotive and complex dealt with in our courts, with factors around the harm caused – someone’s death – and the level of culpability, or blame, of the offender, varying widely between cases.

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For death by driving offences, the level of harm (death) is set by law. Therefore, when determining the different levels of seriousness, the judge will concentrate on the culpability of the offender.

This can be particularly challenging when sentencing careless or inconsiderate driving offences where there can be a significant difference between culpability and harm caused.

For example, a judge may need to consider both the fact that there has been a fatality, and that the offender may be a driver with a previously good driving record and no prior convictions, who was momentarily inattentive.

This guideline will assist judges in making these difficult assessments, increase consistency in sentencing across Scotland and provide a clearer understanding for all involved as to how sentencing decisions are made.

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In order to make the draft guideline as concise, accessible, and easy to understand as possible for both the courts and the public, the Scottish Sentencing Council has carefully considered its structure.

The death by driving draft guideline provides a set of three steps for each of the offences. A table at step one (or two tables for offences of causing death by careless driving when under the influence of drink or drugs) lists features to be considered in the case based on their level of seriousness (A, B, or C). A table at step two sets out sentencing ranges for each level of seriousness. A table at step three lists factors which may aggravate (increase) or mitigate (reduce) the seriousness. In some cases this may move the headline sentence outside of the range selected from the second table.

For example, in relation to causing death by dangerous driving, level A seriousness would include prolonged and deliberate bad driving with a disregard for the danger being caused to others; level B would include driving that created a substantial risk of danger to others; and level C would include a single dangerous manoeuvre which created significant risk of danger to others.

The table at step two provides sentencing ranges for causing death by dangerous driving at seven to 12 years’ imprisonment at level A; four to seven years’ imprisonment at level B; and two to five years’ imprisonment at level C.

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The table at step three lists factors which may aggravate or mitigate the seriousness of the offence such as the offender having previous convictions (aggravating factor) or a previously good driving record (mitigating factor).

In drafting this guideline – and indeed all of our guidelines – the Scottish Sentencing Council has conducted research and engaged extensively with justice organisations and interested groups. This is because we aim to make all of our guidelines useful, and informative. Each guideline will become part of the Scottish criminal justice system and will have real effects on the people involved in criminal cases. It is important that we do what is necessary to get them right.

As such, we are now seeking your views on our draft death by driving guideline to ensure it is fit for purpose. This guideline will serve as a template for the structure and approach of the council’s future offence guidelines, so it is vital that we hear a wide range of views. We will carefully consider every response that we receive before finalising the guideline and I would urge all those who are interested to take part.

A consultation paper is available on the council’s website, along with the draft guideline and a draft impact assessment. The consultation paper sets out the background to the draft guideline, explains the reasons for the approach taken, and asks a number of questions to seek views. The consultation will be open until Tuesday, November 22.

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