The law has developed to account for the consequences which can arise because of a particular course of driving, culminating in the most recent amendment to the Road Traffic Act 1988 – creating the crime of causing serious injury by careless driving.

Careless driving, with no consequences in injury, may lead to a fine and from three to nine points on a driving licence but not necessarily, of itself, to disqualification from driving. The question of disqualification is at the court’s discretion following a conviction for, or guilty plea to, careless driving.

In stark contrast, following conviction for careless driving where serious injury was caused, obligatory disqualification for a period not less than 12 months must ordinarily be imposed. In addition, a prison sentence of up to two years or a fine or both are competent sentences for the offence.

What may constitute careless driving? Perhaps a momentary lapse of concentration or a fleeting, unthinking act just below the standard of driving to be expected of a competent and careful driver, an avoidable, albeit brief, distraction, or driving at an inappropriate speed for prevailing road or weather conditions. Maybe, even, a simple mistake.

A point worth reflecting on in the context of possible imprisonment for causing serious injury by careless driving is the interaction of that possibility with the Scottish Sentencing Council’s guideline that took effect last year and applies to under 25s. While this guideline notes “the full range of sentencing options remains open to the court” when under 25s are being sentenced, the guideline says a custodial sentence “should only be imposed on a young person when the court is satisfied that no other sentence is appropriate” and “If a custodial sentence is imposed on a young person, it should be shorter than that which would have been imposed on an older person for the same, or a similar, offence”.

So, the consequences of an act may depend on the age of the person. I admire the creativity behind this guideline. The courts play an important part in our society and all too often only see the devastating end result of a particular act. I applaud the endeavour to look behind the end result and act with compassion and understanding, considering sentences that might “improve” society or even make a positive difference.

The question then arises - with disqualification from driving for a minimum of one year ordinarily mandatory for causing serious injury by careless driving but disqualification at the discretion of the court for careless driving itself, is there not a risk that proportionate justice may not always be done in serious injury careless driving cases, especially given the range of acts that may count as careless driving? The consequences of disqualification from driving can be life-changing, possibly even leading to loss of employment, family home and even family relationships.

Careless driving, with no consequences in injury, may lead to a fine and points on a driving licence but not necessarily disqualification

Clearly, we should all take care on the roads and causing serious injury is a serious matter, especially for the injured person and their relatives. But, despite the best of intentions, mistakes do happen. When they do, compassion for all involved, and an understanding of the potential consequences, may not be out of place. Compassion and understanding are clearly at the heart of the guidelines on sentencing under 25s.

Compassion and understanding should perhaps play a greater role in sentencing for causing serious injury by careless driving for both under and over-25s, with disqualification made discretionary, as for careless driving itself. Then a person who, through a momentary lapse of concentration, caused serious injury by careless driving and who may suffer significant adverse consequences from losing their licence might not be treated on the question of disqualification in the same way as a person who caused serious injury by a more serious act of careless driving.

Ann Bonomy is a Partner, Clyde & Co

Some compassion for ‘careless’ drivers - Ann Bonomy