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Driving Offences

16
Jun

Death by dangerous driving – a long road of sentence inflation

We hear much of inflation in economics of late in the press. Less is written about sentencing inflation in criminal justice, years in the making, as we face the highest UK prison population in history.

With the possible exception of sentencing in sexual offence cases, there is perhaps no better example of sentencing inflation than in cases of fatality caused by dangerous driving. Today’s developments in sentencing practice are likely to result in many more people in prison in future who have caused the loss of life on our roads.

Guideline

The Sentencing Guidelines Council have published new guidance for driving offences, particularly those which cause death or serious injury.

There are six new guidelines in respect of offences, which include causing serious injury by dangerous driving and causing serious injury by careless driving. There are also six revised guidelines which include, causing death by dangerous driving and causing death by careless driving.

Expect the revised death by dangerous driving guideline to receive the most scrutiny in the coming days and weeks. The guideline takes effect on 1st July 2023.

The new death by dangerous driving guideline’s general framework remains consistent with the outgoing guidance. The Court is invited to consider into which of three levels of culpability it is appropriate to place the offence. The outgoing guideline identified levels 1, 2 and 3 and ultimately set out types of driving, each with differing gradations of culpability across the levels.

The new guidance speaks of culpability levels A, B, and C, but the assessment framework approach remains broadly similar, before the detail of aggravation and mitigation is considered.

The starting points for all new levels assume a single death, the guideline being at pains to state, ‘for all cases the harm caused will inevitably be of the utmost seriousness. The loss of life (‘Harm’) is taken into account in the sentencing levels at step two’. The Court will be expected to elevate the starting point in cases of multiple fatalities or additional serious injuries. The long and the short? Much like the outgoing guideline, practitioners and Judges will be considering into which of three levels the case starts and ends life.

History

A history of how we got here may be of interest. When the offence was first enacted, the maximum sentence for death by dangerous was five years imprisonment. Non-custodial sentences for serious offences were not rare.

Later, on 16th August 1993, the maximum sentence was increased to ten years imprisonment. In 2003 the then Lord Chief Justice, Lord Woolf, issued sentencing guidance in R v Cooksley [2003] EWCA Crim 996. Higher culpability cases were to have starting points of 4-5 years after an unsuccessful jury trial. Cases of the, ‘most serious serious culpability’ 6 years after trial.

Interestingly, the Court in Cooksley opined, ‘We do not see the … need to increase the maximum of 10 years imprisonment for death by dangerous driving, particularly as the offence of motor manslaughter still remains. That offence being reserved for situations where on the facts there was a very high risk of the driving resulting in death.’

Plainly, Parliament paid no heed whatsoever to this opinion in subsequent years.

Parliament then again increased the maximum sentence on 27th February 2004 to 14 years imprisonment. The Court of Appeal reacted with new sentencing guidance in R v Richardson and others [2006] EWCA Crim 3186. The Court held that the primary object of the increase in maximum was to address cases of, ‘… the most serious gravity, so as to permit the sentence to be greater than before, and in appropriate cases be as long or longer than the previous maximum’. It further held there should also be some ‘corresponding increase’ in sentences immediately below this level of gravity, continuing down the scale…’.

Two years later, on 4th August 2008, the outgoing guideline took effect. The most culpable driving, level 1, has had a starting point of 8 years imprisonment for nearly 15 years. Prolonged, persistent, and deliberate bad driving, along with driving badly impaired by drink or drugs, have been the most common ways by which an offence arrives in the highest level of culpability.

Then, on 28th June 2022 last year, Parliament finally increased the maximum sentence to life imprisonment, the amendment made by s86 of the Police, Crime, Sentencing and Courts Act 2022.

On 25th January earlier this year, the Solicitor General referred two high culpability (level 1) cases to the Court of Appeal which were committed after the maximum change, arguing their undue leniency (Ag Ref Soto [2023] EWCA Crim 55). He appeared in person and argued the Courts at first instance had insufficient regard to the June 2022 increase.

In Soto the court increased one sentence (Soto’s) and left another unchanged (Waite’s). The Court did, however, accede to the principle of the SG’s central argument. Namely, sentences for the most culpable cases should be increased in accordance with Parliament’s intentions.

The main case in the Reference, Luis Soto, concerned an offence sentenced at Southwark Crown Court on 1st November 2022. Soto had been drink driving his car in South East London at 4am on 10th July 2022. He was almost twice the legal limit. He collided with a rickshaw containing its rider and a young person who had been out that night following a birthday celebration. Soto hit the rickshaw whilst speeding, killing the passenger and very seriously injuring the rider. He tried to escape the scene but was stopped. He had earlier been travelling at around 56mph on the 30mph New Kent Road. He was drunk, initially claimed he wasn’t the driver, and was under the aegis of a Crown Court suspended sentence order at the time of the incident, for which he later received 9 months consecutively to the driving sentence. The Defendant pleaded guilty at the Crown Court.

The Solicitor General in Soto argued that had the maximum increase to life not been introduced, the starting point of 12 years after a trial would have been appropriate. The maximum increase, however, demanded a concomitant increase. The Court agreed. The appropriate starting point in Mr Soto’s case, it being a clear higher culpability case with aggravating features, was held to be 16 years imprisonment after a trial. The Court of Appeal Allowed the Reference, increasing the total sentence of 9 years for the dangerous driving to 12 years imprisonment.

Interestingly, and by way of brief interlude, on 23rd May 2023 some 4 months after Soto was decided, the Solicitor General referred what was held to be a level 2 culpability case to the Court of Appeal (Ag Ref v Haslam as yet unreported).

Liam Haslam was 19 years old when his car carrying two passengers left the road after driving at 63mph in a 30 zone on a Derbyshire road, killing his best friend of the same age and seriously injuring his partner. Both passengers. This tragic incident happened on 24th July 2022, less than a month after the increased maximum.

In Haslam, the Solicitor General reminded Lord Dinghemans that in Soto, Richardson [2006] had been cited by the Court and a future ‘corresponding increase’ in sentence at the lower levels envisaged. These remarks were obiter, of course, since only level 1 cases had been before the Court in Soto.

The Court, however, refused to alter Mr Haslam’s sentence of 2 years 8 months, reduced from a starting point of 5 years owing to ‘substantial mitigation’. The SG was unsuccessful in arguing for a corresponding increase to level 2 and 3 cases, but this was likely owing to the imminent arrival of this morning’s fresh guidance.

On hearing the Sentencing Council were issuing new guidelines for a range of death driving offences, as soon as the following month, the Court in Haslam refused to alter the medium culpability sentence before them, and essentially decided to leave matters in levels 2 and 3 to the SGC.

New Guidance

On a cursory assessment of today’s new guidance, any reader would be forgiven for thinking the Court of Appeal’s recent approach in Soto and Haslam has simply been adopted by the SGC. Namely, a significant uplift in sentence starting points for the highest culpability cases (8 increased to 12 years), and no or virtually no change for those levels beneath (middle cases 5 to 6 years and no increase at all for the lowest level matters at 3 years unchanged).

However, the new guideline’s detail betrays a different story. Namely, sentencing inflation in these cases is going to stretch beyond the typical level 1 cases in the outgoing 2008 guideline.

The central point is this. It is entirely apparent that many more cases are now going to find their way into the highest culpability level(A). For some types of driving there’s little change, including any driving involving ‘prolonged, persistent and deliberate dangerous driving’, which was and remains in the highest category. Racing, police chases and deliberate decisions to ignore the rules of the road would similarly seem to be cases which fit into the highest level under the outgoing and incoming guidance. Same for driving which is significantly impaired by drink.

However, some types of driving stand out as being elevated from lower levels to the highest.

For example, composing text messages over a period of time has made the jump, defined now as ‘prolonged use of mobile phone’ (from 5 to 12 years).

Particularly dangerous manoeuvres have arguably jumped from the bottom to the top category. Whereas the 2008 guideline spoke of ‘brief but obvious danger arising from a seriously dangerous manoeuvre’ (3 years SP), the incoming one refers to ‘obviously highly dangerous manoeuvre’ (12 year SP). A cigarette paper could scarcely fit between the differing semantics.

However, I argue the guidance changes which are likely to have the biggest impact on future sentences, relate to those cases where the main cause of the bad driving, is speed.

‘Greatly excessive speed’ under the 2008 guidance attracted a 5 year starting point. ‘Speed significantly in excess of the speed limit’, as of 1st July 2023, will place the case into bracket A, with a starting point of 12 years.

A case like Mr Haslam’s, for example, sentenced to less than 3 years imprisonment on a plea, could now expect to be sentenced to around 8 years imprisonment, even accounting for discounted credit.

So the implications of today’s guidance on such cases is obviously tremendous, particularly when we consider that for those Defendants sentenced to 7 years or more, owing to the fact the offence is on schedule 15 of the Criminal Justice Act 2003 and life imprisonment is available, Defendants will not be eligible for release until they have served two thirds of their sentence.

Practitioners and Judges should note in particular how the release provisions will impact the correct period of driving disqualification under s140 of the Police, Crime, Sentencing and Courts Act 2022.

As an aside, both Judges in the two Soto cases had been under the misapprehension the Defendants would serve half their sentence, erroneously telling the Defendants as much, and as a result imposed periods of disqualification which were too short.

Conclusion

In conclusion, today’s death by dangerous driving sentencing regime bears no relation to that in place at the start of its journey over 30 years ago. This new guidance continues down a road of sentencing inflation. The implications for Defendants soon to be sentenced and beyond are significant.

Whether this obviously deterrent approach translates into better road safety and less fatalities on Britain’s roads in future, will remain to be seen.

David Outterside

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