Road Safety Bill [Lords]


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Mr. Greg Knight (East Yorkshire) (Con): Does the hon. Lady accept, in this discussion of justice, that there are circumstances in which it might be equally unjust to take the attitude that because someone has died someone must go to prison?

Ms Keeble: I completely agree with the right hon. Gentleman. A family member of mine died in a road traffic accident, and I completely understand that it must not be the family’s grief that puts someone in prison. However, the right hon. Gentleman should also accept that there is a big credibility gap between the offence of causing death by dangerous driving, which carries 10 years or—

Mr. Kidney: Fourteen years.

Ms Keeble: Fourteen years, thank you. There is a big gap between that and the minor traffic offences for which people are just fined. That is the problem; there is nothing in between. People must understand that there is a difference between driving 60 miles on the wrong side of the road—which is dangerous driving—and killing someone, and doing something that is not that bad but that falls short of the expected standards of care, and the duty of care, that a normal driver has towards members of the public. A halfway house, which does not have such a high threshold, will none the less be more than just a slap over the wrist, a little fine, and then “Off you go to do it all over again.”

Mr. Henry Bellingham (North-West Norfolk) (Con): The hon. Lady obviously feels strongly about the subject, but my concern is that unless the careless driving that causes the death is aggravated by some factor such as, for example, the fact that the person concerned was driving a car with bald tyres, or was racing another car, there should not be a custodial sentence. In my constituency fairly recently someone was driving along a road on a motor cycle when a travelling salesman pulled out. The motor cycle was in the blind spot and the motor cyclist was killed. Does the hon. Lady feel that that one-off—and appalling—lack of judgment, which many of us have shown in other circumstances, but without fatal consequences, should lead to that guy being imprisoned?

Ms Keeble: I do not want to be judge and jury on an individual case. My hon. Friend the Minister will deal with some points about what constitutes careless driving. As has been pointed out, that is covered later in the Bill. The public perception is clear from the way
 
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in which prosecutions go, and the difficulty in getting convictions for dangerous driving, because of the high thresholds; the paltry number of cases in which people have been charged with or convicted of manslaughter because of the way in which they were driving is also relevant.

There is a big difference between those matters and a minor traffic offence, and the provision of an offence in the middle ground would make the point that there is a standard of driving that may not be dangerous but is not to the standard expected of a normal, careful, considerate driver. The courts will have at their disposal a range of appropriate sanctions. That is what the measure before us will do.

I urge Opposition Members not to push amendment No. 63 to a vote, and to support the Government’s amendment, which, as I said, plugs a credibility gap, provides the courts with more options to deal appropriately with the range of driving offences that we see on our roads, and has been talked about for a long time. This is not just a new, or a “back of a fag packet”, proposal—not that anything the Government put forward ever is. The public have campaigned strongly for the proposal, and it meets a profound sense of the need for greater justice in some of our road traffic legislation.

11 am

Mr. Paterson: The hon. Lady referred to the Official Report on Second Reading. I shall begin with a little point: all of us have enormous admiration for the Hansard reporters and the way that they take down words that we—probably—gabble. It is incumbent on us to go up after a debate and check our speeches, but, unfortunately, I had an engagement and did not do so. The hard copy of that debate reads:

    “the effect of the effects”,

but actually I said:

    “the effect of the offence”.—[Official Report, 8 March 2006; Vol.d ¤443, c. 905.]

That has been corrected in the electronic copy. Obviously, I am very grateful to the Hansard reporters for all their hard work—it was a particularly unfortunate word that slipped, which I did not have a chance to correct.

Clause 20, as we have seen from the opening speech by the hon. Member for Northampton, North (Ms Keeble), is the most contentious clause in the Bill. There have been some fraught cases which have been publicised, and, obviously, we are all deeply sympathetic to those involved. I shall not talk about individual cases. I am not a lawyer, and we should be aware that we only read the newspaper reports and do not have access to the detailed papers to which lawyers in the court cases would have had access.

We recognise that this is a fraught area, with which the last Conservative, and the current Labour Government have wrestled. I agree totally with the hon. Lady about a credibility gap. There is a problem with cases in which, tragically, innocent people have been killed in road accidents and it is thought that the criminal justice system has not dealt with the driver appropriately.


 
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The Government’s consultation paper, “Review of Traffic Offences involving Bad Driving”, shows the complexity of the issue. I have read that paper several times. Bad driving is not a problem just in this country—I have looked at evidence from Australia and America. It is a problem in all western societies, where it is being debated.

Ms Keeble: On the point about Australia, the hon. Gentleman is wrong—there is a provision in Australia similar to the one before us. It is not quite the same, but it would have the same impact as the death by careless driving provision.

Mr. Paterson: Yes, I am aware that there have been several debates in Australia and America legislatures on that issue. Various countries have approached the problem in a similar way to us, and I think that when the hon. Lady hears our proposals she will realise that they are similar to what has been set down satisfactorily in other countries.

We all offer our deepest sympathies to the victims’ families, but, as we said on Second Reading, we must frame law that is workable and which will deliver justice—the point made by my right hon. Friend the Member for East Yorkshire (Mr. Knight). The current legal framework offers prosecutors a series of options in cases involving road traffic accidents. As the hon. Lady said, we have the offence of manslaughter, which offers life in prison. Currently, we also have causing death by dangerous driving, with a maximum of 14 years; causing death by careless driving while under the influence of drink or drugs, which also offers 14 years’ imprisonment; dangerous driving, with a maximum of a six-month sentence in a magistrates court and of two years in a Crown court; and careless driving, for which there is no custodial sentence.

Clause 20 proposes to add the offence of causing death by careless or inconsiderate driving, which carries a possible five-year sentence to be imposed in a Crown court. We are opposed to that in principle. It cannot be right to imprison someone for a moment of carelessness, however horrific the consequences. It cannot be right to imprison someone who has shown no criminal intent and who may have been unaware of his carelessness.

The hon. Member for Northampton, North spoke about wrecking amendments and what our colleagues in the House of Lords have done. We believe that it is profoundly wrong that someone should lose his liberty for carelessness when there was absolutely no intent. For dangerous driving, which I shall come to, there is a clear framework of criteria to which the courts can refer, but there is none for this offence. In such circumstances, there will be no grounds for a defence. No one goes out with the intention of being careless, or of being blinded around a corner, which I mentioned earlier. I do not see a defence.

Dr. Ladyman: Can I just nip in the bud this business of people being temporarily blinded by sunlight? If one is temporarily blinded by sunlight, whether it is referred to as an act of God, an accident or fate, it is not carelessness. One would not be convicted under such circumstances. However, there is a clear
 
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difference between that and someone being blinded by fog but not moderating their speed. They might be driving at the speed limit, but it would be inappropriate in foggy conditions. Does the hon. Gentleman not see the difference between the carelessness in one case and the act of God in the other?

Mr. Paterson: That was a genuinely helpful intervention from the Minister, as that is exactly what our amendment and new clauses are framed to address. We want to try to establish criteria. Much of this is subjective, but I totally agree that we must try to tie down the circumstances. The case that the Minister cited of someone being stupid enough to carry on driving too fast in fog would be caught by our new definition of dangerous or reckless. If I can make a little more progress, I might be able to explain that.

We are fundamentally opposed to imprisonment for carelessness. The point was most eloquently and clearly explained by my noble and learned Friend Lord Lyell of Markyate, who has been a Solicitor-General, an Attorney-General and a lawyer. It is well worth reading his speech on Third Reading in the other place on 10 January. He reinforced the comments of my hon. Friend the Member for Beaconsfield (Mr. Grieve), who is the shadow Attorney-General.

My hon. Friend spoke on this issue in the obscurity of the Standing Committee on the Serious Organised Crime and Police Bill on 20 January 2005. I believe that that was one of the first occasions on which the issue arose as a proposal in law. The hon. and learned Member for Redcar (Vera Baird) proposed an amendment that there should be an offence of causing death or serious injury by negligent driving, which would have a 10-year sentence. My hon. Friend spoke clearly and made our point in a way that expresses our opposition in principle. It is worth quoting his comments in full. He stated:

    “I understand the upset of those who have lost relatives or loved ones in a road accident. Of course there may be circumstances in which the road accident that occurred was due to what, in the old days, we would have called a person’s ‘recklessness’ or the person driving dangerously, which implies that there was an element of serious culpability in their conduct because they should have been aware that what they were doing was dangerous. In those circumstances, I have always been of the view that the courts should, if necessary, punish people severely for their actions.

    However, I was slightly shocked to hear the words of the hon. and learned Lady. She desires not only to criminalise negligence but to criminalise it with sanctions that are potentially extremely severe. She explained that negligence could amount to nothing more than momentary inadvertence. It is for good reason that the law has made no distinction between the penalty that it imposes on a driver for momentary inadvertence if there is no injury to somebody else and the penalty it imposes if there is death or even multiple death. The culpability lies in the behaviour and, as the culpability is a negligent culpability, without any intention, it is wrong—in my view, profoundly wrong—to impose a further sanction to mark public disapproval because of the consequence.”—[Official Report, Standing Committee D, 20d ¤January 2005; c. 450.]

Mr. Carmichael: The hon. Gentleman said at the outset that his opposition was in principle, which is a perfectly proper position to take. However, Parliament crossed the Rubicon when it made careless driving a criminal offence, because carelessness was
 
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criminalised. That was the point of principle. The question whether a custodial, non-custodial or financial penalty should be consequent to that carelessness is not a point of principle.

Mr. Paterson: I am not sure that I agree with that.

Mr. Carmichael: I can put it much more simply. What is the difference in principle between punishing with a fine and punishing with a custodial sentence?

Mr. Paterson: It is simple: loss of liberty. We are not convinced that it is right to lose one’s liberty for a moment of inadvertence. I should like to make a little further progress. We shall come up with a framework of contiguous offences, which would cover a lot of the concerns of the hon. Member for Northampton, North and be a better framework.

Ms Keeble: Can we get away from the idea that carelessness must be a momentary lapse? Let us go back to the bouncer. One of the arguments was that, because he knew about fighting and physical control, he exercised a lack of care in the degree of force that he used. Carelessness is not just about a momentary lapse. It is a much more fundamental lack of care.

Mr. Paterson: We agree with that. We think that that should come under the criteria for dangerous driving. The Minister cited the example of the person who drives fast in fog when it is sensible to slow down. We think that that could come under the criteria. That is not carelessness; that is showing deliberate intent and ignoring road conditions.

Ms Keeble: Let me give the hon. Gentleman a further example of people being convicted of failing to fulfil their duty of care. In a group of drug addicts, if one person takes an overdose, the others, who have failed to protect him, might then be convicted as a result of that failure to exercise a duty of care to look after somebody in difficulties. It is a much more fundamental issue.

Mr. Paterson: Yes, but that gets us back to the question of intent. As the Committee shall see, the Conservatives have a framework—a list of criteria—by which one will be able to judge actions on the road such as driving in fog. We think that it is wrong in principle to go to prison for a moment of carelessness in which there was absolutely no intent.

Mr. Carmichael: On the question of carelessness, is it not the point that Parliament must trust the courts? The custodial sentence set out in the provisions would be an inappropriate sentence for a moment of carelessness, but even if it were imposed, it would almost certainly be overturned.

Mr. Paterson: We are proposing a custodial sentence for various criteria of dangerous driving, and I shall come to that in a second. I do not agree with the hon. Lady or the hon. Gentleman. We have a profound feeling on the matter. Our amendments are not wrecking amendments; they have been carefully
 
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thought through, and very experienced senior lawyers in the other place have gone through them in some depth.

The other point on which I disagree with the hon. Lady is the question of the consequences of the offence. A moment of carelessness could lead to a car striking a human being at 30 or 40 mph. If that human being is a fit, healthy middle-aged man in London, there might be doctors or nurses on the pavement, or someone with knowledge of first aid. A lot of people would be around. There is a chance that someone would use a mobile phone quickly, and in inner-city areas there is a strong chance that an ambulance would arrive quickly. We are looking at a hospital through the window. Accident and emergency is readily available.

The fit young man struck in London has a strong chance of surviving, purely because of the circumstances. In a rural area, a lady in her 80s hit at 35 or 40 mph following exactly the same moment of carelessness and with exactly the same impact—the Minister gave us figures on kinetic energy—might not survive, because not so many people would be around. There might not be a doctor or nurse in the village, or anyone with a mobile phone. In fairness to the ambulance services there, their minimum times are much longer, for obvious reasons, and the A and E department might well be half an hour away. Exactly the same element of carelessness causing exactly the same amount of energy to strike a human being would lead to a death in the rural area. It seems wrong to me that that would trigger clause 20 in the rural area, but not in the city. That is a serious practical problem with the clause and it is a good reason to oppose it.

11.15 am

Our second practical objection is because of the serious opposition in the legal profession. I stress that I am not a lawyer, but those professionals have to live with the laws that we pass and try to make them work. My noble and learned Friend, Lord Lyell, drew attention to a pamphlet put out by Justice and the vigorous opposition of the Council of Circuit Judges. Tellingly, he drew attention to the opinion of the Justices’ Clerks Society, which hears each case. It was unable to cite one case when it considered that a custodial sentence was appropriate.

Our last practical objection to the provision is that we fear that juries simply will not convict under the clause. A leading legal expert at Warwick university, Roger Leng, said:

    “Typically when a jury is presented with a motoring offender they will be saying to themselves ‘I am not a perfect driver. I make mistakes.’ I think it will be easy for the defence lawyer to put that to them and invite the jury to be sympathetic.”

Juries might think, “There but for the grace of God go I. It could have been me who turned that corner. I just did not see the bicycle and the man wearing brown clothes against the brown hedge. It could have been me who turned into the street and didn’t see the cyclist behind the lamp post.” It is no good our passing unworkable laws in our ivory tower if juries will not make them stick. We will be in a worse position than we were before.


 
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I have discussed the whole issue in depth with my hon. Friend the Member for Epsom and Ewell, the shadow Secretary of State for Transport, and my hon. Friend the Member for Beaconsfield, the shadow Attorney-General. We recognise fully that there is a problem to be addressed, but amendment No. 63, with new clauses 8 and 9, would present a more just framework of laws. They are all of a piece. The hon. Member for Northampton, North picked out one amendment; it would be helpful if she addressed our three amendments to create a scale coming down from manslaughter.

It is worth considering the current definition of dangerous. According to “Archbold”, a person drives dangerously when the

    “way he drives falls far below what would be expected of a competent and careful driver”

and when it

    “would be obvious to a competent and careful driver that driving in that way would be dangerous”.

Everyone knows of anecdotal cases. They might know of the horror of relatives. It is well worth considering such cases in the light of legal definitions that might support an allegation of dangerous driving. The hon. Lady cited a couple of cases in Northamptonshire.

Our proposals should be judged on the basis of a list, because they would deal with our new offence of reckless and our changed offence of dangerous. The list sets out racing or competitive driving; speed that is highly inappropriate for the prevailing road or traffic conditions; aggressive driving, such as sudden lane changes, cutting into a line of vehicles or driving much too close to the vehicle in front; disregard of traffic lights and other road signs, which, on an objective analysis, would appear to be deliberate, or disregard of warnings from fellow passengers; overtaking that could not have been carried out safely; driving a vehicle with a load that presents a danger to other road users; driving when suffering from impaired ability, such as having an arm or leg in plaster or impaired eyesight; driving when too tired to stay awake; driving with actual knowledge of a dangerous defect on a vehicle; and using a mobile phone as a telephone or to compose or read text messages.

In light of that framework, our solution in new clause 8 is to create an offence of causing death by reckless driving, and proposed subsection (2) defines that. We propose a maximum 14-year sentence of imprisonment. Our thinking on the term “reckless” is coloured by a judgment in the Scottish courts in 1980, when it was defined as follows:

    “Judges and juries will readily understand . . . that before they can apply the adverb ’recklessly’ to the driving in question they must find that it fell far below the standard of driving expected of the competent and careful driver and that it occurred either in the face of obvious and material dangers which were or should have been observed, appreciated and guarded against, or in circumstances which showed a complete disregard for any potential dangers which might result from the way in which the vehicle was being driven.”

We then propose, in new clause 9, to amend the current dangerous driving legislation—I have listed the criteria for that. The new clause would delete “far” and insert “significantly”, which would address the problem about which Opposition Members on the
 
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Committee are deeply concerned. Anecdotes have been cited; the Minister quoted the case of driving in fog. The words “significantly below” would give courts a better framework against which to judge such cases.

On principle, we do not think it right to provide for imprisonment for careless driving, and amendment No. 63 would therefore delete

    “5 years or a fine or both”

and insert “a fine”. If the Committee agreed to the new clauses and our amendment we would have a clear framework: manslaughter, offering life; reckless driving, offering 14 years; death by dangerous driving, using the words “significantly below”, offering seven years; and we would keep the offence of death by careless driving but without a custodial sentence. The offences would be contiguous and provide a scale that would give our courts a better framework within which to judge the contentious cases that cause so much grief.

I shall touch finally on new clause 24. The hon. Member for Northampton, North said that we talk tough but are not acting tough. Cases have been brought to our attention in which police officers have asked drivers to stop, and the drivers have driven away dangerously. New clause 24 would create an offence of dangerous driving after failing to stop, and would give the court the option of two years’ imprisonment on summary conviction or five years on indictment.

Rosemary McKenna (Cumbernauld, Kilsyth and Kirkintilloch, East) (Lab): The fact that so many Members want to contribute to this debate shows how important the clause is. I welcome the Bill; I have followed its passage and I hope that we will get a landmark piece of legislation on road safety.

Will my hon. Friend the Minister explain the difference between the custodial sentence recommended for Scotland and that recommended for England and Wales? I am sure that he will do so in his response to the debate.

I disagree profoundly with the hon. Member for North Shropshire. A custodial sentence for careless driving absolutely must be in the legislation, principally but not only because the current situation causes so much grief to bereaved families, who believe that the process adds to their pain. I associate myself with the remarks of my hon. Friend the Member for Northampton, North and the important point made by the hon. Member for Orkney and Shetland. Careless driving is already an offence. We are discussing the sentencing policy for that offence.

In April 1999, I secured an Adjournment debate in the House on road death charging policy. Since I was elected in 1997, I have been involved in that issue. On 18 September 1998, Steven Dekker, my constituent and near neighbour, celebrated his 24th birthday with his family and Gail, his girlfriend of six years. On Saturday 19 September, Gail and Steven spent the day together in Glasgow, shopping, enjoying being together and planning their future. At 6 pm, on a bright, clear evening, as they drove home to Cumbernauld, a van being driven the wrong way down a single carriageway, hit them head on, killing Steven and injuring Gail.


 
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The collision occurred as Steven came round a bend on a one-way single carriageway, with no chance of taking avoiding action. Of course, the family and the local community were devastated, but the legal process actually added to their pain. The Crown Office decided to prosecute Andrew Wilson, the man who killed Steven Dekker, not with death by dangerous driving, but with the lesser charge of careless driving. The proceedings in court lasted 15 minutes, and Andrew Wilson was fined £750 and banned from driving for one year. Since that day, the family have pursued the case positively, with Mrs. Dekker now playing a major role in road safety organisations.

At that time, the thrust of my argument was that the charge of careless driving was wrong, and about charging policy in general. The police prepared a charge of dangerous driving, but that was downgraded to careless driving by the procurator fiscal’s office. The clause changes that argument, and we heard last week’s discussions on the matter.

Today, I spoke to Margaret Dekker, who was, of course, following the passage of the Bill. She believes that the Government have got it just about right, and that a custodial sentence is crucial. She has welcomed the whole process of the Bill, and asked that we congratulate the Minister, because the process of creating the Bill, including consultation, has been done properly. All of that has made road safety organisations feel that their work over many years particularly in relation to custodial sentencing has been heard. Those points have been made continually by RoadPeace campaigners and not just in relation to one or two high-profile cases.

On behalf of SCID—the Scottish campaign against irresponsible drivers, which supports victims of road crashes, Mrs. Dekker wrote:

    “The maximum penalties proposed by the Government are five years for both of these offences. The present lack of such offences and the limited sentencing power of the courts are causing an aggravated grief for bereaved families and a resulting lack of confidence in the criminal justice system they look to for support . . . The present maximum penalty available to the courts for ‘Careless driving’ is £2,500 fine, a discretionary disqualification and 3-9 penalty points. While sentencing is always a matter for the judge/sheriff based on the available evidence, we would envisage the proposed maximum penalty of 5 years, proposed in the Bill, would bridge the much needed sentencing gap between “dangerous” and “careless” and would give the judge/sheriff the scope to reflect the gravity of the carelessness.”

The hon. Member for North Shropshire has argued that carelessness should not be punished by a custodial sentence, but problems arise when the charging authorities decide whether to make the charge careless driving or dangerous driving. That is when it is important that both charges carry a custodial sentence.

11.30 am

 
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