Sentencing Guidelines
People regularly contact our organisation
enquiring about the sentencing of road traffic offences where a fatality
has occurred; often they feel wronged by seemingly short sentences for
offences that have had life changing consequences.
Occasionally the Crown Prosecution Service,
who prosecutes a case, may agree that a sentence given out in court is
“Unduly Lenient” -
thus they may refer the sentence to the Court
of Appeal. However there are very strict time constraints
and this must be done within 28 days of sentencing
and can only be done by the Crown Prosecution
Service.
N.B. If you feel that a sentence is
“Unduly lenient” and you are a member of the immediate
family you must request a meeting with the Crown
Prosecution Service as soon as possible to discuss your concerns.
We feel that it may be of some help to publish the latest sentencing guidelines
from the Court of Appeal in England
so we have reproduced below an outline of the current guidelines.
If you have any queries about the information on this page, please contact
us and we will do our best to help you. Alternatively you might like
to visit: http://www.sentencing-guidelines.gov.uk/guidelines/other/courtappeal/default.asp?T=list&catID=4
- the Sentencing Guidelines from the Court of Appeal
Criminal Sentencing
“For causing death by dangerous driving” or “causing
death by careless driving whilst under the influence of drink or drugs”
as above the Court set out four starting points:-
1. No aggravating circumstances – 12 to 18 months imprisonment
2. Intermediate culpability – 2 to 3 years
3. High culpability – 4 or 5 years
4. Most serious culpability – 6 years or over
The Court of Appeal adopted the Sentence Advisory Panel’s series
of aggravating and mitigating factors, which are more extensive than those
which were set out in R –v- Boswell but stressed that they should
not be regarded as an exhaustive statement of the factors, observing that
it is most important to appreciate that the significance of the factors
can differ. The Courts consideration of the Panel’s advice is set
out in full below:-
“There can be cases with three or more aggravating factors, which
are not as serious as a case providing a bad example of one factor”.
They are as follows:
Aggravating Factors
Highly culpable standard of driving at time of offence :-
a. the consumption of drugs (including legal medication known to cause
drowsiness) or of alcohol, ranging from a couple of drinks to a “motorised
pub crawl”
b. greatly excessive speed; racing; competitive driving against another
vehicle; “showing off”
c. disregard of warnings from fellow passengers
d. a prolonged, persistent and deliberate course of very bad driving
e. aggressive driving (such as driving much too close to the vehicle
in front, persistent
inappropriate attempts to overtake, or cutting in after overtaking)
f. driving while the driver’s attention is avoidably distracted
e.g. by reading or by use of a mobile phone (especially if hand-held)
g. driving when knowingly suffering from a medical condition which significantly
impairs the offender’s driving skills
h. driving when knowingly deprived of adequate sleep or rest
i. driving a poorly maintained or dangerously loaded vehicle, especially
where this has been motivated by commercial concerns
Driving habitually below acceptable standard :-
j. other offences committed at the same time, such as driving without
a licence; driving while disqualified; driving without insurance; driving
while a learner without supervision; taking a vehicle without consent’
driving a stolen vehicle
k. previous convictions for motoring offences, particularly offences
which involve bad driving or the consumption of excessive alcohol before
driving
Outcome of offence :-
l. more than one person killed as a result of the offence (especially
if the offender knowingly put more than one person at risk or the occurrence
of multiple deaths was foreseeable)
m. serious injury to one or more victims, in addition to the death(s)
Irresponsible behaviour at time of offence :-
n. behaviour at the time of the offence, such as failing to stop, falsely
claiming that one of the victims was responsible for the crash, or trying
to throw the victim off the bonnet of the car by swerving in order to
escape
o. causing death in the course of dangerous driving in an attempt to
avoid detection or apprehension
p. offence committed while the offender was on bail’
Mitigating Factors (these are taken
into consideration when sentencing the convicted)
a. a good driving record;
b. the absence of previous convictions;
c. a timely plea of guilty;
d. genuine shock or remorse (which may be greater if the victim is either
a close relation or a friend);
e. the offender’s age (but only in cases where lack of driving
experience has contributed to the commission of the offence), and
f. the fact that the offender has also been seriously injured as a result
of the accident caused by the dangerous driving
Having referred to the aggravating factors, the Panel deals with specific
situations which have been considered in recent authorities. One such
situation is what the Panel describes as ‘avoidable distractions’.
The example given supported by the case of Browning [2002] I CAR(S), 377
is the use of mobile phones when driving. In Browning the defendant was
a lorry driver who veered off the road and killed a man in a lay-by while
sending a text message. This court upheld the custodial sentence of five
years. In giving the judgment of the court Mance LJ. made a statement.
He said, ‘The use of mobile phone to read and compose text messages
while driving is a highly perilous activity. Even the use of a hand-held
mobile phone by a driver whilst moving, a much too common feature of driving
today, is self-evidently risky.’
Explaining their inclusion as an aggravating factor at (h), driving when
knowingly deprived of sleep or rest, the Panel was right to draw attention
to the observations of this Court in Attorney General’s Reference
No 26 of 1999 [2001] CAR (S) 394. There it was said that falling asleep
at the wheel usually involves a period during which a driver is conscious
of drowsiness and difficulty in keeping his or her eyes open and the fact
that the proper course for a driver in such a position to adopt is to
stop driving and rest.
Multiple Deaths
The Panel then discusses the authorities in respect of multiple deaths
and in particular the case of Pattipher [1989] II CAR (S) 321 and France
[2002] EWCA Crim 14019. The Panel concluded that the number of deaths
resulting from dangerous driving is relevant to the length sentence. There
are cases in which the defendant if, for example, he is a coach driver
who drives after being deprived of sleep or under the influence of alcohol
where he must be taken to appreciate that the consequence could be that
there will be more than one death if he is involved in an accident. Certainly
in that situation, multiple deaths will be a more seriously aggravating
feature.
Even where there is no reason to suggest that the defendant is knowingly
putting more than one person at risk, the fact that the consequences of
dangerous driving are particularly serious, for example, involving multiple
deaths is a relevant factor as to the length of sentence. That is the
view that will be taken by the public. It is still necessary to regard
the offender’s culpability in relation to the driving as the dominant
component in the sentencing exercise. While the sentence is increased
to reflect more than one death the sentence must remain proportionate
to the nature of an offence which does not involve any intent to injure.
The Offender’s Own Injuries
The Advice relies on the case of R –v- Maloney [1996] I CAR (S)
221 for suggesting that a sentence can be reduced because of the extent
of the offender’s own injuries if the injuries are serious. The
injuries can make the sentence of imprisonment a greater punishment than
usual. His injuries are also in themselves a punishment and should bring
home to the offender, in the most direct possible way, what an be the
consequences of dangerous driving. The Panel states that the fact that
the offender has been injured should not automatically be treated as a
mitigating factor and that only very serious, or life changing, injury
should have a significant effect on the sentence. Some indication of the
scale of the effect provided by the fact of Maloney. The offender had
a very severe head injury, severe facial injuries, he lost the sight of
this right eye and his right little finger, and there was continuing loss
of us of his right arm and leg. On appeal this court reduced the sentence
from 5 to 4 years but in doing so were taking into account, not only the
injuries, but the fact that the trial judge had erroneously sentenced
the appellant on the basis he had consumed an excessive amount of alcohol.
Length of sentence - No Aggravating Circumstances
As in the case of sentencing for any offence a sentence of imprisonment
should only be imposed if necessary and then for no longer than necessary.
In these cases an immediate custodial sentence will generally be necessary.
The starting point for causing death by dangerous driving should be a
short custodial sentence of perhaps 12 to 18 months. That is the approach
that should be adopted even when there is a plea of guilty, though the
plea of guilty will justify the appropriate reduction in the length of
sentence. This is in relation to an adult offender. An example of this
approach is the case of Brown [2002] I CAR (S) 504. In Brown the defendant
momentarily fell asleep while driving his van in daylight, drifted across
the road and collided head on with a car travelling in the opposite direction,
killing a passenger in it. The mitigating factors were guilty plea, previous
good character with an impeccable driving record and the fact that the
offender displayed genuine shock and remorse. In addition, the effect
on the appellant’s life and family was devastating. This court reduced
the sentence to 9 months’ imprisonment.
Brown makes it clear that in order to avoid a custodial sentence there
have to be exceptional mitigation features. As exceptional features, the
Panel refer to the case of Jenkins [2001] CAR (S) 265. In that case the
defendant was 16 years old with learning difficulties who lost control
of a motorcycle because of its dangerous condition and his pillion passenger,
who was his best friend, was killed. He pleaded guilty because it would
have been obvious to a competent and careful driver that the condition
of his vehicle was dangerous. He was sentenced to detention and a training
order for 12 months but the Court of Appeal, while agreeing that the custodial
sentence was warranted, ‘as a justifiable statement of society’s
abhorrence of dangerous driving and the use of dangerous vehicles on a
public road’, took into account that the defendant was not competent
to maintain the bike and the fact that his mental condition prevented
him from fully appreciating its dangerous condition. In the circumstances
there having been delay in the case coming to trial, a 2 year supervision
order was submitted. There obviously can be other exceptional situations.
It is sufficient to emphasise that they have to be exceptional
Intermediate Culpability
As against that case, the Panel states that
’30. An offence involving a momentary dangerous error of judgment
or a short period of bad driving may be aggravated by a habitually unacceptable
standard of driving on the part of the offender (factors (j) or (k)) by
the death of more than one victim or serious injury to other victims (factors
(I) and (m)) or by the offender’s irresponsible behaviour at the
time of the offence (factors (n) to (p)). The presence of one or more
of these features could indicate a sentence within the higher range up
to three years.’
Higher Culpability
In relation to offences of higher culpability the Panel states:
’32. When the standard of the offenders’ driving is more highly
dangerous (as would be indicated, for example, by the presence of one
or two factors (a) to (i)) the Panel suggests that the appropriate starting
point would be a custodial sentence within the range from two to five
years. The exact level of sentence would be determined by the dangerousness
of the driving and by the presence or absence of other aggravating or
mitigating factors.’
We would like to draw attention to Attorney General’s Reference
No. 58 of 2000(Wynne)[2001] 2 CAR (S) 102; a sustained course of dangerous
driving at excessive speeds 50 mph in a 30 mph area was involved in that
case. The offender had also consumed alcohol, although it was unclear
whether this contributed to the offence. While driving on the wrong side
of the road the offender collided head on with a motorcyclist who was
killed. In addition a 7 year old pillion passenger suffered leg injuries.
The offender was an unqualified driver and he had left the scene of the
crash immediately although he gave himself up to the police the following
day. On a guilty please, this Court increased the sentence to 3.5 years.
That sentence included an allowance for double jeopardy but for that allowance
the sentence would not have been less than 4 years.
Most Serious Culpability
Here, what the Panel states is as follows:-
’34. The Panel suggests that custodial sentences over five years
should be reversed for cases involving an extremely high level of culpability
of the offender’s part. This might be indicated by the presence
of three or more of aggravating factors (a) to (i), although an exceptionally
bad example of a single aggravating feature could be sufficient to place
an offence in this category. A sentence close to the maximum would be
appropriate in a case displaying a large number of these features, or
where there were other aggravating factors.’
The Panel do not give a starting point. The Panel gave as an example the
case of Corkhill [2002] CAR (S) 60 where an offender was sentenced to
7 years’ detention. The Court of Appeal agreed this was a bad case
but described it as ‘not among the very worse’ and reduced
the sentence to 5 years.
As an example of the most serious case justifying a total custodial sentence
of the maximum of 10 years we refer, as did the Panel, to Noble [2002]
EWCA Crim 1713. The Court of Appeal made it clear in that case, that the
maximum sentence was justified not simply by the number of deaths but
by the range of other aggravating factors, including driving at an excessive
speed while about 2.5 times over the alcohol limit and then seeking to
avoid responsibility by claiming one of the victims had been driving.”
[264]
Civil Advances
There has been no change in relation to the bereavement award which remains
fixed at £10,000.00 presently.
One of the most interesting developments has
been the Court of Appeal decision in the case of Atkinson and Seghal .
In this case, the Court of Appeal looked at what constitutes immediate
aftermath, so as to allow relatives and bereaved to claim for nervous
shock.
If you have any queries about the information on this page, please contact
us and we will do our best to help you.
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