Frances Gibb reports today in The Times that,

 “Ken Macdonald, QC, the Director of Public Prosecutions (DPP), wants a comprehensive review of prosecution policy because of public concern that killer drivers often escape with a fine.”

We are informed that,

“A spokesman for the Crown Prosecution Service (CPS) said that the review, including wide public consultation, was being undertaken because of continuing concern about the prosecution of road traffic deaths.”

The consultation is in conjunction with the passage through Parliament of the Road Safety Bill, which creates a new offence of causing death by careless driving, with a maximum penalty of five years’ imprisonment.

It is important to consider what is meant by “public concern” and “wide public consultation”.  In the main, if not exclusively, “public concern” is that unrepresentative but vociferous cacophony that is passed off as principled argument by our tabloid press, single issue, largely anti motorist organisations and a Big on Talk, Small on Delivery Government that has lost control of its own political agenda.  The Labour Government’s understanding of “consultation” is the process by which persons of a like mind meet to agree that something has to be done and discuss what is to be done and how.  It is in short, the usual partial consultation stating the “vice” to be corrected and inviting “friendly” responses as to how to deal with “the problem” and not to discuss whether there is any real issue to address at all.  One of the organisations likely to make representations is the charity  RoadPeace. As an organisation supporting families bereaved by road accidents and ostensibly promoting “road safety” it suffers from the flaws of a single issue group.  Concentrating on a small number of cases involving horrific circumstances, its prime raison d’être is to argue that motorists who kill and maim should be punished with long terms of imprisonment.  Such consultations patently do not admit of any balance.

In its pursuit of what it perceives to be popular opinion, the Government has identified two “problems”.  As it is too difficult to prove the charge of dangerous driving, we are told that too often the prosecution prefers the lesser charge of careless driving, which results in the defendant motorist being fined instead of imprisoned.  The second problem is that even when a serious driving offence is proven the prison sentence, if imposed at all, is short.  We return here to that old chestnut low conviction rates.  In essence we are being asked to believe that soppy juries will not convict drivers of dangerous driving (on the “there but for the grace of God go I” principle.)  This is nonsense.  Juries will convict if the evidence is strong enough. The obvious fact is that in the majority of cases though the carelessness is manifest, dangerous driving is not.  Besides, what makes the Government think that whilst a jury would not convict a defendant for dangerous driving because the sentence would be one of imprisonment, it would convict in a case involving the new careless driving offence where the sentence is still going to be one of imprisonment?  It seems to me that if the soppy jury argument is correct, the jury will be reluctant to convict for the same reason when dealing with careless driving cases.

In truth, a defendant walking free is considered by Government to be a failure of the criminal justice system rather than a success; an innocent man tried by his peers and the prosecution case found wanting.  It is manifest that the real problem is the Government, as part of the machinery of the State acting in its role as the investigating authority (in the guise of the Police) and prosecutor (the “Crown”) does not like to lose or be seen to lose.   When the result does not please the Government, it is because the judge/jury/law/rules of evidence are wrong.

In plain English, in the main the Crown cannot secure a conviction on the serious charge of dangerous driving (which is imprisonable) because that charge is not clearly made out on the facts.  However, a small number of unrepresentative pressure groups aided and abetted by self-appointed “populist” commentators who shout the loudest, take the view that because someone has died as a result of a motorist’s manner of driving, that motorist has to pay with the loss of his liberty.  This is nothing to do with Justice but everything to do with revenge.

At this point, perhaps we should remind ourselves of what careless driving entails.  According to s.3 of the Road Traffic Act 1988, a person is guilty of an offence if he drives [a vehicle] on [a road] without due care and attention or without due consideration for other persons using [the road]. The standard of driving is widely accepted as being that of a reasonable, prudent and competent driver in all of the circumstances of the case.  The standard has an element that is to be judged objectively (the reasonable, prudent and competent driver) and one that is subjective (the circumstances of the case.)  In the case of R v. Krawec (1984)[1] Lord Lane C.J. stated that:

 “The unforeseen and unexpected results of the carelessness are not in themselves relevant to penalty.  The primary considerations are the quality of the driving, the extent to which the appellant on the particular occasion fell below the standard of the reasonably competent driver; in other words, the degree of carelessness and culpability.  The unforeseen consequences may sometimes be relevant to those considerations.  In the present case the fact that the appellant failed to see the pedestrian until it was too late and therefore collided with him was plainly a relevant factor.  We do not think that the fact that the unfortunate man died was relevant to the charge.”

This is the whole crux of the matter.  A tiny error of judgment or lapse of concentration can lead to a person’s injury or even death.  The consequence of that minor error can be all out of proportion to the carnage caused.  It is unjust to render a motorist liable to imprisonment simply because his momentarily sub-standard driving causes death, but this is precisely the effect that the Labour Government’s new Road Safety Bill will have.  We all make errors of judgment when driving but most of us are lucky enough not to be involved in an accident. Only a few motorists are involved in an accident where someone is injured or even killed, but that motorist could be any one of us.

Prison should be the sentence of last resort when a driver has been convicted of a grave, inexcusable instance of dangerous driving.    It is completely unacceptable to attach the punitive penalty of loss of liberty for careless driving.  There was a day when only serious, hardened criminals faced the prospect of lengthy prison sentences for their wrongdoings.  Now it is proposed that we all should.

We are not convicting enough criminals! (So now, anyone will do!)