Open meeting with CPS on how they prosecute bad driving offences
The panel included RoadPeace's Director Amy Aeron-Thomas, Sally Cunningham (who is probably the leading academic researcher on this area of the law), Chris Hunt Cooke (who is Chairman of the Magistrates' Association's road traffic committee) and Lara Orija (the CPS's lead on road and traffic offences). It was chaired by Jenny Jones, leader of the Green Party group on the Greater London Assembly. It was kindly hosted by Irwin Mitchell Solicitors.
The CPS is currently revising its guidance on prosecuting bad driving. This guidance has has long been a bone of contention for both CTC and RoadPeace. Last time it was updated in 2007, we argued that it mis-stated the law on the distinction between "dangerous" and "careless" driving. Under the Road Traffic Act 1991, "dangerous" driving is that which falls "far below" the standard which would be expected of a competent and careful driver, and which causes danger of injury or serious property damage which would be obvious to a careful and competent driver. "Careless driving" is correctly "driving without due care and attention", and its definition omits the reference to obvious danger. In short, its definition in law isn't the same as its meaning in common parlance, i.e. a lapse of attention. If a driver's actions cause danger that should have been obviously foreseeable, the driving is "dangerous", not "careless".
Yet the old CPS guidance and the latest draft revision both cite pulling out of side-road into the path of another road user as an example of "careless" driving. We believe that, in virtually all circumstances, this is wrong in law.
We put these points to the CPS when they last revised this guidance in 2008. However CPS over-ruled our objections. Despite the subsequent introduction of the new offence of "causing death by careless driving" (created by the Road Safety Act 2006 and brought into effect in 2008), trivial sentences for "careless" driving offences are still common. For instance:
- The lorry driver who killed cyclist Vera Chaplin, 89, by "careless driving", received 100 hours community service, a 1-year ban and £85 costs.
- The uninsured driver who killed cyclist Robert Gregory by "careless driving" while fiddling with his radio, received a £350 fine, 200 hours of community service and a 15 month ban.
- The 17 year old driver, with a previous speeding conviction, who killed well-known cyclist Rob Jefferies (a former employee of British Cycling) was fined £85 and banned from driving for 18 months. Rob Jefferies's brother Will was at the meeting, and the grief he is still suffering was painfully understandable.
CTC and RoadPeace believe it is essential that CPS must be tougher in bringing "dangerous" prosecutions if this derisory sentencing is to end, and the responsibility of drivers not to endanger other road users is to be taken seriously.
During the panel discussion, we talked about the legal definition of a "competent and careful driver". We recognised that the courts all-too-often seem to equate this with "the average driver", and that this in turn makes it difficult for the CPS to secure legally correct convictions.
We then asked what needs doing to ensure correct charging decisions and successful prosecutions. We agreed that prosecutors need to be better trained not only to understand the correct legal distinction between "dangerous" and "careless" driving, but also to explain it clearly to courts and juries.
There was also a discussion about whether the offences could be better defined in law: for instance, Chris Hunt Cooke suggested that they be renamed as "unsafe driving" and "very unsafe driving". However as Lara Orija rightly pointed out, the CPS's guidance has to conform to statute law as laid down by Parliament.
We considered whether it makes a difference to prosecution decisions if the injured victim has also been partly at fault, e.g. a cyclist not using lights. It was accepted that, in itself, this makes no difference. The test is what a competent and driver would have done in the circumstances, and that includes anticipating the potential errors of other road users, including children. So a breach of highway rules by the victim should only affect the prosecution if a competent and careful driver could not reasonably have been expected to spot or anticipate the danger.
However, the really powerful part of the discussion was when we considered what needs doing to improve public confidence in the criminal justice system's handling of bad driving offences. This prompted a number of people in the audience who had experienced bereavement to talk about how the treatment by the criminal justice system was in many ways as traumatic as the bereavement itself.
One had been promised a Family Liaison Officer (FLO) to keep her informed of progress of the resulting court case, but the FLO had then gone off sick, and the CPS had failed to find anyone to replace them. Another asked why the CPS is so reluctant to consider corporate manslaughter charges in cases such as her daughter's, where bad road design or maintenance result in the death. Amy Aeron-Thomas argued, rightly, that there is a crying need for both the police and CPS to be open and accountable about the decisions they make, and the reasons why - both in individual cases, and to enable the public to assess the legal system's overall performance in handling road crash cases.
The discussion also highlighted how the CPS's work on road traffic is as desperately under-resourced as the police. This is clearly also an issue for ministers to address.
CTC has now submitted our response to the consultation, and I hope the CPS will take our views on board this time! Many of the points we have made were powerfully echoed by the bereaved relatives present. Respect is due to Lara Orija for representing the CPS - it cannot have been easy for her. I hope that some of the messages she took away will end up in the revised guidance when it comes out.