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Death By Careless Driving
The maximum sentence has been set at 5 years imprisonment, the sentence ranges are generally lower for this offence than for the offences of causing death by dangerous driving or causing death by careless driving under the influence, for which the maximum sentence is 14 years imprisonment. Some cases will be on the borderline between dangerous and careless driving, or may involve a number of factors that significantly increase the seriousness of an offence. In England Wales they have published sentencing guidelines by the Sentencing Guidelines Council that provide direction for courts and this provides a level of transparency in the sentencing process that helps both victims and the accused understand what factors are considered relevant in sentencing.
The CPS in England provide important and useful information on their site and I have taken some details from it that I would suggest would also be followed by the courts in Scotland in dealing with such cases.
Levels of seriousness are defined by the degree of carelessness involved in the standard of driving. The most serious level for this offence is where the offender’s driving fell not that far short of dangerous. Sheriff Gordon usefully defines the difference between Dangerous Driving and Careless driving as being the difference between what a motorist might regard as “awful driving and bloody awful driving!”
Less serious are the charges where the level of blame is low – for example in a case involving an offender who misjudges the speed of another vehicle, or turns without seeing an oncoming vehicle because of poor weather or some form of restricted visibility. Other cases will fall into the middle ground.
The starting point for the most serious offence of causing death by careless driving is lower than that for the least serious offence of causing death by dangerous driving in recognition of the different standards of driving behaviour. The 5 year maximum, provides the court with plenty of scope to impose a long sentence where the Sheriff considers that the case is particularly serious.
Where the level of carelessness is low and there are no aggravating factors, even the fact that death was caused is not sufficient to justify a prison sentence.
If for example a driver suffers an unexpected blackout or seizure even where there has been the tragedy of a death it is highly unlikely that a court would impose a custodial sentence on the driver. Drivers do of course have a responsibility to other road users not to drive if they consider there to be any risk of such an occurrence and they have a responsibility to advise DVLA of any change in their health that may cause DVLA to revoke their entitlement to drive until medical evidence is provided to support their ability to drive safely.
If you hold a licence and you develop a medical condition that may affect your ability to drive safely, the law requires you to tell DVLA about it. If you are involved in an accident and have failed to inform DVLA then you may invalidate your insurance and find that you are personally liable for the losses suffered by other. Your GP should be able to give you advise about whether you should drive or not. The GP also has a responsibility to inform DVLA of health concerns regarding your ability to drive.
If a driver knowingly chooses to drive whilst suffering from such a condition and he deliberately fails to advise DVLA of that condition then he/she may indeed face a custodial sentence where they subsequently cause a death on our roads. Where a non-custodial sentence is considered appropriate the court may consider that there should be some kind of community order imposed. The nature of the requirement will be determined by the purpose identified by the court as of primary importance. Requirements most likely to be relevant include unpaid work requirement, activity requirement, programme requirement and curfew requirement.
Nature of offence: Careless or inconsiderate driving falling not far short of dangerous driving
Starting Point: 15 months custody
Sentencing range: 36 weeks – 3 years custody
Nature of offence: Other cases of careless or inconsiderate driving
Starting Point: 36 weeks custody
Sentencing range: Community order (HIGH) – 2 years custody
Nature of offence: Careless or inconsiderate driving arising from momentary inattention with no aggravating factors
Starting Point: Community order (MEDIUM)
Sentencing range: Community order (LOW) – Community order (HIGH)
Aggravating & Mitigating Factors
When assessing the seriousness of any offence, the court must always refer to the full list of aggravating and mitigating factors in the Council Guideline on Seriousness as well as those set out in the table below as being particularly relevant to this type of offending behaviour.
Sentencers should take into account relevant matters of personal mitigation; see in particular guidance on good driving record, giving assistance at the scene and remorse.
Additional aggravating factors
- Other offences committed at the same time, such as driving other than in accordance with the terms of a valid driving licence; driving whilst disqualified; driving without insurance; taking a vehicle without consent; driving a stolen vehicle
- previous convictions for motoring offences, particularly offences that involve bad driving
- More than one person was killed as a result of the offence
- Serious injury to one or more persons in addition to the death(s)
- Irresponsible behaviour, such as failing to stop or falsely claiming that one of the victims was responsible for the collision
Additional mitigating factors
- Offender was seriously injured in the collision
- The victim was a close friend or relative
- The actions of the victim or a third party contributed to the commission of the offence
- The offender’s lack of driving experience contributed significantly to the likelihood of a collision occurring and/or death resulting
- The driving was in response to a proven and genuine emergency falling short of a defence.
Death by Careless Driving Crimes and the Penalties
Causing death by careless, or inconsiderate, driving (S2B RTA).
The Road Safety Act 2006 creates a new offence of causing death by careless, or inconsiderate, driving. This crime attracts obligatory disqualification and has a maximum penalty of five years imprisonment. An alternative verdict of careless driving is permitted where prosecution for the offence has been unsuccessful. This crime is new, coming into our legal system as recently as August 2008. It is a relatively controversial piece of legislation due to the threat of imprisonment for a crime that does not require any criminal intent. Accordingly before this legislation was enacted the Scottish courts were essentially unable to take the consequences of careless driving into account in their sentencing for the obvious reason that the driver did not intend to commit the offence and that his driving did not fall far below what a reasonably competent driver would have done in the same circumstances.
Causing death when driving when unlicensed, disqualified or without insurance (s3ZB RTA).
The Road Safety Act 2006 also creates the new offence of causing death when driving when unlicensed, disqualified or without insurance. This offence has a maximum penalty of two years imprisonment and/or an unlimited fine and, as the previous two offences, provides for obligatory disqualification and endorsement. Unlike the other death by driving crimes however this offence is not linked to the standard or quality of driving on the part of the accused and culpability arises from the offender driving a vehicle on road when by law he is not allowed to do so. Again a controversial approach due to the risk of imprisonment for what may be a genuine oversight or error. E.g. direct debit failed to meet your insurance premium and the insurance company cancelled the policy!
Causing death by careless driving under the influence of drink or drugs (S3a RTA).
As this is such a serious offence the Court must disqualify for a minimum of 2 years and may impose a prison sentence of up to 14 years and/or an unlimited fine. The Court may also order an extended re-test on disqualification, which involves passing a theory test for the category of vehicle you intend to take and a more demanding test than normal. The test lasts about 70 minutes and covers a wide variety of roads, usually including dual carriageways. You are advised to prepare by taking suitable instruction from an approved driving instructor (ADI). Where prosecution for the offence has been unsuccessful the alternative verdict of causing death by careless driving is permitted. This is significant as it ensures that drivers who may otherwise have escaped conviction can still be sentenced for the lesser offence.