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Road Safety Bill [HL]

My Lords, I apologise to the Deputy Speaker and to the noble and learned Lord. He will have his chance to speak, I have no doubt. I was saying that where driving falls far below the expected standard, the offence of dangerous driving would be the appropriate charge. It is not clear how driving which falls substantially below what would be expected of the careful and competent driver would be distinguishable from driving which falls far below. In that sense, the noble Lord’s amendment makes causing death by careless driving virtually identical to causing death by dangerous driving, thus doubling up what is already on the statute book. I do, however, recognise the sentiment behind the noble Lord’s amendment. He is no doubt concerned that minor errors could be covered by the existing definition of careless driving and therefore covered by the new offence contained in Amendment No. 19. It is of course true that minor errors can be careless and therefore would be covered by this offence. However, it is worth bearing in mind that bad driving is a question of degree. Careless driving ranges from minor errors to driving that is on the cusp of being dangerous. It is the latter that would be likely to attract a custodial sentence where a death is caused. I shall return to the sentence for the offence in a moment. The issue of what driving behaviour should be covered by the offence of careless driving was considered prior to the consultation paper being published. When conducting the review of road traffic offences, the Government considered whether there should be an intermediate offence to cover the more serious types of careless driving, but the review process concluded that that would have been difficult to define and unnecessarily complex. Instead, we decided that it was better to rely on the judgment of the courts in view of the circumstances in each case. The meaning of careless driving is well established and there is no evidence that it is insufficient. Indeed, many respondents to the consultation felt that established case law definitions should be set out in statute, and that is what we have done. For those reasons, we will resist Amendment No. 29A. So careless driving is driving that falls below, but not far below, the standard of a competent and careful driver. Turning again to government Amendment No. 19, at present, careless driving is punishable by a maximum fine of £2,500. Elsewhere in the Bill, that will be raised to £5,000 and may also be subject to community penalties. At present, a custodial sentence is not available, regardless of the consequences of that offence. That is because careless driving can apply to quite minor errors, although sometimes it may approach dangerous driving. There is no requirement that there be an obvious risk of injury or damage. Some people argue that the consequences of the driving should not be an element of the offence—that only the standard of the driving should be assessed, not the possible tragic results. To some extent, I accept that. It is certainly true that the standard of driving must be the most important factor in judging culpability. However, the Government are committed to ensuring that we strike a balance between the level of criminal fault on the part of the careless driver and the devastation that can be caused. Drivers have a responsibility to other road users and we need to consider that when we strike that balance. That is why the consultation paper on bad driving offences proposed a new offence of causing death by careless driving with a maximum penalty of five years’ imprisonment. There were strongly held views both for and against the principle of that offence and I expect that those views will be aired during our debate. The proposal was strongly supported by the general public and by road safety organisations. However, it will be known that, on the whole, the legal profession was not in favour. We have of course considered that carefully, but have concluded that the offence is necessary. It will, for the first time, allow the fatal consequences of careless driving to be reflected in the charge, even when no alcohol or drugs are involved, and will make available a custodial sentence. It will reflect the fact that a proportion of cases will be on the borderline between careless and dangerous driving. Most importantly, it will mean that the families of those killed by careless drivers feel that the law is adequate to deal with the circumstances and that the justice system is on their side so that, if, in all circumstances, a court feels that custody is appropriate, it will be available. Of course, there will be instances—probably the majority—where custody is not considered to be the most appropriate penalty. The amendment merely ensures that custody is an option for the courts and allows the fact that the death to be recognised in the offence. That itself is an important acknowledgement of the tragedy that has happened to the families of victims of road accidents. Amendment No. 19C would reduce the maximum penalty available for the offence to three years imprisonment. As I said, the Government, have considered the principle of the offence carefully. We have also considered whether five years is the appropriate maximum penalty for such an offence. Most respondents to the consultation thought that it was. They thought that that penalty balances the offender’s culpability, on the one hand, with the need to ensure that the offences and penalties available in cases of bad driving are sufficient to take account of the consequences. As I said, five years will be the maximum penalty available and will be used only where the courts were satisfied that it was necessary. In response to concerns raised by the Justices Clerks’ Society, the Law Society and the Faculty of Advocates in their consultation responses, the Government have decided that the offence should be triable either way. That will help to reassure those who are concerned about the offence that cases that remain suitable for trial in the magistrates’ court will continue to be heard there. Where they are, 12 months will be the maximum available penalty in England and Wales; six months in Scotland. The offence is not designed to ensure that anyone committing it receives the five-year maximum penalty. The Government recognise that drivers do not generally set out to be careless and are often devastated to think that they have killed someone through their bad driving. The offence is designed to untie the court’s hands, so that if the court thinks that a custodial penalty is warranted, it can impose one. Amendment No. 19 also provides that the new offence of causing death by careless driving can be an alternative verdict where a prosecution for causing death by dangerous driving or for causing death while under the influence of drink or drugs has failed. That will ensure that bad drivers do not escape justice altogether. I turn to government Amendment No. 20, which also advances a proposal contained in the consultation paper on bad driving offences. It creates a new offence where the person causes death and is at the same time driving while unlicensed, disqualified or without insurance. Drivers who bring a car onto the road illegally the public at risk. At present, if a disqualified driver causes an incident in which a person is killed, he could be prosecuted only for driving while disqualified, which attracts a low custodial sentence. Unless his driving is careless or dangerous, no more serious charge is available than that. Similarly, where the driver is driving without a licence or without insurance and kills, he can be prosecuted only with the offences of driving without insurance or without a licence, which are punishable only by fines. We have listened to the families of victims killed by illegal drivers. They are understandably concerned that an offender can walk away with a fine for killing a person when they should not have been on the road in the first place. If a driver does not have a licence, he presents a risk. Where that risk materialises, the offence goes beyond unlicensed driving and the Government strongly believe that deaths should be recognised. So this offence reflects the fact that the driver should not have been on the road in the first place. It is entirely proper that those who deliberately flout the law in that manner should be held culpable for any fatal consequences that arise from their decision to drive. An example of how that offence might be used would be where a child runs in front of a vehicle and is killed by a driver whose driving is of an acceptable standard. Where that driver is disqualified, unlicensed or uninsured, the Government believe that a more severe punishment should be available than at present. It is true that that is not strictly a case of bad driving, in that disqualified, unlicensed or uninsured drivers may be driving at the required standard, but I believe, as did many respondents to the consultation exercise, that the act of taking a vehicle on the road when disqualified or unlicensed shows a disregard for the safety of others that is not dissimilar to that disregard that may be shown by those who drive below the standard expected of a careful and competent driver. A two-year maximum penalty for that offence, which is lower than that originally suggested in the consultation exercise, will recognise the fact that the driver has placed other road users at unacceptable risk, and that risk has materialised, but balances that with the fact that the standard of driving need not have been below that of the careful and competent driver. Both government Amendments Nos. 19 and 20 provide that any person found guilty of those offences will be disqualified and have his licence endorsed as is consistent with other bad driving offences. As a general rule, where a person is convicted of an offence that is subject to obligatory disqualification, the court must impose a disqualification of not less than 12 months, unless there are special reasons to do otherwise. That is the effect of Section 34(1) of the Road Traffic Offenders Act 1988. However, Section 34(4) of that Act provides that in relation to manslaughter—or culpable homicide in Scotland—causing death by dangerous driving, and causing death by dangerous driving while under the influence, the minimum period of disqualification shall be two years. Amendment No. 19A makes the new offence of causing death by careless driving subject to a minimum disqualification period of two years. The new offence is not as serious as the three offences that attract a minimum disqualification period of two years. Those three offences are subject to a very high custodial sentence—up to 14 years in the case of causing death by dangerous driving or causing death by careless driving while under the influence, and life imprisonment for manslaughter or culpable homicide. The new offence attracts a maximum custodial sentence of five years. For that reason, it should not be included in the small group of very serious offences for which the minimum period of disqualification is two years rather than 12 months. If, for special reasons, a court opts not to disqualify an offender, government Amendments Nos. 19 and 20 set out the range of penalty points that may be awarded. It has been set between three and 11, which is consistent with other offences that attract mandatory disqualification; for example, causing death by dangerous driving or causing death while under the influence. Amendments Nos. 19B and 20A would change that range in relation to the new offences proposed here so that the minimum number of penalty points that could be awarded for those offences would be eight. I have set out how those offences should fit within the bad driving framework of offences. All road traffic offences subject to obligatory disqualification attract a range of three to 11 penalty points to be applied where, for special reasons, the court opts not to disqualify. The proposed amendment, aside from putting the new offence out of step with all the others, would present a real practical difficulty. Where the person already had points on his licence, imposing eight or more further penalty points may well take the total to 12 or more, thus resulting in disqualification. The three to 11 range is designed to enable courts, for special reasons, to add points to a licence rather than to disqualify. The amendment would substantially reduce that possibility, in that it would be an option only where the individual concerned had three points or fewer on his licence. An example of a situation that might be regarded as a special reason for not disqualifying is where a car was driven carelessly in a medical emergency. I am sure that the noble Lord, Lord Monson, who takes a very keen interest in those issues, would not want the courts to be limited in their power to deal sympathetically with those kinds of situations, but that would be the effect of his amendment. He will recognise, therefore, why I oppose Amendments Nos. 19A and 20B. Neither of the proposed offences includes injury. That issue was considered in the consultation paper on bad driving offences. The Government have decided not to include injury in the scope of the offences. It was discussed at a previous stage and is raised in Amendment No. 63, to which I shall now speak. Amendment No. 63 would add injury to the offence under Section 1 of the Road Traffic Act so that it would be an offence to cause death or injury by dangerous driving. That would be punishable by a maximum penalty of 14 years’ imprisonment. The question whether injury should be treated in the same way as death in bad driving offences is a longstanding issue on which, I recognise, there are differing views both in this House and in wider society. The case put forward in support of including injury in bad driving offences is that whether death results from a piece of bad driving can be a matter of chance. As all noble Lords are aware, there is an offence of causing grievous injury by dangerous driving in Northern Ireland but there is no such offence in Great Britain. Where injury occurs, that is reflected as appropriate in sentencing. The issue was examined during the review of road traffic offences consultation exercise but was not put forward as a proposal as the Government do not favour making consequences other than death an element of bad driving offences. Instead, we propose that sentencers should be under a statutory duty to take injuries into account when sentencing. This proposal received a mixed response. Road safety organisations and some members of the public supported the idea. However, the legal profession did not think that it was necessary as injuries are already relevant to sentence. The responses also made clear that death is considered a special case. Indeed, this is reflected in the current road traffic framework, which provides for much higher sentences where a death occurs and a driver is driving dangerously, has stolen a car or kills and is under the influence of drink or drugs. That will be extended by the proposed new offences in government Amendments Nos. 19 and 20. If we agree that, in relation to dangerous driving, causing injury should be treated as similar to causing death, then logically we should agree to extend that principle to other bad driving offences such as causing death while under the influence or aggravated vehicle taking. Those are serious offences with a maximum penalty of 14 years. We think that that penalty is right where death has occurred because a driver has taken a risk, that risk has materialised and a person has lost their life because of it. We think that it is right that the death is recognised both in the charge and in the sentence available but we do not agree that that should be the case where injury is caused. We agree with the responses to the consultation exercise that death is a special case and that injury should be reflected in the sentence rather than in a specific charge. The Government propose that it would be better to build on current practice and to work with the Sentencing Guidelines Council in England and Wales and the Sentencing Commission for Scotland to support them in producing guidelines that require sentencers to take appropriate account of those factors in sentencing. I hope, therefore, that the House will support government Amendments Nos. 19, 20 and 29. I believe that they set the right balance between the culpability of the offender and ensuring that the courts have the powers to sentence appropriately. For the reasons that I have set out, I hope that noble Lords will not press their amendments. I apologise for speaking at such great length but this is a very important part of the Bill. It is our response both to representations from outside this House and to our discussions in Committee. On that basis, I beg to move.