---

Road Safety Bill [HL]

My Lords, I have very grave reservations indeed about this amendment and about making causing death by careless driving an imprisonable offence. But first perhaps I can indicate that in no way am I soft on bad driving. Indeed, I congratulate the Government on their campaign against speed. During their eight years the Government have done a great deal to bring home to us the dangers of excessive speed in driving. I support them in that and it has been brought home to me personally—though fortunately not by too many convictions. None the less, the Government are absolutely right about speed. When I was Attorney-General and Solicitor-General, my noble and learned friend Lord Mayhew and I made it our business to see that causing death by dangerous driving was properly dealt with by the courts through bringing a series of Attorney-General’s references before the Court of Appeal. The level of sentences went up markedly during those 10 years. It is quite right that the offence of causing death by dangerous driving should receive a condign penalty. However, to create an offence of causing death by careless driving is fundamentally wrong as a matter of justice. The Minister said that nearly all the lawyers who had referred to this—or at least the ones he named—had grave reservations about it, and they are absolutely right. But that is not because we are lawyers. It is because we believe in the importance of justice, as I am sure the Minister does. The difficulty is that I cannot immediately think of any area in our system of justice in which custodial sentences are imposed unless the wrongdoing has been the result of either intent or recklessness. We deliberately took the word ““recklessness”” out of the legislation on bad driving for technical reasons, but as my noble friend Lord Attlee and the noble Lord, Lord Monson, have rightly pointed out, there is at present on the statute book a fundamental distinction between dangerous driving and causing death by dangerous driving and careless driving. In order to be guilty of causing death by dangerous driving—and this bears repetition—Section 2A(1)(a) of the 1988 Act states a person may be guilty of causing death by dangerous driving if:"““(a) the way he drives falls far below what would be expected of a competent and careful driver, and""(b) it would be obvious to a competent and careful driver that driving in that way would be dangerous””." In other words, you are doing something that you know you ought not to be doing. Whereas with careless driving—and I support Amendment No. 29 because it rightly enacts what is indeed the common law—all that is required is that your driving should fall below that of a normal competent and careful driver. But, by definition, no one sets out to drive carelessly. If they set out to do so, they would be doing something deliberate, whereas it is the very essence of carelessness that it arrives, unfortunately, by accident. I fully understand the position of the parents and families of victims—indeed, many in this House will be in that position—but when you are dealing with justice, it is the culpability that must govern and not the consequence, which tragically can be fatal. What is proposed in the amendment would deny the opportunity for the court adequately to indicate the culpability. It is an absolute essential of British justice that the prosecution must prove the case and it must state what case it is seeking to prove. If you bring a case of causing death by dangerous driving, you know exactly what the ingredients are. If there is then an alternative verdict of causing death by careless driving—which relates simply to falling below the normal standards of a competent driver—you do not know how much has been proved. As the Minister said, I suppose you might surmise that it is on the cusp of dangerous driving, but what is the defendant to do? Somehow, in a practical way, he has to try to prove his innocence on the lower part of the charge. Yes, he can be sent to prison for up to 14 years, but that is not very likely unless there are serious aggravating circumstances—in which case he would do well to plead guilty as quickly as possible. The amendment seeks to introduce a five-year prison sentence—and the amendment of the noble Lord, Lord Monson, seeks a three-year prison sentence—but for the vast majority of citizens any prison sentence at all is a very frightening and worrying consequence. We know that we do not set out to do something criminal—if we do, we get what we deserve—but under the amendment a prison sentence can be imposed through pure accident, pure carelessness, and, sadly, we can all be guilty of that. What issue will be dealt with in a causing death by dangerous driving offence when there is going to be an alternative remedy? Or, indeed, what issue will be dealt with if you bring only a case of causing death by careless driving, which carries a sentence of up to five years? Let me give the example—and I think that this is one of the matters which worries families—of where you are driving down the kind of road which you find all round London near here, with parked cars down either side. We are now aware—partly as a result of the Government’s wise governance in this area—that 30 miles an hour is probably too fast a speed at which to go down that kind of road. But then, by mishap, someone—an elderly person, a young child or just an ordinary person—steps out from between the cars and, because you are going just a little too fast, there is a fatal accident and you have caused death by careless driving. But that brings in the question of causation. According to the law books, ““causation”” is fairly irrelevant as far as causing death by dangerous driving is concerned—the course of conduct is there and the driving falls far below the required standard—and it is only in the rarest of cases that causation could even be argued by the defence. But in careless driving cases there is often a multitude of causes for the death and the court will have to decide that issue. But the defendant may not know clearly what is being alleged against him. Will it be down to the prosecutor to indicate the nuances and what he seeks to prove? We expect it to be down to the proper ingredients of the offence. There has to be clarity and certainty. With great respect to the Government and to the consultation processes, I have serious worries about being told what the public believe. The public may be right, but it is very difficult for them to take into account all these matters in relation to consultation. In my view the amendment is a grave error. I am sorry it has been brought forward at Report because it would have genuinely benefited from being teased out in the kind of debate that we would have had at a full Committee stage. I very much hope that the Government will think again about these proposals and not press them.