Progress with the Ministry of Justice?

So the MoJ has reported on its proposals for penalties for causing death and serious injury by driving. There were only three proposals:

  1. Maximum Lifetime custodial sentence for Causing Death by Dangerous Driving or Causing Death by Careless Driving Whilst Under the Influence
  2. Minimum two year driving disqualification for all causing death by driving offences
  3. New offence of Causing Serious Injury by Careless Driving

RoadPeace and cycling and walking campaign groups had lobbied for a wider review, including a review of charging standards for careless and dangerous driving,  and the greater use of driving bans. It looks like we have been heard.

But first the MoJ proposals.

  • Lifetime sentence

This is to go forward but maybe not that quickly. The response states that “the government intends to bring forward proposals, when parliamentary time allows.

This change only applies to the worst of the worst cases of deadly driving. In fact, the MoJ has estimated this increase will only apply to some 1-2 offenders a year.

This change is needed. It is outrageous that to date serial and multiple offenders could cause a death by extreme criminal behaviour, but face a lesser sentence because it involved a motor vehicle instead of another machine or instrument.

 

  • Minimum disqualification periods

 

Good progress has been made here with the MoJ realising what they had proposed was not enough. Following the appeals for a wider review of disqualifications, the response states that the government intends to give this proposal further consideration, to take account of disqualification for all offences and any emerging evidence on the effectiveness of disqualification and retesting requirements before proposing further changes to the law”. 

This is very welcome news. Only 1% of driving offences result in a prison sentence. Much more thought needs to go into the use of driving bans—getting dangerous drivers off our roads before death and serious injury results.  Our annual analysis of driving bans highlights how rarely they are used—primarily where the legislation states they are mandatory.

  • Causing Serious Injury by Careless Driving

 

The MoJ wants to give the maximum penalty for this charge more consideration. The majority of respondents (70%) supported a maximum custodial sentence of three years.  Some reportedly even argued for the same maximum custodial sentence as causing serious injury by dangerous driving, which makes no sense.  Whilst the harm (serious injury) may be the same, the levels of culpability are not.

RoadPeace called for a maximum six month custodial sentence for this charge—the same already available for drink driving and hit and run offences.  Driving that deserves more time in prison should be classified as dangerous driving.  We should learn from the Causing Death by Careless Driving and take care to avoid having Dangerous Driving downgraded as Careless Driving.

So RoadPeace welcomes the additional thought to be given to maximum sentence for this proposed charge. Research recently commissioned by DfT shows there is much confusion over what the public and even magistrates think constitutes careless driving.

Wider issues

The MoJ’s consultation also asked if respondents thought there were any other charges relating to causing death and serious injury that needed changing.

RoadPeace highlighted the gaps in the charges for those who leave the scene of a fatal or serious injury crash. At present, they can only be charged with Failing to Stop, unless the evidence shows they caused the crash. Failing to Stop is a summary offence which is used with “fender benders”.

Another gap is with Drink Driving as the maximum penalty is six months and has not changed in 50 years. This applies to repeat offenders and offenders who have caused serious injury.

RoadPeace also argued for a review of how careless driving and dangerous driving was defined. The MoJ responded that “the government will however give further consideration to how the legal test and decisions made under it can be more transparent and better understood by victims and the public”.

We agree with the MoJ that an objective test of what constitutes dangerous and careless driving is the best way forward. But there are substantial overlaps in the current charging standards for careless and dangerous driving.  We repeat our call for alignment with the driving test where a serious “dangerous” offence results in an automatic failure, compared to the multiple “careless” driving offences required for a failed test.

And we welcome the MoJ stating that they “will work with criminal justice practitioners and victims’ groups to examine ways to improve information available throughout the criminal justice process. This is long overdue. Too little information is provided to the bereaved and injured at present and this can aggravate their suffering. RoadPeace is keen to ensure all victims are properly informed.

Road deaths have stopped declining, and serious injuries are on the rise. If our government cannot prevent these preventable tragedies, then the least they can do is ensure the victims are not further traumatised by the lack of information.

 

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Review of cycle safety law could delay attention to wider issues.

So the government has announced an urgent review of cycle safety.

This comes after the appeal by Matthew Briggs, the widower of Kim Briggs, who was killed by a cyclist on an illegal bike. Prosecuted for manslaughter, Charlie Alliston was convicted of the lesser offence of Causing bodily harm by wanton and furious driving, a charge dating back to 1861. Alliston was sentenced to 18 months in prison. This is a relatively tough sentence: of the 419 drivers convicted of causing a death by driving in England and Wales in 2016, 239 (57%) were sent to prison, with 50 serving sentences of 18 months or under.

The first phase of the government review is on the need for causing death/serious injury by careless or dangerous cycling charges.  The second phase a will be a wider consultation on road safety issues relating to cycling.

As a victims’ charity, RoadPeace well understands the trauma and grief caused by senseless road deaths.  Our heartfelt condolences go out to Matthew Briggs and his children. But as a campaigning organisation, we believe that there are many overdue changes in the law that may be sidelined by this over-focussed initiative. Reckless cycling can indeed be a problem but priority should be given to addressing those actions that cause the greatest harm.  By giving precedence to the threat caused by cyclists, when they so rarely cause death or serious injury – see the Cycling UK’s comprehensive evidence-based discussion of this – there is a danger that wider reforms to ALL driving offences that are so needed will be delayed even longer.

History

Despite promising it, the government has shown little appetite for a comprehensive review of driving offences and the changes that have occurred have been piecemeal and inconsistent.

  • Five years ago, the CPS consulted on driving offences but its questions were limited and failed to address the confusion arising regarding the charging standards around careless and dangerous driving.
  • At the end of 2012, the government introduced the charge of Causing Serious Injury by Dangerous Driving.
  • In June 2014, the Justice Minister announced a full review of driving offences, as well as new charges around causing death and serious injury by disqualified driving.
  • At the end of 2016, the MoJ did consult on a few changes, with attention focused on lifetime custodial sentences for the worst of the worst. The proposals did include a new charge of Causing serious injury by careless driving.

Earlier this year, the All Party Parliamentary Group for Cycling (APPCG) held their inquiry into cycling and the justice system. In our response to the inquiry, RoadPeace argued that a review into careless and dangerous driving standards was keenly needed, (for more see our You say Careless, I say Dangerous graphic for the extent of overlap. And the wide variation in how careless and dangerous driving is prosecuted by police services). Our response was supported by British Cycling, Cycling UK, LCC, and the Road Danger Reduction Forum. The APPCG agreed with RoadPeace, rather than the CPS and in its report, called for a review of careless and dangerous driving.

The full review promised by the government in 2014 never happened and we are left with:

  • continuing lack of clarity over the distinction between serious and careless driving,
  • a series of offences when impaired driving (drink/drugs or use of a mobile phone) can result in serious injury but not attract a significantly higher penalty, and
  • major anomalies in the treatment of drivers that leave the scene after causing death or serious injury.

These issues affect the way a large proportion of those causing death and serious injury on the roads are dealt with. Instead, we have an initiative that addresses a problem that resulted in only two deaths in 2015, 0.12% of the total. Matthew Briggs honours the memory of his wife by seeking to curb reckless cycling but the government should not allow this to be at the cost of the long overdue review of driving offences.

Crash victims failed by Queen’s Speech

Road crash victims fared particularly badly last week with the Queen’s speech. Sadly once again it appears that savings to drivers are more important than the suffering of crash victims. We lost out on what was omitted as well as what was included.

Omissions included the long awaited sentencing reform. There was no  mention of any legislation to implement the MoJ’s proposed tougher sentences for the worst drivers.  We have waited over 30 months for the proposals and now it seems nothing is to come of them.

Nor was there any mention of a Victims’ Bill. What happened to the Conservative Party manifesto pledge to ’ ensure that victims of crime are supported at every stage of the criminal justice system. We will enshrine victims’ entitlements in law, making it clear what level of service they should expect from the police, courts, and criminal justice system.’

It is great that the Speech included a Domestic Violence and Abuse Bill with a Domestic Violence and Abuse Commissioner. It is wonderful that this Commissioner is to “stand up for victims and survivors, raise public awareness, monitor the response of statutory agencies and local authorities and hold the justice system to account in tackling domestic abuse”.

But there are other crimes and many more victims. With DfT reporting over 700 thousand people injured every year in road crashes (and many millions more intimidated by drivers) don’t the numbers of crash victims justify their own Commissioner as well?

We also welcome the news of an Independent Public Advocate for disaster victims. But what about the 1400-1500 families that go through road death inquests each year? They too would benefit from having a Public Advocate support and represent them at inquests, especially given all road deaths occur on public roads with the state involved in their design,  maintenance and operation.

And what was included in the Bill was legislation which will hurt crash victims–the Civil Liability Bill. This Bill’s purpose is to “ensure fair, transparent and proportionate system of compensation in place for damages paid to genuinely injured personal injury claimants”.

We can’t see any chance of it being any of these—not fair, transparent or proportionate. The £35 per year saving on motor vehicle insurance will not be able to be tracked—nor has it even been agreed by all or even most of the insurance companies.

And how can it be fair or proportionate when the claims of innocent victims will be slashed by much more than £35. There was good reason that victims, cycling and walking campaigners and charities, as well as claimant lawyers have all opposed these reforms.

Once again, we weren’t the right kind of victim and once again crash victims are being sacrificed so that insurance premiums can decrease with insurance companies to reduce compensation. RoadPeace has argued against these cuts and will continue to do so.

MoJ reports Causing death by driving convictions increase by over 30% in 2016

According to the Ministry of Justice’s just published statistics, 419 drivers were convicted of causing a death in England and Wales in 2016, an increase of 31% from the 321 in 2015.

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Source: MoJ (2017), Criminal Justice System statistics quarterly: December 2016

Prosecutions for Causing death by dangerous driving rose from 188 in 2015 to 229 in 2016, the highest since 2009, and over 50% more than the low of 144 in 2013.
But only 69% of the Causing death by dangerous driving prosecutions were successful. So many of these prosecutions for Causing death by dangerous driving either failed completely or ended up as Causing death by careless driving convictions. Causing death by careless driving convictions (225) exceeded those for Causing death by dangerous driving (157) by 43%, and accounted for over 53% of all causing death by driving convictions.

These statistics reaffirm the need for a review of careless and dangerous driving. What the CPS and police see as dangerous is too often viewed as merely careless by juries.

As in previous years, RoadPeace will produce a fuller analysis, but we just wanted to highlight the news that causing death by driving prosecutions and convictions increased last year.

Our Lawless Roads report highlighted how prosecutions and convictions had fallen since 2010, and much faster than fatal collisions. With the cuts in police and CPS and pressure on courts, last year’s increase in prosecutions and convictions of causing death by driving is reassuring and a step in the right direction.

Driving bans—why the decline?

When you talk about a punishment that fits the crime, there is probably no better example of this than a driving ban.

So it was no surprise that the issue of the underuse of driving bans as a lever for change came up at the first oral hearing/session of the All Party Parliamentary Cycling Group (APPCG) inquiry into Cycling and the Justice System.

As shown in RoadPeace’s analysis of driving bans

Driving bans given by the courts are rare, and becoming rarer.

Between 2005 and 2015, bans given at court for specific offences declined from over 155,000 to less than 60,000.

Our analysis highlights how seldom bans are used;  courts pretty much only give bans when the sentencing guidelines say disqualification is mandatory, e.g. drink driving. And we have publicised how drink driving accounts for the lion’s share of bans.

But it’s worse–guidelines are only guidelines. In some cases, bans aren’t even given when the Sentencing Guidelines say they should be. For instance, Causing Death by Careless Driving is supposed to always come with a minimum one year disqualification, but in 2015 one in five weren’t.

At the APPCG  hearing, Lord Taylor asked for the reasons behind the drop in driving bans, and if this was due to regional differences.

So we went back to the data and our analysis.  Why the drop in bans?

Three main reasons– and a handful of offences– account for almost all of the drop:

  1. Decrease in detection (e.g. Drink driving)
  2. Increase in compliance (e.g. insurance)
  3. Decrease in convictions resulting in ban (e.g. speeding and careless driving)

 

  1. Decreased detection with fewer drink driving convictions

A key reason is the decline in drink driving convictions. Between 2005 and 2015, drink driving disqualifications have halved. This accounts for 36% of the total drop in bans (40% when other drink drive related offences are included).

Our December 2016 briefing on Drink Drive detection has more information on the decrease in drink driving prosecutions and convictions. There is no reason to think that drink driving is on the decrease, just the enforcement of it.

  1. Increased compliance with decrease in uninsured driving and license related offences

We have also seen a huge drop in bans given for uninsured driving (93% decrease). Some, but not all, will be due to increased compliance, as the MIB has reported that uninsured driving has halved in the past several years.

Uninsured driving accounts for 34% of the drop in bans.

License related bans amounted to another 14% of the total drop in bans.  We are not sure but are optimistic that this decrease is also related to increased detection of disqualified drivers.

  1. Decrease in convictions resulting in bans, including with speeding and careless driving

Even though the numbers prosecuted and convicted at court for speeding increased between 2005 and 2015, disqualifications dropped by 59%. In 2005, 7% of drivers convicted at court for speeding were banned. By 2015, this had dropped to 3%.

This figure is strikingly low: As, the great majority of speeding drivers get FPNs or go on diversionary courses, it is only repeat offenders and those going at the very highest speeds that end up in court. And Sentencing Council guidelines suggest bans for drivers going at these faster speeds. See RoadPeace briefing on speeding.

Disqualifications given for careless driving have also decreased—and they were low to begin with. In 2005, just 9% of drivers convicted at court for careless driving were disqualified, but by 2015, this had dropped to 6%.  But this proportion should, if anything, have been on the increase: with diversionary courses becoming available for careless driving, those actually going to court should be increasingly dominated by cases involving greater harm or culpability.

In our recent response to the MoJ’s Driving offences consultation, RoadPeace called for a rethink on driving bans. We want them used much more often, even for short periods.  Our traffic police are declining in numbers and traffic law enforcement is increasingly dependent on cameras and the use of diversionary courses.  The declining number of drivers actually going to court should not also be facing less onerous sentences. Driving is not a right but a privilege. Short bans are an effective reminder of this for those that make the roads more dangerous for the rest of us.

Need for a national collision investigation branch

Now is the time for a national and independent Road Collision Investigation Branch.  So says PACTS who organised yesterday’s conference on this theme.  With road deaths no longer decreasing, new efforts are required. So PACTS is working to get the Vehicle Technology and Aviation Bill amended to include establishment of this department.

Noone should be surprised that RoadPeace, a road crash victims’ charity, has long supported such investment in investigation research. At our 2010 conference on Improving the Post Crash Response in London, Simon Labbett, ex police collision investigator (and now a TRL Director) spoke about this, as did Richard Cuerden (TRL Technical Director of Vehicle Safety and Chair of PACTS Vehicle Design Working Group , who highlighted the work of the multi-disciplinary On the Spot Study research programme.

As we stressed at yesterday’s conference, we see it as complimentary to police investigations. We launched our campaign last year on collision investigation on the premise that thorough investigations are the cornerstone of both justice and prevention. And our campaign is focusing on police investigations as, even with a national branch, the vast majority of casualty collisions will be investigated by the police and only the police.

Acknowledged by PACTS and other conference participants, the idea of a Road Collision Investigation Branch is not new. It was a key issue posed in PACTS’ Transport Safety Commission’s 2014 inquiry. In our response to that inquiry, we argued that an additional surcharge on motor insurance premiums, collected via the MIB, could fund this department. Such funding should also ensure consistent and thorough police investigations.

In the coming months we will try to help PACTS make the case for a National Collision Investigation Branch. We know from our members how desperate they are to see that lessons are learned, with the deaths of their loved ones making a difference.

A best example of this is Kate Uzzell, our new RoadPeace South West Local Group co-ordinator. Through her efforts, and following the death of her husband after hitting a pothole whilst cycling, road maintenance inspections now must consider the impact of road defects on cyclists.

Fine changes with sentencing guidelines

The new Magistrates Sentencing Guidelines contain two welcomed changes.  First, drivers whose excess speed puts them in the highest sentencing band, will now face a maximum fine of 150% of their weekly income, with a cap of £1,000.  Second, professional drivers are to be held to a higher driving standard — ‘vehicle used for the carriage of heavy goods or for the carriage of passengers for reward’ is to be added as a factor indicating higher culpability for the offence of careless driving.

Both changes were explicitly an acceptance of the arguments put forward by RoadPeace, as acknowledged by the Sentencing Council. Both changes nudge the justice system a little further towards the reduction of road danger. It is said that a journey of a thousand miles begins with a single step. And, on that basis, both changes must be welcomed.

But, more was needed. First, the £1,000 cap on speeding fines, represents a simple discount to those who will struggle least to pay it. And the less they need it, the higher the discount will be. So, “role models” such as Premiership footballers or FTSE 100 CEOs will face a maximum fine of 2.3% and 0.9% of their weekly salaries. Those on the average wage (£94,000) in the Borough of Kensington and Chelsea will face no more than 55%. There is no cap on the fine for drink driving – Yaya Toure of Man City was given a £54,000 fine just before Christmas ; there is no need for one for speeding fines. A consistent relationship between income level and fine level is simply a matter of justice.

And an opportunity was lost to increase the use of driving bans. Speeding drivers prosecuted at court are already a small minority of those sanctioned. In 2015, 1.2m speeding drivers attended NDORS speed awareness courses, 791,000 were given FPNs and only 180,000 (8%) were sent to court.

Yet only 3% of speeding drivers convicted at court were banned – one in 450 of all those sanctioned when speed awareness and FPNs are included. More bans are needed, even if they only last a few weeks. It has been almost 50 years since a mandatory driving ban was introduced for drink driving. And drink driving and associated casualties have decreased. Imagine if there was a mandatory driving ban for the highest band of speeding drivers.

RoadPeace fears this same mistake is being made with the MoJ’s consultation on driving offences. The MoJ have restricted this consultation to just a few offences, mainly dealing with custodial sentences. The only discussion of driving bans is a proposal to increase the mandatory disqualification period from one year to two years for all causing death by driving convictions. But one in five drivers convicted of Causing Death by Careless Driving currently escape any ban, thus showing the need for training of judges.