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.

 

MoJ proposals revictimise crash victims

Fair compensation for road crash victims–this should not be too much to ask for road crash victims–given the state had already failed to protect them from harm.

But the MoJ is proposing (yet again) to make life harder for crash victims.

They have launched a lengthy consultation. In a nutshell…

The MoJ want to reduce, if not eliminate, compensation for the pain and suffering incurred by whiplash. To tackle fake whiplash claims, they are proposing to deny compensation for innocent victims. Even those injured in crashes where a driver was prosecuted for causing the crash—even these victims would be treated as if they are fraudulent.

And they also want to increase the small claims court limit from £1k to £5k. This would mean that all those victims with claims up to £5k would not be able to get their legal costs paid. Crash victims would be expected to defend themselves or pay out of their pocket to be represented by a professional after being wrongfully injured.

No surprise—RoadPeace (still) opposes them

RoadPeace opposes the MoJ’s, proposal, as we did in 2013 when similar proposals were drafted. At that time, the House of Commons Transport Committee appreciated the unfairness in these proposals and were able to stop them from being implemented. With much greater commitment to promoting active travel, we need their help and others to help block the new proposals.

Road Victims are Real Victims campaign

So we are campaigning with Cycling UK and Living Streets to ensure that road victims are treated as real victims.  Cycling UK has been fantastic and organised an easy to use on line letter that is sent to the MoJ. Please write today to ensure the MoJ knows how disastrous these proposals would be.

CWIS, Better Justice and Civil Justice

And the active travel community is right to be worried. These proposals are particularly unfair to pedestrians and cyclists. We highlighted this concern in our response to the draft CWIS consultation this spring, where we called for a Better Justice theme to be added, noting that

Those walking and cycling face not only greater risk of being injured, but they will also be much less likely to have access to justice and legal advice through an insurance policy. And the proposed reform of removing the right to general damages and increase in the small claims court limit will make it even harder for injured walkers and cyclists to claim compensation.

The government’s recent British Road Safety Statement prioritised “Fair and responsive” insurance but focused only on reducing the costs for insurance companies and “honest motorists”, with no thought given to innocent victims of crashes. Whiplash is a problem with motor vehicle occupants, too often caused by criminal drivers. Injured pedestrians and cyclists should not be penalised as a should not be penalised as a result reforms aimed at reducing whiplash and fraudulent claims.

Need to cycle proof justice policies

We also argued in our response that

Just as the CWIS proposes to review the planning process to audit its impact on active travel, so should this apply to any changes in civil compensation or criminal justice procedures.

If government is to be serious about promoting active travel, then we need joined up thinking and consistent policies.

We also raised this with Andrew Jones, Road Safety Minister, after the DfT’s British Road Safety Statement was published. RoadPeace offered to organise a meeting with victims and personal injury solicitors to ensure the DfT were reminded of the honest need for motor insurance compensation.

And we repeated this offer last month, when the Road Safety Minister attended our London service commemorating the World Day of Remembrance for Road Traffic Victims. By this time, the MoJ had launched its consultation, with the dreaded proposals on whiplash claims and small claim limits.

There are many ways in which the MoJ does not treat crash victims as victims, including:

  • not even counting the victims of road traffic crime
  • the refusal to include culpable road deaths as homicides
  • the miserly bereavement damages in England and Wales
  • not including road crime victims in criminal justice strategies

Please don’t let them add to this list. Consultation closes 6 January 2017.

Longer prison sentences for the worst welcomed but more reform is needed

Finally, the government is to consult on driving offences. Over 4000 have been killed on our roads in the 31 months since the government announced a full review of driving offences on 4 May 2014.

The good

According to the press release–and only the press release–with the consultation launched tomorrow, tougher sentences are coming—at least in theory. The worst of killer drivers will face a maximum sentence of life imprisonment. Thus they will be sentenced as if they were convicted of manslaughter.

And longer sentences were overdue for the multiple and repeat offenders whose criminality shocked not just the families but also the public, press and MPs.

We do welcome the possibility of much longer sentences. This will help allay the concerns over early guilty pleas, early release from prison, and multiple deaths being sentenced concurrently.

 
The bad

But reform should not stop with tougher sentences for the worst few

The proposals –or at least those in the press release–will affect very few offenders. In 2015, only 24 drivers were given more than 5 years prison sentence, with just two drivers sentenced to more than 10 years in prison.

Drivers to be sentenced as if manslaughter but the bereaved remain treated as second class victims

In 2015, 321 drivers were convicted of causing a death. The government could have proposed all culpable road deaths to be prosecuted as manslaughter. That would have allowed the tougher sentences and also benefited all families bereaved by law breaking drivers, most of whom involving cases where drivers were convicted of Causing Death by Careless Driving. Families bereaved by law breaking drivers deserve the same support and rights as do families bereaved by murder and manslaughter.

 
Custody and careless driving—risk of undercharging

And the government is proposing a Causing Serious Injury by Careless Driving charge with a maximum custodial sentence of 3 years. RoadPeace has argued that if jail is justified, then the charge should be dangerous driving, not careless driving.

We believe that the 5 year maximum custodial sentence for Causing Death by Careless Driving resulted in undercharging of Causing Death by Dangerous Driving. Why would the CPS press for the tougher charge when four in five drivers convicted of Causing Death by Dangerous Driving result in a custodial sentence of five years or less?

 
We await the consultation launch tomorrow. And can only hope that it is not the missed opportunity implied by the press release.