Drowsy drivers face U-turn on sentencing

Drivers who cause death through dangerous driving should expect to go to jail for at least two years if they are caught using a mobile phone or suffering from sleep-deprivation.

The recommendation is included in new advice on sentencing drivers who cause death by dangerous driving that the independent Sentencing Advisory Panel has sent to the Court of Appeal.1 It contains several recommendations of particular interest to employers and safety practitioners trying to respond to the government and HSE's insistence that they manage occupational road risk as they would any other workplace risk (Health and safety: the state of play).

The Court of Appeal approved the guidelines in a judgement on 3 April. Judges will be expected to adhere to the guidelines, although as with similar advice on sentencing for workplace crimes (Sentencing safety criminals), it often takes time for the advice to filter down and be uniformly implemented.

The Panel recommends that when sentencing for the offence of death by dangerous driving, judges should treat as highly culpable "aggravating" factors driving:

  • while the driver's attention is "avoidably distracted", for example using a mobile phone, particularly if it is hand-held;

  • when knowingly deprived of adequate sleep or rest; and

  • "a poorly maintained or dangerously loaded vehicle, particularly where this has been motivated by commercial concerns" (the box lists other aggravating factors).

    The advice on driving while tired reflects the developing awareness of the area and represents something of a "U-turn" for the judiciary. The Court of Appeal had previously treated "briefly dozing at the wheel" as an example of a "momentary dangerous error of judgment", ie as a less serious offence.2 But the Panel believes that falling asleep is more likely to be an aggravating, rather than a mitigating, factor. It quotes a 1999 decision by the Court of Appeal that falling asleep at the wheel is "always the culmination of a period during which a driver is conscious of drowsiness and difficulty in keeping his or her eyes open".3 In such instances, the proper response is to stop driving and rest.

    The recommendation on mobile phones would be additional to the Home Office's proposal for a new offence of driving while using a hand-held mobile phone (Mobiles on the move). The Panel notes that the courts are already attaching particular importance to the problem. In particular, the Court of Appeal last year upheld a five-year sentence imposed on an HGV driver who, while text messaging on his mobile, ran over and killed a man in a lay-by. Giving judgment in the appeal, Lord Justice Mance said: "Even the use of a hand-held mobile phone by a driver whilst moving, a much too common feature of driving today, is self-evidently risky. But the risks of reading and composing text messages appear to us of a wholly different order and to be . . . of the most blatant nature."4

    Professor Martin Wasik, the chair of the Sentencing Advisory Panel, points out that the offence of causing death by dangerous driving poses particular problems for sentencing. It involves a death, but the offender "did not intend to cause death or serious injury, even in the extreme case where he or she deliberately drove for a prolonged period with no regard for the safety of others."

    The Panel has therefore based its advice on the idea that culpability should be the dominant component in the sentence, but that the outcome of the offence, while often a matter of chance, should have some effect.


    Determining a sentence for causing death by dangerous driving

    The offence of dangerous driving does not require evidence of the driver's state of mind. The offence is committed if the manner of driving falls far short of what would be expected of a competent person, and if it would be obvious to a careful driver that driving in such a fashion would be dangerous.

    The maximum penalty for causing death by dangerous driving is 10 years in prison, with obligatory disqualification and endorsement minima of two years and three points respectively. Offenders must also pass an extended driving test before the licence is restored. In a separate initiative, the government recently proposed extending the maximum prison sentence to 14 years, as well as increasing the maximum term for dangerous driving that does not cause death from two to five years.

    The Sentencing Advisory Panel's advice sets out four levels and types of aggravating factors that judges need to take into account when sentencing:

  • highly culpable standards of driving at the time of the offence, including mobile phone use, sleepiness, overloaded vehicles, alcohol and drugs, excessive speed, persistent or deliberate bad driving, aggressive driving and driving when knowingly suffering from a medical condition that impairs driving;

  • driving habitually below an acceptable standard, including driving without a licence and previous convictions;

  • the outcome of the offence, for example multiple deaths or serious injury in addition to a death;

  • irresponsible behaviour at the time of the offence, such as failing to stop and causing death in an attempt to avoid detection.

    The Panel recommends that the starting point for an offence that is aggravated by a factor in the highly culpable category should be a prison sentence of two to five years. Sentences of more than five years should be reserved for driving that involves three or more of the highly culpable factors. Low or moderate culpability - which is restricted to an aggravating factor from the last three categories above, should attract a sentence of up to three years. Although the Panel recommends a custodial sentence "as a starting point", it adds that a community sentence might be appropriate where there was low culpability and strong mitigating factors.

    Mitigating factors include a good driving record, no previous convictions, a timely plea of guilty, genuine remorse, a lack of driving experience, and offences where the offender has been seriously injured.

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    1"The panel's advice to the Court of Appeal, causing death by dangerous driving", www.sentencing-advisory-panel.gov.uk/.

    2R v Boswell [1984] 6 Cr App R27.

    3Attorney-General's ref no.26 of 1999 [2000] 1 Cr App R(S)394.

    4R v Browning [2002] 1 Cr App R(S)377.