Attorney General's Reference (Nos. 14 and 24 of 1993); R v Shepherd; R v Wernet

JurisdictionEngland & Wales
CourtCourt of Appeal (Criminal Division)
JudgeTHE LORD CHIEF JUSTICE
Judgment Date17 December 1993
Judgment citation (vLex)[1993] EWCA Crim J1217-16
Docket NumberNo. 93/3875/R2

[1993] EWCA Crim J1217-16

IN THE COURT OF APPEAL CRIMINAL DIVISION

Before: The Lord Chief Justice of England (Lord Taylor of Gosforth) Mr Justice Popplewell and Mr Justice Scott Baker

No. 93/3875/R2

93/5395/R2

Attorney General'S Reference Numbers 14 and 24 of 1993

Under Section 36 of

The Criminal Justice Act 1988

Regina
and
Peter James Shepherd
Regina
and
Robert Stewart Wernet

MR JOHN NUTTING appeared on behalf of the ATTORNEY GENERAL

MR ROGER HARRISON and MR S SPENCE appeared on behalf of THE OFFENDER SHEPHERD

MR ANTHONY McGEORGE and MR SHANTANU MAJUNDAT appeared on behalf of THE OFFENDER WERNET

1

Friday 17 December 1993

THE LORD CHIEF JUSTICE
2

THE LORD CHIEF JUSTICEThese are two applications by Her Majesty's Attorney General pursuant to section 36 of the Criminal Justice Act 1988 for leave to refer to this Court for review sentences which he regards as unduly lenient. We have granted leave.

3

The Road Traffic Act 1991 created two new offences by way of amendment of the Road Traffic Act 1988. Section 1 of the 1991 Act substituted for sections 1 and 2 of the 1988 Act the new offence of causing death by dangerous driving, thereby replacing the offence of causing death by reckless driving. At one time earlier in the somewhat chequered history of road traffic offences there had been an offence of causing death by dangerous driving. However, section 3 of the 1991 Act inserted an entirely new offence by creating a section 3A of the 1988 Act. That offence is of causing death by careless driving when under the influence of drink or drugs.

4

The terms of section 3A are as follows. Subsection (1):

"If a person causes the death of another person by driving a mechanically propelled vehicle on a road or other public place without due care and attention, or without reasonable consideration for other persons using the road or place and —

(a) he is at the time when he is driving unfit to drive through drink or drugs, or

(b) he has consumed so much alcohol that the proportion of it in his breath, blood or urine at the time exceeds the prescribed limit, or

(c) he is within 18 hours after that time required to provide a specimen in pursuance of section 7 of this Act without reasonable excuse fails to provide it —

he is guilty of an offence."

5

It is not necessary to read the rest of the section.

6

Those two new offences came into existence on 1 July 1992. The maximum sentence in respect of each was then five years imprisonment. However, within a year Parliament, by section 67 of the Criminal Justice Act 1993, increased the maximum sentence for each of the two offences from five years to ten years. That change came into effect on 16 August 1993. In our judgment that increase of sentence was not retrospective, so that neither of the cases before us is directly affected by it.

7

These reforms show an intention by Parliament to strengthen the criminal law, to reduce death on the roads by increasing the punishment available to the Courts, and by specifically targeting those who cause death whilst driving with excess alcohol. The five-year maximum sentence for causing death by dangerous driving has been doubled. In tandem with that, causing death by the less serious form of culpable driving, characterised as careless, carries the same maximum sentence if coupled with driving whilst unfit through drink or over the limit. The latter offences do not require proof of a causal connection between the drink and the death. Thus, under section 3A, whoever drives with excess alcohol does so at his or her peril, and even if the driving is merely careless but death results, the Courts' powers to punish are the same as for causing death by dangerous driving.

8

Guidelines for sentencing in respect of the pre-1991 offence were laid down in the well-known case of R v Boswell (1984) 6 Cr App R(S) 257, at a time when the maximum sentence for that offence was five years imprisonment. For offences committed before the sentence was increased to ten years, we consider that the criteria laid down in that case applied equally to the new offence of causing death by dangerous driving. In Boswell Lord Lane CJ listed a number of aggravating features. The first was the consumption of alcohol or drugs. He said that where an aggravating feature was present a custodial sentence was generally necessary. The offence under section 3A, although requiring proof only of careless driving rather than dangerous driving, also has built into it the aggravating feature which was the first in the list in Boswell, namely consumption of alcohol or drugs. Thus, where a driver is over the limit, and kills someone as a result of his careless driving, a prison sentence will ordinarily be appropriate. The length of sentence will of course depend upon the aggravating and mitigating circumstances in the particular case, but especially on the extent of the carelessness and the amount the defendant is over the limit. In an exceptional case, if the alcohol level at the time of the offence is just over the border line, the carelessness is momentary, and there is strong mitigation, a non-custodial sentence may be possible. But in other cases a prison sentence is required to punish the offender, to deter others from drinking and driving, and to reflect the public's abhorrence of deaths being caused by drivers with excess alcohol.

9

In regard to that final element of public perception, as has been said before in Boswell and in R v Pettipher 11 Cr App R(S) 321, although it may be fortuitous and therefore strictly illogical, the fact that the offence caused more than one death is itself an aggravating feature which the Court should consider. It was put in this way in Pettipher at page 323:

"…. more than one person was killed. It is rather illogical in some ways, it might be thought, that a given piece of driving which causes three deaths should be punished more heavily than the identical piece of driving causing one death, or indeed causing no death at all, given that no-one suggests this appellant was deliberately driving so as to kill people. The fact is that in the public estimation it is a factor which people in general do take into account. People do regard killing three as more criminal than killing one. That is a fact of life which this court recognises."

10

Having said that, we wish to stress that human life cannot be restored, nor can its loss be measured by the length of a prison sentence. We recognise that no term of months or years imposed on the offender can reconcile the family of a deceased victim to their loss, nor will it cure their anguish.

11

Since Parliament has thought it right and necessary not merely to increase, but to double the maximum sentence for offences under sections 1 and 3A of the 1988 Act (as amended) the guidelines in Boswell need to be reconsidered. Clearly the statements of principle in that case, and the examples of aggravating and mitigating circumstances still stand, but at page 260 of the report, there appears the following statement:

"Drivers who for example in racing on the highway and/or driving with reckless disregard for the safety of others after taking alcohol should understand that in bad cases they will lose their liberty for two years or more."

12

In our judgment the phrase "two years or more" should now read "upwards of five years", and in the very worst cases, if contested, sentences will be in the higher range of those now permitted by Parliament.

13

With those principles in mind we turn to the instant applications by the Attorney General. In the first, the offender's name is Peter James Shepherd. He is 29 years of age. On 21 June 1993, at Norwich Crown Court, he pleaded guilty to two counts of causing death by careless driving, having consumed alcohol above the prescribed limit, contrary to section 3A of the 1988 Act (as amended). The learned judge sentenced him to be fined £250, disqualified him from driving for two years, and ordered that he pay costs of £100.

14

The offender had spent the weekend of Saturday 14/Sunday 15 November staying with friends in Cambridgeshire. Also staying at the same house was a young woman called Tracy Fairhead and her ten-month-old baby daughter. On the evening of Sunday 15th, Miss Fairhead decided to return home to Ealing with her baby because of a domestic problem. The offender had been drinking lager during the afternoon. It is fair to say that he had probably not expected or intended to drive. However, he offered Miss Fairhead a lift in his vehicle. Shortly before 10.00 p.m. they embarked on their journey. It seems that neither the offender nor his passenger fastened their safety belts. Miss Fairhead had her baby on her lap.

15

Meanwhile, a very large articulated lorry had broken down on the A142 road. The driver pulled into the roadside and kept his lorry illuminated in front and rear. He also switched on his hazard lights. He contacted a garage and waited for assistance. It was dark. Although it was not raining, the road surface was wet. However, the road was level. Visibility was good and stretched for half a mile in each direction. Other drivers approaching the parked lorry from the rear managed to negotiate the obstruction without difficulty. Either they passed it straightaway, or, when traffic was approaching from the opposite direction, they waited before pulling out to pass. The offender's route took him along this road shortly before 10.15 p.m. It is clear that he failed to see the lorry ahead of him. He only applied his brakes when he was approximately 30 metres from it. He was unable to stop in time. Nor was he able to pass the lorry because of oncoming traffic. In the result his vehicle collided...

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