R v Jack Richardson; R v Sheppard; R v Abery; R v Little; R v Poel; R v Robertson

We are grateful to Mr Camden Pratt QC for his detailed and helpful written submissions which we have considered with care. In the light of those submissions we have decided to grant leave in this case, and in the circumstances it is unnecessary for us to give a detailed judgment. Indeed, all we need say is that we agree with Mr Camden Pratt that the Full Court should consider whether guidance needs to be given as regards the approach that should be taken when sentencing for offences of causing death by careless driving when over the prescribed limit contrary to section 3A(1)(b) of the Road Traffic Act 1988 (as opposed to causing death by dangerous driving contrary to section 1 of the Road Traffic Act 1988) and how the sentencing judge should approach the guidelines set out in R v Cooksley [2004] 1 Cr App R(S) 1, [2003] EWCA Crim 996.

We are of the view that it would be helpful for the Full Court to consider whether the Cooksley guidelines should be adjusted to take into account the fact that with the instant offence the aggravating feature of alcohol is to be viewed within a careless as opposed to a dangerous context. However, we would stress that it is entirely a matter for the Full Court on the next occasion as to whether or not in fact guidelines need to be set. We are of the view that in the light of the arguments presented by Mr Camden Pratt it is arguable that this sentence was too long, but the appellant, as he now is, should understand that even if the Full Court promulgates fresh guidelines to cover this situation that may not have any impact on the court's assessment of the sentence passed in this case. Indeed, as the appellant knows, the single judge considered that this was an appropriate sentence. However, the appeal is arguable and for that reason leave has been granted.

: Mr Camden Pratt and Mr Barnes, I think on reflection that we should say this case should be expedited.

Thank you.

: So we will so direct.

Do you need funding, Mr Camden Pratt?

Can I leave that for the moment? At the moment this is a privately funded appeal and I need to consider with my instructing solicitor whether there should be an application for a representation order or whether it should continue as a privately funded appeal. So can I leave that for the moment and then leave it to Mr Clark to make an application if he thinks it is necessary.

: Very well, thank you.

President of the Queen's Bench Division :

As they raised common problems arising from the provisions of s285 of the Criminal Justice Act 2003 (the 2003 Act) which increased penalties for driving related offences, these appeals and applications for leave to appeal against sentence were listed together.

A narrative account of the development of the relevant legislative provisions governing the offences of causing death by dangerous driving and causing death by careless driving when under the influence of drink or drugs is unnecessary. They are described by Lord Taylor CJ in Attorney General's References Nos 14 and 24 of 1993 [1994] 15 CAR (S) 640 and by Lord Woolf CJ in R v Cooksley [2004] 1CAR (S) 1. Before 27 ^th February 2004 the maximum sentence for aggravated vehicle taking which involved an accident causing death was five years' imprisonment, and for causing death by dangerous driving and causing death by careless driving when under the influence of drink or drugs it was ten years' imprisonment. Thereafter the maximum sentence for each offence was raised to fourteen years' imprisonment. In addition the offences are "specified" violent offences within schedule 15 of the 2003 Act, and the increase in the maximum sentence now means that they are also "serious" offences for the purposes of sections 224–229 of the 2003 Act. Therefore when these provisions came into effect in April 2005 the offences fell within the ambit of orders of imprisonment for public protection.

The issue to be addressed in the present cases is the impact of the increased maximum sentences on the guidance offered to sentencers in Cooksley itself.

Statutory changes in sentencing levels are constant. In recent years, maximum sentences have been increased (for example, drug related offences) or reduced (for example, theft). In general, changes like these provide clear indications to sentencing courts of the seriousness with which the criminal conduct addressed by the changes is viewed by contemporary society. In our parliamentary democracy, sentencing courts should not and do not ignore the results of the legislative process, and as a matter of constitutional principle, reflecting the careful balance between the separation of powers and judicial independence, and an appropriate interface between the judiciary and the legislature, judges are required to take such legislative changes into account when deciding the appropriate sentence in each individual case, or where guidance is being offered to sentencing courts, in the formulation of the guidance.

In the present appeals the main argument between Mr Nicholas Hilliard on behalf of the Attorney General and Mr Camden Pratt QC on behalf of Richardson, (whose argument was adopted on behalf of the remaining appellants), was whether the increases effected by section 285 of the 2003 Act should normally lead to increased sentences throughout the entire range of the offences covered by the increased maximum, or whether increases should be directed at cases of the greatest culpability, which have caused the greatest harm. The second area addressed by counsel required us to reflect on the relationship between causing death by dangerous driving and causing death by careless driving when under the influence of drink. To date they have been treated, in effect, as if they were virtually identical.

The Crown's contention on what we have described as the main argument is simple enough. The increase in the maximum sentence was intended to reflect the broad view of Parliament that sentencing courts should approach these offences with greater severity than before. That would produce a greater effect in the more rather than the less serious cases, but nevertheless would have some impact throughout the range of sentences. Mr Hilliard did not suggest that there should be a mathematical calculation which, by reference to the increase in the maximum from ten years to fourteen years, should produce a 40% increase in sentence all round, or a re-appraisal of sentencing guidelines to achieve the same effect.

Mr Camden Pratt pointed out that the advice of the Sentencing Advisory Panel in February 2003 was based on "an unduly large gap between the maximum of two years for dangerous driving (which may have resulted in an extremely serious injury to one or more victims) and that of ten years for an offence in which the same standard of driving has, by chance, resulted in death." In its advice the Panel welcomed the proposed five year increase in the maximum sentence for the basic offence of dangerous driving, but was concerned about the proposed increase to fourteen years for causing death by dangerous driving because this focused attention on the fatal outcome of the offence, and disrupted the balance between the culpability of the driver and the consequences of his actions. This "tension" was identified as the "key problem", and the Panel's view was that the offender's culpability should be "the dominant component in the sentencing exercise". Mr Camden Pratt then submitted that the court in Cooksley was perfectly well aware both of the advice of the Panel, and indeed the then pending legislation. The difficulty with this...