Re Attorney General's Reference (No.152 of 2002); R v Robert Charles Cooksley
| Jurisdiction | England & Wales |
| Judge | The Lord Chief Justice |
| Judgment Date | 03 April 2003 |
| Neutral Citation | [2003] EWCA Crim 996 |
| Court | Court of Appeal (Criminal Division) |
| Docket Number | Case No's: 2002/05798/X5 2002/06552/W4 2003/00080/R2 Attorney General's Reference No. 152 of 2002 |
| Date | 03 April 2003 |
[2003] EWCA Crim 996
The Lord Chief Justice of England and Wales
Mr Justice Gage and
Mr Justice Moses
Case No's: 2002/05798/X5
2002/05928/Y5
2002/06552/W4
2003/00080/R2
Attorney General's Reference No. 152 of 2002
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURT
(1) HHJ DAVID WYNN MORGAN AT CARDIFF
(2) HHJ BALSTON AT MAIDSTONE
(3) HHJ DAVID CLARKE QC AT LIVERPOOL
(4) HHJ SESSIONS AT CHICHESTER
Royal Courts of Justice
Strand,
London, WC2A 2LL
Mr Hilary Roberts (instructed by Hodson Parsons James and Vaux) for the 1 st Appellant
Mr Stephen Morley (instructed by Pattinson and Brewer) for the 2 nd Appellant
Mr Gerald Baxter (instructed by Cobleys Solicitors) for the 3 rd Appellant
Mr Geoffrey Mercer QC (instructed by Bennett Griffin Solicitors) for the 4 th Appellant
Mr Nicholas Hilliard (instructed by the Treasury Solicitors) for the Respondent
This judgment relates to three appeals against sentence and one Attorney General's Reference. The appeals and the reference have been listed together to enable us to decide whether we should issue fresh guidelines as to sentencing for the offence of causing death by dangerous driving and careless driving when under the influence of drink or drugs in view of the advice of the Sentencing Advisory Panel of February 2003 (the "Advice") which recommended that there should be new guidelines. In his foreword, the Chairman of the Panel, Professor Martin Wasik, pointed out that:
"This offence causes particular difficulty for sentencers. By definition, it is one which always gives rise to extremely serious harm: the death of at least one victim (and in some cases serious injury to others). Understandably this often leads to calls from victims' families, and from the wider community, for tough sentencing. On the other hand, an offender sentenced for causing death by dangerous driving 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 believes that new guidelines will help sentencers to strike an appropriate balance between the level of culpability of the offender and the magnitude of the harm resulting from the offence.
The Panel drew up its initial proposals on the basis that the outcome of an offence, including the number of people killed, was relevant to the sentence, but that the primary consideration must always be the culpability of the offender. That was supported by the majority of respondents to our consultation paper, and it remains our view.
Two of the detailed points in the Panel's Advice deserve particular mention. One is the significance of multiple deaths. Although the number of people killed is often a matter of chance, there are (as some of our consultees pointed out to us) cases where the offender has knowingly put more than one person at risk, or where the occurrence of multiple deaths was reasonably foreseeable. In such cases, we recommend that the occurrence of more than one death should be treated as a more seriously aggravating factor.
The second point is the inclusion of 'driving when knowingly deprived of adequate sleep or rest' in the list of factors that would aggravate the seriousness of an offence. Under previous sentencing guidelines, 'briefly dozing at the wheel' was seen as an example of a 'momentary dangerous error of judgment', indicating a less serious offence.
The Panel's view (again supported by consultees) is that falling asleep is more likely to aggravate than mitigate the seriousness of an offence, because drivers do not normally fall asleep without warning, and the proper course of action for a motorist who feels drowsy is to stop driving and rest."
Mr Nicholas Hilliard appears on behalf of the Attorney General on the reference. In addition, he has assisted the court by making submissions on the Advice of the Sentencing Advisory Panel. He has referred to paragraphs 1.1 to 1.3 of the Department of Transport's paper "Tomorrow's roads: safer for everyone. The Government's road safety strategy and casualty reduction target for 2010". Those paragraphs provide:
"1.1 Road accidents cause immense human suffering. Every year, around 3,500 people are killed on Britain's roads and 40,000 are seriously injured. In total, there are over 300,000 road casualties, in nearly 240,000 accidents, and about fifteen times that number of non-injury incidents. This represents a serious economic burden; the direct cost of road accidents involving deaths or injuries is thought to be in the region of £3 billion a year.
1.2 Nevertheless, Britain has had -relatively speaking -remarkable success in reducing road casualties. And this is despite the vast growth in traffic since the beginning of the last century. In 1930 there were only 2.3 million motor vehicles in Great Britain, but over 7,000 people were killed in road accidents. Today, there are over 27 million vehicles on our roads but far fewer road deaths.
1.3 In 1987 a target was set to reduce road casualties by one-third by 2000 compared with the average for 1981–85. We have more than achieved this target for reducing deaths and serious injuries. Road deaths have fallen by 39% and serious injuries by 45% and we are now one of the safest countries in Europe and indeed the world. However, there has not been any such steep decline in the number of accidents, nor in the number of slight injuries, although improvements in vehicle design have helped to reduce the severity of injuries to car occupants."
He drew our attention to paragraph 12 of the Advice, which indicates that driving offences causing death are among those most frequently referred by the Attorney General to this Court because he considers that the sentence at trial was unduly lenient. The Attorney General is in favour of fresh guidelines being issued. We have come to the conclusion that the following guidelines should be issued. They are based upon the Advice, the terms of which in general we accept. The new guidelines shall come into force forthwith and should be applied by courts when passing sentence from the date of this judgment.
The Advice refers to the possibility of the maximum sentence being increased for causing death by dangerous driving by Parliament. This guidance is given on the basis of the existing maximum penalty which is 10 years imprisonment. In addition, disqualification for a minimum period of 2 years and endorsement of the offenders licence are obligatory and the offence carries 3 – 11 penalty points. The offender must also be required to pass an extended driving test before his licence can be restored.
The offence of causing "the death of another person by driving a mechanically propelled vehicle dangerously on a road or other public place" was created by section 1 of the Road Traffic Act 1988 (the "RTA 1988"), as substituted by section 1 of the Road Traffic Act 1991 ("the RTA 1991"). The maximum penalty for this offence was originally 5 years imprisonment but this was increased to the present maximum of 10 years by the Criminal Justice Act 1993.
The significant distinction between the former offence of causing death by reckless driving and reckless driving is that the new offences do not require evidence of the offenders state of mind as the test is now objective. When a person is to be regarded as driving dangerously for the purposes of both offences is now contained in section 2A of the RTA 1988 (inserted into that Act by the RTA 1991). That section provides that a person is to be regarded as driving dangerously if:
"a) The way he drives falls far below what would be expected of a competent and careful driver, and
b) It would be obvious to a competent and careful driver that driving in that way would be dangerous."
A person is also to be regarded as driving dangerously if, "it would be obvious to a competent and careful driver that driving the vehicle in its current state would be dangerous."
Section 2A(3) further provides that in determining what would be expected of and obvious to a competent and careful driver regard must be had not only to the circumstances of which he could be expected to be aware, but also to any circumstances shown to have been within the knowledge of the accused. This last provision does introduce a subjective element into the offence of driving a vehicle in a dangerous state but this does not materially alter the objective nature of the offence as a whole.
Dangerous driving has to be distinguished from a careless and inconsiderate driving (section 3 RTA 1988) and causing death by careless driving when under the influence of drink or drugs (section 3A RTA 1988). The former offence is a summary offence for which the offender is not subject to imprisonment and has a maximum penalty of a level 4 fine (currently £2,500). Disqualification is discretionary and the offence carries 3 – 9 penalty points. The latter offence is indictable only and subject to the same maximum penalty of 10 years imprisonment.
There is still the offence of motor manslaughter in relation to which a sentence of life imprisonment can be imposed. It is also an offence to which section 2 of the Crime (Sentences) Act 1997 applies so that in the absence of exceptional circumstances relating either to the offender or to his offences a mandatory sentence of imprisonment for life must be imposed if the offender has a previous conviction for a "serious offence".
Where death is not a consequence of the...
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