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Lord Hanningfield moved Amendment No. 4:
The noble Lord said: My Lords, I will speak to Amendments Nos. 4, 5 and 7, and will not move Amendment No. 8, which is also tabled in my name. Although I do not want completely to rehearse the debate that we had on Report, I want to repeat the serious concerns of many Members of your Lordships' House—concerns with both the important implications of the clause, and its late introduction to the Bill.
As the House will recall, in response to concerns expressed on Report the Minister generously offered a meeting to further discuss the issue. Unfortunately, I was unable to attend. However, my noble and learned friend Lord Lyell, who spoke so eloquently against the relevant amendment on Report, was in attendance; he is here today. In the light of his extensive experience as both Attorney-General and Solicitor-General, I defer to his legal expertise on this matter, and accept his opinion that the meeting failed to allay those grave reservations that he expressed on Report. His was not the only voice of caution. As the Minister conceded on Report, on the whole the legal profession was not in favour—not without good reason.
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The clause means that a prison sentence can be imposed through pure accident and simple carelessness. Gaol is not a suitable punishment for an act of carelessness. The provision will result in the criminalisation of many ordinary members of society. Of vital importance is the absence of criminal intent necessary in the conviction of other crimes that carry similar custodial sentences. Careless driving is very different from dangerous driving and carelessness resulting from drink and drugs, even though the effects of careless and dangerous driving may be similar. According to the current wording, a person would be guilty of careless driving if their driving fell below what would be expected of a competent and careful driver. That is markedly different from the test of culpability pertaining to dangerous driving.
In the determination of the offence of dangerous driving, a driver must be driving in such a way that it would be obvious to a competent and careful driver that driving in that way would be dangerous—in other words, a person is doing something that they know they should not be doing. There is no such requirement in this new offence of causing death by careless or inconsiderate driving. Instead, according to the current wording, a person may commit the offence not only without intent, but without even realising the nature of such carelessness.
We are not arguing for this new offence to be struck from the Bill. We are trying to ensure that the punishment fits the crime. Importantly, the punishment should reflect the standard of driving, not the consequences. The Minister admitted that much on Report when he stated:
"It is certainly true that the standard of the driving must be the most important factor in judging culpability".—[Official Report, 22/11/05; col. 1544.]
As my noble and learned friend Lord Lyell of Markyate, Justice and members of the legal profession have argued, the standard of careless driving is too low to generate liability for causing death. Furthermore, as responses to the Home Office consultation indicate, the automatic prison sentence will not necessarily provide the deterrent effect that is desired. As Greenwoods Solicitors noted in its response to the consultation,
"the deterrence of the sentence will largely go unnoticed by the majority of drivers . . . From my experience the majority of motorists will not in any way associate themselves with the possibility that they might cause a fatal accident until such an accident happens".
The offence of careless driving must focus on the standard of driving involved. As the Law Society of Scotland argued,
"To punish more severely a driver for a fatality, which results from a minor error in driving because of the consequences of the driving, rather than the driving itself is difficult to justify in the criminal law. As this is a crime of negligence, there is insufficient guilty intention to justify a punishment of disproportionate consequences".
A much more fitting punishment would perhaps be a more severe ban from driving. I remind the Minister that the Government's manifesto commits them to implementing tougher penalties for careless and inconsiderate driving, not excessive ones.
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As I said, this is a subject that would have benefited from the same detailed consideration enjoyed by other parts of the Bill. While we can and will support the creation of a new offence of careless and inconsiderate driving, we cannot and will not support the excessive punishment that the Government propose. The punishment must fit the crime. An obligatory custodial sentence is completely disproportionate to such an offence. Furthermore, it should be left to the courts to decide the severity of punishment and the actual offence committed, not to governments. I beg to move.
Lord Monson: My Lords, I have added my name to the amendment. It is now almost universally agreed that the law as it stands does not provide for adequate penalties for causing death by careless driving. The penalties need to be stiffened up with higher maximum fines, the possibility of imposing a community service order and, above all, automatic disqualification for a minimum period of 12 months. The disqualification period could be substantially longer.
As the noble Lord, Lord Hanningfield, said, the sticking point is imprisonment. Is imprisonment really appropriate for an act of simple carelessness, however grave the consequences, where no element of recklessness is involved? After all, no human being can be expected to remain at a state of maximum alert hour after hour. It is a pity but that is a law of nature.
It can be argued that train drivers who drive through a signal set at red, skippers of ships who carry out a slipshod manoeuvre, and hospital doctors and nurses who inject the wrong solution into a patient's vein, all resulting in death, are often charged with manslaughter, essentially for acts of carelessness, and, although frequently acquitted by juries, they are sometimes convicted. That is undeniably true but, in practice, such convictions rarely seem to result in actual sentences as distinct from suspended sentences of more than about 12 months. That is why I submit that if custody is to be an option—and it is a big "if"—then a two-year maximum is appropriate.
There is a further important reason for this two-year maximum. As I argued at some length on Report, if a five-year maximum were put in place, the public and the increasingly vocal media would expect everyone convicted of this offence to be sent to prison as a matter of course, even if only for a year or two, and they would explode with rage and indignation if anyone were merely fined or given a community service order. A two-year maximum, on the other hand, would subliminally indicate that prison was reserved for the relatively few cases where the careless driving had bordered on reckless or dangerous.
On Report, I proposed a somewhat higher—three-year—maximum in the hope that the Government might find that an acceptable compromise. However, alas, that was not to be. The Minister, the noble Lord, Lord Davies of Oldham, indicated a willingness to compromise on the maximum at Third Reading, but so far the Government have not come up with a compromise amendment of their own.
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Since Report, I have been persuaded by the weight of judicial and other highly experienced legal opinion that imprisonment of any length should not be an option at all for this offence—hence the adding of my name to this amendment. However, if the majority of your Lordships are not persuaded by the force of this argument, my Amendment No. 6 remains as a fallback compromise option.
Viscount Simon: My Lords, my two amendments are intended to close a loophole in the existing legislation and are in addition to what has been discussed at previous stages of the Bill. I raised the matter at a previous stage when another noble Lord discussed his amendment.
By failing to stop after a crash, an offender can escape or significantly reduce the consequences of his actions by evading police attention completely or for long enough to remove incriminating evidence such as alcohol consumption. There is already an offence under Section 170(4) of the Road Traffic Act 1988 of failing to stop after an accident. However, this is a summary offence carrying a maximum sentence of six months' imprisonment and with a six-month time limit for prosecutions to be started. It seems that a growing number of drivers are willing to ignore their legal obligation to stop after an accident to avoid a much harsher penalty, especially where they have been drinking prior to the crash.
It seems to me that there are two possible approaches which could remove that six-month time limit. I seek to amend Section 3A to include the specific offence of failure to stop after an accident caused by careless driving while under the influence of drink or drugs. That would address the specific problem caused when a drinking driver flees the scene of a fatal crash, intending to deprive the police of valuable evidence.
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Alternatively, the Government may wish to consider amending Section 170 of the Road Traffic Act 1988 to change its status from a summary offence to an offence triable either way, thus removing the six-month time limit for starting proceedings, and then to increase the maximum penalty to reflect the full range of penalties for Sections 1 to 6 of the Act—in other words, 14 years.
There is precedent for such a move. Section 7 of the Road Traffic Act 1988 creates an offence of failing to provide a specimen for analysis or laboratory test in drink driving cases. Section 7 was inserted in the original Road Safety Act 1967 to penalise drivers who attempted to evade prosecution by failing to give a sample, and the penalties are exactly the same as for driving with excess alcohol.
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