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Lord Lyell of Markyate: My Lords, I am glad to have the opportunity to support noble Lords who seek to overturn the five-year—or indeed any—prison sentence being available for the punishment of careless driving in circumstances where death has been caused.
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It would be an enormous mistake if this House and Parliament were to pass this law. It is contrary to principle, as I shall briefly explain. There is a serious danger that it would cause injustice to a significant number of people if the Government's estimate of something like 150 prison places a year for people found guilty of causing death by careless driving were to turn out to be accurate.
Alternatively, it will have the undesirable consequence that the judiciary—who are very widely opposed to this proposal; I know of no exception right up to the very highest level of the previous Lord Chief Justice, who was rightly consulted—will prevent it by imposing very few sentences of this nature. We shall then simply find the searchlight of criticism turning on the judiciary and seeking to second-guess what they who have heard and considered the cases have none the less decided to be right.
Before I make my criticisms, I offer sincere thanks to the Minister and his colleague the junior Minister at the Home Office for their courtesy and definite willingness to explore this subject with us. I have had the benefit of attending two meetings, about which I shall say a word in a moment.
The provision is contrary to principle. As noble Lords have rightly said, there is nowhere else in English law where we provide for a custodial sentence for something that does not go beyond negligence or carelessness. I see that in the footnotes there are references to the Proceeds of Crime Act, but that is so different from these circumstances that I do not qualify what I have said.
The noble Lord, Lord Monson, raised the question of what can happen to doctors, or to those steering ships and so on, who are occasionally brought forward and unnecessarily charged with manslaughter. But the test for manslaughter is a heavy and high criminal standard. If it is thought right to charge with manslaughter, nobody seeks to take that off the statute book. It is very tragic when a doctor gives a wrong dose which leads to death, but the circumstances when that actually leads to a manslaughter case are very few and far between, and they involve gross negligence, which is quite different from what is involved in careless driving. If there were anything equivalent in driving, it would rightly produce a charge of causing death by dangerous driving. The penalties for that, as the House knows, are very high indeed—indeed, up to 14 years in aggravated circumstances.
I briefly repeat what I said on Report. I am no softie when it comes to the penalties for dangerous driving which causes death. My predecessor—my noble and learned friend Lord Mayhew—and I consistently brought cases before the Court of Appeal under our power to refer unduly lenient cases. In consequence, the level of sentence for causing death by dangerous driving was very substantially and rightly increased by the courts. It is the courts who should always decide on sentence.
Why would the provision cause injustice? The main reason is that it will fail to maintain the distinction to which my noble friend Lord Hanningfield rightly drew
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attention between dangerous driving—driving that falls far below the standard to be expected of a normal and careful driver—and careless driving, which is driving that simply falls below that standard. Such driving is often described as "mere inadvertence". I am not sure that I particularly like the word "mere", because we must all try to drive carefully. However, every noble Lord will realise, as the noble Lord, Lord Monson, rightly said, that every so often, one's attention does lapse.
I did a great many careless driving cases in my early days at the Bar. I became only too familiar with circumstances in which the driver had approached usually a T-junction or from a small side road, looked to the right, saw—according to evidence which was obviously absolutely sincere—that it was clear, looked to the left, looked to the right again, moved forward and hit the motorbike or the cyclist whom he had failed to see. The driver was not necessarily going fast. If he had been approaching in a thoroughly irresponsible and fast way, there would be a basis for a case of causing death by dangerous driving.
My second point is how does the defendant defend himself against causing death by careless driving? With causing death by dangerous driving the prosecutor will spell out very carefully the essence of the dangerous driving and why it falls far below the standard. But if the driving simply falls below, are we going to invite prosecutors, the CPS, to carve up different portions of the case and invite the jury to look at this portion rather than that? That would change our court procedures very substantially and would be likely to lead to a great deal of muddle and unfairness to the defendant, who will not know exactly the case that he has to meet and who may be put off pleading guilty in a case where there obviously was careless driving in order to contest he knows not exactly what.
Why is this being proposed? It is not as new as people think. The present Government have been in power for eight years and I recently read a report by the Director of Public Prosecutions that seemed to suggest that a lot of the issues were new during his term of office. I have great respect for him, but the issues are ones we dealt with 10, 15 or 20 years ago. There was worry then because people whose loved ones had sadly been killed felt that drivers got away far too lightly with a penalty for careless driving. There are answers to the proper way of dealing with this which I shall deal with in a moment.
The proper way is for the CPS to be, as it usually is, extremely careful about the charging level. Nobody should go and say that the CPS should just broaden charging levels if it is unjust to do so, which is what the Bill would desire. It would leave the CPS effectively charging both dangerous and careless driving in all cases. After all, there is already the power to find careless driving in a death by dangerous driving case. There would be a vast spectrum.
There are two great safeguards against miscarriages in British justice. The first is that we have an independent prosecution service which looks carefully at the right level to charge. The second is that the case
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goes before a jury which applies the standard of the ordinary man and the ordinary standards of the day and is one of the bulwarks of our liberties.
The real answer to this, even if it is not a new answer, is good liaison between the prosecuting authorities, the police, witnesses and victims and their families. It is really explanation. This is very much like the problem of deaths in hospital. People do not necessarily want vengeance. I attended two meetings, one with the Minister and Fiona Mactaggart from the Home Office and one—which was held upstairs in Committee Room 3, I think—with victims' families, who were far less vengeful than they are sometimes thought to be. They were reasonable people, and I do not believe that they wanted to see a sacrificial injustice, which can never bring back the sadly lost member of their family.
It is worth looking at who opposes this provision. One tends to say "the legal profession". The reason why we in the legal profession nearly all oppose it is that our lives are closely involved with it. The reasons are clearly stated in the pamphlet put out on the subject by Justice, the organisation of which so many lawyers and others are members. It is interesting to see that it is vigorously opposed by the Council of Circuit Judges. Circuit judges have enormous experience They try more cases of this type than anybody else. They explained the likely injustices if you ask for a prison sentence to be given for what is, as they described it, almost always in a careless driving case "mere inadvertence".
The third group is very interesting. It is the justices' clerks. Justices' clerks, by definition, hear every careless driving case, and they would almost certainly hear every one in which death was involved. Their society goes so far to say, and it will have trawled its members on the subject, that it is unable to cite any careless driving case where a custodial sentence would have been appropriate.
Let me turn to what Ministers in their very difficult task seek to do. A Home Office Minister was presented—and I have no doubt that the Minister saw the same documentation—with a small sheaf of cases which were supposed to indicate that somehow driving was of a standard which merited a custodial sentence, and that the sentence had been too lenient or the charging had been too low. I would caution very much against trying to draw things from summaries of cases as regards which one has neither seen the papers nor, as the courts have, seen and heard the witnesses and evaluated them. Perhaps arrogantly—but I hope not—I could just see on reading four or five of these, which the Minister was kind enough to show me, exactly how that view could be reached and exactly how somebody experienced in these driving cases could see that it was probably very different in fact. We have a system of a professional prosecution service and we have our independent courts. We must rely on them and not seek to go against them.
Limited statistics are available on this. We know, and the Minister has kindly told us today, that there were some 2,970 fatalities on the roads last year. There were some 320, I think, convictions for causing death
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by dangerous driving—it may have been cases; so about 10 per cent involved charges of causing death by dangerous driving. A significant proportion of those charged were convicted and appropriate penalties were given. What we do not know—and I think that the Government will wish to find this out over coming years, whatever happens—is how many cases of careless driving were involved in those 2,900 fatalities. That would be interesting. I am not sure it would answer the question, but we would at least be better informed. At the moment we have very limited statistics on those particular matters.
So, in summary, I believe that there are profound reasons of principle and justice why we should oppose a five-year or any custodial sentence. I think the noble Lord, Lord Monson, is absolutely right—and he has obviously thought about it very carefully—to oppose any custodial sentence and only to put in the other as a possibility. But the principle is that there should be no custodial sentence.
I support the increased fine of up to £2,500. I think that that is quite right. I would be quite happy to think favourably on guidance which might lead to longer periods of disqualification in an occasional case. But, I very much hope that the House will not allow custodial sentences to go through in this case and will encourage better communication with victims, witnesses and families as the right solution.
4.30 pm
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