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Viscount Tenby: My Lords, I opposed the idea of a custodial sentence for offences of careless driving earlier in the Bill and I continue to oppose it. I do so with trepidation after the very learned words of the noble and learned Lord, Lord Lyell, who has really said everything there is to say on this subject, and the powerful speech from my noble friend Lord Monson.
Briefly, there are two strands. One is legal. If we go down that road, the consequences become dominant, rather than culpability, which overturns, everything that happens in the courts. To the list of honour expounded by the noble and learned Lord, Lord Lyell, I add the Magistrates' Association, which is also unhappy with the provision. There is a second strand: the practicality. Throughout the passage of the Bill, noble Lords have been saying how difficult it is to get a conviction before a jury on dangerous driving grounds. It is indeed difficult. How much more difficult will it be to get convictions on careless driving, where the incident is entirely accidental, although there will be some fault, such as tiredness? No jury will convict under those circumstances, because the jurors will all be thinking, "There, but for the grace of God, go I". Even on those practical grounds, it is a mistake. Also, my noble friend Lord Monson touched briefly on the fact that it will unduly raise the hopes of relatives and others affected that they will get what they regard as justice—people being put in the slammer for two or three years. In fact, that may not come to pass and great will be the anger when the defendant is acquitted.
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For all those reasons, and for the much more powerful reasons that have already been advanced this afternoon, I urge noble Lords to support the amendment.
The Earl of Mar and Kellie: My Lords, we support the amendment. I ask the Minister one question. Community service is available as a disposal only as an alternative to custody. One could argue that in order to make community-based sentences available, one must stipulate a period of imprisonment. Can the Minister clarify whether I am right?
Earl Attlee: My Lords, I support my noble friend. I was a little disappointed not to be invited to any ministerial meeting after Report. I am not sure why that was; perhaps I misheard what the Minister said on Report.
I do not even agree that a 12-month automatic disqualification for a momentary lapse is appropriate. The motorist could have been driving absolutely perfectly—faultlessly—until he made one stupid but fatal error. Can that really be right? I remind your Lordships that nowhere outside Her Majesty's Armed Forces can a momentary lapse cause a fatal accident without some underlying health and safety failing. Any motorist charged with the new offence in Clause 20 would fight like hell rather than say, "I am very sorry. I fouled up. I will plead guilty to the charge of careless driving". Why? Because of the stigma for a momentary lapse, because of the potential penalties, especially prison and the 12-month automatic ban, which could well lead to a loss of job—again, for one momentary lapse.
Also, there is possible disappointment for relatives if a jury does not convict because it feels, "There, but for the grace of God, go I"—exactly the point made by the noble Viscount, Lord Tenby. Or the jury may accept counsel's skilful argument that another party was responsible. If the motorist emerged from a side road and failed to see a motorcyclist, counsel could argue, "It was not my client's fault. The motorcycle was going too fast". The jury will struggle to convict in those circumstances in the face of a very compelling argument from counsel.
Another difficulty that I raised on Report is that an affluent motorist could be heavily fined and disqualified for 12 months, which would be a heavy penalty, but an out-of-work teenage yob may not have a valid licence in the first place, so the disqualification will not worry him. He may not have any money, so he cannot be heavily fined. The only option left is a prison sentence—I hope that the Minister will respond to the point made by the noble Earl, Lord Mar and Kellie, about a community sanction. Clause 20 is fatally flawed, will not work and is extremely inadvisable. Your Lordships may think that its target may be the classic teenage yob, but my fear is that it will also unfairly hurt a breadwinner or a housewife who is taking her children to school.
Lord Berkeley: At Report, I supported the government amendment which introduced this new
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offence of causing death by careless driving, and I still do. In speaking to this amendment, I shall speak also to my Amendment No. 23 because, while supporting the Government, there is possibly a problem with the definition of the words "careless" and "dangerous", to which many noble Lords have alluded today and at Report stage. One of the problems is that application in the legal system is at odds with what one might call common parlance. The answer might be to try to set definitions on a more objective basis.
Many people may say that they witness a dangerous driving situation on many days, but that is a long way from proving it in law where the standard of driving must fall far below what would be expected of a competent and careful driver. It should be obvious to a competent and careful driver that driving in that way would be dangerous, which is probably accepted. I was told in a Written Answer in December that, in practice, the number of convictions is fewer than 250, even though there are about 3,500 deaths on our roads each year. It seems difficult to believe that the remaining 3,000 plus deaths involve merely carelessness or that they are the fault of the victim, particularly as the Government acknowledge that speed is a factor in at least one-third of all accidents.
As other noble Lords have said, the discrepancy arises because juries, possibly unconsciously, interpret the definition as meaning far below the standard of driving that they would normally expect rather than far below the standard of a competent and careful driver, which I suggest would be rather higher. That leads to the problem of proving the offence of dangerous driving, which means that probably in legal practice the term "careless" ends up being used to catch all of those offences which fall far short of the "far below" definition, including some of the examples that noble Lords have referred to today.
When the Government proposed the new offence of causing death by careless driving, there was strong criticism of the suggestion that drivers could face up to five years in prison for a momentary lapse of attention, which I can understand. But possibly it would be resolved by having a better definition of the word "careless". The lack of it probably hampers the Government getting wider support for this effort to treat bad driving with the seriousness that it deserves.
My Amendment No. 23, which of course I will not press, would make it a duty to drive safely and might help to put a more objective bottom line under existing bad driving offences so that the standard of driving must be safe to other road users. Of course, it would not affect existing wording in the Road Traffic Act 1988, as amended, which refers to standards of driving which fall below or far below what would be expected of a careful and competent driver. That would still be retained to distinguish the words "careless" and "dangerous". I hope that the proposed amendment is helpful. I look forward to hearing my noble friend's response.
Lord Rosser: My Lords, I listened to the debate on this issue on Report, but I did not speak. I do so now simply to indicate my support for Clause 20 and the
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new offence of causing death by careless or inconsiderate driving. I also support a term of imprisonment as a maximum, but not the automatic or only penalty for the offence. I appear to be one of the few magistrates in your Lordships' House, perhaps the only one, who does.
I do not intend to take up the time of the House by repeating the arguments made in support of Clause 20 on Report, but during that debate references were made to specific and general cases where it was felt that it would be unreasonable to have the option of sending a person to prison for what was described as either a "momentary lapse of concentration" or a "minor driving transgression" which led to the unintended death of one or more individuals.
I also want to refer to a specific case and in so doing I gather that I may well incur the displeasure of the noble and learned Lord, Lord Lyell. It was a case heard in a Crown Court at the end of last year. According to the newspaper report, the driver of the car had been drinking from a bottle of vodka before he got behind the wheel of a four-litre XJ6 for the first time. The car overturned and the passenger, his best friend and an off-duty police officer, was killed. The driver lost control of the car and hit a series of railings before taking out a Gatso camera and traffic lights, and then overturning. He was cleared of causing death by dangerous driving. Despite his counsel having said that his client was filled with utter remorse for the loss of his best friend, as he left the court the defendant jumped in the air with a raised fist, saying "Yes!", before the court door could close behind him. He had been found guilty by the jury of the lesser offence of careless driving and was fined £500 and banned from driving for three years. According to the newspaper report, the judge told the defendant that this was a serious incident of careless driving and that although he had been drinking that night, it had not been possible to establish the level of alcohol in his blood. The victim had to be cut out of the wreckage and the defendant was also taken to hospital. One witness claimed at the trial that the car had been travelling at around 70 mph in a 40 mph speed zone, but the defendant maintained that he had had only one drink that evening and was driving quite normally when the accident happened. He was unable to remember exactly what took place because of his injuries.
I do not conclude my description of the report of this case by saying that the victim's family was outraged at the sentence. In fact the victim's father told the newspaper that he believed in forgiveness and peace, and that he bore no malice towards anyone. I do not know, of course, what the outcome of this case would have been if we had an offence of causing death by careless or inconsiderate driving, but the judge took the view that this was a serious incident of careless driving and I think that the option of a prison sentence should have been available in a case like this.
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