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The Response of the Royal Society for the Prevention of Accidents

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					THE ROYAL SOCIETY FOR THE PREVENTION OF ACCIDENTS
                      RoSPA




   RESPONSE TO THE CROWN PROSECUTION SERVICE

              CONSULTATION PAPER

            PROSECUTING BAD DRIVING




                22 FEBRUARY 2007
               THE ROYAL SOCIETY FOR THE PREVENTION OF ACCIDENTS
              Response to the Crown Prosecution Service Consultation Paper
                               “Prosecuting Bad Driving”




Introduction
This is the response of the Royal Society for the Prevention of Accidents (RoSPA) to
the Crown Prosecution Service consultation paper, “Prosecuting Bad Driving”. It has
been produced following consultation with RoSPA’s National Road Safety Committee
and its Road Safety Advisory Group.

RoSPA has been concerned that some drivers who have killed people by behaving in
a clearly dangerous and irresponsible manner appear to have escaped with very low
penalties (a fine and disqualification) because they have been charged only with
careless driving. Many such cases have been highlighted in the media. Even if the
media coverage is inaccurate or unfair, it nevertheless contributes to a perception
that it is possible to ‘get away’ with dangerous and lethal behaviour on the road.

Considerable changes have taken place in relation to road traffic law in recent years.
The maximum penalties for causing death by dangerous driving and causing death
by careless driving while unfit through drink or drugs have been increased from 10 to
14 years’ imprisonment. The Home Office published its Review of Road Traffic
Offences Bad Driving in 2005. Consequently, the Road Safety Act 2006 introduced
new offences of causing death by careless driving, causing death while unlawfully on
a road, and introduces alternative verdicts to a charge of manslaughter.

The Crown Prosecution Service recognises that public confidence in the way it deals
with cases of bad driving, especially cases involving a death, is essential. However, it
is not convinced that the public does have full confidence that they make the right
decisions as to the level of charge, especially where a death has occurred. There is
also public concern that the CPS undercharges too often. For example, prosecuting
for careless driving rather than causing death by dangerous driving.

However, a HM CPS Inspectorate thematic review of the prosecution of road traffic
offences involving a fatality found that in 98.5% of cases where the prosecutor
advised no criminal proceedings, the decision to do so was correct. In cases where
the prosecutor advised the police to charge an offence, the correct charge was
chosen in 92.9% of cases. The report did identify a small proportion of cases where
the decision-making was not of the requisite standard.

It is against this background that the CPS is undertaking a public consultation on
prosecuting offences of bad driving. There is a particular emphasis on cases
involving a death, but all aspects of bad driving are included. However, the
consultation does not address the new offences introduced by the Road Safety Act
2006 nor issues of sentencing. The judge or the magistrates decide the sentence.
The prosecution has no say in the level of sentence.

RoSPA welcomes the Crown Prosecution Service’s review of its policy and practices
in relation to prosecuting cases of bad driving, and thanks the CPS for the
opportunity to comment on their proposals.




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               THE ROYAL SOCIETY FOR THE PREVENTION OF ACCIDENTS
              Response to the Crown Prosecution Service Consultation Paper
                               “Prosecuting Bad Driving”



The Crown Prosecution Service
The Crown Prosecution Service is an independent prosecuting authority responsible
for deciding whether criminal offences in England and Wales should be prosecuted
and, if so, conducting the prosecution in the youth, magistrates’ or Crown Courts.

Prosecutors have a duty to ensure that the prosecution process from start to finish is
fair – both to the defence and the prosecution. All Crown Prosecutors must apply the
Code for Crown Prosecutors when considering whether to prosecute and if so, what
charge(s) to use. They must apply the full Code test, which has two stages:

The Evidential Stage
For a prosecution to go ahead there must be enough evidence for a realistic prospect
of conviction of a criminal offence. This means that a jury or bench of magistrates or
judge hearing a case alone, properly directed in accordance with the law, is more
likely than not to convict the defendant of the charge. If there is not enough evidence
for a realistic prospect of conviction, the prosecution must not go ahead, or must be
stopped. If there is enough evidence then the prosecutor must go on to consider the
second stage.

The Public Interest Stage
A prosecution will usually take place unless there are public interest factors tending
against prosecution which clearly outweigh those tending in favour. Crown
Prosecutors must balance factors for and against prosecution carefully and fairly.
Some factors may increase the need to prosecute but others may suggest that
another course of action would be better.

Where there is a choice of two charges, one more serious than the other,
prosecutors must not choose the less serious charge because it is easier to get a
conviction or because it is cheaper. The charges should reflect the seriousness and
extent of the offending, provide the court with adequate sentencing powers and
enable the case to be presented in a clear and simple way.

Where a defendant pleads guilty, Crown Prosecutors should only accept the
defendant’s plea if they think the court is able to pass a sentence that matches the
seriousness of the offending, particularly where there are aggravating features.
Crown Prosecutors must never accept a guilty plea just because it is convenient.




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                THE ROYAL SOCIETY FOR THE PREVENTION OF ACCIDENTS
               Response to the Crown Prosecution Service Consultation Paper
                                “Prosecuting Bad Driving”



RoSPA Responses to Questions in the Consultation Paper

Manslaughter
Manslaughter may be unlawful act manslaughter or gross negligence manslaughter.

For unlawful act manslaughter, it must be proved that the defendant’s act caused the death,
was a criminal offence in itself, the defendant had the mens rea appropriate to the unlawful
act which caused the death, and that the defendant’s unlawful act would be objectively
recognised as subjecting the victim to the risk of some physical harm, albeit not necessarily
serious harm. Unlawful act manslaughter should be considered when a vehicle has been
used as a weapon (but where the necessary intent for murder is absent) or to cause fright but
death results. It may be charged instead of causing death by dangerous driving only where
the evidence as to the intentions of the driver is clear.

For gross negligence manslaughter, the prosecution must show that the defendant owed the
victim a duty of care, caused the death, the driving fell far below the minimum acceptable
standard, there was an obvious and serious risk of death, and the conduct of the defendant
could, in all the circumstances, be described as ‘reprehensible’.

It has been suggested that the CPS should normally charge gross negligence manslaughter
instead of causing death by dangerous driving because manslaughter better reflects the
gravity of the offence and carries a maximum penalty of life imprisonment. However, the CPS
believes that manslaughter will rarely be appropriate in road death cases because of there
are the statutory offences of causing death by dangerous driving and causing death by
careless driving while unfit through drink or drugs. Gross negligence manslaughter is more
difficult to prove than causing death by dangerous driving. There is no need to show that
there was a very high risk of death in order to prove causing death by dangerous driving, only
that the driving caused the death. Therefore, unless the prosecutor considers that
manslaughter can be proved and that the sentence would be in excess of 14 years (the
maximum for causing death by dangerous driving) imprisonment, the normal charge would be
causing death by dangerous driving. However, there will be cases where the driving was so
bad and the risk to life so great that a prosecution for manslaughter must be brought.

Question 1
What are your views on the approach proposed and in particular where do you think
the boundaries between causing death by dangerous driving and gross negligence
manslaughter may lie?

RoSPA Response
RoSPA believes that there are cases where a person has been killed by a driver
whose driving was so bad, and the likelihood of causing death or serious injury so
great that the driver should be charged with manslaughter rather than causing death
by dangerous driving. Now that it will be possible to have causing death by
dangerous driving as an alternative verdict, there is much less risk of an offender
getting off completely if manslaughter cannot be proved.

RoSPA also believes that manslaughter should not be used automatically instead of
causing death by dangerous driving for two reasons. Firstly, we accept that the
prosecutor still needs to be confident that manslaughter could be proved in order to
bring a charge of manslaughter. Secondly, if manslaughter is routinely used it would
not be possible to distinguish cases where the driver’s behaviour was excessively
reprehensible, including ignoring an obvious and great risk of death.

Manslaughter should, in our view, continue to be reserved for the worst cases.




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                 THE ROYAL SOCIETY FOR THE PREVENTION OF ACCIDENTS
                Response to the Crown Prosecution Service Consultation Paper
                                 “Prosecuting Bad Driving”



Dangerous and Careless Driving
For these charges, the prosecution does not have to prove that the death was foreseeable,
only that the vehicle was driven dangerously or carelessly and that the driving was the cause
of the death. The essential difference between the offences is the standard of driving –
dangerous or careless? To be dangerous, the driving must fall far below the required
standard. To be careless, it must merely fall below the required standard. Whether the driver
genuinely believed his or her driving was not dangerous is irrelevant.

Dangerous driving
Dangerous driving includes situations where the driver has taken a deliberate decision to
drive in a particular way but also situations where a driver has made a mistake or an error of
judgement that was so substantial that it caused the driving to be dangerous even if only for a
short time. The circumstances of every case are unique but decided cases provide some
guidance to prosecutors. The current CPS charging standard lists the following examples of
driving that may, depending on the circumstances of the case, be dangerous driving:
• racing or competitive driving
• speed, which is highly inappropriate for the prevailing road or traffic conditions
• aggressive driving, such as sudden lane changes, cutting into a line of vehicles or driving
     much too close to the vehicle in front
• disregard of traffic lights and other road signs, which, on an objective analysis, would
     appear to be deliberate
• disregard of warnings from fellow passengers
• overtaking which could not have been carried out safely
• driving a vehicle with a load which presents a danger to other road users
• the driver is suffering from impaired ability such as an arm or leg in plaster, or impaired
     eyesight
• driving when too tired to stay awake
• driving with actual knowledge of a dangerous defect on a vehicle
• using a mobile phone whether as a phone or to compose or read text messages
• callous behaviour at the time such as throwing a victim off the vehicle or failing to stop
• causing death (and presumably serious injury) in the course of an escape or an attempt
     to avoid detection.

Careless/inconsiderate driving
People can drive carelessly or inconsiderately with tragic consequences. Under the law as it
stands, the consequence is irrelevant to the level of charge, except as it helps the prosecutor
assess how far the driving fell below the required standard. The fact that the driving caused
someone’s death does not make the driving dangerous. This has attracted considerable
public criticism. The Road Safety Act 2006 introduces a new offence of causing death by
careless driving with a maximum penalty of 5 years’ imprisonment, and if the prosecutor
decides that the driving was careless and caused a death, then the appropriate charge will be
causing death by careless driving. The current CPS charging standard lists examples of
driving which may amount to driving without due care and attention, depending on the
circumstances:
• overtaking on the inside
• driving inappropriately close to another vehicle
• driving through a red light
• emerging from a side road into the path of another vehicle
• using a hand held mobile telephone while the vehicle is moving
• tuning a car radio
• reading a newspaper/map
• selecting and lighting a cigarette/cigar/pipe
• talking to and looking at a passenger.




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                 THE ROYAL SOCIETY FOR THE PREVENTION OF ACCIDENTS
                Response to the Crown Prosecution Service Consultation Paper
                                 “Prosecuting Bad Driving”

Driving without reasonable consideration is when a vehicle is driven on a road or other public
place as a result of which other persons are inconvenienced. The prosecution must prove
that a road user was inconvenienced. The nature of the offence is usually driving in a selfish,
aggressive or impatient manner:
• flashing of lights to force other drivers in front to give way
• misuse of any lane to avoid queuing or gain some other advantage over other drivers
• unnecessarily remaining in an overtaking lane
• unnecessarily slow driving or braking without good cause
• driving with un-dipped headlights which dazzle oncoming drivers
• driving through a puddle causing pedestrians to be splashed
• driving a bus in such a way as to scare the passengers.

General factors to take into consideration
The above examples are merely indicative of what can amount to dangerous, careless or
inconsiderate driving. It is always necessary to consider whether the particular circumstances
in which the driving took place warrant a charge of careless or dangerous driving. In many
prosecutions the decision is clear, but there are a significant proportion of cases that fall into
that area where the two offences meet.

Behaviour which may not be criminal in certain conditions may merit proceedings in other
conditions. For example, a safe lane change in slow moving traffic may become unsafe on a
motorway where speeds are faster. In some circumstances, using a hand held mobile phone
while travelling in the outside lane of a motorway at a high speed may be considered to be
dangerous rather than careless. What society deems acceptable or ‘careless’ may change
over the years and come to be considered as ‘dangerous’. As a result, some of the examples
given may have moved across from careless to dangerous driving. Other scenarios may need
to be considered: using a mobile phone; eating, drinking or applying make-up while driving;
driving at inappropriate speed when visibility is poor (low sun; fog; misted/iced windscreen;).

Some may consider that providing examples is unhelpful because prosecutors may just follow
the examples when making decisions rather than considering each case on its own merits.
On the other hand, examples based upon decided cases may help to ensure that
prosecutors’ decisions are consistent and in line with current law.

Question 2
Does the guidance for prosecutors (including the examples cited for each offence)
need amending? If so, please say why.

RoSPA Response
This is a very difficult issue. RoSPA agrees that each case must be considered
according to its individual circumstances. This means that sometimes the same
driving behaviour may fall into the dangerous or the careless category. RoSPA
agrees that the examples listed as dangerous driving are appropriate, particularly as
they all indicate that the driver know, or should have known because it was obvious,
that the driving was dangerous.

However, many of the examples listed as careless driving, could easily be dangerous
driving depending on the circumstances in which they occur. For example, driving
inappropriately close to another vehicle could in some circumstances (on higher
speed roads, in the wet or in poor visibility) be dangerous. Reading a map is likely to
be considerably more dangerous if driving at 60 mph on a single carriageway rural
road, than if crawling along in a traffic jam.

In cases that “fall into that area where the two offences meet” the circumstances of
the offence are crucial in deciding the charge. The CPS might consider producing
guidance for prosecutors on how to decide whether the circumstances merit a
dangerous rather than careless driving charge.


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                 THE ROYAL SOCIETY FOR THE PREVENTION OF ACCIDENTS
                Response to the Crown Prosecution Service Consultation Paper
                                 “Prosecuting Bad Driving”



Driving through a red light is listed as careless; we suggest this better belongs in the
dangerous driving category.

The list of examples could, of course, be endless. However, RoSPA suggests that
the CPS consider adding “using in-car devices, such as a SatNav inappropriately”.
For example, a driver entering instructions into the device while actually driving. Also,
“watching a film while driving”, such as a driver watching a DVD – amazingly, this
does happen.


Momentary inattention and single misjudgements
In the past cases involving momentary inattention or a single misjudgement may have been
prosecuted as careless driving. However, in a case where a driver caused the death of two
pedestrians when he mistakenly pressed the accelerator rather than the brake, the court held
that the offence of dangerous driving was intended to cover cases in which the driver had
made a mistake with tragic consequences; the fact the offence was a mistake went only to
mitigation, not guilt.

One of the most common situations is a vehicle emerging from a minor road onto a main road
collides with a vehicle on the main road. This is particularly dangerous for cyclists and
motorcyclists on the major road. Where the vehicle emerges without making any attempt to
stop or give way, perhaps at speed, dangerous driving is likely to be considered; the driver
took a deliberate risk that was objectively dangerous. But, where the driver stops, or gives
way, checks for traffic and then pulls out, failing to see an oncoming vehicle or misjudging its
speed, the driver will often be prosecuted for careless driving, even if a death occurred.

Some argue that by pulling out onto a main road and causing a collision even a driver who
stopped, kept a lookout and pulled out at an appropriate speed but into the path of an
oncoming vehicle, has driven dangerously. The contrary argument is that the vehicle was not
driven in a dangerous manner, but the driver made a single misjudgement. The driver
stopped or gave way, so was obeying the road signs, kept a lookout for traffic on the main
road and did not emerge at an inappropriate speed. The driver did not take a deliberate risk,
but genuinely thought it was safe to undertake the manoeuvre. The offence of dangerous
driving when it was proposed in 1988 was not intended to apply to a driver who made a single
mistake of the type that any driver may from time to time make.

These are the two extremes. In between there will be degrees. There will be cases where
there is evidence that the vehicle on the main road was exceeding the speed limit, perhaps to
a considerable degree. There will also be cases where a driver emerging from a minor road
may have stopped but took a chance to merge into traffic when there was a clear risk of a
collision occurring as a result.

Question 3
What are your views on momentary inattention and single misjudgements? Where do
you think the boundaries are between dangerous and careless driving?

RoSPA Response
The example cited is a common cause of accidents in which motorcyclists and pedal
cyclists are killed and injured, because a driver failed to see them and pulled out into
their path. An In-depth study of motorcycling accidents found that this type of crash
accounted for about 38% of motorcycle accidents, and were usually the fault of the
driver. In about two-thirds of these types of crashes, where the rider was not to blame,
the driver failed to see a rider who was in clear view (and was often seen by other road
users). In about 12% of these cases, the driver failed to see the motorcyclist even
though s/he was wearing high visibility garments or using daytime running lights.



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                 THE ROYAL SOCIETY FOR THE PREVENTION OF ACCIDENTS
                Response to the Crown Prosecution Service Consultation Paper
                                 “Prosecuting Bad Driving”



Given the prevalence, and the frequent serious or tragic consequences for the innocent
victim, RoSPA believes that the CPS should regard this type of accident as dangerous,
rather than, careless driving. This is a good example of where the law, the CPS and the
courts could set a benchmark that would influence the attitudes and behaviour of
drivers.

However, we agree that if the evidence shows that the behaviour of the rider/driver on
the main road contributed to the crash (for example, they were exceeding the speed
limit) and the driver of the vehicle in the side road clearly made genuine efforts to check
it was safe to emerge, this should be considered when deciding whether the charge
should be careless or dangerous.


Speed resulting in a collision – speeding, careless or dangerous?
The offence of driving at speed dangerous to the public was abolished in 1977. This is not to
say that excessive speed could not amount to dangerous driving, but since a separate
offence of exceeding the speed limit exists, the question remains, can speeding become
dangerous driving per se? A series of Scottish cases and the recent English case of DPP v
Milton provide some guidance. In all the cases the defendant drove at a speed in excess of
110 mph. The weather and visibility was good and the vehicles in good condition. The current
position appears to be that while excessive speed alone cannot be a basis for convicting a
driver of dangerous driving, where the speed was grossly excessive on a stretch of road with
potential hazards then excessive speed could amount to dangerous driving.

However, road traffic collisions with serious consequences often occur where there is
evidence that the vehicle causing the collision was travelling above the speed limit, but not
necessarily substantially above the limit. Depending on the circumstances of the case, the
prosecutor may have a choice of prosecuting for exceeding the speed limit, careless driving
or dangerous driving (or causing death by dangerous driving). The decision may not be
straightforward. The law is clear that the appropriate charge will depend on the particular
circumstances of the case. The prosecutor will have to decide whether those circumstances
show that the defendant departed from the standard expected and, if so, how far.

Examples of things that a prosecutor would have to take into account are the road itself (e.g.
sharp or blind bends, hidden summits) the amount of traffic; numbers of pedestrians; traffic
signals and crossings; parked vehicles; buses and taxis picking up and dropping off; the
likelihood that schoolchildren will be in the vicinity; visibility of other road users; lighting
conditions; weather conditions (e.g. fog, heavy rain, snow, ice). This is not an exhaustive list;
it is merely intended to indicate common factors found in these cases. There will not always
be agreement on the charge chosen by the prosecutor, especially in cases where a death
resulted. Nevertheless, this is one area where public attitudes may have changed so that
what was once seen as careless or even faultless may now be considered to be dangerous.

Question 4
Please provide any views, comments and examples of cases involving excessive
speed where the decision as to whether the driving was careless or dangerous was not
clear.

RoSPA Response
Excessive speed contributes to 28% of fatal collisions, 18% of crashes resulting in a
serious injury and 12% of all injury collisions. This means that around 900 people are
killed each year on Britain’s roads because drivers and riders travel too fast, and
over 6,000 are seriously injured.




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                 THE ROYAL SOCIETY FOR THE PREVENTION OF ACCIDENTS
                Response to the Crown Prosecution Service Consultation Paper
                                 “Prosecuting Bad Driving”



The CPS state that “where the speed was grossly excessive on a stretch of road with
potential hazards then excessive speed could amount to dangerous driving”. In fact,
all roads have potential hazards, even if they look clear and traffic or pedestrian free.
At these levels of speed, reaction times and stopping distances are massively
creased, as are impact speeds, therefore the argument that it was not dangerous to
drive at excessive speed because the road was clear is not valid – unexpected things
happen on the road, drivers do not always spot hazards.

The CPS is also right to recognize that exceeding the speed limits by small amounts
can also be dangerous. Approximately two-thirds of all crashes in which people are
killed or injured happen on roads with a speed limit of 30 mph or less. At 35 mph a
driver is twice as likely to kill someone as they are at 30 mph. Even in good
conditions, the difference in stopping distance between 30 mph and 35 mph is an
extra 21 feet, more than 2 car lengths.


Employer and corporate liability
Dangerous or illegal practices or negligence may have caused the death. In the case of road
traffic cases it will usually be as a result of a vehicle being in a dangerous condition. An
employer may be prosecuted along with the driver for causing death by dangerous driving
where it can be shown he knew that the vehicle was in an obviously dangerous condition.
Greater difficulties arise where the employee driving the vehicle works for a larger company
with a longer chain of command. The normal practices of gross negligence manslaughter
must be followed to determine liability. A clear line of causation must be shown from the
directing or controlling mind through to the unlawful act or omission. It may be hard to prove
that a director of a company has detailed knowledge of working practices on the ‘shop floor’.
But, the CPS guidance cites the following examples of where corporate or individual officer
responsibility may arise:
• an operator has no regular system of preventative checks, showing indifference to an
     obvious risk of injury;
• a company director knows about a defect in the vehicle and allows it to go out before the
     defect has been repaired, showing an appreciation of the risk but a determination to run
     that risk;
• a substandard repair is done to a defective part;
• an operator fails to ensure that drivers of vehicles work proper hours and have
     appropriate rest periods.

Some have suggested the following might be added to the list of examples:
• operator/director fails to conduct required medical checks on employees;
• operator/director employs a driver not qualified or trained to drive the class of vehicle
   being driven.

Question 5
Please provide any views and comments on prosecution practice in the area of
employer/corporate liability.

RoSPA Response
RoSPA strongly supports the inclusion of employer/corporate liability. Driving is the
most dangerous work activity that most people do. Research indicates that about 20
people are killed and 220 seriously injured every week in crashes involving someone
who was driving, riding or otherwise using the road for work. HSE Guidelines,
“Driving at Work”, state that “health and safety law applies to on-the-road work
activities as to all work activities and the risks should be effectively managed within a
health and safety system”.



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                THE ROYAL SOCIETY FOR THE PREVENTION OF ACCIDENTS
               Response to the Crown Prosecution Service Consultation Paper
                                “Prosecuting Bad Driving”



Therefore, RoSPA agrees that employers should be prosecuted along with the driver
for causing death by dangerous driving where it can be shown that they have failed
to properly assess and manage the risks created by their work activities on the road.

However, the CPS guidance gives the impression that the main (or only)
consideration is whether the employer failed to ensure that the vehicle involved was
in a safe condition. While this is important, it is only one part of the employer’s duty to
manage the risks created by their employee’s use of the road, and arguably not the
most important part.

Employers must conduct suitable risk assessments and put in place all ‘reasonably
practicable’ measures to ensure that work related journeys are safe, staff are fit and
are competent to drive safely and that the vehicles used are fit for purpose and in a
safe condition.

Therefore, RoSPA suggests that the following examples are added to the CPS list:

•   operator/director fails to ensure that employees are licensed, qualified and
    trained to drive the class of vehicle being driven and the type and amount of
    driving being undertaken
•   operator/director fails to ensure that employees are fit to drive, including
    measures to avoid impairment by alcohol, drugs, medicines, fatigue, illness,
    stress, etc
•   operator/director fails to ensure that journeys and schedules are properly planned
    and safe
•   operator/director fails to ensure that employees do not use mobile phones, or
    other devices, while driving
•   operator/director fails to ensure that employees are provided with a vehicle that is
    fit for purpose.

RoSPA also suggests that the CPS guidance notes that the issue of
employer/corporate liability is not confined to drivers of HGVs, bus and coaches, but
to anyone who was using the road for a work purpose (excluding commuting). This
includes, for example, company car drivers, an employee driving to a meeting,
motorcycle or cycle courier, pizza delivery rider, van delivery driver, driving instructor
and any at-work pedestrian, such as a postman or road worker.

Further information about these issues is available at www.rospa.com/morr and
www.rospa.com/roadsafety/employers.




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                 THE ROYAL SOCIETY FOR THE PREVENTION OF ACCIDENTS
                Response to the Crown Prosecution Service Consultation Paper
                                 “Prosecuting Bad Driving”



Public Interest Test
Where there is sufficient evidence to prosecute, the prosecutor has to decide whether it is in
the public interest. The Code for Crown Prosecutors sets out a list of factors for and against
prosecution. It will normally be in the public interest to prosecute offences of causing death by
dangerous driving, dangerous driving and causing death by careless driving while under the
influence of drink or drugs. Conversely, not all careless driving cases require a prosecution.
For example, where the collision is of a minor nature (in a car park or in a traffic queue).

The basic principle is the greater the blameworthiness the more likely a prosecution is in the
public interest. When deciding if it is in the public interest to prosecute careless driving ‘what
matters is the extent of the error, not the damage’. It may be that this confuses the public
interest test with the evidential test and that, even if culpability is minor, if there is serious
damage or harm, the public interest is more likely to require a prosecution.

Nearest and dearest policy
There is one situation where the CPS policy departs from the above - where the deceased
was in a close personal or family relationship with the accused. The rationale is based on the
principle that the driver has suffered such enormous personal loss that it would be oppressive
and insensitive to prosecute him or her for the offence that led to the death. The policy is not
absolute, but depends on the nature and circumstances of the offence:
• in cases of causing death by dangerous driving, if other road users were imperilled or the
    driver is a continuing danger to other road users then a prosecution should proceed.
    Otherwise, ‘careful consideration needs to be given as to whether there is a need for any
    prosecution at all.’
• in cases of causing death by careless driving while under the influence of drugs or
    alcohol, the proper course will be to prosecute for careless driving and the appropriate
    drink driving offence. This will mark the public interest need for driving offences involving
    alcohol to be properly punished whilst acknowledging the need to deal with the culpable
    driver’s bereavement sensitively.
• where death occurs as a result of careless driving, if there is no continuing risk to road
    users, the proper course is not to prosecute.

The CPS considers that changing public attitudes to bad driving and the new offence of
causing death by careless driving require this policy to be revised. While there will be
exceptional cases where prosecution would be oppressive, the CPS believe that prosecutions
should go ahead as normal and it should be left to the court to consider the personal
circumstances of the driver when deciding on sentence. In cases of careless driving there
should no longer be a presumption against prosecution, but that the fact that the deceased is
‘nearest and dearest’ should remain a factor for prosecutors to consider, so that there is some
allowance for cases where prosecution for what may be a very minor lapse on the part of the
driver would be oppressive or inhuman. Clear guidance would be required to ensure
consistency of approach.

Question 6
What do you think of the proposed revision of the CPS ‘nearest and dearest’ policy?

RoSPA Response
RoSPA agrees that the CPS’ Nearest and Dearest policy should be revised so that there is
no longer a presumption against prosecution. It is right for the courts to decide how to take
into account the personal loss suffered by the defendant. We also agree that there will be
cases where careless driving has resulted in the death of a loved one or family member due
to a minor lapse by a driver and prosecution would not be in the public interest.




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                THE ROYAL SOCIETY FOR THE PREVENTION OF ACCIDENTS
               Response to the Crown Prosecution Service Consultation Paper
                                “Prosecuting Bad Driving”



Victim and Witness Care

Question 7
Please provide any views and comments on the following:
a. Where do you think the CPS currently falls down in terms of victim and witness care
on road traffic cases, in particular those involving a death?;
b. What steps in your view can be taken to rectify these failures and improve witness
care, in particular offering an enhanced service to bereaved families?

RoSPA Response
This is not within RoSPA’s area of experience or expertise, and so we are not able to
offer any comments.


Coroner’s Proceedings
There is no formal requirement for the case prosecutor to attend an inquest. The HM CPS
Inspectorate 2002 Thematic Report recognised that there would not always be a need to do
so. However the report did note that in finely balanced cases it would be of benefit to the
prosecutor to see the evidence given by key witnesses in order to assist the decision-making
process.

Question 8
Do you think it would be beneficial for the case prosecutor to attend the inquest? If so,
why?

RoSPA Response
It would makes sense for the prosecutor to attend inquests where seeing the
evidence given by key witnesses would help them to decide whether a prosecution is
appropriate and if so what charge(s) to apply.

Presentation in Court
There are obvious benefits to the prosecutor in charge of a case where a death has occurred
prosecuting the case in court. The HM CPS Inspectorate 2002 Report considered this was
the ideal, but it did not recommend that it be standard practice.

Question 9
Should case prosecutors regularly attend court and prosecute road traffic cases where
a death has occurred?

RoSPA Response
RoSPA believes that the prosecutor in charge of a case where a death has occurred
should prosecute the case in court.



RoSPA thanks the Crown Prosecution Service for the opportunity to comment on the
proposals. We have no objection to our response being reproduced or attributed.

Road Safety Department
RoSPA
Edgbaston Park
353 Bristol Road
Birmingham B5 7ST
www.rospa.com



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