ISSUE 5 2008 - Sweet & Maxwell

Crim. L.R. Causing Death by Driving and Other Offences 345
and subsequent misconduct (for example, hit and run cases), but also various
chance factors, such as multiple deaths resulting from the accident.
The guidelines recognise that there may be ‘‘truly exceptional’’ cases in which
immediate imprisonment might not be appropriate, but do not suggest examples.
The court in Richardson ‘‘could see no advantage in identifying such exceptional
situations, which by definition will only arise very rarely’’. 32 At the other end
of the scale, the offences in question are all serious offences for the purpose of
the Criminal Justice Act 2003 s.224, which makes imprisonment or detention for
public protection under ss.225 or 226 an appropriate penalty in some such cases.
These judicial guidelines will eventually be supplanted by guidelines issued by
the SGC. A consultation document was published by the SGC as this article was
abouttogotopress. 33 The SGC’s proposals differ from those of the Court of
Appeal in that they suggest three sentencing ‘‘bands’’ in place of the four bands
currently in use. The proposed new bands correspond quite closely with bands
two, three and four from the Richardson guidelines and include ‘‘starting points’’
within those bands of three, five and eight years’ imprisonment. The first band
would however disappear, on the basis that most marginal cases which currently
squeeze into that band will in future be prosecuted as CDCD. If, however, cases
of borderline culpability are still prosecuted as CDDD, judges will be directed to
sentence as for the ‘‘most serious’’ type of CDCD offence, which means of course
that there are still four bands after all.
In respect of the new CDCD offence, 34 the SGC’s proposals closely follow
those previously floated by the Sentencing Advisory Panel. 35 If implemented, there
would again be three bands, and a starting point within each band. Controversially
(but in my submission rightly) custodial sentences would not be imposed on those
whose fault element involves nothing more than momentary but tragic inattention.
Such offenders would instead be punished by a community order in addition to the
disqualification that is mandatory in all cases. 36 More serious cases might however
merit imprisonment for up two years, with a proposed starting point of 36 weeks.
32 In Attorney-General’s Reference (No.74 of 2005) [2005] EWCA Crim 3120; [2006] 2 Cr.
App. R. (S.) 16, a suspended prison sentence was upheld by the Court of Appeal after the
trial judge had openly expressed ‘‘surprise and dismay’’ over the conviction itself. D’s taxi
struck and killed V, a drunken pedestrian who had deliberately stepped out into the road in
front of him. D’s principal fault (identified by CCTV images) was that his brake lights were
seen to operate just three quarters of a second later than experts would have expected in the
case of a fully alert driver. The Attorney-General had argued that a sentence of immediate
imprisonment was called for. D’s appeal against conviction was later dismissed in Modhvadia
[2006] EWCA Crim 1099. The court acknowledged that his driving may have been ‘‘at or
towards the lowest level of culpability for dangerous driving’’ but declined to interfere with
the jury’s verdict. It did not matter that the accident was primarily one of V’s own making.
As the Court of Appeal famously ruled in Hennigan (1971) 55 Cr. App. R. 262, D may be
guilty of causing death, even if he was only one-fifth to blame for it. See also Legrys [2007]
EWCA Crim 1605.
33 Causing Death by Driving, January 9, 2008.
34 As to sentencing for the CDCDI offence, see pp.13–14 of the SGC’s proposals.
35 Consultation on Death by Driving Offences, January 25, 2007. See also the Sentencing
Advisory Panel’s subsequent advice to the SGC, Driving Offences—Causing Death by Driving
(2008), pp.33–36.
36 One may question whether mandatory disqualification really is warranted in a case
involving a tragic error by a driver with a long and impeccable driving history, but in today’s
climate it probably cannot be opposed.
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