ISSUE 5 2008 - Sweet & Maxwell

Crim. L.R. Causing Death by Driving and Other Offences 347
safety—factors that might indicate a starting point of three years in a comparable
CDDD case.
Attorney-General’s Reference (No.86 of 2006) 40 provides an example. D was the
founder and managing director of a company which manufactured kitchen work
surfaces from stone and marble. An employee was killed when using a stone-cutting
machine. He had received inadequate training and essential safety features built
into the cutting machine had been deactivated in order to avoid delays and speed
up production. D was responsible for this. He told his works manager:
‘‘If we implemented health and safety to the letter of the law it would cost too
much. The company couldn’t afford it and it would close us down. We had
to think about production first.’’
The Court of Appeal quashed a suspended sentence as unduly lenient, given that
D had deliberately disregarded the safety of his employees and had paid little
regard to health and safety issues at work. A sentence of 15 months’ immediate
imprisonment was substituted. 41
In contrast, a sentence in the region of 18 months would now be considered
appropriate for CDDD only in the absence of any significant aggravating features. In
Bailey, 42 for example, D misjudged an overtaking manoeuvre, forcing an oncoming
car to brake; but because that car’s brakes were faulty its wheels locked and the
driver lost control, suffering fatal injuries. The Court of Appeal noted that D had
not been guilty of any deliberate course of dangerous or aggressive driving, was
of previous good character, and had an impeccable driving record. He had made
a momentary and uncharacteristic error of judgement, which was not the sole
cause of the accident. A sentence of two years’ imprisonment (with three years’
disqualification) was reduced to 18 months.
Multiple deaths are likely to result in higher penalties. In Topasna 43 D, a bus
driver of previous good character, caused five deaths through a catastrophic blunder
in which he pressed hard on the accelerator instead of the brake pedal when driving
a new vehicle, and then froze helplessly as it lurched forwards. Expert evidence
identified this as a classic case of ‘‘pedal panic’’ in which a driver’s terror prevents
him from correcting his mistake. As the Court of Appeal observed, there was no
malice and no significant period of bad or irresponsible driving, nor were there
any of the usual aggravating factors of alcohol or excessive speed. Because of the
multiple deaths, however, a sentence of five years’ imprisonment (reduced from
seven-and-a-half years by virtue of his guilty plea) was upheld.
In comparison, Kite 44 (a prosecution arising from the infamous Lyme Bay
disaster in which four young canoeists died) involved persistent and wilful neglect
of basic safety procedures. D, who ran an outward bound centre and organised
40 [2006] EWCA Crim 2570; [2007] 1 Cr. App. R. (S.) 101.
41 D had eventually pleaded guilty, but only after a trial at which the jury failed to agree.
See also Davies [2006] All E.R. (D) 201 (Nov); Dean [2002] EWCA Crim 2410 and Crow
[2001] EWCA Crim 2968; [2002] 2 Cr. App. R. (S.) 49. In Crow the Court of Appeal
‘‘exceptionally’’ suspended a sentence of 15 months, even though the sentencing judge had
identified a number of aggravating features, including a high degree of recklessness and failure
to heed explicit warnings.
42 [2007] All E.R. (D) 195 (Mar).
43 [2006] EWCA Crim 1969; [2007] 1 Cr. App. R. (S.) 76.
44 [1996] 2 Cr. App. R. (S.) 295.
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