Policy for prosecuting cases of bad driving - Crown Prosecution ...

Policy for ProsecutingCases of Bad Driving

Policy for Prosecuting Cases of Bad DrivingContentsIntroduction 2What is bad driving? 4The role of the Crown Prosecution Service 10The Code for Crown Prosecutors 11Prosecuting cases of bad driving 15Victim and witness care 28Sentencing 33Conclusion 35Annex A – Support organisations 361

Policy for Prosecuting Cases of Bad DrivingPUBLIC STATEMENTIntroduction1.1 This document explains the way in which we, the CrownProsecution Service (CPS), deal with cases involving baddriving. It supplements and is subordinate to the Code forCrown Prosecutors.1.2 Bad driving resulting in death or injury has devastatingconsequences for victims and their families and friends,and it is important that justice is seen to be done in caseswhere this has happened.1.3 The CPS is committed to ensuring that in such cases ourprosecutors reach the correct charging decisions, so thatthe right person is prosecuted for the right offence in theright court.1.4 For this to be achieved these decisions must be in line withcurrent law, but also, where it is just and lawful to do so,they should reflect changing public attitudes to bad drivingand the desire of victims, or their families, friends and thepublic, to see that justice is done in these cases.1.5 In 2002 Her Majesty’s CPS Inspectorate (HMCPSI)undertook a review of the way in which the CPS washandling road traffic cases involving fatalities. That reviewfound that in the vast majority of cases under review thecorrect charge was chosen by the CPS 1 .2

Policy for Prosecuting Cases of Bad Driving1.6 In 2006 the Director of Public Prosecutions (DPP)acknowledged that, notwithstanding the findings of theHMCPSI report, there were occasions where victims or theirfamilies and friends did not agree with the decisions madeby the CPS or found them hard to accept or understand.1.7 Following a public consultation carried out by the HomeOffice in 2005, Parliament passed the Road Safety Act2006, which will introduce new offences of causing deathby careless driving and causing death while drivingunlawfully on a road 2 .1.8 The DPP decided that the time was right for the CPS toreview its prosecution policies and procedures for dealingwith cases of bad driving, and that this review should beinformed by a wide public consultation, which waslaunched in December 2006 3 .1.9 The purpose of the consultation was to open up the CPSpractices and procedures and to explain how CPSprosecutors reach their decisions in these cases, becausethe CPS wants the public to have confidence in thedecisions that we make.1A Report on the Thematic Review of the Advice Conduct and Prosecution by theCrown Prosecution Service of Road Traffic Offences involving Fatalities in Englandand Wales – available from the HMCPSI website (www.hmcpsi.gov.uk)2Sections 20 and 21 of the Road Safety Act 2006. These sections are not in force atthe time of writing.3Prosecuting Bad Driving – A Consultation on CPS Policy and Practice3

Policy for Prosecuting Cases of Bad Driving1.10 There were 139 responses to the consultation, showinghow deeply people care about the consequences of baddriving and how its consequences, especially where a lovedone has been killed or seriously injured, causeunimaginable distress.1.11 The issues raised by the consultation attracted a widerange of views, all of which have been taken fully intoaccount in the preparation of this policy. The content ofthe policy, however, is the responsibility of the CPS alone.1.12 The CPS is not the only agency that deals with casesinvolving bad driving. The police, the criminal courts,magistrates and judges all have roles to play in promotinggreater confidence in the criminal justice system. We shallwork with our partner agencies to ensure that justice isdone in these cases.What is Bad Driving?2.1 There is no statutory definition of bad driving, but there area number of general offences that directly concern or relateto the way in which a vehicle is driven. The elements ofeach offence and levels of punishment are set out below.Murder2.2 Where there is evidence that a motorist killed anotherperson intending to kill or cause grievous bodily harm, heor she will be liable to prosecution for murder.4

Policy for Prosecuting Cases of Bad Driving2.3 The offence is triable only on indictment 4 and carries amandatory sentence of life imprisonment.Manslaughter2.4 Where a killing is involuntary, that is to say, where it wasnot intended, it may amount to manslaughter.2.5 Manslaughter is triable only on indictment and carries amaximum sentence of life imprisonment.2.6 Disqualification from driving for a minimum period of 2years followed by an extended retest is mandatory.Causing death by dangerous driving2.7 Section 1 of the Road Traffic Act 1988 provides that theoffence is committed when the driving was the cause of adeath of another and it was dangerous within themeaning of Section 2A of the Road Traffic Act 1988.2.8 The offence is triable only on indictment and carries amaximum sentence of 14 years’ imprisonment.2.9 Disqualification from driving for a minimum period of 2years followed by an extended retest is mandatory.4Trial on indictment means trial at the Crown Court before a judge and jury.5

Policy for Prosecuting Cases of Bad DrivingCausing death by careless driving while under theinfluence of drink or drugs2.10 Section 3A of the Road Traffic Act 1988 provides that thisoffence is committed when the driving was without duecare and attention or without reasonable consideration forother road users; the driving has caused the death ofanother person and the driver is either unfit through theconsumption of drink or drugs, or the alcoholconcentration in his body is over the prescribed limit, orthere has been a failure to provide a specimen ofbreath/blood/urine in pursuance of the law.2.11 The offence is triable only on indictment and carries amaximum penalty of 14 years’ imprisonment.2.12 Disqualification from driving for a minimum period of 2years followed by an extended retest is mandatory.Causing death by careless or inconsiderate driving 52.13 Section 2B of the Road Traffic Act 1988 6 provides that thisoffence is committed when the driving is without due careand attention, or without reasonable consideration forother road users; and the driving has caused the death ofanother person.2.14 The offence can be tried either in a magistrates’ court or inthe Crown Court. On indictment it carries a maximumsentence of 5 years’ imprisonment.5The legislation creating this offence is not in force at the time of writing.6Inserted by Section 20 of the Road Safety Act 2006.6

Policy for Prosecuting Cases of Bad Driving2.15 Disqualification from driving for a minimum of 12 monthsis mandatory.Causing death by driving unlicensed, uninsured ordisqualified 72.16 Section 3ZB of the Road Traffic Act 1988 8 provides thatthis offence is committed when a driver causes the deathof another person by driving on a road when unlicensed,uninsured or disqualified from holding or obtaining adriving licence.2.17 The offence can be tried either in a magistrates’ court or inthe Crown Court. On indictment it carries a maximumsentence of 2 years’ imprisonment.2.18 Disqualification from driving for a minimum of 12 monthsis mandatory.Dangerous driving2.19 Section 2A of the Road Traffic Act 1988 provides that aperson is to be regarded as driving dangerously if the wayhe or she drives falls far below what would be expected ofa competent and careful driver and it would be obvious toa competent and careful driver that driving in that waywould be dangerous. A person is also to be regarded asdriving dangerously if it would be obvious to a competentand careful driver that driving the vehicle in its currentstate would be dangerous.7The legislation creating this offence is not in force at the time of writing.8Inserted by Section 21 of the Road Safety Act 2006.7

Policy for Prosecuting Cases of Bad Driving2.20 The offence can be tried either in a magistrates’ court or inthe Crown Court. On indictment it carries a maximumsentence of 2 years’ imprisonment.2.21 Disqualification from driving for a minimum period of 12months followed by an extended retest is mandatory.Careless or inconsiderate driving2.22 Careless driving is an offence contrary to Section 3 of theRoad Traffic Act 1988. S3ZA of that Act 9 defines carelessdriving as driving that falls below what would be expectedof a competent and careful driver.2.23 Inconsiderate driving requires the prosecution to prove inaddition that other persons were inconvenienced by thedriving.2.24 The offence can be tried only in a magistrates’ court.2.25 The offence is not imprisonable. Disqualification isdiscretionary.Wanton and furious driving2.26 Wanton and furious driving is an old offence – predatingthe invention of the internal combustion engine –contained in Section 35 of the Offences Against the PersonAct 1861. The prosecution must prove that the defendantdrove dangerously (careless driving is insufficient) andcaused some injury to another person.9Inserted by Section 30 of the Road Safety Act 2006.8

Policy for Prosecuting Cases of Bad Driving2.27 The offence is not limited to a road or other public placeand is therefore useful for prosecuting cases where thebad driving occurred off-road.2.28 The offence is triable only on indictment and carries amaximum sentence of 2 years' imprisonment.2.29 Penalty points and discretionary disqualification are nowavailable to courts 10 .Aggravated Vehicle Taking2.30 This offence was introduced in 1992 in response to publicconcern about what had become known as ‘joyriding’.Before 1992, it was an offence under Section 12 of theTheft Act 1968 to take a vehicle without the consent ofthe owner, or anyone else able to give permission onbehalf of the owner. The offence also covered those notactually responsible for taking the vehicle, but who drovethe vehicle, or allowed themselves to be carried in it afterit was taken, knowing that it had been taken withoutpermission. It is still an offence.2.31 However, the original offence did not take into accountany bad driving of the vehicle after it had been unlawfullytaken, or the consequences that could follow from thevehicle being driven. The aggravated offence wasintroduced to deal with this.10Section 28 of the Road Safety Act 2006.9

Policy for Prosecuting Cases of Bad Driving2.32 It can be found in Section 12A of the Theft Act 1968 andis committed if, after the vehicle is unlawfully taken butbefore it is recovered, any one or more of the followingoccurs:• the vehicle is driven dangerously on a road or otherpublic place;• owing to the driving of the vehicle, a collision occurs bywhich injury is caused to any person;• owing to the driving of the vehicle, a collision occurs bywhich damage is caused to any property, other thanthe vehicle;• damage is caused to the vehicle.2.33 The offence can be tried in the magistrates’ court or in theCrown Court. At the Crown Court the maximum sentenceis normally 2 years’ imprisonment, except where anycollision has caused the death of the victim, in which casethe maximum sentence is 14 years’ imprisonment.2.34 Disqualification from driving for a minimum period of 12months is obligatory.The role of the CPS3.1 It is the responsibility of the police to investigateallegations of crime and to gather evidence about whatoccurred.3.2 It is the responsibility of the CPS to decide charges in all10

Policy for Prosecuting Cases of Bad Drivingbut minor and routine cases and our prosecutors will workwith the police to ensure that bad driving cases areidentified as early as possible so that the correct chargingdecision can be made.The Code for Crown Prosecutors4.1 The way in which we reach our decisions about whether toprosecute is set out in the Code for Crown Prosecutors.This document is issued by the DPP. It is updated regularlyso that it reflects current practice. The Code is a publicdocument. Copies are available from CPS CommunicationsBranch, 50 Ludgate Hill, London EC4M 7EX or from localCPS offices, or from our website.http://www.cps.gov.uk/victims_witnesses/code.html4.2 We review the cases that are referred to us in line with theFull Code Test that is set out in the Code. The test has twostages 11 . The first stage is consideration of the evidenceand the second concerns the public interest.The first stage – the evidential stage4.3 Crown Prosecutors must first be satisfied that there isenough evidence to provide a “realistic prospect of11At an early stage where not all of the evidence has been obtained but a decision tocharge cannot be delayed because it is not appropriate to bail the defendant,prosecutors may apply what is known as the Threshold Test. However, once all theevidence has been received the final decision must be made according to the FullCode Test.11

Policy for Prosecuting Cases of Bad Drivingconviction against each defendant on each charge”. Thismeans that a jury or bench of magistrates, properlydirected in accordance with the law, is more likely than notto convict the defendant of the charge alleged.4.4 The evidential standard that we apply is therefore differentfrom the one that the court applies before it may convict adefendant. This is why not all cases that are prosecutedresult in a conviction. Just because a case may pass theevidential stage in the Full Code Test does not necessarilymean that the case will result in a conviction. It is for thecourt to decide whether a defendant is guilty based uponthe evidence that it hears or reads.4.5 If the case does not pass the evidential stage based on thestrength of the evidence, it must not go ahead, no matterhow important or serious it may be. This is because wehave reached the view that the court is not likely to convictthe defendant of the crime alleged on the evidence wehave. In such cases, it is wrong to prosecute the defendantand it is wrong to raise the expectations of victims andwitnesses when we do not believe that a conviction islikely.The second stage – the public interest stage4.6 If the case does pass the evidential stage, we must thendecide if a prosecution is needed in the public interest. Aprosecution will usually take place “unless there are publicinterest factors tending against prosecution which clearlyoutweigh those tending in favour”.12

Policy for Prosecuting Cases of Bad Driving4.7 We regard all bad driving as serious, particularly where ithas led directly to the death or serious injury of anotherperson. As a result, the public interest in cases of baddriving, where death or serious injury has occurred, willalmost always be in favour of a prosecution.4.8 However, there will always be cases where we decide thatit is not in the public interest to prosecute.4.9 Although we prosecute cases on behalf of the public atlarge and not just in the interests of any particularindividual, we always think very carefully about theinterests of the victim and their family when we decidewhere the public interest lies 12 .4.10 It is not always easy to strike this balance. The views of thevictim and their family are important, but they cannot bethe final word on the subject of a prosecution.Nearest and Dearest Cases4.11 In the past, the CPS adopted a different approach in caseswhere a death has occurred and the deceased was in aclose personal or family relationship with the driver. It wasbased on the principle that the driver has suffered suchenormous personal loss that it would be oppressive andinsensitive to prosecute the driver for the bad drivingoffence that led to the death.12The Code for Crown Prosecutors Paras 5.12 & 5.13.13

Policy for Prosecuting Cases of Bad Driving4.12 While we must always be able to exercise discretion incases where prosecution would be oppressive orinsensitive, we believe that the public interest will normallydemand that a prosecution takes place in cases of causingdeath by dangerous driving or causing death by carelessdriving when under the influence of drink or drugs orfailing to provide a specimen, and that is now our policy inthese cases.4.13 The Road Safety Act 2006 13 introduces new offences ofcausing death by careless driving and causing death bydriving whilst uninsured, disqualified or unlicensed. Inthese cases we may exercise our discretion not toprosecute in cases where the degree of culpability on thepart of the driver is low, or where the circumstances of thecase would make it unjust to prosecute.4.14 In such cases, we may consider whether, for example, thestandard of driving fell below that required by the law onlyas a result of a true error of judgement.4.15 Where the illegality arose as a result of a genuine mistakeon the part of the driver, for example, a mistaken beliefthat he/she was insured, it may not necessarily be in thepublic interest to prosecute the driver where the deceasedwas a close relative or friend.13As at 6.12.07 these provisions were not in force.14

Policy for Prosecuting Cases of Bad DrivingProsecuting cases of bad driving5.1 We will adopt a proactive approach to seeking furtherinformation from the police before a charging decision ismade. In all cases, prosecutors should liaise directly withthe officer in the case to make sure all available evidencehas been obtained and sent to the CPS so that we mayfully review the case. If necessary, we will advise the policeto follow up other lines of enquiry.CPS Charging Practice5.2 All Crown Prosecutors must apply the Code for CrownProsecutors when considering charges. As we have seen,the prosecutor must consider whether there is sufficientevidence for a realistic prospect of conviction, bearing inmind the very high standard of proof applied in thecriminal courts; and, if there is sufficient evidence, whetheror not it is in the public interest to proceed with the case.5.3 The charges that we decide on in any prosecution shouldalways reflect the circumstances of the offence. Thecharges must help us to present the case clearly and simplyand they must give the court the power to impose asuitable sentence.Manslaughter5.4 An offence of manslaughter may arise in two differentways: unlawful act manslaughter and gross negligencemanslaughter.15

Policy for Prosecuting Cases of Bad Driving5.5 In very general terms, unlawful act manslaughter can applywhere a vehicle is deliberately used as a weapon of assault.Gross negligence manslaughter can be applicable to asituation where there is no intent to use the vehicle as aweapon of assault, but the standard of driving falls so farbelow the required standard that there is a serious andobvious risk of death and the conduct of the defendant, inall the circumstances, is ‘so reprehensible as to amount togross negligence’ 14 .Unlawful act manslaughter5.6 It must be proved that:• the defendant’s act caused the death of the victim;• the defendant’s act constituted a criminal offence initself;• the defendant had the mens rea appropriate to theunlawful act which caused the victim’s death; and• the defendant’s unlawful act is objectively recognised ashaving put the victim at risk of some physical harm,albeit not necessarily serious harm.5.7 Unlawful act manslaughter will be considered the mostappropriate charge when there is evidence to prove that avehicle was used as an instrument of attack (but where thenecessary intent for murder was absent), or to cause fright,and death resulted.14R v Misra & Srivastava [2005] 1 Cr. App. R. 21 para 48.16

Policy for Prosecuting Cases of Bad Driving5.8 Unlawful act manslaughter can occur in a variety of ways.For example, a driver may deliberately drive at a person orgroup of people with the intention of causing them to fearbeing struck by the vehicle. The driver may not actuallyintend to hit them with the car, but if he/she does so andsomeone is killed as a result, he/she may be guilty ofunlawful act manslaughter. If someone is injured, thedefendant may be prosecuted for an assault.5.9 There is a difference between these cases and bad drivingcases where a death has occurred as a result of drivingthat is unlawful only because of the negligent manner ofits performance 15 .5.10 In cases where a death has occurred as a result of baddriving and it is clear that the standard of driving has beengrossly negligent on the part of the driver, a charge ofgross negligence manslaughter may be the correct charge,as explained below.Gross negligence manslaughter5.11 To prove a charge based on gross negligencemanslaughter, the prosecution must show that thedefendant owed the victim a duty of care; that the drivingcaused the victim’s death; that the driving fell far belowthe minimum acceptable standard of driving; that therewas an obvious and serious risk of death; and that theconduct of the defendant can, in all the circumstances, bedescribed as ‘reprehensible’.15Andrews v DPP [1937] AC 576.17

Policy for Prosecuting Cases of Bad Driving5.12 Some sections of the public consider that we should oftencharge gross negligence manslaughter instead of causingdeath by dangerous driving.5.13 There are two arguments put forward to support this view:• first, that the public is now increasingly less tolerant ofbad driving and convictions for gross negligencemanslaughter may be more likely;• secondly, because manslaughter carries a highermaximum penalty, it better reflects the gravity of theoffence.5.14 However, the position is not straightforward. Prosecutorsmay have one or more statutory offences available to them(causing death by dangerous driving and causing death bycareless driving whilst unfit through drink or drugs) incases where there has been a fatal collision caused by baddriving. Before a charge of gross negligence manslaughterwill be preferred, there must be something to set the caseapart from one where one of the statutory offences can beproved.5.15 As a matter of law, it is more difficult to prove an offenceof gross negligence manslaughter than it is to prove anoffence of causing death by dangerous driving. It is notnecessary to have evidence of an obvious and serious riskof death to prove an offence of causing death bydangerous driving. All that is required is evidence that thedriving was dangerous and that the driving caused thedeath of another person.18

Policy for Prosecuting Cases of Bad Driving5.16 Whilst it is correct that the offence of manslaughter carriesthe possibility of a more severe sentence than an offenceof causing death by dangerous driving, the courts have,over the years, generally passed sentences well within –sometimes significantly below – the maximum sentenceavailable for causing death by dangerous driving.5.17 We will, therefore, only charge gross negligencemanslaughter in cases where there is evidence to show avery high risk of death, making the case one of the utmostgravity.5.18 Under the provisions of Section 33 of the Road Safety Act2006, juries are now able to return alternative verdicts foroffences of causing death by dangerous driving, dangerousdriving, causing death by careless driving when under theinfluence of drink or drugs and furious driving where theyare not satisfied that the prosecution has made out its casefor manslaughter. This has not previously been the case.5.19 This alternative verdict provision provides something of asafety net for the prosecution, but there must still besufficient evidence for a realistic prospect of conviction ofmanslaughter and it must still be the most appropriatecharge, before a decision to charge manslaughter will bemade.5.20 In most cases where a death occurs as a result ofdangerous driving, the statutory offence of causing deathby dangerous driving will remain the correct charge.19

Policy for Prosecuting Cases of Bad DrivingCausing death by dangerous or careless driving5.21 It is not a requirement of Section 1, Section 2B 16 or Section3A of the Road Traffic Act 1988, that the prosecutionproves that the death was foreseeable. The prosecutiononly needs to prove that the vehicle was drivendangerously or carelessly and that the driving was thecause of the death of another person. The essentialqualitative difference between the offences thereforedepends on the standard of driving.5.22 Both offences are objective in the sense that thedefendant’s state of mind is not normally a relevantconsideration in determining whether the defendant drovedangerously or carelessly. The fact that a defendantgenuinely believed that in the circumstances his or herdriving was not dangerous is irrelevant.5.23 Both offences require the driver to depart from thestandard of a competent and careful driver, but the keydifference between the offences is the extent to which thedriving falls below the required standard:• to be dangerous, the driving must fall ‘far below’ therequired standard;• to be careless, the driving need only fall ‘below’ therequired standard.16As at 6.12.07 this section was not in force20

Policy for Prosecuting Cases of Bad DrivingCausing death by driving while unlicensed, uninsuredor disqualified5.24 This offence does not require any proof that the driving fellbelow any standard required by law. We will choose thischarge where a death has resulted from driving unlawfullyin one or more of the three unlawful circumstances set outin Section 21 of the Road Safety Act 2006. Where there isevidence that the driving fell below the required standard,a charge incorporating dangerous or careless driving willbe more appropriate.Dangerous driving5.25 Dangerous driving not only includes situations where thedriver has taken a deliberate decision to drive in aparticular way, but also covers situations where a driver hasmade a mistake or an error of judgement that was sosubstantial that it caused the driving to be dangerous,even if only for a short time.5.26 The circumstances of every case will be unique and we willconsider these in each case before reaching a decision asto the appropriate level of charge.5.27 There are decided cases that provide some guidance as tothe driving that courts will regard as dangerous and thefollowing examples are typical of what we are likely toregard as dangerous driving:• racing or competitive driving;• speed, which is highly inappropriate for the prevailing21

Policy for Prosecuting Cases of Bad Drivingroad or traffic conditions;• aggressive driving, such as sudden lane changes, cuttinginto a line of vehicles, or driving much too close to thevehicle in front;• disregard of traffic lights and other road signs, which, onan 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 toother road users;• where the driver is suffering from impaired ability, suchas having an arm or leg in plaster, or impaired eyesight;• driving when too tired to stay awake;• driving a vehicle knowing it has a dangerous defect;• using a hand-held mobile phone or other hand-heldelectronic equipment when the driver was avoidably anddangerously distracted by that use;• reading a newspaper/map;• talking to and looking at a passenger where the driverwas avoidably and dangerously distracted by that;• selecting and lighting a cigarette, or similar, incircumstances where the driver was avoidably anddangerously distracted by that.Careless/inconsiderate driving5.28 As with dangerous driving, the circumstances of every caseof careless or inconsiderate driving will be unique and wewill consider these before reaching a decision as to theappropriate level of charge.22

Policy for Prosecuting Cases of Bad Driving5.29 People can drive carelessly or inconsiderately with tragicconsequences. Under the law as it stands at present, theconsequence of a driver’s actions are irrelevant to the levelof charge that is chosen.5.30 That will change with the introduction of the new offenceof causing death by careless driving 17 .5.31 The test that we apply will not change. However, if wedecide that the driving was careless and caused a death,the appropriate charge will be, under the new legislation,causing death by careless driving.5.32 There are decided cases that provide some guidance aboutthe driving that the courts will regard as careless orinconsiderate and the following examples are typical ofwhat we are likely to regard as careless or inconsideratedriving:Careless Driving• overtaking on the inside;• driving inappropriately close to another vehicle;• inadvertently driving through a red light;• emerging from a side road into the path of another vehicle;• tuning a car radio;• using a hand-held mobile phone or other hand-heldelectronic equipment where the driver was avoidablydistracted by that use;• selecting and lighting a cigarette or similar where thedriver was avoidably distracted by that use.17Section 20 of the Road Safety Act 2006.23

Policy for Prosecuting Cases of Bad DrivingInconsiderate Driving• flashing of lights to force other drivers in front to give way;• misuse of any lane to avoid queuing or gain some otheradvantage over other drivers;• unnecessarily remaining in an overtaking lane;• unnecessarily slow driving or braking without goodcause;• driving with un-dipped headlights which dazzleoncoming drivers;• driving through a puddle causing pedestrians to besplashed;• driving a bus in such a way as to alarm passengers.Wanton and Furious Driving5.33 We will only prosecute for this offence when it is notpossible to prosecute for an offence under the road trafficlegislation, for example:• when the driving was not on a road or other publicplace;• when the vehicle used was not a mechanically propelledvehicle (such as a bicycle or horse drawn vehicle).5.34 When a vehicle has been deliberately used as a weaponand has caused injury, we will normally prosecute for theoffence of dangerous driving, or a specific assault underother provisions in the Offences Against the Person Act1861, subject to there being sufficient evidence to providea realistic prospect of conviction for one of those offences.24

Policy for Prosecuting Cases of Bad DrivingAggravated Vehicle Taking5.35 We may use this charge where the vehicle being drivenbadly has been taken without the consent of the owner orother person authorised to give consent.5.36 Where the manner of driving falls far below the standardrequired the driver will probably be charged withdangerous driving, because on conviction for that offencethe court has power to order the driver to take a re-testbefore driving again, a power which is not available onconviction for aggravated vehicle taking.5.37 Where there is evidence of dangerous driving leading to afatal collision, we will normally charge the driver with theoffence of causing death by dangerous driving, so that thesentencing court has power to order the driver to take anextended retest before driving again. This power is notavailable for aggravated vehicle taking.5.38 Where there is no evidence that the manner of driving fellbelow the standard required, but there is evidence that thevehicle was taken without consent, we shall chargeaggravated vehicle taking where there has been a collision,as a result of which, either personal injury, or damage toproperty other than the vehicle, has been caused. We willalso use the charge in cases where there is no evidence ofa collision, but there is evidence of damage to the vehicleitself.25

Policy for Prosecuting Cases of Bad DrivingGeneral factors to take into consideration5.39 We believe that it is appropriate to refer to examples suchas those given above in giving guidance to our prosecutors,so that their decisions are as consistent as possible; butexamples are merely illustrative of what can amount todangerous, careless or inconsiderate driving. We will alwaysput the facts of each case in context, and consider whetherthe particular circumstances warrant a charge of careless ordangerous driving.5.40 In many prosecutions, the decision whether the driving wasdangerous or careless will be clear, but there will always becases that fall into that area where the two offences meet.Road Conditions5.41 Driving that may simply fall below the standard to beexpected of a competent and careful driver in certainconditions may fall far below the required standard in otherconditions and become dangerous. For example, there maybe evidence of poor visibility, adverse weather conditions ordifficult geography, such as a blind corner.Speed5.42 Evidence of excess speed is another example of this. Wherethere is evidence of grossly excessive speed, or speedwhich, although not grossly excessive, is dangerous as aresult of the prevailing road conditions, a charge ofdangerous driving may be appropriate. Each case will bereviewed according to its particular facts.26

Policy for Prosecuting Cases of Bad DrivingThe Highway Code5.43 Many of these situations are considered in the HighwayCode, which was revised in 2007. We will always considerevidence of any infringement of the Highway Code, and itsconsequences on the standard of driving, when decidingthe appropriate level of charge.Mobile Phones and Handheld Devices5.44 The responses to our 2007 public consultation have shownhow seriously society views the potential dangers of theuse of mobile phones and other hand-held devices, whiledriving. In cases where the driver was avoidably anddangerously distracted by that use, a charge of dangerousdriving will be the starting point for our charging decisions.Offences involving Corporate Bodies5.45 We will ensure that cases involving bad driving in theworkplace are reviewed not only to establish whether thedriver should be prosecuted for any offence or offences,but also to determine whether there is evidence to showthat an offence or offences have been committed by thedriver’s employer.5.46 We have a protocol 18 with the Health and Safety Executiveand the police for the investigation and prosecution ofwork-related deaths and our prosecutors will ensure thatthere is early liaison in appropriate cases where such adeath has been caused.18http://www.cps.gov.uk/publications/agencies/wrdprotocol.html27

Policy for Prosecuting Cases of Bad DrivingVictim and Witness Care6.1 One of our strategic aims is to champion justice and therights of victims. Only by doing so will we inspireconfidence in the communities that we serve.6.2 This commitment applies to all our work dealing with baddriving, but nowhere more so than in our treatment ofvictims, their families, friends and witnesses, in caseswhere a fatality has occurred or serious injury has beencaused.6.3 In the last five years a number of steps have been taken toachieve this.Direct Communication with Victims6.4 Since 2001 we have written to all victims includingbereaved family members in cases where a decision istaken to discontinue a case or substantially alter a charge.In cases where there has been a death we offer a meetingwith the family to explain the decision. Thesecommitments now form part of the Code of Practice forVictims of Crime 19 .19http://www.cps.gov.uk/victims_witnesses/victims_code.pdf28

Policy for Prosecuting Cases of Bad DrivingThe Prosecutor’s Pledge6.5 In October 2005, the CPS issued the Prosecutor’s Pledge 20 .This is the CPS Public Policy Statement on the Treatment ofVictims and Witnesses and sets out ten service standardsthat victims and witnesses can expect to receive from ourprosecutors.6.6 Since the end of 2005, there have been Witness Care Unitsthroughout England and Wales. They assess the needs ofall witnesses and provide information relating to theprogress of a case directly to the victim, or their family, orvia the police Family Liaison Officer (FLO), in cases wherethere has been a fatality.The Victim Focus Scheme6.7 We now provide an enhanced service to those who havelost a close family member in bad driving cases that arethe subject of a charge that is heard in the Crown Court.This is the Victim Focus Scheme 21 .6.8 Under this scheme, prosecutors will meet bereaved familiesearly in the case to explain the charging decisions andsubsequently to help them understand and answer theirquestions about the court process. The prosecutor willexplain that they have the option, should they so wish, tomake a victim personal statement. This is a statementmade by or on behalf of the bereaved family about howthe death of their family member has affected them.20http://www.cps.gov.uk/publications/prosecution/prosecutor_pledge.html21http://www.cps.gov.uk/victims_witnesses/focus_scheme.html29

Policy for Prosecuting Cases of Bad DrivingTerminology6.9 We recognise the distress that can be caused to victimsand their families when cases of bad driving are referred toas ‘accidents’. We will not use this term. We will use theterm ‘collision’ to refer to all bad driving cases that involvedeath or serious injury.Meeting Victims and Families at Court6.10 Where possible, in cases where there has been a fatality asa result of bad driving, we will ensure that the reviewinglawyer attends court to meet the bereaved family and willconduct the prosecution where it is possible to do so.Where the reviewing lawyer is not the advocate, theadvocate will meet the bereaved family as well.Inquests6.11 Where it is considered beneficial to do so, the reviewinglawyer will attend an inquest where the related criminalproceedings have still to be concluded.Bail6.12 Sometimes before, and always after, a defendant ischarged with an offence, the police will decide whether torelease the defendant on bail. This may be back to thepolice station, or to attend the next available courthearing. The decision will be to release on bail or to keepthe person in custody. When the defendant appears beforethe court, the magistrates, a District Judge or, in certain30

Policy for Prosecuting Cases of Bad Drivingcases, a Crown Court judge, will decide about bail afterhearing from the prosecution and defence. In certaincircumstances, the CPS may appeal against a decision togrant bail.6.13 In bad driving cases, where there is a risk of the defendantcommitting a further bad driving offence on bail, we mayask the court to impose conditions on bail, or remand thedefendant in custody. The court can only do this if weshow that there are substantial grounds for withholdingbail or imposing conditions.6.14 In a bad driving case, the most appropriate condition is forthe defendant not to drive any motor vehicles. If thecondition is imposed and is breached, the police can arrestthe defendant and the court may remand the defendant incustody.6.15 Where it is appropriate to do so, our prosecutors will invitethe court to withhold bail or grant bail, subject to asuitable condition or conditions.Accepting Pleas6.16 There will be cases in which the defendant indicates aguilty plea to a different charge or to some, but not all, ofthe charges before the court.6.17 There will also be cases in which the defendant indicates aguilty plea to the existing charge, or charges on the basisof certain specified facts.31

Policy for Prosecuting Cases of Bad Driving6.18 This might arise, for example, if new evidence comes tolight after the original charging decision.6.19 The guidelines make it clear that we should only acceptthe plea if we think that the court is able to pass asentence that matches the seriousness of the offending.6.20 The Code for Crown Prosecutors requires us to take intoaccount the interests and views of the victim, or thebereaved family, when we decide whether any such pleashould be accepted.6.21 Although the decision rests with us, we will consult thevictim, or the bereaved family, in accordance with theVictim’s Code, the Prosecutor’s Pledge and the VictimFocus Scheme, before the decision is made.6.22 We will also follow the Guidelines on the Acceptance ofPleas and the Prosecutor’s Role in Sentencing issued inOctober 2005 by the Attorney General. These emphasisethat it is our role to protect the interests of the victim.They also state that, save in the most exceptionalcircumstances, the acceptance of pleas should beconducted in open court, so that we can explain ourreasons for accepting pleas in public.32

Policy for Prosecuting Cases of Bad DrivingSentencing7.1 We will make sure that the court has all the information itneeds to sentence appropriately. In 2007, the AttorneyGeneral introduced a system 22 that requires us to preparewhat is called a plea and sentence document in every caseheard before the Crown Court and all complex cases thatare heard in the magistrates’ courts. This document is sentto the court before the relevant hearing at which sentenceis passed.7.2 In that document, we provide the court with the followinginformation:• the aggravating and mitigating factors of the offence(not personal mitigation);• any statutory provisions relevant to the offender and theoffence under consideration, so that the judge is madeaware of any statutory limitations on sentencing;• any relevant Sentencing Guidelines and guideline cases;• any victim personal statement, or other informationavailable to the prosecution advocate as to the impact ofthe offence on the victim;• where appropriate, any evidence of the impact of theoffending on a community;22http://www.attorneygeneral.gov.uk/attachments/AG%20letter%20to%20all%20prosecutors%208%20June%2007.pdf33

Policy for Prosecuting Cases of Bad Driving• an indication, where applicable, of an intention to applyfor any ancillary orders, such as anti-social behaviourorders and confiscation orders.7.3 Where there is to be a delay between the date ofconviction and the date on which the court will passsentence, we will remind the court of its power to imposean interim disqualification on a defendant where it islawful for the court to do so.7.4 We will correct any misleading information given by thedefence and consider carefully any sentence that is passedto make sure that it reflects the crime.7.5 In certain cases, it is possible for the Attorney General torefer the sentence to the Court of Appeal if satisfied that itis unduly lenient. 23 Where we consider a sentence in sucha case to be unduly lenient, we may ask the AttorneyGeneral to consider referring it to the Court of Appeal.23http://www.cps.gov.uk/news/factsheets/fs-undulylenient.html34

Policy for Prosecuting Cases of Bad DrivingConclusion8.1 We are committed to improving the way in which baddriving is dealt with in the criminal justice system. We wantvictims, their families and friends and witnesses to haveconfidence in the way we deal with cases involving baddriving, and to demonstrate to them our understanding ofthe pain and trauma that is caused as a consequence ofbad driving.8.2 We hope that this document will help the public tounderstand the work of the CPS; how we make ourdecisions; and how we deal with the often difficult issuesthat arise in these cases.8.3 We recognise and welcome the invaluable advice andsupport that may be offered to victims, their families andwitnesses by specialist support agencies.8.4 We will continue to work with the police and colleagues inthe criminal justice system, and the voluntary andcommunity sector, to help us develop best practice.8.5 We will review this policy statement regularly so that itreflects current law and public attitudes to bad driving.8.6 We welcome any comments and observations that help usto do this.35

Policy for Prosecuting Cases of Bad DrivingAnnex ABrakeBrake is the national road safety charity, dedicated to stoppingdeaths and injuries on roads and caring for people bereaved andaffected by road crashes.BrakeCare helpline for road crash victims: 0845 603 8570PO Box 548, Huddersfield HD1 2XZTel: 01484 559909 Fax: 01484 559983www.brake.org.ukCTC – national cyclists’ organisationCTC, the national cyclists’ organisation provides a range ofinformation and legal services to cyclists and represents theinterests of cyclists and cycling on issues of public policy.CTC National Office, Parklands, Railton Road, Guildford GU2 9JXTel: 0870 873 0060 Fax: 0870 873 0064www.ctc.org.ukLiving StreetsLiving Streets is the national charity campaigning for betterstreets and public space for people on foot.31 – 33 Bondway, London SW8 1SJTel: 020 7820 1010 Fax: 0207820 8208www.livingstreets.org.uk36

Policy for Prosecuting Cases of Bad DrivingRoadpeaceRoadPeace is a national charity dedicated to supportingbereaved and injured road crash victims.National helpline: 0845 4500 355PO Box 2579, London NW10 3PWTel: 020 8838 5102 Fax: 020 8838 5103www.roadpeace.orgVictim SupportVictim Support is the independent national charity which helpspeople cope with the effects of crime. It provides free andconfidential support and information to help you deal with yourexperience.Victim Supportline: 0845 30 30 90www.victimsupport.org.uk37

Further copies of this booklet may be obtained from:CPS Communication DivisionRose Court2 Southwark BridgeLondon SE1 9HSTel 020 3357 0913Email publicity.branch@cps.gsi.gov.ukPrinted by Blackburns of BoltonTel 01204 532121