Charging the death offences

Sections 20 and 21 of the Road Safety Act 2006 introduce two new offences of causing death by driving into the Road Traffic Act 1988:

causing death by careless, or inconsiderate, driving (s 2B); and

causing death by driving: unlicensed, disqualified, or uninsured drivers (s 3ZB).

Both the offences will have effect in relation to any fatal road traffic incident occurring on or after Monday 18 August 2008. The introduction of these two new offences will have a significant effect on the way that the Crown approaches the investigation of road traffic deaths, and the policy in regard to the prosecution of drivers involved in fatal accidents.

The s 2B offence

Section 20 of the 2006 Act introduces the new s 2B into the 1988 Act, which creates the offence of causing death by careless, or inconsiderate, driving. The section states:

“A person who causes the death of another person by driving a mechanically propelled vehicle on a road or other public place without due care and attention, or without reasonable consideration for other persons using the road or place, is guilty of an offence.”

This offence can be prosecuted either summarily or on indictment. The maximum penalty on indictment is five years’ imprisonment, and on summary complaint 12 months. Disqualification from driving and endorsement of the offender’s driving licence are mandatory. The offence carries between three and 11 penalty points in circumstances where the court finds special reasons for not imposing disqualification.

Section 3ZB: three possibilities

Section 21 of the 2006 Act introduces the new s 3ZB into the 1988 Act, which creates three new offences of causing death by driving whilst either unlicensed, disqualified or uninsured. This section states:

“A person is guilty of an offence under this section if he causes the death of another person by driving a motor vehicle on a road and, at the time when he is driving, the circumstances are such that he is committing an offence under:

(a) section 87(1) of this Act (driving otherwise than in accordance with a licence [which includes provisional licence holders not showing L plates etc]);

(b) section 103(1)(b) of this Act (driving while disqualified); or

(c) section 143 of this Act (using a motor vehicle while uninsured or unsecured against third party risks [while the section refers to ‘use’ , the offence requires ‘driving’ the vehicle]).”

This offence can be prosecuted either summarily or on indictment. The maximum penalty on indictment is two years’ imprisonment, and on summary complaint 12 months. The same requirements apply in  relation to disqualification and endorsement as for s 2B.

The investigation stage

This means that the offences which involve causing death by driving are:

murder and culpable homicide;

s 1 (causing death by dangerous driving) and s 3A (causing death by careless driving when under the influence of drink or drugs) of the 1988 Act;

s 2B of the 1988 Act (causing death by careless, or inconsiderate, driving); and

s 3ZB of the 1988 Act (causing death by driving: unlicensed, disqualified and uninsured drivers).

All deaths in which there is a possibility of such an offence being prosecuted will be investigated by the procurator fiscal and reported to senior Crown counsel for consideration of prosecution. Unless the only driver of a vehicle involved in an incident is deceased, the presumption will be that, when the death is reported to the procurator fiscal, there will be at least a possibility of prosecution for one of these offences.

Accordingly, the procurator fiscal’s investigation will be aimed at determining whether prosecution is appropriate, and thereafter to proving to the required standard the relevant criminal charge. There will be post mortem examination of all deceased with a view to establishing corroborated proof of the cause of death. It will be usual, before a death is reported to Crown counsel, to have a meeting with the nearest relatives of all deceased, to explain the procedure to be followed and the factors that Crown counsel will take into account in coming to a decision.

Unless a driver is kept in custody (which is a probability in the case of a disqualified driver), the driver will not be charged until Crown counsel’s instructions to proceed with a prosecution have been received. Where a driver is kept in custody, the case is likely to be on petition with a view to High Court or sheriff and jury indictment on the custody timescale.

Before indictment proceedings are commenced, an offending driver will always appear on petition to allow full disclosure and preparation for trial to take place.

Proceedings under s 2B

Careless, or inconsiderate, driving covers a very wide range of driving behaviour and different levels of culpability on the part of offenders. COPFS prosecution policy takes this into account as well as having regard to all relevant surrounding circumstances. However there will be a presumption that all offences under s 2B of the 1988 Act will be prosecuted on indictment before a sheriff and jury. Summary proceedings may be taken in certain circumstances. In deciding whether summary proceedings are appropriate, senior Crown counsel will take into account the culpability of the offender and whether there are significant aggravating or mitigating factors.

The aggravating factors to take into account include: other offences were committed at the same time, such as driving other than in accordance with the terms of a valid licence; driving while disqualified; driving without insurance; driving while a learner without supervision; driving a stolen vehicle;  the accused has previous convictions for motoring offences, particularly offences that involve bad driving;  more than one person was killed as a result of the offence;  serious injury was caused to one or more persons in addition to the death(s); the accused behaved in an irresponsible manner, such as failing to stop or falsely claiming that someone else was responsible for the collision.

The mitigating factors to take into account include: the accused was seriously injured in the collision; one or more of the victims was a close friend or relative;  the actions of the victim(s) or a third party contributed to the commission of the offence;

Section 3ZB: policy and prosecution

Parliament, when considering this offence, decided that, in this context, causing a death by driving in these circumstances required no fault on the part of the offending driver. The view taken was that the offender’s vehicle should not have been on the road while being driven by the offender and the simple act of driving it on the road in these circumstances would be sufficient “cause” to constitute the offence. The Sentencing Guidelines Council in England & Wales has recommended that “culpability arises from the offender driving a vehicle on a road etc when, by law, not allowed to do so”. The Road Safety Act has UK-wide effect.

COPFS will follow that guidance in relation to the issue of “causation”. However mitigating factors can be taken into account when deciding to prosecute and at what level.

All contraventions of s 3ZB of the 1988 Act where the offence is committed by an accused driving while disqualified from driving will be prosecuted on indictment before a sheriff and jury.

There is a presumption that contraventions of s 3ZB of the 1988 Act where the offence is committed by an accused driving while unlicensed or uninsured will be prosecuted on indictment before a sheriff and jury. However, summary proceedings may be taken in certain circumstances. In deciding whether summary proceedings are appropriate, Crown counsel will take into account the following significant aggravating or mitigating factors.

The aggravating factors to take into account include:

the accused has previous convictions for analogous offences or offences of bad driving;

more than one person was killed as a result of the offence;

there was serious injury to one or more persons in addition to the death(s);

the accused showed irresponsible behaviour, such as failing to stop or falsely claiming that someone else was driving.

The mitigating factors to take into account include:

the decision to drive was brought about by a proven and genuine emergency falling short of a defence;

the offender genuinely believed that he or she was insured or licensed to drive;

the offender was seriously injured as a result of the collision;

the victim was a close friend or relative;

the actions of the victim or a third party contributed to the offence;

the offender gave direct, positive, assistance at the scene to the victim(s);

the offender has an exemplary driving record.

There is no doubt that the introduction of these offences by the UK Parliament heralds a much tougher approach to dealing with fatal road traffic accidents, and many incidents which are currently dealt with by summary complaint against an offending driver are likely to be the subject of indictment procedure in the future. The profession needs to be aware of the potential impact not only on clients who are drivers involved in such accidents, but for clients who are the nearest relatives of the deceased.

Cameron Ritchie is Area Procurator Fiscal for Fife.