Death by driving: the quest for justice

The Scottish Sentencing Council has launched a public consultation on Scotland’s first offence guideline, which is on statutory offences of causing death by driving. A webinar for practitioners is being held on 13 October 2022 at 17.00 for those interested in learning more about the draft guideline before the consultation closes.

This draft guideline is intended to be read alongside the Council’s three general guidelines on the principles and purposes of sentencing, on the process of deciding sentences and on sentencing young people.

It covers the statutory offences of causing death by dangerous driving; causing death by careless driving when under the influence of drink or drugs; causing death by careless or inconsiderate driving; and causing death by driving: unlicensed, uninsured, or disqualified drivers.

Support at each step

The structure of the draft guideline follows the initial steps of the Council’s guideline on the sentencing process. For easy reference, tables are provided for each offence. A table at step 1 lists features to help the sentencer determine which level of seriousness a case falls into: A, B or C. For the offence of causing death by careless driving when under the influence of drink or drugs, a second table at this step addresses the level of alcohol and drug consumption.

Further tables at step 2 set out sentencing ranges for each level of seriousness, and at step 3 the factors which may aggravate or mitigate the seriousness of the offence, such as previous convictions, or a previously good driving record. In some cases these may move the headline sentence outside the range selected at step 2.

As an example, in relation to the offence of causing death by dangerous driving, level A seriousness would include prolonged and deliberate bad driving with a disregard for the danger being caused to others; level B would include driving that created a substantial risk of danger to others; and level C would include a single dangerous manoeuvre which created significant risk of danger to others. The table at step 2 provides sentencing ranges for this offence of seven to 12 years’ imprisonment at level A, four to seven years’ imprisonment at level B, and two to five years’ imprisonment at level C.

Plea for responses

The Council decided to prepare its first offence guideline on these statutory offences to assist both the courts and the public. By setting out the sentencing process, the factors taken into account, and the sentencing ranges, the guideline will help people to better understand how sentences are reached. It will also increase the predictability of the sentence in a case for all involved. The guideline is intended to be as concise, accessible, and easy to understand as possible.

For the courts, the sentencing ranges will assist those on the bench in selecting the appropriate disposal. These sentencing decisions can be challenging, particularly where there is a significant difference between the level of harm caused (death) and the level of culpability. An example of this might be a death by careless driving case where an offender with a previously good driving record and no prior convictions has caused a fatal accident through a moment of inattention.

As this guideline will serve as a template for future offence guidelines, the Council is consulting on its structure and format, as well as on the content of the guidance.

It is vital that we hear the views of the profession to ensure that the document is fit for purpose, and the Council encourages you to respond to the consultation. Once we have carefully considered and analysed all of the responses received, we will make any appropriate changes to the draft, before submitting it to the High Court for approval.

Sentencers must have regard to all relevant guidelines approved by the High Court. If they do not follow a guideline, they must give their reasons.

The draft guideline, draft impact assessment, and a consultation paper are available on the Council’s website. The consultation closes on Tuesday, 22 November 2022.

A webinar to further introduce the draft guideline is scheduled to take place on Thursday, 13 October 2022 at 17.00. One of the Council’s judicial members, Summary Sheriff Amel Elfallah, will chair the webinar, briefly introducing the draft guideline and consultation; Professor Cyrus Tata of Strathclyde University will speak on research he has conducted in relation to causing death by driving offences; and Sheriff Frank Crowe will speak to the challenges of sentencing these offences. Council advocate member Louise Arrol will be on hand to assist with a Q&A session. Please contact the Scottish Sentencing Council for more information.