Sentencing Council proposes death by driving guideline

Offenders who cause death by driving are the subject of a public consultation on Scotland’s first sentencing guideline covering specific offences, launched today by the Scottish Sentencing Council.

The draft guideline sets down proposed sentencing ranges for judges to follow when deciding sentences for these statutory offences when committed in Scotland:

• 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;
• causing death by driving while unlicensed or uninsured;
• causing death by driving while disqualified.

In the paper the Council comments that death by driving cases "are particularly challenging for sentencers because of the complexities in assessing culpability against the limited degree of variation in terms of harm". Its research suggests that the sentencing exercise is more straightforward in death by dangerous driving as opposed to death by careless driving cases, as the level of culpability for the actions that led to the offence is generally more apparent. In cases of careless driving, it might be a set of unfortunate circumstances that led to a catastrophic outcome, and in many cases the accused had never been in any trouble before.

In-depth research for the Council, through focus groups, also revealed that many participants did not have a clear understanding of the offences, or the difference between dangerous and careless driving. Sentencing was also less severe than many thought it should be – but people sometimes changed their views after considering the full range of factors that might be involved.

"It is clear to us", the Council states, "that the guideline offers an opportunity to improve public knowledge about sentencing practice in these cases and to improve understanding about the complex issues involved. Our hope is that this will also aid with predictability of sentencing for all those who might be involved in these cases."

Its approach, allied to its earlier guidelines on the principles of sentencing and the sentencing process, is to provide a set of three tables for each offence. The first table lists features to be considered for the offence, based on their level of seriousness (A, B, or C). The second table sets out the sentencing ranges for each of these levels of seriousness. The third table lists some of the factors which may aggravate or mitigate seriousness.

Racing would be placed under level A, in line with a current proposal in England & Wales to move it from the middle to the highest level of seriousness. Level A would also cover a "prolonged and deliberate course of bad driving, with a disregard for the danger being caused to others", whereas aggressive driving, and "driving that created a substantial risk of danger to others", are among the instances that would fall under level B.

The Council also points out that its guideline is intended to reflect current practice – the highest sentence of which it is aware being 12 years – and the sentencing ranges proposed do not go up to the maximum possible, recently increased by Parliament to 14 years. "While inclusion of the statutory maximum in a sentencing range may be attractive, the Council’s guidelines are not intended to cover every possible eventuality", it explains.

Lady Dorrian, Lord Justice Clerk and chair of the Council, commented: "This guideline will bring significant benefits to both the public and to the courts. Causing death by driving offences are very serious in nature and are of significant public concern. They can be amongst the most complex and emotive cases before the courts and a guideline that explains how the sentences are decided, listing some of the factors taken into account, will be helpful to public understanding. The guideline will also assist in relation to the predictability of a sentence.

"In court, the guideline will assist judges in making what, at times, can be challenging sentencing decisions. There can be a significant difference between the harm caused – in these cases a fatality – and the culpability, or level of blame, of the offender."

She added: "It is vital to us that we get the widest possible range of views and I would urge people to take this opportunity to help shape our first offence guideline, which will also serve as a template for future offence guidelines. We are keen to hear from all who are interested, including individuals, criminal justice and third sector organisations, and any other interested bodies. We will carefully consider each response to help us scrutinise the draft before it is finalised."

Stuart Munro, convener of the Law Society of Scotland’s Criminal Law Committee, said: "If implemented, the guideline has the potential to have a significant impact on Scottish solicitors and the clients they serve in what can be both challenging and sensitive cases. It is important, then, that both legal practitioners and members of the public have an opportunity to comment on this important piece of work. We look forward to responding to the Scottish Sentencing Council’s consultation on Scotland’s first offence guideline and will encourage our members to do the same."

Welcoming the consultation, Kate Wallace, chief executive of Victim Support Scotland said: "Losing a loved one due to driving offences is devastating and sentencing decisions can be difficult to understand. I’m pleased this consultation will let the voices of those who have experienced this to be heard. We will encourage our networks to respond."

Access the consultation here. The deadline for responding is Tuesday 22 November 2022.