In January 2023, the Court of Appeal (Criminal Division) handed down two judgments which provide authoritative guidance to judges and practitioners dealing with the offence of causing death by dangerous driving, contrary to section 1 of the Road Traffic Act 1988. The cases concern two separate yet important issues of principle, with which practitioners should be aware.
R v Holder [2023] EWCA Crim 5
The defendant, who was 17 years old at the time, was riding a stolen motor scooter in West London with a pillion passenger who was 14 years old. The defendant lost control of the motor scooter whilst travelling between 37 – 44 mph and collided with the kerb. The motor scooter overturned and both riders were propelled from the back. Tragically, the pillion passenger was killed.
The issue for the jury was whether the defendant’s driving was dangerous. Under s.2A(1) of the 1988 Act, driving is dangerous if, and only if:
(a) the way he drives falls far below what would be expected of a competent and careful driver, and;
(b) it would be obvious to a competent and careful driver that driving in that way would be dangerous.
s.2A(3) states that ‘in determining…what would be expected of, or obvious to, a competent and careful driver in a particular case, regard shall be had not only to the circumstances of which he could be expected to be aware but also to any circumstances shown to have been within the knowledge of the accused.’
One of the factors that the prosecution sought to rely on to prove that the driving was dangerous was the fact that neither the defendant nor his passenger were wearing protective helmets.
At the commencement of the trial, the defence sought to exclude reference to the fact that the passenger was not wearing a helmet on the grounds that it was prejudicial and irrelevant to the standard of driving. In addition, it was submitted that the legislative exemption from wearing helmets for those who followed the Sikh religion under s.16(2) of the 1988 Act meant the absence of a helmet could not be relevant to the standard of driving. This argument was rejected by the trial judge and was challenged on appeal.
In a judgment given by the President of the King’s Bench Division, the Court of Appeal upheld the ruling of the trial judge. The court noted that, aside from the exemption in s.16(2), it is a criminal offence to fail to wear compulsory protective head gear when riding a motorcycle scooter or moped on the road (s.16(4) RTA 1988). It is also an offence to carry a passenger under the age of 16 who is not wearing protective headgear. The court reiterated that failure to follow the highway code could also be relied on ‘as tending to establish or negative any liability which is in question’ in criminal proceedings and emphasised the broad ambit implied within s.2A(3) RTA 1988.
At paragraph [22], the court held that the failure to wear a protective helmet was relevant to jury’s determination in two ways:
- In deciding whether and the extent to which [the defendant’s] driving fell below what a competent and careful driver would be expected to do in those particular circumstances, and;
- In deciding whether it would have been obvious to a competent and careful driver that driving in that way would be dangerous because of the (obvious) risk of injury to his passenger.
Comment:
Many may consider it a matter of common-sense that failure to wear a protective helmet when driving a motor scooter is ‘dangerous’ in the ordinary sense of the word. Whilst the issue is not as evidently causative to the standard of driving, such as the speed, distance and manner of such driving, the Court’s decision provides clear authority that the issue of protective headgear may be taken into account by a jury when determining whether the driving was dangerous within the meaning of s.2A RTA 1988. Regard must always be had to the particular circumstances of the case, and it would not have been open to the jury to convict on this factor alone. In this case, as the court stated at paragraph 21: ‘This factor was…properly to be considered as part and parcel of the ‘driving.’
Re Soto and Waite [2023] EWCA Crim 55
s.86(2) of the Police, Crime, Sentencing and Courts Act 2022 increased the maximum sentence for an offence under s.1 RTA 1988 (committed after 28th June 2022) from 14 years’ imprisonment to life imprisonment. No revised guideline has yet been published by the Sentencing Council. The cases of Soto and Waite addressed the correct approach to sentencing in the most serious cases of causing death by dangerous driving following the statutory increase in the maximum sentence available.
The sentences imposed in Soto and Waite’s cases were referred to the Court of Appeal by the Solicitor General as unduly lenient, pursuant to s.36 of the Criminal Justice Act 1988. Both cases were very serious examples of their kind. The defendants were considerably over the prescribed limit for alcohol at the time of the accident. Both cases had aggravating features and involved a collision with two people; in Soto those people were sat in a stationary car, in Waite they were pedestrians on the pavement. It should be noted that Mr Soto’s collision caused very serious injury to the other person involved whilst Mr Waite’s did not.
Both cases fell into Level 1 on the Sentencing Guideline, with a starting point of 8 years’ custody and a range of 7 – 14 years’ imprisonment as currently drafted.
Mr Soto was sentenced to 9 years’ imprisonment for causing death by dangerous driving, with an additional 9 months consecutive for breaching a previous suspended sentence order. The sentencing judge was made aware of the maximum sentence available, but it was not mentioned within her sentencing remarks. The Court of Appeal allowed the reference and increased the overall sentence to 12 years’ 9 months imprisonment.
Conversely, in Mr Waite’s case, the sentencing judge did note the increase in the sentence within her sentencing remarks and elevated the starting point within the guideline from 8 years’ custody to 12 years to reflect the change in the maximum sentence available. After aggravating and mitigating features were considered, an overall sentence of 8 years’ imprisonment was passed following credit for the guilty plea. The Court of Appeal declined to interfere with the sentence and permission to refer the sentence as unduly lenient was refused.
The Court reviewed the authorities on the correct approach to sentencing in these circumstances, focusing specifically on Richardson and others [2006] EWCA Crim 3186 and Nugent [2021] EWCA Crim 1835. The Court held that:
- Applying Richardson and others, sentences for the most serious cases of causing death by dangerous driving must be increased from the levels indicated in Level 1 of the current guideline because offences in Level 1 by definition are the most serious offences.
- Prior to an update from the Sentencing Council, lower-level offences on the guideline should not be increased.
- It is for the Sentencing Council to determine the appropriate revised starting point for the most serious offences. Until a new guideline is issued, judges will use the starting point in the current guideline and adjust the sentence to take account of the increase in the maximum sentence.
- Even where offences fall within Level 1 and were committed after 28th June 2022, the sentencing judge must make their own assessment of the seriousness of the offence and the culpability of the offender. The judge must determine whether the interests of justice require a sentence outside of the category range at Level 1. This is not a mathematical exercise.
- Whatever decision is reached by the sentencing judge in an individual case, the issue of proportionality with the range of circumstances in which offences of this kind occur must be considered (Richardson and others).
Comment:
The Sentencing Council has consulted upon an updated guideline for the offence; however, it is yet to come into force. The revised draft guideline, as published on the Sentencing Council website, removes the language of ‘Levels’ and substitutes an approach based on culpability, with a table of factors to determine the offence category at Step 1. Offences of the highest culpability have an increased starting point of 12 years’ custody, with a category range of 8 – 18 years’ imprisonment. Notably, the starting point for medium culpability offences (previously ‘Level 2’) has been increased from 5 to 6 years’ imprisonment, with an updated range of 4 – 9 years’ custody. The starting point and range for lesser culpability offences (previously ‘Level 3’) has not been altered.
Whilst a new guideline is inevitably required, one hopes that a long-awaited guideline for offences of causing serious injury by dangerous driving, contrary to section s.1A of the RTA 1988 also comes into effect in the near future. Current sentencing practice under s.1A requires the court to use the guideline for causing death by dangerous driving with modifications to account for the fact that the injured party did not die (R v Dewdney [2014] EWCA Crim 1722, or, for a more recent example: R v Brown and another [2021] EWCA Crim 1963]. The offences have a significant disparity in maximum sentences available and it is difficult to estimate how much downward adjustment will, or should, be made to a sentence based on the fact that a significantly injured party survived a collision. The approach has led to a number of appeals against sentence and may continue to do so in the absence of a published sentencing guideline. A draft guideline exists but has not been brought into effect.
Which guideline is published first is a matter entirely for the Sentencing Council. However, it may be that the authority provided by Soto and Waite means that the lacuna that currently exists for offences of causing serious injury by dangerous driving under s.1A RTA 1988 presents as a more pressing issue to be addressed by a published guideline.
First-Six Pupil at Lamb Building
Reminder: This article is not to be viewed as legal advice and is simply for educational purposes and to help keep practitioners up to date on the key legal framework.
Links:
R v Holder [2023] EWCA Crim 5: https://www.bailii.org/ew/cases/EWCA/Crim/2023/5.html
R v Soto and Waite [2023] EWCA Crim 55:
https://www.bailii.org/ew/cases/EWCA/Crim/2023/55.html
Draft updated sentencing guideline for Causing Death by Dangerous Driving (s.1 RTA 1988):
Draft sentencing guideline for causing serious injury by dangerous driving (s.1A RTA 1988):