Public attitudes to the sentencing of offences involving death by driving

Criminal Law Review

Volumn , Issue 7, 2008, Pages 525-540

  Roberts, Julian V ^a   Hough, Mike ^b   Jacobson, Jessica ^b   Moon, Nick ^c   Bredee, Alan ^c  

^a UNIVERSITY OF OXFORD   (United Kingdom)

^b KING'S COLLEGE LONDON   (United Kingdom)

^c NOP ^*

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EID: 46849100844     PISSN: 0011135X     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (24)

1. Report of the Road Traffic Safety Review, Home Office, 1986, p.42.
2. Cases reported by the tabloid media invariably focus on sentencing - as the following example illustrates: "Laughing hit-run driver with long record. Maniac got just 6 MONTHS jail" (emphasis in original), Sun, Thursday April 15, 2007, p.8.
3. At the time of writing the Sentencing Guidelines Council, which receives advice from the Sentencing Advisory Panel, had just completed consultation on a set of guidelines and it was anticipated that a definitive guideline would be issued later in the year. The guidelines on which the SGC consulted were consistent with the proposals advanced by the Panel in its advice to the SGC, but different in some ways to the earlier consultation document issued by the Panel in January 2007.
4. At the time of writing it was expected that the legislation would be activated shortly after the Sentencing Guidelines Council had completed consultation with respect to its guidance.
5. J.V. Roberts and M. Hough, Understanding Public Attitudes to Criminal Justice, (Maidenhead: Open University Press, 2005).
6. Responses to another question support the interpretation that the public regard this offence as seriously as the others. When asked to estimate the risk of reoffending for the four offences, the highest risk of reoffending was attributed to the offence of causing death while driving without a valid licence.
7. One participant referred to the offender as "deliberately putting himself in a position where he could kill someone". One variant of the offence-driving without insurance-could of course be committed through oversight rather than intent, though it is hard to see how anyone could drive whilst unlicensed or disqualified without being aware of the fact.
8. There was a degree of "there but for the grace of God go I" sentiment expressed in the focus groups.
9. A similar result emerged from research conducted for the Road Traffic Law Review in 1985. When a speeding driver caused a fatal accident, support for incarcerating the offender rose dramatically compared to the same scenario in which another person was simply badly bruised (see Report of the Road Traffic Law Review, Home Office, 1988 at 306; see also A. Doob and J.V. Roberts, Sentencing: An Analysis of the Public's View, (Ottawa: Department of Justice Canada, 1983)).
10. Surveys such as the British Crime Survey have for years documented widespread public dissatisfaction with sentencing trends. In 1996, four out of five respondents to the British Crime Survey expressed the view that sentences in general were too lenient (see M. Hough and J.V. Roberts, Attitudes to punishment: findings from the British Crime Survey, (London: Home Office, 1998)).
11. For example, when respondents are asked to describe the offender they had in mind when thinking about sentencing, most people are thinking of recidivists convicted of serious crimes of violence. For a review of related research, see Roberts and Hough, Attitudes to punishment: findings from the British Crime Survey, (London: Home Office, 1998).
12. See Roberts and Hough, Attitudes to punishment: findings from the British Crime Survey, (London: Home Office, 1998) for a review of relevant research.
13. If any of the respondents who chose to impose a term of custody asked for clarification regarding the meaning of a term of custody, they were given a summary of the release on licence arrangements.
14. These trends confirm earlier survey findings with other offences: people under-estimate the custody rate, assuming that the courts are more lenient than is in fact the case - at least with respect to the proportion of offenders committed to custody; see Hough and Roberts, Attitudes to punishment: findings from the British Crime Survey, (1998).
15. The SAP provided specific sentences for our scenarios that would be imposed under the Panel's proposals.
16. Partly in response to the research reported here, the Sentencing Advisory Panel subsequently increased the length of sentences for offences of this sort. The Sentencing Guidelines Council's draft guidance suggests a 12 month sentencing for the offence in the vignette.
17. See, for example, J. Tufts and J.V. Roberts, "Sentencing Juvenile Offenders: Comparing Public Preferences and Judicial Practice" (2002) Criminal Justice Policy Review 13, 46-64.
18. The exception to this pattern of comparability between the public and SAP proposals concerns sentence lengths. The average sentence lengths derived from a significant proportion of the public were much longer than the Panel proposals. For example, the proposal for careless-drunk was 24 months whereas the median sentence length from the public was 60 months (for more details see the complete report available on the Sentencing Advisory Panel website). It must be recalled, however, that the Panel's recommendation is based upon a comparison of actual sentence lengths for other serious offences, whereas the public have little accurate idea of sentence length statistics.
19. In a recent article Michael Hirst makes a compelling case for reconsidering the relationship between sentencing for culpable driving offences causing death and cases of constructive manslaughter (see "Causing death by Driving and other offences: A Question of Balance" [2008] Crim. L.R. 339). It is unclear whether the SGC considered these analogous offences in devising its driving offences guideline on which consultation is currently taking place.
20. This anomaly highlights one of the weaknesses of the current sentencing environment in England and Wales. Amendments to maximum penalties, or the determination of new maxima should be proposed to Parliament for approval, by a sentencing guidelines authority that has considered the issues more fully. Under the present arrangement Parliament established the new maxima and the Panel/Council were thereafter compelled to devise guidelines within these limits.
21. Of course much turns on the language used here; the offender's driving has not resulted in the accident, but without his decision to drive, vehicle and victim would never have collided.
22. In its proposal the SAP describes this offence as typically involving a "momentary error of judgment, e.g., the driver has not noticed a hazard in the road".
23. There is also the empirical reality that careless driving as a result of temporary distraction represents conduct to which all drivers are at some point subject; the individual who drives having been disqualified is, by definition, beyond the norm of everyday conduct. This interpretation is consistent with the focus group discussions where people distinguished between the kinds of offenders convicted of these offences. One participant noted that "every one of us in this room has probably done something very similar to this". In contrast, driving without a licence was seen to reflect a higher level of moral turpitude ("unlicensed driving just makes a mockery of those that are legally on the road").
24. This new offence is also problematic because it concatenates cases of very variable culpability. The offender who drives after having been disqualified is far more culpable than the individual who fails, through inadvertence, to renew his insurance. It is worth noting that the public were sensitive to these distinctions of culpability, as can be seen from the significantly lower incarceration rate in response to the causing death while driving without insurance compared to driving without a licence due to suspension (see Table 3, above). These gradations in culpability also explain the different sentencing proposals of the Panel for variations of the same offence (see Box 1).