Causing Death or Serious Injury by Careless or Dangerous Driving

Co-authored by Rod Hayler and Camilla Rents

As criminal defence solicitors, the question that we are most often asked is, ‘how can you possibly sleep at night when your job is to defend criminals charged with the most serious, nasty, offences’?

Whilst it must be accepted that some people who commit criminal offences do fall into this camp, the reality is that a large proportion of those who people who are charged with a crime are, normally, law abiding people who never dreamt for one moment that they might need the services of a criminal defence solicitor.

The fact is that anyone who gets behind the wheel of a car could find themselves in such a situation and being charged with a criminal offence following a mistake or accident. In this blog series, Camilla Rents and Rod Hayler discuss the offences of careless and dangerous driving which causes death or serious injury. 

Causing death or serious injury by careless driving

Approximately 70% of the UK adult population has a full driving licence.  Driving is an activity many of us are involved in most days or multiple times a week.  Once we have passed our test and become accustomed to driving about in our first car, it’s an activity we tend to take for granted.  Driving becomes second nature, like going for a walk, making dinner or brushing our teeth.  Be honest, how many times have you arrived at your destination, having driven your daily route, with absolutely no recollection of the journey you just took?  Driving on effective “auto-pilot” is incredibly common and most of us will have experienced it at some point, some people will experience it daily.  None of this is to suggest that driving on “auto-pilot” makes you dangerous.  We are generally capable of driving entirely safely and within the remit of the law, often without thinking too hard about it.

Now consider a hypothetical situation where you are on your usual route to work, driving on effective “auto-pilot”, but a pedestrian steps out in front of you, giving you no time to stop.  Your vehicle strikes the pedestrian, knocking them down.  Police and paramedics attend the scene.  A short time later you are informed that the pedestrian has died as a result of their injuries.  The police now want to speak to you about the potential offence of causing death by careless driving.

Was your driving careless?  Did you do anything wrong?  Were you paying close enough attention?  Why didn’t you see the pedestrian?  What speed were you driving?  Were you running late for work?  When had you last checked your tyre thread or your brakes?  When did you last have your eyesight checked?

You might be able to answer all of these questions confidently and without any second thoughts.  Equally, you might not.  Either way, there are likely to be a number of factors outside of your control which will influence whether you are prosecuted for a criminal offence.  The police will consider the scene and your vehicle.  A forensic collision expert will provide an opinion regarding the likely causes of the impact, including the presence or absence of any mechanical defects to your vehicle.  Other road users will be asked to provide witness statements with an assessment of your driving speed and any actions which might make it more or less likely that you were to blame.  The devastating outcome may have a natural influence on their opinion.  Rightly or wrongly, their attempts to recall what happened will solidify into the “facts of the case”.

Is careless driving a strict liability offence?

The reality is that, in many instances, the very fact you did not see the pedestrian (or the cyclist, or the motorbike) might be enough to warrant a prosecution for driving without due care and attention.  This is the wording used in the statute for the offence we now as “careless driving”.  The criminal test is whether your standard of driving fell below that of the competent and careful driver.  In other words, if the competent and careful driver would have been expected to see the pedestrian and to take evasive action, then you are culpable for the collision and guilty of the offence.  If the pedestrian loses their life, the collision is more than a minor cause of that loss, then the offence you have committed is causing death by careless driving.  If another person is caused a GBH level injury, the offence will be causing serious injury by careless driving.  These offences are not ones of strict liability but, in these circumstances, it may not feel far from it.

Why do we need offences of causing death or serious injury by careless driving?

The offence of causing death by careless driving was brought into law by the Road Safety Act 2006 and came into effect in 2008 as s2B Road Traffic Act 1988.

Prior to that change in the law, if your driving had caused the death of another person, you might only have been prosecuted for careless driving, a non-imprisonable offence.  The call for a change in the law focused on the need for greater punishment when someone had lost their lives, irrespective of the level of culpability (provided there was some).  In other words, the loss of life should now give rise to a risk of prison irrespective of any real sense of future risk or a clear sense of blameworthiness on your part.

The law relating to careless driving was further extended by the Legal Aid, Sentencing and Punishment or Offenders Act 2012, which gave rise to the offence of causing serious injury by careless driving (and inserted s1A into the Road Traffic Act 1988).

Will I go to prison if I am convicted of causing death by careless driving?

The Sentence Guidelines for causing death by careless driving suggest that prison is the starting point for all levels of culpability.

Where death is not the outcome but where someone is caused potentially life changing injury, the Sentence Guidelines suggest that prison is a real possibility for all but the very least serious cases.

These offences marked a shift in sentencing policy, with a much greater focus on the consequences of your actions and away from your level of culpability.  This shift is easy to understand when one puts themselves in the position of a family member who has just lost a loved one.  We can all imagine the sharp sense of loss, pain and injustice at the prospect of losing a child, sibling or parent as a result of an avoidable road accident.  In that light, the idea that the driver responsible should be at risk of going to prison is more than understandable.

These are the feelings and emotions that are automatically conjured up when we learn of serious road traffic incidents.  Our hearts go out to the family of the person lost or seriously injured.  The sense that they have been wronged is palpable and the call for justice entirely understandable.  For these reasons the “public interest” tends to fall on the side of the victim and there is an expectation that courts will sentence the “perpetrator” accordingly.  It naturally follows that a prison sentence is the natural starting point for justice.  Stories, prior to the 2008 law change, of careless drivers receiving fines and short driving disqualifications, when another family was left grieving, inevitably led to a clamour for greater punishment and for an offence that actually fitted the crime.  Once that offence was in place, attention turned to situations where serious and potentially life changing injuries had resulted.  There needed to be an offence to fit the victim’s loss.

Now turn back to the situation I painted at the start of this article.  You are the person who struck and killed or seriously injured another human being whilst driving your car.  You didn’t set out to cause any harm that day.  You weren’t necessarily driving in a manner that an observer would refer to as “reckless”.  You weren’t taking foolish risks.  You weren’t speeding.  You didn’t cut a corner.  You weren’t looking at your mobile phone.  You hadn’t been drinking or taking drugs.  You were an ordinary law-abiding citizen, going about their usual daily routine – you just happened to miss something, fleetingly, and it resulted in a collision and possibly death.  (This is referred to as “momentary inattention” in the sentencing guidelines).  You are facing an investigation which may take the best part of a year or more.  The investigation carries the possibility of a prosecution, stressful court hearings, a potential conviction and the risk of being sent to prison.

How can we help someone charged with causing death by careless driving?

It is a truism for criminal defence lawyers that the first question we are often asked is “how can you represent someone who is guilty?”  The questioner usually has in mind some heinous and deliberate crime, born of greed or extreme violence.  They are not considering the position of the competent and careful driver who made a mistake.  Its not the obvious or glamorous example.  But the answer I tend to provide to this question will often focus on that driver and the fact it could so easily be the person asking the question.  If nobody focuses on the driver, if no one is there to point out their low level of blameworthiness, to focus the court’s mind on all the good things that person has done with their lives, their lack of previous convictions, the keen and genuine sense of remorse and trauma they feel and the devastating impact of the incident on their life and that of their family, there is a risk that the call for justice will lead inevitably to prison.   In some cases that might be the right outcome, in many cases, for the reasons set out above, it will not.

At Old Bailey Solicitors, we specialise in looking after clients who have little or no experience of the criminal justice system.  We stand with them through the police interview and the first court appearance.  We help them explain what they did and what they didn’t do.  We tackle unfair or inaccurate conclusions drawn by the police and their forensic experts.  We gather information in an effort to balance the picture or to correct the court’s preconceived ideas.  We represent our clients, not because they are criminals but because we understand that absolutely anyone could find themselves in this position and absolutely everyone deserves to have their case heard.

If you have been involved in a road traffic collision where someone else has been seriously injured or killed and if the police have asked you to attend an interview, or if you have already been interviewed and you are waiting to find out whether further action will be taken, contact Old Bailey Solicitors on 0207 8464 999 or email [email protected] to arrange a meeting.

Causing death or serious injury by dangerous driving

What is dangerous driving?

Dangerous driving is defined in the Road Traffic Act 1988 at section 2A. It is driving which falls ‘far below’ the standard to be expected of a careful and competent driver, where it would be obvious to a careful and competent driver that driving in such a way would be dangerous.

There is no legal definition of ‘far below’, but as the law has developed over time, different cases have established examples of particular acts/ ways of driving that may constitute dangerous driving.

It is of course important to remember that, although causing death by dangerous driving is a serious offence by virtue of the very fact that a person has lost their life, it is not the loss of life that makes the driving dangerous; the driving in and of itself must be considered.

When we think of dangerous driving, we perhaps conjure up images of a person driving erratically, weaving in and out of lanes, against the flow of traffic, or on the pavement, or jumping red lights to escape the police in a high speed chase. Whilst such driving would undoubtedly constitute serious examples of dangerous driving, there are other less crude and less obvious examples of dangerous driving which could catch out even the most (usually) law abiding members of the public.

For example, a person who mistook the brake for the accelerator and failed to correct the incorrect application of the wrong pedal promptly, could be guilty of driving which falls far below the standard to be expected of a careful and competent driver. Likewise, driving at speeds significantly in excess of the speed limit, even for a short period of time, could be considered dangerous in the context of all the circumstances of the case. Whilst in these two examples, a person driving on the motorway on a quiet Sunday afternoon, in dry conditions with good visibility and very few other road users around might not be guilty of dangerous driving, a person driving in that manner in a built up area where there are numerous pedestrians and other road users in the dark and wet may, in the context of all the circumstances of the case, be guilty of dangerous driving. If a person lost their life as a result of such driving, the offence of dangerous driving would become even more serious.

What is the sentence for causing death by dangerous driving?

The sentencing guidelines increased recently to reflect the attitude of the public to this type of offending. For offences committed on or after 28 June 2022, the sentences are now more severe. The maximum sentence is now life imprisonment and the minimum disqualification from driving is 5 years with a compulsory extended re-test.

The most serious offences attracting the most severe sentences include driving that involved a deliberate decision to ignore the rules of the road and disregard for the risk of danger for others (take, for example, our above example of a high speed police chase). But other, seemingly less serious examples are listed in this most serious category, including prolonged use of a mobile phone or a lengthy period of inattention.

Less serious examples of dangerous driving are stated to include driving when sleep deprived or driving when significantly impaired as a result of a known medical condition.

Under the old guidelines, the most serious examples of causing death by dangerous driving attracted sentences of between 7-14 years. Now, the starting point for the most serious examples of this offence is 12 years, with a range of between 8 – 18 years imprisonment.

The new guidelines also contains additional aggravating features including whether the victim was a vulnerable road user (pedestrian, cyclist, horse rider, motorcyclist), whether the vehicle was poorly maintained and whether blame was wrongly placed on others.

What should I do if I have been charged with causing death by dangerous driving?

At Old Bailey Solicitors, we have particular experience representing people who are usually law abiding citizens and have had no previous experience of the criminal justice system. If you have been charged with causing death or serious injury by dangerous driving, you may well find yourself in a completely new and alien situation. We understand that the criminal justice system is scary and complex and we can help to guide you through it.

We have experience representing people who have been charged with driving offences and can ensure that the law and the procedure is explained to you clearly at the outset. We will help you to understand your options and assist you to identify the most appropriate way forward.

If you have been involved in a road traffic collision where someone else has been seriously injured or killed and if the police have asked you to attend an interview, or if you have already been interviewed and you are waiting to find out whether further action will be taken, contact Old Bailey Solicitors on 0207 8464 999 or email [email protected] to arrange a meeting.