Thursday, 12 March 2009

Time to abolish "causing death by dangerous driving"

Lord Ahmed, the Labour peer serving 12 weeks for dangerous driving, will now be freed, after the Court of Appeal suspended his sentence. Ahmed was texting as he drove down the M1 on Christmas Day 2007, minutes before being involved in a fatal crash. The crash wasn't Ahmed's fault; it appears to have been a pure accident, entirely unrelated to the texting.

Of course, if the texting had been the actual cause of the crash, he could have been charged with one of two crimes: causing death by dangerous driving, or causing death by careless driving.

The latter offence is a relatively new one, introduced by the Road Safety Act 2006. Before the 2006 Act, the only "death by" motoring offence was death by dangerous driving. This led to problems when the defendant's driving was just careless, rather than dangerous. People whose loved ones died in those sorts of accidents felt that their loss wasn't recognised at all by the criminal justice system, which is why "death by careless" has now been introduced.

Much as I feel for people who lose family and friends in car accidents, I can't see a principled legal reason behind either of the "death by" offences. The crimes that they're based on (straightforward dangerous driving and careless driving) are so-called conduct crimes: that means that you don't have to do any actual damage to be guilty of them. Lord Ahmed's case is a good example - his texting didn't cause any harm, but he was guilty of driving dangerously all the same.

A crime like murder, on the other hand, is a result crime: to be guilty, you have to bring about a particular result, ie. someone's death.

The two "death by" driving offences are neither: they take a pure conduct crime like dangerous driving, and then tack a piece of result crime onto the end of it, which is a hopeless mishmash.

I would argue that it's wrong, in principle, to jail someone for bringing about a particular result unless they have some element of mental guilt related to that result. In other words, to be convicted of a crime that includes the words "causing death", you must either intend someone to die, or you must deliberately run the risk of someone dying.

We need to look at the reason why a person is culpable. If they're culpable simply because of the poor standard of their driving, then we should consider their level of car control, and nothing else. If they're culpable because of the result that they brought about, we need to look for intention or recklessness as to that result.

It's technically possible to charge four-wheeled killers with manslaughter - a proper result crime with a proper element of mental fault - but it only happens rarely. That's because juries are reluctant to convict bad drivers of such a serious-sounding crime, even if they're guilty on paper. The CPS almost invariably prefer to use the specific driving offences.

I've come to feel that there are two main reasons behind the "death by" offences: making it easier to convict people, and making the families of victims feel better. The first strikes me as downright unacceptable; the second, whilst it's important, is surely no excuse to cut corners with our principles. I'm sure this will go down like a lead balloon with car crash families, but I'd cheerfully abolish the two "death by" offences.

Just as an aside: why are we giving jail sentences to dangerous drivers, anyway? I wouldn't be scared to meet Lord Ahmed outside a pub on a Saturday night; what's the sense in locking him away at the taxpayer's expense? Surely a long-term driving ban, coupled with some community service (perhaps in a hospital A&E department) would be far more appropriate!

17 comments:

Jennie said...

Ahmed should have been convicted of manslaughter, you're right. And also banned from driving for life. If you can't safely be in control of your vehicle, you shouldn't be driving it. Driving is a privilege, not a right, and it's certainly not more important than someone's life.

Jonny Wright said...

I never claimed that Ahmed should have been convicted of manslaughter. There's a pretty fundamental reason why he couldn't be convicted of manslaughter: he didn't kill anyone. The fatal crash wasn't a result of his dangerous driving; it would have happened anyway.

Jennie said...

... the car he crashed into had already hit the central reservation when he hit it, but it was him hitting it that killed the driver.

Anonymous said...

"his texting didn't cause any harm"

Only by luck - ANYTHING might have happened while he was paying more attention to his text messages than to what was going on around him on the road.

His actions were so grossly irresponsible as to merit his being locked up in a looney bin. He demonstrated a total disregard for the well-being of everyone else in the vicinity.

Jonny Wright said...

Jennie - the dangerous driving wasn't the cause of the crash; the court found that there was no causal link between the texting and the fatal accident. That means that legally, you can't say Ahmed was responsible for causing the death.

Anonymous - that's precisely the point I'm getting at. When we punish people for dangerous driving, we're not punishing them for the actual consequences of their driving, we're punishing them for the risk that their conduct causes to others. That means that if you've got two drivers who text behind the wheel, and one of them kills someone and the other (by sheer luck) doesn't, they're actually both equally bad, and should be punished in the same way. That's why I'm arguing that the crime of causing death by dangerous driving doesn't make much sense, and should be abolished.

Jennie said...

The texting was not the cause of the crash, but he DID crash and he DID kill someone. On a motorway, even at night, he must have not been paying attention. He caused that man's death, and to say he didn't is bollocks.

Jonny Wright said...

I'm afraid I don't agree with you, Jennie.

According to all the reports I've read of the accident, it would have been impossible for Ahmed to stop in time. Lady Justice Hallett said that there was "little or nothing" Lord Ahmed could have done to stop the crash from happening. (source: http://www.yorkshirepost.co.uk/news/Text-crash-peer-freed-from.5065124.jp)

Suppose you were driving along a road carefully, at a sensible speed, and paying perfect attention to the road - and then a child jumped in front of you, leaving no space to brake, and died as a result. Surely you're not saying that it would be fair to legally hold you responsible for the child's death?

The test, in law, for causation, is called the "but for" test: but for the defendant's actions, would the victim have died? If the answer is no, they would have died anyway (ie. the crash was impossible to avoid even for a completely safe and careful driver), then legally you can't say he caused it.

Jennie said...

Don't lecture me on the but for test, please. I did my law degree when you were still in nappies. But for Ahmed's bad driving, the guy would not have died.

The Golden Rule on the road is that you should be able to stop in the distance you can see to be clear. If he couldn't have stopped in time he was tailgating, and thus is at fault. If the crash happened outside his braking distance and he didn't stop in time, he was inattentive, and thus is at fault. This is different from a child jumping out into the road, the car was already ON the road.

Stop talking arse.

Jonny Wright said...

I'm terribly sorry; I had no way of knowing you were a lawyer. Most of the people that read this aren't going to be lawyers. I'm just trying to make sure that if I do use legal concepts in my arguments on here, they're explained clearly for the benefit of everyone. If you felt I was lecturing you, then my apologies.

Innocent accidents do happen on the roads sometimes. The court found that there was nothing Ahmed could have done to avoid the accident under any circumstances. If it is talking "arse" and "bollocks" to say that the court, which has seen all the evidence, might just know what it's talking about, then I plead guilty.

Jennie said...

Ah, so if it's not just me you're patronising, that's OK?

You know as well as I do that courts are not infallible. You also know that even if you kill 6 people, if you are in a motor vehicle, you are magically held to to be not liable. The motor lobby is a powerful thing.

Jonny Wright said...

Again, I'm very sorry if you felt I was patronising you, or anyone. That wasn't the intention at all. I was simply trying to explain myself fully rather than using legal shorthand.

Jennie said...

* poke *

No worries.

Jonny Wright said...

Were you referring to the recent M6 crash trial in your previous post, by the way? I thought the guy got 3 years for it? (One of the guys on my rowing team is a barrister's clerk at 1 Stanley Place in Chester, who prosecuted that case; the way he told it, it sounded like a pretty clear-cut case of totally idiot driving.)

Jennie said...

Yes, and how long would he have got for killing 6 people by, say, badly mending a gas oven and causing an explosion? I bet it would have been a damn sight longer.

Anonymous said...

"The Golden Rule on the road is that you should be able to stop in the distance you can see to be clear. If he couldn't have stopped in time he was tailgating, and thus is at fault"

This crash occurred during darkness when the other vehicle had already crashed and was straddling 2 lanes of the motorway.

I don't think there was any evidence that Ahmed was tailgating. It was not a question of simply running into the back of another vehicle.

hastalavistavista.com said...

Given that Jennie is about 10 years older than Jonny she must have completed her law degree at the age of around 11. That is pretty impressive! (Hope that doesn't sound too patronising).

;-)

Anonymous said...

If someone is driving they are responsible for themselves passengers and pedestrians. A car is a lethal weapon it is a two ton killing machine which should carry a health and safety warning. Anyone killed by a driver should face charges of manslaughter or murder as that is what they have done by taking a life, a whole family and community has been left deprived of that life. I wonder if you would want this abolished if it was one of your family members or a loved one. My son was killed in april 09 by a young driver. My son was 17 he was a promising young boxer a warm,
caring, fun loving character. All he did was accept a lift during a lunch break from extra cirricular activities in school on a saturday morning. While i understand no matter what happens from now with the driver it will make no change to what happened to my son, but the law requires someone has to pay.If there is no accountability then why should people care how they drive, should we be wreckless and just not care because there is no punishment. The law is in place for us to be aware of while we are out driving and to make us aware of the responsibility we have for the lives of others as well as ourselves, dangerous driving causing death is exactly what it says it is 'Dangerous driving causing death'.