My Lords, I am grateful to the noble Lord, Lord Berkeley, and others for speaking to these amendments. This group considers the sentencing of road traffic offences, and I propose to take each one in turn, if I may. I hope that the noble Lord will understand if I do not comment on the specifics of the particular cases he mentioned; not only do I not personally know about them but, as a matter of general approach, it is unwise for a Minister to comment on a court’s decisions in particular cases when they have obviously not heard the evidence and seen the facts. I do, of course, extend my condolences to the victims in those cases. I also acknowledge the moving contribution from the noble Baroness, Lady Hayter of Kentish Town, and her particular background in this area.
The noble and learned Lord, Lord Judge, reminded us that the law in this area is complex; it now fills a very weighty tome, Wilkinson’s Road Traffic Offences. I will come back at the end of my remarks to the question of an overall review, which the noble Lord, Lord Berkeley, also mentioned. Despite the fact that they perhaps take up more space than they ought to, I think it is fair to say that the current driving laws, while not perfect, work well in the vast majority of cases.
Importantly—this theme ran through the Committee’s debate and was a point made by the noble Baroness, Lady Jones of Moulsecoomb—we have to strike a balance between the culpability of the driver and the harm or consequences which they cause. That is particularly important in the area of driving, where a moment’s inattention can have such drastic consequences.
I will not comment on the other two areas of life which the noble Lord, Lord Russell of Liverpool, speaking unwhipped, put before us. However, it is often commented that the average person does think that they are an above average driver. Even my maths is good enough to realise that we cannot all be above-average drivers, at least not all the time.
The fact that some of these amendments seek to lower the culpability required before an offence is committed, and others seek to raise the level of culpability needed, might indicate that, broadly speaking, we have the balance about right at the moment. I will speak to the amendments in turn, but I can assure the noble Baroness, Lady Jones, that victim blaming is no part of my or the Government’s response to any of them.
Amendment 152, which aims to replace Clause 65 in the Bill, does two main things. First, it would replace—I think the noble Lord said it “redefines”, but it effectively replaces—the current objective test of what amounts to careless or dangerous driving with a new test which is, essentially, linked to breaches of the Highway Code. The new test would apply to all offences which relate to or incorporate careless or dangerous driving. Secondly, the new clause would replace the existing
“causing death by careless driving under the influence of drink or drugs”
offence with new offences of causing death “or serious injury” by driving under the influence of drink or drugs. The Government have serious concerns about
the way this amendment would change the current law. We believe that it would render the current law inconsistent, unworkable and unjust. I will try to explain why we say that.
Given the particular nature of driving, bad driving offences are based not on establishing the intent of the driver but on considering the standard of the driving. The test in law compares the driving of the defendant to that of a notional careful and competent driver, so it is an objective test. If the driving falls below that of the careful and competent driver, the driving is careless; if it falls far below that standard, it is dangerous. This amendment seeks to replace that objective test based on the standard of a person’s driving, which is the current law, with a new definition of dangerous driving which applies to all offences of dangerous driving, including causing death or serious injury.
As we have heard, the proposed new test is linked to breaches of the Highway Code, and here the problem starts. Noble Lords will know that the Highway Code contains references to behaviour that gives rise to criminal offences, and that those offences are set out elsewhere in legislation. But it also contains advisory provisions which are not criminal offences. We should be clear that, when we talk about a breach of the Highway Code—when you do something which it says you should not be doing—you are not always referring to something which amounts to criminal offending. Indeed, often breaches of the Highway Code are not criminal offences.
As the noble and learned Lord, Lord Hope of Craighead, pointed out, under this amendment the standard for dangerous driving could be met by a breach of the Highway Code that causes no more than a little “inconvenience”—one of the tests in the amendment—to another road user. At the same time, the offences covered by dangerous driving attract significant custodial penalties, despite the attempt to limit this offence to “serious” breaches of the code. Serious breaches are, in turn—and, with respect, I suggest inappropriately and impractically—defined in relation to passing or failing a driving test. So where does that get us, when we put it all together?
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In this amendment, if you breach the Highway Code in a way which means that you would automatically have failed a driving test, that is dangerous driving. That means that careless driving is defined as everything that amounts to a breach of the Highway Code but is not so serious as to result in a person automatically failing a driving test. This is illogical. It would mean that a person could commit this new careless driving crime and be convicted of driving carelessly but, had he driven in that way during his driving test, he would have passed. It is a strange form of careless driving which amounts to a criminal offence but enables you to pass your driving test. The problem underlying the approach in this amendment is that this has moved us away from the objective test which we presently have in law, looking instead to breaches in the Highway Code or passing or failing driving tests.
We heard from the noble and learned Lord, Lord Brown of Eaton-under-Heywood, a history of the law in this area. The current test has been arrived
at after much consideration and revision over many years. I do not suggest that it is a perfect solution, but it is a good solution and works in the vast majority of driving cases. The practical problems that I have identified are a barrier and should make us think not once or twice but three or four times before we replace the current objective test with something else—better the devil you know.
The second strand of Amendment 152 creates new offences of causing death or injury while unfit to drive because of alcohol or drugs. It is important to note that it removes the requirement for the driver to be driving carelessly from the existing offence of causing death by careless driving under the influence of drugs or alcohol. The penalties for these new offences would be 14 years’ imprisonment for causing death, and five years for causing serious injury. Again, let us be very clear about what the amendment does. The removal of the requirement for the driver to be driving carelessly means that a driver with no or very limited culpability for the death as a result of their driving—other than the fact that they should not have been on the road while under the influence of drink or drugs—would be guilty of an offence with a 14-year maximum penalty. They should not be on the road and they are under the influence of drink or drugs, but their driving is perfect. That is the problem with this offence.
If noble Lords were to retort, “Just a minute, they shouldn’t have been on the road in the first place. That’s why they go to prison”, I would reply that, quite apart from the fact that this ignores the quality of the actual driving, the same penalty is not imposed for other offences where the driver should not have been on the road in the first place. It is not proposed, for example, for causing death or serious injury for driving while disqualified, unlicensed or uninsured.