Tom Harrington LL B (Hons) F. Inst. MTD
Careless driving is driving below the standard expected by a competent and careful driver whereas dangerous driving is far below the standard expected by a competent careful driver. Normally, you will not be committed to prison for careless driving but you could lose your license in serious cases. Dangerous driving may be dealt with by the Magistrates Court or the Crown Court, depending on just how serious the allegations are. Causing death by dangerous driving and causing death by careless driving while intoxicated or on drugs will now carry a top-level punishment of life imprisonment. This article looks at both offences and asks whether the word ‘careless’ trivializes the nature of the offence of careless driving.
While the UK has one of the best road safety records in the world, deaths and serious injuries on the roads cause devastation to victims and their families. Regardless of the sentence meted out by the court, it can never adequately reflect the loss of a loved one. Most of the time, the vast majority of drivers drive well however, sometimes even an error of judgment or loss of attention can have devastating consequences. As a general principle, the criminal law needs to take into account not only the harm caused, but also the level of blame of the offender. Sentences must be a matter for the judge to determine in individual cases, based on the full facts of the case and the offender before them.
If you drive for long enough on the road network, you’ll see all sorts of examples of driving behavior that could be deemed careless (inconsiderate) or dangerous. A list of unsafe driving actions can include: aggressive driving; speeding; dangerous lane changing; excessive use of the audible warning device; lack of signaling; drivers dozing off at the wheel and, of course, drivers using a mobile phone in one hand and breakfast in the other. Most of us drivers feel we’ve grudgingly accepted the existence of careless and dangerous drivers and their unsafe behaviour, but the fact is that at some point in our driving careers, we are all prone to do something unsafe – or fail to do something safe. Gaining a grasp of the true consequences of our own careless behaviour, including knowing when and how it may violate the law will lead to fewer accidents and law fines for everyone. One of the first keys is to understand the legal significance and difference between careless and dangerous driving. This article takes an in-depth look at what constitutes careless and dangerous driving, its impact on the victims and their families and the punishments the courts hand down. Also, reference will be made to a public consultation conducted in 2016/2017 that was aimed at all with an interest in road traffic legislation in relation to offences of causing death and serious injury. Some case law will highlighted, especially McKrone v Riding (1938) involving an ‘L’ driver.
Under the Road Traffic Act (RTA), 1961, s52 as substituted by s.50, RTA, 1968, and as amended by s3, RTA (Amended) a 1984, a person shall not drive a vehicle in a public place without due care and attention.
A person who contravenes subsection (1) of this section shall be guilty of an offence and shall be liable on summary conviction to a fine at the discretion of the court, to imprisonment for any term not exceeding three months or both. A charge of careless driving is generally preferred where a person has been merely careless, doing his incompetent best or has been momentarily inattentive and it does not necessarily follow that the charge must be dangerous driving when death or serious bodily harm results for such carelessness. It is a question of fact for the court to decide in each particular case whether a person has driven carelessly. Primarily, the test to be applied is an objective one; has the prosecution proved that the defendant departed from the standard of care and skill that in the particular circumstances of the case would have been exercised by a reasonable, prudent, competent and experienced driver? In McCrone v Riding (1938), a case involving a learner driver, it was held that a defendant who fails to exercise due care is guilty whether or not his failure is due to inexperience. Secondly, the decision may be a subjective one on the particular facts and what may amount to careless driving in one situation may not warrant a conviction in another. In Walker v Tolhurst (1976), a motorist who had correctly indicated his intention to enter a high street hit a cyclist riding along that street. The facts were that it was 5.50pm on a dark January evening, the street lighting was not lit and it was raining. The motorist was acquitted on a charge of careless driving. The Divisional Court observed that, more often than not, colliding with another vehicle on the main road on emerging from a side road must amount to careless driving, but the decision of the justices must be a subjective one on the facts and that the case was not strong enough for it to be said that the decision was perverse. A person is guilty whether or not the circumstances which gave rise to the charge were deliberate or an error of judgement (Taylor v Rogers) (1960). Knowledge of his carelessness is not an essential element of the offence. In Hampson v Powell (1970), a lorry driver who was not aware that he had hit a stationary vehicle was held to be rightly convicted of careless driving, although his conviction for failing to report the accident was quashed because he was unaware of such accident. Depending on the circumstances, a breach of the General Bye Laws (which provide for the majority of lesser driving offences) may amount to careless driving or driving without reasonable consideration for others.
Careless driving is driving below the standard expected by a competent and careful driver whereas dangerous driving is far below the standard expected by a competent careful driver. The law about the two standards of driving is the Road Traffic Act (RTA). Section 3ZA of the Road Traffic Act (RTA) 1988 gives the definition of careless driving and s2A (1) of the Act gives the definition of dangerous driving.
“A person is to be regarded as driving without due care and attention (and only if) the way that the way he/she falls below what would be expected of a competent careful driver”.
(a) Momentary lapse of concentration or misjudgement at low speed.
(b) Loss of control due to speed, mishandling of insufficient attention to road conditions, or carelessly turning right across on-coming traffic.
(c) Overtaking manoeuvre at speed s resulting in a collision of vehicles, or driving bordering on the dangerous.
“… a person is to be regarded as driving dangerously if (and only if) the way he/she drives falls below what would be expected of a competent driver”.
The dangerousness must be obvious to a competent and careful driver. Dangerous means danger of injury to a person or serious damage to property. It’s pretty unusual for the law in England and Wales to give examples of what can be an offence. You won’t find any examples about dangerous and careless driving in the Road Traffic Act (RTA) 1988. The following are some sentencing guidelines by the Magistrates Courts:
(a) Prolonged bad driving involving deliberate disregard for the safety of others.
(b) Incidents involving excessive speed or showing-off, especially on busy roads or in a built-up area.
(c) Driving while being pursued by the police.
Careless driving is dealt with in the Magistrates court. It will typically carry a fine and a penalty point’s endorsement on your license.
You will not be committed to prison for careless driving but you could lose your license in serious cases. Dangerous driving may be dealt with by the Magistrates Court or the Crown Court, depending on just how serious the allegations are. The maximum sentence in the Magistrates court is imprisonment for up to six months and a fine up to £5,000. In the Crown court, the maximum punishment is up to two years imprisonment and an unlimited fine.
Same Duty of Care
When considering the standard of driving in any particular case and potential defences that might arise, prosecutors should be aware of the case – R v Bannister . The facts in this case were that a police officer drove in the dark with no road lighting, in conditions of torrential rain with a lot of heavy surface water on the motorway at speeds of up to 120mph, and his car spun out of control and crashed. The officer was prosecuted and in his defence it was argued that as the officer had successfully completed an advanced training course he was able to drive safely at high speed. (Clearly he wasn’t. Ed.) It was contended that the training had enabled him because of the special skill, to drive at speeds in adverse road and weather conditions safely, even if that were not the case for the ordinary competent and careful driver. The officer was convicted and appealed the decision. The Court of Appeal in its judgment held that a special skill (or lack of skill) of a driver is irrelevant. When considering driving to be dangerous, the test to be applied is the objective test of the competent, careful driver as set out in the statute. The Court of Appeal also stated clearly that police officers were not entitled to drive dangerously when on duty or responding to an emergency. It is therefore apparent from the Bannister case that members of the emergency services when responding to emergency calls owe the same duty of care to other road users as ordinary members of the general public.
‘Shake-up’ of Sentences
Causing death by dangerous driving and causing death by careless driving while intoxicated or on drugs will now carry a top-level punishment of life imprisonment. The previous maximum sentence was 14 years. These sentences will be available in the more serious cases involving the use of mobile phones, speeding or street racing after a government shake-up to sentences following a public consultation. A new offence will also be created – causing injury by careless driving – with the government still deciding on the maximum sentence.
According to the Department for Transport (DfT), three in five motorists who cause death by dangerous driving are jailed; however, the average sentence for this offence is four years. Figures from 2016 show that 157 people were sentenced for causing death by dangerous driving and 32 people were convicted of causing death by careless driving while intoxicated. These changes were due to come into effect following criticism that sentences were too lenient for those who were convicted over road deaths or caused serious injuries, akin to grievous bodily harm. A Government consultation spanning December 2016 to early 2017 which generated 9,000 responses showed that 90pc of respondents believed there was a sufficient need for a new offence causing injury by careless driving. 70pc backed increasing the maximum sentence for death by dangerous driving from 14 years to a life term. The changes to the law will apply to England, Scotland and Wales but not N. Ireland – who have their own motoring laws.
Intention (Mens Rea)
There has been some confusion suggesting that death by dangerous driving offences is to be treated akin to murder, which involves an explicit intention (mens rea) to kill. This is not the case. Murder cases carry a mandatory life sentence. Death by dangerous driving cases and causing death by careless driving while drunk or on drug cases are now to be treated like manslaughter where there is no intention to kill, but death is however caused as a result of the defendant’s actions.
The increase in maximum sentences gives the courts power to impose a life sentence on a case by case basis and impose a much lesser sentence if the case warrants it. Explaining the rationale behind this when the changes were initially proposed, Anton Balkitis explained as follows:
“Both negligent manslaughter and causing death by dangerous driving are charges where the intention to kill is absent. Likewise, both share the same base requisite that given the risk of death involved, the conduct falls far below that standard of that expected of a reasonable person. With that in mind, and considering the fact that manslaughter carries a discretionary life sentence, I believe judges should be able to impose a similar maximum penalty”.
Effect on Victims and Their Families
For many bereaved families, the immediate aftermath of a death caused by careless or dangerous driving is only the beginning. The experience of attending court and giving evidence is a necessary step in ensuring justice is done. The vast majority of bereaved families suffer from trauma related symptoms, including depression; become addicted to alcohol; stopped working; had to move home; relationships affected and difficulty in managing finances etc. The average financial cost is estimated at £37,000 which includes probate to funerals to attending court. The effects persist for many years. There is also the physical and emotional impact alongside practical problems which require society to think in terms of rehabilitation for those families and their children.
Similar to families of drink driving perpetrators, families of victims also experience family relationship distress. Grief due to the loss of a child in a traffic collision caused by careless or dangerous driving can divide and separate parents to the point of divorce. Additionally, children in victim families frequently experience higher rates of depression, anxiety and overall stress. Adult family members also experience their own grieving process. They may find it difficult to complete childcare activities adequately. Additionally, while their symptoms of grief may be similar to those of a child, adult symptoms can also include difficulty with concentration, unusual irritably, excessive eating or sleeping and imagining they are seeing or hearing the person who has died. Nobody wins as a result of a person killed due to careless or dangerous driving. Whether a perpetrator or a victim, families on both sides experience pain, grief and distress that continue for years. Families involved in a road death, no matter what the role, are changed for ever.
The use of the word “careless” in relation to driving offences (as in careless driving) appears to trivialize the nature of the offence and, especially in relation to offences that result in death because it could be construed as insulting to bereaved families. A number of victims and families of victims have raised this concern although they recognise that careless driving is an established term within the relevant legislation. Under existing law, what amounts to careless or dangerous driving is determined not by considering the drivers state of mind or intentions, which in the context of driving is often difficult to ascertain, but by examining the nature of their driving. The law sets out an objective test designed to compare the defendants driving in the specific circumstances of the case against what would be expected of a notional and competent driver.
The charge can be brought when driving falls below the standard of a careful and competent driver. It is regarded as a trivial charge in its terminology and in sentences handed out: usually a small fine in a Magistrate’s court. Yet this charge is currently often brought in cases of serious injury and when driving is really bad, often because prosecutors feel there is a good chance of conviction compared with bringing a more serious charge. Rather than being prosecuted for “careless driving”, those who drive badly should be prosecuted for dangerous driving with a range of possible penalties depending on the level of danger posed. If a driver’s bad driving resulted in injury or death, they should be charged with an offence that explicitly references that injury or death. A driver can also be accused of dangerous driving if the vehicle itself is in a dangerous condition, regardless of how competent the driver’s driving ability was. A vehicle can be described as “dangerous” in this context if it causes or is likely to cause serious property damage or injury to any person, for example, – if a car does not have working brakes, it would be too dangerous to be on the road. Whether a person has driven in a manner dangerous to the public is a question of fact for the court to decide in each particular case.
For this reason reported decisions should be applied with caution and, even if a reported decision can be found to fit the facts of a case at hearing, there must inevitably be some material variation in weather, light, traffic and some other factor. Even though members of the emergency services may feel they have a certain latitude to exceed the speed limit because of the nature of their job, they still have a duty of care to drive (as in Bannister above) safely and owe the same duty of care to other road users as ordinary members of the general public. Drivers who are apprehended for careless or dangerous driving will end up in court with an appropriate sentence handed down however, if they can successfully plead “Special Reasons” or “Exceptional Hardship” as mitigating circumstances, they may well be left off with a lesser punishment.
Finally, deaths and serious injuries on the roads cause devastation to victims and their families for whom the sentence can never adequately reflect the loss of a loved one. Therefore, it is incumbent on all of us to drive with care, courtesy, consideration and common sense in an effort to help reduce the appalling carnage that occurs on our roads on a daily basis.