Zoe McDonnell

It is highly likely that certain UK-wide driving laws will be changed in the near future. These changes include:

• an increase in the maximum prison sentence for causing death by dangerous driving from 14 years to life imprisonment;
• the creation of a new offence of causing serious injury by careless, or inconsiderate, driving, with a maximum prison sentence of 12 months where prosecuted summarily and two years where prosecuted on indictment; and
• an exception from the standard definitions of dangerous and careless driving for those driving “for police purposes” who have undertaken prescribed training and the creation of newly defined offences for such drivers.

Dangerous driving

The standard definition of dangerous driving is not changing. This is where the way the person drives “falls far below what would be expected of a competent and careful driver” and “it would be obvious to a competent and careful driver that driving in that way would be dangerous”. A person is also to be regarded as driving dangerously for these purposes “if it would be obvious to a competent and careful driver that driving the vehicle in its current state would be dangerous.”

Careless, or inconsiderate, driving

Again, the standard definition of careless, or inconsiderate, driving is not changing. This is where a person drives “without due care and attention or without reasonable consideration for other persons.” Driving without due care and attention is more particularly defined as where the way the person drives “falls below what would be expected of a competent and careful driver.” Driving without reasonable consideration for other persons only applies if those persons are inconvenienced by the driving.

Whilst the new offence of causing serious injury by careless, or inconsiderate, driving will apply UK-wide, the definition of “serious injury” for these purposes will be different for Scotland compared to England & Wales. In Scotland, serious injury is to mean “severe physical injury” whilst, in England & Wales, it is to mean “grievous bodily harm for the purposes of the Offences against the Person Act 1861.”

Dangerous or careless driving for relevant police drivers

Whilst all circumstances of the individual case need to be taken into account when assessing the standard of driving, the test for dangerous or careless driving has traditionally been approached on an objective basis without any particular regard to who was driving or the purposes of the driving. So, for example, a learner driver, a driver with 10 years’ experience and a police driver would be judged against the same objective criteria of “a competent and careful driver”. This is changing for police drivers.

Where the driving is “for police purposes” and if the driver has undertaken certain prescribed training, the test for dangerous driving is to become if “the way the person drives falls far below what would be expected of a competent and careful constable who has undertaken the same prescribed training” and “it would be obvious to such a competent and careful constable that driving in that way would be dangerous”. Likewise, the test for careless driving in these circumstances is to become if “the way the person drives falls below what would be expected of a competent and careful constable who has undertaken the same prescribed training.”

The UK government has explained that the standard is not changing for emergency service drivers other than the police because it is only police drivers who are involved in pursuing suspected offenders. The government has also made clear that this change will not give police “a licence to drive dangerously”, emphasising that pursuits must be proportionate and may only be undertaken after consideration of relevant risk factors.

Likely timing for these changes and conclusion

These changes are being brought about by the Police, Crime, Sentencing and Courts Bill currently progressing at Westminster. This bill will next be considered by the House of Lords in the second half of this month and may complete its legislative passage this year and be brought into force next year.

It is also noteworthy that the Scottish Sentencing Council has recently implemented a general guideline on the Scottish sentencing process and is currently drafting a specific guideline for sentencing in relevant cases of causing death by driving. The Sentencing Council for England and Wales implemented sentencing guidelines in this area in August 2008 and will update those to take account of any changes enacted.

Zoe McDonnell is a partner at BLM