These are two of the most serious motoring offences a person can be charged with. There are some similarities between the offences, for example, both offences are defined within the Road Traffic Act 1988 (RTA 1988), causing death by dangerous driving in section 1 and causing death by careless driving in section 2B; both offences require the defendant’s standard of driving to have caused the death of another; and the prosecution must prove the cases beyond all reasonable doubt. However, there are some significant differences which we will look at below.
Standard of driving
The first difference between the offences is the standard of driving that the prosecution is required to prove.
This might sound self-explanatory – causing death by careless driving requires proof of driving careless (or inconsiderate) driving, whereas causing death by dangerous driving requires proof of dangerous driving. Simple right? Not necessarily.
We need to look at the difference between what is meant by careless driving and dangerous driving.
Under section 2A(1) RTA 1988, a person is regarded to be driving dangerously if:
- the way he 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.
The Highway Code is a guide to the standard that is to be expected of a careful and competent driver, (Taylor [2004] EWCA 213) and “dangerous” refers to the danger of injury to any person or of serious damage to property (section 2A(3) RTA 1988).
Careless or inconsiderate driving is defined in section 3ZA RTA 1988, which states that a person is regarded to be driving without due care and attention, if (and only if) the way they drive falls below what would be expected of a competent and careful driver.
The main difference between the two standards of driving is very small, three letters in fact, the word “far”. But what does that mean?
Examples of dangerous and careless driving
Careless driving can include driving which involves:
- overtaking on the inside;
- driving too close to another vehicle;
- driving through a red light by mistake;
- turning into the path of another vehicle;
- the driver being avoidably distracted by tuning the radio, lighting a cigarette etc.
- flashing lights to force other drivers to give way;
- misusing lanes to gain an advantage over other drivers;
- unnecessarily staying in an overtaking lane;
- unnecessarily slow driving or braking; or
- dazzling other drivers with un-dipped headlights.
Dangerous driving can include:
- racing, going too fast, or driving aggressively;
- ignoring traffic lights, road signs or warnings from passengers;
- overtaking dangerously;
- driving under the influence of drink or drugs, including prescription drugs;
- driving when unfit, including having an injury, being unable to see clearly, not taking prescribed drugs, or being sleepy;
- knowing the vehicle has a dangerous fault or an unsafe load;
- the driver being avoidably and dangerously distracted, for example by:
- using a hand-held phone or other equipment;
- reading, or looking at a map;
- talking to and looking at a passenger; or
- lighting a cigarette, changing a CD or tape, or tuning the radio.
The recent case of Holder [2023] EWCA Crim 5, considered the difference between careless and dangerous driving, specifically in the context of the offences of causing death by dangerous driving and causing death by careless driving.
The case was an appeal against sentence following a conviction of causing death by dangerous driving. The defence argued that the standard of driving amounted to careless driving, not dangerous and the fact that the passenger was not wearing a helmet was irrelevant to the standard of driving. The Court of Appeal found that when driving a scooter carrying a passenger under 16 who is not wearing a helmet was properly to be considered “part and parcel” of the driving for the purposes of an offence of causing death by dangerous driving. The fact that this did not relate to how the vehicle (in this case a scooter) was physically manoeuvred did not stop it from being considered as part of the standard of driving, in the same way that if a vehicle was in a dangerous condition, this would not prevent a jury finding that the driving of that vehicle was dangerous (s.2A(2) RTA 1988). The appeal was dismissed.
Whilst this case relates specifically to a motorcycle scooter, it arguably has a knock-on effect on drivers of cars. It has essentially set precedent for drivers to ensure the safety of their passengers and vehicle, as failure to do so may be considered a contributory factor in establishing the dangerousness of driving.
Where will my case be heard?
Another difference between the two offences is, which court will hear the cases. All criminal cases will start life in magistrates’ courts. They will then either stay in the magistrates’ court or be “sent” to the Crown Court (s. 51(1)(a) of the Crime and Disorder Act 1988 (CDA).
Some offences can only be heard in magistrates’ courts, these are called summary-only offences and include speeding, careless driving and drink driving cases. Some offences can only be heard in the Crown Court, these are called indictable-only offences and include the most serious offences such as perverting the course of justice, murder, rape and burglary of a residential address. Whereas some offences fall somewhere in the middle and can be heard by either court, these are called either-way offences. Causing death by dangerous driving is an indictable-only offence. This means that while a defendant will have a first hearing in a magistrate’s court, this is only for the magistrates to consider whether or not they will be granted bail and for it to be “sent” to the Crown Court. The case itself can only be heard in the Crown Court. Once the case reaches the Crown Court a strict timetable will be set for the trial and disclosure. Causing death by careless driving is an either-way offence. Again, the case will have a first hearing in a magistrates’ court however, if the defendant enters a not guilty plea the magistrates can then decide whether or not they will keep the case for trial or send it to the Crown Court. When deciding the magistrates will consider if the defendant has any previous convictions and whether their sentencing powers are sufficient. If the magistrates decide to keep the case then the defendant has a right to choose that their case is considered in the Crown Court. If the defendant enters a guilty plea, the magistrates will consider again if they will keep the case or commit it to the Crown Court for sentencing if they do not believe their sentencing powers to be enough. For years, the sentencing powers of the magistrates’ court were limited to a maximum of 6 months imprisonment. However, on 2 May 2022 the magistrates’ court’s sentencing powers were increased to a maximum of 12 months imprisonment for offences committed after that date (section 282 Criminal Justice Act 2003 and paragraph 24 of Schedule 22 to the Sentencing Act 2020). Section 20(3) Magistrates Court Act 1980 (MCA) allows defendants in either way cases to ask the magistrates to indicate whether a custodial sentence would be likely following a guilty plea in the magistrates’ court. The indication is not binding on the court though if the defendant does not plead guilty after the indication is given.
Sentencing
Another main difference between causing death by careless driving and causing death by dangerous driving is the sentencing.
The maximum sentence for causing death by careless driving is 5 years custody, with a range of a medium-level community order to 5 years custody. The court will impose a driving disqualification for a minimum of 2 years and will also have the discretion to impose an extended re-test as outlined in s.36(4) RTOA 1988.
The maximum sentence for causing death by dangerous driving is life imprisonment. The court will also order a driving disqualification for a minimum of 5 years, with a compulsory extended re-test.
Both offences are broken down into 3 levels depending on the seriousness of the individual offence – level 3 offences being the least serious and level 1 being the most serious.
The sentencing for causing death by dangerous driving was changed by the introduction of section 86(2) Police, Crime, Sentencing and Courts Act 2022 (PCSCA) and applies to offences committed after 28 June 2022. It also increases the maximum sentence for causing death by careless driving when under the influence of drink or drugs (an offence under section 3A RTA 1988) to life imprisonment and a minimum disqualification of 5 years. This change is a clear indication of how seriously these offences are taken by society. However, it is not clear how sentencing will apply.
The Sentencing Council produces sentencing guidelines for nearly all criminal offences. Although the Sentencing Council are currently in consultation about the new guidelines, guideline for causing death by dangerous driving has not yet been updated and this means that sentencing judges are having to rely on the old guidelines which is causing confusion and uncertainty.
The recent case of Soto & Waite [2023] EWCA Crim 55 saw the Court of Appeal consider two unrelated cases which had been referred by HM Solicitor General. The Court considered the confusion among sentencing judges. The Sentencing Council currently consulting on new guidelines for death by dangerous driving. However, until a new guideline is introduced sentencing judges will have to rely on the old guideline which indicates a range of 7-14 years custody for category 1 offences. The Court did however give the following guidance:
- Only sentencing for only the most serious offences (level 1) of causing death by dangerous driving will be increased from the range indicated under the current sentencing guideline;
- Judges should use the starting point in the current guideline for level 1 offences and then adjust this to take account of the increase to life imprisonment;
- Any increase in sentencing should be considered in the context of the interests of justice and this cannot be a mathematical exercise by the sentencing judge;
- The Sentencing Council will set out the appropriate starting point for sentencing for the most serious offences (level 1) of causing death by dangerous driving;
- An increase in sentencing should not be considered by a court for lower-level offences (levels 2 and 3).
- The Sentencing Council will decide that sentences for lower-level offences (levels 2 and 3) should have the starting points of their sentencing increased however, this will only be decided following the full consultation;
- In every individual case, whether there is an increase in the maximum sentence indicated under the current guidelines, the sentencing judge must consider proportionality.
Other than this case and the explanatory notes to s.86(2) PCSCA, sentencing judges have no guidance as to how to sentence the most serious offences of causing death by dangerous driving or in what circumstances to apply the new maximum sentence.
If you have been charged with an offence of causing death by dangerous driving or causing death by careless driving, contact our specialist team today, who will provide expert, bespoke advice.
