Police, Crime, Sentencing and Courts Bill

Earl Attlee Excerpts

Lords Hansard - part one & Committee stage
Monday 8th November 2021 Lords Chamber

[Lord Russell of Liverpool (CB)]

My Lords, I was very happy to put my name to all these amendments. As you will be aware, the Cross Benches do not suffer from having Whips to tell us what to do, but when a call comes from the All-Party Parliamentary Group for Cycling and Walking, which I have the privilege of being an officer of, that is as near to a three-line Whip as a Cross-Bencher would recognise.

I was a head-hunter for 30 years, so, during that time, one met a range of human beings, many of whom had a particularly high view of the value of their own contribution in a variety of ways. One learned that there were three things in particular that the male of the species thought they were extraordinarily talented at. One of them was making love—I will leave it to noble Lords and noble Baronesses to decide whether the males of their acquaintance meet that hurdle.

The second is that, when interviewing someone, most men, particularly senior businessmen, think that they are extraordinarily talented at telling—within about 30 seconds—whether they are any good. The evidence suggests that they are 100% wrong all the time.

The third thing that many men think they are extraordinarily talented at is driving. Most of us tend to think that we are pretty good drivers—above average—and while, like most human beings, we occasionally make a mistake or forget one or two things that we should not forget, we are pretty relaxed and generous towards ourselves.

In researching this group of amendments and others that follow, the most clear and consistent factor across the whole range of road traffic offences and behaviour is that they are dealt with in an almost entirely inconsistent manner. The inconsistencies jump out at you, because many of the terminologies used are open to interpretation. Many of these terminologies were created and put into statute or guidance in the 20th century—and we are now, in case noble Lords had not noticed, in the 21st century. In the last two decades, the influence of technology has increased hugely, as all of us who drive are very aware.

I, perhaps, have a high danger capability, but I have bicycled in London for 40 years, on and off, and I drive. When I drive, like most people I have at least one device working in my car. One such device cleverly tells you when there are speed traps coming up, or policemen lurking by the side of the road—or whether there’s been an accident ahead. Equally, however, one is often listening or talking, or, even worse, texting. When I bicycle, I have nothing in my ears and I have all my senses about me. What I see, day in, day out, is pretty egregious behaviour, whether by motorists, cyclists or people on e-scooters—including e-scooters ridden by parents taking their four to five year-old children to school, standing in front of them with neither of them wearing a helmet, something that I find fairly alarming. I see this all around: it has become normal.

Until and unless we are more consistent and clearer about how we define acceptable behaviour when driving, or using any form of transport, and what is unacceptable—what is legal, what is illegal, and the gradations between them—we will continue to have an unacceptable level of inconsistency and more heart-rendingly tragic stories. My goodness, you find a lot of them if you do your research.

It is difficult to find rhyme or reason for such inconsistency. The Minister, as a lawyer, is well aware of the dangers that arise when there is inconsistency in how the law is understood. The Minister will also be aware, as are many lawyers, of the many opportunities that inconsistency affords lawyers. When there is inconsistency, or lack of clarity, in the law, it benefits a huge and very profitable industry in this country consisting of law firms that specialise in enabling people to escape, in a variety of ingenious ways, what are almost certainly the right penalties. That industry exists because of these inconsistencies.

These are clearly all probing amendments, but my plea to the noble Lord is that there is real reason and logic behind them, which is that a lack of clarity leads to inconsistency and stories of human tragedy.

[Earl Attlee (Con)]

My Lords, I am grateful to the noble Lord, Lord Berkeley, for his introduction to this group, and his outline of the problems. I also agree with much of what the noble Lord, Lord Russell, said about inconsistency. Unfortunately, however, the provisions in Clause 65 are rather unfair and disproportionate. This provision does not address the mischief. We already have the highest per capita rate of imprisonment in Europe, at 133 per 100,000, and this will not help.

I support Amendment 168, for the reasons outlined by the noble Baroness, Lady Hayter.

Clause 66 follows hard on the heels of Clause 65 in terms of its undesirability. Can the Minister confirm that these changes would increase the prison population, and if so to what extent?

One of the mischiefs is that, in the event of any road traffic accident, collision, or whatever you like to call it, the insurance companies and relevant contracts forbid policyholders from contacting the other party and, in particular, expressing any form of remorse or forgiveness. This totally flies in the face of the principle of restorative justice. The families, friends and victims can rightly feel aggrieved, due to the insurance regime and not the criminal law. There are other difficulties which I will not weary Committee with. The noble Lord, Lord Berkeley, was right to refer to serious injustices.

There is a problem with securing convictions for dangerous driving; convictions and prosecutions are often for the lesser offence of careless driving. I have much sympathy for the comments on careless driving and dangerous driving by the noble Lord, Lord Berkeley. I can say what the two offences are, but I have difficulty knowing how they are applied.

Clause 65 is about careless and dangerous driving in connection with drink or drugs. The maximum penalty for Clause 65-type offences is currently 14 years, and I have rarely seen anything like that applied. The Government are now proposing a more serious penalty—a life sentence—than for grievous bodily harm without intent.

The problem with the new provisions is that some of the substance thresholds for drug-driving offences are very low—well below the level causing impairment as advised by scientists. Furthermore, some substances can remain in the body for quite a while. Some people, such as noble Lords, never take recreational drugs. For some communities and socioeconomic groups, however, drug-taking is common. This could result in serious unfairness, with some offenders faced with a life sentence when their driving at the relevant time was not actually impaired by drugs.

Amendment 152, in the name of the noble Lord, Lord Berkeley, proposes a new definition and distinction between careless driving and dangerous driving, by reference to the standard required to pass the driving test. I remind Committee that I hold a qualification as an HGV driving instructor, albeit that it is a bit out of date.

It is surprisingly easy to get an automatic failure on a driving test, particularly under the heading “Examiner takes action”. Suppose that a candidate is driving along a main road but has left their left hand indicator on. Suppose that another vehicle is waiting to emerge from a side road and could be fooled into thinking that the test candidate intends to turn left off the main road. At that point, the examiner will say, “Cancel your signal”. That would be an automatic failure, because the examiner took action. I do not think, however, that any of us would call that dangerous driving. I think, therefore, that Amendment 152 is flawed.

However, I agree that it is too difficult to secure a conviction for dangerous driving. I wonder whether the careless driving offence ought to be confined to a momentary or short lapse in driving standards while the new offence of reckless driving ought to consider whether there has been a pattern of numerous, relatively minor contraventions that, taken gather, make for a much more serious offence. I suggest that the Minister sets up a meeting with relevant officials and subject matter experts so that we can discuss these important matters offline and understand them better.

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[Lord Wolfson of Tredegar (Con)]

The noble Baroness and I are sitting on opposite sides of the House. If I was driving, I would normally open the door with my right hand, so I was turning round to open it. I think my example was right, but I will look at the video tonight and write to the noble Baroness if I was wrong.

[Earl Attlee (Con)]

My Lords, my noble friend has been very helpful, but I am slightly worried that he does not fully appreciate how difficult it is to secure conviction for dangerous driving. On the Dutch reach, could we not include this in the driving test, which would mean that driving instructors would have to teach their students how to do it? I like to think I am an experienced driver and I carefully check my mirror before opening the door. Not doing so is an easy mistake for a novice driver to make, but it would be easy to train those drivers to use the Dutch reach.

[Lord Wolfson of Tredegar (Con)]

I am certainly aware of the differences between dangerous driving and careless driving. Dangerous driving is reserved for those instances of driving which fall “far below” the objective standard. The question of whether the Dutch reach should be included in the driving test is a matter for colleagues at the Department for Transport. I will pass that suggestion on; I hope they will get back to my noble friend on that point.

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[Lord Berkeley (Lab)]

My Lords, I am probably alone on this one: some years ago I went away from my wedding service in a pedicab in London, and I rather enjoyed it.

I understand where the noble Baroness is coming from, but I think the definition in this amendment will cause a few problems. It says that a pedicab is

“a pedal cycle, motor cycle or power-assisted cycle, or such a vehicle”—

I did not know that cycles were vehicles, but maybe that is right—

“in combination with a trailer, constructed or adapted for carrying one or more passengers.”

My daughter used to take her children to school sitting in a trailer on the back of a bicycle, and that would be covered by this amendment. I do not quite see why she should not continue to do that. It was not motor-assisted, but it could have been. This needs looking at.

I think what the noble Baroness is getting at is that she does not like the look of these things. I would agree—they do not look particularly nice. The biggest problem is that many are not insured. That is a serious problem. Whether they need controlling or licensing by TfL needs a bit of debate. The black cabs obviously do not like them because they take away business. Are we in the business of protecting black cabs because they look nicer than these pedicabs that go around with not just lights flashing but some pretty horrible music coming out of them sometimes? On the other hand, are we here to regulate music and pedicabs? I do not know. The key for me is that they should have third-party insurance at the very least. Whether their fares should be controlled is a debate that is probably down to TfL to decide. Secondly, who is going to enforce this?

The other type of “vehicle”, if you can call them that, are freight cycles, which are beginning to appear in the streets of cities, London included. Sometimes they have two wheels, sometimes three or four—I do not have a clue which—but they distribute freight to outlets in the city as an alternative to trucks and vehicles, which cause a lot of pollution if they are not electric. Do we want to prevent them going around? They might be plying for hire, and the customers would be moving freight, not passengers. Whether they should be insured is debatable, because cycles are not required to be insured at the moment, and I expect we will have a debate about scooters in a couple of years’ time. But it is questionable whether a freight cycle, with or without power assistance, should be covered by this. I suggest that it should not be. This goes back to the only issue on which I think I disagree with the noble Baroness, which is insurance, because they are carrying passengers for hire. If I am carrying my family or some friends as passengers in a trailer on the back of my bike, I do not see why I should have to be insured if I do not feel like it. I think that is the same as on a bicycle.

I hope the noble Baroness will consider these issues. If she comes back on Report with a changed amendment, she should confine it to things which really matter from the safety point of view, rather than widening it to freight, family trips or something else.

[Earl Attlee (Con)]

My Lords, I rise briefly to support my noble friend. It is ludicrous that pedicabs are regulated in some parts of the country but not in London.

[Baroness Randerson (LD)]

My Lords, the noble Baroness has made a very strong point about an issue which applies only in a specific part of the country. Most of us do not have experience of this issue. As the noble Lord, Lord Berkeley, said, there is a more general trend in the use of bikes as cargo bikes—and, indeed, my own son also used to take his young children around in a little cart behind his bike. It used to worry me greatly. The girls no longer like to be reminded of it, but they seemed to think it was great fun at the time. Of course, the issue of insurance is important. It seems to me that the point the noble Baroness has made is that there is a long-overdue need for a review of hire services—vehicles for hire—and since the use of bikes is much more common these days, we really should include them in that review.

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[Lord Pannick (CB)]

My Lords, I have added my name to the suggestion that this clause should not stand part of the Bill. I agree entirely with what was said by my noble and learned friend Lord Hope and the noble Baroness, Lady Randerson, on the punishment of imprisonment. There is an important difference of principle between causing serious injury by dangerous driving and causing serious injury by careless or inconsiderate driving. The principle is that the offence of causing serious injury by careless or inconsiderate driving falls into the category of “There but for the grace of God, go I”. It is very difficult to see why the penalty of imprisonment should be appropriate when all the steps being taken in the criminal justice system are to recognise that we send far too many people to prison and that prison has, as the noble Baroness, Lady Randerson, eloquently said, very adverse consequences for the offender, their family and society generally. The Government need to present a most compelling justification for a proposal that more people should be sent to prison in circumstances such as this.

[Earl Attlee (Con)]

My Lords, I support everything that noble Lords have said so far. Unless the clause is significantly amended along the lines suggested, I could not possibly support it if it were taken to a Division.

[Lord Thomas of Gresford (LD)]

My Lords, as this is about causing serious injury by careless or inconsiderate driving, the state of mind—the mental element—is involved. The noble and learned Lord, Lord Hope, referred to the case of Lawrence in 1982, a decision of Lord Diplock. In that same year I was appearing before the Appellate Committee in a case called Caldwell, in which a person who was intoxicated had gone to sleep in the doorway of a hotel, lit a fire to warm himself and severely damaged the hotel. The issue was whether he was reckless in so doing. What was his state of mind, his mental element? It was agreed that he had no intent to do it but Lord Diplock held that the conviction should be upheld because an ordinary person who was not intoxicated would have realised the consequences of what he was doing, although Caldwell himself had not done so. He spent quite a long time in prison, and it took 22 years for my argument to succeed in the case of G in 2002, when Lord Bingham held that Caldwell had been wrongly decided and that the test of the mental element has to be subjective—that is, it is necessary for the person to have a subjective understanding of what is going on. That is very similar to the issue we are discussing in this case.

However, I believe that Clause 66 is simply wrong in principle. It threatens to penalise the outcome of the offence—serious injury—with imprisonment when the mental element of the offence of careless driving is no more than negligence. I accept that there is a precedent for penalising driving offences by reference to outcomes. Clause 65, relating to causing death by dangerous driving or careless driving while under the influence of drink or drugs, has that effect, but dangerous driving and careless driving while under the influence of drink or drugs both have a far more serious mental element than simply careless driving. Dangerous driving involves falling far below the standard of a reasonable driver, and the drink or drugs offence involves deliberate impairment. In either case, the offending driver is knowingly taking a risk with the safety of other road users, so it is his mental element that is being punished in those serious cases.

On the other hand, as other noble Lords have said, careless driving involves driving that falls below the standard of care of a prudent driver—no more than carelessness, negligence or, in the terms of the clause itself, “inconsiderate” driving. A mistake, or inadvertence, may suffice. To make such an offence imprisonable because it results in serious injury is not a step that we have ever taken before, and offends against the principle that the seriousness of an offence should depend not just on the act done but on the state of mind of the offender.

Almost every accident is the result of negligent driving on the part of at least one of the drivers involved—that is, in the absence of mechanical failure or an unexpected event, such as the wasp sting that we have heard about, but such events are extremely unusual. Sadly, a vast number of accidents involve serious injury—a broken limb, for example, being “serious injury” for this purpose. The vast majority of accidents arising from negligence, whether or not they cause serious injury, do not lead to prosecutions. The clause would leave it to police and prosecuting authorities to pick out the few accidents that they wished to lead to prosecution, and would expose drivers to the risk of imprisonment for an accident that arose out of a simple mistake.

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[Lord Marlesford (Con)]

My Lords, I very much agree with the noble and learned Lord, Lord Hope, and other noble Lords who have spoken. It seems that there is a perfectly obvious, very serious penalty which can be applied to the most egregious cases of careless driving, where there is very serious injury, and that is a lifetime ban on driving. That would be much more effective than imprisonment.

[Earl Attlee (Con)]

My Lords, there is an obvious difference between an offence of careless driving and a health and safety offence: the health and safety offence is ongoing—someone is operating a dangerous machine, they have not done proper risk assessments—whereas an offence of careless driving can be a momentary lapse.

[Lord Judge (CB)]

My Lords, I wonder whether I should say that I am not going to make a second speech polishing up my first. I apologise to my noble and learned friend Lord Hope that I got my words in before he did.

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, I have to say that I find myself in the somewhat invidious situation of supporting the Government. The Labour Party supported this clause in the other place; we agree that it fills a gap in the law and allows the high level of harm caused by these incidents to be recognised.

The debate has focused essentially on the possibility of imprisonment for careless driving, and the noble and learned Lord, Lord Hope, made it clear in his speech that that was the burden of his objection and the reason he was moving his amendment proposing that the clause do not stand part of the Bill.

The burden of the argument made by the noble Lord, Lord Thomas of Gresford, was that the mental element in the case of careless driving is no more than negligence and the noble Earl, Lord Attlee, said that that would be a momentary lapse, which would have a serious consequence. But when one looks at health and safety legislation, you can indeed have momentary lapses which have very serious consequences. Magistrates occasionally deal with health and safety legislation as well. In addition to that, as part of health and safety legislation that I have seen, it is about a more systemic approach to health and safety within the environment of the factory or whatever you are talking about. Nevertheless, there can be momentary lapses that lead to serious consequences and there is the possibility—although it may be unlikely—of a prison sentence for the director of a company who is responsible for health and safety matters.

As I introduce this, I acknowledge that I find myself in an unusual situation of supporting this element of the Government’s proposals. Nevertheless, I would hope that it would be a very exceptional case, where there is such egregious negligence, that resulted in a prison sentence, when the vast majority of cases are momentary lapses, possibly with tragic results. I would have thought that those types of cases would not result in a prison sentence.

[Earl Attlee (Con)]

My Lords, the good thing is that the party opposite is being consistent, because it introduced the offence of causing death by careless driving.

[Lord Wolfson of Tredegar (Con)]

My Lords, the noble and learned Lord, Lord Hope, objects to Clause 66 standing part of the Bill and has tabled Amendment 155 in its place. We have had a very interesting and more wide-ranging debate than we perhaps anticipated when the amendment was put down. Thanks to the noble and learned Lord, Lord Falconer of Thoroton, we have got on to gross negligence. In the time available, it reminded me that it was Lord Cranworth in Wilson v Brett, back in 1843, who said that gross negligence is actually only

“negligence with a vituperative epithet”

attached. That is a little legal chestnut about what gross negligence actually is—in the civil context, I accept.

We need to focus on the fact that we are looking at driving offences, and I will come back later to whether it was a valid comparison put forward by the noble Lord, Lord Thomas of Gresford. The amendment we are dealing with here is perhaps the reverse of the approach taken in the earlier group to Amendment 152. Some of the speeches made in that context, such as that made by the noble and learned Lord, Lord Judge, are also applicable here. With Amendment 155, the noble and learned Lord, Lord Hope, hopes to add additional requirements, thereby raising the threshold for the new proposed offence of causing serious injury by careless driving.

As I said on the previous group, we are back to the issue of relatively low-culpability offences that can attract custodial sentences because the consequences can be catastrophic. Of course, I hear the point made by the noble and learned Lord, Lord Hope—it was a sort of “There but for the grace of God go I” point, if I can summarise it in that way—but, as I have said, there is a balance to be struck between the culpability of the driver and the harm that they cause. The Government believe that the current position—whereby a driver who by careless driving has caused serious injury, including perhaps very serious or life-changing injuries, may only be fined—is wrong. That is why we have created this new offence and why we believe it should be incorporated in the Bill.

I respectfully agree with the point made by the noble Lord, Lord Beith, that we have to have sight of, and due regard to, the consequences of the driving. If I may, I will come back a little later to the other point the noble Lord made, about whether prison is the only way to respond to that.

Having said that, we recognise that the standard of driving required for this offence is relatively low. Careless driving can sometimes amount to no more than a short period of inattention—we had the example of the wasp on the back seat—but we do not agree with the noble and learned Lord that we need to add a requirement explaining what we mean by “causing serious injury”, or that the definition should provide that the notional “careful and competent driver” would know that their driving was likely to cause serious injury. I am grateful for the support—at least on this amendment—of the Benches opposite and of the noble Lord, Lord Ponsonby. He also asked whether prison is the right response, and I will come back to that too.

I make three substantive points in response to the proposed amendment and the clause stand part proposal. First—I will make this point relatively softly, because I think the noble and learned Lord, realistically, if I may say, accepted that there may be drafting issues with the amendment and the scope of it—it would create inconsistencies in the law and that is because this additional test would apply only to this new offence of causing serious injury by careless driving and does not, for example, apply to the offence of causing serious injury by disqualified driving, where it might be argued that the level of culpability is even lower, because there is nothing actually wrong with the driving there at all. I will come back to that in another context.

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[Lord Wolfson of Tredegar (Con)]

I am happy to deal with that in the letter.

[Earl Attlee (Con)]

My Lords, on a couple of occasions, my noble friend the Minister has said that the only disposal available to the courts is a fine. Surely, disqualification is available? For most of us, that would be a very severe penalty.

[Lord Wolfson of Tredegar (Con)]

I accept that it may be a severe penalty. It depends who you are dealing with, and the circumstances. There are other factors which the courts have to bear in mind when considering the particular effects of disqualification on a particular driver.