Dangerous Driving: Penalties

Sam Gyimah Excerpts

Tuesday 13th September 2016 Westminster Hall

[The Parliamentary Under-Secretary of State for Justice (Mr Sam Gyimah)]

It is a pleasure to serve under your chairmanship, Ms Ryan. I congratulate my hon. Friend the Member for Devizes (Claire Perry) on securing this debate and the passion with which she made the case on the tragic death of James Gilbey. Securing justice for victims and relatives in cases of death by dangerous driving is a priority for the Government.

My hon. Friend rightly made the point that a death caused by bad driving that could have been avoided is heartbreaking. I cannot begin imagine the pain that James’s family and friends have suffered. I understand that the Justice Secretary will be meeting my hon. friend later today to discuss this horrific case. I offer my personal and deepest condolences to the Gilbey family.

The absence of an Opposition spokesperson in this debate notwithstanding, I know that many right hon. and hon. Members will be aware of several tragic cases of road deaths in their constituencies. I hope that Members will appreciate that I will not be able to respond to all the related cases that have been raised over several years, but I shall try to respond specifically to the points that my hon. Friend made today.

As my hon. Friend said, James Gilbey was crossing the road when he was hit by a speeding motorist who was racing another car. Both drivers fled the scene. Within a few days, the driver of the vehicle that hit James handed himself in to the police. The driver of the second car was arrested later. Both were convicted of causing death by dangerous driving and sentenced to eight years in prison on 24 March. They were also banned from driving for 10 years.

In the time I have remaining, I shall try to deal with the issues that my hon. friend has raised about this case and driving offences more generally. Quite rightly and understandably, my hon. Friend made the point that the worst cases should be dealt with as manslaughter. I understand why, in many cases, causing death by driving is thought to be equivalent to attacking someone with a weapon—my hon. Friend gave the example of someone driving at 90 mph in a residential area. Under the existing law, the Crown Prosecution Service can, and will, charge a person with manslaughter when the evidence supports that charge, it is in the public interest to do so and there is a reasonable prospect of a conviction.

Successful prosecutions have secured manslaughter convictions in driving cases, but it is worth making the general point that having everything classified as manslaughter does not necessarily guarantee a conviction. One can imagine a case in which a barrister played to the jury, asked for lower offences to be considered, and asked the jury to put themselves in the offender’s shoes. Classifying cases as manslaughter does not necessarily mean that more convictions will be secured; in fact, the reverse could be true. On top of that, a conviction would not necessarily lead to the expected sentence, because there is no mandatory minimum—it is up to the judge to decide.

[Claire Perry]

Would the Minister or his Department be able to tell us how many of these cases have been tried as manslaughter cases? I accept what he is saying; indeed, that is why some of the lesser offences were introduced, because there seemed to be a perception that it was harder to convict someone for causing manslaughter by motor vehicle than for other offences. However, dealing with that situation is surely a function of guidance to judges. If it is possible to start with a manslaughter charge and then have a barrister argue that, for whatever reason, the case did not fit the definition of manslaughter, then the next point could of course be to have the defendant tried for causing death by dangerous driving.

Nevertheless, if we consider the definition of unlawful manslaughter—we are not saying that these people deliberately targeted James; we are talking about people who behaved so recklessly or illegally, by breaking the speed limit, that James’s death resulted—surely that should be a starting point that the judge could consider? It seems perverse that people argue that just because a judge could not make a manslaughter charge stick, we should not start with that charge.

--- Later in debate ---

[Mr Gyimah]

My hon. Friend makes a very good point, and I hope that I can get for her the information on the number of convictions for manslaughter shortly. However, for a manslaughter charge to be made, the prosecution needs to prove that there was some element of intent or recklessness regarding the death or injuries that were caused, or that the standard of driving was grossly negligent; in other words, exactly the situation that she is describing. However, in many driving cases, the offending behaviour—while highly irresponsible—does not necessarily include the state of mind required for a manslaughter charge to be made. That is why we have specific offences of causing death by careless or dangerous driving.

What amounts to dangerous driving is determined not by considering the driver’s state of mind or intentions, which in the context of driving are often difficult to ascertain, but by examining the nature of the driving. So what does the law do? The law sets out an objective test designed to compare the driving of the defendant in the specific circumstances of the case against what would be expected of a notional careful and competent driver. In general terms, if the court considers that the driving being considered falls far below that standard, and that it would be obvious to a competent and careful driver that that manner of driving was dangerous, then the court will find it to have been dangerous driving.

[Claire Perry]

Again, I know that it is always dangerous to argue, based on the specific details of a case, for a general change in the law, but how could it not be that gentlemen knowingly racing their cars at speeds of up to 90 mph through a 40 mph residential zone were not falling so far below the minimum acceptable standard of driving and that there was a serious chance of causing serious injury or death, particularly when they were approaching a pedestrian crossing? I understand that the law, in the current level 1, pays particular attention to vulnerable road users such as James, who was crossing a pelican crossing on the night he was killed.

I do not expect the Minister to rewrite the law during the debate, but it seems to me that it is very difficult to explain to Major Gilbey and Mrs Gilbey, and indeed to everybody out there, why this specific case was not a perfect example of gross negligence manslaughter. If we put a consideration of manslaughter in the sentencing code, we would give courts more opportunity to charge people with manslaughter, with the backstop of level 1 death by dangerous driving, which would establish a very strong deterrent to drivers who consider breaking the law in this way.

[Mr Gyimah]

My hon. Friend is absolutely right. By the way, regarding her previous point about conviction figures, I will examine the statistics and write to her about them. I will not stand here and defend someone in a case where, judging from how things have been described, it does not seem that the punishment has fitted the crime. Obviously, it is not for me to consider such cases; that is for judges to do. However, I will come on to talk about what I think is the remedy for such cases.

Our law needs to reflect that although the harm caused in homicide cases and fatal driving offences is the same—in all of these cases, someone has died—the offender’s culpability for a death may be significantly different; hence the distinction between the two types of case. However, my hon. Friend is asking a different question, which is about the specific case of James Gilbey and why the defendants in that case could not be tried for manslaughter. Shortly, I will say how we can consider such cases.

The second point that my hon. Friend raised was about sentencing and sentencing guidelines. Once someone has been charged and convicted, the sentence that they receive is, of course, a matter for our independent courts. A court decides on the sentence, having considered all the details about the case and the offender; a court is best placed to decide on a just and proportionate sentence.

In deciding what sentence should be given, the courts are also required to follow—unless it would lead to an injustice—sentencing guidelines. The duty on the courts to follow guidelines, and if the guidelines are not followed to say why, leads to greater transparency regarding the level of sentence likely to be imposed and increased consistency in sentencing practice.

To reassure my hon. Friend, I will point out that the independent Sentencing Council, which is responsible for keeping such guidelines under review, currently has in its work plan a review of the guidelines for motoring offences involving death or serious injury. A new draft guideline will be subject to full public consultation in due course.

[Liz McInnes]

Talking about guidelines, I wrote to the Attorney General about the lenient sentence that my constituent’s killer was given and I was told that the judge was acting within guidelines. Also, it is often said that 14 years is the maximum sentence that can be imposed in these cases, but I have not heard of any such case in which anyone has been given more than eight years. Will the Minister explain why judges are acting within guidelines but seem to set a ceiling of eight years for sentences?

[Mr Gyimah]

The key point here is that these guidelines are being reviewed currently, to establish why, as the hon. Lady hon. Friend contends, judges have not given sentences of more than eight years in these cases. It could be based on the evidence in a case, as the judge saw it, but all these things need to be reviewed. I will come on to talk about a remedy, because there are many different cases involving this issue and many different suggestions from people as to how we should deal with it.

For example, my hon. Friend asked why there was a reduction in sentence for an early guilty plea. That is an interesting point; applying such reductions to sentences is a long-standing practice that applies to all offences, and it has a number of benefits. A reduction in sentence is appropriate because a guilty plea removes the need for a trial, which in turn enables justice to be delivered more quickly; it reduces the gap between charging and sentencing; and, in the case of an early plea, it saves victims and witnesses from being concerned about having to give evidence.

The sentencing guidelines provide a sliding scale of reductions, depending on the point at which the guilty plea is made. The maximum reduction for a guilty plea that is made at the first reasonable opportunity is a third of the sentence that will be imposed; the recommended reduction falls to 10% when the offender pleads guilty on the day of the trial. Also, where the case against the offender is overwhelming, the guidelines provide for discretion on the part of the judge to give a lower reduction.

My hon. Friend also made another point in this context about early release when she expressed concern that the offenders in this case will be released on licence at the halfway point in their sentence. As she will know, release on licence before the end of a sentence is not new; the current arrangements are set out in the Criminal Justice Act 2003. As a general point, when someone is released on licence there is still a hold over them; if they commit the offence again during their licence period, they will go back to prison to serve the remainder of the original sentence, in addition to the sentence that is imposed for the new offence.

In most driving cases, however, a standard determinate sentence will be imposed by the court and the 2003 Act provides that such prisoners must be released automatically on licence as soon as they have served half of their sentence. Once the offender is out on licence, then—as I have already hinted—they are subject to conditions and liable to be recalled to serve the remainder of their original sentence if they break those conditions. These arrangements apply to all determinate sentences imposed for any offence—for example, they apply to sentences for assault or theft. Consequently, any change for driving offences could result in anomalies arising for driving offences compared with other offences.

That said, different arrangements are in place for offenders serving indeterminate sentences or extended determinate sentences, and for offenders who are of particular concern. It is right that we concentrate our limited resources on ensuring that those offenders who pose a particular and ongoing risk to the public are not released before it is safe to do so, which is the rationale for the current situation.

However, my hon. Friend obviously wants a change in the current situation—she does not want to be told what the current situation is—and I am sure that it is the same for the Gilbey family and the many other families who feel that they are serving a life sentence while the perpetrators of crime get off.

As I said at the outset, there can be nothing more tragic than the loss of a loved one, especially when that loss was avoidable. As the Prime Minister made clear last week, there are deep concerns about the law on dangerous driving and about the sentencing powers currently available to the courts. For too long, these concerns have not been acted upon, so today I reaffirm this Government’s commitment to consult on the penalties for dangerous driving offences.

That consultation will begin before the end of the year. Blameless victims and their families must have total confidence in our criminal justice system. To those people, our message is clear: this Government are committed to making sure that the sentences for those who kill or seriously injure other people on our roads fit the crime. I look forward to setting out our plans later this year.

Question put and agreed to.