Causing death by careless driving

In response to my offering of yesterday Mr Pogo expressed concern at the criminal law being changed to reflect the result of what the offender did rather than the degree of fault in his actions themselves. The example he gave was the recent change in the law which make causing death by careless driving an offence whereas the previous offence was causing death by dangerous driving. It made me think about the way different crimes are defined and whether such a change is objectionable.

If we take the most obvious offences - theft and assault - it is clear that they involve acts which cause harm to another and which can be readily predicted by the offender to have that effect. Within those two broad categories there are several specific offences. For example, a theft accompanied by breaking into premises is burglary and theft accompanied by violence or threats of violence is robbery. The additional factors are generally seen to make the offence more serious and to justify being given a legal significance of their own. That is not to say that all burglaries are more serious than all thefts. A burglar who breaks into a house and steals a computer might do £500 worth of damage to the window and remove an item worth £500, whereas a pickpocket might take a watch worth many thousands. There is no anomaly involved here, the categories exist because, generally speaking, burglaries are more serious than straight thefts and, generally speaking, adding threats makes robbery more serious again. In each of those cases the aggravating factor is under the control of the offender.

Assault also comes in many guises. I might push you or grab hold of your arm without having any intention to cause you to suffer pain or injury, yet each is a common assault. I suppose in modern language we would describe it as invading your "personal space", the law has long known it as an "assault upon the person". Were I to punch you it would be different because I know my act is likely to cause you an injury, possibly only bruising but an injury nonetheless. So we have the offence of assault occasioning actual bodily harm (often referred to as "ABH"). Provided my act shows that I must have intended to do you some physical harm it does not matter whether the actual injury suffered is the one I thought most likely. A modest punch to the jaw might be intended to cause only bruising, but it could result in dislocation, a lost tooth, a cut to the skin or concussion. I would be guilty of ABH and the sentence I receive would reflect the actual harm I did. Things change again if I intended to do serious harm, such as if I used a weapon. Where only minor injuries result I might be lucky and get away with ABH but where, as would usually be the case, serious injury is caused we get to the next level - assault occasioning grievous bodily harm (GBH). As with the various grades of theft, so the different levels of assault reflect not just the outcome but also the state of mind of the offender. And, as with theft, an offence falling into a lesser category might actually cause more harm than one falling within a higher category - a dislocated elbow from falling over after being pushed (ABH) can be considered more serious than a small nick caused by a stabbing which is frustrated by the knife going through a wallet before grazing the skin. However, the categories exist to provide a division between types of offending of generally different levels of seriousness - seriousness both in their usual outcomes and in the state of mind of the offender at the time he does the evil deed.

When it comes to acts which cause death the law draws a distinction based on the state of mind of the offender. If I intend to cause you death or really serious injury and I do in fact kill you, I am guilty of murder. Absent that specific state of mind, an assault resulting in death is "only" manslaughter. Other countries break down the law on homicide into more categories and it seems likely we will follow suit because it is hard to justify lumping together all circumstances that currently amount to manslaughter. The husband who feeds his wife an extra helping of morphine because she is in unbearable pain and has begged him to end her suffering cannot easily be equated with someone who is involved in a fight and punches his opponent who then falls, hits their head and dies. Each is manslaughter but the state of mind of the offender and, some might say, the moral turpitude of each is so radically different that it make sense for them to be seen differently in law.

In what I have discussed so far every offence has involved someone choosing to act in a way the laws defines as impermissible. The pickpocket, the burglar, the robber, the fighter, the mercy-killing husband have all chosen to perform a specific act which is contrary to law. Their crime is not a by-product of doing something essentially lawful but doing it badly. The same can be said of almost all criminal offences. In a different category are offences committed because you are doing something essentially lawful but not doing it correctly. A chef who serves undercooked chicken and gives his customers food poisoning can be guilty of various crimes. That does not mean the cooking and serving of chicken is unlawful, of course it isn't, but failing to do it properly and causing physical harm by your failure turns an otherwise lawful act into a crime. The same applies to driving.

Driving is a lawful activity for all those licenced to do it. But if you fail to drive in accordance with certain quality standards you will infringe the law. Since the early part of the twentieth century it has been unlawful to drive carelessly but it was not until the mid 1950s that causing death by driving became a specific offence. Until then you could be guilty of murder if you used a car as a weapon and intended to kill or do serious harm, or manslaughter if you drove when it was obvious that you were likely to kill or cause physical injury by doing so. Such cases were few and far between yet people were being killed by drivers who drove badly. Those drivers were often prosecuted for manslaughter but acquitted because they had no intention to do harm. Ever since the offence of "causing death by reckless or dangerous driving" was introduced in 1956 the law has vacillated between punishing the standard of driving and punishing the state of mind of the driver.

Reckless driving essentially involves ignoring an obvious risk that you might harm others. Dangerous driving is concerned not with your state of mind but with the standard of your driving itself. You might think you are perfectly safe, you might do everything you can to notice the other traffic around you and to avoid accidents, but you might just be so incompetent that your driving does in fact present a danger to others. Such a driver is dangerous but not reckless.

In 1977 the law changed and the offence became "causing death by reckless driving", thereby excluding the dangerous drivers who had no appreciation of the danger they posed. Then in 1991 it changed again to "causing death by dangerous driving", thereby avoiding the need to prove that the driver had any appreciation of the risk he posed. These changes were made after thorough reviews of how the law operated in practice and whether it represented a fair and balanced approach. Another review was undertaken before the most recent change. That review was far less analytical that the earlier ones and relied on a great deal of anecdotal evidence. The new law of "causing death by careless or inconsiderate driving" is, as I understand it, an additional offence to catch cases where the driving itself was not so far below a reasonable standard as to be caught by the definition of dangerous driving, but was careless and resulted in death.

This new law is a strange thing because I am not sure what it is meant to achieve. The biggest problem with the previous law was not in its definition or scope but in the sentences that were imposed. They did not equate to sentences imposed for manslaughter because an aggravating feature present in manslaughter cases (the mental element) was not present - if it had been the charge would have been manslaughter. Many a family has been seen on television or read about in newspapers complaining that the killer of their loved one only received four, five, six, ten years imprisonment and this was no reflection of their loss. They have a point, but not much of one because no sentence can undo what has happened. There will, I have no doubt, be even greater anguish when shorter sentenced are passed for causing death by careless driving - after all the new offence means nothing if it is not a lesser offence than the one resulting in what are perceived to be inadequate sentences.

The real problem in this area lies in the fact that driving is an inherently lawful act for all those with a licence to do it. As such any offence must have reference to the quality of the driving involved. Hare around like a brainless hooligan and you will be hit harder than someone who suffered a momentary lapse of concentration. I share Mr Pogo's concern that creating new offences based on the consequences of actions achieves little. It fails to recognise that the actions themselves must define the level of sentence otherwise we will be approaching the thin ice of strict liability in which consequences are everything regardless of whether your conduct was at fault. That is not a proper basis for the making of criminal law in a civilised society.