Last year, significant changes were made to the sentencing guidelines for driving offences in England & Wales, including the introduction of potential life sentences for dangerous driving. Here, we answer some key questions concerning the driving sentencing guidelines and explore how these could affect fleets and the ways they manage and assess risk.
What are the sentencing guidelines?
The sentencing guidelines are developed, published, and updated by the Sentencing Council, an independent body that was set up to “promote greater transparency and consistency in sentencing, while maintaining the independence of the judiciary”.
The driving sentencing guidelines cover a range of driving-related offences, including causing death by dangerous driving and driving whilst disqualified. They provide judges and magistrates with a minimum and maximum range for years in custody or financial penalties, as well as guidance on elements of a case that may affect or change their decision.
Under the latest guidelines, for example, the maximum sentence for causing death by dangerous driving is life imprisonment, while two years is the minimum number of years’ custody that can be given.
Why were the sentencing guidelines for driving changed?
The guidelines were changed in July 2023 to reflect new maximum sentences and offences brought in by the Police, Crime, Sentencing and Courts Act 2022 (the PCSCA 2022). These sought to address concerns that sentences for certain offences were unduly lenient, particularly where an offence led to serious, life-changing injuries, but fell below the threshold for dangerous driving.
Under the PCSCA 2022, a new offence of ‘causing injury by careless driving’ was created, which could receive a maximum sentence of two years’ custody, as well as an obligatory minimum 12-month disqualification.
The PCSCA 2022 also introduced new maximum sentences for certain offences, which are reflected in the guidelines, again to address concerns that sentences for causing death by dangerous driving were too lenient.
What does ‘culpability’ mean?
‘Culpability’ is a category by which offences are measured for the purposes of sentencing. Culpability concerns an offender’s level of guilt, and is usually considered in relation to intention, recklessness, knowledge, and negligence. There are several levels of culpability, with Category A being the highest.
The sentencing guidelines will sometimes provide examples of the different categories to help judges and magistrates decide where an offence falls. For example, in causing death by dangerous driving, a Category A culpability offence may also demonstrate a “deliberate decision to ignore the rules of the road and disregard for the risk of danger to others”, or it may have occurred “in course of evading the police”. A Category C culpability offence, however, would involve a “standard of driving [that] was just over [the] threshold for dangerous driving.”
How do judges measure ‘harm’?
‘Harm’ is an additional consideration when an offence has resulted in serious injuries, but not death. It measures the severity of the injuries caused, and the impact these have had, and continue to have, on the victim(s). As such, harm is not considered where an offence results in death, as it is automatically of the utmost seriousness.
Like culpability, ‘harm’ is split into different levels. The higher the level of harm, the greater the sentence. To be considered a high level of harm, an offence will have caused “particularly grave and/ or life-threatening injury” and may have resulted in “lifelong dependency on third party care or medical treatment”.
What are aggravating factors?
Aggravating factors will increase the sentence given. These factors may be statutory, which means that they are included in legislation and must be considered when sentencing. In driving offences, for example, statutory aggravating factors are previous relevant convictions, and driving whilst on bail.
There may, however, be other aggravating factors that a judge can consider, depending on the specific facts of the case. For driving offences, aggravating factors may include whether the victim was a vulnerable road user, such as a pedestrian or cyclist, and whether the driver failed to stop or assist at the scene.
For fleets, it is important to note that driving for commercial purposes, driving a vehicle such as an HGV, and driving when sleep deprived, are all aggravating factors.
What are mitigating factors?
Mitigating factors may reduce the sentence given. There are no statutory mitigating factors for driving offences, but a judge may take into account an offender’s good driving record, a lack of previous convictions, whether the actions of a third-party contributed to the incident, and if the offender showed genuine remorse.
Non-statutory aggravating and mitigating factors will not be considered in isolation, but will be weighed up against culpability and harm, and based entirely on the specific facts of the case.
What do the changes mean for fleets?
The increase in sentences for careless driving – particularly the obligatory one-year disqualification – could have serious repercussions for fleets, both from a business and reputational perspective.
Based on the guidance, there are also several key areas that fleets need to examine from a risk perspective. Risk assessments need to consider, for example, routes and journeys, whether they accommodate adequate rest breaks, and use of mobile phones. Clear policies also need to exist in relation to which staff are trained, with any training needs evidenced and kept up to date.
There should also be a central record of any medications that fleet drivers are taking, and whether, and to what extent, these may affect driving ability/ prevent any driving activity being undertaken. Most fleets operate using some form of telematic system which records driver behaviours and vehicle performance. As such, fleet managers should regularly review the data to identify and address any issues.
It is also worth communicating the sentencing guidelines to the business so that drivers are aware of the consequences of careless driving. After all, a one-year disqualification would bar them, not only from getting back behind the wheel, but from earning a living as well.