In 1894 a 20 year old plumber and gas fitter named Frederick William Bremer took his vehicle on its first run on a public highway, and so the first British motorcar had its inaugural outing. In 1934 came the first Road Traffic Act and the law regulating driving offences was conceived.
Since that date the law regulating driving on the United Kingdom’s roads has become very detailed.
Driving offences remain a unique area of criminal law: every single otherwise law abiding member of the public may one day find themselves accused of a driving offence.
One of the most common, but mistaken assumptions, is that since driving as an every-day activity is a matter so routine driving cases are ‘easy’ for Counsel and Defendant alike.
In the more serious cases where serious injury or even death results the emotional impact of the aftermath can unduly deflect from both the legal and factual analysis of a case. Dramatic upsetting media reports referring to the adequacy (or inadequacy) of sentences often bear only passing resemblance to the forensic basis of trial or sentence.
The perceived inadequacy of sentencing has recently been addressed by Parliament. The resulting changes to potential offences and sentencing highlight how important it is to have proper representation by those experienced in the area. For causing Death by Dangerous Driving, the maximum sentence has increased to Life Imprisonment. Sentencing Guidelines indicate the lowest starting point in such a case (where the driving is just over the threshold of dangerous driving) is 3 years’ imprisonment with a range of 2 – 5 years’ custody. For any offence where one of the common aggravating features is present (e.g. use of a mobile phone or driving when deprived of adequate sleep or rest) the starting point is 6 years’ imprisonment with a range up to 9 years’ custody.
By way of comparison, certain ‘culpability B’ cases for fraud of a value based on £1 million, the starting point is 5 years, with a range of 3-6 years’ imprisonment. Fraud on that scale is often the product of careful planning and execution, with an extensive and researched forensic trail. In contrast a driving case is usually the product of seconds.
The scope of prosecution for traffic offences has widened considerably recently; take for example the new offence of Causing Serious Injury by Careless Driving – so any vehicle versus pedestrian impact has potentially significant consequences. Guidelines for this new offence reveal that, in many instances, the Court will be considering custody.
Of course the effect of any motoring conviction may result in consequences way beyond the initial offence: disqualification, increased insurance premiums, impact on employment.
Beyond the potential seriousness of the consequences, cases involving driving offences include those where technical knowledge of legislation is key and where an understanding of the science of motoring is important.
Higher Courts are rarely called upon to address this area. The forensic science is not as ‘topical’ compared to ‘DNA’ or ‘match probability’. There is no continuous public interest (these cases don’t underpin a plot line for Silent Witness nor lead to campaigns to correct miscarriages of Justice). Findings of fact are rarely appealable because ultimately their decision is usually within the tribunal’s ‘discretion’, meaning others might legitimately reach a different conclusion; so outcomes are usually undisturbed on appeal.
But are assumptions underpinning these decisions appropriate? Should they be challenged? Or do we all know ‘enough’ that driving cases are a matter of routine? Pseudo-expertise such as we are all deemed to have in this area is a dangerous product. Confident ignorance, one step worse.
How many of us when we consider driving, start with an understanding of ‘foveal vision’, and what this means for the observations a competent driver can conduct? How is that different from peripheral vision? Taking an example from a real case, how can it be that a driver of a motorcycle illuminated from behind by another car can be shown to be simply ‘invisible’ to an oncoming driver? So that the inevitable fatality was tragic, but criminally without fault?
These questions simply illustrate that all is not as simple as it may seem. Even beyond the intricacies of Road Traffic Law, driving cases are every bit as forensically challenging and tricky as those which appear superficially more complex.