Motor Manslaughter

For many years campaigners have sought an increase in the level of sentencing for causing death by driving offences. Within the sentences available there has been a steady increase in recent years. However, despite many promises to debate the statutory maximum of 14 years imprisonment for causing death by dangerous driving Parliament has repeatedly failed to consider the issue and in the current Brexit quagmire seems unlikely to do so in the near future.

At the end of July the Sentencing Council published the Manslaughter Definitive Guideline which is due to come into effect from 1st November 2018. Already subject to much comment the widely held view is that the guideline represents a step change in the level of sentencing for individuals convicted of gross negligence manslaughter.

There is no mention of motor manslaughter in the new guideline but surely this may be an opportune moment for prosecutors to turn to the very seldom used charge for the most serious of fatal driving cases?

In the case of Seymour [1983] 2 AC 493 Lord Roskill referred to the creation of the offence of reckless driving under the Road Traffic Act 1956 as a reaction to the extreme reluctance of juries to convict motorists of manslaughter. Of course in 1956 mass motor vehicle ownership was in its very infancy. At the end of March 2018 there were more that 37.9 million licenced vehicles on Great British roads and it is unlikely that any such reluctance remains today- especially in the light of the many horrific and tragic cases which are publicized each year.

Seymour decided that under English and Welsh law there was no difference between reckless driving and manslaughter. Following Seymour a prosecutor was required to elect between manslaughter or reckless driving. The decision shows very little judicial enthusiasm for motor manslaughter but the dissenting judgment of the Scottish law lord, Lord Fraser of Tullybelton sets out the clear advantage of maintaining 2 separate offences in that it allows the sentencing judge the additional headroom in cases of the very highest culpability [in Scotland the offence of culpable homicide and statutory reckless driving could be left to juries as alternatives].

Since Seymour the law in England and Wales for both bad driving and manslaughter has changed radically – the Road Traffic Law Review by Dr Peter North [as he then was] in 1988 and thereafter the Road Traffic Act 1991 abolished reckless driving and introduced the new offence of dangerous driving into the RTA 1988. The test for dangerous driving being objective in contrast to the subjective test of recklessness.

In 1994 the House of Lords reconsidered manslaughter in Adomako [1995] 1 AC 171 and rejected recklessness as an essential element of the offence. The House of Lords instead substituted a test of gross negligence and specifically disapproved Seymour.

Despite those changes, judicial enthusiasm for motor manslaughter has remained tepid. In the case of Williams [2017] 2 Cr App R (s) 12 the defendant had driven deliberately at a police officer in an attempt to evade capture and killed him. Sir Brian Leveson President QBD stated:

‘It is clear that killing another person on the road can be the result of conduct which, in terms of culpability, lies above that contained within the definition of causing death by dangerous driving but short of establishing the intention required for murder. It is in that space that is found the crime of manslaughter.’

Williams was charged with murder and the jury, unsure that he intended to cause serious bodily harm, acquitted of murder and convicted of the alternative manslaughter. What was never in doubt in that case was that the defendant drove deliberately at the officer.

In the Attorney General’s Reference (R v Dobby) [2017] 2 Cr.App.R (s) 27 the defendant, driving a stolen vehicle and deliberately attempting to evade police lost control and mounted the pavement causing 2 fatalities and further serious injuries. Davis LJ stated:

‘There has been ongoing debate as to whether the maximum available sentence of 14 years imprisonment currently set for the statutory offence of causing death by dangerous driving is appropriate and whether such maximum should be increased. That, however, is a matter for Parliament; it is not a matter for the courts. Nevertheless, it is clearly important that the sentence that Parliament has decreed as appropriate by way of maximum for offences of causing death by dangerous driving is not to be circumvented simply and solely by means of the charge that the prosecution choose to bring.’

It must however be remembered that in 2006 Parliament specifically legislated for death by dangerous driving to be an alternative to manslaughter involving a motor vehicle [s24(A1) Road Traffic Offenders Act 1988 inserted by the Road Safety Act 2006]. If Parliament intended the statutory maximum of 14 years to apply to all cases of bad driving then why legislate for death by dangerous driving to be an alternative [lesser offence] to manslaughter?

In the well-publicized case of Brown [2018] EWCA Crim 1775 the defendant killed 2 children on a pedestrian crossing in Coventry in February 2018 having been released on licence only 6 days earlier. He was 4 ½ times the cocaine driving limit and travelling grossly in excess of the speed limit. He tried to flee the scene and was abusive to Police when arrested. Having received 9 years imprisonment on charges of causing death by dangerous driving the sentence was referred to the Court of Appeal as unduly lenient. The Court rejected the Solicitor General’s submission that consecutive sentences would have been appropriate but did raise the starting point to the statutory maximum before applying credit and therefore increasing the sentence to 10 ½ years in total.

Only 3 weeks before the Manslaughter Definitive Guideline was published, Sir Brian Leveson stated in Brown that although the Court did not seek to encourage prosecuting authorities to charge manslaughter:

‘…that is not to say that it is never appropriate to charge the offence of manslaughter in circumstances such as these. Such charges will be appropriate when the nature of the driving justifies them, that is to say when the driving is of such seriousness that it can be set apart from dangerous driving per se.’

The current CPS charging advice for motor manslaughter suggests that the offence should not be charged unless there is something to set the case apart from causing death by dangerous driving – usually a very high risk of death.

It is difficult to see why Brown and other high profile cases such as Chudasama [collision in January 2018 in Hayes resulting in the killing of 3 teenage boys when speeding and 2 ½ times over the drink driving limit] and Mannan [2016] 2 Cr.App.R (s) 37- [racing at over 100 mph in a 40 zone before losing control and colliding with a bus stop killing a teenage girl, seriously injuring another and refusing to provide a specimen] did not meet this test.

With causing death by dangerous driving as an alternative what do the prosecution have to lose in charging motor manslaughter more often? As Lord Fraser stated in Seymour a conviction for manslaughter makes it possible for the sentencing judge to pass a sentence greater than the statutory maximum if thought appropriate.

There has always been an overlap between the highest levels of careless driving and dangerous driving. Likewise, there is an overlap between the highest level of causing death by dangerous driving and motor manslaughter. Any sentencing judge will be assisted by the broader range of available sentence for manslaughter even if those powers are not exercised in every case.

There is little doubt that the public appetite is for heavier sentences in death by driving cases. In my opinion therefore, the likelihood is that the prosecution will feel emboldened to charge more cases as motor manslaughter going forward as a result of Brown and the new Manslaughter Definitive Guideline.