Guest Blog by Chris Barrow: Put Victims Rights First – Sentencing Council Mitigation; excuses 

Should the guidelines set by the Sentencing Council be just about punishment, justice and rehabilitation? No! There must be an element of deterrence.  

If you are a victim or if you were to be a victim do you agree with the reasons the Sentencing Council proposes a 33% discount for an early guilty plea?  

The Sentencing Council (SC) gives three reasons why this discount is a benefit. These are: 

1. normally reduces the impact of the crime upon victims; 
2. saves victims and witnesses from having to testify; and 
3. is in the public interest in that it saves public time and money on investigations and trials. 

How on earth does a 33% reduction in favour of the offender reduce the impact on the victim? It does not! In fact it does the exact opposite. Lorraine lost her life to a driver who was guilty of causing death by dangerous driving; to quote the CPS “The case was charged on the basis that Ms Hamer made a decision to drive well in excess of the legal speed limit, she did not pay attention, her driving failed to take account of the prevailing road conditions, which included the low sun and Lorraine as a vulnerable road user.” Someone in the SC thinks that discounting the sentence handed down to 6 months curfew, 200 hours community  service, a 1 year prison sentence suspended for 2 years and a 30 month driving ban “reduces the impact of the crime on the victims”. They clearly have not suffered the loss of a loved one at the hands of a dangerous driver. The SC is not looking for justice, punishment, and definitely not a deterrent. 

Being a victim I find it abhorrent to suggest that money comes before the life of a loved one. A life has been lost and we use money as an incentive to reduce the sentence! If you are wanting to save money, “in the public interest” then examine the statement made by the Parliamentary Advisory Council for Transport Safety (PACTS) in their Manifesto for Road Safety 2024. They state “The social and economic costs are around £43.5 billion each year which includes medical costs, lost output, and human costs. That is why we cannot accept that death and serious injury on this scale are the inevitable cost of road transport.” Source: Manifesto for Road Safety 2024 – PACTS 

Target the £43.5 billion by reducing road deaths and you would, by association, save “public time and money on investigations and trials” if, sadly, that is your goal. 

I would add this. Defence council regularly suggests, to the CPS, that the offender will plead guilty to the lesser charge of causing death by careless driving (victims have no say in this) if accepted the offender, who should have been charged with dangerous driving immediately qualifies for a lesser sentence. Then because of the guilty plea they get another 33% off. 

Surely creating guidelines that take a holistic approach that results in saving lives is in the public interest. What we have instead is guidelines that open the door for offenders and defence advocates to make excuses for their actions. 

My intension is to examine the SC definitions of Culpability and Aggravating Factors in future blogs. 

Here I examine Factors reducing seriousness or reflecting personal mitigation. 

1. No previous convictions or no relevant/recent convictions – Is it really necessary to give credit to a dangerous driver who has taken a life because they have not previously been caught committing a driving offence? Rightly, Previous Convictions appears in the SC section “Factors increasing seriousness – Statutory aggravating factors:”. It does not need to appear. 
2. Good driving record – Just because someone has no driving convictions it does not mean they are good drivers the only conclusion that can be made is that the driver has not been caught, just as with “No Previous Convictions”. This should not be included. Consider this: 

How many vehicles are there in the United Kingdom? At the end of September 2022, there were 40.8 million licensed vehicles in the UK (33.2 million cars (81.3 per cent), 4.63 million LGVs (11.3 per cent), 0.54 million HGVs (1.3 per cent), 1.46 million motorcycles (3.6 per cent), 0.15 million buses & coaches (0.4 per cent) and 0.84 million other vehicles (2 per cent)) Source: https://www.racfoundation.org/motoring-faqs/mobility#a1 

How many Road Policing Officers are there in 2020/21? England and Wales 4091, Wales 307 England and Wales excluding MPS 3270 Source: Home Office placed in a table by https://actionvisionzero.org/2021/08/02/avz-blog-august-2021-limited-rise-in-roads-policing-officers/ 

What is the length of roads in Great Britain 2021? The total length of roads in Great Britain was estimated to be 247,800 miles. 

There were 31,900 miles of major road in Great Britain in 2021, consisting of:  

2,300 miles of motorway (99% trunk, 1% principal) 

29,500 miles of ‘A’ road (18% trunk, 82% principal) 

There were 216,000 miles of minor road in Great Britain in 2021, consisting of: 

18,900 miles of ‘B’ road 

197,100 miles of ‘C’ and ‘U’ roads 

Source: https://www.gov.uk/government/statistics/road-lengths-in-great-britain-2021/road-lengths-in-great-britain-2021 

With so few road police officers covering so many vehicles across so many miles how can any credence be given to a defendants clean driving licence? 

1. Actions of the victim or a third party contributed significantly to collision or death – If the actions of the victim or a third party were significant why is the offender being charged with causing death by dangerous driving? If the offender was not driving dangerously who knows what would have happened or what evasive action could have been taken. I would also argue that if the offender killed someone as a result of significant actions of a third party the charge would not be causing death by dangerous driving. 
2. Offence due to inexperience rather than irresponsibility (where offender qualified to drive) – An inexperienced driver has killed someone. There is something wrong with our driving test if experience is a mitigating factor when driving dangerously causes the death of another human being. Inexperience is not an excuse if you have passed your driving test speed limits and the rules of the road should be fresh in your mind.
3. Genuine emergency – I am confused. I understand there are genuine emergencies but surely you still have a responsibility to drive safely, a duty of care to all other road users. An emergency should not be an excuse to kill someone. Please remember the offender is guilty of causing the death of another human being by driving dangerously. I would argue that the offender has made the emergency worse as I’m guessing they would not be able to continue on their emergency journey. 
4. Efforts made to assist or seek assistance for victim(s) – Efforts at the scene. I understand that this is very difficult, perhaps it should be removed. I say this because some offenders may not have the knowledge, training or experience or may be in such a state of shock that they are unable to help. It seems unfair to give credit to favour one offender over another because of their experience. Perhaps it should just be accepted that some people have skills and the ability to cope while others don’t. Focus on the fact that the offender has been found guilty of causing death by dangerous driving rather than what action was taken after the fatal event they caused. 

The Solicitor General, when justifying the decision not to refer our case to the Court of Appeal under the Unduly Leniency Scheme writes “By way of background, the bar to increasing a sentence is a very high one.”. The bar for giving credit for “Efforts made to assist or seek assistance for victim(s)” should be equally as high. Leaving the scene is illegal so no credit for staying at the scene, owning up to be the driver no credit (in our case she was the only one in the car if there are more people in the car and no one owns up to being the driver charge them all equally). Roadside interview is of little use in fact a waste of time if the actual police interviewed turns out to be a “No Comment” interview. Nothing can be confirmed or clarified. 

If any credit is to be given the court must ensure that the facts are correct. Ms Hamer was given credit, stated by both advocates and the judge , for actions she did not do. This has been confirmed by the police and we have since received an apology from the CPS.  

Credit should not be given to an offender who does what any normal human being would do. If credit is given that turns out to be factually incorrect the case should automatically be sent to the court of appeal. 

1. Remorse – The Internet is a fantastic resource. Simply type “symptoms of remorse” or “signs of remorse body language” and you are presented details of how to react to show remorse. It is not difficult. The SC suggests “The court should be aware that the offender’s demeanour in court …” and “If a PSR (Pre-Sentence Report) has been prepared it may provide valuable assistance in this regard.” I would argue that conducting research into symptoms and signs of remorse can affect responses and demeanour. Can you assess how remorseful someone in what, one can assume, is the unfamiliar surroundings of the court? Add to this that this examination of behaviour, and production of the PSR report is done months after the event (in our case 12 and 13 months) which may provide plenty of time for research and coaching. What would I recommend based on our experience? Investigate the actions of the offender as actions speak louder than words. 

Another interesting point. The SC state “Lack of remorse should never be treated as an aggravating factor.” Why not? Surely this is double standards.  

1. The victim was a close friend or relative – Significance of the victim being a close friend or relative cannot be decided by the courts. Only the victims family can decide if this should be considered as personal mitigation, they should have input into the decision. 
2. Serious medical condition requiring urgent, intensive or long-term treatment – In commenting on this item of personal mitigation I would like to highlight one of the detailed SC items. “There will always be a need to balance issues personal to an offender against the gravity of the offending (including the harm done to victims), and the public interest in imposing appropriate punishment for serious offending.” You cannot get more harmful than death. Serious medical condition requiring urgent, intensive or long-term treatment or not you still have to take responsibility for your actions. 

Perhaps if you are that ill that you pose a risk to the public  you should have your licence suspended.  

1. Age and/or lack of maturity (which may be applicable to offenders aged 18-25) – Should the SC be using age as personal mitigation, even up to the age of 25, when in the UK, a person is considered an adult in the eyes of the law when they turn 18. At this age, they can: Enter into legal contracts; Leave home; Take on debt; Buy alcohol and smoke; Get married without parental permission; Vote in UK Parliamentary elections. Children as young at 8 in Scotland and 10 in the rest of the UK can be held criminally responsible. Teenagers aged 17 are allowed to drive. 

Why is it not good enough to be responsible if you have passed your driving test? This should not be a mitigating factor. This may appear to be draconian but if you are old enough and/or have the maturity to hold a driving licence and you have been found guilty of causing death by dangerous driving the only decision should be what type of institute do you serve your sentence in.

1. Mental disorder or learning disability – If you are not able to recognise, understand, and interpret the rules of the road should you be allowed to drive a 1 ½ ton weapon?
2. Sole or primary carer for dependent relatives – What if the victim was a primary carer for dependant relatives? You must consider the victim’s family circumstances. In our case no one asked if the victim was a primary carer for a dependant relative. That care would have immediately stopped whereas the offender would have time to plan and make other arrangements. 

Lorraine provided childcare for our, at the time, 3 ½ year old grandson on Mondays and Tuesdays (he was her Tuesday buddy) that stopped immediately, try explaining that. He is now 7 and has separation anxiety, needs to know where people are, what they are doing. He has come to terms with the fact people have to go to work but for example his dad is going to watch a football match, he gets very upset, will block the door, cry, scream all because he is terrified his dad wont return. He has night terrors regularly, sweating through his pyjamas and the bed sheets, sometimes screaming out, my daughter describes the scream as different to anything she has ever heard from him before. We believe there is a noticeable difference in him before Lorraine was killed and after, we are finding things out about his cognitive development and a lot of the suggestions and research come back to early childhood trauma. Although he was only 3½ at the time it is going to affect him for the rest of his life. 

Again I state that these issues should be investigated with the same amount of scrutiny and consideration as that given to the offender. 

1. Pregnancy, childbirth and post-natal care – Fortunately Lorraine did not experience post-natal depression but I have some sympathy for new mothers. Having said that if the mother is diagnosed with the condition maybe their driving licence should be suspended if they pose a risk to the public.  

What is interesting is that the SC identifies “The impact of custody on an offender who is pregnant or postnatal can be harmful for both the offender and the child including by separation, especially in the first two years of life.” Why is this interesting? Because the council does not attempt to identify the same problems that will occur with the victims family. It is worth repeating. From personal experience our grandson has separation anxiety, and we believe there is a noticeable difference between him before Lorraine was killed and after, we are finding things out about his cognitive development and a lot of the suggestions and research come back to early childhood trauma. Although he was only 3½ at the time it is going to affect him for the rest of his life. Why is this not considered? 

1. Difficult and/or deprived background or personal circumstances – I have read through the details provided by the SC in its guidelines. My immediate reaction was to feel that the offender has been let down by both the education system and social services. Why? Because it implies that because of their upbringing and life experience to date they do not know right from wrong and can use what has happened to them as an excuse to drive dangerously and kill someone. I started out by thinking I would write a counter argument to each of the disadvantages listed by the SC but each time I read the list I became more and more depressed. Excuses like experience of discrimination, negative experiences of authority, negative influences from peers, low educational attainment, insecure housing, poverty, etc… So with all the experiences identified you are less culpable than that of an offender that has not have the same life experience. That simply does not make sense. It is both unjust when considering other offenders and definitely favours the offender over the victims family. 

The SC states “There are a wide range of personal experiences or circumstances that may be relevant to offending behaviour.” I understand this but they have passed their driving test and still need to take responsibility for their actions. The only decision should be which institution they should serve their sentence in which would best help them in the future.  

1. Prospects of or in work, training or education – For me the SC details here are clearly generic, talking of offenders being “rehabilitated “. When an offender has broken the law, driven dangerously, and taken the life of another human being their prospects of work, training or education should be irrelevant.  

In my opinion, although I have not examined other SC guidelines, it is clear that these mitigation guidelines, are in the main, generic probably using cut and paste. I would go on to say that these guidelines have clearly been created without having lived through the experience of losing a loved one at the hands of a dangerous driver. The sheer devastation it causes generations of the victims family for years, and in some cases for life. 

Should the guidelines set by the Sentencing Council be just about punishment, justice and rehabilitation? No! There must be an element of deterrence. 

Reference to setting a deterrent within the SC guidelines is very difficult to find. But if we are to ever start to reduce the number of road deaths (approximately 1700 per annum consistently since 2010 more than gun crime, knife crime and terrorism put together) there needs to be a multi discipline approach by that I mean education, changes in the driving test, graduated driving licence, police enforcement, SC guidelines that put the victims rights first, and the judiciary issuing sentences that show the seriousness imposing punishment, justice, and most importantly an element of deterrence. 

Updated on: 22 November 2024