A retired barrister and part-time judge has spoken of his long-term calls for drivers who kill to be charged with motor manslaughter, rather than a road traffic offence, to reflect the severity of the crime.

Nic Atkinson KC, who practised as a barrister for almost 50 years, is backing our Fix Our Broken Justice System campaign, which is calling for stronger sentences for offenders.

By Nic Atkinson KC

I was involved in a trial in 1991, where a disqualified driver raced past another vehicle, lost control and killed five children who were sitting on a bench at the side of the road. The maximum term of imprisonment at that time was five years.

This trial illustrated how badly society was served by the law and the courts. During the trial, I was approached by a father whose only son had been killed whilst cycling to his university. He told me that he was involved with establishing a charity.

The following year, I spoke at the launch of RoadPeace, the national charity for road crash victims,* and proposed that the maximum sentence in such cases should be one of life imprisonment. This was not to fill the then already overcrowded prisons, but was intended to raise the profile of the offence, reflecting the gravity and the subsequent suffering caused to the family and friends of the deceased.

I suggested that causing death by dangerous driving was not a mere road traffic offence. The emphasis should not be concentrated on the quality of the driving, but upon the resultant death. With a maximum sentence of five years, this was an offence not viewed by the police as one of the most serious to investigate.

Junior employees of CPS would review the evidence and the trial could be presided over by a Recorder [part time Judge] such as myself.

The maximum sentence was half one that might be passed for the offence of theft. The Junior Barristers instructed in a trial would be paid at about the level paid in a shoplifting case.

I further proposed, as I still do, that all cases that resulted in death on the roads should be charged as motor manslaughter.

In the mid-fifties, it was considered difficult for manslaughter cases of death on the roads to result in guilty verdicts. There was believed to be a prevailing attitude that “there but for the grace of God go I” Parliament creating by statute the offence of causing death by dangerous driving. This remained the only offence dealing with death on the roads for several years.

I believe that the attitude of the public towards dangerous driving has hardened over the years. There are more vehicles on the roads, greater criticism of the quality of driving and tougher legislation in relation to drink driving has been introduced. Significantly, the constitution of Juries is very different today from what it was in the past.

How the law has changed

Several improvements in dealing with cases of death caused by drivers have taken place in recent years. In particular, the involvement of family liaison officers, as greater attention has been given to such cases by the police and the maximum sentence was increased on a couple of occasions. And other offences resulting in death on the roads were created. Last year, 30 years since RoadPeace was founded, the maximum sentence was increased to life imprisonment.

Causing death by dangerous driving is now on a par with murder and manslaughter. This should result in more thorough police investigations, more senior employees should review the evidence to be relied upon in court and Senior Judges should preside over the trials. Murder cases are tried by High Court Judges and some senior approved Crown Court Judges. Serious sexual offences can only be tried by Judges with the appropriate approval of the authorities.

Last year, Parliament passed legislation that dealt with many motoring offences including the five offences that deal with death on the roads.

Several years ago, the Sentencing Council was created as a political response to the frequent criticism in the media and Parliament of lenient sentencing.

The impression was created that tougher sentences would follow. However, those hoping that would be the consequence were to be disappointed. The treatment of offences resulting in death on the roads has now been considered by the Sentencing Council. It would seem that the mentality of treating these deaths as road traffic offences, rather then homicide, still prevails in the legal establishment.

The Sentencing Council has predictably watered down Parliament’s legislation. Its practice when providing guidelines to sentencing it breaks down offences into their constituent parts and highlights aggravating and mitigating features. The Council then sets out various bands of seriousness within each offence. A starting point for sentencing is then referred to, and a range of sentences that it considers to be appropriate. The final range is suggested to cover the most serious example of any particular offence.

There are presently five offences related to causing death.

Ignoring the will of Parliament

In respect of causing death by dangerous driving, Parliament set the maximum sentence as life imprisonment. The guidelines, however, set the range of sentence in the worst case of up to eighteen years. This quite simply does not reflect the will of Parliament and appears to clearly ignore the provisions of the Act.

In respect of the offence of causing death by careless driving, whilst Parliament considered that the maximum sentence available should be one of five years of imprisonment, the guidelines suggest that a sentence of up to four years would be appropriate to deal with the worst example of this offence. It would appear that Parliament’s proposed maximum sentence has been simply ignored.

This highlights a particularly sensitive issue. The CPS has a considerable and unenviable track record for undercharging in relation to a wide number of criminal offences. For many years, before the introduction of the offence of causing death by careless driving, the CPS, if unsure the driving could be described as dangerous, would prosecute an offender for mere careless driving.

Such a decision would be made behind closed doors and then dealt with in the Magistrates Court. Such a course of action not only saved money but usually guaranteed a guilty plea.

For several years, it was policy not to mention that a death had occurred. This practice only changed after representations made by RoadPeace to a Home Office Minister at the turn of the century.

How confident can we be that the CPS will resist the easy course of opting for careless, rather than dangerous driving causing death, in the future?

If a sentence of three years’ imprisonment is considered appropriate and there has been an early indication of a plea of guilty, the court is obliged to reduce the sentence by one-third so that it would be reported that two years’ imprisonment had been imposed. That would result, in fact, by the offender being in prison for one year, and upon licence for a further year. Will the present pressure upon lack of prison accommodation result in early release?

In respect of causing death by careless driving under the influence of drink or drugs, Parliament set the maximum sentence to be one of life imprisonment. The Sentencing Council guidelines state that the most serious top of the range sentence to be one of eighteen years.

In respect of causing death by driving whilst disqualified, Parliament legislated a maximum sentence available to be one of ten years. The Sentencing Council guideline stops at seven years.

The Sentencing Council, in relation to the above four examples, cannot be said to have followed Parliament’s will and it is unclear why this should be the case.

No guidance is given in those four cases as to when the maximum sentence would ever be appropriate.

There is one offence of causing death where the Sentencing Council is seen to follow the Act of Parliament and adopts the maximum sentence in the guidelines (causing death driving whilst unlicensed or uninsured).

Parliament has previously legislated, as referred to above in the death by careless driving example, that every plea of guilty will be rewarded with a reduction of one-third of the sentence. In so many cases where the evidence is overwhelming, for example when captured on film, how can that possibly be seen to be in the interests of Justice?

*RoadPeace was founded in 1992 by Brigitte Chaudhry MBE, after her 26-year-old son, Mansoor, was killed by a red light offender. It was such a clear-cut case of negligence, and yet the driver was only charged with “driving without due care and attention” and received a fine of £250 and eight penalty points.

Updated on: 7 December 2023