New driving offences proposed
I understand that the Government are considering introducing a new offence of causing serious injury by dangerous driving, which I suppose means I'm going to have to update the firm's website (again).
As a fellow motorcyclist, I have sympathy for Darren Braund who was injured when a driver pulled in front of his motorbike causing him to collide with her car but looking at the description of the offence and the sentence I have my doubts whether this new offence would have made a difference for Mr Braund as it looks like the car driver was convicted of careless driving rather than dangerous driving, in which case the new offence wouldn't apply to her.
Dangerous driving is defined as driving that falls far below the minimum acceptable standard expected of a competent and careful driver; and it must be obvious to a competent and careful driver that driving in that way would be dangerous.
Whereas careless driving occurs when the way somebody drive falls below the minimum acceptable standard expected of a competent and careful driver.
I'm a bit old fashioned when it comes to defining offences. I still subscribe to the maximum "actus non facit reum nisi mens sit rea", which broadly speaking translates to "the act is not culpable unless the mind is guilty", i.e. you must do the act and mean to do it before you are guilty of an offence. There seems to be a new trend emerging for defining an offence by the harm caused rather than the intention behind the act. Even murder requires both a death and an intention to kill or cause GBH (by which is meant really serious harm), if you lack the necessary intent then you are not guilty of murder. I haven't seen a draft of the proposed new offence but I can only assume that it will require a. dangerous driving; and b. that serious harm occurs as a result of that driving. Thus there is no need to show that the offender intended to cause injury.
Personally, I think that a more elegant way of dealing with the problem is to increase the sentence for dangerous driving from two-years to five-years (or whatever is deemed appropriate) and then allowing courts to impose higher sentences where serious injury is caused. In fact, the case of R v Cooksley and others [2004] 1 Cr App R (S) 1 the court held that causing serious injury would be just such an aggravating factor.
I assume that the argument behind creating a new offence will be that if somebody is driving dangerously then they must realise that there is a risk of causing harm and so they should be liable for a higher penalty. But, for me that doesn't get away from the fact that the only difference between two cases could be that one person was lucky and the other was not.
Maybe it's a discussion for academic lawyers who no doubt have a much better grasp of these things than a mere practitioner like myself.
On a side note, I have started a new blog called Motoring Lawyer... I probably should have posted this piece there.
As a fellow motorcyclist, I have sympathy for Darren Braund who was injured when a driver pulled in front of his motorbike causing him to collide with her car but looking at the description of the offence and the sentence I have my doubts whether this new offence would have made a difference for Mr Braund as it looks like the car driver was convicted of careless driving rather than dangerous driving, in which case the new offence wouldn't apply to her.
Dangerous driving is defined as driving that falls far below the minimum acceptable standard expected of a competent and careful driver; and it must be obvious to a competent and careful driver that driving in that way would be dangerous.
Whereas careless driving occurs when the way somebody drive falls below the minimum acceptable standard expected of a competent and careful driver.
I'm a bit old fashioned when it comes to defining offences. I still subscribe to the maximum "actus non facit reum nisi mens sit rea", which broadly speaking translates to "the act is not culpable unless the mind is guilty", i.e. you must do the act and mean to do it before you are guilty of an offence. There seems to be a new trend emerging for defining an offence by the harm caused rather than the intention behind the act. Even murder requires both a death and an intention to kill or cause GBH (by which is meant really serious harm), if you lack the necessary intent then you are not guilty of murder. I haven't seen a draft of the proposed new offence but I can only assume that it will require a. dangerous driving; and b. that serious harm occurs as a result of that driving. Thus there is no need to show that the offender intended to cause injury.
Personally, I think that a more elegant way of dealing with the problem is to increase the sentence for dangerous driving from two-years to five-years (or whatever is deemed appropriate) and then allowing courts to impose higher sentences where serious injury is caused. In fact, the case of R v Cooksley and others [2004] 1 Cr App R (S) 1 the court held that causing serious injury would be just such an aggravating factor.
I assume that the argument behind creating a new offence will be that if somebody is driving dangerously then they must realise that there is a risk of causing harm and so they should be liable for a higher penalty. But, for me that doesn't get away from the fact that the only difference between two cases could be that one person was lucky and the other was not.
Maybe it's a discussion for academic lawyers who no doubt have a much better grasp of these things than a mere practitioner like myself.
On a side note, I have started a new blog called Motoring Lawyer... I probably should have posted this piece there.
Maybe the Government are aiming for vengeance, rather than justice. In which case the victims injuries would mean a harsher sentence. It's quite a natural response though, someone I know was involved in a hit and run, she spent 12 weeks in a coma, cannot walk and has a head injury causing memory loss and speech difficulties. Almost exactly a year later, she is still in hospital. The guy driving got less than 6 months or so, which seems so wrong. The toddler in the news stories today is also a case that tugs on your heart strings.
ReplyDeleteThere's also the fact that changing sentencing guidelines probably wouldn't generate such favourable tabloid comment. But may be that's just me being cynical
Surely mens rea is dead as a principle by now? We have strict liability offences all over the place, and a general feeling from the benches that acts and consequences rather than states of mind are what get punished.
ReplyDeleteIt's a shame, because proving mens rea is rather more challenging than proving an act, but that's the way it seems to have been taken.
My own theoretical feeling is that there is nothing magical about driving and it should have no special treatment. If I accidentally misuse a car and hit someone such that he is severely injured, how is that different from my accidental misuse of a chainsaw or a carving-knife or a bottle of weed-killer? I know, hopelessly naïf...
There's a report of a van driver being arrested on suspicion of causing death by dangerous driving. He lost control of the vehicle and hit a lamppost. The falling lamppost killed another driver.
ReplyDeletehttp://www.eastbourneherald.co.uk/news/local-news/tributes_paid_to_eastbourne_man_killed_in_freak_road_accident_1_3128867
hlw, I agree it is difficult to get away from the immediate feeling that somebody should be punished we all experience when we hear of somebody being seriously injured.
ReplyDeleteI also have sympathy for Darren Braund and I'm very sorry that he was injured. So, that car driver was charged only with careless driving Toronto? such a small punishment, in my opinion!
ReplyDeletehi ive just come across this blog. I wrote the story you are relating to, I'm Darren's wife Jane. The story that was published on the BBC didn't go in to too much detail, due to still fighting legally on this case. Nearly 3 years now on 14th of July 2012 and Darren is still no better, he is actually worsening due to his brain cells shrinking and much much more. when the legal aspects are over, i will be able to go in to more detail. I obviously have to protect and look after my husband and our 2 little boys. The story is much worse than what was said and i can't wait for all the legal things to be over so i can get our story out there but until then i cant say much more. Thanks for writing the blog about this. many thanks Jane Braund x
ReplyDelete