Carelessness, the sheriff's sentencing guidelines, and road justice for cyclists
There was some indignation recently over an apparently lenient sentence handed down by Sheriff James Scott to the 'careless' driver who killed cyclist Audrey Fyfe. The guilty man was given a five year driving ban and 300 hours of community service, prompting a successful campaign for the sentence to be appealed. The Sheriff will now have to explain his decision. This coincides with the CTC's Road Justice Campaign for bad driving to be treated with the severity it warrants, and with recommendations by an All Party Parliamentary Cycling Group (Get Britain Cycling) for the enforcement of road traffic law to ensure that driving offences ... are treated sufficiently seriously by police, prosecutors and judges.
Cyclists in Britain (those who take an interest in such matters) believe the legal system is weighted in favour of motorists and that fair justice cannot be expected when cyclists are killed or injured by motorists – I take this view myself. There is little confidence that the police will bother with proper investigations, that the CPS (Crown Prosecution Service) will prosecute severely enough, or that judges will hand down sentences that mean very much. In the Audrey Fyfe case the sheriff (sheriffs sit as trial judges in Scotland, where this accident ocurred) was widely lampooned for not, as a minimum, banning the driver for life.
I am now wondering if Sheriff James Scott is really at fault. Causing death by dangerous driving is a longstanding and serious offence. Everybody knows that, I think. However, that was not the charge in this case. The motorist was charged with causing death by careless driving, a lesser offence introduced by the Road Safety Act in 2006. In the old days this was known as driving without due care and attention. The sentencing guidelines when someone is guilty of careless driving are set out here together with factors to be taken into consideration by the sheriff, or judge, when death has been caused.
In particular, a momentary lapse of concentration or misjudgement at low speed is the lowest 'offence seriousness' and 'minor risk' indicates lower culpability. Where death was caused, the degree of carelessness involved in the standard of driving must be considered. Thus, a momentary lapse of concentration by the driver of a motor vehicle, though sufficient to kill a vulnerable cyclist, is not necessarily a serious offence. What seems wrong is perhaps not so much the Sheriff's judgement – although his reference to Audrey Fyfe not wearing a helmet betrays some ignorance – but (i) an inappropriate charge by the Crown Prosecution Service and (ii) the sentencing guidelines. Hopefully, now, (to continue Chris Bailey's cleaning metaphor) it will all come out in the wash.
Or perhaps not all. The Sentencing Council's 'definitive guidelines' go on at some length on matters such as how to assess the seriousness of offences that cause death, various factors that might mitigate an offender's culpability, and the legal difference between careless and dangerous driving. Of course, if there were no bicycles on the roads a momentary lapse of concentration would be less likely to cause someone's death, protected as drivers are in their metal boxes with air bags and crumple zones. The danger of carelessness would be less. So there is a problem with the language. Carelessness and danger are not on the same scale of meaning as the guidelines suggest they are; excessive carelessness may be negligent, or even reckless, but not always more dangerous. Equally, a small degree of carelessness can be very dangerous indeed to someone on a bicycle.
As a road cyclist I am acutely aware that a momentary lapse of concentration or a minor misjudgement by a motorist is potentially lethal to me, whereas to this motorist, or to other motorists, or to gate posts, the consequences are likely to be much less serious for exactly the same lapse. It was a momentary lapse like this that caused the death of Audrey Fyfe. To cyclists, careless and dangerous often mean the same thing whether the result is death or injury. This fundamental injustice and bogus distinction between careless and dangerous driving must be removed if cycling is to be made safer on British roads. It seems to me that the Sentencing Council and the Crown Prosecution Service have as much to answer for as Sheriff James Scott.
See the CTC's campaign briefing on bad driving and the justice system. Overall, I don't think much will change. Government priorities are now about saving money and that means less law, not more, and fewer custodial sentences. It's the times we live in. Need a lawyer? Try Eddie Stobart.