Gaps in the Law: Causing Serious Injury by Careless Driving

Christina Courquin considers the offence of causing serious injury by careless driving and the implications it has on sentencing.

Imagine you are driving a car along a road. Suddenly, the car in front of you abruptly stops and, due to a momentary lapse of attention, you do not have time to apply your brakes. As a result, you crash into the back of that vehicle. You are not hurt, however the driver of the vehicle in front suffers a serious injury.

The following question arises: what offence will you be charged with and what sentence will you receive?

Background

Prior to June 2022, there had only been two driving offences relating to serious injury.

The first offence was ‘causing serious injury by dangerous driving’, section 1A of the Road Traffic Act 1988 (‘RTA 1988’) brought in by The Legal Aid, Sentencing and Punishment of Offenders Act 2012. The second offence was ‘causing serious injury when driving disqualified’ contrary to section 3ZD of the RTA 1988, created by the Criminal Justice and Courts Act 2015.  

However, clear charging issues arose when driving led to serious injury of another, yet did not meet the threshold for dangerous driving.  After all, the standard for dangerous driving is rather high. As set out in Section 2A(1) of the RTA 1988, a person is driving dangerously if their driving falls FAR below what would be expected of a competent and careful driver.

In comparison, what amounts to careless driving can seem a somewhat lower threshold. As is set out in section 3ZA Road Traffic Act 1988, careless driving is met if the driving simply falls below what would be expected of a competent and careful driver.

CPS guidance in what amounts to careless driving include:

a) Overtaking on the inside;
b) Driving inappropriately close to another vehicle;
c) Inadvertently driving through a red light;
d) Emerging from a side road into the path of another vehicle;
e) Tuning a car radio;
f) Using a hand-held mobile phone or other hand-held electronic equipment where the driver was avoidably distracted by that use; and
g) Selecting and lighting a cigarette or similar where the driver was avoidably distracted by that use.

These examples are not conclusive of what will amount to careless driving, as each case must be objectively decided on its own facts.

For example, convictions for careless driving have arisen out of crossing a road’s dividing line (Muni v Warwickshire police [2001] EWHC Admin 448) and veering off course during an overtaking manoeuvre, causing a collision (DPP v Tipton [1992] 1 WLUK 79).  The use of a mobile phone to take photographs or films whilst driving may be cogent evidence of careless driving (DPP v Barreto [2020] 1 W.L.R. 599).

In determining what would be expected of a careful and competent driver, the court shall have regard to the circumstances of which the driver could have been expected to be aware and any circumstances that should have been within their knowledge.

For example, in DPP v Parker [1989] RTR 413, the Defendant was driving in a line of traffic which halted. The Defendant’s car ran into the back of one car, which ran into the back of another car. Because of the rain the road was wet and slippery. At trial the Defendant was acquitted of careless driving, as the justices concluded a reasonable and prudent driver could have been involved in such an accident.

Gap in the Law

Consider the scenario where a driver emerged from a side road into a main road and collided with a pedestrian crossing over the main road. As a result of the collision, the pedestrian suffered a broken hip. The driver was not driving dangerously and therefore could not be charged with causing serious injury by dangerous driving. There was no intent to cause harm, meaning the driver could not be charged with GBH. In a scenario such as this, the driver was much more likely be charged with careless driving, despite the serious injury caused.

Careless driving is a summary only offence. The current maximum penalty is an unlimited fine (although the starting point for Category 1 offences is a Band C fine).   A charge of careless driving can carry disqualification when both higher harm and higher culpability are made out on the guidelines, but in the majority of cases points are imposed.  In comparison, causing serious injury by dangerous driving is an either way offence which carries a maximum penalty of 5 years imprisonment and an obligatory minimum 2-year disqualification.  Guidelines for this offence came into effect from 1^st July 2023.

There appeared to be a gap in the law, as an offence needed to be created for situations where careless driving caused serious injury.

Consultation

In May 2014, the Ministry of Justice announced a full review of all driving offences and penalties. Part of this review included questioning whether there was a gap in the law relating to careless driving resulting in serious injury and, if so, whether there should be a new offence created.

The consultation was finally published in October 2017.

Following the consultation, the Government confirmed it would proceed with enacting legislation to create a new offence of causing serious injury by careless driving. The Government then published a fact sheet to go alongside the Police, Crime, Sentencing and Courts Bill, where it stated that the new offence was necessary as:

“The government wants to close a gap that fails to recognise the harm caused where drivers cause serious injury by their careless driving. There are currently two specific driving offences of causing serious injury:

• Causing serious injury by dangerous driving
• Causing serious injury by driving if a disqualified driver

There is no specific offence of causing serious injury by careless driving even though injuries caused by careless driving can be wide ranging and may result in permanent and life changing injury”.

New Legislation

Section 87 Police Crime and Sentencing Act 2022 came into force on 28^th June 2022. It created the new offence of causing serious injury by careless driving, which was inserted into section 2C Road Traffic Act 1988.

The new offence reads as follows:

2C Causing serious injury by careless, or inconsiderate, driving

1. A person who causes serious injury to another person by driving a mechanically propelled vehicle on a road or other public place without due care and attention, or without reasonable consideration for other persons using the road or place, is guilty of an offence.
   
2. In this section “serious injury” means –

a) In England and Wales, physical harm which amounts to grievous bodily harm for the purposes of the Offences against the Person Act 1861, and

b) In Scotland, severe physical injury

Sentencing Guidelines

The difference in sentence between careless driving and causing serious injury by careless driving is significant.

The sentencing guidelines for causing serious injury by careless driving came in to use at the start of July 2023.  The maximum sentence that can be imposed is one of 2 years custody, with the range being a low-level community order to 2 years custody. Therefore, unlike careless driving, a financial penalty is seemingly not an option. Moreover, the new offence carries an obligatory disqualification for a minimum of 12 months.

In comparison, a charge of careless driving does not carry an obligatory disqualification. Even for a category 1 offence at the highest end of the sentencing guidelines, the court has the discretion to consider a disqualification, or impose 7-9 points.

The potential repercussions for clients charged under the new legislation are far more severe than if charged with careless driving. In particular, for those that drive for a living, an obligatory 12-month disqualification and a potential custodial sentence for an unintentional offence raises the question of whether the new offence may lead to disproportionate sentences.  

Christina Courquin is a junior tenant at Mountford Chambers.  She accepts instructions across Chambers’ practice areas, with a focus on general crime and regulatory work.