My Lords, the noble and learned Lord, Lord Hope, objects to Clause 66 standing part of the Bill and has tabled Amendment 155 in its place. We have had a very interesting and more wide-ranging debate than we perhaps anticipated when the amendment was put down. Thanks to the noble and learned Lord, Lord Falconer of Thoroton, we have got on to gross negligence. In the time available, it reminded me that it was Lord Cranworth in Wilson v Brett, back in 1843, who said that gross negligence is actually only
“negligence with a vituperative epithet”
attached. That is a little legal chestnut about what gross negligence actually is—in the civil context, I accept.
We need to focus on the fact that we are looking at driving offences, and I will come back later to whether it was a valid comparison put forward by the noble Lord, Lord Thomas of Gresford. The amendment we are dealing with here is perhaps the reverse of the approach taken in the earlier group to Amendment 152. Some of the speeches made in that context, such as that made by the noble and learned Lord, Lord Judge, are also applicable here. With Amendment 155, the noble and learned Lord, Lord Hope, hopes to add additional requirements, thereby raising the threshold for the new proposed offence of causing serious injury by careless driving.
As I said on the previous group, we are back to the issue of relatively low-culpability offences that can attract custodial sentences because the consequences can be catastrophic. Of course, I hear the point made by the noble and learned Lord, Lord Hope—it was a sort of “There but for the grace of God go I” point, if I can summarise it in that way—but, as I have said, there is a balance to be struck between the culpability of the driver and the harm that they cause. The Government believe that the current position—whereby a driver who by careless driving has caused serious injury, including perhaps very serious or life-changing injuries, may only be fined—is wrong. That is why we have created this new offence and why we believe it should be incorporated in the Bill.
I respectfully agree with the point made by the noble Lord, Lord Beith, that we have to have sight of, and due regard to, the consequences of the driving. If I may, I will come back a little later to the other point the noble Lord made, about whether prison is the only way to respond to that.
Having said that, we recognise that the standard of driving required for this offence is relatively low. Careless driving can sometimes amount to no more than a short period of inattention—we had the example of
the wasp on the back seat—but we do not agree with the noble and learned Lord that we need to add a requirement explaining what we mean by “causing serious injury”, or that the definition should provide that the notional “careful and competent driver” would know that their driving was likely to cause serious injury. I am grateful for the support—at least on this amendment—of the Benches opposite and of the noble Lord, Lord Ponsonby. He also asked whether prison is the right response, and I will come back to that too.
I make three substantive points in response to the proposed amendment and the clause stand part proposal. First—I will make this point relatively softly, because I think the noble and learned Lord, realistically, if I may say, accepted that there may be drafting issues with the amendment and the scope of it—it would create inconsistencies in the law and that is because this additional test would apply only to this new offence of causing serious injury by careless driving and does not, for example, apply to the offence of causing serious injury by disqualified driving, where it might be argued that the level of culpability is even lower, because there is nothing actually wrong with the driving there at all. I will come back to that in another context.
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The second of my three points is that this additional requirement, to an offence based on careless driving, alters the nature of the objective test in a way that could lead to confusion with dangerous driving. That is because the proposed test is that it would have to be obvious to the notional careful and competent driver that the driving was such that it would be likely to cause serious injury. That is likely, we think, to lead to confusion, because the person who is knowingly driving in a way that is likely to cause serious injury is more likely to be considered to be driving dangerously and not only carelessly.
Thirdly, and perhaps more significantly, we do not think there is a need to add this additional test, because although the new offence sets a maximum penalty of two years imprisonment if prosecuted on indictment, that is a maximum penalty. Maximum penalties mean what they say: they are the penalty available for the worst possible case. The explanatory statement to the amendment says that the impetus behind the amendment is that a conviction for this offence would attract a sentence of imprisonment, but the court would, of course, retain discretion to impose a lesser sentence, including a non-custodial sentence, where the culpability of the driving and the harm caused do not merit a custodial term. We would trust and expect the courts to reflect the degree of culpability and to consider the consequences when they are looking at sentencing. Therefore, we do not believe that this additional requirement is necessary.
The Sentencing Council, which is obviously independent, will consider the guidelines after Parliament has considered the offence. I would point out in this regard that for the offence I mentioned earlier, that of causing serious injury by disqualified driving, the maximum sentence is four years if injury results and 10 years if death results. Let us remember that the
maximum sentence we are proposing here is two years. So we have thought about the calibration of the maximum sentence. I underline that it is a maximum sentence.
I hope that picks up the point made by the noble Lord, Lord Pannick, about custodial sentences generally. As the Committee will know, whenever anybody is sent to prison, the court has to consider, first, whether a non-custodial sentence could properly be given, and, secondly, if a non-custodial sentence cannot be given, whether the custodial sentence can be suspended. Therefore, I underline the point that this is a maximum sentence.
A number of noble Lords asked about the genesis, if I can put it that way, of the offence. We heard in our debate on a previous group of amendments about the consultation back in 2016. This offence was overwhelmingly supported by the 9,000-plus respondents to that consultation. A majority of the respondents also supported a custodial term on a maximum basis—the maximum penalty being a custodial term.
I hope that responds to the substance of points made by the noble and learned Lord, Lord Hope. As I said in the previous group, there may be points that would benefit from an on-going discussion, and I am very happy to have that with him.
At the risk of taking up time, I will spend only a minute on this; otherwise, we will never finish. It is about the point made by the noble Lord, Lord Thomas of Gresford, on R v Caldwell. It is always a wonderful thing to be able to say in the end that one was right, even if one has to wait for a future decision to say that the argument was right, so I sympathise with where the noble Lord is coming from. But I respectfully suggest that it is a misstep to start making comparisons with R v Caldwell and the mental element at all in this area. We have moved to an objective test, and mens rea is not, I think, a helpful term in this context, not least because a genuine error is something that a competent and careful driver might make. Therefore, it might not amount even to careless driving.
I hope I have not stirred the pot too much. I remember R v Caldwell and R v Cunningham from my university days. Now I know who to blame for the poor marks for the essay I wrote on it. I hope I have responded to the points made by the noble and learned Lord. I am happy to continue the discussion, but I hope that he will be able to withdraw. I see the noble Lord, Lord Pannick, moving.