My Lords, the noble Lord, Lord Ponsonby of Shulbrede, referred a moment ago to constructive discussions. There have indeed been discussions between me, the noble Baroness, Lady Randerson, and the noble and learned Lord, Lord Hope of Craighead, and, so far as I was concerned, they were constructive. I am grateful to both of them for the time they gave to those conversations. I will set out the Government’s position, and I hope it will reassure them on the various points they raised.
Clause 67 introduces a new offence of causing serious injury by careless driving. By creating this new offence, the clause fills an admittedly small but, we think, significant gap in the current legislation. We considered the creation of this new offence and the maximum penalty it attracts very carefully during the review of driving offences that cause death or serious injury. We remain of the view that there is a clear gap in the law. That view was supported by the vast majority of people who responded to the consultation and by the other place.
Although I understand why the noble Lord, Lord Marks of Henley-on-Thames, says that this clause is wrong in principle, I respectfully disagree. I will explain why we think there is a gap in the law by looking first at the position with regard to dangerous rather than careless driving.
For dangerous driving, there are three main offences. The most serious—causing death by dangerous driving—has a maximum penalty of 14 years, to be increased to
life by Clause 66. Secondly, there is causing serious injury by dangerous driving, which has a maximum penalty of five years. Thirdly and finally, there is the basic offence of dangerous driving—for example, where there is no injury. That has a maximum penalty of two years.
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There is a clear and we think significant gap between the two, not three, offences that exist for careless driving. On one hand, there is causing death by careless driving, which has a five-year maximum. On the other, there is the basic careless driving offence, which has a maximum penalty of a fine, not imprisonment. We have seen some cases where there was evidence of carelessness leading to very serious and life-changing injuries, and where the only charge that can be brought is for the basic careless driving offence and the only penalty available therefore is a fine. We do not think it is acceptable that, when there is significant injury and some degree of culpability by the driver—carelessness is still a level of culpability—that can result only in a financial penalty. I stress that the level of injury required to commit the offence is serious injury, not just any injury. Serious injury is the equivalent of causing grievous bodily harm.
I shall turn to sentencing, raised by the noble and learned Lord, Lord Hope, in particular, in a moment. First, I should say, in response to the question of the noble Lord, Lord Marks of Henley-on-Thames, on prosecution that, with respect, I do not accept that it is a lottery, which I think was the word used. Prosecutions are independent of government and, for this offence, prosecutions will happen in the way that they happen for all other offences. The CPS will consider the law once it is passed. A code of practice will be issued for Crown prosecutors, and that will follow normal principles as to whether it is in the public interest to prosecute and whether there is a reasonable prospect of conviction. As to whether there will be an increase or a decrease in prosecutions overall, it will lie where it falls, so to speak. I do not go into this offence intending to increase or decrease prosecutions. Of course, the fact that there is an offence in the middle, between the two current careless driving offences, may mean that some things will be prosecuted here when they would not have been prosecuted previously elsewhere.
I turn to the point raised by the noble and learned Lord, Lord Hope. With respect, I accept the point he makes that, while the harm caused may be high, this remains a relatively low-culpability offence. That is why we set the maximum at two years’ imprisonment, to fit proportionately within the existing sentencing framework. Let me try to illustrate what I mean. The new offence of causing serious injury by careless driving must be more serious than the existing offence of driving when disqualified, which has a six-month maximum penalty, and where there is no requirement for either bad driving or indeed any injury. It must, however, be lower in seriousness than causing serious injury by dangerous driving, which has a five-year maximum, as I said earlier. That is why we think a two-year maximum—I underline “maximum”—is the appropriate penalty. I underline that two years is the maximum because the maximum has to take account of the worst imaginable case.
We do not expect that the maximum sentence will be imposed except in extremely serious cases, nor do we assume that a custodial sentence of even the shortest length will be routinely imposed for this offence. Sentencing is clearly a matter for the courts, but they are required by statute to consider, before imposing a custodial term, whether the offence is so serious that custody is the only suitable sentence for the offence, having first considered the alternatives to custody; then, in considering the seriousness, they have to consider both culpability and harm. Courts are, of course, also required to follow any relevant sentencing guidance issued by the independent Sentencing Council. The council is currently developing revised guidelines for motoring offences, including for this new offence, and it plans to consult on them in due course.
Normally, the Sentencing Council produces a guideline that categorises offences according to culpability and the harm caused. It will then set out starting points and ranges for the sentences in each category. It will also highlight aggravating and mitigating factors particular to the offence or the offender which the court may have particular regard to. In that way, we believe there will be full consideration of both the injury caused and the level of the offender’s carelessness in setting the sentences. Because there will be discretion for the courts to carefully consider the sentence following the law and the sentencing guidelines; because we are filling a gap in the law which can lead to injustice, albeit in a small number of cases; and because this proposal attracted overwhelming support both among the public and in the other place, I suggest to your Lordships’ House that this is a carefully considered and proportionate offence.
I hope I have answered the particular point put to me by the noble Lord, Lord Marks, but before I sit down I again record, sincerely, my thanks to the noble Baroness, Lady Randerson, and the noble and learned Lord, Lord Hope, for the time they spent with me discussing the issues to which Clause 67 gives rise. I therefore suggest that it should stand part of the Bill.