Driving offences - On the highway to jail

Following the publication of guidelines by the Sentencing Guidelines Council in July 2008, drivers could face imprisonment if convicted of causing a death while driving. Given the severity of penalties, it is imperative that brokers ensure that their clients are aware of the potential consequences of driving.

Previously, the penalty for careless driving, even if a death occurred, was usually penalty points and a fine. Disqualification was discretionary and, if the accused proved that the disqualification would affect his livelihood or family adversely, he could use 'exception hardship' arguments to persuade the magistrates not to do so.

The offence of causing death by careless driving, in force from 18 August 2008, carries a maximum penalty of six months imprisonment if the case is heard in the magistrates court, a level soon to rise to twelve. If convicted on indictment, however, a defendant could face up to five years imprisonment. Although the sentence is potentially harsher, defendants are expected to be advised to elect trial in the crown court and be tried by a jury rather than face potentially case-hardened district judges or magistrates.

The guidelines do not recommend that all defendants convicted of causing death by careless driving should automatically lose their liberty. They suggest, for example, that an instance of careless or inconsiderate driving arising from "momentary inattention with no aggravating factors" should result in a community service order.

What advice should brokers give their clients, particularly those that drive at work?

Any activity that the police may regard as a distraction should be avoided, such as reading from satellite navigation equipment or adjusting radio controls. Composing text messages is likely to be regarded as a gross avoidable distraction, with the driver almost certainly facing a prison sentence.

The guidelines emphasise that all drivers are responsible for ensuring that: their vehicles are maintained correctly; their commercial vehicles are loaded properly; they do not drive with a medical condition that they know might impair their driving; and that they do not drive when deprived of sleep. It is easy to see how the authorities might investigate a company for offences under The Corporate Manslaughter Act (see PB, March 2008, p.13) if an employee that causes a fatal accident states that they had to work long hours or had been under pressure to attend meetings.

We must wait to see how the new guidelines are applied and how defendants are sentenced. It is anticipated widely that many more cases will be heard at trial, hearings will take longer and defendants with an unblemished driving record will fall foul of over-zealous magistrates and judges that will impose custodial sentences. The cost of defending such offences will rise substantially, a cost that insurers are likely to bear initially but that will be reflected in the premium charged to policyholders at renewal.

- Kate Archer, partner and head of motor prosecutions unit, Beachcroft.