1. The Act received Royal Assent on 8 November 2006. It may, according to the Home Office, be another year before the new offences come into force.

2. Road Safety Act 2006, s 20, inserting s 2B into the Road Traffic Act 1988. The offence is triable either way with a maximum penalty of 5 years’ imprisonment when tried on indictment.

3. Road Safety Act 2006, s 21, inserting s 3ZB into the Road Traffic Act 1988. The offence is triable either way with a maximum penalty of 2 years’ imprisonment when tried on indictment.

4. Road Traffic Act 1988, s 1.

5. Road Traffic Act 1988, s 3A. In addition, the offence of aggravated vehicle taking under s 12A of the Theft Act 1968 carries a higher maximum sentence (now 14 years) where death is caused.

6. Lord Davies of Oldham Hansard HL Deb, vol 675, col 1563, 22 Nov 2005.

7. The second new ‘causing death’ offence could be argued to be equally, if not more, unjustified than CDCD. All it requires is that the defendant causes the death of another person by driving and at the time was either driving other than in accordance with a licence, driving while disqualified or driving while uninsured against third party risks. There is no requirement to assess the standard of the defendant’s driving or to establish whether it was careless or dangerous. However, it would seem that this offence is less controversial than that of CDCD. A number of respondents to the Consultation Paper who opposed the offence of CDCD supported this offence because they considered driving whilst disqualified or uninsured to be more culpable than carelessness might be: Home Office A Summary and Next Steps: The Review of Road Traffic Offences Involving Bad Driving (2005), available on the Home Office website at http://www.homeoffice.gov.uk/documents/cons-bad-driving-2005/.

8. Home Office Review of Road Traffic Offences Involving Bad Driving: A Consultation Paper (2005) ch 2.

9. ‘Careless driving’ is the common term used to refer to the offence of driving without due care and attention contrary to Road Traffic Act 1988, s 3.

10. Paragraph 2.1. The maximum penalty for CDDD is now 14 years’ imprisonment (Criminal Justice Act 2003, s 285). The maximum sentence for careless driving is a fine at level five (raised from level four by RSA 2006, s 23) and 3–9 penalty points or disqualification.

11. Death is not recognised in the offence label. Death may be an aggravating factor in sentencing for careless driving (Simmonds [1999] RTR 257) in imposing a fine and/or disqualification.

12. (1971) 55 Cr App R 262.

13. Dangerous driving can also be committed where the condition of the vehicle itself is dangerous, under RTA 1988 s 2A(2).

14. Marsh [2002] EWCA Crim 137.

15. RTA 1988 s 2A(3).

16. The Charging Standard was first published in 1996, which is the version usually referred to in this paper. The hard copies of this document were replaced in November 2004 by a revised electronic version, available on the CPS Legal Guidance website, available at http://www.cps.gov.uk/legal/section9/chapter_b.html. The CPS is undergoing a public consultation exercise with a view to amending the Charging Standard following the enactment of the RSA 2006.

17. Paragraph.7.7.

18. [2003] EWCA Crim 962, [2004] RTR 1.

19. Road Traffic Act 1988, s.38(7) states that ‘[a] failure on the part of a person to observe a provision of the Highway Code shall not itself render that person liable to criminal proceedings of any kind but any such failure may in any proceeding…. be relied upon by any party to the proceedings as tending to establish or negative any liability which is in question in those proceedings’.

20. Simpson v Peat [1952] 2 QB 24.

21. Section 30.

22. This form of the offence did not figure in any of the empirical cases discussed below and is very rarely discussed in the relevant literature.

23. Paragraph 5.6(1).

24. Consultation Paper, above n 8, para 2.2.

25. LM Pearce et al Dangerous Driving and the Law Road Safety Research Report No 26 (Transport Research Laboratory, 2002).

26. HMCPS Inspectorate Report on the Thematic Review of the Advice, Conduct and Prosecution by the Crown Prosecution Service of Road Traffic Offences Involving Fatalities in England and Wales Report 03/02 (HMCPS Inspectorate, 2002), available at http://www.hmcpsi.gov.uk/reports/RoadTrafficReport0302.pdf.

27. S Cunningham Criminal Charges Brought in Cases of Road Death Incidents in the East Midlands: Implications for Law Reform PhD thesis, University of Leicester (2004). It was commenced shortly after the TRL report was published, but before HMCPSI’s review. The findings are limited to a particular geographical area and time span. Some of the results have been published elsewhere, showing that plea bargaining was extremely rare in that area at that time: see Cunningham, S The Unique Nature of Prosecutions in Cases of Fatal Road Traffic Collisions 2005 CrimLR 834.Google Scholar

28. Pearce et al, above n 25, p 35.

29. Ibid, p 36.

30. Ibid, p 37.

31. Ibid, p 39.

32. Ibid, p 34.

33. HMCPSI, above n 26, para 1.12.

34. Ibid, para 1.17.

35. Ibid, para 2.4.

36. Ibid, para 2.5.

37. Ibid, para 5.75.

38. Ibid, para 5.65.

39. Ibid, para 5.66.

40. The term ‘road death incident’ is preferred to ‘fatal road traffic collision’ because it is a term used by some of the police forces involved in the study and better represents the approach taken by the police to their investigation of such cases. Officers are encouraged not to make assumptions about how a death has come about and to investigate the possibility of murder or manslaughter having been committed.

41. With the exception of cases where there was no surviving driver who could be accused of committing an offence. This included cases of single vehicle collisions and collisions involving two or more vehicles where all the drivers suffered fatal injuries.

42. The study was concerned with offences which contribute to the occurrence of a fatal collision and relate to the way in which a vehicle is driven. Other driving offences such as driving whilst disqualified, driving without a driving licence, driving without insurance and using a vehicle without an MOT certificate were excluded from the study.

43. See Cunningham ‘The Unique Nature of Prosecutions in Cases of Fatal Road Traffic Collisions’, above n 27.

44. Paragraph 11.5.

45. [1995] 1 AC 171. The test requires that the defendant owed the victim a duty of care which the defendant breached, causing the victim’s death. It is then for the jury to decide whether, having regard to all the circumstances, the breach should be characterised as gross negligence and therefore as a crime.

46. Where the additional factors of drink or drugs are involved, an alternative charge of causing death by careless driving when under the influence of drink or drugs might be preferred.

47. Charging Standard, para 7.7.

48. This is confirmed by a Consultation Paper issued by the CPS in relation to its charging policy in cases of bad driving following the enactment of the RSA 2006. Citing the case of Director of Public Prosecutions v Milton [2006] EWHC 242 (Admin), [2006] RTR 21 the CPS suggests that the current legal position is that ‘while excessive speed alone cannot be a basis for convicting a driver of dangerous driving, where the speed was grossly excessive on a stretch of road with potential hazards then excessive speed could amount to dangerous driving’: Crown Prosecution Service Prosecuting Bad Driving – A Consultation on CPS Prosecuting Policy and Practice (2006) para 148, available at http://www.cps.gov.uk/news/pbd.pdf. It was further suggested (para 154) that speeding is one area where public attitudes may have changed so that what was once seen as careless may now be considered dangerous.

49. Charging Standard, para 5.6.

50. This change was made following criticism of the Charging Standard by HMCPSI in its report, above n 26, para 5.66.

51. Charging Standard, para 5.7.

52. Ibid, para 7.7.

53. The 2004 version of the Charging Standard has omitted all reference to inattention in its guidance on careless and dangerous driving.

54. See Road Traffic Regulations Act 1984, ss 81, 86, 88 and 89. Goods vehicles exceeding 7.5 tonnes maximum laden weight are limited to 40 mph on single carriageways, 50 mph on dual carriageways and 60 ph on motorways.

55. The prosecution for CDDD was stayed for abuse of process on the basis that the Chief Crown Prosecutor had altered the charge after being prompted to do so by V’s relatives. For further discussion see Cunningham ‘The Unique Nature of Prosecutions in Cases of Fatal Road Traffic Collisions’, above n 27. The case reverted to the magistrates’ court and D was convicted of careless driving.

56. The former case was decided before it became local policy for the Chief Crown Prosecutor to review all RDI cases. Although the latter case resulted in a unanimous verdict of CDDD, this conviction was quashed on appeal on the basis that the judge had failed to give the jury a good character direction.

57. In other cases where it was concluded that the deceased was at fault, there was a suspicion that the deceased had fallen asleep at the wheel. Where a car driver causes a collision due to his fatigue, he is less likely to survive than an HGV driver who does the same, which perhaps explains why there were fewer cases in which a car driver was prosecuted because of such driving.

58. (1984) 79 Cr App R 277.

59. [2000] 1 Cr App R (S) 394.

60. See, eg, ‘Dozing Driver who caused 10 Deaths gets Five Years: “Arrogant” Gary Hart Jailed for Selby Rail Disaster’ The Guardian 12 January 2002; ‘Car Driver Guilty of Killing 10 in Selby Rail Disaster’ The Independent 14 December 2001. Hart’s application to appeal against his conviction was refused: [2003] EWCA Crim 1268.

61. [2003] EWCA Crim 996, [2003] 2 Cr App R 18.

62. Lord Hailsham Hansard HL Deb, vol 191, col 183, 15 February 1955.

63. MacKenna, B Causing Death by Reckless or Dangerous Driving: a Suggestion 1970 CrimLR 67.Google Scholar

64. TC Willett Drivers After Sentence (Heinemann, 1973) p 71.

65. For a discussion of factors influencing fatality rates, see RB Noland and MA Quddus ‘Improvements in Medical Care and Technology Reductions in Traffic-Related Fatalities in Great Britain’ (2004) 36(1) Accident Analysis and Prevention 103.

66. Ashworth, A Taking the Consequences’ in Shute, S, Gardner, J and Horder, J (eds) Action and Value in the Criminal Law (Clarendon Press, 1993) pp 123 Google Scholar

67. Sculhofer, SJ Harm and Punishment: a Critique of Emphasis on the Results of Conduct in the Criminal Law’ (1974) 122 Univ of Penn Law Rev 1497,CrossRefGoogle Scholar at 1516–1517.

68. Horder, J A Critique of the Correspondence Principle 1995 CrimLR 759.Google Scholar

69. Ibid, at 764.

70. That the risk is one of death, not just injury, was confirmed by the Court of Appeal in Misra and Srivastava [2005] 1 Cr App R 21.

71. Road Traffic Act 1988, s 2A(3).

72. Honoré, T Responsibility and Luck’ (1988) 104 LQR 530 Google Scholar at 539.

73. A Ashworth, above n 66, p 120.

74. The one exception to this may be the new offence of causing the death of a child under the Domestic Violence, Crime and Victims Act 2004, s 5.

75. Home Office, above n 7.

76. Lord Lyell of Markyate Hansard HL Deb, vol 675, col 1554, 22 November 2005.

77. Lord Monson Hansard HL Deb, vol 675, col 1550 22 November 2005.

78. Home Office Justice for All Cm 5563, 2003, p 14.

79. See, eg, Ryan, M Penal Policy towards the Millennium: Elites and Populists; New Labour and the New Criminology’ (1999) 27 International Journal of the Sociology of Law 1.CrossRefGoogle Scholar

80. See ibid and D Garland The Culture of Control (Oxford University Press, 2001).

81. Johnstone, G Penal Policy Making: Elitist, Populist or Participatory’ (2000) 2 Punishment and Society 161 CrossRefGoogle Scholar at 172 (emphasis in original).

82. Which Johnstone identifies as being an important cause of punitive attitudes amongst the public: ibid, at 168.

83. Ashworth, A Criminal Justice Reform: Principles, Human Rights and Public Protection 2004 Crim LR 516 Google Scholar at 517.

84. It should also be noted that the offence is triable either way, meaning that, in many cases, this maximum penalty of 5 years’ imprisonment will not be available as they will be heard at the magistrates’ court.

85. The government estimates that an additional 150 prison places a year would be needed to accommodate the numbers who might be caught by the new offences of CDCD and causing death by uninsured, unlicensed or disqualified driving: Lord Davies of Oldham Hansard HL Deb, vol 675, col 1562, 22 November 2005.

86. Paragraphs 2.17–2.18.

87. G Williams Textbook of Criminal Law (Stevens, 2nd edn, 1983) p 91.

88. Quoted in R Hood Sentencing the Motoring Offender (Heinemann, 1972), p 97, fn 2.

89. See, eg. Sculhofer, above n 67, at 1521.

90. Williams, above n 87, p 93.

91. This was a point made in the TRL report, above n 25, at p 96. Research into the deterrence of joyriding in Australia indicates that young people see the possible death of either an innocent bystander or a friend as being a more important deterrent to joyriding than the possibility of being sent to a detention centre; see McDonagh, E, Wortley, R and Homel, R Perceptions of Physical, Psychological, Social and Legal Deterrents to Joyriding’ (2002) 4 Crime Prevention and Community Safety: An International Journal 11.CrossRefGoogle Scholar

92. A von Hirsch et al Criminal Deterrence and Sentence Severity: An Analysis of Recent Research (Hart, 1999), p 7.

93. Ibid.

94. Paragraph 2.19.

95. C Corbett and F Simon Unlawful Driving Behaviour: A Criminological Perspective TRL Contractor Report 301 (1992), p 75.

96. Ibid.

97. C Corbett, F Simon and M O’Connell The Deterrence of High Speed Driving: A Criminological Perspective TRL Report 296 (1998).

98. Ibid, p 48.

99. This finding was not in fact new. Dix and Layzell found a similar explanation for offending behaviour: MC Dix and AD Layzell Road Users and the Police (Croom Helm, 1983).

100. See above n 25.

101. Manstead, A et al Perceived Consensus in Estimates of the Prevalence of Driving Errors and Violations’ (1992) 22 Journal of Applied Social Psychology 509.CrossRefGoogle Scholar

102. Svenson, O Are We All Less Risky and More Skilful than Our Fellow Drivers?’ (1981) 47 Acta Psychologica 143.CrossRefGoogle Scholar

103. Reason, J et al Errors and Violations on the Roads: a Real Distinction?’ (1990) 33 Ergonomics 1315 CrossRefGoogle Scholar at 1325.

104. Ibid, at 1330.

105. Corbett et al’s study found that high-speed offenders who had in the past been involved in collisions blamed the other party involved. Their responses were often contradictory and they failed to recognise that stopping times are reduced at higher speeds, no matter how much attention drivers pay to their driving in compensation for driving at higher speeds. Corbett, Simon and O’Connell, above n 97.

106. Riley, D Drinking Drivers: the Limits to Deterrence’ (1985) 24 (4) The Howard Journal 241.CrossRefGoogle Scholar

107. Although recent research shows that young drivers are increasingly engaging in drink-driving: Home Office Drink-Driving: Prevalence and Attitudes in England and Wales 2002 Home Office Research Finding 258 (2004).

108. Bottoms, A Morality, Crime, Compliance and Public Policy’ in Bottoms, A and Tonry, M (eds) Ideology, Crime and Criminal Justice (Willan Publishing, 2002).Google Scholar

109. Ibid, p 25.

110. Ibid.

111. The second is ‘attachment leading to compliance’. This involves the offender forming a relationship to a particular person, group or institution which holds non-criminal values. This is perhaps something over which the authorities have no control, the difficulty being that young drivers perceive less pressure from their peers to avoid committing driving violations than do older drivers: Parker, D et al Determinants of Intention to Commit Driving Violations’ (1992) 24 (2) Accident Analysis and Prevention 117.CrossRefGoogle Scholar The third is ‘legitimacy’. This relies on the potential offender recognising the power of the authority imposing the prohibition. This might be one of the indicators of the reason behind non-compliance with traffic offences. Although the offences are created through statute, as for other criminal offences, the way they are enforced may differ throughout the country: Dix and Layzell, above n 99. In particular, in relation to speed limits, it is the local authority that determines what the speed limit on a particular stretch of road should be.

112. It is important that others’ lives are endangered. Drivers may feel entitled as a question of autonomy to take risks if it is only their own life they see as being endangered.

113. Above n 106.

114. See above n 25.

115. Whilst this is acknowledged by the CPS in its recent Consultation Paper on charging policy, it identifies the question of whether it is appropriate to consider the driver’s intentions in deciding whether or not a manoeuvre was dangerous as one that could be an appropriate one to ask: CPS, above n 48, paras142–146.

116. Hawkins found that deliberation was a factor in favour of prosecuting in cases of breaches of health and safety legislation, and that even though such offences are usually of strict liability, evidence of deliberate breaches are taken more seriously: K Hawkins Law as Last Resort (Oxford University Press, 2002) p 344.

117. Parker, D et al Driving Errors, Driving Violations and Accident Involvement’ (1995) 38 Ergonomics 1036.CrossRefGoogle Scholar See also Reason et al, above n 103; D Parker et al The Development of Remedial Strategies for Driving Violations TRL Report 300 (1998).

118. Parker et al ‘Driving Errors, Driving Violations and Accident Involvement’, above n 117, at 1036.

119. Ibid, at 1037.

120. The NDIS has been used as an alternative to prosecution in cases of careless driving not involving serious injury where the offender accepts the offer. This involves both classroom discussions on the causes of collisions and practical driving exercises, the aim of which is to highlight and eliminate any dangerous or inappropriate elements of driving style: C Burgess and P Webley ‘Evaluating the Effectiveness of the United Kingdom’s National Driver Improvement Scheme’, unpublished article available at http://www.ex.ac.uk/~cnwburge/pages/ndis03.html. ACPO has produced guidance notes on the use of NDIS, available at http://www.acpo.police.uk/asp/policies/Data/nat_driver_improve_scheme_v4_april05_09x05x05.doc. Sections 34 and 35 of the RSA 2006 now allow for a reduction in punishment in the form of penalty points and periods of disqualification following an attendance on an approved course.

121. Pearce et al, above n 25, p 22.

122. Ibid.

123. Ibid, p 47.

124. Ibid, p 46.

125. The Road Traffic Act 1988 was amended by the Road Traffic Act 1991, which implemented proposals made by the North Report: Department for Transport and Home Office Road Traffic Law Review (HMSO, 1988).

126. The test for recklessness which applied was that from the case of Lawrence [1982] AC 150. This test requires that (1) the defendant does an act which creates an obvious risk of causing physical injury to some other person or of doing substantial damage to property and (2) when he does the act he either has not given any thought to the possibility of there being any such risk or has recognised that there is some risk involved and has nonetheless gone on to do it.

127. [2003] UKHL 50, [2004] 1 AC 1034 at [39].

128. Cunningham Criminal Charges Brought in Cases of Road Death Incidents in the East Midlands: Implications for Law Reform, above n 27.

129. It is of course also possible for a jury to draw adverse inferences from such silence under the Criminal Justice and Public Order Act 1994.

130. Legislating the Criminal Code: Involuntary Manslaughter Law Commission No 237 (HMSO, 1996) para 5.33.

131. Spencer, JR Road Traffic Law: a Review of the North Report 1988 CrimLR 707 Google Scholar at 713.

132. Ibid.

133. Ibid.

134. Spencer’s suggestion was that an offence be ‘drafted in general terms, but incorporating a partial definition expressly putting a number of recurrent cases within the general clause for the avoidance of future doubt: racing another vehicle, overtaking on a blind corner, driving when seriously under the influence of drink or drugs, driving a vehicle with seriously defective steering or brakes, etc’: ibid. The suggestion here is that in order to avoid a statutory provision for an exhaustive list of rules which could form the basis of the new offence, it would be simpler for it to refer separately to the rules in the Highway Code, which could be updated.

135. This is a point made by Merry and McCall Smith, who use the work of the psychologist Reason to suggest that medical practitioners will unavoidably commit errors during their career and that the law should focus on preventing violations instead: A Merry and A McCall Smith Errors, Medicine and the Law (Cambridge University Press, 2001).

136. Viscount Tenby Hansard HL Deb, vol 675, col 1556, 22 November 2005.

137. The Sentencing Advisory Panel published a Consultation Paper on the new offences in January 2007. This suggested that there should be four starting points for sentencing in cases of CDCD. The highest starting point of 3 years’ imprisonment would overlap with CDDD. Such cases would be relatively infrequent. The second starting point would be 18 months’ imprisonment. Cases of medium seriousness would have a starting point of 36 weeks’ imprisonment. The least serious group of cases would lead to a starting point of a community order, with the Sentencing Advisory Panel of the opinion that ‘even the fact that death was caused is not sufficient to justify a prison sentence’: Sentence Advisory Panel Driving Offences Causing Death (2007), available at http://www.sentencing-guidelines.gov.uk/docs/Cons-2007-01-09.pdf.