It was clear from the earliest stages of the research that the unique set of circumstances surrounding each incident can complicate the decision to prosecute. It is only fair to bear in mind that each case involves many factors which require to be taken into account. The decision to prosecute will never be a simple test. In addition, there are cases where there is simply insufficient evidence of what happened or why it happened to determine the level of culpability. Nevertheless, there ought to be some consensus about the nature of the different 'bad driving' offences if there is to be any
consistency in charging and sentencing. The postal survey collected some views to establish whether there was a level of consensus. The questionnaire used is reproduced in Appendix B.
INCORRECT CHARGING (ENGLAND AND WALES)
The respondents were asked how often, in their opinion, drivers were charged with Driving Without Due Care and Attention when they should have been charged with Dangerous Driving.
Table 4 shows their responses.
Table 4: Incorrect charging
Percentage of respondents who felt that drivers were charged with Careless Driving when they should have been charged with Dangerous Driving
Police CPS Magistrates Judges Total
N=79 N=34 N=11 N=10 N=134
Very often 11 0 0 0 7
Often 25 0 30 0 17
Sometimes 52 79 50 80 61
Never 3 18 10 0 7
Don't know 8 0 10 20 7
The police were most likely to perceive that incorrect charging took place, whilst the CPS did not report this as a frequent occurrence.
Whereas the police perceive that some incorrect charging is caused by over-cautious decision-making by the prosecutors, the prosecutors see insufficient evidence as the cause of some cases being charged as Careless Driving rather than Dangerous Driving. Prosecutors also cite the 'unrealistic' expectations of the public, and to some extent the police. A few English and Welsh prosecutors admitted to financial constraints putting some pressure on them to accept pleas to reduced charges, as they simply do not have the resources to take all cases to
trial. It was not possible to obtain the views of Scottish prosecutors on the issue of incorrect charging.
INATTENTION
The respondents were asked whether they thought a number of different behaviours indicated:
A. Not necessarily any lapse of attention B. A momentary lapse of attention
C. More than a momentary lapse of attention D. Significantly more than a momentary lapse of attention
The wording was taken from the charging standards used in England and Wales by the CPS and police (Crown Prosecution Services, 1996). They suggest that A and B would not result in prosecution, C would indicate Careless Driving and D would indicate Dangerous Driving. Clearly, the degree of inattention which occurred in any particular incident is a matter of subjective judgement. However, it was interesting to see whether there would be agreement as to which category certain specific behaviours would fall into. The results of this are given in Table 5 below.
Table 5: The level of inattention indicated by different activities
Percentage of responses in each category A B C D Did not answer Speaking on a mobile phone 12 12 36 39 1
Reading a book 0 1 5 94 0
Selecting and lighting a cigarette 11 43 31 13 1
Nodding off 0 0 6 94 0
Eating a chocolate bar 51 31 15 4 0
Tuning a car radio 24 52 20 3 1
Reading a map 1 9 28 62 0
Eating fish and chips 7 13 36 43 1
Attending to children in the rear seat 1 12 31 56 0
Using a TrafficMaster display 18 34 30 13 5
Note: Percentages may not add up to 100 due to rounding. Number of respondents = 139
There is fairly clear agreement that reading a book or falling asleep is regarded as significantly more than a momentary lapse of attention (and therefore indicates Dangerous Driving). There is less agreement on the other behaviours described.
In some cases this may be due to differing degrees to which the driver is attending to the task. It is less distracting to eat whilst driving, for example, if your front seat passenger is feeding you. Car radios differ in what is required to tune them. Mobile phones can be hand-held or hands-free. What these figures do indicate, however, is that deciding what constitutes a distracting activity for a driver involves a subjective judgement. Some activities, such as selecting and lighting a cigarette or using a TrafficMaster display produced little consensus on how distracting the activity was.
There was some variation in responses between the different agencies.
The police and magistrates were more likely to regard using a mobile phone as D, whereas the prosecutors and judges were more likely to regard it as C.
Magistrates appeared to be more severe in their judgement on lighting cigarettes, attending to children and on eating fish and chips than the other agencies.
The police and magistrates were more likely to classify tuning a car radio as at least C than the other agencies.
Although it would be inappropriate to remove the discretion to make decisions according to the merits of the case, the answers given here suggest that greater clarity is required in describing the level of inattention which would amount to Dangerous Driving.
DELIBERATE ACTION
Section 2.2 looked at the legal principles relating to whether an act was deliberate or not. In our interviews with police, magistrates, justices' clerks and prosecutors it was frequently implied that a major difference between Dangerous Driving and Careless Driving rested on whether the behaviour had been deliberate, not in the sense that the driver set out to deliberately cause harm, but that the manoeuvre was carried out with the intention of driving in that particular way.
One justices' clerk noted that 'Dangerous Driving involves a
deliberate intent - like recklessness.'. To investigate this further the postal survey asked respondents whether they felt it was currently necessary to prove that certain specific actions had been done
deliberately in order to prove a charge of Dangerous Driving. Table 6 shows their responses.
Table 6: Whether actions require to be deliberate in order to prove Dangerous Driving
Percentage of respondents
Yes No Sometimes Driving the wrong way on a one-way road 16 58 22
Running a red light 23 57 15
Failing to observe a stop sign 23 55 18
They were then asked whether it should be necessary to prove that an action was deliberate in order to prove a charge of Dangerous
Driving.
A clear majority, 74%, felt that it should not be necessary to prove that an action was deliberate in order to prove a charge of Dangerous Driving.
This seems to indicate a difference between the way it is felt the law currently operates and the way it should operate. There were
variations in the responses by different agencies, in particular to the first example, driving the wrong way on a one-way road, as shown in Table 7 below.
Table 7: Respondents who felt it was currently necessary to prove that driving the wrong way was a deliberate act in order to bring a charge of Dangerous Driving
Percentage of respondents
Yes No Sometimes
Police N=79 22 49 23
CPS N=34 6 65 26
Judge N=10 22 78 0
Magistrate N=11 10 80 10
Total N=134 17 58 21
The numbers of respondents from some agencies (given in Section 3.2.3) were too small to make confident assertions about their overall view. The responses do indicate, however, some inconsistency in whether the deliberate nature of a piece of driving is critical.