TARIFA PARA SOCIEDAD NACIONALES Y EXTRANJERAS Y PARA PERSONAS EXTRANJERAS SIN RESIDENCIA. A partir del año gravable de 1996 la

This appeal case (described in Appendix E) held that the fact that a death has occurred can and should be taken into account in

sentencing for Careless Driving, and that the fact that a death has occurred ought to be mentioned in court.

There is local variation in the interpretation of the ruling that came from the Simmonds Appeal. Whilst many courts now ensure that the fact that a death has occurred is mentioned in court, and that the death is taken into account in sentencing, there are some courts where this ruling has not been adopted. It is difficult to quantify the extent of

this. Some dissatisfaction was expressed by pressure groups and by some police respondents to the survey that such decisions have been left to evolve in case law, and have not been incorporated into statutes.

4.6.2.9 Alternative verdicts

In several of the trials attended there was some discussion in court, in the absence of the jury, on the issue of alternative offences. These discussions, between the prosecution and the judge, were usually clarification as to whether the prosecution wished an explanation of an alternative offence to be given to the jury before they retired to consider their verdicts. Section 24 of the Road Traffic Offenders Act allows for the return of accepted alternatives to the offence charged.

The accepted alternatives to the offences being considered here are:

Table 19: Alternative verdicts

Offence charged Alternative verdicts

Section 1: Causing Death by Dangerous Driving

Section 2: Dangerous Driving Section 3: Careless and Inconsiderate Driving

Section 2: Dangerous Driving Section 3: Careless and Inconsiderate Driving

It is not necessary for the prosecution specifically to bring the alternative charge for a jury to return a verdict of guilty to that alternative. The prosecution may feel that to do so invites a lesser charge to that being prosecuted. It may be that they wish to focus the jury on the more serious charge. The alternative is still there,

however, should the main charge fail.

In some cases, however, a judge can cause difficulties for the prosecution. In Case P17 the judge refused to allow the jury to consider the alternative charge of Careless Driving, on the grounds that the prosecution had not specifically included the charge. In that case, the jury ultimately returned a guilty verdict to the more serious charge. The defence would, if they wish, be able to appeal against the verdict. If, however, the jury had acquitted the defendant, the

prosecution would not be able to appeal. At present, in England and Wales, there is nothing that the CPS can do where a judge is unaware of or misinterprets the legislation on a particular issue, as they do not have the right of appeal in such cases. It is possible that the

implementation of the Human Rights Act (1998) will give victims more rights of appeal in cases where they are unhappy with the outcome.

In Scotland, where a person is acquitted or convicted of a charge in solemn proceedings, the Lord Advocate may refer a point of law, which has arisen in relation to that charge, to the High Court for their opinion. Accordingly, while there is no appeal against acquittal, the prosecutor in Scotland may invoke the reference procedure should there be any doubt about the law to be applied. The opinion of the High Court would provide authority should the point of law arise in future proceedings.

4.6.2.10 Magistrates (England and Wales only)

'The law at present is defective in that the penalties are not sufficiently severe; its administration has also been exceedingly defective in some places owing to the disinclination of Benches of Magistrates to inflict anything beyond small fines, which, as already remarked, are useless in many cases. In this connection we would call attention to the Memorandum put in by the County Chief Constables:

'A very strong point advanced by members was of the insufficient penalties imposed by magistrates as a deterrent in cases of driving to the danger.'. (Royal Commission on Transport, 1929.)

The paragraph above was written in 1929; in 1988 the North Report (Department of Transport, 1988) recommended that 'the courts

should make fuller use of their existing powers to impose higher fines for serious offences'. At the present time there is still disquiet,

expressed both by pressure groups and some police officers, at what are perceived to be very lenient sentences being awarded by

magistrates' courts. Recently revised sentencing guidelines issued by the Magistrates Association have failed to address those concerns, and there is widespread criticism of the sentencing variation between magistrates.

It was reported that, in a recent open day at a magistrates' court where the public were allowed to 'pass sentence' whilst the magistrates retired (on reconstructed cases), in nine out of 10 cases the public gave a more lenient sentence than the magistrates.

In the course of the research it has been said by a number of those interviewed, including one magistrate, that road traffic cases should be tried in specialised traffic courts, or by a specially trained group of magistrates. It is perceived in some quarters that magistrates tend to sympathise with the defendant, particularly if the defendant is

middle-aged and middle-class. There is some disquiet that a group of three individuals, often with no legal background, should have the responsibility for determining the severity of a range of motoring offences. One magistrate reported that training was required by magistrates before they could deal with other matters, such as

licensing, but was not mandatory for dealing with motoring offences.

Although the magistrates have a justices' clerk to advise on legal matters, and guidelines on sentencing, it has been suggested by some of the police interviewed that they do not always sufficiently

appreciate the road safety implications of certain types of driving behaviour. It has also been pointed out that there is no logic in

complaining at the lack of legal training in magistrates when the most serious cases are tried by a jury of 12 people with even less

experience or knowledge of the law.

Perhaps some of the criticism aimed at magistrates is unfair.

However, this perception of the role of the magistrates' court as only concerned with minor matters fuels the anger of bereaved families, who feel that the death of their loved one isn't even considered important enough to go to Crown Court. In some cases, the matter was dealt with so quickly that relatives were left feeling that the memory of their loved one had been insulted.

Most of the magistrates interviewed were happy with the definitions of both Careless Driving and Dangerous Driving and how to apply them. Some reported that 'careful and competent' was not a

sufficiently clear standard. In common with both police and CPS representatives, they saw Careless Driving as 'momentary

inattention', whereas Dangerous Driving tends to be a pattern of bad driving, with mention too of 'deliberate' acts.

The magistrates and justices' clerks interviewed all regarded motoring offences as a very small part of what they do. In particular, they saw very few Careless Driving or Dangerous Driving cases.

Under the Magistrates' Courts Act (1980), a defendant may plead guilty by letter, although, it was said, magistrates would expect defendants in Careless Driving or Dangerous Driving cases to come to court to plead. It is not known how many defendants plead by letter, and whether this number includes any Careless Driving cases where there has been a death.

There are reported instances where local bench policy, set by the justices' clerk, is at odds with sentencing guidelines. Examples are a refusal to allow vehicle forfeiture as a penalty (see Section 4.6.3.4) and an upper limit on fines well below the maximum for the offences.