Causing death by dangerous driving

Road Traffic Act 1988, s.1
Effective from: 4 August 2008

Triable on indictment
Maximum: 14 years’ custody, minimum disqualification of 2 years with compulsory extended re-test

This is a serious offence for the purposes of s.224 Criminal Justice Act 2003

User guide for this offence


Guideline users should be aware that the Equal Treatment Bench Book covers important aspects of fair treatment and disparity of outcomes for different groups in the criminal justice system. It provides guidance which sentencers are encouraged to take into account wherever applicable, to ensure that there is fairness for all involved in court proceedings.

Key factors

The following guideline applies to a “first-time offender” aged 18 or over convicted after trial, who has not been assessed as a dangerous offender requiring a sentence under ss. 224-228 Criminal Justice Act 2003 (as amended).

When assessing the seriousness of any offence, the court must always refer to the full list of aggravating and mitigating factors in the Council guideline on Seriousness [now replaced by the General guideline] as well as those set out in the guideline table as being particularly relevant to this type of offending behaviour.

Levels of seriousness

The 3 levels are distinguished by factors related predominantly to the standard of driving; the general description of the degree of risk is complemented by examples of the type of bad driving arising. The presence of aggravating factors or combinations of a small number of determinants of seriousness will increase the starting point within the range. Where there is a larger group of determinants of seriousness and/or aggravating factors, this may justify moving the starting point to the next level.

Level 1 – The most serious offences encompassing driving that involved a deliberate decision to ignore (or a flagrant disregard for) the rules of the road and an apparent disregard for the great danger being caused to others. Such offences are likely to be characterised by:

  • A prolonged, persistent and deliberate course of very bad driving AND/OR
  • Consumption of substantial amounts of alcohol or drugs leading to gross impairment
    AND/OR
  • A group of determinants of seriousness which in isolation or smaller number would place the offence in level 2

Level 1 is that for which the increase in maximum penalty was aimed primarily. Where an offence involves both of the determinants of seriousness identified, particularly if accompanied by aggravating factors such as multiple deaths or injuries, or a very bad driving record, this may move an offence towards the top of the sentencing range.

Level 2 – This is driving that created a substantial risk of danger and is likely to be characterised by:

  • Greatly excessive speed, racing or competitive driving against another driver OR
  • Gross avoidable distraction such as reading or composing text messages over a period of time OR
  • Driving whilst ability to drive is impaired as a result of consumption of alcohol or drugs, failing to take prescribed medication or as a result of a known medical condition OR
  • A group of determinants of seriousness which in isolation or smaller number would place the offence in level 3

 Level 3 – This is driving that created a significant risk of danger and is likely to be characterised by:

  • Driving above the speed limit/at a speed that is inappropriate for the prevailing conditions
    OR
  • Driving when knowingly deprived of adequate sleep or rest or knowing that the vehicle has a dangerous defect or is poorly maintained or is dangerously loaded OR
  • A brief but obvious danger arising from a seriously dangerous manoeuvre OR
  • Driving whilst avoidably distracted OR
  • Failing to have proper regard to vulnerable road users

The starting point and range overlap with Level 2 is to allow the breadth of discretion necessary to accommodate circumstances where there are significant aggravating factors.

Personal mitigation

Sentencers should take into account relevant matters of personal mitigation; in particular:

Good driving record

This is not a factor that automatically should be treated as a mitigating factor, especially now that the presence of previous convictions is a statutory aggravating factor. However, any evidence to show that an offender has previously been an exemplary driver, for example having driven an ambulance, police vehicle, bus, taxi or similar vehicle conscientiously and without incident for many years, is a fact that the courts may well wish to take into account by way of personal mitigation. This is likely to have even greater effect where the driver is driving on public duty (for example, on ambulance, fire services or police duties) and was responding to an emergency.

Giving assistance at the scene

There may be many reasons why an offender does not offer help to the victims at the scene – the offender may be injured, traumatised by shock, afraid of causing further injury or simply have no idea what action to take – and it would be inappropriate to assess the offence as more serious on this ground (and so increase the level of sentence). However, where an offender gave direct, positive, assistance to victim(s) at the scene of a collision, this should be regarded as personal mitigation.

Remorse

Whilst it can be expected that anyone who has caused death by driving would be expected to feel remorseful, this cannot undermine its importance for sentencing purposes. Remorse is identified as personal mitigation in the Council guideline and the Council can see no reason for it to be treated differently for this group of offences. It is for the court to determine whether an expression of remorse is genuine; where it is, this should be taken into account as personal mitigation.

Assessing seriousness

Assessing seriousness

This information applies to the four guidelines for causing death by dangerous driving, causing death by driving under the influence of alcohol or drugs, causing death by careless driving and causing death by driving:unlicensed, disqualified or uninsured drivers.

Determinants of seriousness

There are five factors that may be regarded as determinants of offence seriousness, each of which can be demonstrated in a number of ways. Common examples of each of the determinants are set out below and key issues are discussed below: see, Alcohol/drugs, Avoidable distractions, Vulnerable road users.

Examples of the determinants

Awareness of risk

  • a prolonged, persistent and deliberate course of very bad driving

Effect of alcohol or drugs

  • consumption of alcohol above the legal limit
  • consumption of alcohol at or below the legal limit where this impaired the offender’s ability to drive
  • failure to supply a specimen for analysis
  • consumption of illegal drugs, where this impaired the offender’s ability to drive
  • consumption of legal drugs or medication where this impaired the offender’s ability to drive (including legal medication known to cause drowsiness) where the driver knew, or should have known, about the likelihood of impairment

Inappropriate speed of vehicle

  • greatly excessive speed; racing; competitive driving against another vehicle
  • driving above the speed limit
  • driving at a speed that is inappropriate for the prevailing road or weather conditions
  • driving a PSV, HGV or other goods vehicle at a speed that is inappropriate either because of the nature of the vehicle or its load, especially when carrying passengers

Seriously culpable behaviour of offender

  • aggressive driving (such as driving much too close to the vehicle in front, persistent inappropriate attempts to overtake, or cutting in after overtaking)
  • driving while using a hand-held mobile phone
  • driving whilst the driver’s attention is avoidably distracted, for example by reading or adjusting the controls of electronic equipment such as a radio, hands-free mobile phone or satellite navigation equipment
  • driving when knowingly suffering from a medical or physical condition that significantly impairs the offender’s driving skills, including failure to take prescribed medication
  • driving when knowingly deprived of adequate sleep or rest, especially where commercial concerns had a bearing on the commission of the offence
  • driving a poorly maintained or dangerously loaded vehicle, especially where commercial concerns had a bearing on the commission of the offence

Victim

  • failing to have proper regard to vulnerable road users

Issues relating to the determinants of seriousness

Alcohol/drugs

For those offences where the presence of alcohol or drugs is not an element of the offence, where there is sufficient evidence of driving impairment attributable to alcohol or drugs, the consumption of alcohol or drugs prior to driving will make an offence more serious. Where the drugs were legally purchased or prescribed, the offence will only be regarded as more serious if the offender knew or should have known that the drugs were likely to impair driving ability.

Unless inherent in the offence or charged separately, failure to provide a specimen for analysis (or to allow a blood specimen taken without consent to be analysed) should be regarded as a determinant of offence seriousness.

Where it is established to the satisfaction of the court that an offender had consumed alcohol or drugs unwittingly before driving, that may be regarded as a mitigating factor. However, consideration should be given to the circumstances in which the offender decided to drive or continue to drive when driving ability was impaired.

Avoidable distractions

A distinction has been drawn between ordinary avoidable distractions and those that are more significant because they divert the attention of the driver for longer periods or to a greater extent; in this guideline these are referred to as a gross avoidable distraction. The guideline for causing death by dangerous driving provides for a gross avoidable distraction to place the offence in a higher level of seriousness.

Any avoidable distraction will make an offence more serious but the degree to which an offender’s driving will be impaired will vary. Where the reaction to the distraction is significant, it may be the factor that determines whether the offence is based on dangerous driving or on careless driving; in those circumstances, care must be taken to avoid “double counting”.

Using a hand-held mobile phone when driving is, in itself, an unlawful act; the fact that an offender was avoidably distracted by using a hand-held mobile phone when a causing death by driving offence was committed will always make an offence more serious. Reading or composing text messages over a period of time will be a gross avoidable distraction and is likely to result in an offence of causing death by dangerous driving being in a higher level of seriousness.

Where it is proved that an offender was briefly distracted by reading a text message or adjusting a hands-free set or its controls at the time of the collision, this would be on a par with consulting a map or adjusting a radio or satellite navigation equipment, activities that would be considered an avoidable distraction.

Vulnerable road users

Cyclists, motorbike riders, horse riders, pedestrians and those working in the road are vulnerable road users and a driver is expected to take extra care when driving near them. Driving too close to a bike or horse; allowing a vehicle to mount the pavement; driving into a cycle lane; and driving without the care needed in the vicinity of a pedestrian crossing, hospital, school or residential home, are all examples of factors that should be taken into account when determining the seriousness of an offence. See "Actions of others" below for the approach where the actions of another person contributed to the collision.

The fact that the victim of a causing death by driving offence was a particularly vulnerable road user is a factor that should be taken into account when determining the seriousness of an offence.

Aggravating and mitigating factors

More than one person killed

The seriousness of any offence included in these guidelines will generally be greater where more than one person is killed since it is inevitable that the degree of harm will be greater. In relation to the assessment of culpability, whilst there will be circumstances in which a driver could reasonably anticipate the possible death of more than one person (for example, the driver of a vehicle with passengers (whether that is a bus, taxi or private car) or a person driving badly in an area where there are many people), there will be many circumstances where the driver could not anticipate the number of people who would be killed.

The greater obligation on those responsible for driving other people is not an element essential to the quality of the driving and so has not been included amongst the determinants of seriousness that affect the choice of sentencing range. In practical terms, separate charges are likely to be brought in relation to each death caused. Although concurrent sentences are likely to be imposed (in recognition of the fact that the charges relate to one episode of offending behaviour), each individual sentence is likely to be higher because the offence is aggravated by the fact that more than one death has been caused.

Where more than one person is killed, that will aggravate the seriousness of the offence because of the increase in harm. Where the number of people killed is high and that was reasonably foreseeable, the number of deaths is likely to provide sufficient justification for moving an offence into the next highest sentencing band.

Effect on offender

Injury to the offender may be a mitigating factor when the offender has suffered very serious injuries. In most circumstances, the weighting it is given will be dictated by the circumstances of the offence and the effect should bear a direct relationship to the extent to which the offender’s driving was at fault – the greater the fault, the less the effect on mitigation; this distinction will be of particular relevance where an offence did not involve any fault in the offender’s standard of driving.

Where one or more of the victims was in a close personal or family relationship with the offender, this may be a mitigating factor. In line with the approach where the offender is very seriously injured, the degree to which the relationship influences the sentence should be linked to offender culpability in relation to the commission of the offence; mitigation for this reason is likely to have less effect where the culpability of the driver is particularly high.

Actions of others

Where the actions of the victim or a third party contributed to the commission of an offence, this should be acknowledged and taken into account as a mitigating factor.

Offender’s age/lack of driving experience

The Council guideline Overarching Principles: Seriousness [now replaced by the General guideline] includes a generic mitigating factor “youth or age, where it affects the responsibility of the individual defendant”[now: "Age and/or lack of maturity]. There is a great deal of difference between recklessness or irresponsibility – which may be due to youth – and inexperience in dealing with prevailing conditions or an unexpected or unusual situation that presents itself – which may be present regardless of the age of the offender. The fact that an offender’s lack of driving experience contributed to the commission of an offence should be treated as a mitigating factor; in this regard, the age of the offender is not relevant.

Personal mitigation

Good driving record

This is not a factor that automatically should be treated as a mitigating factor, especially now that the presence of previous convictions is a statutory aggravating factor. However, any evidence to show that an offender has previously been an exemplary driver, for example having driven an ambulance, police vehicle, bus, taxi or similar vehicle conscientiously and without incident for many years, is a fact that the courts may well wish to take into account by way of personal mitigation. This is likely to have even greater effect where the driver is driving on public duty (for example, on ambulance, fire services or police duties) and was responding to an emergency.

Conduct after the offence

Giving assistance at the scene

There may be many reasons why an offender does not offer help to the victims at the scene – the offender may be injured, traumatised by shock, afraid of causing further injury or simply have no idea what action to take – and it would be inappropriate to assess the offence as more serious on this ground (and so increase the level of sentence). However, where an offender gave direct, positive, assistance to victim(s) at the scene of a collision, this should be regarded as personal mitigation.

Remorse

Whilst it can be expected that anyone who has caused death by driving would be expected to feel remorseful, this cannot undermine its importance for sentencing purposes. Remorse is identified as personal mitigation in Overarching Principles - Seriousness [now replaced by the General guideline] and the Council can see no reason for it to be treated differently for this group of offences. It is for the court to determine whether an expression of remorse is genuine; where it is, this should be taken into account as personal mitigation.

Summary

Evidence that an offender is normally a careful and conscientious driver, giving direct, positive assistance to a victim and genuine remorse may be taken into account as personal mitigation and may justify a reduction in sentence.

1.  Identify dangerous offenders

Offences under s.1 and s.3A of the Road Traffic Act 1988 are specified offences for the purposes of the public protection provisions in the 2003 Act (as amended). The court must determine whether there is a significant risk of serious harm by the commission of a further specified offence. The starting points in the guidelines are a) for offenders for whom a sentence under the public protection provisions is not appropriate and b) as the basis for the setting of a minimum term within an indeterminate sentence under those provisions.

2.  Identify the appropriate starting point

Identify the level or description that most nearly matches the particular facts of the offence for which sentence is being imposed.

Starting points based on first time offender pleading not guilty

Nature of offence Starting point Range
Level 1
The most serious offences encompassing driving that involved a deliberate decision to ignore (or a flagrant disregard for) the rules of the road and an apparent disregard for the great danger being caused to others
8 years’ custody 7 – 14 years’ custody
Level 2
Driving that created a substantial risk of danger
5 years’ custody 4 – 7 years’ custody
Level 3
Driving that created a significant risk of danger

(Where the driving is markedly less culpable than for this level, reference should be made to the starting point and range for the most serious level of causing death by careless driving)

3 years’ custody 2 – 5 years’ custody
Custodial sentences

Sentencing flowcharts are available at Imposition of Community and Custodial Sentences definitive guideline.


The approach to the imposition of a custodial sentence should be as follows:

1) Has the custody threshold been passed?

  • A custodial sentence must not be imposed unless the offence or the combination of the offence and one or more offences associated with it was so serious that neither a fine alone nor a community sentence can be justified for the offence.
  • There is no general definition of where the custody threshold lies. The circumstances of the individual offence and the factors assessed by offence-specific guidelines will determine whether an offence is so serious that neither a fine alone nor a community sentence can be justified. Where no offence specific guideline is available to determine seriousness, the harm caused by the offence, the culpability of the offender and any previous convictions will be relevant to the assessment.
  • The clear intention of the threshold test is to reserve prison as a punishment for the most serious offences.

2) Is it unavoidable that a sentence of imprisonment be imposed?

  • Passing the custody threshold does not mean that a custodial sentence should be deemed inevitable. Custody should not be imposed where a community order could provide sufficient restriction on an offender’s liberty (by way of punishment) while addressing the rehabilitation of the offender to prevent future crime.
  • For offenders on the cusp of custody, imprisonment should not be imposed where there would be an impact on dependants which would make a custodial sentence disproportionate to achieving the aims of sentencing.

3) What is the shortest term commensurate with the seriousness of the offence?

  • In considering this the court must NOT consider any licence or post sentence supervision requirements which may subsequently be imposed upon the offender’s release.

4) Can the sentence be suspended?

  • A suspended sentence MUST NOT be imposed as a more severe form of community order. A suspended sentence is a custodial sentence. Sentencers should be clear that they would impose an immediate custodial sentence if the power to suspend were not available. If not, a non-custodial sentence should be imposed.

The following factors should be weighed in considering whether it is possible to suspend the sentence:

Factors indicating that it would not be appropriate to suspend a custodial sentence

Factors indicating that it may be appropriate to suspend a custodial sentence

Offender presents a risk/danger to the public

Realistic prospect of rehabilitation

Appropriate punishment can only be achieved by immediate custody

Strong personal mitigation

History of poor compliance with court orders

Immediate custody will result in significant harmful impact upon others

The imposition of a custodial sentence is both punishment and a deterrent. To ensure that the overall terms of the suspended sentence are commensurate with offence seriousness, care must be taken to ensure requirements imposed are not excessive. A court wishing to impose onerous or intensive requirements should reconsider whether a community sentence might be more appropriate.

Pre-sentence report

Whenever the court reaches the provisional view that:

  • the custody threshold has been passed; and, if so
  • the length of imprisonment which represents the shortest term commensurate with the seriousness of the offence;

the court should obtain a pre-sentence report, whether verbal or written, unless the court considers a report to be unnecessary. Ideally a pre-sentence report should be completed on the same day to avoid adjourning the case.

Magistrates: Consult your legal adviser before deciding to sentence to custody without a pre-sentence report.

Suspended Sentences: General Guidance

i) The guidance regarding pre-sentence reports applies if suspending custody.

ii) If the court imposes a term of imprisonment of between 14 days and 2 years (subject to magistrates’ courts sentencing powers), it may suspend the sentence for between 6 months and 2 years (the ‘operational period’). The time for which a sentence is suspended should reflect the length of the sentence; up to 12 months might normally be appropriate for a suspended sentence of up to 6 months.

iii) Where the court imposes two or more sentences to be served consecutively, the court may suspend the sentence where the aggregate of the terms is between 14 days and 2 years (subject to magistrates’ courts sentencing powers).

iv) When the court suspends a sentence, it may impose one or more requirements for the offender to undertake in the community. The requirements are identical to those available for community orders, see the guideline on Imposition of Community and Custodial Sentences.

v) A custodial sentence that is suspended should be for the same term that would have applied if the sentence was to be served immediately.

3.  Consider relevant aggravating factors, both general and those specific to the type of the offence

This may result in a sentence level being identified that is higher than the suggested starting point, sometimes substantially so.

Additional aggravating factors

  • Previous convictions for motoring offences, particularly offences that involve bad driving or the consumption of excessive alcohol or drugs before driving
  • More than one person killed as a result of the offence
  • Serious injury to one or more victims, in addition to the death(s)
  • Disregard of warnings
  • Other offences committed at the same time, such as driving other than in accordance with the terms of a valid licence; driving while disqualified; driving without insurance; taking a vehicle without consent; driving a stolen vehicle
  • The offender’s irresponsible behaviour such as failing to stop, falsely claiming that one of the victims was responsible for the collision, or trying to throw the victim off the car by swerving in order to escape
  • Driving off in an attempt to avoid detection or apprehension

4.  Consider mitigating factors and person mitigation

There may be general or offence specific mitigating factors and matters of personal mitigation which could result in a sentence that is lower than the suggested starting point (possibly substantially so), or a sentence of a different type.

Additional mitigating factors

  • Alcohol or drugs consumed unwittingly
  • Offender was seriously injured in the collision
  • The victim was a close friend or relative
  • Actions of the victim or a third party contributed significantly to the likelihood of a collision occurring and/or death resulting
  • The offender’s lack of driving experience contributed to the commission of the offence
  • The driving was in response to a proven and genuine emergency falling short of a defence
Common aggravating and mitigating factors
 Taken from Sentencing Guidelines Council Guideline Overarching Principles: Seriousness

Aggravating factors

Factors indicating higher culpability:

  • Offence committed whilst on bail for other offences
  • Failure to respond to previous sentences
  • Offence was racially or religiously aggravated
  • Offence motivated by, or demonstrating, hostility to the victim based on his or her sexual orientation (or presumed sexual orientation)
  • Offence motivated by, or demonstrating, hostility based on the victim’s disability (or presumed disability)
  • Previous conviction(s), particularly where a pattern of repeat offending is disclosed

    Effective from: 01 October 2019

    Care should be taken to avoid double counting factors including those already taken into account in assessing culpability or harm or those inherent in the offence

    Guidance on the use of previous convictions

    The following guidance should be considered when seeking to determine the degree to which previous convictions should aggravate sentence:

    Section 143 of the Criminal Justice Act 2003 states that:

    In considering the seriousness of an offence (“the current offence”) committed by an offender who has one or more previous convictions, the court must treat each previous conviction as an aggravating factor if (in the case of that conviction) the court considers that it can reasonably be so treated having regard, in particular, to—

    (a) the nature of the offence to which the conviction relates and its relevance to the current offence, and

    (b) the time that has elapsed since the conviction.

    1. Previous convictions are considered at step two in the Council’s offence-specific guidelines.
    2. The primary significance of previous convictions (including convictions in other jurisdictions) is the extent to which they indicate trends in offending behaviour and possibly the offender’s response to earlier sentences.
    3. Previous convictions are normally relevant to the current offence when they are of a similar type.
    4. Previous convictions of a type different from the current offence may be relevant where they are an indication of persistent offending or escalation and/or a failure to comply with previous court orders.
    5. Numerous and frequent previous convictions might indicate an underlying problem (for example, an addiction) that could be addressed more effectively in the community and will not necessarily indicate that a custodial sentence is necessary.
    6. If the offender received a non-custodial disposal for the previous offence, a court should not necessarily move to a custodial sentence for the fresh offence.
    7. In cases involving significant persistent offending, the community and custody thresholds may be crossed even though the current offence normally warrants a lesser sentence. If a custodial sentence is imposed it should be proportionate and kept to the necessary minimum.
    8. The aggravating effect of relevant previous convictions reduces with the passage of time; older convictions are less relevant to the offender’s culpability for the current offence and less likely to be predictive of future offending.
    9. Where the previous offence is particularly old it will normally have little relevance for the current sentencing exercise.
    10. The court should consider the time gap since the previous conviction and the reason for it. Where there has been a significant gap between previous and current convictions or a reduction in the frequency of offending this may indicate that the offender has made attempts to desist from offending in which case the aggravating effect of the previous offending will diminish.
    11. Where the current offence is significantly less serious than the previous conviction (suggesting a decline in the gravity of offending), the previous conviction may carry less weight.
    12. When considering the totality of previous offending a court should take a rounded view of the previous crimes and not simply aggregate the individual offences.
    13. Where information is available on the context of previous offending this may assist the court in assessing the relevance of that prior offending to the current offence
  • Planning of an offence
  • An intention to commit more serious harm than actually resulted from the offence
  • Offenders operating in groups or gangs
  • ‘Professional’ offending
  • Commission of the offence for financial gain (where this is not inherent in the offence itself)
  • High level of profit from the offence
  • An attempt to conceal or dispose of evidence
  • Failure to respond to warnings or concerns expressed by others about the offender’s behaviour
  • Offence committed whilst on licence
  • Offence motivated by hostility towards a minority group, or a member or members of it
  • Deliberate targeting of vulnerable victim(s)
  • Commission of an offence while under the influence of alcohol or drugs
  • Use of a weapon to frighten or injure victim
  • Deliberate and gratuitous violence or damage to property, over and above what is needed to carry out the offence
  • Abuse of power
  • Abuse of a position of trust

Factors indicating a more than usually serious degree of harm:

  • Multiple victims
  • An especially serious physical or psychological effect on the victim, even if unintended
  • A sustained assault or repeated assaults on the same victim
  • Victim is particularly vulnerable
  • Location of the offence (for example, in an isolated place)
  • Offence is committed against those working in the public sector or providing a service to the public
  • Presence of others e.g. relatives, especially children or partner of the victim
  • Additional degradation of the victim (e.g. taking photographs of a victim as part of a sexual offence)
  • In property offences, high value (including sentimental value) of property to the victim, or substantial consequential loss (e.g. where the theft of equipment causes serious disruption to a victim’s life or business)

Mitigating factors

Factors indicating lower culpability:

  • A greater degree of provocation than normally expected
  • Mental illness or disability
  • Youth or age, where it affects the responsibility of the individual defendant
  • The fact that the offender played only a minor role in the offence

5.  Reduction for a guilty plea

The court will then apply any reduction for a guilty plea following the approach set out in the Council’s guideline, Reduction in Sentence for a Guilty Plea (where first hearing is on or after 1 June 2017, or first hearing before 1 June 2017).

6.  Consider ancillary orders

The court should consider whether ancillary orders are appropriate or necessary.

7.  The totality principle

The court should review the total sentence to ensure that it is proportionate to the offending behaviour and properly balanced. See Totality guideline.

8.  Reasons

When a court moves from the suggested starting points and sentencing ranges identified in the guidelines, it should explain its reasons for doing so.