Triable either way
Maximum when tried summarily: Level 5 fine and/or 6 months
Maximum when tried on indictment: 2 years’ custody
NOTE: the maximum sentence for causing death by disqualified driving is now 10 years (section 3ZC Road Traffic Act 1988 – with effect from 13 April 2015). The sentence levels in this guideline are therefore unlikely to apply to 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.
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
- failing to have proper regard to vulnerable road users
Issues relating to the determinants of seriousness
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.
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.
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.
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.
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 s3ZC of the Road Traffic Act 1988 (causing death by disqualified driving) are specified offences for the purposes of sections 266 and 279 (extended sentence for certain violent, sexual or terrorism offences) of the Sentencing Code. The court must determine having regard to the criteria contained in Chapter 6 of Part 10 of the Sentencing Code whether there is a significant risk of serious harm by the commission of a further specified offence.
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
|Examples of nature of activity||Starting point||Range|
|The offender was unlicensed or uninsured – no aggravating factors||Medium level community order||Low level community order – high level community order|
|The offender was unlicensed or uninsured plus at least one aggravating factor||26 weeks’ custody||High level community order – 36 weeks’ custody|
|The offender was disqualified from driving OR the offender was unlicensed or uninsured plus two or more aggravating factors||12 months’ custody||36 weeks – 2 years’ custody|
For further information see Imposition of community and custodial sentences.
- The seriousness of the offence should be the initial factor in determining which requirements to include in a community order. Offence specific guidelines refer to three sentencing levels within the community order band based on offence seriousness (low, medium and high). The culpability and harm present in the offence(s) should be considered to identify which of the three sentencing levels within the community order band is appropriate. See below for non-exhaustive examples of requirements that might be appropriate in each.
- At least one requirement MUST be imposed for the purpose of punishment and/or a fine imposed in addition to the community order unless there are exceptional circumstances which relate to the offence or the offender that would make it unjust in all the circumstances to do so.
- A suspended sentence MUST NOT be imposed as a more severe form of community order. A suspended sentence is a custodial sentence.
- Community orders can fulfil all of the purposes of sentencing. In particular, they can have the effect of restricting the offender’s liberty while providing punishment in the community, rehabilitation for the offender, and/or ensuring that the offender engages in reparative activities.
- A community order must not be imposed unless the offence is ‘serious enough to warrant such a sentence’. Where an offender is being sentenced for a non-imprisonable offence, there is no power to make a community order.
- Sentencers must consider all available disposals at the time of sentence; even where the threshold for a community sentence has been passed, a fine or discharge may be an appropriate penalty. In particular, a Band D fine may be an appropriate alternative to a community order.
- The court must ensure that the restriction on the offender’s liberty is commensurate with the seriousness of the offence and that the requirements imposed are the most suitable for the offender.
- Sentences should not necessarily escalate from one community order range to the next on each sentencing occasion. The decision as to the appropriate range of community order should be based upon the seriousness of the new offence(s) (which will take into account any previous convictions).
- In many cases, a pre-sentence report will be pivotal in helping the court decide whether to impose a community order and, if so, whether particular requirements or combinations of requirements are suitable for an individual offender. Whenever the court reaches the provisional view that a community order may be appropriate, it should request a pre-sentence report (whether written or verbal) unless the court is of the opinion that a report is unnecessary in all the circumstances of the case.
- It may be helpful to indicate to the National Probation Service the court’s preliminary opinion as to which of the three sentencing ranges is relevant and the purpose(s) of sentencing that the package of requirements is expected to fulfil. Ideally a pre-sentence report should be completed on the same day to avoid adjourning the case. If an adjournment cannot be avoided, the information should be provided to the National Probation Service in written form and a copy retained on the court file for the benefit of the sentencing court. However, the court must make clear to the offender that all sentencing options remain open including, in appropriate cases, committal for sentence to the Crown Court.
|Offences only just cross community order threshold, where the seriousness of the offence or the nature of the offender’s record means that a discharge or fine is inappropriate
In general, only one requirement will be appropriate and the length may be curtailed if additional requirements are necessary
|Offences that obviously fall within the community order band||Offences only just fall below the custody threshold or the custody threshold is crossed but a community order is more appropriate in the circumstances
More intensive sentences which combine two or more requirements may be appropriate
|Suitable requirements might include:
||Suitable requirements might include:
||Suitable requirements might include:
* If order does not contain a punitive requirement, suggested fine levels are indicated below:
BAND A FINE
BAND B FINE
BAND C FINE
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.
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, whether involving bad driving or involving an offence of the same kind that forms part of the present conviction (ie unlicensed, disqualified or uninsured driving)
- More than one person was killed as a result of the offence
- Serious injury to one or more persons in addition to the death(s)
- Disregard of warnings
- Irresponsible behaviour such as failing to stop or falsely claiming that someone else was driving
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
- The decision to drive was brought about by a proven and genuine emergency falling short of a defence
- The offender genuinely believed that he or she was insured or licensed to drive
- The offender was seriously injured as a result of the collision
- The victim was a close friend or relative
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 65 of the Sentencing Code states that:
(1) This section applies where a court is considering the seriousness of an offence (“the current offence”) committed by an offender who has one or more relevant previous convictions.
(2) The court must treat as an aggravating factor each relevant previous conviction that it considers 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.
(3) Where the court treats a relevant previous conviction as an aggravating factor under subsection (2) it must state in open court that the offence is so aggravated.
- Previous convictions are considered at step two in the Council’s offence-specific guidelines.
- 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.
- Previous convictions are normally relevant to the current offence when they are of a similar type.
- 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.
- 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.
- 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.
- 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.
- 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.
- Where the previous offence is particularly old it will normally have little relevance for the current sentencing exercise.
- 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.
- 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.
- 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.
- 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)
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.
When a court moves from the suggested starting points and sentencing ranges identified in the guidelines, it should explain its reasons for doing so.