Prosecuting Drivers Causing Death: Prosecutorial Decision-Making following the Road Safety Act 2006

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The research will examine the relationship between the substantive criminal law and the practice of criminal justice agencies in the context of specific driving offences. The Road Safety Act 2006 created two new causing death by driving offences: causing death by careless driving and causing death by driving whilst uninsured, unlicensed or disqualified. These offences are interesting and controversial because, to use a phrase adopted by criminal law theorists, they are 'constructive' in nature: all that is needed to prove the offence is that the driver committed the underlying offence (careless driving or driving whilst uninsured etc.) and in doing so caused the death of another person; no additional blameworthy state of mind, such as foresight of a risk of death, is required. Traditionally there has been some opposition to constructive crimes, particularly amongst legal academics, since the harm caused may be fairly remote from the blameworthiness of the offender in committing the underlying offence. The effect of such offences, however, is three-fold. Firstly they attach a more stigmatic label to the offender: as a 'causer of death'. Secondly, the lack of a requirement to prove blameworthiness in relation to the harm caused means that such offences are much easier to prove than 'conventional' offences that require mens rea. Thirdly, they provide the courts with far more severe sentencing powers: escalating from a period of disqualification from driving coupled with a fine (under the old law) to up to five years' imprisonment (under the new). The main objective of the study is to explore the impact that these new offences have had on the investigation and prosecution of road death incidents by the police and Crown Prosecutors subsequent to such investigation and examine the impact of law reform on the 'law in action'. The study will be empirical in nature. It builds on an earlier study of criminal charges resulting from fatal collisions conducted prior to the enactment of the 2006 Act, and so provides a unique point of comparison for how legal changes have (or have not) affected the practices of the criminal justice agencies. It will involve access to police and CPS files relating to road traffic collisions, in order to collect data on: the number of cases in which a decision was taken not to prosecute; the charges brought in any case going to court and the outcome (including plea and sentence).My earlier study brought me to a number of conclusions about the unique nature of prosecutions in case of RDIs and the desirability of introducing a new causing death by careless driving offence (please see my attached list of publications). Whilst there are theoretical reasons to object to a new causing death by driving offence, there may be both negative and positive effects to it in practice, and these knock-on effects warrant exploration. In creating the new offences the Government seems not to have considered the impact such a change could have on issues such as the likelihood of a suspect to plead guilty or of the CPS to accept a plea to a lesser offence. Whilst my previous study found that there was a 'grey' area between the offence of careless driving and causing death by dangerous driving, it also found that the police and CPS were more often than not in agreement as to which offence to charge. What the new law has not done is to clarify the distinction between careless and dangerous driving; prosecutors will still be left with a difficult decision, only now they may be less reluctant to charge the lesser of the two offences, knowing that there is the potential for a custodial sentence.