The Department of Transport has recently announced increased penalties for using handheld mobile phones whilst driving. The current penalties of a £100 fine and a 3 point endorsement will be increased to 6 points and a £200 fine with the measures coming into force in early 2017, but a review of current CPS charging standards and recent sentencing appeal cases shows that with a slight twist of the forensic kaleidoscope the picture could be much worse.
The Definition of Dangerous Driving
Whilst the current definition of dangerous driving is contained in the Road Traffic Act 1988 and is “a standard of driving which falls far below that expected of a competent and careful driver and it would be obvious to a competent and careful driver that driving in that way would be dangerous”,
the current CPS charging standards list examples derived from decided cases and the Sentencing Guidelines Council`s guidance of what can be regarded as evidence supporting a charge of dangerous driving. Included in these examples is “using a handheld mobile phone or other hand held electronic equipment, whether as a phone or to compose or read text messages when the driver is avoidably and dangerously distracted by that use.
Court of Appeal
R v Usaceva 2015
In a sentence appeal dealt with by the Court of Appeal last year, where the appellant was a 31 year old single working mother of an 8 year old son, the Court refused to interfere with an immediate prison sentence of 6 years and disqualification from driving of 10 years. The facts of the case make salutary reading.
The incident giving rise to the prosecution occurred on the afternoon of the 15 March 2013. In the minutes before the accident the appellant had sent a text message, made an outgoing call, received an incoming call lasting over a minute and took a further incoming call lasting nearly half a minute on her Samsung mobile phone. She also sent an outgoing text on her Sony mobile phone – whist travelling at a speed of 60 mph.
She failed to appreciate that she was rapidly closing in on a Peugeot 206 in the carriageway ahead of her until it was too late to avoid a substantial impact. That impact caused the Peugeot to strike the nearside kerb and then spin across the carriageway into the path of an oncoming heavy goods vehicle. The driver of the Peugeot was killed.
The trial judge found that the accident occurred because the appellant, whilst driving at high speed, must have been distracted by her use or attempted use of one or both of the mobile phones in the moments before the collision and took into account two earlier fixed penalty notices – treating them as seriously aggravating factors.
The resulting sentence of six years imprisonment was reviewed by the Court of Appeal who were asked by her counsel to consider, as an act of mercy, the impact of an immediate sentence of imprisonment upon the appellant`s eight year old son. In fact in October 2012 the Court had reviewed the position of an appellant who was the sole carer of a young child in the case of R –v- Petherick, concluding that “in a case where custody cannot proportionately be avoided the effect on children or other family members might afford grounds for mitigating the length of the sentence but it may not do so” – my emphasis.
The Court refused to interfere with the sentence of six years imprisonment which resulted amongst other upheavals in an eight year old child who did not speak German being moved to Germany to be cared for by his grandmother.
The problem for motorists who use mobile phones to make calls or text is that once an accident occurs, particularly at high speed the consequences are both unpredictable and uncontrollable so that it is very often a matter of chance whether death or serious injury occurs – especially on motorways where traffic tends to be travelling at speed – and usually far too close together.
Moreover the decided cases indicate that the prosecution need only prove that the defendant`s driving was more than a negligible cause of the death – not the sole, principal or even a substantial cause of the death – or indeed deaths.
Company Directors and Business Owners
If your company or business employees drive high mileages it might be sensible to routinely remind them of the dangers of using hand-held devices – including satellite navigation, given the CPS current charging standards and the Court of Appeal`s recent decisions as set out above.
If it means that catastrophes, such as the one outlined above, both on the road and in the courts can be avoided it will be time well spent.
Aidan Carr, Professional Regulatory Team, Burton Copeland
For further advice, representation or a discussion including sentencing guidelines on drink drive offences and penalty-points disqualification please contact Gwyn Lewis on 0161 827 9500 or [email protected]