‘Homicide’ is a hypernym which envelops the separate offences of ‘murder’ and ‘culpable homicide’ (otherwise known in England – and many other jurisdictions – as ‘manslaughter’). As many a student of mine will testify, I have bored, sorry, inspired them with lengthy tales describing the difference. And have done so for years. Effectively (and there is, of course much more to it than this) it largely surrounds the issue of ‘intent’. Lack of intent may result in a reduced charge of culpable homicide and the effect of which will largely be one of sentence.
That is not to trivialise ‘culpable homicide’. Far from it. Homicide means a life has been taken and that is not to be taken lightly. But it separates the two offences and demonstrates the stark end result that not having ‘intent’ can have, at least as regards incarceration. And the eye-watering differences in length of sentence can be stark, so this issue of ‘intent’, ‘pre-meditation’ if you like, is very considerable.
Increasingly, however there have been calls for those who are found guilty of a ‘homicide’ by a driving offence either to be charged with a separate crime altogether or (in addition to the separate crimes that already exist, that is) in some cases, even murder. There may however be difficulties with that latter for reasons that I shall try to unravel below.
s1. of the Road Traffic Act 1988 deals with ‘causing death by dangerous driving’. This is found in Part 1 of the Act. s2(b) (also in Pt1) covers ‘causing death by careless or inconsiderate driving’. To be even clearer, the Act now provides for incidents when the latter may occur – such as driving without a valid licence or without insurance cover (Road Safety Act 2006), driving whilst already serving a period of disqualification (Criminal Justice and Courts Act 2015) and, of course, driving when under the influence of drink or drugs.
There have now also been added specific targeted offences such as causing serious injury by dangerous driving and causing serious injury whilst disqualified.
All of these ‘additions’ are no doubt welcomed by us all and especially the various road safety campaign groups, but the ‘wider’ issue as to whether there should be a crime that effectively equates to that of ‘murder’ is an altogether different proposition.
As matters stand, where a death inside or outside a vehicle is caused as a result of dangerous driving, the penalties are imprisonment of up to 14 years, a minimum period of two years disqualification and an extended re-sit test. But there have been repeated calls (in the main from the family of victims, understandably) to treat these ‘crimes’ much more seriously. Perhaps a salutary examination of the Harry Dunn case amply demonstrates familial anger and dismay. However, with a maximum sentence available to the judiciary of 14 years, is an alternative actually required? Not for the first time on these pages, trying to look at matters objectively, rather than subjectively is the very difficult task of ‘the law’. It would be wholly iniquitous to determine the law with our heart rather than head, nothwithstanding the gut-wrenching stories (q.v. Harry Dunn, above) that we witness.
As our Criminal Law stands, offences are comprised of the actus reus (the physical act) and the mens rea (the mental element). It is the former that is the cause of death. Causation, per se, has always been the subject of fairly intense debate amongst academics and criminal lawyers. In McDonald v HMA (2007) SCCR 10 the court set out that the test was (a) the ‘but for’ test (factual ) together with (b) the question of ‘proximity’ (legal) . If there is a suspicion of the incident being ‘too remote’, then a necessary causal link is incapable of being established.
The mens rea of ‘death by dangerous driving’ will ostensibly be defined and understood by the current existing concept of ‘recklessness’, the principle definition of which can be found in Transco v HMA (2004) JC 29 which stated it to be an ‘utter disregard for the consequences’. It would be hard, in my submission, to argue with that and, if so, whether a better defined description is even possible. The somewhat more advanced form of ‘wicked’ recklessness has been the subject for discussion many times on these pages and, for those interested, can be found in the somewhat celebrated case and Pistorius-esque ‘Cawthorne v HMA (1968) JC 32‘.
Further, can we say that there is an element of ‘intent’ in a death by dangerous driving case? Or, rather, can it be said to be intent as opposed to (even wicked) recklessness? Clearly, if someone uses a vehicle as a ‘weapon’ that is an entirely different proposition. Indeed at common law, it is widely believed that carelessness, and by extension, negligence, on its own and without another factor, is insufficient to invoke the workings of the criminal law and attract possible criminal penalties. Indeed one only needs to revert to examples of common law to see that there is a general proposition that careless driving should be regarded as a lesser form of ‘recklessness’, which would be seen as a more serious matter and perhaps should be more accurately referred to as ‘(gross) negligence’. Carelessness, almost in a delictual sense, is all about an assessment of whether the standard (in this case of driving) fell below that which would normally be expected. We are now straying into civil, rather than criminal law and are almost touching upon a ‘duty of care’, naturally also incumbent upon a driver but not relevant in assessing any potential criminality on its own. The distinction between ‘careless vs reckless’ (driving) can be confusing. Often it falls merely on the word ‘far’. Careless driving is driving that falls below the standard of a competent and careful driver whereas dangerous driving is that that falls FAR below the standard of a competent and careful driver. FAR, in this context, would seem to mean/imply that it is ‘obvious’ that it is dangerous. Excessive speed (e.g. 60mph in a 20mph zone, carrying out ‘other’ tasks whilst driving, being in control of a vehicle contrary to medical advice) as opposed to being deemed to be ‘careless’ (tailgating, undertaking, minor speeding violations (47mph in a 40mph). But an often confusing and bewildering distinction.
Then, of course, the standard of proof is (rightly) immeasurably higher for criminal matters and the argument must therefore be that if the standard is to assess whether ‘conduct’ falls below that which we would normally expect, will/would that result in less convictions as the ‘standard’ required is not as severe as ‘beyond reasonable doubt’? On the wider question of fatal road traffic collisions, it would clearly be wrong and quite precipitous to infer or assume guilt of a driver involved in a fatal RTC. The Supreme Court considered this in the English case of R v Hughes (2013) UKSC 56. An accused must have had some involvement in the fatality even if it is not necessarily the principle cause (of death). Yet again, examine the Harry Dunn case to see the involvement of the driver was far from fleeting.
It is difficult to see how, short of a situation where a vehicle is used as a ‘weapon’ (see above), there will ever really be a time when we can have a charge equivalent to that of murder (demonstrating ‘intent’ etc.) , for driving offences. Whether sentencing guidelines should be reinforced so that an increased minimum term is set for those found guilty of s1. RTA 1988, is another matter altogether. In the Harry Dunn case, the driver, an American national, was on the wrong side of the road (for us in the UK, not her in the US) but it is unlikely, if not uncontemplatable, that there was any ‘intent’. Was it reckless..?? Possibly. Was it dangerous? Unquestionably. This case and its grossly unsatisfactory backdrop of excessive ‘politicking’ has been a complete anathema to the majority of the public.
Perhaps a continuous, regular and robust review of RTA legislation is absolutely essential.