Ever since cars were invented there have been accidents in which someone was killed. Originally where these were as a result of serious fault on the part of the driver, he was prosecuted for culpable homicide and could still be. However it was found that juries were often reluctant to convict of this serious charge and parliament created the offence of causing death by dangerous driving. Though it is still possible to prosecute for culpable homicide, normally when very bad driving has caused the death the driver will be prosecuted before the High Court for causing death by dangerous driving. Such cases almost invariably lead to jail with 5 years being the starting point.

However that left many cases where the quality of driving was not so bad as to be dangerous. In such cases the driver could only be prosecuted for careless driving. Parliament had not passed any law making it a crime to cause someone’s death by careless driving. It followed that when deciding on sentence the Court could not take into account the fact that the poor driving led to someone being killed. As a result the driver was frequently simply fined and not disqualified. Not surprisingly this led to great distress to the family of the victim and there has been public pressure for many years to change the law.

The first effort to change the law was to create an offence of causing death by careless driving where the driver was also unfit to drive through drink or drugs. This serious offence is usually prosecuted before a Sheriff and Jury and again jail is the likely outcome.

Two years ago parliament bit the bullet and passed the law making causing death by careless driving a crime but then took those two years to bring it into effect on August 18th. It carries a possible 5-year jail sentence and disqualification must be imposed unless special reasons exist. Given that careless driving varies from a moment’s inattention to just below dangerous driving, unlike the cases involving dangerous or drunk driving where imprisonment is the probable result, parliament has given the prosecutors and courts discretion in dealing with such cases. However initially at least they are likely to be prosecuted before a Sheriff and Jury so that the Sheriff is not limited to passing a jail sentence of one year only if he considers that necessary.

Had parliament stopped there, little criticism could be made. However somewhat bizarrely at the same time they created yet another new offence of causing death by driving while either unlicensed, disqualified or uninsured. It will be noted that in these charges there is no criticism whatsoever of the quality of driving of the accused. The thought appears to be that because he is unlicensed etc, he should not have been on the road and, had he not been, then there would not have been any accident involving him. The penalties for it are again mandatory disqualification and imprisonment for up to 2 years. Driving unlicensed or without insurance are well-established offences for which the accused cannot be imprisoned [though, quite properly, he can be for driving while disqualified]. Why parliament thinks it right that he should face imprisonment when someone has died through no additional fault of his is beyond me. Gilbert and Sullivan’s Mikado was right when he sang that the punishment should fit the crime. If it doesn’t, the law is brought into disrepute.