On 3 December 2012 a new offence of causing serious injury by dangerous driving was introduced by section 143 of the Legal Aid Sentencing and Punishment of Offenders (LASPO) Act 2012. Our motor prosecution specialists Mark Skinner and Naomi North give their views on its introduction and the possible implications for drivers, victims, insurers and the criminal justice system more generally.

The offence

Carrying a maximum sentence of five years imprisonment, the legislation is very much intended to bridge the gap between the offences of dangerous driving (which carries a maximum sentence of two years imprisonment) and causing death by careless or dangerous driving (with maximum sentences of five years and 14 years, respectively).

The definition

The definition of dangerous driving will remain the same – i.e. driving which falls far below the standard of a careful and competent driver. However, the legislation sees the introduction of a second element requiring the court to define serious injury. The definition of serious injury is physical harm which amounts to grievous bodily harm (GBH), but with that comes inherent uncertainty given the long established grey area of what precisely constitutes GBH.

Whilst there will be no case law to rely upon in the short term, it seems clear there will be some potentially significant developments which will shape how this offence will be dealt with both by the court and the crown prosecution service (CPS).

Interested parties

Victims and their families will welcome the new legislation, hoping that drivers will face harsher sentences to reflect the consequences of their bad driving. However, in reality, as demonstrated with the introduction of causing death by careless driving, victims will rarely feel that justice is done, particularly when a victim has suffered significant life changing injuries. Sentences will still tend not to meet their expectations. In reality the full five year term will rarely, if ever, be imposed.

In the worst cases of dangerous driving, some drivers may now receive longer custodial sentences, even though this is likely to be a small proportion of convicted drivers.

Insurers and the criminal justice system are likely to feel the biggest impact of the new offence. We anticipate an increase in trials to allow defendants to challenge not only whether their driving constitutes careless or dangerous driving, but also the second element of whether the injuries are "serious" or not.

There is likely to be an increased requirement for expert evidence, not only collision investigation evidence but also medical evidence. This will clearly have cost implications for insurers funding legal representation and indeed the Legal Aid system more generally. Additional expert evidence will inevitably increase delays in the criminal justice system both at the police investigation and court stages, which will neither benefit the defendant nor the victim.

Additionally, insurers dealing with civil claims may be disadvantaged with the consequences that the element of "serious injury" has already been established within the criminal courts. The claimant’s solicitors will be seeking to cite this within their particulars.

The verdict

Partner, Mark Skinner:

"This new offence could well have been dealt with by simply adjusting sentencing tariffs within the existing Road Traffic Act provisions for dangerous driving. I doubt that the court will encourage defences based upon what constitutes serious injury and guidance given by judges to juries will be crucial. In turn, guidance will probably be given quite early by the Court of Appeal. There will be no great sympathy for the dangerous driver in question if that element is readily established and I expect serious injury to be interpreted quite widely."

Solicitor, Naomi North:

"The new offence represents another example of the shift from the courts to looking at the consequences of an accident, as opposed to the culpability of the driver. I suspect that few people will benefit from the introduction of this offence which seems to just muddy the water even further. Both the courts and the Crown Prosecution Service already struggle to process the volume of cases before them. With the likely increase in the requirement of expert evidence this will add further delays to the system, the losers of which will ultimately be the victim and their family - who typically prefer to see a swift resolution to cases."