A handful of recent cases have thrown into sharp relief the shortcomings of the Definitive Guideline Causing Death by Driving, that was issued by the Sentencing Guidelines Council, as it then was, as far back as August 2008. That Definitive Guideline applies to four offences: causing death by dangerous driving, causing death by careless driving while under the influence of drink or drugs, causing death by careless driving and causing death by unlawful driving, where, for example, the defendant was driving without insurance at the time of the death. In the intervening 11 years, the Definitive Guideline has not been amended but at least one of those offences has, and in a way that means the strict application of the Guideline could lead to those convicted of less serious vehicular homicide offences receiving longer sentences than those convicted of more serious offences.

If there is a hierarchy of causing death by driving offences then at the very top will be causing death by dangerous driving, contrary to section 1 of the Road Traffic Act 1988. The maximum sentence is 14 years’ imprisonment. In order for the standard of a person’s driving to be dangerous it is necessary for the prosecution to prove that the way he drove fell far below what would be expected of a competent and careful driver, and that it would be obvious to a competent and careful driver that driving in that way would be dangerous. For sentencing purposes the Definitive Guideline recognises three levels of seriousness for this offence. Where there was a brief but obvious danger arising from a seriously dangerous manoeuvre then the facts of the case will typically fall into Level 3 with a starting point of 3 years’ imprisonment and a range of 2 – 5 years. Where the defendant had consumed excessive quantities of alcohol of drugs before driving, that is a recognised aggravating factor. Where, however, the quality of the defendant’s driving was impairedby his consumption of alcohol or drugs (whether or not that consumption was excessive, in the sense that it placed him above the legal limit) then the facts of the case are likely to fall into Level 2, with a starting point of 5 years’ imprisonment and a range of 4 – 7 years.

In this sense, then, the Definitive Guideline for causing death by dangerous driving draws a distinction between (i) the consumption of alcohol and drugs that was not excessive and did not impair the quality of the defendant’s driving, (ii) the consumption of alcohol and drugs that was excessive but which did not impair the quality of the defendant’s driving, (iii) the consumption of alcohol and drugs that was not excessive but which did impair the quality of the defendant’s driving, and (iv) the consumption of alcohol and drugs that was excessive and which also impaired the quality of the defendant’s driving. In scenario (i), the consumption is irrelevant for sentencing purposes. In scenario (ii), the consumption will not affect the categorisation of the offence but will be an aggravating feature of it. In scenario (iii), the consumption will affect the categorisation but will not aggravate the seriousness of the offence thereafter, and in scenario (iv) the consumption will both affect the categorisation and could lead to a further increase in the sentence beyond that.

The next most serious offence is causing death by careless driving when under the influence of drink or drugs, contrary to section 3A of the 1988 Act. Like the offence of causing death by dangerous driving, the maximum sentence is 14 years’ imprisonment. The test for careless driving is whether the way the defendant drove fell below what would be expected of a careful and competent driver. Unlike in the case of dangerous driving there is no need for the quality of the defendant’s driving to have fallen farbelow that standard. At the time the Definitive Guideline came into force, in addition to proving the defendant drove carelessly and that his driving caused the death of the victim, the prosecution also had to prove, inter alia, that either the defendant was unfit to drive on account of his consumption of alcohol or drugs or that he had consumed so much alcohol that the proportion of it in his system exceeded the proscribed limit. If the defendant had consumed so many drugs that the proportion of them in system exceeded the prescribed limit but that consumption had not rendered him unfit to drive then this element of the offence could not be made out. That was something of a lacuna.

The Definitive Guideline for the section 3A offence is based on two principal considerations: the degree of carelessness inherent in the defendant’s driving and the quantity of alcohol and drugs in his system at the time above the prescribed limit. The starting point is not determined by any consideration of the extent to which the defendant’s consumption of alcohol or drugs actually impaired his driving, so a defendant who was significantly above the prescribed limit but who was not unfit can expect to receive a significantly longer sentence than the defendant who was only just above the prescribed limit but who was clearly unfit to drive, even if in the event the standard of his driving was same in both scenarios.

What this meant in practice is that a defendant who carried out a careless driving manoeuvre that caused death at a time when the quantity of drugs in his system was above the prescribed limit but he was not thereby unfit to drive, could not be prosecuted under s.3A, although he could certainly be prosecuted under section 2B, the offence of causing death by careless driving, where the maximum sentence is only 5 years’ imprisonment. If the standard of his driving was dangerous he could be prosecuted under s.2, but in that case the lack of impairment would not propel the case into Level 2 for sentencing purposes, although the fact that he had consumed drugs above the legal limit would be an aggravating feature of the offence.

That position changed on 2 March 2015 when section 3A was amended by the Crime and Courts Act 2013 so that the offence can now be committed where the proportion of controlled drugs in the defendant’s body exceeded the prescribed limit regardless of impairment, thus placing drug consumption on a par with alcohol consumption so far as that offence is concerned. In R v Mohamed [2018] EWCA Crim 596, the appellant argued that the Definitive Guideline for the section 3A offence did notapply where the proportion of drugs in the driver’s system was above the prescribed limit but he was not otherwise unfit to drive because it had not been within the contemplation of the Sentencing Guidelines Council in 2008 that such an amendment to the legislation would be made seven years later to widen the offence in that way. The Court of Appeal dismissed that argument. In its view, Parliament had done no more than provide that “as an alternative to proof of actual impairment as a result of drug consumption, the offences will be equally commitment by driving with alcohol or drugs in excess of the prescribed limit. Actual impairment is not a pre-requisite for the commission of the offence” (at [24]).

The current position is that where a defendant carries out a bad driving manoeuvre that causes death in circumstances where the proportion of drugs in his system exceeds the prescribed limit but the standard of his driving was not impaired, then (i) if the standard of his driving was careless (and close to dangerous) and the quantity of drugs in his system was high, then according to the Definitive Guidelines for the section 3A offence the starting point will be 8 years’ imprisonment with a range of 7 – 14 years, but (ii) if the standard of his driving was dangerous and the quantity of the drugs in his system was high, then for the section 2 offence the starting point will be 3 years’ imprisonment with a range of 2 – 5 years because he was not impaired by his consumption of drugs, although the fact that he was significantly above the legal limit will be an aggravating feature of the offence. It is difficult to see why a defendant who commits the more serious offence contrary to section 2 should find himself in these circumstances receiving a lesser sentence than the defendant who was convicted of the less serious offence in section 3A.

This point was raised with the Court of Appeal in R v Bills (Joseph) [2018] EWCA Crim 186, where on a prosecution for the section 2 offence the prosecution had sought to rely on the Definitive Guideline for the section 3A offence to show to the court that where a person causes death by their dangerous driving when over the prescribed limit the sentence should be at least on a par with, and arguably more than, the sentence for the equivalent conduct had it been prosecuted under section 3A. The President of the Queen’s Bench Division recognised this “anomaly in the guideline” (at [24]) and went on to increase the sentence on the Attorney General’s application on account of the presence of excessive quantities of alcohol in the offender’s system at the time of the driving which he considered to be a significant aggravating feature.

Certainly one way of overcoming the anomaly would be to treat the excessive consumption of alcohol and drugs as an aggravating feature of such seriousness that even on its own it requires the court to move up to the next category in the section 2 Definitive Guideline, but there is no authority in which the Court of Appeal has been prepared to go that far. Another alternative would be to interpret the Definitive Guideline in such a way that excessive consumption of alcohol or drugs, even in the absence of impairment, should drive a case into Level 2, with a starting point of 5 years’ imprisonment. The problem with that approach is that the Guideline expressly states that only driving whilst impaired as a result of drug of alcohol consumption will have that affect, the clear inference being that an unimpaired driver who is over the limit will not fall into Level 2.

Ultimately, the anomaly exposes the problem of a sentencing guideline that has stood still while the offences to which it applies have moved on. The neatest solution would be for the Sentencing Council, as it now is, to amend and reissue the Definitive Guideline for causing death by driving offences in a way that could both address this anomaly (and any others) and also conform to the more modern guidelines which differ in a number of important respects from the older ones. Perhaps the most obvious difference is that the older guidelines, like the one for causing death by driving, are premised upon the defendant being a person with no previous convictions, and hence a lack of previous convictions is not a matter of mitigation upon which he can rely at sentence because it has already been taken into account in the determination of the starting point. This is a point that is often overlooked at the sentencing stage because lawyers and judges are far more attuned to the newer guidelines where a lack of previous convictions is a matter of mitigation.