It is worth trying to persuade the prosecution to amend the counts in an indictment?

A new offence of causing death by careless driving was introduced by the Road Safety Act 2006. It can be tried in either the magistrates’ or the crown court and carries a maximum prison sentence of five years, along with obligatory disqualification. The new law was introduced because it was felt that the courts had inadequate sentencing powers in cases where a driver who caused a death was prosecuted simply with careless driving – a charge that did not take into account that someone had died and which carried only a fine and potential disqualification.

The aim of the new offence is to ensure that drivers involved in fatal accidents received fair and proportionate sentences. However, the reality has been rather different. There has been little consistency in the charging decisions made by the Crown Prosecution Service (CPS) and the sentences eventually imposed by the courts.

Given the legal distinctions between dangerous and careless driving, it is well worth challenging any questionable CPS decisions at each and every stage. Apart from anything else, there may well be significant costs consequences.

Mr A’s case

A recent case highlights some of the issues faced by lawyers dealing with road traffic law cases.

Mr A was involved in a fatal accident on the motorway. CCTV and witness evidence revealed that Mr A – who was travelling in the inside lane – collided with the rear of a very slow moving vehicle ahead of him. Although Mr A was unharmed, the driver of the other vehicle tragically died and his passenger sustained life-changing injuries.

Subsequent examination of the deceased’s vehicle showed that it had suffered a mechanical failure. At the time of impact, it was travelling at just 7mph. For reasons unknown, the deceased failed to manoeuvre onto the hard shoulder, despite ample opportunity to do so. There was no evidence that the deceased’s vehicle displayed hazard warning lights.

Mr A was interviewed and gave a plausible account of the collision. He accepted that, when he first saw the deceased’s vehicle, he misjudged its speed. He prepared to overtake it, looked over his shoulder to check the traffic flow but could not move out because two vehicles were already occupying the middle lane. When he looked back ahead, it was too late. CCTV footage demonstrated that he’d had approximately six seconds in which to see and react to the deceased’s vehicle immediately ahead of him.

Despite the lack of aggravating features, the CPS then prosecuted Mr A for causing death by dangerous driving – an offence that carries a maximum sentence of 14 years’ imprisonment.

At an early stage, representations were made to the Crown that the circumstances of the offence were more consistent with carelessness than with dangerousness. These representations focused on the CPS charging codes and referred to several other cases – involving similar facts to Mr A’s case – that had been dealt with by the same CPS office and which had resulted in prosecution for the lesser offence.

However, the CPS stood by its original decision, despite being shown expert evidence demonstrating that Mr A may, in fact, have had as little as two seconds in which to see the deceased’s vehicle.

At every stage, the prosecution was repeatedly invited to review its position, emphasising that Mr A would plead guilty to the lesser charge. This was formally noted on the court file.

The trial

On the first day of the trial, the presiding Judge took the unorthodox decision of inviting the defendant to indicate his plea to the offence of causing death by careless driving, despite the fact that his admission of this charge was not acceptable to the Crown. The jury were therefore directed that Mr A accepted his driving was careless but not dangerous.

Following a three-day trial, Mr A was acquitted of causing death by dangerous driving. Turning to his admission of the lesser charge, the judge gave Mr A full credit for his guilty plea, recognising the persistent efforts made by the defence to prompt the prosecution to reconsider its case. The judge also referred to the helpful evidence given by witnesses and the police, which he took into consideration for sentencing purposes. He then sentenced Mr A to a community order and imposed the minimum period of disqualification.

The judge next considered the question of defence costs, saying that if the prosecution had accepted Mr A’s plea to the lesser charge, considerable costs would have been avoided. Accordingly, he made a defence costs order, enabling the defence to recoup a proportion of the costs incurred in defending Mr A.

Costs advantages

This case shows that there can be significant advantages in trying to persuade the CPS to change its mind about the offence with which it charges a defendant – and continuing to do so right up to the trial itself. With the increasing pressures on CPS lawyers, it is clear that files are often being reviewed insufficiently. Defence lawyers should exploit this weakness to the full in order to maximise the chances of getting a good result and recovering defence costs.