Mrs. Ellen Emanuel (Hansard, 22 November 1985)

§ Mr. Willie W. Hamilton (Fife, Central)

On 28 March this year, a 69-year-old lady, Mrs. Ellen Emanuel, a constituent of mine from Leven, Fife, was killed in a road accident by a drunken car driver, Mr. Anthony Sharp, a 37-year-old engineer of Luss road, Glasgow. In the same accident, Mrs. Emanuel's husband, aged 63, had his rib cage crushed, suffered a broken femur, and had his nose almost torn of. He has been crippled and disfigured for life. Their grandson, 14, received bruises and cuts and still has traces of glass in his head.

This was a shocking case of criminal irresponsibility by Mr. Sharp. He was charged with contraventions of various sections of the Road Traffic Act 1972, and on 13 September, in the Kirkcaldy sheriff court, he pleaded guilty to causing death by reckless driving and to drying while drunk. Never could a case have been more clear-cut.

The case came before Sheriff Macarthur at Kirkcaldy, and it was disclosed that Mr. Sharp had a blood-alcohol level of 213 mg—almost three times the permitted limit—and that the test was taken at hospital almost three hours after the accident. I understand that there were no mitigating circumstances whatsover. Certainly, none was offered by Mr. Sharp's defence in court.

Nor was this the first drunk-driving offence by Mr. Sharp. On 6 January this year, in Glasgow, he was convicted of a similar offence and banned from driving for one year. Therefore, in the March accident, when he killed one of my constituents, he was driving despite that ban. According to a letter from the family to me, dated 26 September, at the initial hearing of the case in Kirkcaldy the defence asked for leniency and was apparently listened to sympathetically by Sheriff Macarthur who deferred sentence until 14 October to enable him to make further inquiries. I do not know the results of those inquiries or what they revealed. I think that, in the light of subsequent events, the public are entitled to know that information.

The fears of the Emanuel family were amply confirmed by the judgment made by Sheriff Macarthur on 14 October. According to a report in the Scottish Daily Record the day after the case, the sheriff had told Sharp, a £170 a week engineer, that he would not gaol him because he would lose a steady job. Instead, the man was sentenced, awarded, got off—call it what we like—with 240 hours of community service and his driving licence was suspended for five years. The Emanuel family was deeply shocked at the apparent leniency of that sentence and wrote to me asking me to do what I could to help.

I wrote to and saw privately the Solicitor-General for Scotland and sought advice from lawyers in the Labour party. The Solicitor-General will not mind if I quote his reply of 11 November. He said: While I note that your constituents are dissatisfied with the disposal of this case, I have to say that this is not a matter appropriate for my intervention or comment. The Crown traditionally take a neutral stance with regard to the matter of sentence, which is entirely a matter for the court. All that the Crown can do is to present all the relevant facts to the Court to assist in the exercise of its discretion. Thereafter the consideration of the appropriate disposal is entirely within the discretion of the presiding judge. That being so, it would not be appropriate for me to comment on this matter. In your letter you ask me to institute an independent inquiry into this case. 587 That was a proposition that the Emanuel family put to me. The letter continues:

I have, however, no powers to do this. Furthermore, the Crown has no right of appeal in connection with the appropriateness of the sentence imposed in any particular case. I wish to make one or two general observations on the matter. I think I am entitled—indeed, it is my responsibility—to do so. The case received wide publicity not just in Scotland but in other parts of the United Kingdom. Without exception, public opinion found the sentence derisory and incomprehensible. I subsequently received letters from people in Scotland and from an organisation called the Campaign against Drunk Driving. The letter came from someone in Pershore. It states:

Since we launched the campaign in May this year we have been overwhelmed by victim families making contact and complaining bitterly about the leniency of courts towards drunken drivers and the complete disregard shown towards victim families. It is quite clear from cases drawn to our attention that the law is not being properly enforced and 'drunken killers' are escaping justice in many cases for causing death to innocent people … When it is realised that during the past ten years 62,000 people have been killed, 800,000 have been seriously injured and 2,500,000 have been slightly injured on our roads we are experiencing what would be in any other circumstances a national disaster. A very large percentage of these deaths and injuries can be related to alcohol and yet little effort is made to detect offenders. Government have admitted that only one drunken driver in 250 is caught but other experts estimate the true figure to be only one in 2,000. These are the figures quoted to me. I do not know how accurate they are. Will the Minister comment on them and say whether there are any accurate figures available for the United Kingdom as a whole and for Scotland separately?

It is appropriate that the debate is taking place just before Christmas and new year festivities. I understand that the Government are making a determined effort to cut down on the appalling toll on our roads. The lethal combination of long dark nights, icy roads and drink is likely to produce an army of drivers like Mr. Sharp and there will be a sizeable death toll as a consequence. There is no guarantee that the same Mr. Sharp will not be out on the road again in January, drunk, dangerous and lethal. My view is that drunken drivers like him are murderers and ought to be treated as such.

I again ask the Minister, can he produce any statistics showing not only the numbers, but the sentences meted out to drunken drivers? How many have caused death in the past three years? If no such statistics are available, it would be a good idea to start to collect them to let the people know what is happening and what ought to happen. Meanwhile, in the light of the season, I hope that a method will be devised, if machinery is not already present, to advise courts, judges and sheriffs of the vital importance of imposing gaol sentences on the murderers on our roads.

According to newspaper reports, Mr. Emanuel, when he heard about the sentence, remarked, with understandable vehemence, that only a week before the sheriff passed judgment, he had gaoled a man for 60 days for spitting at a policeman. Only a week or two ago we read in the newspapers here that an alleged football hooligan was gaoled for life. I am well aware of the rules of the House, and I know that you, Mr. Deputy Speaker, are listening carefully to what I am saying. Those rules preclude me or any other Member from criticising the judges in our courts. 588 It is a well known, well respected and well understood rule. I must therefore be careful in what I say, but I would be failing in my duty as the Member of Parliament representing the Emanuel family if I did not say that the case and the judgment have caused great dismay and anger in Scotland and other parts of the United Kingdom.

Over the past few years violent crime has soared upwards, despite the fact that the Government have devoted vast sums of taxpayers' money to police pay and equipment and new, bigger and better prisons. Nevertheless, violent crime is continuing to soar and drunken drivers are a considerable part of that criminal violence. Unless there are compelling and mitigating circumstances, the courts should have the power, if they do not already, to impose heavy gaol sentences, to suspend driving licences for life and to order the payment of compensation to the innocent victims.

Last year's slogan on drunken driving was mushy and ineffective in the extreme. If the Government have not already decided on a slogan for the coming festive season, I should like to suggest one: "Drunken drivers can be murderers. Keep sober or risk a gaol sentence."

I hope that the Minister will reply in the same spirit as I have made my case.

§ The Parliamentary Under-Secretary of State for Scotland (Mr. John MacKay)

The hon. Member for Fife, Central (Mr. Hamilton) has raised several important issues. However, before addressing those issues, I wish to extend my sympathy to the bereaved family of Mrs. Emanuel and in particular to Mr. Emanuel, who has to bear not only the loss of his wife but the very serious injuries that he himself suffered in that tragic accident. The whole family has my deepest sympathy, and, I am sure, that of all hon. Members.

At the risk of repeating points already made by the hon. Gentleman, it might help the House to have a brief history of the case describing the way in which it was dealt with by the Crown and the presiding sheriff.

As a result of an incident on 28 March 1985 on the Kirkcaldy to Kinghorn road, Anthony Sharp, of 44 Luss road, Drumoyne, Glasgow, was reported by the police to the procurator fiscal at Kirkcaldy. The circumstances of the incident were investigated by the procurator fiscal, and in July of this year a precognition was submitted to the Crown Office for the instructions of Crown counsel as to whether criminal proceedings should be taken, and if so, in what court. Crown counsel instructed that Mr. Sharp be prosecuted before a sheriff and a jury on a charge of contravention of section 1 of the Road Traffic Act 1972—causing death by reckless driving—or alternatively a contravention of section 3 of the Road Traffic Act 1972, which is a charge of careless driving. He was also charged with a contravention of section 6 of the Road Traffic Act 1972, that is, with driving with more than the permitted amount of alcohol in his body. As the hon. Gentleman said, the actual proportion of alcohol found in his blood after analysis was 230 mg. of alcohol in 100 ml of blood. The prescribed limit is presently 80mg of alcohol in 100 ml of blood.

In Kirkcaldy sheriff court on 23 September 1985, Mr. Sharp pled guilty to the more serious alternative in the first charge, that is, causing death by reckless driving contrary to section 1 of the Road Traffic Act 1972. He also pled guilty to the charge of driving while the proportion of 589 alcohol in his breath exceeded the prescribed limit. The sherriff decided to defer sentence until 14 October 1985 so that background reports could be obtained and then a community service order, requiring him to perform 240 hours' unpaid work, was made. He was also disqualified from driving for a period of five years.

The hon. Gentleman has concentrated on the leniency of the sentence imposed by the court on Mr. Sharp. That is not a matter on which I or any other member of the Government can comment, as the hon. Gentleman will know, and as my hon. and learned Friend the Solicitor-General for Scotland described in the letter quoted by the hon. Gentleman.

The Government's responsibilities are confined to ensuring that the maximum sentences available to the courts are adequate for dealing with all types of crimes and offences that came before them. I shall return to that aspect in a moment, but I wish first to make it absolutely clear that the sentence imposed by a court in any particular case is a matter for that court subject only to the accused's right of appeal. It is for the judge alone, taking into account all known mitigating and aggravating factors, to impose the sentence most appropriate to the offence and the offender. That can be subject to review only by the High Court if a case comes there on appeal. It would be constitutionally improper for the Government to interfere, or to attempt to interfere, with the exercise by the judiciary of their independent sentencing discretion; and it would be equally improper for me or any member of the Government to comment on the exercise of that discretion in any particular case.

As to sentencing policy, the Government are fully aware of the public concern over road safety and set up a review of road traffic law—under the chairmanship of Dr. Peter North—immediately following the publication of the report of the Select Committee on Transport. The review body hopes to be able to publish its report by he end of next year. The remit of the review is to consider what improvements might be made to certain aspects of road traffic law, particularly in relation to simplification, effectiveness and acceptability. One of those aspects is the structure of and penalties for the offences in sections 1 and 3 of the Road Traffic Act 1972—causing death by reckless driving, reckless driving and careless driving.

The hon. Gentleman will be aware that road traffic law is fraught with difficulty, not least because the motor vehicle combines the everyday with the potentially dangerous. Often a relatively trivial error of judgment on the part of a driver will have disastrous consequences—although I am not saying that is what happened in this case. On the other hand, a gross misjudgment or act of folly might cause little or no damage.

It is often argued that the offenders in cases such as this should be charged with culpable homicide, instead of a contravention of section 1 of the Road Traffic Act 1972. The practice of the Crown in recent years in Scotland is to prosecute for the common law crime only in a small minority of particularly grave and serious cases. There are two reasons for this. The first is that juries are notoriously reluctant to convict of the common law crime and this was, of course, partly the reason for the introduction of the statutory offence. The second reason is that the penalty likely to be imposed in respect of the common law crime would rarely exceed that available for a contravention of the statutory offence, for which the maximum penalty is, in high court cases, five years' imprisonment and, in 590 sheriff court cases, two years' imprisonment. Most cases can therefore be appropriately prosecuted by charging the statutory offence. However, should there be cases of an especially grave or serious nature, the Crown will give proper consideration to proceeding not on the basis of the statutory charge but on the basis of the common law crime of culpable homicide, where the maximum penalty available on conviction is life imprisonment. This is, however, entirely a matter for the Crown prosecuting authorities.

I turn now to the problem of the drunk driver. The Government introduced in 1983 special arrangements for that category of offender who is classified as "high risk", and who may have an alcohol problem. Those disqualified twice within 10 years for driving or attempting to drive when on both occasions their alcohol level was two and a half times the legal limit are advised to seek help during the period of their disqualification.

Before their driving licences can be renewed, such offenders must undergo medical, and perhaps psychiatric, examination together with blood analysis, and must convince the Secretary of State—in this context the Secretary of State for Transport—that they do not have an alcohol problem.

I ask the hon. Gentleman to accept that the Government are fully aware of the problems and have taken and will continue to take all the measures we can to deal with this major social problem. In particular, I express the Government's abhorrence of the grossly irresponsible behaviour of those who drink and drive, all too often with tragic consequences of the sort that we have heard described today.

The hon. Member asked what statistical information was available about drunk driving. Obviously as criminal statistics do not show the numbers of drunk drivers who are never caught, I cannot tell him about that. However, I can tell him that in 1984 the police recorded 14,976 offences of drunk driving in Scotland. In the same year, 14,296 cases of drunk driving were proceeded with, and of that number 13,556 had the charges proved. The disposal in the bulk of the cases—12,758—was a fine, while 291 offenders received custodial sentences, 47 were put on probation—five with the condition of community service—and 106 made the subject of community service orders. One offender received an absolute discharge and 353 were admonished. These are the most recent figures available. It is not possible to provide statistics on the sentences imposed on drunken drivers who have caused death, as those offences and any subsequent disposal by the courts are recorded under separate headings and are not readily identifiable.

The hon. Member also raised questions about the presiding judge. As I have explained, I cannot comment on any particular case and anything I may say must not be taken to reflect in any way on the sentence imposed in the case raised by the hon. Member for Fife, Central. However, perhaps it would be helpful if I explained the general position. As the hon. Member will appreciate, many persons aggrieved at the outcome of a case, whether it be a civil or a criminal matter, will attribute failure to the inadequacy of the presiding judge. To facilitate the handling of such complaints—and here it would be appropriate for me to say that their volume is slight in relation to the amount of business coming before the courts—arrangements have been made under which the sheriff principal of the sheriffdom concerned will look into the 591 complaint in the first instance. The sheriff principal's undertaking this duty was envisaged by the Grant committee on the sheriff court. Paragraph 330 of that report makes it clear that the sheriff principal

should be the channel of communication between his sheriffdom and the central authority responsible for the organisation of the sheriff courts, and the normal recipient of complaints from above or below. He would therefore be concerned with the conduct of sheriffs and court staff in all matters which, whether arising directly out of the discharge of their duties or not, might affect their capacity to discharge their responsibilities and their standing in the community. We would not give to the sheriff principal any formal disciplinary powers of his own. Matters requiring disciplinary action, if they ever arose, would be reported to the central authority. In the great majority of cases the sheriff principal will himself deal with the complaint perhaps by telling the complainer of any right of appeal which might still be open to him or explaining some point of court procedure which had a bearing on the case and outwith the knowledge and experience of a lay person. There could be, however, the kind of occasion envisaged by the Grant committee when a complaint was of such a nature that the sheriff principal, after due inquiry, felt obliged to report the matter to the Scottish Courts Administration, the central authority for the sheriff courts, which advises my right hon. Friend the Secretary of State on such matters.

In considering the Sheriff Courts (Scotland) Act 1971, which gave effect to most of the Grant committee recommendations, Parliament made no provision for the disciplining of the shrieval bench other than that provided for under section 12 of the Act which deals with removal from office, and in terms which makes it quite clear that the Executive can intervene only in cases of doubt about a sheriff's fitness for office by reason of inability, neglect of duty or misbehaviour.

The independence of the judiciary is an essential protection to enable judges to carry out their judicial duties without fear or favour, affection or ill will. It means that a judge is protected from arbitrary interference or dismissal by the Executive, so that he can do his job as a judge free from the fear that the decisions which he makes 592 may lead to his removal from office. The doctrine of the independence of the judiciary does not mean that a member of the shrieval bench is above the law or that he can never be removed from office in any circumstances.

The procedure under the Act for the removal of a sheriff contains elaborate provisions which are themselves safeguards of the doctrine of judicial independence. The Secretary of State cannot make an order removing a sheriff simply because he does not like what that sheriff is doing. There must first be an investigation by the two senior judges of the Scottish judiciary, the Lord President of the Court of Session and the Lord Justice Clerk, either of their own accord or on the request of the Secretary of State. Once the inquiry has begun the Secretary of State takes no part in it and the matter is left entirely to the Lord President of the Court of Session and the Lord Justice Clerk until the investigation has been completed and the judges have presented their report. If the report finds that the sheriff remains fit for office, the Secretary of State can take no action whatever view he may himself have formed of the conduct which has been under investigation. It is only when the two senior judges report that what the sheriff has done, or failed to do, amounts to misbehaviour and that, because of that, he is unfit to hold his judicial office that the Secretary of State can make the order. Moreover, the order, when made, must lie before Parliament for 40 days, and is subject to annulment in pursuance of a resolution in either House—a further safeguard against an arbitrary interference with the principle of judicial independence.

In conclusion, I say again that all our sympathies must go to the Emanuel family. There is nothing any of us can say or do which will console them fully. Equally, no disposal of the accused which the sheriff could impose would restore their loss. I echo the hon. Member's condemnation of drunken driving. Like him, I hope that that call will be heeded over the Christmas and new year periods. People should remember that criminal behaviour and tragic incidents such as this arise from drunk driving and can easily be avoided by not driving while under the influence of drink.