HL Deb 13 June 2000 vol 613 cc1592-609

7.37 p.m.

Lord Williams of Elvel

rose to ask Her Majesty's Government whether, in the light of their commitment to reduce road traffic casualties, they consider that the Road Traffic Act 1988 provides for sufficient penalties where the commitment of a minor offence, such as driving while uninsured, results in death or serious injury.

The noble Lord said: My Lords, perhaps I may first explain the background to my Question. The general matter of road casualties has always been, and will always be, of the greatest concern. There is in every year a massive loss of life and thousands of cases of serious injury. It goes without saying that anything which can be done to mitigate what in many respects is an unnecessary catastrophe should be done, and I welcome particularly the Government's review of the whole area, given the targets that the Prime Minister has set. I hope that my noble friend will be able to give the House a clear indication of how the review is proceeding and what the timetable for the review—and the publication of its results—now is. I am sure that my noble friend is aware that although we have a reasonably good record, by comparison with other countries, of adult casualties, we have an appalling record in child casualties, and I very much hope that this record will be addressed. Indeed, the official statistics of child casualties probably underestimate the true extent of child casualties on the road. I need only mention that in Germany, Holland and Denmark, drivers who kill a child are required to prove that they were not culpable. That is a suggestion that my noble friend may bear in mind.

Secondly, the campaign to reduce the incidence of road casualty has been reinforced by the growing public awareness of the distress of those who have lost relatives, lovers or merely friends as the result of road accidents. I speak, if I may say so, as one who knows, as two of my nephews have been killed on the road, at different times and, in fact, in different countries. But, leaving that aside, the plight of those who have suffered and have, as it were, remained behind has been graphically illustrated by the efforts of Mrs Margaret Highton—who lost her grandchild at a young age—and by the charity RoadPeace. I am grateful to both of them for bringing this whole problem to the forefront of public discussion. The victims of road tragedies deserve no less.

It would be wrong to claim that this is a simple problem. In some cases the fault lies with the careless pedestrian rather than with the driver of a car, and it would be absurd to blame the latter because an accident has occurred which is none of his or her doing. Nevertheless, there are many instances—possibly a majority of instances—where the law, and the practice of the law, seems to be inadequate.

Let me summarise what I believe. I am not an expert on these matters and I stand to be corrected. There are some clear offences under the Road Traffic Act 1988, as amended by the Road Traffic Act 1991, and equally clear penalties: causing death by dangerous driving; dangerous driving, which is defined in the 1991 Act (although I must say that the definition itself raises some doubts); and causing death by careless driving when under the influence of drink or drugs. So far, so reasonable. But there is a whole series of what I categorise as "minor offences"—which is not to minimise their seriousness—such as driving while uninsured, careless driving, driving without due care and attention, and not in proper control of the vehicle, which give rise to charges brought against the driver, the majority of which are heard in a magistrates' court.

Until January 1999, the consequences of a driver's action when he or she was involved in such an incident were not allowed to be reported in a magistrates' court. A case was then brought in which it was decided that it was relevant to a magistrates' court that the surrounding circumstances of a case—that is, if there was death or serious injury—could be mentioned. Up until then, it had not been possible to mention in court in the case of someone charged with a minor offence that death or serious injury had occurred. Since then it has become clear that the surrounding circumstances of the case—that is, death or serious injury—"may" be taken into account when sentencing. But "may" is not "must".

I hope that I do not have to describe to your Lordships the view of a family still in a state of shock and distress when they learn that the death of their child, mother, father or other relative is not even mentioned in court. The idea that a sudden, violent loss of a loved one is regarded as an irrelevance only adds to the grief of bereavement—and, indeed, to contempt for the law as it presently stands.

Let me illustrate this by recounting a recent case. A court heard how a wheel left a lorry and demolished a wall. A serious matter indeed. But what the court did not hear was that the wheel, between leaving the lorry and demolishing the wall, collided with a pedestrian walking on the pavement and killed her. The sentence of the offender reflected the "minor offence"—in practice the destruction of a wall rather than the life of an innocent pedestrian.

There is, to say the least, an absurdity in all this. I should have thought that it would be perfectly easy for the "may" to become a "must". All the circumstances of the case should be clearly set out to the magistrates. As far as I am aware, that would require no primary legislation; a simple instruction to magistrates would be enough.

Of course, most European countries and most states of the United States go further; they bring charges of homicide, manslaughter, vehicle homicide and so on following a road death where a "minor offence" appears to have been committed. In that sense we are out of step.

I do not think that it is necessary to go that far, but I believe that the courts should be able to pass sentence on an offender on a "minor offence" where death or serious injury has occurred and where a level of culpability by the offender has been adequately proved.

The last point that I wish to raise relates not to sentencing but to the offences. Is there not a ease for a new offence of causing death or serious injury by careless driving? Is there not a case for a new offence of causing death or serious injury by driving without due care and attention? Is there not a case for a new offence of causing death or serious injury while not being in control of a vehicle? Is there also not a case for the whole question to be dealt with under the rubric of involuntary manslaughter? Anyone who has driven anywhere since mobile phones were introduced knows that a driver who has one hand on the steering wheel of a car or lorry cannot be in control of the vehicle.

I leave all these questions, as it were, hanging in the air. I have no particular solutions. That is not my job. I very much hope that when my noble friend responds to the debate he will address these matters with the seriousness that the victims deserve.

7.48 p.m.

Baroness Darcy de Knayth

My Lords, I should like to thank the noble Lord, Lord Williams of Elvel, for asking this timely Question and I congratulate him on his clear and thoughtful exposition.

It seems to me that a big problem is that the maximum penalty is so low. Does the Minister agree that raising the limit, which would give judges more discretion, more flexibility, may well go some way towards making the victims or their families feel that justice has been done?

I should like to give an example which is not in itself a minor offence, but the argument is the same. It is a case which was given to me by the noble Baroness, Lady O'Cathain, who is extremely sorry that she cannot be here as she wanted to speak about it herself. She wrote about this case to the Attorney-General on 16th May. It involves the death of a young police officer where, in the words of the noble Baroness, Justice certainly does not seem to have been done. There is widespread concern in Sussex about this particular case and the family of the dead police officer will not let it rest". The defendant knocked down and killed a police officer doing a roadside speed check. He failed to stop; dragged the body about 200 metres; then escaped and set fire to his van. He had a previous record of driving offences. The defendant admitted that he had consumed a considerable amount of alcohol (he had probably twice the permitted level in his blood), and he pleaded guilty to causing death by dangerous driving and to performing an act tending and intending to pervert the course of justice.

The judge gave the defendant a sentence lower than the maximum because of his obvious remorse and pleas of guilty: seven years' imprisonment and seven years' disqualification from driving until retested.

The words of the judge when pronouncing his judgment are significant. He said that: Parliament has decided that the maximum penalty for this offence is 10 years, whereas the maximum penalty for burglary is 14 years. This might strike the public as an odd approach to the value placed on human life, but I am bound by the law as it is". The Court of Appeal then reduced the sentence to five years for the offence of causing death.

Does the Minister agree that, had the maximum penalty been higher, it would have allowed more scope for the judge to take account of the defendant's remorse and for the Court of Appeal properly to exercise its judgment, while still arriving at a sentence which could be viewed as just by the victim's family and the public? I understand that the Minister will not wish to comment on a particular case, but I should be glad if he would comment on the principle.

The noble Lord, Lord Williams of Elvel, spoke of the pain and shock felt by families when, in cases of minor offences, the fact that deaths have occurred is not mentioned. What can be done to make families feel not only less excluded from the process, but also that the enormity of their loss is recognised and acknowledged?

Last weekend I spoke to an eminent recorder who was both wise and sensitive in his approach. He suggested that the victim's family should write a statement to the judge, to be seen by all parties after the trial but before sentencing, saying how the crime had affected the family members and how they thought the defendant should be sentenced. The judge should have regard to that statement and the wise judge would acknowledge the family's sentiments when sentencing the defendant. If appropriate, the judge would explain to the family members why he had differed from their approach by saying, for example, that there has to be uniformity in these matters and that what the family feels may be so out of kilter as to be inappropriate. But he could also turn to the defendant and say, "Look at what you have done to this family".

In another instance, if appropriate, the judge might explain that a fine is not compensation and does not mean that, for instance, a child's life is worth £100—one often hears accounts of people saying how much that kind of thing has hurt them. Likewise, the good judge will ensure that the defendant is not made to feel that he is being punished for the death where that is not a part of the prosecution's case.

After the trial, the family members should be offered a designated place in court to hear the sentence. The judge and all present should know where they are seated and they should be able to see the defendant.

Does the Minister agree that these measures might help? Would he think it a good idea if the Lord Chief Justice were to issue a practice directive to the effect that judges should be expected to receive favourably a statement from the victim's family, which they had been invited to write, setting out the views of the family members on how the crime had affected them and how sentencing should be approached? I understand that in, I believe, Western Australia, the practice has been initiated in the court system. It has been found helpful both to the family and in maintaining public confidence in the legal process.

The noble and learned Lord, Lord Woolf, has set a wonderful example. Very soon after being appointed Lord Chief Justice, he announced that, before he came to a decision about the release of the boys who killed Jamie Bulger, he wanted Jamie's parents to come and give him their views.

Several times during our conversation, the recorder said that, Courts are a public service. They are there to provide a service for all and in particular to the victims and/or their families, which is sometimes forgotten". If we keep that in mind, we may make progress. I look forward to some interesting and, I hope, encouraging ideas from the Minister.

7.53 p.m.

Viscount Simon

My Lords, I am delighted that my noble friend has raised this much misunderstood subject. Perhaps it is appropriate that I remind noble Lords that I am a civilian holder of a police class 1 driving certificate who goes on traffic patrol on a fairly regular basis and that I am a former tutor and examiner of advanced motorists.

The penalties for causing death on the road generally fall into two categories. First, if a serious charge is proffered under the Road Traffic Act, such as under Section 1 (causing death by dangerous driving) or Section 3a (causing death through drink or drugs) the maximum sentence is 10 years' imprisonment. The courts, however, tend to sentence at the lower end of the scale, which I believe might be through a lack of understanding on the part of trial judges. Secondly, there are offences which, at present, do not rely on a death as being a constituent part of that offence.

As we know, killing somebody other than by a vehicle on the road attracts a sentence of life imprisonment. Manslaughter is generally treated a great deal more seriously if a vehicle is not involved, whereas manslaughter on the road generally attracts a lesser sentence than the maximum tariff for the statutory offence under the Road Traffic Act.

Recently, some pressure groups have campaigned for an offence of vehicular death or causing death through driving without due care; I shall return to that at the end of my contribution. Although I have great sympathy with this stand, I guard against the evidential proof which would be required. Would, for instance, a momentary lapse of concentration warrant the same charge as that of a driver who consistently drives badly? Nevertheless, I think that any death on the road caused directly or indirectly by a driver of a vehicle in bad condition, with no MOT or insurance and so forth, should be sentenced more severely if death is involved.

One major problem with the current system is that police officers do not investigate death or serious injury on the road in any way closely resembling the detail given to that of a murder investigation, despite the horrendous cost of over £1 million for each road death. I have been told by an informed police officer that the total annual cost of road deaths and serious injuries is some 16 billion. Traffic officers do not, in the main, know their powers under the Police and Criminal Evidence Act and the Criminal Procedure and Investigations Act. Furthermore, they are not trained in interviewing and investigative techniques in the same way as their CID colleagues, even though the seriousness of the death is the same. This is not a criticism of the officers, but of the way in which they are trained.

Without proper investigation, the correct charges cannot be brought. Even when that is the case, the Crown Prosecution Service tends to drop the more serious charge for a lesser offence, such as driving without due care. But the family of a road death victim should be entitled to the same investigative procedures and charges as the family of a murder victim.

I think that there are three problem areas in respect of road death investigation. First, the standard of investigation is poor, with police supervisors unsure of the law. They have little training in the various techniques involved and are hampered by a lack of strategic guidance and support from ALPO. Secondly, the CPS does not appear to understand the complexities of road death and prefers the easier option of keeping cases in the lower courts. Thirdly, it seems that magistrates and judges are out of touch and have no knowledge of government and police road safety initiatives.

How can improvements be made in this area? A specialised road death investigation manual is currently being written which has no connection whatever with the murder manual. This will form the basis of compulsory training for all traffic supervisors, thus providing better and more informed officers. The Home Secretary should create a new parliamentary initiative on road casualty reduction so that chief constables should acknowledge, and be made to do something about, road casualties. The CPS should have improved training with cross-agency attachments with police officers and, finally, there should be awareness training for judges and magistrates.

I mentioned earlier that I would return to the matter of driving without due care. A couple of months ago, I was on traffic patrol on a motorway at night when the officers were called to a crash. In heavy traffic a slow-moving articulated lorry was being followed by another slow-moving articulated lorry. When the first vehicle slowed even further, the driver of the second lorry failed to notice. He ploughed into the back of the leading vehicle. Unfortunately, there was a transit-type vehicle between the two lorries. This was squashed between the two into a space of about three feet. The driver was killed instantly. As the driver of the second lorry had only a momentary lapse of concentration, with what offence would noble Lords charge him?

7.58 p.m.

Lord Davies of Oldham

My Lords, I too congratulate my noble friend Lord Williams of Elvel on introducing such an interesting Unstarred Question for discussion. I begin by declaring an interest as president of the Royal Society for the Prevention of Accidents.

Perhaps I may say that I have had some considerable difficulty in preparing for this debate. The reason is, I believe, clear enough. We all recognise that when tragedies occur on the roads and families suffer from the loss of their loved ones, there is a natural feeling that justice can be done only on the basis of the punishment meeting the dimensions of their loss. We all have sympathy with people in that situation.

When I introduced my mobile phones Bill last year, to which my noble friend referred, I was immediately made aware of the number of families who had lost loved ones as a result of driving that was careless in the extreme. In terms of other people's needs, it is also arrogant that a mobile phone should be used while a vehicle is being driven. That is why I hoped to persuade Ministers of the wisdom of introducing a specific offence. I have so far been unsuccessful, but I shall continue in my efforts.

It is not only a question of drawing attention to the issue, but also of seeking to improve behaviour on our roads. The essence of a debate of this kind is the question of what improves road behaviour in order to minimise accidents. We all know that, whatever we do, we cannot repair the damage caused by the worst accidents.

I am mindful of the enormous tragedies that beset families. However, I want to raise an obvious question which I am sure the Minister will bear in mind in replying. We must look at what improves driving behaviour. Is it the case that basing sentences on outcomes that meet a certain kind of rough natural justice, where the sentence is based on the outcome of the accident, would actually improve safety on our roads?

I have my doubts as to whether that would be the response of the wider public. An accident is different from any other event. It is not like murder, which is intentional. An accident is, by definition, an unintended consequence, and is therefore in a totally different category. Would our fellow citizens drive better if they thought that the law could perpetrate savage punishments upon them because, through a minor offence, they had caused an outrageous and unfortunate consequence? We must seriously consider that question.

On a minor aspect, in the past couple of weeks there have been prosecutions, for driving without due care and attention, of individuals who have been eating chocolate or drinking water while their vehicle has been stationary at traffic lights. We might think that any effort by the police that draws attention to driving that lacks momentary attention—which these two offences clearly did—would assist in the cause of road safety. But I am by no means sure. I fear that, when ordinary members of the public look at that kind of event, they regard the charge as having been brought for the wrong reasons. It appears disproportionate to the nature of the action. If we have that degree of public alienation from our courts and our law, if people feel that the law is not being enacted in a way that is consistent with a broader evaluation of drivers, I fear that, rather than increasing road safety through better driving, we reduce the possibility of achieving that. I hope, therefore, that the Minister will address himself to this issue.

I have no doubt that courts have an important role to play in the development of the Government's road safety strategy. We want consistency of sentencing across the country, which does not happen at present. As my noble friend Lord Simon identified, we want our courts to be fully aware of the strategies adopted by government and authorities to make our roads safer. As my noble friend Lord Williams indicated, although we have much with which to be satisfied in terms of our general road behaviour, we have a dreadful record in regard to accidents involving children. It is not surprising, therefore, that there is much emotion surrounding the question of the appropriateness of sentencing when accidents occur.

8.4 p.m.

Lord Monson

My Lords, I, too, am grateful to the noble Lord, Lord Williams of Elvel, for giving us the chance to debate this apparent gap in our law—a gap that worries a great many people, not least those whose friends or relations have been killed or seriously injured on our roads through the carelessness of other drivers.

I would guess that carelessness is the main target of the noble Lord, Lord Williams. Driving without insurance (which he cites) cannot in itself cause death or injury—although if the absence of insurance cover is due to the driver being incapable of passing a driving test, that is another matter. But essentially we are talking about what a lay person might term "criminal carelessness" unrelated to drink or drugs.

As the noble Viscount, Lord Simon, pointed out, it is true that careless car drivers who kill fare much better than the careless drivers of trains or speedboats, careless doctors or nurses who administer 10 or 100 times the correct dose, or careless builders, civil engineers or architects who kill. In theory, at any rate, all of these can be imprisoned for manslaughter whereas the careless driver who kills faces a maximum fine of only £2,500 plus a maximum of nine penalty points on his or her licence. That seems logically and morally indefensible. However, if, as many people demand, a new offence of causing death by careless driving were to be put on to the statute book, with a maximum penalty of, let us say, two years' imprisonment, I suspect that many road users who were guilty of the more serious offence of causing death by dangerous driving would volunteer to plead guilty to the lesser charge.

The police and the prosecuting authorities would inevitably be tempted to save the time, trouble and expense of a contested case by accepting such a plea. Even if they did not, a jury—statistically consisting mainly of motorists, consciously or subconsciously thinking, "There but for the grace of God go I"— would tend to plump for a "guilty" verdict on the lesser charge.

That danger could be avoided, I submit, by opting for a more modest change in the law—specifically by concentrating upon disqualification for those who kill through carelessness. I say that as someone who was instrumental, in the late 1980s, in getting the minimum period of disqualification for causing death by dangerous driving raised from one to two years—against strong initial opposition from both Front Benches.

Let us suppose that courts were to be empowered to disqualify for up to 12 months those guilty of causing death by careless driving. As well as providing some consolation for grieving families, would not such a move tend to encourage more careful driving? I note the point made by the noble Lord, Lord Davies. To some extent I agree with the noble Lord, but on this point I do not.

A more radical possible option would be to grant the power to impose a community service order involving work in a hospital casualty department. That might be considered at some future date.

Lastly, perhaps I may touch upon the perceptive and significant phrase with which the noble Lord, Lord Williams, ends his Question: "death or serious injury". If someone is hideously mutilated by another person's dangerous driving, his or her life can be ruined. If, worse still, the person is turned into a "human vegetable", it can mean a fate almost worse than death for their families. Yet the maximum penalty that can be imposed in England and Wales is two years' imprisonment. That is not so in Northern Ireland, where dangerous drivers can be sentenced to 10 years in prison for causing "grievous bodily injury", the same penalty as applies for causing death by dangerous driving.

I believe that it would be widely welcomed if the Government were to bring the law in England and Wales into line with that in Northern Ireland in this respect. I look forward to hearing encouraging noises from the Minister when he replies.

8.8 p.m.

Lord Berkeley

My Lords, I am probably ill-advised to be in speaking in this debate. When I was cycling down Marsham Street this afternoon I had to use my mobile phone and nearly bumped into my noble friend the Minister! I am not sure whether that would have been covered by the Bill proposed by my noble friend Lord Davies, but I apologise and I shall not do it again.

My concern about the issue which my noble friend Lord Williams of Elvel has so generously raised is a general concern about enforcement—whether for major or minor offences, parking or bus lane offences, or the more dangerous offences cited by another noble Lord.

I was shocked a few months ago by the case of a lorry driver who killed a child. As noble Lords have said, sadly that is not unique. He was found to have been driving for his 12th consecutive hour. He had several hundred tachograph cards available for fiddling the system. He was convicted. Charges of corporate manslaughter were brought against the owner of the small company for allowing him to do that; it was clear that the company had knowledge of what he was doing. For the death of the child the driver was fined a few hundred pounds, I believe, and the corporate manslaughter charges were dismissed.

I do not wish to comment on corporate manslaughter. I know that it is an issue the Government are considering. But, as the noble Lord, Lord Monson said, surely corporate manslaughter should apply equally between transport modes. If it is appropriate for one form of transport it should be appropriate for another.

On the whole people are very safe in motor vehicles. We all appreciate the way in which cars are designed to improve the safety of the occupants. Lorries and coaches, too, have gone a long way in this direction. Unfortunately, by their weight and speeds they become lethal weapons against pedestrians, cyclists or other smaller vehicles. That has to be recognised in sentencing and in the attitude taken by the police, magistrates and others. From discussions with the Parliamentary Advisory Committee for Transport Safety (PACTS), I detect a lack of knowledge about offenders, and a lack of communication between the different agencies and, from my own experience, a lack of enforcement.

I shall support the amendments to the Transport Bill proposed by the noble Earl, Lord Attlee, to widen enforcement of lorry regulations. However, I am concerned with the wider issue. The police say that enforcement is not a core duty. I do not know what is a core duty in relation to traffic. Last year I raised the question of wide loads on the motorway and asked why the Highways Agency should not manage the movement of those loads. The answer was that it is a police duty. Unfortunately communication between the police and the driver of the heavy load is the equivalent of the red flag. Sometimes they do not even have radios. Sometimes there is little communication between one police force and another.

Police should use the powers where necessary to stop vehicles. Local authorities or the Highways Agency should have powers to enforce regulations where police expertise is not required. A proportion of the fine or charge should be made available to the police and/or the local authority or the Highways Agency to enable them to provide proper resources to undertake that enforcement.

It is essential that people realise there is some chance that they will be caught and convicted if they commit an offence. Sadly, I do not believe that to be the case at present.

As regards increasing penalties, the amendment of the noble Earl, Lord Attlee, will refer to impounding lorries for certain offences. Why not impound cars for some offences? The whole point is to inconvenience people and prevent them from using the vehicle and again committing the offence. I fail to understand why such a measure should not be considered for more serious offences.

As my noble friend Lord Simon said, the police, magistrates, judges and others involved in such cases must realise that death or injury caused on the road is just as serious, and just as much to be deprecated, as similar offences not involving motor vehicles. Such offences must not be treated as a special area of which they might have personal knowledge. I hope that such a consideration does not influence them; I am sure it does not. I look forward to hearing from the Minister.

8.14 p.m.

Baroness Thomas of Walliswood

My Lords, we are indebted to the noble Lord, Lord Williams of Elvel, for raising this important subject. He has not only given Members of this House an opportunity to make some important points and to give us the benefit of their expertise, he has also given the Government an opportunity to tell us what they propose to do about the bizarre legal framework for dealing with, or not dealing with, deaths and injury resulting from road accidents in this country. I entirely support the concluding words of the noble Lord, Lord Berkeley.

The motorist is in a unique position in this country. Employers are responsible for the health and safety of their employees and can be obliged to compensate them if an accident is shown to be the fault of the employer. A housewife who kills or injures someone with a carelessly handled knife will not be charged with reckless behaviour when in charge of a knife. She will more probably face a charge of manslaughter or grievous bodily harm. The court will then determine the degree of culpability and a suitable level of punishment.

Even the National Health Service sometimes admits negligence and compensates people for injury or loss of a loved one in the course of intervention in hospital. Only the motorist can escape censure after he or she has killed someone as a result of his or her negligence when driving. It is nearly true that only the British motorist is in this privileged position.

It is a bizarre situation which has been a matter for criticism over 50 or so years. Occasionally the issue arises in the press as a specific case hits the headlines somewhere or other. Since 1990, RoadPeace has campaigned consistently and effectively for charging and sentencing motorists in a way which more truly reflects their responsibility, and for better treatment of victims and their families. I should declare an interest as a member of RoadPeace.

It is breathtaking to learn that the founder of RoadPeace, Brigitte Chaudrey, whose son was killed as a result of someone going through a red light, was told by an acquaintance, "It was an accident. Haven't you ever gone through a red light when you shouldn't have done so?" That attitude is totally unacceptable. I disagree with the remarks of the noble Lord, Lord Davies of Oldham, about popular opinion. There is a considerable groundswell of opinion that motorists should be treated like anyone else when they kill or injure another person.

The noble Lord, Lord Williams of Elvel, described how the practice of the courts is beginning to change. This may be in part a result of the combination of good campaigning and public opinion to which I have referred. It demonstrates that things can happen even without a change in the law.

I take the point of the noble Lord, Lord Monson, that introducing a more minor offence involving death or injury might not achieve the objective sought by those who are campaigning about, or feel strongly on, the issue. We may need to enforce the major offences already on the statute book rather than seeking to institute a more minor offence which would be easier to bring to court.

Many speakers have made valuable contributions about the police service and the attitude of the police to road accidents. It is bizarre that the police treat a death on the road as being less worthy of investigation than a death in the home. What is the difference? It is still the death or injury of a human being. That is the major fact to which everyone should give consideration.

I urge the Minister to bring forward changes in legal practice and to encourage a different attitude by the police, perhaps to their core responsibilities. There is a list of things we can do to ensure that this desperate situation can be righted. I look to the Minister to treat this issue with the due seriousness that it commands.

8.20 p.m.

Earl Attlee

My Lords, we are grateful to the noble Lord, Lord Williams of Elvel, for introducing a debate on such an important issue with his usual skill. I must declare an interest as a qualified army driving instructor who may benefit indirectly from one of my suggestions.

The noble Lord's timing is perfect. He raises this issue just before Committee stage of the Transport Bill, with plenty of time for noble Lords to draft suitable amendments. Very little provision is made for road safety in the Bill, and I am aware that many noble Lords are keen to address that matter.

Before I turn to my substantive comments, I cannot resist teasing the noble Lord slightly on the drafting of his Unstarred Question. We on these Benches regard the failure to have insurance as a very serious matter. Clearly, one's vehicle must be properly insured so that if one has an accident any victims can be adequately compensated. Further, it is not clear how the failure to have insurance causes an accident, apart from the provisions of Murphy's law.

The noble Lord reminds us that there is a disproportionate number of accidents involving child casualties, which is a major concern to noble Lords on these Benches. The question is: what penalties should be imposed in these tragic accidents? Should we consider the consequences or causes of the accident alone? It is important to remember that nothing that we do in life is as fraught with danger as driving a motor vehicle. For instance, in a factory very few activities are anywhere near as dangerous as driving a motor vehicle. If there is any hazardous activity in a factory steps are taken to reduce the risks.

Noble Lords have suggested that the penalties are too weak. Let us take the offence of driving without due care and attention. In the event of an accident that offence is easy to prove in the courts. However, the penalties are relatively minor, even where the results are tragic. A good example of the difficulty is an accident in traffic. A driver swerves to avoid the car in front, which perhaps stops a little too quickly, but is not fully aware of the traffic situation, in particular the presence of a cyclist on his nearside. He knocks over and seriously injures the cyclist. That accident has been caused by a momentary lapse of judgment. Should we lock up the driver and throw away the key just for a momentary lapse of judgment? At the other end of the scale is the offence of dangerous or reckless driving. The problem is that that offence is quite difficult to prove. I believe that in such cases it is necessary to show that the driving in question was continuous and that the driver knew, or should have known, that what he was doing was dangerous. I and other noble Lords have some anxiety about changing the burden of proof in cases involving children. One can continue that process in all branches of the law. Where would one stop?

The noble Lord, Lord Williams, and the noble Viscount, Lord Simon, touched on the dangers arising from the operations of commercial vehicles, in particular a wheel becoming detached. During the passage of the Transport Bill we shall attempt to make improvements in the law as it relates to the operations of commercial vehicles. We on these Benches are very interested in road safety improvements. The noble Lord, Lord Berkeley, raised a number of somewhat peripheral issues relating to abnormal loads, and the Minister will be interested to hear that I may table some suitable amendments also in that area. Thinking out loud, other possibilities that could be considered during the passage of the Transport Bill are the creation of a new offence of losing directional control of a motor vehicle. It means that the mounting of a footpath would be conclusive evidence of the offence. Unforeseeable loss of traction due to oil or isolated ice might be a legal defence. If that offence were adopted a statement such as, "I just found myself on the pavement", would almost prove the commission of the offence. The advantage of such a new offence is that it could attract more severe penalties and be easier to prove.

I suspect that the Minister will be reluctant to create a new offence. I believe that accidents are caused by lack of skill and awareness of danger, as I have said in earlier debates. During the passage of the Transport Bill I shall tempt the Minister by moving an amendment relating to the compulsory retraining or retesting of errant motorists. Noble Lords will be aware that the law provides for the compulsory retesting of drivers but only in certain cases. We could introduce retraining under a statutory scheme. If offenders did not take the training seriously they would not qualify for the necessary certificate of training, and in time—perhaps after six months—that could result in the automatic loss of driving licence. This is not necessarily our policy, but it is something we should consider. Noble Lords are aware of the problems of novice and young drivers which we must also consider. I shall be very interested to hear the Minister's response to my suggestions.

8.26 p.m.

The Parliamentary Under-Secretary of State, Department of the Environment, Transport and the Regions (Lord Whitty)

My Lords, I offer congratulations to my noble friend Lord Williams on introducing this debate, which has obviously stimulated a good deal of interest on the part of other noble Lords. The Government's commitment to road safety is apparent from the Road Safety Strategy introduced a few weeks ago. It may assist if I mention two follow-ups to that strategy which are relevant to the issues with which we are concerned today. In that strategy we refer to the need for better enforcement, to which my noble friend Lord Berkeley and others referred. In particular, we are concerned that serious road traffic offences should merit strong penalties and provide a real deterrent to unsafe driving. At the same time, we want to ensure that many other offences which in themselves may not have life-threatening implications are nevertheless properly addressed.

As a follow-up to the strategy a review of all these penalties is now being undertaken. Consideration is being given to a wide range of road traffic offences, including those involving death and injury. Our intention is to ensure that the penalties fully reflect the nature of those offences. Those penalties may be innovative, as the noble Lord, Lord Monson, and my noble friend Lord Berkeley said. It is also important to look at penalties as a whole to avoid the risk of anomalies or inconsistencies arising in the road traffic area and more widely. This co-ordinated approach is now being addressed by the Home Office with support from my own department. Before the end of July we shall issue a consultation paper to which many of the points raised this evening will be relevant. Therefore, the concerns raised by noble Lords are being addressed by the Government.

Another parallel aspect of the follow-up to the road safety review is further research, particularly into the operation of the law on dangerous and careless driving, which has been commissioned by my department with the TRL. That study began in May 1998 and the report will be submitted later this year and should provide us with a great deal of useful information to decide whether changes in the law, or its administration, are needed in this rather complex area.

As the various contributions have indicated, this is not a straightforward issue. The public concern about sentences passed in road traffic cases where death or serious injury occurs reflects the devastating effect which such accidents can have on the victims and their families. We all sympathise with the many cases which have been referred to here, and the Road Safety Strategy is designed to reduce that toll on our roads, particularly among child pedestrians.

As my noble friend Lord Williams pointed out, in such cases the defendant may have been prosecuted, convicted and sentenced for a relatively minor offence which does not relate specifically to the occurrence of death or serious injury but where it is not 'apparent that the court has had regard to the consequences which are much more serious than the offence itself. We do not dispute the seriousness of those consequences. However, there is a balance between culpability and consequence. As we provide appropriate sanctions for unlawful behaviour, a key purpose of the criminal law in this as in other areas is to establish the extent of the offender's culpability. The Government have the duty to make available to the police, to the CPS and the courts guidance on how that degree of culpability should be established. Clearly, where someone has driven in a careless, reckless or dangerous manner, with or without fatal consequences, that should be taken very seriously by the courts.

However, difficulties arise where the consequence is substantially out of proportion to the degree of culpability. A driver may have acted carelessly rather than recklessly, and certainly not intentionally, or may simply have been unsighted or have had no warning. However, his behaviour may have disproportionate effects and, in many cases, devastating and fatal effects. Therefore, I believe that it is right that we have a hierarchy of offences which relate to culpability. I believe that the noble Baroness, Lady Thomas, exaggerates the divisions. I accept that there are differences. However, in all areas, either by the offence or by the decisions of the court, degree of culpability is a relevant issue and is taken into account, both in the nature of the offence and in the sentencing.

As my noble friend Lord Williams mentioned, of late court judgments have changed in this area. In the case of Morling, to which I believe he referred initially, in 1977 it was decided that it was proper in all such cases for a court to have regard to the fact that a death had resulted from the manner of driving and to have regard to the possible consequences of taking the risk involved. In the other well known case of Simmonds last year, to which my noble friend referred explicitly, the court confirmed that, while culpability or criminality remain the primary consideration, the sentencing judge clearly was entitled to bear in mind that he was dealing with an offence that led to death.

I agree with my noble friend Lord Williams and with other noble Lords that all the circumstances of each case—the degree of culpability and the consequences—should be set down in court. That is the purpose of the CPS's advice to prosecutors. However, it is also important that each case is viewed on its merits with regard to all those considerations.

However, in the context of the review to which I referred, and on which the consultation will shortly be issued, we shall give serious consideration to the possibility of what further steps may be required, either in guidance or in changes to the law in respect of driving offences. Before making a final decision, we shall also take into account the outcome of the TRL research, to which I referred.

The noble Baroness, Lady Darcy de Knayth, focused specifically on the level of penalties involved. Of course, as I have already indicated, I am aware of the degree of distress that relatively low penalties for offences which involve death and serious injury cause to families and others. A higher maximum penalty, which she advocates, would in my view allow courts greater scope in determining the level of sentences. I believe that noble Lords may rest assured that the penalties for causing death by dangerous driving and other offences will be addressed in the course of the review to which I referred.

Of course, it is not sufficient to say that we shall increase the maximum level of the offence because that level does not necessarily determine the average level that the courts will impose. Nevertheless, it gives greater flexibility in cases where higher culpability or special circumstances are involved.

The noble Baroness also referred to the question of statements to the court by road traffic victims or their families. That is also a complex issue. However, noble Lords will know that my right honourable friend the Home Secretary announced on 26th May the introduction of the victim personal statements scheme. That will provide victims of crime, and their relatives in homicide cases or carers in offences against children, with the opportunity to explain the effect that the crime has had on them. The statements will be considered at every stage of the criminal justice process. I shall bear in mind the suggestion by the noble Baroness, Lady Darcy de Knayth, that we should extend that to road traffic offences. The legal procedure would involve difficulties. Nevertheless, we shall consider the scope involved.

In relation to new offences, which my noble friend Lord Williams raised and, indeed, upon which the noble Lord, Lord Monson, my noble friend Lord Simon and the noble Baroness, Lady Thomas, commented, noble Lords will probably recall that the North Committee carried out a comprehensive review of road traffic law in 1988. In particular, it addressed the law relating to road traffic offences that had not developed in a satisfactory manner. It introduced various changes in the Road Traffic Act 1991, principally the new offences of dangerous driving and causing death by dangerous driving.

The committee had given detailed consideration to the possibility of creating a new offence of causing death by careless driving. However, at that point it concluded that it would be wrong to impose severe penalties on a driver for unforeseen tragic consequences of his or her actions. Hitherto, that view has been supported by successive governments. However, as I indicated, we are keeping the judgment under review. We shall certainly take into account the findings on that whole area of the TRL research, which will be reported in a few months' time.

In that context, my noble friend Lord Williams also referred to involuntary manslaughter. I believe that noble Lords will be aware that the Law Commission's proposals on reform of the law in this area recommended, among other things, the abolition of the offence of involuntary manslaughter and its replacement by two new offences of reckless killing and killing by gross carelessness. That may well have a bearing on the future development of road traffic Acts if it is put into law more generally.

Various other issues were referred to in the course of the debate. My noble friend Lord Davies referred once again to mobile phones, not knowing about the experience of the noble Lord, Lord Berkeley, earlier today (over which I shall pass rapidly). It is still the case that the police feel that under existing legislation in this area they have sufficient powers to deal with the problem.

The noble Earl, Lord Attlee, referred to the matter of retesting and rehabilitation. Extremely successful use has been made of those in relation to drink-drive offences where the offender makes a commitment to attend rehabilitation courses. That experience contributes to a more general development of retraining schemes which can be linked to mandatory retesting and which may prove to play a significant part in the new penalty structure. I confirm that we are looking at the matter in that context.

My noble friend Lord Simon referred to the new approach to investigation and the new manual being used by the police in this area. Therefore, the police are attempting to upgrade investigation of road traffic accidents.

I shall check Hansard and if I have failed to cover certain points I shall write to noble Lords. Once again, I thank my noble friend Lord Williams for initiating this significant debate. I believe that the review of penalties, which is to take place in July, will perhaps offer the opportunity to return to this issue.