CAUSING DEATH BY DRIVING
This document sets out the policy adopted by the Crown Office and Procurator Fiscal Service in prosecuting all offences which involve causing death by driving. These are:
1. Murder and Culpable Homicide;
2. Section 1 (causing death by dangerous driving) and Section 3A (causing death by careless driving when under the influence of drink or drugs) of the Road Traffic Act 1988 ("the 1988 Act");
3. Section 2B of the 1988 Act (causing death by careless, or inconsiderate, driving); and
4. Section 3ZB of the 1988 Act (causing death by driving: unlicensed, disqualified and uninsured drivers).
These are the most serious offences resulting from road traffic incidents and they have a devastating effect on the friends and families of victims. We investigate and prosecute these offences with the highest priority. No decision on what action to take in relation to any of the offences referred to in this document will be made until full instructions have been received from Senior Crown Counsel
[1].
1. Murder and Culpable Homicide
In some circumstances a fatal road traffic incident may give rise to a prosecution for murder or culpable homicide. All prosecutions for murder and culpable homicide are taken in the High Court.
2. Section 1 (causing death by dangerous driving) and Section 3A (causing death by careless or inconsiderate driving when under the influence of drink or drugs) of the 1988 Act
These offences attract a maximum sentence of 14 years on indictment in the High Court and 5 years on indictment before a Sheriff and Jury. We first made our prosecution policy in relation to these offences public in January 2003.
There is a presumption that all prosecutions of offences under section 1 or section 3A of the 1988 Act will be taken on indictment in the High Court. Proceedings will only be taken on indictment before a Sheriff and Jury where there are special mitigating circumstances.
3. Section 2B of the 1988 Act (causing death by careless, or inconsiderate, driving)
This offence is introduced by the Road Safety Act 2006 and comes into force with effect from 18 August 2008 for all fatal road traffic incidents occurring on or after that date. The offence attracts a maximum sentence of 5 years on indictment before a Sheriff and Jury and 12 months on summary complaint.
Careless, or inconsiderate, driving covers a very wide range of driving behaviour and different levels of culpability on the part of offenders. Our prosecution policy takes this into account as well as having regard to all relevant surrounding circumstances.
There is a presumption that all offences under section 2B of the 1988 Act will be prosecuted on indictment before a Sheriff and Jury. However, summary proceedings may be taken in certain circumstances. In deciding whether summary proceedings are appropriate Senior Crown Counsel will take into account the culpability of the offender and whether there are significant aggravating or mitigating factors.
The
aggravating factors to take into account include:
¨ Other offences were committed at the same time, such as driving other than in accordance with the terms of a valid licence; driving while disqualified; driving without insurance; driving while a learner without supervision; driving a stolen vehicle;
¨ The accused has previous convictions for motoring offences, particularly offences that involve bad driving;
¨ More than one person was killed as a result of the offence;
¨ Serious injury was caused to one or more persons in addition to the death(s);
¨ Accused behaved in an irresponsible manner, such as failing to stop or falsely claiming that someone else was responsible for the collision.
The
mitigating factors to take into account include:
¨ The accused was seriously injured in the collision;
¨ One or more of the victims was a close friend or relative;
¨ The actions of the victim(s) or a third party contributed to the commission of the offence;
¨ The offender gave direct, positive, assistance at the scene to victim(s).
4. Section 3ZB of the 1988 Act (causing death by driving: unlicensed, disqualified, or uninsured drivers)
This offence is introduced by the Road Safety Act 2006 and comes into force with effect from 18 August 2008 for all fatal road traffic incidents occurring on or after that date. The offence attracts a maximum sentence of 2 years on indictment before a Sheriff and Jury and 12 months on summary complaint.
All contraventions of section 3ZB of the 1988 Act where the offence is committed by an accused driving while
disqualified from driving will be prosecuted on indictment before a Sheriff and Jury.
There is a presumption that contraventions of section 3ZB of the 1988 Act where the offence is committed by an accused driving while
unlicensed or uninsured will be prosecuted on indictment before a Sheriff and Jury. However, summary proceedings may be taken in certain circumstances. In deciding whether summary proceedings are appropriate Crown Counsel will take into account whether there are significant aggravating or mitigating factors.
The
aggravating factors to take into account include:
¨ The accused has previous convictions for analogous offences or offences of bad driving;
¨ More than one person was killed as a result of the offence;
¨ There was serious injury to one or more persons in addition to the death(s);
¨ The accused showed irresponsible behaviour such as failing to stop or falsely claiming that someone else was driving.
The
mitigating factors to take into account include:
¨ The decision to drive was brought about by a proven and genuine emergency falling short of a defence;
¨ The offender genuinely believed that he or she was insured or licensed to drive;
¨ The offender was seriously injured as a result of the collision;
¨ The victim was a close friend or relative;
¨ The actions of the victim or a third party contributed to the offence;
¨ The offender gave direct, positive, assistance at the scene to victim(s);
¨ The offender has an exemplary driving record.
[1] Crown Counsel consists of the Lord Advocate, the Solicitor General and the Advocates Depute who prosecute the most serious cases in the High Court.