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Death By Dangerous & Careless Driving Scotland

Causing a fatal road accident is the most serious road traffic offence. If there’s sufficient evidence of blame, criminal charges are likely. However, if there is evidence which lessens the blame, you may have more options than you think.

There are 4 different offences in the broader offence of causing death on the roads: causing death by dangerous driving; causing death by careless or inconsiderate driving; causing death by careless driving when under the influence of drink or drugs; and causing death when unlicensed, disqualified or uninsured. The main factor that varies for all of these categories is how much the offender is to blame.

THE OFFENCES

  1. I. DEATH BY DANGEROUS DRIVING

A person who causes death of another person by driving a mechanically propelled vehicle dangerously on a road or other public place is guilty of an offence. This occurs when you are driving in a manner that falls considerably below the minimum acceptable standard expected of a competent driver and would also be obvious to a competent driver that there is a serious risk of personal injury or damage to property. The consequence (i.e. the fatality) is what makes this offence so serious.

To be charged, there must be a clear risk of danger and obvious blame. For blame to be found, the Court must consider what you personally were aware of at the time, and what you could’ve been expected to be aware of.

Examples of dangerous driving include:

  • Speeding, racing, or driving aggressively;
  • Ignoring road signs or traffic light signals;
  • Overtaking recklessly;
  • Driving when unfit (e.g. with a medical issue or injury);
  • Driving while distracted (e.g. using your phone).
  1. II. DEATH BY CARELESS OR INCONSIDERATE DRIVING

Causing death by careless or inconsiderate driving is defined as driving at a standard below that of a prudent driver, and this failure to meet standards causes the death of another. For inconsiderate driving, the person drives without reasonable consideration for other persons.

This offence is particularly vague, as the level of blame can vary. From being borderline dangerous driving, to being as little as momentarily distracted by your car radio – the consequences can differ immensely.

Examples of conduct that may be classed as careless include:

  • Driving too close to another vehicle;
  • Accidentally driving through a red light; and
  • Turning into the path of another vehicle.

Inconsiderate driving could be:

  • Flashing your lights to force other drivers to give way;
  • Misusing lanes; and
  • Unnecessarily staying in an overtaking lane.

As always, there can be aggravating factors that make the consequences worse. This could be where the accused displayed irresponsible behaviour following the offence, like claiming that the victim was responsible.

  • III. DEATH BY CARELESS DRIVING WHEN UNDER THE INFLUENCE

The level of blame is higher when death is caused by careless driving when under the influence, because of the presence of drink or drugs (including prescription ones). The test is the same as above, the difference being that the presence of alcohol or drugs is found.

The penalties are relatively serious. They include up to 14 years in prison and/or an unlimited fine; mandatory disqualification for a minimum of 2 years; and a compulsory extended retest.

  1. IV. DEATH WHEN UNLICENCED, DISQUALIFIED OR UNINSURED

With this offence, blame arises from the fact that you are driving when you are not allowed to. The maximum sentence is 2 years. This is reserved for rare cases, though, where blame is exceptionally high.

  1. V. HOW YOU ARE CHARGED

There must be clear evidence that your driving fell below the required standard, and that this caused the fatality. This can sometimes be difficult where there was more than one contributary factor. For example, if there is a series of collisions culminating in an accident; the first car is not directly responsible for the death although they triggered the sequence of events. This is why knowing the background of a case is vital.

DEFENCES AND MITIGATING FACTORS

  1. I. DEATH BY DANGEROUS DRIVING

Some commonly run defences may be able to lessen your sentence if you are charged with causing death by dangerous driving.

Automatism is one. This is where something happens that means you suddenly lose control of your actions. For instance, a sudden seizure. This requires a lot of evidence. Once you raise it, though, it’s for the prosecution to prove beyond reasonable doubt that you did in fact have control.

Necessity is also a possible, but difficult, defence to establish. You must show the commission of the crime was necessary or reasonably believed to be so for the purpose of avoiding or preventing death or serious injury to you or another. In addition, the reasonable person must consider the commission of the offence a reasonable and proportionate response to the danger.

Other circumstances may also have an impact. For example, an unexpected mechanical defect with the vehicle which causes a total loss of control.

If you’ve been charged with this offence and think your circumstances merit a lesser sentence, contact an experienced road traffic lawyer.

  1. II. DEATH BY CARELESS DRIVING

Certain factors surrounding this offence may lessen the blame on the offender. This includes:

  • A lesser degree of carelessness;
  • Personal circumstances (e.g. a good driving record);
  • Showing remorse;
  • Contributory fault by the victim;
  • where the driving was in response to a genuine emergency; and so on.

PENALTIES

All sentences include a minimum period of disqualification from driving followed by a compulsory extended re-test (for death by dangerous driving or death by careless driving under the influence) or a discretionary re-test (for causing death by careless driving or while unlicensed, disqualified or uninsured).

  1. I. DEATH BY DANGEROUS DRIVING

The main penalty is up to 14 years imprisonment. This comes with a mandatory minimum 2-year disqualification period and the requirement to pass an extended driving test before regaining a licence.

This is particularly severe because of the gravity of the offence. Although it is important to remember that you will not always get the maximum imprisonment period; the length of time imposed almost always depends on the evidence against you and the circumstances. The Court is given discretion to determine the most appropriate outcome.

  1. II. DEATH BY CARELESS DRIVING

Death by careless driving carries a maximum prison sentence of 5 years and an obligatory disqualification for at least 1 year. This comes with a discretionary retest.

Some cases will be on the borderline between this and dangerous driving, meaning that the penalty may be closer to the maximum to reflect the gravity of the offence.

HOW IS THE SENTENCE CALCULATED?

In determining the sentence, the Court has the intolerable job of weighing up the huge harm of the loss of life with the seriousness of the act or omission of the accused. You must remember that the sentence reflects the level of blame of the offender, not the value of the victim’s life.

Often, if the offender pleads guilty the sentence will be reduced by up to a third depending on how early the plea was made.

  1. I. DEATH BY DANGEROUS DRIVING

There are a number of factors that the Court will take into account when determining a sentence for this offence. This normally includes things like similar previous convictions, any attempt by the driver to avoid punishment, other offences committed at the same time, and aspects of the driver’s attitude and character such as any attempts to avoid punishment. Investigations can be extremely complicated, and experts and witnesses will be required to give opinions and statements.

The Court tend to try and split conduct into three categories. The maximum sentence will usually be given to driving that suggests a deliberate disregard for road traffic rules, or a significant intake of alcohol that severely impacted their ability to drive. A slightly less severe sentence will be awarded to those driving at excessive speed or allowing themselves to be avoidably distracted. The lowest sentence is left for situations like attempting to drive with little or no sleep, speeding, and similar acts.

  1. II. DEATH BY CARELESS DRIVING

For this offence, Scottish Courts tend to get guidance from the Definitive Guide of the Sentencing Guidelines Council in England and Wales. This gives details on how to determine what circumstances merit what sentence.

Sometimes, where the offender is not considered to pose a danger of re-offending and the level of fault is low, something like a community sentence may be more appropriate. In cases which have even lower levels of fault, even just a fine may be sufficient.

WHAT TO DO IF YOU’RE ACCUSED

If you are cautioned, charged, or being investigated for any of the offences above its fundamental that you seek legal representation as soon as possible. This can help important evidence be preserved to support a defence. Even though you may be accused of being at fault, these offences are usually full of complications which can sway the results of the case either way. Our team at Jones Whyte can provide you with the right advice and legal services. Contact us at This email address is being protected from spambots. You need JavaScript enabled to view it..

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