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The Earl of Mar and Kellie: My Lords, I have listened with great interest to the noble Earl and I always enjoy following him. I believe that greater recognition is necessary both for victims and their families, and I certainly think that a personal appearance is essential in this type of case. But, like the noble Earl, I am concerned about "intent". It is clear that illegal driving, drink driving, drug driving, dangerous driving and reckless driving are all activities in the context of intent. If I were to return to my one-time occupation as a criminal justice social worker, I would be able to sit down and talk those through with someone. But it is very difficult to talk through the idea of doing anything carelessly and tying it in with intention. So I think that people will be keener to argue the point, resulting in more trials as defendants try to establish that, whatever had happened, there had been no intention.

Lord Lyell of Markyate: My Lords, I have very grave reservations indeed about this amendment and about making causing death by careless driving an imprisonable offence. But first perhaps I can indicate that in no way am I soft on bad driving. Indeed, I
 
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congratulate the Government on their campaign against speed. During their eight years the Government have done a great deal to bring home to us the dangers of excessive speed in driving. I support them in that and it has been brought home to me personally—though fortunately not by too many convictions. None the less, the Government are absolutely right about speed. When I was Attorney-General and Solicitor-General, my noble and learned friend Lord Mayhew and I made it our business to see that causing death by dangerous driving was properly dealt with by the courts through bringing a series of Attorney-General's references before the Court of Appeal. The level of sentences went up markedly during those 10 years. It is quite right that the offence of causing death by dangerous driving should receive a condign penalty.

However, to create an offence of causing death by careless driving is fundamentally wrong as a matter of justice. The Minister said that nearly all the lawyers who had referred to this—or at least the ones he named—had grave reservations about it, and they are absolutely right. But that is not because we are lawyers. It is because we believe in the importance of justice, as I am sure the Minister does. The difficulty is that I cannot immediately think of any area in our system of justice in which custodial sentences are imposed unless the wrongdoing has been the result of either intent or recklessness.

We deliberately took the word "recklessness" out of the legislation on bad driving for technical reasons, but as my noble friend Lord Attlee and the noble Lord, Lord Monson, have rightly pointed out, there is at present on the statute book a fundamental distinction between dangerous driving and causing death by dangerous driving and careless driving. In order to be guilty of causing death by dangerous driving—and this bears repetition—Section 2A(1) of the 1988 Act states a person may be guilty of causing death by dangerous driving if:

"(a) the way he drives falls far below what would be expected of a competent and careful driver, and

(b) it would be obvious to a competent and careful driver that driving in that way would be dangerous".

In other words, you are doing something that you know you ought not to be doing. Whereas with careless driving—and I support Amendment No. 29 because it rightly enacts what is indeed the common law—all that is required is that your driving should fall below that of a normal competent and careful driver. But, by definition, no one sets out to drive carelessly. If they set out to do so, they would be doing something deliberate, whereas it is the very essence of carelessness that it arrives, unfortunately, by accident.

I fully understand the position of the parents and families of victims—indeed, many in this House will be in that position—but when you are dealing with justice, it is the culpability that must govern and not the consequence, which tragically can be fatal. The amendment would deny the opportunity for the court adequately to indicate the culpability. It is an absolute essential of British justice that the prosecution must
 
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prove the case and it must state what case it is seeking to prove. If you bring a case of causing death by dangerous driving, you know exactly what the ingredients are. If there is then an alternative verdict of causing death by careless driving—which relates simply to falling below the normal standards of a competent driver—you do not know how much has been proved. As the Minister said, I suppose you might surmise that it is on the cusp of dangerous driving, but what is the defendant to do? Somehow, in a practical way, he has to try to prove his innocence on the lower part of the charge. Yes, he can be sent to prison for up to 14 years, but that is not very likely unless there are serious aggravating circumstances—in which case he would do well to plead guilty as quickly as possible. The amendment seeks to introduce a five-year prison sentence—and the amendment of the noble Lord, Lord Monson, seeks a three-year prison sentence—but for the vast majority of citizens any prison sentence at all is a very frightening and worrying consequence. We know that we do not set out to do something criminal—if we do, we get what we deserve—but under the amendment a prison sentence can be imposed through pure accident, pure carelessness, and, sadly, we can all be guilty of that. What issue will be dealt with in a causing death by dangerous driving offence when there is going to be an alternative remedy? Or, indeed, what issue will be dealt with if you bring only a case of causing death by careless driving, which carries a sentence of up to five years?

6.15 pm

Let me give the example—and I think that this is one of the matters which worries families—of where you are driving down the kind of road which you find all round London near here, with parked cars down either side. We are now aware—partly as a result of the Government's wise governance in this area—that 30 miles an hour is probably too fast a speed at which to go down that kind of road. But then, by mishap, someone—an elderly person, a young child or just an ordinary person—steps out from between the cars and, because you are going just a little too fast, there is a fatal accident and you have caused death by careless driving. But that brings in the question of causation.

According to the law books, "causation" is fairly irrelevant as far as causing death by dangerous driving is concerned—the course of conduct is there and the driving falls far below the required standard—and it is only in the rarest of cases that causation could even be argued by the defence. But in careless driving cases there is often a multitude of causes for the death and the court will have to decide that issue. But the defendant may not know clearly what is being alleged against him. Will it be down to the prosecutor to indicate the nuances and what he seeks to prove? We expect it to be down to the proper ingredients of the offence. There has to be clarity and certainty.

With great respect to the Government and to the consultation processes, I have serious worries about being told what the public believe. The public may be
 
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right, but it is very difficult for them to take into account all these matters in relation to consultation. In my view the amendment is a grave error. I am sorry it has been brought forward on Report because it would have genuinely benefited from being teased out in the kind of debate that we would have had at a full Committee stage. I very much hope that the Government will think again about these proposals and not press them.

Viscount Tenby: My Lords, I rise to oppose Amendment No. 19. In doing so, I declare an interest as a magistrate, now quite obviously on the supplementary list. The Minister was very fair when he said that he had approached various legal organisations and that they had not signified their universal approval. That is quite right. It is certainly true of the Magistrates' Association, although I cannot speak for or represent that body in any way.

I oppose the amendment with a heavy heart because nothing is more heartrending than the grief of those who have been devastated by the death of a loved one as a result of an act of folly on our roads. Heaven forbid that any of us should have to go through that. My concern, however, is that the amendment will only raise the hopes of the relatives of those who have so sadly been killed, probably only to see those hopes dashed at a later stage. As we have heard, most though not all drivers who cause death by driving do so as a result of some momentary aberration—tiredness, bad judgment, lack of attention at a critical moment, you name it—and in the vast majority of cases they will live with that folly for the rest of their lives and will remember it every waking moment of the day. Is it appropriate that they should receive a prison sentence as well? What possible good would that do other than to give fleeting satisfaction—and it would only be fleeting—to some relatives and provide another sacrificial lamb on the altar of a tabloid newspaper, as my noble friend Lord Monson so aptly said?

The existing offence of dangerous driving, which is always said to be notoriously difficult to prove anyway, can and should take care of those few who recklessly and callously gamble with the lives of innocent people, more often than not when they are unlicensed and uninsured. I support Amendment No. 20 and I commend the Government for bringing it forward. It is a step towards recognising the true criminality of some people in this context.

That is the emotional argument, but there are as well the practical considerations which have been set out, among others, by the Magistrates' Association. The new clause would mean that the consequences of the driving would become the main factor in the assessment of an offence rather than the culpability of the driver, as is the case now. As such an offence will become indictable rather than subject to summary jurisdiction, it will be all Lombard Street to a China orange, to quote an old saying. Defendants will opt for a not guilty plea and trial and take their chance in the Crown Court.

Past experience has shown that it is often difficult to get a guilty verdict in such cases because the jury, as we
 
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have repeatedly heard today, has taken the view, "My goodness, that could be me". The upshot will be that the hopes—or, rather, the expectations—of relatives are likely to be raised, only to be cruelly dashed later. Under such circumstances, the House may well feel, as I do, that community penalties, from which there are many options and combinations to choose, offer a more humane and constructive alternative. I would like us to go down that road when we come to consider this in greater detail.

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