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In Part 2 of Schedule 2 to the Road Traffic Offenders Act 1988 (c. 53) (prosecution and punishment of offences: offences otherwise than under the Traffic Acts), after the entry relating to manslaughter and culpable homicide insert
|"An offence under section 35 of the Offences againstthe Person Act 1861 (furious driving).||Discretionary.||Obligatory if committed in respect of amechanically propelled vehicle.||39""|
"MEANING OF DRIVING WITHOUT DUE CARE AND ATTENTION
In the Road Traffic Act 1988 (c. 52), after section 3 insert
"3ZA MEANING OF CARELESS, OR INCONSIDERATE, DRIVING
(1) This section has effect for the purposes of sections 2B and 3 above and section 3A below.
(2) A person is to be regarded as driving without due care and attention if (and only if) the way he drives falls below what would be expected of a competent and careful driver.
(3) In determining for the purposes of subsection (2) above what would be expected of a careful and competent driver in a particular case, regard shall be had not only to the circumstances of which he could be expected to be aware but also to any circumstances shown to have been within the knowledge of the accused.
(4) A person is to be regarded as driving without reasonable consideration for other persons only if those persons are inconvenienced by his driving.""
"EXTENSION OF OFFENCE IN SECTION 3A OF ROAD TRAFFIC ACT 1988
(1) Section 3A of the Road Traffic Act 1988 (c. 52) (causing death by careless driving when under influence of drink or drugs etc.) is amended as follows.
(2) In subsection (1), after paragraph (c) insert "or
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(d) he is required by a constable to give his permission for a laboratory test of a specimen of blood taken from him under section 7A of this Act, but without reasonable excuse fails to do so,".
(3) In subsection (3), for "and (c)" substitute ", (c) and (d)".
(4) In section 24(1) of the Road Traffic Offenders Act 1988 (c. 53) (alternative verdicts), in the Table, in the entry relating to section 3A of the Road Traffic Act 1988 (c. 52), in the second column, after "Section 7(6) (failing to provide specimen)" insert "Section 7A(6) (failing to give permission for laboratory test)"."
At present the law allows the police to request a medical practitioner to take a blood sample from a suspect who is not capable of consentingfor example, because he is unconsciousbut does not allow it to be tested unless the suspect subsequently consents. Where that consent is then withheld, there is an offence of failure to consent to a blood test under Section 7A(6) of the Road Traffic Act which has a maximum sentence of six months' imprisonment, but there is no provision that would allow the suspect to be prosecuted for causing death while under the influence. This is not the case in relation to a person who is capable of consenting and withholds their consent.
Causing death while under the influence carries a maximum penalty of 14 years' imprisonment so it is important that we do not allow those who do not consent, and have no reasonable excuse, in effect to opt for prosecution of a much less serious offence with a significantly lower penalty. This amendment brings the law into line so that whether or not a person is conscious or unconscious following an incident does not determine which offence he could ultimately be charged with.
Earl Attlee: My Lords, I am sure that noble Lords will accept the amendment, but why is it necessary to obtain consent to analyse a sample? I can understand why it is necessary to obtain consent to take a sample, because otherwise that would constitute an assault, but why is it necessary to obtain consent to analyse a sample?
Lord Davies of Oldham: My Lords, it is necessary to obtain consent because the sample has been taken without the conscious agreement of the person concerned. Before any further progress can be made with the sample, consent has to be given. We all recognise that consent would be withheld where the person is in no position to exercise any response. However, we are concerned that delayed consent can
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lead to a different and lower order offence. We are trying to rationalise that process. That is why the amendment is necessary.
Baroness Gardner of Parkes: My Lords, if there is delay in obtaining the consent, is there a risk that the sample could become reduced or contaminated, and that could be used as an artificial defence, in which case I strongly support not having a delay?
Lord Davies of Oldham: My Lords, there is undoubtedly a danger in the very long run, but we are thinking within a framework of a normal period, in which samples can be protected. I have no note of anxiety on that score; it is covered. It is clear that the loophole has produced injustice.
Lord Bradshaw: My Lords, is the Minister absolutely clear in his own mind on this? If someone has come into police custody presumably the worse for drink or drugs, and is unconscious, and a sample is taken from him without his consentbecause he is not in a position to give itis the Minister telling us that the sample has got to be kept in the custody of the police and not analysed until the person is able to give consent? The noble Baroness has just made the point that the blood sample could deteriorate considerably if, for example, it was held over a weekend. Can the Minister assure us that the blood sample would in fact be good enough to show whatever drugs or drink they are analysing it for? I am probing the Minister on why it is necessary, having taken the sample, then to get the permission of the person who is unconscious before you analyse it.
Lord Davies of Oldham: My Lords, I have dug a pit into which I have successfully fallen. I put the emphasis in the wrong place, and I apologise to the House for that. The consent formally in law is to the analysis and not to the taking of the sample. That would be delayed if a person were unconscious. I recognise the legitimate anxiety about how long the samples would last. They do not deteriorate in the short term, but if someone was in a coma for many months, the problem might arise. However, I imagine in such circumstances the procedures of the law would have considerable difficulty anyway. We have no anxiety about the deterioration of samples in the short term.
"ALTERNATIVE VERDICT ON UNSUCCESSFUL CULPABLE HOMICIDE PROSECUTION
(1) Section 23 of the Road Traffic Offenders Act 1988 (c. 53) (alternative verdicts in Scotland) is amended as follows.
(2) In subsection (1), for "an offence under section 2 of the Road Traffic Act 1988 (dangerous driving)" substitute "any of the relevant offences".
(3) After that subsection insert
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"(1A) For the purposes of subsection (1) above the following are the relevant offences
(a) an offence under section 1 of the Road Traffic Act 1988 (causing death by dangerous driving),
(b) an offence under section 2 of that Act (dangerous driving), and
(c) an offence under section 3A of that Act (causing death by careless driving when under influence of drink or drugs).""
The noble Lord said: My Lords, in moving Amendment No. 31, I shall speak also to Amendment No. 32, which both deal with provision for alternative verdicts for the offences of culpable homicide in Scotland and manslaughter in England and Wales. In a small number of cases, rather than being charged with causing death by dangerous driving, a defendant will be charged with manslaughter, or in Scotland with culpable homicide. That can occur where the driving entailed a very high risk of death. It is rarely used, but is nevertheless important to reflect the fact that some offenders use cars just as they would use any other weapon. Some people use the term "motor manslaughter".
Doubt has arisen whether in England and Wales a prosecution for manslaughter could give rise to an alternative verdict of causing death by dangerous driving where the manslaughter charge fails. The consultation on bad driving offences proposed that the situation be clarified so that it is clear that alternative verdicts are available to ensure that prosecutors are not dissuaded from prosecuting on a manslaughter charge where that is considered appropriate. No doubt to the joy of the noble Earl, Lord Mar and Kellie, the situation is slightly different in Scotland. Section 23(1) of the Road Traffic Offenders Act 1988which I shall refer to as the RTOAprovides that in Scotland an alternative verdict under Section 2 of the Road Traffic Act on dangerous driving is already available where an accused has been found not guilty of culpable homicide. Amendment No. 32 provides that the offences of causing death by dangerous driving, causing death by careless driving when under the influence of drink and drugs, and furious driving will be available as alternative verdicts where a prosecution for manslaughter has been unsuccessful.
Furious driving, under Section 35 of the Offences Against the Person Act 1861 has been added into Amendment No. 32, as this is the only offence that would be available if a prosecution for manslaughter for driving that took place on private property had failed.
Amendment No. 31 ensures that the same offences, with the exception of furious driving, which is an offence only in England and Wales, as I sought to explain in our previous discussion, will be available as alternative verdicts in Scotland. This will ensure that prosecutors feel able to pursue rigorously these charges where appropriate and ensure that the same alternative verdicts will apply regardless of where an incident occurs. I beg to move.
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