Attorney General's Reference No 27 of 2004

For causing death by dangerous driving, custody will normally be required because of the gravity of the offence and the need to deter dangerous driving. A non-custodial sentence is justified only by exceptional mitigating circumstances. Youth, limited driving experience, and a victim’s contributory conduct will not ordinarily meet that standard.

On an Attorney General’s reference, the court may find a sentence unduly lenient but still decline to alter it. It must exercise its discretion in light of double jeopardy, punishment already served, and the practical effect of any reduced custodial term.

The offender, aged 19 and a newly qualified driver, was convicted at Leeds Crown Court of causing death by dangerous driving after losing control of his car while travelling at excessive speed in heavy rain. His driving caused a lorry to take evasive action; the victim’s following car then collided with the lorry’s trailer and the victim died.

On 10 February 2004, the Crown Court imposed a Community Punishment Order of 180 hours, disqualified the offender from driving for five years, and required him to pass an extended driving test before driving again. The Attorney General obtained leave under section 36 of the Criminal Justice Act 1988 to refer the sentence as unduly lenient. The central issue was whether custody was required and, if so, whether the Court should intervene despite the time elapsed and substantial completion of the community order.

1. The reference established that the sentence was unduly lenient, but the Court declined to alter it. The Community Punishment Order and ancillary driving orders therefore remained in force.
2. The Court applied R v Cooksley [2004] 1 Cr App R(S) 1. In cases of causing death by dangerous driving, the usual consequence is custody. This reflects both the gravity of a death caused by dangerous driving and the need to deter other drivers. A non-custodial sentence requires exceptional mitigating circumstances.
3. The offender’s youth and inexperience were substantial mitigation but not exceptional. Those features are common among young drivers. Nor was the victim’s contribution to the fatal outcome exceptional: in road accidents it will not be rare for a deceased person’s driving, lack of seat belt, vehicle condition, or position in the vehicle to have contributed to death.
4. Custody was required at the original sentencing. The offender had driven at excessive speed in heavy rain, after little sleep and with a significant amount of alcohol in his bloodstream, although below the legal limit. Those matters impaired his driving capability. Allowing for mitigation, a term of about two years’ imprisonment would have been appropriate at first instance.
5. Intervention was nevertheless discretionary. The Court gave weight to double jeopardy and to the offender’s completion of 106 of the 180 hours imposed. A substituted sentence, reduced for those matters, would have been very short. In light of the offender’s current position and the likely harmful effect of such brief imprisonment, there was little purpose in sending him to prison.

• Court of Appeal (Criminal Division): On the Attorney General’s reference under section 36 of the Criminal Justice Act 1988, the Court held the sentence unduly lenient but declined, as a matter of discretion, to interfere: [2004] EWCA Crim 1830.
• Leeds Crown Court: The offender was convicted on 15 January 2004 of causing death by dangerous driving. On 10 February 2004 he received a Community Punishment Order of 180 hours and a five-year driving disqualification, with an extended driving test requirement.