Ahmed, R. v

Prolonged reading and composing text messages while driving is a gross and avoidable distraction. Where it occurs in darkness on a motorway, the cumulative risk to other road users can justify an immediate custodial sentence for dangerous driving, even if the driver’s disregard of safety is reckless rather than deliberate.

Exceptional personal mitigation may nevertheless justify suspending a custodial term on appeal. That course does not mean that custody was unwarranted or that the original term was excessive. It may preserve a proper sentence while recognising circumstances unavailable to, or not fully before, the sentencing judge.

The applicant pleaded guilty at the first opportunity to dangerous driving. He had read and composed several text messages over 10 to 15 minutes while driving on the M1 in darkness. He was not charged with causing death by dangerous driving, and it was not suggested that his use of the telephone caused the fatal collision which later occurred.

The magistrates’ court committed the case to the Sheffield Crown Court despite both parties’ submissions that summary trial was suitable. On 25 February 2009, Wilkie J imposed 12 weeks’ immediate imprisonment, disqualified the applicant from driving for 12 months and until an extended re-test was passed, and ordered costs.

The applicant appealed against sentence. The central issues were whether custody was justified for the dangerous driving and, if so, whether the exceptional mitigation justified suspension.

1. The court varied the sentence. The 12-week term was not excessive and custody was necessary, but the term was suspended for 12 months because of the exceptional mitigation available on the appeal.

2. The driving fell at the extreme end of recklessness. The applicant divided his attention between a telephone, the road and control of the vehicle for 10 to 15 minutes. He was driving at motorway speed in darkness and was not merely receiving messages: he composed and sent substantial replies. Those cumulative features created a serious and avoidable danger to other road users.

3. The court accepted that the disregard for safety could be characterised as reckless rather than deliberate. Even so, it straddled the two most serious categories in the relevant magistrates’ sentencing guideline. The sentencing judge therefore had no option but to impose a custodial sentence. The court rejected the submission that the offence was insufficiently serious for custody.

4. An immediate custodial sentence was also justified in principle. The prolonged, repeated and highly dangerous driving put lives at risk for no good reason. The court stressed that a person convicted of dangerous driving of this kind may be imprisoned irrespective of personal status.

5. However, the applicant had almost served the sentence. The court considered the unusually powerful mitigation, including remorse, an early guilty plea, previous good character, assistance to the police, conduct at the scene, personal injuries and additional exceptional material before it. It concluded that it could exceptionally suspend the sentence without erasing a proper custodial penalty from the record.

• Court of Appeal (Criminal Division): In [2009] EWCA Crim 669, the court varied the immediate 12-week sentence by suspending it for 12 months.
• Sheffield Crown Court: On 25 February 2009, Wilkie J imposed 12 weeks’ immediate imprisonment for dangerous driving, a 12-month driving disqualification with an extended re-test requirement, and prosecution costs.
• Magistrates’ court: The case was committed to the Crown Court despite submissions from both prosecution and defence that summary trial was suitable.