Ishfaq, R. v

For causing death by dangerous driving, seriousness must be assessed by reference to the definitive Guideline’s determinants of seriousness. Driving at nearly twice the speed limit in a residential area, while exposing a vulnerable pedestrian to danger, may place offending in Level 1 where the driver deliberately disregarded road rules and the danger caused. A claimed emergency carries limited mitigating weight where the offender’s own serious criminal activity created the risk. Aggravating and mitigating features must then be assessed within the applicable level. An extended driving disqualification should represent half the custodial term. Under section 36(7)(b) of the Road Traffic Offenders Act 1988, a further retest order cannot be imposed while an earlier order remains extant.

The Attorney General referred a sentence under section 36 of the Criminal Justice Act 1988, alleging that it was unduly lenient. The offender had pleaded guilty in the Crown Court at Birmingham to causing death by dangerous driving after driving at speed during a pursuit in a residential area. A count of perverting the course of justice was left on the file, with its facts taken into account.

The Crown Court imposed six years and three months’ imprisonment, ten years’ driving disqualification and an extended retest requirement. The central issues were the correct Guideline level, the weight of aggravating and mitigating features, the appropriate extension to the disqualification period, and the legality of the retest order.

The Attorney General’s reference was allowed. The sentence was unduly lenient and the retest order was unlawful.

1. Guideline assessment. The definitive Guideline applies to a first-time offender and requires the seriousness of the driving to be assessed by its determinants. Although the driving was not a prolonged course, it occurred in a busy residential area shortly after 11 am, at nearly twice the speed limit, and involved disregard for a vulnerable pedestrian using an identified crossing. Those matters were determinants of seriousness.
2. Classification and mitigation. The driving fell within Level 1 because it involved a deliberate decision to ignore the rules of the road and an apparent disregard for the great danger caused to others. The offender overtook vehicles, crossed red traffic lights and drove on the wrong side of the road. The pursuit did not alter that conclusion. The offender had placed himself at risk by engaging in drug dealing, so the alleged emergency afforded only limited mitigation.
3. Sentence. The appropriate Level 1 starting point was eight years’ custody. The court accepted the four aggravating features identified by the sentencing judge: the failure to stop and immediate attempt to avoid responsibility; destruction of the vehicle and the false confession plan; drug impairment; and relevant previous convictions. The sentence was raised to ten years, reduced to nine years to reflect the offender’s brain injury, health and the difficulty of custody during the pandemic, and reduced by 10 per cent for the guilty plea. The resulting sentence was eight years’ imprisonment. The six-year-three-month sentence was quashed.
4. Disqualification and retest. The seven-year discretionary disqualification was left undisturbed. The extension period should represent half the custodial term, so it was increased from three to four years, making eleven years in total. Under section 36(7)(b) of the Road Traffic Offenders Act 1988, a sentencing court cannot impose a further retest order where an earlier order remains extant. The earlier order made in 2018 remained extant, so the new retest requirement was quashed: R v Weafer [2019] EWCA Crim 1072.

1. Court of Appeal (Criminal Division): The Attorney General’s reference was allowed. The sentence was quashed and an eight-year sentence imposed. The total driving disqualification was increased to eleven years, and the further retest requirement was quashed.
2. Crown Court at Birmingham: On 4 March 2021, the offender was sentenced to six years and three months’ imprisonment, disqualified from driving for ten years and ordered to take an extended test.