StressedDave wrote:True enough, but the subjective test for recklessness (given that objective recklessness has been deprecated by R v G&R), i.e. trying to work out what the defendant was thinking at the crucial time, meant that the old law was virtually impossible to prove.
Recklessness is not virtually impossible to prove, it is just more difficult to prove and so only the worst cases satisfy the test. Clearly there are people who believe the less serious cases of bad driving that cause death should be punishable by imprisonment. I disagree with this. The whole point of having difficult tests is that the consequence is imprisonment.
Lord Bingham says it better than I can in R v G:-
"32. First, it is a salutary principle that conviction of serious crime should depend on proof not simply that the defendant caused (by act or omission) an injurious result to another but that his state of mind when so acting was culpable. This, after all, is the meaning of the familiar rule actus non facit reum nisi mens sit rea. The most obviously culpable state of mind is no doubt an intention to cause the injurious result, but knowing disregard of an appreciated and unacceptable risk of causing an injurious result or a deliberate closing of the mind to such risk would be readily accepted as culpable also. It is clearly blameworthy to take an obvious and significant risk of causing injury to another. But it is not clearly blameworthy to do something involving a risk of injury to another if (for reasons other than self-induced intoxication: R v Majewski [1977] AC 443) one genuinely does not perceive the risk. Such a person may fairly be accused of stupidity or lack of imagination, but neither of those failings should expose him to conviction of serious crime or the risk of punishment."Of course if the legislature take a different view and enact a law that makes it much easier to convict with the consequence of significant prison sentences then there isn't much the courts can do about that.
StressedDave wrote:I do take yout point with the fact that you'd be better battering someone with a baseball bat that hitting them with a car, but is the issue there one of the Executive messing around with sentencing guidelines as a knee-jerk reaction to the 'won't somebody think of the kiddies' brigade rather than there being anything wrong with the sentences.
The sentences start with the legislation and the guidelines for death by dangerous driving are based on a decision of the Court of Appeal in R v Richardson 2006 (after the Criminal Justice Act 2003 increased the maximum sentence from 10 years to 14 years imprisonment).
"In considering the impact of the increase in the maximum penalty on the Cooksley guidelines (see the main work), the court concluded that the relevant starting points identified in Cooksley should be reassessed as follows: (1) no aggravating circumstances: 12 months' to two years' imprisonment; (2) intermediate culpability: two to four-and-a-half years' imprisonment; (3) higher culpability: four-and-a-half to seven years' imprisonment; (4) most serious culpability: seven to 14 years' imprisonment."I don't agree it is the Executive influencing the sentencing guidelines except insofar as they can through Parliament which is of course Parliament's prerogative. The courts are merely responding to the legislation regardless of Lord Bingham's comments above.
My position is that causing death by dangerous driving should not result in a prison sentence. The very worst cases would probably satisfy the reckless test and so justice would be done.
Indeed Parliament (and I accept the Executive pretty much controls Parliament) is taking us further in the wrong direction with Causing Death by Careless Driving.
This was a tad more then 'bend optimism' in my view.