The philosopher Jeremy Bentham once said that the power of the lawyer is in the uncertainty of the law. I’m not sure about the power of lawyers, but as a defence solicitor I can testify to the complexity of the law and the uncertainty this can bring. Despite years of experience in criminal courts, I can still feel unsure of what sentence clients might receive.
This feeling must be far more acute for someone affected by a crime who is unfamiliar with the justice system and how courts reach decisions. Their expectations of sentencing might not match the penalty imposed, and this must be especially difficult when they are grieving the loss of a loved one due to the crime.
This is why, as a member of the Scottish Sentencing Council, I am pleased to have been involved in finalising a sentencing guideline — the first of its kind in Scotland — on death by driving offences. The guideline, now approved by the High Court, aims to increase public understanding of how courts deal with these offences and provide a framework to help with sentencing decisions.
Death by driving offences always involve a very high level of harm, but the level of the offender’s culpability can vary significantly. An offence of causing death by careless driving can result from a moment’s inattention by an otherwise blameless person. This makes selecting a sentence extremely challenging. In contrast, the offender’s level of culpability is far higher in death by dangerous driving offences, which often involve deliberate disregard for the safety of others.
The sentencing ranges in the guideline reflect these differing levels of seriousness and the sentences actually imposed by our courts. It is rare for someone convicted of causing death by careless driving to be imprisoned. Most get a community sentence. Death by dangerous driving offences, on the other hand, nearly always result in longer-term custodial sentences. The guideline lists factors that can increase the severity of a sentence, such as the victim being a pedestrian or cyclist, or reduce it, such as the driver suffering serious injury.
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It cannot cover every eventuality, of course. Other legal matters must also be considered, such as a possible reduction in sentence due to a guilty plea, and the guideline does not prevent courts imposing sentences outwith its ranges. But it provides a reference point for bereaved families and others affected by death by driving cases and offers increased clarity on what the likely sentence will be.
I have seen first-hand the distress caused by such cases and recognise that nothing can make up for the tragic loss of life involved. However, I hope that the guideline will make it easier to understand the issues courts must consider and the decisions they reach.
Joanne McMillan is a solicitor member of the Scottish Sentencing Council
