Are tired drivers criminals, too?

Gary Hart got five years for falling asleep at the wheel, but most tired drivers who kill escape jail, says Ian Herbert. Where's the justice in that?
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The Independent Online

Mr Justice Mackay could have done with some unequivocal case law for the formidably difficult task of sentencing Gary Hart, the motorist whose decision to drive while sleepy triggered a sequence of events that led to the Selby rail disaster, which killed 10 people. The conundrum was, as the judge pointed out last Friday, how to prevent the unforeseen emotive consequences of Hart's crash clouding the facts of his conduct. "You might have gone up a bank, turned over and hurt only yourself, or you might have bounced off the central reservation and hit no one," Mr Justice Mackay told Hart.

Friday morning's newspapers provided considerable evidence that Hart would have remained an obscure groundwork contractor had his vehicle simply careered up a bank. They also told how the Chief Constable of Norfolk, Ken Williams, who has had responsibility for planning national police traffic policy, failed to comply with a double white line and strayed into the path of another car in September last year. The consequences were no more than the infliction of minor injuries, and Mr Williams was fined £300.

Unfortunately for Colin Mackay QC, recently appointed to the High Court bench, legal precedent in cases of motorist who doze off at the wheel is painfully confused.

The classic case of its kind is that of Neale Gastinger, an engineer who fell asleep at the wheel of his Ford Transit van while travelling on four hours' sleep, veered across the M6 motorway near Birmingham and rolled his van into the broken-down Ford Granada of 33-year-old James Morris, killing him instantly as he was replacing the fanbelt on Easter Sunday in 1998.

Gastinger's actions were exacerbated by his decision to abscond from the scene – a key aggravating factor laid out in sentencing guidelines – yet he still escaped with a year's probation and 100 hours of community service in 1999.

Although a nine-month sentence was later handed down to Gastinger on appeal, after the Attorney General successfully argued that the non-custodial sentence had been "unduly lenient", Hart may reasonably consider his actions to have been considerably less culpable. He had not absconded, and he immediately called the police.

Now confined to a cell at Armley Prison in Leeds after receiving a five-year sentence – he will not be released until mid-2005 at the earliest – Hart may also be frustrated by consideration of the case of Neil Mitchell, a motorist who, like him, was from Lincolnshire and fell asleep with fatal consequences on the M62 motorway.

Mr Mitchell – a former councillor of the Lincolnshire village of Bottesford, about 20 miles from Hart's home in Strubby – drifted asleep while driving a tanker cargo of propane gas at about 1am on 29 March 1998, and ploughed into a blue Austin Montego in which the 28-year-old motorist Peter Jones was sitting, awaiting a breakdown vehicle. (A notable number of victims in sleeping-driver cases are motorists who have broken down.) Mr Jones died instantly as the force of the tanker threw his vehicle across three lanes of the M62 near Huddersfield.

However, at Bradford Crown Court 18 months later, Mitchell's lawyers successfully argued that he had learnt – after the crash – that he was suffering from a sleep disorder that caused him to nod off frequently. He had been doing so at council meetings for years.

Mitchell's lawyers, like Hart's, had to contend with the expert prosecution evidence of the Loughborough University professor Jim Thorne, the country's leading authority on sleep-induced accidents. However, the jury acquitted Mitchell of causing death by dangerous driving and convicted on a lesser offence of careless driving instead. He escaped with a 12-month driving ban and £1,000 fine.

The road safety organisation Brake insists that the sentencing lottery in such cases is caused by the range of charges with which juries are confronted. Those considering such crimes are often given a choice of charges, forcing them to make a distinction between two highly subjective offences – those of causing death by dangerous driving, and careless driving.

Convicting a motorist of causing death by dangerous driving demands proof of driving "far below the standard of a careful consistent driver", while careless driving is simply driving "below the standard of a careful consistent driver".

There is the comparatively rarely used charge of dangerous driving, generally reserved for cases in which victims are severely injured, but it is a fact that victims of road-traffic accidents can be very badly injured, perhaps even paralysed, yet see the culprit convicted on a careless driving charge and escape prison altogether; the maximum sentence is a fine of up to £2,500 and no imprisonment. Even the rare dangerous driving sentence brings a maximum tariff of only two years.

A three-year review of sentencing in such cases, by the independent Transport Research Laboratory for the Department for Transport, Local Government and the Regions, is expected to underline the issue any day now. It will almost inevitably point out that acts of gross recklessness are bringing no custodial sentences because no one has died.

The Transport Research Laboratory refuses to discuss whether it will embrace the view that the social acceptance of tiredness at the wheel makes juries inclined to convict on the more lenient of two charges, although Brake insists that this is the case. "They just think, 'That could be me,'" said its chief executive, Mary Williams, herself bereaved by a case of reckless driving.

Brake wants to wipe away the careless driving charge and introduce new charges that relate more to the consequences of bad driving than to a jury's rather subjective interpretation of how bad someone's driving has been. It feels the charge of careless driving should be scrapped and proposed new charges of "serious injury by dangerous driving", and manslaughter when a driver's dangerous driving has killed "due to him or her knowingly taking significant risks", should be added to the existing death by dangerous driving charge.

Brake's view is that falling asleep at the wheel – which is twice as likely as other motoring offences to cause death because braking never occurs before collision – is always criminal, just as drink driving is.

However, a strong school of legal opinion is at odds with this. Jon Holbrook, a barrister at 2 Garden Court chambers in London, last week insisted the law should punish drivers for the manner of their driving through the imposition of a minimum driving standard, but not hold them criminally responsible for deaths they did not intend to happen. "True, Hart could have slept more before embarking on his journey, but most people have occasionally found themselves driving while tired and it is easy to see why," Mr Holbrook said. "What of the doctor driving home after a long night shift, the businesswoman driving to work after being up all night tending a sick child, or the student driving to college to hand in a dissertation finished in the early hours?" Brake insists such ethical binds could be resolved through discretionary sentencing.

A near certainty is that sleepy drivers will become more stigmatised, like drink drivers. No moral distinction can be made between them, warned Mr Justice Mackay as he sent Hart down. Professor Thorne says: "Twenty years ago drink driving was still considered amusing, and it's the same with tiredness now. I lecture on it around the country and audiences still volunteer to say that they've done more of it than the next person. It's considered an act of bravado, but it caused one in five road accidents."