Dangerous Driving and the Law
Good morning and welcome to the 37th meeting this year of the Justice 1 Committee. Marlyn Glen is late but she will join us. I have received no other apologies. I ask members to do the usual and check that they have switched off their phones.
We have a number of agenda items, which are primarily to do with outstanding business. Agenda item 1 is dangerous driving and the law. Members will note that the clerk has prepared a note giving the background to consideration of that topic.
I invite members to consider what further action, from a number of options, they wish to take. There is the option of examining the consultation paper from the Home Office, which is to be published imminently. There is the option of writing to the Crown Office asking to be informed of the outcome of the pilot for gathering more comprehensive statistics on road deaths and serious injury cases. Scotland's Campaign against Irresponsible Drivers raised the question of transparency in the review process. There is a variety of suggested next steps if the committee wishes to pursue them. I invite comments from members.
As a number of us are new to the committee, we have not been party to the committee's previous consideration of the wide range of issues that are associated with the matter. The clerk's note is useful in drawing together where the committee has been so far.
Statistics ought to concern us, but I will focus on one issue that touches on concerns that have been raised in other contexts, and on which it might be useful for us to commission a paper to help us understand where it comes from. I refer to a comment from a correspondent that is included in our note:
"Victims and their families should have the right to have the deaths of their loved ones investigated thoroughly … It is also unacceptable that the Crown Office and Procurator Fiscal Service remain unaccountable to the victims' families and in so doing add to the distress of families at a time of intense grief."
That echoes something that I and, I suspect, others have encountered in other contexts. Of course, in many ways that stems from the status of the Crown Office and Procurator Fiscal Service as independent and above the fray, which is an important part of Scots law. However, in many other countries, in particular in the Netherlands, the equivalent services act, in effect, on behalf of victims.
I am not a lawyer, and I am sure that a long history underpins why we have a prosecution service that is independent, rather than one that champions the rights of victims. It might be useful, not just for ourselves but for others, if we understood more clearly why Scots law treats prosecution in that way. Being better informed might help us to form a view on whether that is the right way for the prosecution to continue to stand in Scots law. Many of the issues to do with the Crown Office and Procurator Fiscal Service feeling unable to respond to queries, particularly from victims, stem from the fact that the service is there not to represent victims, but to represent an abstract concept of a disinterested prosecution service.
I suspect that this is not the moment to engage in that debate—I cannot contribute to it as I am not well-enough informed—but it might be appropriate to commission someone to produce a paper to help us understand why that remains the right way forward in Scots law.
I will be brief. I also come quite late to consideration of the issue; that is one of the problems when a new member joins a committee and an inquiry has been going on for some time. Indeed, previously the issue was dealt with elsewhere. I am interested in finding the best way of pursuing the matter.
I was struck by some of the inconsistencies in the charges that were levelled against drivers who were involved in remarkably similar incidents. I do not want to go into the circumstances, but in one case that was mentioned somebody was charged with careless driving while in another case someone who committed an offence that seemed less serious was charged with dangerous driving. The penalties for the two offences are significantly different—in fact, one is seen almost as a misdemeanour. I note the work that is being done in considering the potential for a third charge—a middle way—to be made available to the Procurator Fiscal Service.
What response have we had from various procurators fiscal with regard to the criteria that they apply when determining which charge to pursue? I do not want to stray into areas that are not within the committee's remit. It has come across not just in correspondence but in a number of cases over the years that there is dissatisfaction with the Procurator Fiscal Service, in that it seems that some individuals who have seriously injured or killed another person as a result of their driving got off relatively lightly. Even if they were found guilty, the charge was often careless driving. Perhaps part of the dissatisfaction with the current system arises because people feel that the charge, never mind the punishment, does not fit the crime. I wonder how we can best advance consideration of that, if indeed the committee has taken evidence on it.
The point that Stewart Stevenson made is interesting. Having read the note by the clerk, my inclination was to choose option (c), which involves
"seeking information on the process for reviewing charges brought."
Stewart Stevenson's suggestion would take us a step back from that and it might inform our consideration of the information when it comes, which would be helpful. There is an issue about the Crown Office and Procurator Fiscal Service being one step removed, rather than being the representative of the injured party. I am more than happy to see statistics, but we could get bogged down in them for some time. I am more interested in the process of bringing cases to court, seeing what the charges are, why they are chosen and what the outcomes might be. Both sets of comments that we have heard so far are helpful in focusing on which option to plump for.
I take on board the comments of Stewart Stevenson and Bruce McFee, who pointed out that this matter, which has been the subject of at least two petitions, has been before the committee for some time. One of the petitions dates back to when Lord Hardie was the Lord Advocate, prior to Colin Boyd—that is how old it is.
We have not explored in depth what statute law says about careless driving and dangerous driving. I am sure that the Crown Office would tell us that it specifies what the standard of driving is, but procurators fiscal can exercise discretion on the basis of the information that is available to them in deciding the best way forward. There has probably been a sea change in opinion about the courts' approach to careless driving and dangerous driving, particularly when the case involves a death. We got a commitment, which has been enforced until now, that cases in which a death occurs as a result of careless driving or dangerous driving will go to the High Court—not all such cases did so previously.
Does Stewart Stevenson mean that he would like a report from the Crown Office reminding us why we have a system in which it represents the public interest and how it applies the guidance in determining the charge in any case in which the standard of driving has to be judged? I need to check that we have not done that before. I do not think that we have.
In making my proposal, I did not make any suggestion as to who should do the research. For me, the core of the matter is not the Crown Office's view. Perhaps the Scottish Parliament information centre could help us to compare and contrast the situation in Scotland, where the prosecution represents the public interest, with that in other countries, where the prosecution represents the interest of victims, so that we understand the history of why we have ended up with the approach that we have. Perhaps SPICe could also tell us what academic research or other information exists that suggests that there is particular merit in the way that we deal with things compared with the way that other jurisdictions do them or vice versa. I suspect that we know. I could probably say what the Crown Office and Procurator Fiscal Service is likely to tell us in about three sentences—although it would, of course, be sure to tell us in six or eight pages—and I think that the view of somebody from outside the system might be of greater value. However, I am in my colleagues' hands on that matter.
That is well outside the remit of the inquiry. We are considering dangerous driving and the law, but you are asking us to take a general view on our prosecution system. I have no questions about that system. There are issues with accountability to victims, what information is available and whether the law is right, but I would not be in favour of the committee questioning the Crown Office's role in representing the public interest and I would not want us to change that role. If committee members want that role to be changed, it will have to be done in another way because I do not see how we can report on it in relation to dangerous driving and the law. We would need to seek a general view on it.
I agree with you on that, convener. Stewart Stevenson's proposal opens up the discussion to a new area that would keep us here considering it for the next 10 years. It might be an interesting matter for Stewart Stevenson to pursue at his leisure.
I am interested in the Crown Office and Procurator Fiscal Service's accountability to victims and I am not sure that we have managed to make it accountable. Part of that accountability lies in explaining to the relatives of victims—or to the victims themselves, if they have been injured as opposed to killed—how it reaches a decision on the charges that are laid. I detect great dissatisfaction on the part of victims' families that they can have lost somebody in an incident that looks entirely reckless to them, but, when the case comes to court, the individual is charged with a relatively minor offence. That takes some explanation, and I could not offer an answer if somebody were to ask me about it. I could not give an answer about some of the charges that are eventually pursued and I want to understand better the reasons and rationale behind some of the decisions that are made. That might involve examining the number of charges of dangerous driving or careless driving area by area to find out whether there is a history of vastly different charges being levelled against the perpetrators of similar crimes in different situations. To judge by the evidence that has been offered, there is such a history; that is where a lot of the dissatisfaction stems from. There is a lack of transparency in how the charges are arrived at, and it would seem that the views of the relatives are, to be frank, ignored.
Given that the petitions span reserved and devolved matters, I am very much in favour of option (a) in the note from the clerk, which suggests that the committee examine the consultation paper from the Home Office when it is published just to ensure that the correspondence in relation to the downgrading of offences has been taken into account.
As transparency is key, I also favour option (c) in the note from the clerk, which suggests that the Crown Office and Procurator Fiscal Service should be given the questions that were put by Scotland's Campaign against Irresponsible Drivers so that it can answer them directly. That would be a useful step forward. I would like the committee to monitor the situation, perhaps on a six-monthly basis. If the review is left until 12 or 18 months have passed, too much could fall by the wayside without our having control of it.
On a point of clarification, we should not refer to (a), (b) and (c) as options; they are all recommendations that we can follow and they all seem to be useful and sensible. Doing that would obviously mean more work, but I am in favour of following all three recommendations. What Margaret Mitchell said about considering the situation on a six-monthly basis was fair.
There is no restriction on us, other than consideration of what is possible given our general workload. Does Stewart Stevenson still want to pursue his point?
No, I am quite happy to listen to the committee on the matter. I will retain a concern and simply ask SPICe to put together some research for me and make it available to colleagues if it comes up with anything that appears to be of value. I am not trying to dragoon the committee into doing something that could open up a much wider area of work before we know how big an area it might be.
That is fair. Further to that, Margaret Mitchell suggested that the committee consider option (a) about the Home Office consultation paper, which is a reserved matter. The committee made the point previously that we were concerned that the report was not properly informed by Scottish statistics, so that is an issue to pursue.
Bruce McFee suggested adopting option (c), which is concerned with transparency in the review process. It recommends that we write to the Crown Office to seek information on the process for reviewing charges brought.
I would be happy to go along with both recommendations, but I sound a note of caution and say that we need to discuss transparency in more detail. Like Bruce McFee, I realise that transparency is an issue for family members particularly in the case of a death or a serious injury. There is a need for the system to be more responsive and to give families an opportunity to understand why a decision has been arrived at. However, how far do we want to go? If we go down the road of dangerous driving and the law, are we saying that the Crown Office must explain its decision in every case? I do not see how distinctions could be made. The Crown Office must still retain a level of discretion. I would be happy to go along with Bruce McFee's suggestion, but we need to strike the balance between the needs of families and the need of a service to use its necessary discretion.
Is the committee content to follow options (a) and (c)?
I presume that once the information has been gained, we will monitor developments as a matter of course because the matter will come back to the committee?
Paragraph 36(d) in the note sets out the next steps, which are to
"consider progress on a six monthly basis (including any correspondence from interested parties)"
and to allow
"a period of time to elapse to allow current activities by the Scottish Executive and the Department for Transport to come to fruition".
I assume that the committee wants to maintain its interest in the matter, particularly in the consultation. When there is something to report to the committee, we will put it on the agenda.
Is there a need to formalise paragraph 36(d)(i) as Margaret Mitchell suggested? I would favour that.
That seems fair. I think that we could manage to monitor progress on a six-monthly basis. Is that agreed?
Members indicated agreement.