Petition (Road Traffic Deaths)
We now move back into non-bill mode, which will probably feel quite strange. The next item on the agenda is petition PE29, from Alex and Margaret Dekker, on road traffic deaths.
The item is on the agenda so that we can have a preliminary discussion about the issue and get some indication of the committee's thinking about Lord Hardie's letter, which has been circulated to members and was written in response to my letter. The committee will remember that when we discussed the Dekker petition previously, it was decided that I should write to the Lord Advocate—Michael Matheson is shaking his head, reminding me that he does not remember as he was not a member of the committee then.
Members will see that there is a brief note from the Scottish Parliament information centre on the generality of the issue. We agreed at our previous meeting that we would ask SPICe for a brief run-down—sorry, that was perhaps an inappropriate phrase to use in the circumstances—or summary of the situation. The SPICe researchers have provided that, for which we thank them.
We need to decide how we will deal with this petition. The Lord Advocate's reply has been circulated to committee members. If they have not read it, they will not have much to contribute today. The letter comments on the statistical information that is referred to in the petition, and sets out in detail the Crown Office's position in relation to prosecutions under the Road Traffic Act 1988. The letter explains that prosecuting decisions are for the Crown, not the police, and that, therefore, the suggestion in the petition that charges are downgraded from causing death by dangerous driving to careless driving is misleading. That is probably attributable to a misunderstanding of when the word "charges" is used instead of more formal terms. The police may charge, but it is up to the Crown Office to decide whether to proceed.
The letter also explains that prosecution policy is based on the standard of driving that is displayed in the circumstances and the quality of the evidence that is available. The Lord Advocate's letter sets out a defence of the decisions that were made in the case of Steven Dekker, who was the son of the petitioners.
The SPICe paper has been circulated with today's papers, and sets out recent statements in the Scottish Parliament and the UK Parliament that are relevant to the issue. The petition has been formally referred to this committee, so we need to think carefully about how we want to proceed. No time limit has been set, nor are our options limited in any way. It is clear that we have a duty to decide on a course of action that will conclude consideration of the petition.
We have to start consideration of the Abolition of Feudal Tenure (Scotland) Bill in mid-March. We have three meetings in the next few weeks at which we will have an opportunity to deal with non-bill matters. The committee must decide whether it needs further evidence or information. I believe that the Dekkers have said that they intend to submit a written response to Lord Hardie's letter, which the committee will want to see before making a final decision. It would be useful to have some kind of preliminary indication of the committee's response to the Lord Advocate's letter. That would allow us to ask the Dekkers to focus on aspects of the argument that they think are more central to the committee's work on the petition.
We should have a brief discussion to decide how to proceed on the extremely wide issues that were raised by the Dekkers, some of which are outside the capacity of the Parliament. I believe that the road traffic acts are reserved to Westminster.
My position is that the Lord Advocate is 100 per cent right. I do not always think that. I have no quarrel with his long and careful letter. The problem is with the concept of someone doing something carelessly and not having to pay for a death that might result from their actions. The press can whip that up by asking questions such as, "Is this person's life worth only £30?", but careless driving accidents can often result from only a moment's inattention. Everyone who has driven has had lapses of attention and it is only by the grace of God that horrendous consequences are avoided. Occasionally, people drive dangerously. That is out of order, and if someone dies as a result, the charge should be one of causing death by dangerous driving and the appropriate punishment should be delivered.
We have to balance the culpability of the act of carelessness—which is not very culpable—and the horrendous consequences of someone dying. That cannot be changed in any way. People die because motor cars are dangerous and people are occasionally careless.
With regard to Lord Hardie's position on downgrading, I would point out that the police charge at the highest level. For tactical reasons, the police do not charge at a low level. That means that, inevitably, when the independent prosecution examines the case, the charge is downgraded. That does not mean that the decision to downgrade is wrong.
I do not want to talk about this particular case, but it is worth noting that, in the fatal accident inquiry, the sheriff chose to point out that the charge could never have been death by dangerous driving. In all honesty, although I appreciate the emotional intensity of this matter in the public mind and in the minds of families and friends, I do not think that we can do anything other than accept what the Lord Advocate has said on this occasion.
Justice must be seen to be done. The fine words of Gordon Jackson, who is a QC, and of the Lord Advocate, all seem perfectly logical, but we must look at the wider picture in considering the law. I accept much of what the Lord Advocate says in his letter. I accept that the police will probably charge with the worst possible offence and leave it to the prosecution to determine thereafter. I can accept that that explains the ratio of 53 per cent: 40 per cent: 7 per cent, for prosecutions under a charge of causing death by dangerous driving.
Gordon suggested that carelessness can be a momentary lapse. I recognise that and I imagine that there is nobody on this committee who has not at some time or other driven carelessly when split seconds have determined that we got away with a stupid action. However, we are discussing deliberate actions. In the Dekker case, somebody took a deliberate decision to do something extremely dangerous: going the wrong way up a slip road. They thought about it before they did it and as a consequence of their decision someone died. I can understand the feelings and concerns of the family in this case.
In the case of the death of David MacKenzie, the individual involved had no MOT and no insurance, and was driving a car with only a provisional licence. Surely that is a considered position. Surely that suggests that that individual did something extremely dangerous and totally ignored the law. We need an element of consistency. The victims' interests must be taken on board.
The Scottish Campaign against Irresponsible Drivers has suggested that victims' families should be able to look to a fatal accident inquiry somewhere along the line. That seems logical if the charge is careless driving. I am not suggesting that every death should result in a charge of death by dangerous driving; I accept that, in many cases, a charge of careless driving is the right one to bring. With careless driving, however, the death is not recorded as such and is not part of the procedures. That leaves victims' families feeling hurt, wounded and unable to understand the judicial process.
We must try to ensure that justice is seen to be done. If we took evidence from the Dekker family and talked about the case with the Lord Advocate and SCID, we could perhaps form a better view of the whole situation. There must be some change somewhere along the line.
A number of points about the Dekker case strike me. I do not think that the knowledge or information we have gleaned is conducive to what we are trying to do on victim support. Although I have no difficulty with what the Lord Advocate's letter says about the law, I think that work must be done on transparency. There should have been a quicker answer than this; we should not be sitting here, four months after the petition was submitted, considering a response that the family could have got without recourse to this committee. There must be transparency in decisions on victim support for any family or individual who feels that the judicial process has been unjust.
In this case, there is a question about whether the law recognises an offence that is a bit more than carelessness but a bit less than dangerous driving. I shall come back to that and make a recommendation on what we should do.
There may be issues about evidence in the Donegans' case that I do not entirely understand, but I would like to consider what happened. Although, as you pointed out convener, the Road Traffic Acts deal with reserved matters, we should see what is covered by the study of
"clear guidance on the law and its purpose, and how this affects the choice of penalty; comparison of sentencing trends before and since the 1991 Act".
That is the broad issue we need to consider. I would like us to see what that research has to say.
Are you referring to the research mentioned in the SPICe paper?
Yes. We need to have something broader than specific cases to work with, although the cases have highlighted concerns that are probably shared by the wider public. The starting point needs to be more scientific.
The Government has commissioned research into the effects of the introduction of the offence of dangerous driving on charging and sentencing. The Lord Advocate has said that the Crown Office and the fiscals are co-operating with that research. It is studying
"the effect of the Road Traffic Act 1991 on prosecutions for dangerous driving. The project, which is being undertaken by the Department of the Environment, Transport and the Regions . . . began in May 1998 and it is due to be completed in October 2000. Issues covered by the study include: whether there is sufficiently clear guidance on the law and its purpose, and how this affects the choice of penalty; comparison of sentencing trends before and since the 1991 Act; and how the changes in the definition of bad driving offences have been implemented by police and courts".
That reference to the police relates more to England and Wales.
"The aim is to obtain an understanding of what leads prosecutors and courts to select one offence or one penalty rather than another."
They are examining the whole procedure from charging to sentencing. I agree that the research is highly relevant to our discussion.
I agree with Gordon Jackson. Nothing I say should be taken as even for a moment not wholly sympathising with the Dekkers on the loss of their son. It is something they will never recover from—I have two sons of my own. Looking at it objectively, criminal prosecutions are based on culpability and the charge that is brought must be based on the degree of culpability, not on the consequences, which, when there is negligence, are a matter for civil law.
I went over a crossroads the other day without noticing. We have all had moments like that. If another car had been there I could have killed myself and someone else. The degree of my carelessness in driving, rather than the consequences, would have been at issue. That information must be given to people so that they can separate the civil from the criminal issues.
The matter of previous convictions is often raised. We must make clearer the distinction between trying somebody on the evidence for a particular charge, and previous convictions that are relevant to the sentencing. Although an action may result in death from horrendous injuries, it is the degree of culpability in the driving that is at issue—and it may be minor. You might look away for just a moment, your car mounts the pavement and there happen to be people there. Another time, there might be nobody, and you might hit only a lamp-post.
I do not think that, as has been suggested, legal aid is available for fatal accident inquiries, although I may be wrong.
I do not think that that is central to our discussion today.
Fatal accident inquiries were raised during the discussion of the Dekker petition.
A separate petition on legal aid and how it applies to fatal accident inquiries will come before us soon. We will not get too caught up in that now.
I would just like to say in passing that allowing victims' relatives access to legal aid would help them to expose the facts of a case.
Research into sentencing policy has been mentioned. The communication with victims' families to which Pauline McNeill referred is terribly important throughout the process. From the time the police charge or catch the accused to the point of sentencing, no referral is made to a victim's parents or relatives, so they have no idea what is going on. They are not valued in that process, but valuing them would help them.
A more immediate problem, which must be mentioned, is the pressure on the procurator fiscal service. We must examine that service's work load and the number of cases with which it must deal. That work load—I am making no allegations here—might lead to some cases being processed more rapidly than others. Anyone who attends a sheriff court will see the pile of papers procurators fiscal must go through and which they might have received only that morning. We must examine the possibility of putting money into the service to ensure that every case receives the attention it deserves.
It would not be appropriate for the committee to take evidence from Mr and Mrs Dekker.
We should not bring the Dekkers to the committee—they have been through enough. Members have had plenty of correspondence from them. There is nothing the Justice and Home Affairs Committee can do and I am reluctant to ask them to come along if that would give them false hope that we might find a solution.
Christine's point about victims' families and fatal accident inquiries is important. I am lodging a motion on that subject. The procurator fiscal exists to serve the public interest, but the Legal Aid Board seems to think that the procurator fiscal should serve victims' families' interests—the two do not necessarily coincide. In cases such as that of the Dekkers, families might be more inclined to feel that justice has been served if they can be represented at fatal accident inquiries.
I agree with Gordon Jackson—it is important that a line is drawn. It would be wrong of the committee to give people false hopes that it might investigate cases and, perhaps, have decisions overturned.
We talk about open government but, at times, there seems to be a cloak of secrecy around the Lord Advocate. As Christine Grahame suggested, there is often a lack of communication with victims' families in the run-up to a trial. That must be examined.
Christine also mentioned careless driving. I emphasised that I appreciate that somebody might die as the result of an act of carelessness, but when people take deliberate actions that they know cut across the law, they endanger everybody.
Kate said that the Dekkers see the case as continuing and that they are looking for some personal support. I do not think that they are. They feel great grief at the loss of their son and they want to protect those who find themselves in the same situation in the future. They have seen that a problem exists and they want it to be changed. I have sympathy with them. We can do something about the problem by looking at the Dekker case and others. The problem will not go away.
I know of the Montgomery family who lost a daughter. It is possible that, in that case, the fire service arrived before the police and removed evidence that would have enabled the police to determine whether there was a case for pursuing an action for careless driving rather than dangerous driving. Doubts were left in the minds of the victim's family. In a fatal accident inquiry, families should feel reasonably sure that all the evidence has been examined and that a charge of, for example, careless driving was justified.
Christine said something that concerns me. She talked about the pressures on the Crown Office. I appreciate those pressures, and the pressures on sheriffs and sheriff courts in view of the recent problems with temporary sheriffs. I would hate to think that that was a factor in determining justice. We will be told by the Lord Advocate that it is not, but the fact that Christine mentioned it shows that it is in people's minds. I believe that it could be a factor. If a dangerous driving charge is brought and requires a lot of evidence to be gathered and a lot of court time to be taken up, and it is known that the driver will plead guilty to the charge, there may be a great temptation to ease the pressure that Christine spoke about. With that in mind, my concerns remain.
If these incidents had happened in industry, a fatal accident inquiry would have followed automatically. We might consider that. I am not saying that it is a solution; I am suggesting that the committee could consider the matter with a view to the future and making people more comfortable with the law.
Phil says that we should distinguish between an act of momentary carelessness and a deliberate flouting of the law. We do. That is why we prosecute people for dangerous driving. I accept that there may be occasions when the Lord Advocate gets it wrong. With the benefit of hindsight, with thousands of charges, one could query individual decisions, but the way in which those decisions were made was not wrong.
In the case of the Dekker family, there was a fatal accident inquiry, at which the sheriff said, having studied the case, that in his view the decision was correct. There cannot be a fatal accident inquiry every time there is a road traffic fatality. That is not possible. I am not even sure there could be one every time the family wanted it unless there was an objective reason for having one. What is true is that we may need to improve transparency and openness and the way in which we deal with victims.
It is true to say that the culture in the law of Scotland—going back to my generation—was to ignore victims. Going back 15 or 20 years, nobody gave them a thought. That was a disgraceful way to deal with people who had suffered through crime. We have gone a long way towards improving that. If the committee can suggest ways in which to make progress, perhaps we should do so, but that is not a road traffic issue; it has to do with how we deal with victims of violence, victims of house breaking and victims of every sort of crime.
The law is not wrong on this issue. There is a misunderstanding. Phil mentioned a person who goes out with no MOT, no insurance and no licence—a deliberate flouter of the law—but that does not tell us how they were driving. Someone can go out with no documentation and have a momentary lapse. Somebody can go out kitted out with all the documentation in the world and drive dangerously. We have to consider their driving. We can ask the Lord Advocate to meet us, but I do not see the point. I do not speak for him, but he has written a long letter and I do not think that he has anything further to tell us.
I take Kate's point. I do not want to give out the message that we will have another inquiry, set aside two weeks, invite witnesses and tell people who are terribly concerned about this issue that the Justice and Home Affairs Committee will help them. We would be giving a false message and it would not be a kindness. We have to draw a line under this issue.
Gordon covered the point that I wanted to make: just because someone does not have an MOT or road tax it does not mean that they are a dangerous driver.
I presume that that would also be in the complaint, but that was not the point I wish to make.
I want to ask Gordon a question that does not concern this case. I mentioned pressure on the procurator fiscal. He will see it more than I do. Do we need to provide more funding for the Crown Office so that it can take time on a range of cases?
I do not want us to go into that now, because our discussion would not be informed by any evidence. However, it is an issue that we may want to consider in our first meeting after the Easter recess, when we will consider a range of issues, including the accessibility of legal aid. At that meeting we will also be able to plan our future business.
We should try to stick to the general issues that are raised in this petition, rather than go down the road of revisiting specific cases. We are in danger of doing that. I am thinking particularly of cases that have already been dealt with under all the available legal procedures. The committee is under great pressure from many individuals who see us as some kind of alternative appeal court. We have to be careful not to put ourselves in that position.
We are under no obligation to come to a final decision on this matter today, and we should not try to do so. We do not need to resolve this today.
On page 8 of his letter of 5 January, the Lord Advocate says that, at the moment, there is
"a feasibility study looking at a model for the delivery of better, integrated services to victims and witnesses and, in particular, to the provision of information in a more structured way to victims of crimes that are reported to the Procurator Fiscal."
In his evidence to the committee in August, the Lord Advocate said that he wants to advise the committee of the outcome of that work. In his letter, he says that he hopes to be in a position to do that in the spring. Therefore, we may get some more relevant information on the involvement of victims and their families in the next few months.
On the basis of the information that we have received from the Scottish Parliament information centre, I wish, if the committee agrees, to write to the Department of the Environment, Transport and the Regions about its study. Apart from anything else, I feel that it should have these petitions brought to its attention, if that has not already been done. We are entitled to do that, and I would like to hear the DETR's response in more detail than we have from SPICe.
I would like the committee to wait until it has seen the response of the Dekker family to the Lord Advocate's letter. The family has advised us that it will ensure that committee members have a copy of that response. That is another reason for not coming to a final decision today.
We have to be careful not to raise false hopes and expectations about what can be achieved. We may go back to the Lord Advocate to inquire more closely into victim support, and whether things such as these petitions are being taken into account. I am sure that they are. I hope that we can return to this issue during one of our meetings in February, so that it is not put off for too long. Because we have moved to stage 2 of Executive bills, it will often be difficult to make room for other things.
Will you, or the Public Petitions Committee, contact the Dekker family to let them know that we are still considering their petition?
Yes. The family is being kept informed of what we are doing and what we are not doing. The prosecution service may want to take note of that example.
With the committee's agreement, we will deal with this, in the short term, in the way that I have outlined; in the near future, we will have to agree on what to do in the longer term.
Members indicated agreement.