Crime and Courts Bill [Lords]

David Burrowes Excerpts

Wednesday 13th March 2013 Commons Chamber

[Mr Deputy Speaker (Mr Lindsay Hoyle)]

I now have to announce the result of today’s deferred Divisions. In the deferred Division on the draft Conditional Fee Agreements Order 2013, the Ayes were 288 and the Noes 225, so the Ayes have it.

In the deferred Division on the draft Non-Domestic Rating (Levy and Safety Net) Regulations 2013, the Ayes were 286, the Noes 223, so the Ayes have it.

In the deferred Division on the draft Tax Credits Up-rating, etc. Regulations 2013, the Ayes were 286, the Noes 228, so the Ayes have it.

In the deferred Division on the draft Renewable Transport Fuel Obligations (Amendment) Order 2013, the Ayes were 289, the Noes were 224, so the Ayes have it.

[The Division lists are published at the end of today’s debates.]

New Clause 18

Sanction for and trial in relation to drink driving

‘Schedule 2 of the Road Traffic Offenders Act 1988 is amended such that the time period stipulated as punishment for an offence under section 5 of the Road Traffic Act 1988 (driving or being in charge of a motor vehicle with alcohol concentration above prescribed limit) is two years and such that the said offence shall be triable either way.’.—(Mr Burrowes.)

Brought up, and read the First time.

[Mr David Burrowes (Enfield, Southgate) (Con)]

I beg to move, That the clause be read a Second time.

[Mr Deputy Speaker (Mr Lindsay Hoyle)]

With this it will be convenient to discuss the following:

Amendment 120, in clause 41, page 45, line 44, in clause 41, at end insert—

‘(3A) In section 3ZB of the 1988 Act (causing death by driving: unlicensed, disqualified or uninsured drivers), after (c) insert—

“(d) section 5A of this Act (driving or being in charge of a motor vehicle with concentration of specified controlled drug above specified limit).”.’.

Amendment 2, page 46, line 31, in clause 41, at end add—

‘(8) The Secretary of State shall have responsibility to ensure that within 12 months of Royal Assent an assessment has been made by the Home Office on the impact of this section on equipment, training and resources with particular regard to published impact assessments from the Home Office, Department for Transport, Department of Justice and the Crown Prosecution Service.’.

Amendment 89, page 46, line 34, in clause 42, at end insert—

‘(1A) In section 4(1) (“Fear or provocation of violence”) for “abusive or insulting” in the two places where it occurs substitute “or abusive”.

(1B) In section 4A(1) (“Intentional harassment, alarm or distress”) for “abusive or insulting” in the two places where it occurs substitute “or abusive”.’.

Amendment 90, page 46, line 36, in clause 42, at end insert—

‘(6) In section 6(3) (“mental element: miscellaneous”) for “abusive or insulting” in the two places where it occurs substitute “or abusive”.’.

Government amendment 84.

[Mr Burrowes]

Both new clause 18 and amendment 120 concern sentences for driving over the prescribed limits for drugs and alcohol and both seek to fill a gap in sentencing. There are 220 traffic cases each year in which individuals die on our roads owing to a driver who has been impaired through drink or drugs.

On the subject of filling gaps, I pay tribute to the Government for filling the gap in drug-driving offences. The new offence will not require proof of impairment. Owing to the imminent arrival of roadside drugalysers, it will become an offence that sits alongside drink-driving. It will be possible to rely on proof that someone is over the prescribed limit, whether for alcohol or drugs, rather than relying solely on proof of impairment.

Here I must declare an interest as a criminal defence solicitor. I must confess that I recall many prosecutions that did not succeed because of ambiguities and complexities relating to proof of impairment. The filling of that gap might not have been welcome to some of my clients of old, but it will be welcome to victims of offences of this kind, and it will be welcome to those who believe that it is in the public interest to ensure that drink and drug-driving offences are prosecuted properly.

However, I am also concerned about another gap. The purpose of new clause 18 and amendment 120 is to draw attention to it, and to ensure that, in one way or another, we fill it. Without the new clause, the maximum custodial sentence for driving after consuming excess alcohol, or indeed drugs over the prescribed limit, will still be six months’ imprisonment. Statute has properly provided that, if carelessness or dangerousness is proved, greater penalties will follow. The last Conservative Government recognised the need to ensure that drivers who caused death while under the influence of drugs or drink should be more heavily penalised. We now have on the statute book the offence of death caused by careless driving while the driver is under the influence of drugs or alcohol, which attracts a maximum sentence of 14 years.

In 2011, the number of drivers tried for causing death by careless driving while under the influence of drink or drugs was 27, and the number of those convicted was zero. Rather than relying on the good work of the last Conservative Government, we need to ensure that it is followed through in practice. When it comes to the sad and tragic cases of people who die as a result of the actions of drivers, particularly drivers who are under the influence of drink or drugs, there must be a penalty that exceeds the fairly minimum penalty of a six-month sentence.

[Jim Shannon (Strangford) (DUP)]

I believe that in Northern Ireland there are already rules, regulations and laws that address this issue specifically. There has also been a campaign aimed at dealing with drink and drugs. Does the hon. Gentleman think that it might help the Government to contact the Department of Justice in Northern Ireland, where policing and justice are a devolved matter? Might they learn something about how these matters can be handled?

[Mr Burrowes]

The amendments are intended to enable the Government to conduct a proactive review, which should, indeed, involve looking at what happens on the opposite shore. We all want to tackle the profound consequences of death caused by drivers under the influence, and ensure that they receive the appropriate penalty.

[Rehman Chishti (Gillingham and Rainham) (Con)]

I, too, must make a declaration. I was a criminal barrister who both prosecuted and defended.

As my hon. Friend says, the maximum custodial sentence for a first offence of drinking and driving is six months. It is the same for a second, third and fourth offence. Does he agree that drink-drivers who pose a threat on our roads should receive longer sentences, and that their cases should be sent to the Crown court where there can be multiple convictions?

[Mr Burrowes]

I remember briefing my hon. Friend on many occasions. He was a great advocate in courts in Enfield and Haringey, and he continues that advocacy in the House. He has made an important point. There is a parallel between dealing with drink-driving cases and dealing with, for example, cases of criminal damage. Where there is a succession of criminal damage cases, later cases can receive a higher penalty and can be committed to the Crown court; indeed, there are categories of criminal damage that attract a higher penalty and the attention of the Crown court. The Government should look at whether that principle, which is already in statute, should be applied to drink-drive cases that have the most serious consequences.

We have already crossed the Rubicon in terms of culpability and consequences in death by careless driving and dangerous driving. We have recognised that there needs to be a particular way of dealing with penalties that is aligned to the consequences, rather than looking at culpability alone. My amendments seek to take that a stage further.

My hon. Friend the Member for Croydon Central (Gavin Barwell) would be here in the Chamber supporting me if he were not in a Committee. He has fought a valiant and successful campaign as a result of the tragic case of one of his constituents who died as a result of someone driving carelessly. The issue of impairment must be dealt with properly and that will now happen. He and I share the concern that the new offence of drug-driving needs to address the issue of fatalities, which was where the campaign that led to the new offence began. It would therefore be ironic if we were left with a Bill that does not deal with cases where dangerous driving cannot be proved independently but people who are plainly under the influence of drugs or drink have killed someone, and they can—perhaps through the hard work in years gone by of my hon. Friend the Member for Gillingham and Rainham (Rehman Chishti) and myself as defence solicitors and barristers—get to the point where there is a lesser plea of drink-drive with a six-month penalty.

Sadly, that has already happened. We have heard that 27 people were tried and nil were convicted on this charge. I am concerned that in those cases there was a plea bargain to the lesser charge of drink-drive.

The explanatory notes to the Bill make another important point. It is stated about schedule 18:

“Paragraph 2 amends section 3A of the 1988 Act so that if the person had a controlled drug in the blood or urine in excess of the specified limit for that drug, the person could be charged with the more serious offence in that section of causing death by careless driving when under the influence of drink or drugs.”

I was proud to serve on the Bill Committee, and I sought clarity from the Minister about this point, which had been raised in correspondence with the Department for Transport and the Ministry of Justice dating back to March 2012 and in the campaign I mentioned earlier that sought a higher penalty in cases where it was not possible to prove careless driving. Unfortunately, now, a year after that correspondence began, we are in the final throes of the passage of the Bill.

This point has been made not just by me; this was not just a hobby-horse of mine—it is not about me wanting to make a point and send out a press release. It was made by Chief Superintendent David Snelling, who was an excellent commander of the Met traffic division, and it also came to the fore as a result of the campaigning efforts of my constituents, the Galli-Atkinson family, who lost their daughter as a result of dangerous driving and who saw a gap involving fatalities in drink and drug cases that are not prosecuted as they should be, so we do not end up with the sentences that the dead victims and their families deserve. They make their point based on the practical reality of cases that actually arise, and that is also the basis of my amendments.

The gap is in hit-and-run cases where a driver who is over the limit on drink or drugs crashes into another car or a pedestrian and kills, and then leaves the scene. In situations where fatalities occur, such cases are not infrequent, as—it will not surprise Members to learn—many people who know they are over the limit will do their best to evade prosecution, so they will leave the scene. They get hunted down and arrested, and when they are found to be over the limit the prosecution begins and the investigation continues. A prosecution for a failure to stop carries a limited penalty that does not reflect the gravity of the situation, and I have previously sought amendments to extend the penalties in that regard.

The prosecutor is left with the option of prosecuting for death by careless driving, but the problem is that there is no witness. In these cases, often the only witness is dead; there is nobody left. The steps are then traced back and the scene is marked out. The marks on the road might allow people to come up with a prosecution that shows that careless driving took place, because there are signs of speed, swerving, braking and so on. But it may well be that none of that is available, as perhaps it was a wet day and very little could be shown. Little corroborative evidence may be available beyond the fact that the person has died because of that vehicle and that driver, and all we have left is the fact that the driver was over the limit.

Sadly, all the prosecutor can perhaps do is prosecute for driving with excess alcohol or driving over the prescribed limit for drugs, which carries a maximum sentence of six months. Clearly that is not acceptable, given the gravity of the situation. Over the years, Parliament has recognised that where a death occurs as a result of driving it needs to be dealt with, and quite properly so. So that sets out the gap I am seeking to fill through my proposals.

The issue is whether there can be independent proof of careless driving and whether that must be sought out. In Committee, I asked the Minister what he thought of the situation and asked him for clarification. I said:

“I want it to be made clear…that it will not be necessary for the prosecutor to independently prove careless driving as the standard of driving, and that the effect is that someone’s being over the prescribed limit for drugs or alcohol will be sufficient for the prosecutor to be able to make the decision to charge them with a serious offence.”

He replied:

“My understanding is that it will not be necessary. I hope that I have clarified the point.”––[Official Report, Crime and Courts Public Bill Committee, 7 February 2013; c. 394-95.]

I would settle for that and move on. Indeed, I would probably have a press release saying, “I welcome the fact that the Minister has recognised that drivers who are over the limit and kill will get a higher penalty, which amounts to a maximum 14 years.” I would rest easy that the campaign has been successful, the victim’s voice has been heard, and the chief superintendent and police on the ground have recognised that gap and say, ”That is good. That has been dealt with.”

However, I then received correspondence from the Under-Secretary of State for Transport, my hon. Friend the Member for Lewes (Norman Baker), in what we might term “Yes Minister” language, saying that there “may be confusion”. That is what has led me to table new clause 18 and amendment 120. It was clear in the Bill Committee that we would have confusion, so today the Minister has an opportunity to be brave and to fill the gaps that I have had a go at filling through a couple of options.

One option, new clause 18, would make drink-driving or driving over the prescribed drug limit an either-way offence—one capable of being committed to the Crown court and then attracting a maximum sentence of two years. The other option is amendment 120, whereby those on licence, disqualified drivers and uninsured drivers who kill in this way will face a heavy penalty of two years. That simply adds to the list in respect of drink-driving.

I have to put my lawyer’s hat on, because I appreciate that people may have concerns about new clause 18 opening up all drink-driving cases to a Crown court trial; I recognise the expense and the vagaries of jury trials, and that that is not wholly satisfactory in itself. I am perhaps being generous in how I am presenting new clause 18 and it perhaps needs to be refined. Perhaps it should be simply specified in relation to fatalities. My hon. Friend the Member for Gillingham and Rainham suggests making specific provision about repeat drink-driving offenders. There is certainly a role for making only those high-end cases liable for a committal to Crown court, in a similar way to what happens in the criminal damages cases I referred to earlier.

Another way around that would be to deal with magistrates’ maximum sentencing powers. Perhaps the Government will respond to the calls from the Magistrates Association to extend their powers to a maximum of two years. Youth courts have a two-year custodial sentence power, so perhaps we should have equity for adult courts. That would be much more cost-effective and would avoid cases all going to the Crown court and we lawyers being paid more up there—although we must appreciate the legal aid restrictions in that regard. The issue could then be dealt with in a magistrates court in a proportionate manner. That option is also open to the Government.

I recognise that there are reservations about amendment 120. As a lawyer, I am not keen on extending strict liability cases too readily and the amendment would certainly effectively extend a strict liability scenario to drink and drug-driving-related cases. Nevertheless, my amendment is clean cut. It does not extend the powers of the Crown court to all drink-driving cases but relates specifically to fatalities. It deals with the issues that have motivated my amendments and merely adds to the list of offences. Members of the public might ask what the difference is: if someone takes the risk of driving while uninsured, disqualified or without a licence, they are pretty careless to do that and should accept the consequences, and the same applies to those who are over the prescribed limits. My amendment would retain the statutory defence for drink-drive cases and would therefore have less of a strict liability nature.

The Government need to fill the gap. I am trying my best to do that and have provided two options. There might be more and I have no doubt that the Minister can tell us about any others. I look forward to seeing how the Government will do it as this is a real problem that should not be ignored. The fact that there were 220 deaths in a year but only 27 people were charged with causing death by dangerous driving while impaired in the same period makes the point very clearly. Large numbers of impaired drivers who kill are, for one reason or another, avoiding prosecution for the more serious offence and are probably ending up being charged with the lesser drink-drive offence.

In conclusion, I spoke to Ministers before tabling the amendments. I welcome the commitment from Transport Ministers that if I can provide evidence that proving carelessness is problematic, the Department will review the case for amending legislation. The statistics I have given are evidence and I put the burden of proof on the Government. I ask them to review the issue and seek to prove the point. We are very much in the end game on this Bill. Some might say we should have done that earlier to avoid getting into such a situation, but I urge the Government to recognise that we have a problem and to fix it. I look forward to hearing from the Minister.

[Susan Elan Jones (Clwyd South) (Lab)]

It is a great pleasure to contribute, albeit briefly, to the debate. It is also a great pleasure to follow the hon. Member for Enfield, Southgate (Mr Burrowes), who made an extremely powerful case about the complexities of the situation. At the heart of the matter is the fact that, as we all know, people kill other people on the roads yet seem to receive remarkably light sentences. His points about people abusing drugs and alcohol before going on to kill someone were powerful.

There was a case in my constituency that was not drug or alcohol-related but demonstrated an anomaly. Many other people are trying find a solution to this, and I shall introduce a ten-minute rule Bill on the subject later in the spring, but today, in the light of what the hon. Gentleman said, I want to ask the Minister a couple of questions.

--- Later in debate ---

[Stella Creasy (Walthamstow) (Lab/Co-op)]

I speak on behalf of the Opposition on this collection of amendments. The Bill has been called a Christmas tree because of the number of different issues that have been tacked on to it. This selection of amendments feels a little like a series of tinsels and baubles and some fairy lights, but when those are all put together, they create the Crime and Courts Bill.

Before turning to our amendment 2, I shall make a few brief comments on new clause 18 and amendment 120 tabled by the hon. Member for Enfield, Southgate (Mr Burrowes). All of us have sympathy for the concerns that he raises, and we will have seen cases in our own constituencies where people’s lives and families have been devastated by drink-driving. It is disappointing that these amendments were not tabled in Committee. The hon. Gentleman and I spoke at length about various issues, and it would have been good to get some guidance from the Government about the implications of the discussion that he had with them. There are issues that merit further examination, but I am not sure whether Report stage is the right time for that. No doubt we will hear from the Minister about the implications of implementation.

Some issues will need to be taken into account in respect of the powers of magistrates. We all understand and have sympathy with the idea of flexibility in sentencing, but there may be concerns about what that might mean for the sentences handed out. I am not clear what the hon. Member for Enfield, Southgate seeks to achieve with amendment 120. He might inadvertently remove the offence of careless driving and I am sure he would not wish to do that. Somebody who gets behind the wheel and is already over the limit through medication would drive carelessly in any case—

[Mr Burrowes]

The prosecution may want to push forward a prosecution for careless driving with limited independent evidence of standard driving, but the CPS guidance is clear that being over the limit does not in itself amount to carelessness. Relying on that to prosecute for carelessness is not good enough. That is the reason for my amendment, which expresses a concern that the Government need to hear.

[Stella Creasy]

I understand the point that the hon. Gentleman makes. That is exactly why we needed to test in Committee the consequences of the changes that his amendment would make. That would have allowed us to hear a fuller explanation from the Government of the consequences. I hope I am proved wrong by the Minister and that he will give us an extensive explanation of the potential impact of the amendments. I would want clarification of the consequences where an individual involved in an accident might be over the limit through medication but would not be at fault for the accident itself. I welcome rather belatedly the bauble that the hon. Gentleman wishes to add to the Bill and I look forward to the Minister’s response to it.

Amendment 2 reflects the Opposition’s concerns about the implications of the Bill for the laws on drug-driving. We welcome the proposals to make driving while under the influence of illegal drugs against the law. I am disappointed not to see in the Chamber the hon. Member for Croydon Central (Gavin Barwell), given the work that he has done on the issue on behalf of his constituent, Lillian Groves. We know that drug-driving will be a substantial offence. We know from the Government’s impact assessment that more than 2,000 people will be affected by the new provision.

As the Minister told the Committee, although it may not be on a scale comparable to drink-driving, it is important that we close the gap that drug-driving has created. However, there is no point in having a power if one cannot put it into practice. Amendment 2 requires the Government to ensure, through an impact assessment, that the clause can be enacted across the country. That will entail looking at the equipment, training and resources that the Home Office, the Department for Transport, the Ministry of Justice and the Crown Prosecution Service have to enable them to implement the law.

Those concerns reflect the debates we had in Committee, when the Government were simply unable to explain what work they had done to ensure that the potential new offence could in fact be prosecuted. We had a number of questions about the logistics of rolling out this policy across the country. With that in mind, I want to ask the Minister a series of questions, which I hope he will answer when he responds.

--- Later in debate ---

[Mr Browne]

The Government will publish a revised impact assessment alongside our consultation on the drugs to be covered by the new offence and the limit for each, and we will revise it again, if required, before the draft regulations are laid before Parliament. As the regulations are subject to the affirmative procedure, they will need to be debated and approved by each House before they can be made and come into force. Given the requirement to consult on the draft regulations and then to have them approved, we are working on the basis that the new offence will come into force in the latter half of 2014, as I said a few moments ago.

On that basis, I would suggest that requiring a full evaluation of the impact of the new offence just 12 months after Royal Assent would be premature. However, I can assure the House that the Government will commission research to evaluate the effectiveness of the new offence once it is in operation. The research will take account of the impact of the new offence on the police, prosecutors and the courts. The results of such research will be published on the Department for Transport’s website. A lot of the responsibility sits with the Department for Transport rather than the Home Office, but I am not in a position to give the hon. Lady a definitive date when these matters can be considered in detail. All I can give is an assurance that this work is being undertaken and that opportunities will exist to consider such matters. I say this entirely in a spirit of openness, but I see no reason why we would not wish to give Members in all parts of the House an opportunity to consider the progress the Government have made when we are in a position to bring forward proposals that will stimulate a debate and consideration of that type.

With that, I hope that Members will see fit not to press their amendments, and I commend Government amendment 84 to the House.

[Mr Burrowes]

I welcome the debate on new clause 18. The hon. Member for Walthamstow (Stella Creasy) referred to the proposals as a “bauble”, but this is a serious matter and I am not sure that the victims, the police and the road safety charities behind the new clause would appreciate it being referred to as a bauble. However, I appreciate that her comments were being made in the general context of the Bill.