A Guide to Road Traffic Sentencing

Road traffic offences are criminal offences and, as such, drivers who are found guilty will be sentenced by the Magistrates Court or the Crown Court, depending on the seriousness of the offence.  In this article we take a brief look at what sentencing options are available to the court when sentencing an individual for road traffic offences after a guilty plea, or after being found guilty following a trial.

It should be noted from the outset that the focus of this article is on sentencing for adults – there are significant differences when sentencing those under the age of 18.

The Role of Sentencing Guidelines

The Sentencing Council[1] produces guidelines to be used by the court during the sentencing process.  Guidelines have been produced for almost all road traffic offences, and are always a good starting point in estimating what sentence a driver is likely to receive.

Although the guidelines are not absolutely binding, the general rule is that they must be strictly followed unless the court is satisfied that it would be contrary to the interests of justice to do so.[2]  However, a recent case emphasised the fact that “guidelines are not tramlines – nor are they ring-fenced”[3] which means that, with the expertise of a Road Law Barrister on your side, it is possible to persuade the court to take a more flexible approach to sentencing than would otherwise be the case.

One example of this was the case of R v H which was heard in York Magistrates Court in 2014.[4]  Mr H pleaded guilty to dangerous driving and, according to the guidelines, was likely to receive either a high level community order or a period of imprisonment.  However, submissions made by his Road Law Barrister meant that Mr H actually left court with an absolute discharge, which is the most lenient sentence possible in law.  This illustrates the true value of being represented by an experienced Road Law Barrister at a sentencing hearing.

Guilty Pleas

It should also be noted that, under s144 Criminal Justice Act 2003, a court must take into account any guilty plea made by the defendant when considering what sentence to impose.  The Sentencing Council has produced a comprehensive guide as to how this should be approached[5], but the general rule is that a defendant will receive a reduction of one third if he pleads guilty at the earliest possible opportunity (which is usually his first court appearance).  The appropriate reduction will decrease the further through the court process the case gets, meaning that a defendant will receive a much lower reduction of around 10% if he pleads guilty “at the door of the court” on the day of his trial.

It should be noted that this reduction does not apply to the length of any ancillary order, including a disqualification from driving,[6] and is likely to be of a reduced level where the prosecution case is overwhelming.[7]

Road Traffic Specific Sentences

As Road Traffic offences are a very specific type of criminal offence, a number of context specific sentences have been created to address offending in this area.  A selection of these is outlined below.  It should be noted that in some cases the court can combine a number of different sentences so that the offending behaviour is adequately reflected by the sentence that has been passed – however this can get complicated, especially when a driver is being sentenced for more than one offence at the same sentencing hearing, so specialist advice from a member of our team is recommended.

1. Forfeiture of motor vehicle – the court can order, in some cases, that the vehicle involved in the offence be forfeited to the police.[8]
2. Disqualification – unless there are “special reasons”, a driver who is convicted of an offence involving obligatory disqualification must be disqualified from driving for at least 12 months.  (See our previous article on special reasons for further information.[9])  However, where the offence involves discretionary disqualification, the court has a choice as to whether it disqualifies.  Typically, only the most serious variants of qualifying offences will attract discretionary disqualification where the offence in question is a first offence.[10]  The court can also disqualify under the ‘totting up’ provisions if the driver has accumulated 12 or more penalty points, unless there are mitigating circumstances.  (See our previous article on mitigating circumstances for further information.[11])
3. Penalty points and endorsement – the majority of road traffic offences carry penalty points which should be endorsed on offender’s driving record, together with particulars of the offence, upon conviction.  The driving record used to take the form of the paper counterpart to the driving license, but it is now an entirely computerised system operated by the DVLA.  (Note that, where the driver is disqualified for an offence, penalty points must not be additionally endorsed in respect of the same offence.)[12]

“Mainstream” Sentences

As Road Traffic offences are criminal offences, it is possible for drivers to receive sentences which are applicable to the whole of the criminal law instead of or in addition to the specific sentences outlined above.  The three most common ‘mainstream’ sentences are outlined below.

1. Imprisonment – as with most serious criminal offences, a driver could be sent to prison if the offence is so serious that it crosses the ‘custody threshold’ (ie. that the offence “was so serious that neither a fine alone nor a community sentence can be justified for the offence”).[13]  The general idea is that prison should be seen as a last resort; however some offences, such as causing death by dangerous driving, are so serious that custody is the only option, according to the sentencing guidelines.  In cases where the court is going to sentence an offender to between 14 days and 2 years in prison, the court has the option of ‘suspending’ the sentence for up to 2 years.  This means that the offender will not be sent to prison immediately, but if they commit a further offence or breach any conditions set out by the court during this time, their suspended sentence will be ‘activated’ and they will serve the prison sentence that they would have received had the sentence not been suspended.  The court can essentially set the same conditions as are available when making a community order (see below).
2. Community Order – this type of sentence allows an offender to serve their sentence in the community, and may only be passed when the court considers that the offence was “serious enough to warrant such a sentence”.[14]  For this type of sentence, the court will order the offender to do a certain activity (such as unpaid work) and/or attend supervision or counselling appointments with a view to preventing further offending through rehabilitation.  The court can also impose restrictive requirements such as curfews and residence requirements, and can ban an offender from going to certain geographical locations.  The community order is arguably the most flexible sentence in that it can take many different forms depending on the circumstances of the individual offender.
3. Fine – for offences of low seriousness, the court can choose to simply fine the driver a sum of money.  Whilst the level of the fine must reflect the seriousness of the offence,[15] the court must also take into account the driver’s financial circumstances.[16]  This means that if the driver has a very limited income, the fine will be lessened so as not to exceed his means disproportionately.[17]  However, if the driver is very wealthy, the fine may legitimately be amplified so as to increase its impact.[18]  It should be noted that a failure to pay a fine imposed by the court is likely to result in a prison sentence.[19]

The court can also order “discharges”.  An absolute discharge is the most lenient sentence available in law, and is essentially where the court decides to impose no sentence whatsoever.  A conditional discharge is the second most lenient sentence, and is essentially an absolute discharge on the sole condition that the defendant does not commit a further offence within a specified period.

Conclusion

As noted above, the assistance of a Road Law Barrister can have an enormous impact on the court’s decision as to sentencing – you could quite realistically enter court expecting prison and drive home with your license intact, having received an absolute discharge.  If you are due to be sentenced for a road traffic offence, please contact us today for your free consultation.

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The contents of this article should not be relied upon in isolation.  Each case is fact specific and this article should not be treated as legal advice or as a substitute for legal advice.