Sally Kyd, Professor of Law, University of Leicester, PACTS advisor
Professor Sally Kyd is a leading scholar in criminal law at the University of Leicester whose research focuses on road traffic offending, particularly the investigation, prosecution and sentencing of driving-related harm and death. Her work combines doctrinal analysis with empirical research to examine how offences such as causing death by driving, dangerous and careless driving, and emerging issues including automated vehicles operate in practice, with a sustained emphasis on improving consistency, fairness and road safety outcomes. She is a contributor to Blackstone’s Criminal Practice (Part C: Road Traffic Offences), a leading practitioner text widely used in the criminal courts, reflecting her expertise at the intersection of law and practice. Drawing on major funded projects examining prosecutorial decision-making, enforcement practices and sentencing, her research seeks to inform policy debates and operational approaches to roads policing, and she currently serves on the Policy and Research Committee of the Parliamentary Advisory Council for Transport Safety (PACTS).
Recently, I was fortunate to have an article I submitted to The Guardian’s Comment is Free column published in hard copy and online. As an academic, I am accustomed to writing for a very different audience, and approached this opportunity with some trepidation. However, the response to the piece has, overall, been very positive.
The article sought to highlight a long‑standing problem: inconsistency in how criminal offences related to driving are defined, interpreted and applied. The criminal law attempts to influence driver behaviour and reduce road harm in several distinct ways. Some offences prohibit specific behaviours outright, such as speeding, driving under the influence of drink or drugs, or using a hand‑held mobile phone while driving. Others require compliance with pre‑conditions for lawful driving, including appropriate licensing and vehicle roadworthiness (e.g. an MOT). A third category punishes those whose manner of driving creates unnecessary risk on the road, most notably through the offences of careless driving and dangerous driving.
These latter offences also underpin the more serious aggravated offences of causing death or causing serious injury by driving. My Guardian article focused specifically on causing death by careless driving and causing death by dangerous driving. It is the criminal justice system’s treatment of these offences that appears to cause the greatest public concern. Our response to death as harm is distinct because death itself is unique, and this is reflected in criminal law. Causing death by dangerous driving now carries a maximum sentence of life imprisonment.
While sentencing in cases of road death is undoubtedly important, it was not the focus of my Guardian piece. I asked The Guardian to change the original print headline — “Why do some killer drivers get short prison sentences? UK road safety laws are letting them off the hook” — because it misrepresented my argument. My concern is not simply whether sentences are long enough after a death has occurred, but whether the underlying offences are clearly defined and consistently interpreted. (The headline I myself had written, but was replaced, was “A broken standard: how the law fails the victims of road violence”.)
Clarity in this area matters for two distinct reasons. First, it allows the law to communicate effectively with drivers about what is required of them, and when punishment will follow unsafe behaviour, regardless of outcome. Second, it enables the criminal justice system to punish drivers proportionately when risk materialises and death results.
In relation to this second issue, a report I authored — Behind the Headlines: Sentencing after fatal crashes, published jointly by the All‑Party Parliamentary Group for Transport Safety (APPGTS) and the All‑Party Parliamentary Group on Cycling and Walking (APPGCW) — examined sentencing outcomes for road deaths as reported in the online press. The report found that, in the vast majority of cases, the Sentencing Council’s guidelines are being followed. This has resulted in the most serious cases of road death receiving sentences in excess of the former 14‑year maximum, bringing them in line with sentences for manslaughter.
The study did identify a small number of “outlier” cases where the appropriateness of sentencing could reasonably be questioned. However, much of the variation observed is explained by factors reflecting the reality that every road death is different. The report sets out the legal reasons for sentencing disparity, such as guilty pleas, and aims to demystify what is often perceived as an opaque system. It also raises several issues that led to joint recommendations by the APPGs.
One of those issues, which I chose to highlight in my Guardian article, is the importance of the initial charging decision made by the Crown Prosecution Service (CPS). Whether an appropriate sentence can ultimately be passed depends fundamentally on whether the correct offence is charged at the outset. This question has been central to my research for over three decades, beginning with my doctoral work.
The cases of Tavener and Lonsdale, discussed in the Guardian, were selected purely as illustrative examples of the difficulties created by the current legal framework. The distinction between careless and dangerous driving has long been a grey area, and in my view that lack of clarity is worsening rather than improving. This may be partly attributable to a loss of expertise within the CPS. Chronic underinvestment across the criminal justice system — from policing to prosecution to the courts — has made it increasingly difficult to apply the law as originally envisaged by Sir Peter North QC, who conducted a comprehensive review of driving offences in 1988.
Sir Peter’s review sought to address problems created by the 1982 case of Lawrence, which redefined reckless driving. Although Lawrence is commonly understood by lawyers as establishing a test of objective recklessness, Sir Peter identified an underlying issue: the law still required too much focus on the driver’s subjective state of mind. His reform — the creation of the offence of dangerous driving to replace reckless driving — deliberately removed the need to consider what the driver was thinking. Instead, it focused on whether the driving fell below, and to what degree, the objective standard of the competent and careful driver, drawing on Scottish legal practice.
In an idealised system where such judgments were made solely by DVSA driving examiners, this test might work well, as there would likely be consensus on what constitutes competent and careful driving. In reality, however, most adults drive, and many never revisit the Highway Code after passing their test. As a result, the test becomes less objective. Jurors are likely to assess the driving they are asked to judge against their own driving standards. Twelve jurors may therefore reach twelve different conclusions. Similarly, different CPS lawyers reviewing the same case may each apply different interpretations of what the standard requires.
A key problem is that the standard of the “competent and careful driver” risks being confused with that of the “average driver”. With driving offences, including speeding, at record levels, the average driver may be neither particularly careful nor particularly competent.
Consequently, the line between careless and dangerous driving is now more blurred than ever, despite the significant legal and sentencing consequences that flow from it. Where a CPS lawyer concludes that a defendant has fallen below, but not far below, the required standard when killing another road user, the charge will be causing death by careless driving rather than causing death by dangerous driving. This charging decision effectively constrains the court. The maximum penalty for causing death by careless driving is five years’ imprisonment, compared to life imprisonment for causing death by dangerous driving.
In practice, sentencing is driven less by statutory maxima than by Sentencing Council guidelines (which are admittedly influenced by the statutory maxima). Only a conviction for murder for killing with a car will in practice result in a life sentence. The most serious cases of causing death by dangerous driving receive sentences comparable to manslaughter, while the worst instances of causing death by careless driving attract sentences in the region of 1–4 years. At the lowest level of culpability for causing death by dangerous driving, sentences range from 2–5 years. In amongst all of this, the culpability factors listed under dangerous driving suggest a potential mismatch between the factors determining charge and those determining sentence.
Had Tavener been charged with causing death by dangerous driving, the facts of the case do not obviously place him at the lowest level of culpability, despite the suggestion that his driving did not even cross the threshold for that offence. His driving involved factors associated with at least medium culpability, including the use of a mobile phone and driving at an inappropriate speed, and arguably also some associated with high culpability, such as a deliberate disregard for the rules of the road. In addition to phone use and excess speed, he overtook another vehicle on the approach to a junction. It is difficult to see how the CPS concluded that his driving did not fall far below the standard of the competent and careful driver.
Of course, it is impossible to reach a definitive conclusion without access to the full evidential picture. The CPS decision will have been based on the police file, including the Forensic Collision Investigation Report, and guided by the evidential test of a realistic prospect of conviction. We do not know whether that report contained material that weakened the case for dangerous driving. However, the dashcam footage shown in court and viewed by the judge suggests that there was sufficient evidence to persuade a jury that the required threshold was met. It is also highly unusual for a judge to question the charge selected by the prosecution.
Tavener’s guilty plea is unsurprising. It enabled him to benefit both from a lower sentencing range associated with the offence charged and from the automatic reduction for an early guilty plea. Had the CPS charged causing death by dangerous driving, it is far less likely that a guilty plea would have been entered, and a trial would almost certainly have followed. In that event, it would have been for a jury to decide whether his driving fell far below the required standard.
The CPS must therefore have concluded that jury agreement on this point could not be relied upon. Even if prosecutors themselves believed that the threshold for dangerous driving was met, they could not be confident that twelve jurors would reach the same conclusion. That, inevitably, is how such charging decisions are justified under the current law — and precisely why the lack of clarity in this area remains such a serious problem.
Although reliance on juries to resolve normative questions is not unusual in criminal law, in the context of driving the persistent lack of consensus over the elements of careless and dangerous driving arguably weakens the law’s capacity to operate as an effective regulatory tool. This matters not only for fairness and consistency in individual cases, but also for the broader goal of harm prevention: a system that cannot clearly communicate what is expected of drivers is ill‑equipped to shape behaviour or deter risk‑taking. From a Vision Zero or Safe System perspective — which rests on clear allocation of responsibility, predictability of outcomes, and systemic prevention of serious harm — this lack of legal clarity raises fundamental questions about whether the current framework is capable of supporting policy objectives that treat road death and serious injury as preventable, rather than exceptional.
