smart51
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| posted on 9/1/09 at 04:03 PM |
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quote:
Originally posted by mr henderson
I hear what you are saying, but do you agree that things should be that way?
Surely the most important fact in deciding culpability is what was in the mind of the person at the time.
Exactly, but I'd like to see you prove that in court beyond reasonable doubt. You can prove what someone did. When they did it and how they
did it. Sometimes you can demonstrate why they did it. If the accused wrote down what they intended to do then you can also use that as evidence,
otherwise proving someone's intention is tricky.
I do believe that if someone intended to commit a serious crime but only achieved a lesser one, then they should be punished in accordance with what
they did. Attempted murder is still less than murder. I would want to see a prison sentence, but would expect to see a lesser sentence than for
murder.
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mr henderson
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| posted on 9/1/09 at 04:05 PM |
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quote:
Originally posted by smart51
I still assert that crashing but causing no damage or injury is a lesser offence than the same crash under the same conditions but killing everyone in
a bus stop queue that happened to be at the site of your crash.
But how do you defend that point of view, bearing in mind that the circumstances that led to the crash were the same in each case (in other words, the
crime was the same in each case)
John
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neilj37
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| posted on 9/1/09 at 04:25 PM |
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quote:
Originally posted by mr henderson
quote:
Originally posted by smart51
I still assert that crashing but causing no damage or injury is a lesser offence than the same crash under the same conditions but killing everyone in
a bus stop queue that happened to be at the site of your crash.
But how do you defend that point of view, bearing in mind that the circumstances that led to the crash were the same in each case (in other words, the
crime was the same in each case)
John
The crime is not the same in each case though. Was the kids that were injured on the road, using a crossing or on the pavement.
If they were crossing the road without using a designated crossing then you could not be held liable for injurying them as you would not be aware that
they were there. If they were using a crossing or on the pavement then you would be committing an offence.
If you crashed the car and mounted the pavement then you could be considered driving without due car and attention. If you just crashed in the road
and did not cause any other damage than to the car then it is unlikely that the police would get involved.
[Edited on 9/1/09 by neilj37]
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mr henderson
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| posted on 9/1/09 at 04:30 PM |
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quote:
Originally posted by neilj37
quote:
Originally posted by mr henderson
quote:
Originally posted by smart51
I still assert that crashing but causing no damage or injury is a lesser offence than the same crash under the same conditions but killing everyone in
a bus stop queue that happened to be at the site of your crash.
But how do you defend that point of view, bearing in mind that the circumstances that led to the crash were the same in each case (in other words, the
crime was the same in each case)
John
The crime is not the same in each case though. Was the kids that were injured on the road, using a crossing or on the pavement.
If they were crossing the road without using a designated crossing then you could not be held liable for injurying them as you would not be aware that
they were there. If they were using a crossing or on the pavement then you would be committing an offence.
If you crashed the car and mounted the pavement then you could be considered driving without due car and attention. If you just crashed in the road
and did not cause any other damage than to the car then it is unlikely that the police would get involved.
[Edited on 9/1/09 by neilj37]
No, Smart's example was meant, I'm sure, to illustrate a situation where the event was indeed the same, with the single exception
that the children were killed in the second part, and not in the first
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smart51
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| posted on 9/1/09 at 04:35 PM |
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quote:
Originally posted by mr henderson
quote:
Originally posted by neilj37
The crime is not the same in each case though. Was the kids that were injured on the road, using a crossing or on the pavement.
If they were crossing the road without using a designated crossing then you could not be held liable for injurying them as you would not be aware that
they were there. If they were using a crossing or on the pavement then you would be committing an offence.
If you crashed the car and mounted the pavement then you could be considered driving without due car and attention. If you just crashed in the road
and did not cause any other damage than to the car then it is unlikely that the police would get involved.
[Edited on 9/1/09 by neilj37]
No, Smart's example was meant, I'm sure, to illustrate a situation where the event was indeed the same, with the single exception
that the children were killed in the second part, and not in the first
Exactly so.
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nstrug
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| posted on 9/1/09 at 04:55 PM |
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The primary determinant of the severity of the sentence is not the severity of the offence, but the charge that the CPS chooses to bring.
In the first case, it is highly unlikely that a charge would be brought, unless the accident caused a road closure or damage to street furniture, in
which case possibly a careless driving or driving without due care or attention charge might be brought.
In the second case there is a very specific charge that could be brought: causing death by careless driving. Note that this is NOT a reckless driving
charge - the prosecution merely have to prove that you were careless, not reckless. The test for carelessness is if your driving falls below the
standard expected of a reasonable, competent and prudent driver in all the circumstances of the case.
In reality, all the prosecution have to demonstrate is that a couple of drivers with clean licences (reasonable, competent and prudent) passed the
scene of the accident travelling in the same direction as you shortly before you without mishap.
Nick
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mr henderson
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| posted on 9/1/09 at 05:49 PM |
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quote:
Originally posted by nstrug
The primary determinant of the severity of the sentence is not the severity of the offence, but the charge that the CPS chooses to bring.
In the first case, it is highly unlikely that a charge would be brought, unless the accident caused a road closure or damage to street furniture, in
which case possibly a careless driving or driving without due care or attention charge might be brought.
In the second case there is a very specific charge that could be brought: causing death by careless driving. Note that this is NOT a reckless driving
charge - the prosecution merely have to prove that you were careless, not reckless. The test for carelessness is if your driving falls below the
standard expected of a reasonable, competent and prudent driver in all the circumstances of the case.
In reality, all the prosecution have to demonstrate is that a couple of drivers with clean licences (reasonable, competent and prudent) passed the
scene of the accident travelling in the same direction as you shortly before you without mishap.
Nick
Interesting. But is it fair? I think not. Unless it's the case that the driver who caused the accident was to be dealt with severely whether
or not any harm came to anybody else. And my reasoning is that he has no control over whether anybody gets hurt or not, that's all down to
chance.
John
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scootz
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| posted on 9/1/09 at 05:55 PM |
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In the first scenario, you've stated that only the chaps car was damaged - nothing else. This is a non-reportable accident. Therefore,
assuming no-one saw it happening, then no-one needs to know, so no one gets charged.
If it was witnessed, and the witnesses feel the driving was careless (i.e. fell below the standard reasonably expected of a competent driver). Then
they might report it to the police. Assuming there is sufficent evidence - the driver will either be warned or charged.
If the police witnessed it, they will either 'have words', warn, or charge.
Scenario 2 IS a reportable accident due to injury to another party, so it will be investigated as a matter of course. Because a child was injured it
is likely that some sort of report would be submitted to the Crown - probably a careless driving charge resulting in injury.
As to whether there should ACTUALLY be any difference in terms of the prosecution / sentencing... great source of debate  They both committed the
same offence, but the outcome was significantly different.
It's even more interesting when put in the context of Causing Death by Careless Driving as, at present the accused is only punished on the basis
of his carelessness - the fact someone died is not a sentencing factor (this is what's under review at present).
I would argue that every single one of us drives carelessly at some point in every single journey we make. I would therefore say that as there was NO
INTENT to drive carelessly, then the staus quo should remain and the accused should be prosecuted / sentences on the basis of his carelessness.
Causing Death by Dangerous Driving is a VERY different area as the accused CHOSE to embark on a course of actions knowing them to carry considerable
risk.
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oldtimer
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| posted on 9/1/09 at 07:26 PM |
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This is a very interesting but probably difficult to resolve post. The initial post said the driving was 'spirited' implying that
'normal' driving was exceeded, 40 mph zone or not, 40 mph may still be a dangerous speed to enter a roundabout. Speed limits are maximums,
the safe speed can be considerably less.
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mr henderson
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| posted on 9/1/09 at 07:33 PM |
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quote:
Originally posted by oldtimer
This is a very interesting but probably difficult to resolve post. The initial post said the driving was 'spirited' implying that
'normal' driving was exceeded, 40 mph zone or not, 40 mph may still be a dangerous speed to enter a roundabout. Speed limits are maximums,
the safe speed can be considerably less.
Thanks for that, but how do you feel about the actual issue? (whether it's the consequences that decide the severity of the crime (if any))
John
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oldtimer
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| posted on 9/1/09 at 07:49 PM |
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I believe the consequences are very important, and that the punishment, if any, should be proportionate. Luck has very little to do with it. Advanced
driving techniques are available to all, these really do make you think before acting. A roundabout is a very complicated piece of the road and should
be entred with caution, because we all have different abilities, and our children are the most unpradictable of all. You have to drive according to
what may happen not just to what you can see.
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mr henderson
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| posted on 9/1/09 at 07:59 PM |
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quote:
Originally posted by oldtimer
I believe the consequences are very important, and that the punishment, if any, should be proportionate. Luck has very little to do with it. Advanced
driving techniques are available to all, these really do make you think before acting. A roundabout is a very complicated piece of the road and should
be entred with caution, because we all have different abilities, and our children are the most unpradictable of all. You have to drive according to
what may happen not just to what you can see.
Do I understand you to mean, then, that if he has an accident, but nobody is hurt, then that is less deserving of punishment than if someone is
hurt?
John
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Neil P
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| posted on 9/1/09 at 08:35 PM |
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Consider a scenario where you drive along a windy road with solid white centre lines and you get held up behind other traffic. You decide to take a
chance and overtake anyway. You're lucky and get away with it.
A police officer behind you sees this happen and you probably get prosecuted for contravening the white line.
Another day you try the same manoeuvre and kill someone coming the other way.
You find yourself in crown court charged with causing death by dangerous driving. Your driving has fallen far below the standard of a careful,
competent driver.
Same circumstances, different outcomes. The charges are based on outcomes, causes and mitigating factors.
You can't attempt to kill someone by dangerous driving and I think it rightly should be based on what the result was.
Careless driving has nothing to do with what is in the mind of the driver, it is based on objective assessment of what is good driving. Usually the
circumstances would speak for themselves. If you pull out in front of someone from a junction you can't have been driving carefully. If you spin
on a road you are not driving to the conditions, it's pretty straightforward really. If you do drive round a roundabout and kill someone you
didn't know was there, should you have been driving in a way that allowed for the possibility that they could have been?
quote:
Attempted robbery is a lesser offence than robbery. Attempted murder is less than murder
That isn't true, the sentence for attempted offences are exactly the same as the full offence.
Neil
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oldtimer
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| posted on 9/1/09 at 09:01 PM |
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I suppose John that is the case. Call it Karma, fate, whatever. There is nothing to stop us reporting ourselves to the police for our motoring
offences/failings but who does it? No one. The difference between minor accident and killing someone depends on the presence or absence of a victim,
the difference between conviction and getting-away-with-it could simply be the presence/absence of you/car/victim/police.
The law is incapable of covering all the possible cenarios, thank God.
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mr henderson
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| posted on 9/1/09 at 09:51 PM |
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quote:
Originally posted by oldtimer
I suppose John that is the case. Call it Karma, fate, whatever. There is nothing to stop us reporting ourselves to the police for our motoring
offences/failings but who does it? No one. The difference between minor accident and killing someone depends on the presence or absence of a victim,
the difference between conviction and getting-away-with-it could simply be the presence/absence of you/car/victim/police.
The law is incapable of covering all the possible cenarios, thank God.
I hate to seem like I'm labouring a point here, but I still haven't grasped whether you think it is a good thing that the severity of
punishment for a driving offence should depend on what its consequences are. Maybe that was contained somewhere in your post, but I'm afraid if
it was I missed it.
It's not a legal question, if I wanted an answer to that all I would need to do is to study some cases. It's a moral question.
quote:
Originally posted by Neil P
Consider a scenario where you drive along a windy road with solid white centre lines and you get held up behind other traffic. You decide to take a
chance and overtake anyway. You're lucky and get away with it.
A police officer behind you sees this happen and you probably get prosecuted for contravening the white line.
Another day you try the same manoeuvre and kill someone coming the other way.
You find yourself in crown court charged with causing death by dangerous driving. Your driving has fallen far below the standard of a careful,
competent driver.
Same circumstances, different outcomes. The charges are based on outcomes, causes and mitigating factors.
You can't attempt to kill someone by dangerous driving and I think it rightly should be based on what the result was.
Careless driving has nothing to do with what is in the mind of the driver, it is based on objective assessment of what is good driving. Usually the
circumstances would speak for themselves. If you pull out in front of someone from a junction you can't have been driving carefully. If you spin
on a road you are not driving to the conditions, it's pretty straightforward really. If you do drive round a roundabout and kill someone you
didn't know was there, should you have been driving in a way that allowed for the possibility that they could have been?
Same question to you, Neil, how do you feel about the moral aspects.
John
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oldtimer
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| posted on 10/1/09 at 12:15 AM |
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John, I honestly believe that the severity of the punishment for a driving offence should depend on what it's consequences are. But it is not a
complete catch all. The degree of severity of punishment should be proportionate to culpability (accident versus negligence). I also believe in
punishment for offences that have no consequence such as a motorist doing 180mph on the public road but not causing any accident. A victimless but
potentially murderous act, if you like.
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RK
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| posted on 10/1/09 at 01:52 AM |
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No Whippy, the reason people give up driving buses is because of the abusive passengers.
Isn't it "driving without due care and attention" in both cases? You aren't supposed to look around and see what you might hit
in case of... before you push it around a corner, at the speed limit or not.
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smart51
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| posted on 10/1/09 at 08:29 AM |
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quote:
Originally posted by oldtimer
John, I honestly believe that the severity of the punishment for a driving offence should depend on what it's consequences are... The degree
of severity of punishment should be proportionate to culpability
Me too. Think of a graph with culpability along the bottom and severity of outcome along the side. Bottom left = zero punishment. Top right =
maximum. I believe it is entirely right. But then that's the nature of political opinion. People vary.
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Neil P
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| posted on 10/1/09 at 11:38 AM |
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quote:
Same question to you, Neil, how do you feel about the moral aspects.
My answer is in my third paragraph, I agree with punishment in proportion with the consequence.
Isn't that the same with most offences, anyway? if you damage a house window with a stone you'll get a caution. If you burn it down
you're probably going to prison. Essentially the same offence though.
Neil
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mr henderson
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| posted on 10/1/09 at 03:42 PM |
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quote:
Originally posted by Neil P
quote:
Same question to you, Neil, how do you feel about the moral aspects.
My answer is in my third paragraph, I agree with punishment in proportion with the consequence.
Isn't that the same with most offences, anyway? if you damage a house window with a stone you'll get a caution. If you burn it down
you're probably going to prison. Essentially the same offence though.
Neil
Yes, you did indeed say how you felt about it, I should have read more carefully.
Not too sure about your house example though, throwing a stone is hardly likely to have the same consequences as setting a fire.
The way I see it, a crime arises as a set of circumstances in which an event takes place (in my earlier example it could be too much throttle being
applied too soon).
The crime, as far as I am concerned, takes place at a cetain time, or is completed within a certain time frame. In my earlier example, though, the
consequence happens later, after the crime. If the kids were not there then no problem, no crime even. How could that possibly be? The crime has
already happened. Pull the kids out of the way, or let chance prevent them from being there in the first place, or chance provide a different
trajectory to the vehicle, and suddenly there is no crime? It may be the law, but it sounds like an ass to me
John
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