Driver convicted of dangerous driving in 2006 could face death by dangerous...

Driver convicted of dangerous driving in 2006 could face death by dangerous charge after victim died of injuries

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Photo from the BBC

Introduction

On 17th October 2015 Cerys Edwards, a nine year old girl from the Midlands, died as a result of injuries she suffered in a car accident.

Unsurprisingly, there are calls for the driver of the car, Antonio Boparan to be prosecuted for causing her death.

Background

That is of course a tragedy. But what brought it into the news was that the injuries had been suffered in November 2006.

Cerys suffered catastrophic injuries which left her needing round the clock care.

Mr Boparan, who was then aged 19, was prosecuted for Dangerous Driving. As he was doing 70mph in a 30mph area, there does not seem to have been much dispute that his driving was dangerous.

It is not clear whether or not there was a plea of guilty or not, but  Mr Boparan was sentenced to 21 months (the maximum sentence being 24 months).

Legal Issue

Given that Mr Boparan has already been convicted and sentenced in relation to his role in this case, can he be prosecuted again?

The general rule (most often known as ‘double jeopardy’) is that once someone has been tried and acquitted or convicted, that is it. This stems from basic rules of fairness – someone should only be punished once for a criminal act.

In practice though, it is a lot more complicated than that…

Basically, the offence of causing Death by Dangerous Driving is more serious, and contains an extra element (the death). For that reason, the fact that there is a previous conviction for Dangerous Driving is not a bar to a further prosecution.

The CPS should not prosecute as a matter of routine however – they should only do so after giving the matter very careful attention.

How would a trial (and any sentence) work?

The fact that Mr Boparan has been previously convicted of Dangerous Driving would be admissible in any trial to prove that he is guilty of Dangerous Driving (see Clift [2012] EWCA Crim 2750). In other words, once the previous conviction is before the jury, it is then for Mr Boparan to show to the jury that he is not guilty of dangerous driving.

That still leaves the other element – the dangerous driving must have caused the death. It is clearly not the immediate cause of death, but that does not matter, provided it is an operative cause.

Whether or not it is would be a question for the jury.

In terms of the Sentence (if Mr Boparan were found guilty) then he would probably be sentenced in according to the current sentencing guidelines (see Bell [2015] EWCA Crim 1426 for some guidance).

The maximum sentence now (as then) is 14 years in prison. Had the original driving been before 27th February 2004 then the maximum would have been 10 years and the Judge would be bound by that.

Looking at the Current Guidelines, given that the Judge in 2009 referred to the ‘arrogant disregard for safety’ it may be that it would be put into Category 1, for a starting point of 8 years. We do not have enough facts to really comment on what the sentence would be.

Hypothetically, if there was a conviction and the Judge took a sentence of 8 years, then allowance would have to be made for the previous sentence.

In this case it should be a straight mathematical calculation to reduce the 8 years by 21 months, giving a sentence of 6 years 3 months.

Conclusion

Prosecutions in these circumstances are very rare for obvious reasons. We are not aware of any case where a prosecution for Death by Dangerous has followed one for Dangerous Driving, but there does not appear to be a legal bar.

This is all speculative of course – we do not have many facts. We are not suggesting that Mr Boparan’s driving was the cause of the death, or that a prosecution for Causing Death by Dangerous Driving would be appropriate in this case, let alone that he would be guilty of that offence. Hopefully this gives a bit of insight into the legal processes that would apply.

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Dan is a barrister at 2 Dr. Johnson’s Buildings practising in crime.

4 COMMENTS

  1. I believe that there has to be a time limit in cases like this.
    Everyone of us will eventually die. Everyone who has been injured in an accident will eventually die.
    Even if those injured die prematurely, it is going to be extremely difficult to prove that the cause of death was that accident. ie the injured person may have taken to drinking heavily.
    As sad as these cases are, IMHO there should not be a second charge, well not after, say, six months.
    The law needs clarifying.
    By the way, is there an offence of ‘causing death by dangerous flying’?
    Just recently I believe quite a few people were probably/allegedly killed in this manner?

    • Although I can see the argument for time limits, the effect of modern medicine is that people can be kept alive for years, but still die as a result of the original injuries. The safeguard is that the Prosecution have to prove causation, and clearly the longer the time period, the harder that will be to do.

      There is not an offence of ‘causing death by dangerous flying’.

  2. ‘The general rule (most often known as ‘double jeopardy’) is that once someone has been tried and acquitted or convicted, that is it. This stems from basic rules of fairness – someone should only be punished once for a criminal act’

    In the worst case, dj gives a free pass to someone who, having once escaped punishment by virtue of an incorrect verdict – ‘got away with it’ – escapes a second time even when incontrovertible evidence of guilt is uncovered later. Hardly a fair outcome, particularly from the victim’s viewpoint.

  3. Here is another case where the death occurred after the original conviction. The driver pleaded guilty to causing death and sentencing is awaited. http://www.bbc.co.uk/news/uk-england-leeds-34798621

    I think all these separate offences of causing death, causing serious injury and just dangerous driving or driving without due care and attention are a problem. There ought to be just one offence of negligent driving, and then the sentencing should cover the relative levels of negligence and the relative consequences.

    Another ridiculous offence is causing death when driving uninsured. You can be found guilty of this even if you are found to be in no way negligent.

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