At the High Court in Edinburgh Lord Brodie sentenced Phillip Hogg to 12 months imprisonment for causing death by careless or inconsiderate driving and disqualified him from driving or applying for a driving licence for 3 years. James William Burns died on 7 September 2011 on the A70 Kilmarnock to Edinburgh road, near Carnwath.

On sentencing Lord Brodie made the following statement in court:

“Phillip Hogg, I have had regard to what has been said on your behalf by Mr Markie which I regard as a careful and measured analysis of the sentencing structure which is appropriate in this case, to the evidence that I heard at your trial and to the contents of the Criminal Justice Social Work Report dated 19 September 2013.

You were convicted after trial in the High Court in Glasgow of a contravention of section 2B of the Road Traffic Act 1988, that is of causing death by careless or inconsiderate driving.

By virtue of that verdict you are therefore responsible for causing the death of the late James William Burns who died instantly on 7 September 2011 as a result of the injuries he sustained in the collision between the motorcycle which he was riding and the motor car which you were driving on the A70 Kilmarnock to Edinburgh road near to the entrance to Redlands Poultry Farm, near Carnwath.

While this is not the version of events put forward on your behalf at trial (you did not accept that you had pulled out to overtake), the jury must be taken as having found it proved that, having consumed alcohol, you attempted to overtake the car in front of you and drove onto the opposing carriageway when it was unsafe to do so and so caused your vehicle to collide with the oncoming motorcycle ridden by said James William Burns, with the result that he was so severely injured that he died. 

Your careless driving has therefore had the result of taking away one life. It has also had an enormous impact on the lives of others. That is clear from the terms of the Victim Impact Statements provided by James Burns’s father and sister. James Burns was clearly a dearly loved and highly valued son and brother as well as, among other things, a talented musician. He is very much missed. No sentence that any court can impose can do anything to replace that loss.

I stress that what you were convicted of was causing death by careless driving. You were charged with causing death by dangerous driving – that is a significantly more serious offence. However, having heard the evidence, the jury decided that that charge had not been made out and, as it was entitled to do, convicted you of what is a less serious offence than the one with which you were charged.

This points to the difficulty recently identified by the English Court of Appeal:  

“Sentencing for cases of causing death by careless driving is amongst the most difficult tasks facing a judge. The harm caused is by definition catastrophic for the primary victim or victims, as well as for those most closely affected by the death of a loved one. On the other hand, the crime is not committed by someone who intended any harm, nor by someone who drove dangerously with a deliberate disregard for the safety of others. The crime is one of negligence.”

R v Gareth Jones [2013] 1 Cr App R (S) 20 at paragraph 14

The difficulty is of course not just for judges; it is for everyone concerned that a sentence should appropriately reflect the offence for which it is imposed.

It is with this and other difficulties in view that the Sentencing Guidelines Council in England published the Definitive Guideline “Causing of Death by Driving” in July 2008. While that guideline document is English, it has been approved as applicable to Scotland by the Appeal Court in HMA v Noche [2011] HCJAC 108 at paragraph [29] and recently applied by that court in in HMA v McCourt [2013] HCJAC 114.

It is therefore the approach set out in the Definitive Guideline that I will follow in determining the appropriate sentence in this case.

•           Because causing death in principal harm which defines this offence, what primarily determines the starting point for sentence is your culpability – in other words – how serious was the offence, in other words how bad was your driving.

•           In assessing seriousness I have had regard to the following factors

            - The carelessness related to a single decision – that being to overtake. This was not a case of prolonged or deliberate bad driving.

            - The collision occurred at about 7pm on 7 September. It was light but it had been wet and visibility might have been affected by spray

            - The overtaking manoeuvre was on a length of road which was effectively straight for an eastbound driver such as you were for some distance beyond the point of collision, as illustrated in photographs 56, 57, and 58 shown to the court – this was not overtaking on a bend.

            - However the view for eastbound drivers was impaired by a dip in the road situated to the east of the entrance to Redlands Poultry Farm.

            - The deceased’s motorcycle was probably in that dip when you began to overtake. While perhaps not significant enough to hide a larger vehicle, the dip was sufficient to prevent an eastbound driver from seeing a motorcycle.  This is merely an illustration as to why the sentencing guidelines consider motorcyclists as vulnerable.

             - You knew the road and accepted that you were aware of the dip and the blindspot that it created for eastbound drivers.

            - Your manoeuvre followed a similar manoeuvre carried out by the preceding driver without, on his evidence, incident.

             - Your blood/alcohol was just below the legal limit for driving.

            - No specific evidence was led on how that might have affected your decision-making abilities.

            - There is a separate offence of causing death by careless driving when under the influence of drink – you were not charged with that offence, and I have no reason to believe that you could have been convicted of that offence had you been charged with it.

            - Nevertheless, as has been said by a very senior judge (the former Chief Justice of England and Wales in R v Richardson [2007] 2 Cr App R (S) 36) “Everyone knows, or should know, that the consumption of even small quantities of alcohol undermines the ability of any driver to apply his full concentration to the road.”

            - This was not a case where speed was of significance.

            - There was no other seriously culpable behaviour on your part.

•           In terms of section 3ZA (2) of the Road Traffic Act 1988 a person is to be regarded as driving carelessly or without due care and attention if the way he drives falls below what would be expected of a competent and careful driver. However, as the Definitive Guideline recognises, a quite wide range of driving that can properly be regarded as careless. I would assess your driving as falling within the middle band of seriousness for offences of this sort as identified in the Guideline – in other words neither of such a quality “falling not far short of dangerous driving” nor “arising from momentary inattention with no aggravating factors”.

The starting point for a sentence for such an offence is 36 weeks or 9 months imprisonment with a suggested sentencing range between a community sentence and 2 years imprisonment. I must further look at additional aggravating and additional mitigating factors. As far as additional aggravating factors are concerned –

  • You have previous convictions. They include:

-       Contravention of s 5 (1) (a) of the Road Traffic Act 1988 (driving while over the limit) recorded on 10 September 2004 – when you were disqualified for a year

-       Contravention of s 87 (1) of the Road Traffic Act 1988 (driving without a licence) and contravention of s 143  (1) and of the Road Traffic Act 1988 (driving without insurance) recorded on 10 July 2007 – when you were disqualified for 6 months

As far as additional mitigating factors are concerned –

-       You express yourself as devastated by what happened and are acutely aware of the loss suffered by Mr Burns’s family and friends.

-       You have voluntarily given up driving.

-       The matter took some two years to come to trial.

I have to bear in mind a further consideration. You have no previous experience of imprisonment. In terms of section 204 (2) of the Criminal Procedure (Scotland) Act 1995 a court shall not pass a sentence of imprisonment on a person who has not been previously sentenced to imprisonment or detention unless the court considers that no other method of dealing with him is appropriate.

In all the circumstances, I nevertheless consider that I have no alternative but to impose a custodial sentence having regard to the nature of the offence of which you were found guilty and having regard to the Definitive Guideline, the various factors that I have identified, the contents of the Criminal Justice Social Work Report and what has been said on your behalf, the sentence of the court will be 12 months imprisonment from today’s date.

In addition I shall disqualify you from driving or applying for a driving license for a period of 3 years. Should you decide to drive again you will sit an Extended Driving  Test.”

27 September 2013