What's the legal concept?

[MikeO996]

I know this must be law school 101 but have always wondered about the logic of this from a philosophical perspective. I suspect there is a posh Latin term for it, but have never come across it if there is one.
Hypothetically (of course), a) I take a corner too fast whilst on my mobile phone, spin out and hit a lamppost. Police attend I get a fine.
B) I take a corner too fast whilst on my mobile spin out and kill a pedestrian. Police attend, I go to prison.
In both cases my actions and degree of negligence are identical, why is the punishment different?
Obviously the consequence is different, and most people would agree the punishment should be different , but should it be determined by the random outcome rather than intent/negligence? Clearly society demands punishment (or reparation?) but is it logical and fair to put so much weight on chance?

[TurboHatchback]

MikeO996 said:

In both cases my actions and degree of negligence are identical

Not necessarily. If you know there were no pedestrians there to hit if you lost control then your negligence is less than if you knew there were or didn't know at all. IMHO of course.

[agtlaw]

I've always called it consequence based sentencing.

I think your point is that the quality of driving is the same in either situation postulated - but a custodial sentence is available to the sentencing judge where the offence involves death, but not in the case of careless driving, for example. How can that be just?

Well, have a look at Cooksley (2003) and Richardson (2006?).

http://www.bailii.org/ew/cases/EWCA/Crim/2003/996....

[MikeO996]

agtlaw said:

I've always called it consequence based sentencing.

I think your point is that the quality of driving is the same in either situation postulated - but a custodial sentence is available to the sentencing judge where the offence involves death, but not in the case of careless driving, for example. How can that be just?

Well, have a look at Cooksley (2003) and Richardson (2006?).

http://www.bailii.org/ew/cases/EWCA/Crim/2003/996....

That's helpful, although I was just using a driving offence as an example. This below from your link sort of sums up what I guessed was the answer, I.e. That sentencing is about balancing culpability and outcome, but primarily should be about culpability:

"The Panel believes that new guidelines will help sentencers to strike an appropriate balance between the level of culpability of the offender and the magnitude of the harm resulting from the offence.
The Panel drew up its initial proposals on the basis that the outcome of an offence, including the number of people killed, was relevant to the sentence, but that the primary consideration must always be the culpability of the offender. That was supported by the majority of respondents to our consultation paper, and it remains our view."

[Zod]

This is why I take issue with the introduction by the last government of the offence of Causing Death by Careless Driving. I accept that where the standard of driving is so low as to be dangerous, then the consequences should be taken into account, but careless driving is a rather less serious offence and to increase the sentencing based upon the consequences feels unjust to me.

Equally, that the maximum tariff for Causing Death by Careless Driving is higher than that for Causing Death while Driving Unlicensed, Disqualified or Uninsured feels wrong.

[TooMany2cvs]

MikeO996 said:

Hypothetically (of course), a) I take a corner too fast whilst on my mobile phone, spin out and hit a lamppost. Police attend I get a fine.
B) I take a corner too fast whilst on my mobile spin out and kill a pedestrian. Police attend, I go to prison.

a) Dangerous driving.
B) Death by dangerous driving.

MikeO996 said:

In both cases my actions and degree of negligence are identical, why is the punishment different?
Obviously the consequence is different, and most people would agree the punishment should be different , but should it be determined by the random outcome rather than intent/negligence? Clearly society demands punishment (or reparation?) but is it logical and fair to put so much weight on chance?

You confront the bloke that's shagging your missus and, after a lot of hurled abuse from you, you throw a punch, and hit him.
a. He swears and swings back at you.
b. He falls over, blacks out, and lies on the floor with a broken jaw.
c. He falls over, spends a month in hospital with a serious blood clot on the brain until the machine-that-goes-ping is switched off.

Outcome?
a. Simple assault.
b. GBH.
C. Murder.

[agtlaw]

Also, have a look at so-called one punch manslaughter - academics love to debate the "problem" of whether the level of culpability is pitched too low.

e.g. http://www.barristermagazine.com/archive-articles/...

[TooMany2cvs]

Zod said:

Equally, that the maximum tariff for Causing Death by Careless Driving is higher than that for Causing Death while Driving Unlicensed, Disqualified or Uninsured feels wrong.

You can cause death whilst driving unlicenced/uninsured whilst driving carefully. There's nothing to say that Death by Careless requires a licence/insurance - in fact, the combo of unlicenced/uninsured plus careless might even bump it up to dangerous, or - at the very least - act as an aggravating factor in sentencing.

[Zod]

TooMany2cvs said:

Zod said:

Equally, that the maximum tariff for Causing Death by Careless Driving is higher than that for Causing Death while Driving Unlicensed, Disqualified or Uninsured feels wrong.

You can cause death whilst driving unlicenced/uninsured whilst driving carefully. There's nothing to say that Death by Careless requires a licence/insurance - in fact, the combo of unlicenced/uninsured plus careless might even bump it up to dangerous, or - at the very least - act as an aggravating factor in sentencing.

but you should not be on the road at all in those circumstances.

ETA actually, on reflection I think it's odd to have causing death while unlicensed etc as a separate offence. It feels more like an aggravating factor for the other offences to me, as does intoxication.

Edited by Zod on Tuesday 22 July 17:36

[agtlaw]

TooMany2cvs said:

Outcome?
a. Simple assault.
b. GBH.
C. Murder.

Murder is unlikely - unless the prosecution could prove intent to kill or cause serious injury (s.18 intent). Even if they had a chance of that then the CPS would usually run with manslaughter - as provocation is a partial defence to murder (i.e. it reduces murder to manslaughter).

[TooMany2cvs]

agtlaw said:

Murder is unlikely - unless the prosecution could prove intent to kill or cause serious injury (s.18 intent). Even if they had a chance of that then the CPS would usually run with manslaughter - as provocation is a partial defence to murder (i.e. it reduces murder to manslaughter).

Yep, I'm aware of that - hence the scenario about shagging the missus and the abuse first... <grin>