Charging decisions: cyclist mown down by driver
As a specialist motoring solicitor I spend a lot of time talking to the Crown Prosecution Service about charging decision - usually trying to get them to reduce or drop the charge against my client. But, in this case, I think they got the charge badly wrong.
Earlier today Justine Henshaw-Bryan was imprisoned for three-years (she won’t serve anywhere near that long) after she chased cyclist Damien Doughty in her car before deliberately running him over as he attempted to escape her by getting out of the road.
You can view the footage here but be warned it isn’t nice:
Ms Henshaw-Bryan pleaded not guilty to a charge of causing serious injury by dangerous driving and was banned from driving for four and a half years. But the big question for me is why she was charged with that offence at all. Her driving was certainly dangerous and she did cause serious injury, Mr Doughty spent three days in intensive care, but her actions were also very deliberate.
The maximum sentence for causing serious injury by dangerous driving is five-years imprisonment, which itself appears at first glance bizarrely low when you consider that the Road Traffic Act 1988 tells us that “serious injury” means “physical harm which amounts to grievous bodily harm for the purposes of the Offences Against the Person Act 1861”. I suspect that therein lies the problem at the heart of this charging decision because looking at the video it is hard not to think that section 18 of the Offences Against the Person Act 1861 – aka GBH with intent to cause really serious injury – is the appropriate charge here. And section 18 GBH carries a maximum sentence of life imprisonment, not five years!
There is a key difference between causing serious injury while driving dangerously and section 18 GBH; intention. The mens rea, or mental element if you prefer, of the two offences is very different and should, in my opinion, be a key consideration when deciding on the appropriate charge to bring.
Causing serious injury by dangerous driving has no mental element so far as the infliction of injury is concerned. It does not matter whether you drive dangerously, lose control and plough into tea shop or whether you intend to drive through the window of the tea shop and injury the people inside – the definition of the offence cares not at all.
I suggest that the reason the sentence for causing serious harm appears so low is because it requires no intention to cause that harm. This would suggest that Parliament intended it to be used in situations where the injury resulted purely from the driving rather than in situations like this one where the intention seems to have been to cause injury and the driving was simply the method of accomplishing that.
Section 18 GBH requires an intention to cause really serious injury, which explains why the sentence for that is far longer than for either causing serious injury by dangerous driving or section 20 GBH, which can be committed recklessly rather than with an intention to injure.
In Ms Henshaw-Bryan’s case, she became angry following an altercation with Mr Doughty, in which it has to be said, he behaved like an arse. She then chased him in her car from Stoke Newington High Street onto Victorian Grove where she deliberately rammed her car into him nearly crushing him against a tree. He was lucky not to have been killed and she in turn lucky not to be facing a murder charge. Had he died in these circumstances I cannot imagine a reasonable prosecutor bringing a death by dangerous driving charge in place of murder.
Given the deliberate nature of the offence I cannot understand why the prosecution chose to run with a charge of causing serious harm while driving dangerously instead of section 18 GBH, which would certainly have been viewed as aggravated by the road rage nature of the incident.
What difference does it make? Well when you look at the sentencing guidelines for GBH you see that Ms Henshaw-Bryan would likely have been placed in category 1, which is the most serious category. Her victim was particularly vulnerable due to his being a cyclist and her being in a car. The fact she used the car as a weapon and deliberately targeted a vulnerable victim shows us that there is a higher degree of culpability at play in this offence. If the court accepted she were in category 1 then the starting point would have been 12 years’ imprisonment not the 3 she received!
I also think that the way Ms Henshaw-Bryan conducted her defence may well have been something of an aggravating factor too. Rather than accept what she had done and show remorse she lied attempting to blame the offence on her then boyfriend, something the jury did not believe.
All of what I have said is based on the news reports I have read. I wasn’t present in court so maybe there was some good reason for not charging GBH, but I note HHJ Perrins comments in passing sentence:
"This was a calculated attempt to run him over and use your car as a weapon… it would have been obvious that to do so would have carried significant risk of injury."
With those words in mind I repeat my criticism that this offence was grossly undercharged and the defendant has got away with an undeservedly lenient sentence as a result.