Senior judges have expressed grave concerns about the new offence of causing death by careless or inconsiderate driving, approved by parliament earlier this month.
When the Road Safety Act 2006 is brought into force next year, anyone who causes a death by driving without due care and attention, or without reasonable consideration for other road users, will face up to five years in prison.
"That might involve no more than a moment's carelessness," a senior judge said. "You could be distracted by a child in the back of the car. We have all been in that position."
advertisementJudges fear juries will refuse to convict defendants of the new offence once they realise that it will lead to prison sentences for motorists with no previous convictions who have not been driving at high speed, dangerously, or while uninsured or under the influence of drink or drugs.
James Richardson, editor of the lawyers' textbook Archbold, writes in the new edition published today of his "despair at the prospect of ordinary, hard-working citizens being sent to prison for the unintended consequences of a moment's inattention".
Mr Richardson, a barrister specialising in criminal law, says: "This represents an intolerable abandonment of the principle that the criminal law should punish people only for their criminality, and that criminality involves an evil act and a mind that goes with the act."
Lord Lyell, a former Tory Attorney General, said recently that "if ordinary negligence, which sadly happens to lead to a death, is to send yet more people to prison, the tragedy of the death will not be undone. It will simply be compounded by injustice."
But Gerry Sutcliffe, the Home Office minister, said this month the new offence strikes "the right balance between the level of criminal fault on the part of the bad driver and the devastation their actions can cause".
Stephen Ladyman, the transport minister, said "the new Road Safety Act plugs gaps in current legislation to stop drivers who kill walking away from court with just a fine".
Under the present law, expected to remain in force until next autumn, a sober motorist whose driving falls short of what is regarded as dangerous is normally charged with careless driving. This does not carry a jail sentence, even if it results in a death.
Mr Ladyman added that he was "determined to stamp out bad and irresponsible driving, which endangers us all".
But judges believe that people should be punished for the consequences of their actions only if these are reasonably foreseeable.
"If I punch you on the head and you die as a result, I cannot say I didn't intend to hurt you," said one. "But if I lose concentration for a moment and there is an accident, should I be just as culpable?"
The judges say they will apply the laws laid down by Parliament. They will not talk publicly about the new offence because they will have to set sentencing guidelines when the legislation comes into force. But they suspect that public opinion will then begin to turn against it.