The Supreme Court on Dangerous Driving

maidhc

This is from the recent supreme court decision on the constitutionality of the Criminal Law (Amendment) Act, 1935 which dealt with the offence of unlawful carnal knowledge.

They said an something about dangerous driving, which in light of our increasingly vague road traffic offences makes for interesting reading.

The full text of the judgment is here for those interested.

In this case, the DPP at one time submitted that a blameless person could be found guilty of dangerous driving causing death which carries a sentence of up to 10 years imprisonment. This submission is groundless in law, but may be suggestive as a hypothesis. If the law were changed so that an entirely blameless person could in law be convicted of the offence and sentenced to up to ten years imprisonment, this would plainly amount to a gross injustice. But when it became generally known no doubt many persons would cease to drive at all and others would drive with understandably exaggerated caution. Road accidents would almost certainly decline dramatically, thereby saving lives which, on a purely utilitarian analysis is an unanswerable argument. And the regime hypothesised by the Director would apply to everyone, not just members of one class or gender.

Despite all these arguments the suggested regime, applied to road traffic, would be objectionable to most people on the grounds of its manifest injustice. To jail perfectly respectable people on the basis of an event over which they had no control (they are, after all, “blameless”), is so complete a negation of their rights to liberty, due process, equality and respect for their human dignity that it cannot be contemplated no matter what the benefits. To put it another way, it is not a balancing of the blameless driver’s rights against those of the rest of society: it is a negation of those rights in the interest of a concept of social good. It fails the “interference with fundamental rights” test mentioned in Jedowski, above.

What, precisely, is the difference between the present measure and the dangerous driving hypothesis? At bottom it is this: one person’s rights would be negated because he took the risk of driving, while another person’s rights are negated because he took the risk of having sexual intercourse. I do not believe that a legally significant distinction can be drawn on that basis since the act of consensual intercourse is, like the act of driving, (assuming one is licensed and insured), prima facie lawful.