Pat Kenny - update and sentence

Commuting, Day rides, Audax, Incidents, etc.
iviehoff
Posts: 2411
Joined: 20 Jan 2009, 4:38pm

Re: Pat Kenny - update and sentence

Post by iviehoff »

downfader wrote:Its a far cry from justice for Mr Kenny's family

There is restorative justice, and there what to do with offenders. The reason we have a state legal system is to separate those two things, because on the whole it is rather better to treat those two things separately.

It is quite a conundrum, because the vast majority of incidents of careless driving by good chance fail to kill, or even injure, anyone. If, by good luck, your careless driving causes no damage, and since without damage it is unlikely to come to the attention of the authorities, you don't get punished. Yet it is a matter of chance whether someone will be there to be killed or injured.

I think the judge was probably, but sadly, correct in suggesting, in effect, that the driver had not done anything conspicuously terrible by the standards of every day careless driving that so many of us routinely commit. With drink driving, it was necessary to make drink driving itself a serious offence, rather than making it only an offence if one caused damage while intoxicated. The situation is parallel, but still more difficult to regulate.
daveg
Posts: 388
Joined: 9 Jan 2007, 10:46pm
Location: Chapel Allerton. Leeds

Re: Pat Kenny - update and sentence

Post by daveg »

LowPlainsDrifter wrote:The laws/sentencing in this country are a joke. Two silly lads got 4 years for posting "Lets have a riot" on Facebook.
Kill someone like this and you get near nothing.


Isn't this about intention?

Those who promoted rioting and looting were intending to create mayhem where loss was going to occur. That loss would have ranged between loss of property and loss of life. On the other hand the driver had no intention of causing any loss. Of course, that reverses itself in terms of outcome but the culpability revolves around "guilty mind", that is the intention to break the law.

The alternative to having a system of justice that is about restoring to society is to have system which gives the individual offended the right to impose punishment - an eye for an eye approach to proportionality. If the latter than perhaps that opens up the driver to potential injustice?

I don't know the right answer but I always recognise that we all have the potential to break the law at some time and think about how I would prefer justice to apply to me, if that happened.

Nothing brings loved ones back. That's the awful truth.
If it wasn't for cars, there wouldn't be the amount of tarmac that there is.
mattheus
Posts: 5043
Joined: 29 Dec 2008, 12:57pm
Location: Western Europe

Re: Pat Kenny - update and sentence

Post by mattheus »

iviehoff wrote:Its a far cry from justice for Mr Kenny's family

There is restorative justice, and there what to do with offenders. The reason we have a state legal system is to separate those two things, because on the whole it is rather better to treat those two things separately.

Very true. Although I do believe sentences like this are too light, I don't think "justice for the bereaved family" should be a criteria. Tricky business.

I think the judge was probably, but sadly, correct in suggesting, in effect, that the driver had not done anything conspicuously terrible by the standards of every day careless driving that so many of us routinely commit.

Isn't this playground justice - two wrongs making a right?

" But Siiir, he did it first, and you didn't cane him!!! "
thirdcrank
Posts: 36776
Joined: 9 Jan 2007, 2:44pm

Re: Pat Kenny - update and sentence

Post by thirdcrank »

daveg wrote: ...Isn't this about intention?...


I'd say yes and no. On a broader scale you are right, IMO, in that the most of the drivers in the cases which tend to be both reported and then discussed on here, were probably only behaving in a manner that's come to be seen as normal, bad driving isn't an inevitable fact of life.

It seems to me then, that the question is can the legal system do anything about it? More specifically, does deterrent sentencing work? All sorts of evidence both ways there, of course, but as others have suggested, the mandatory disqualification element of the breathalyser legislation certainly made people think.

The sometimes apparently harsh sentences that people highlight in debates like this also tend to show that some sentencers at least believe in the deterrent sentence when there's a threat from great unwashed. The message went out last summer during the rioting, for example that exemplary sentences were going to be the order of the day. Over the years, I remember others - so-called football hooliganism being associated with Leeds being one. Holiday makers with a sense of humour faced with airport security has been other.

One obvious problem is with the number of people whose job depends on their driving licence, but it's arguable that mandatory driving bans for a wider range of offences might make people in that position take a tad more care. A greater use of driving bans rather than fines might also deal with that other - largely unreported issue - of the substantial amount of fines that are never paid, especially if the various types of fine write-off are not included.

Of course, driving bans only work to the extent that they are observed. I suspect that the type of driver I'm talking about, the "otherwise law-abiding" driver would be deterred by the threat of mandatory bans, if only because of the threat to their livelihood.

The point I would then make is that this general improvement in driving behaviour would inevitably reduce the number of collisions resulting in injury or death. The reduced number of cases which did occur might then be appropriate for a more severe sentence.

(FWIW, I think the criminal court system has proved to be quite ineffective as a way of dealing with driving. I've argued before on here that there should be an administrative way of suspending the driving licences of people who collide with things and people.)
Vorpal
Moderator
Posts: 20700
Joined: 19 Jan 2009, 3:34pm
Location: Not there ;)

Re: Pat Kenny - update and sentence

Post by Vorpal »

In some places in the USA, just as there is an essentially separate body of law dealing with traffic issues, there is also an almost separate system for dealing with offenders. They are judges, adminstrators, prosecutors, etc. who specialise; and cases are handled in 'traffic court' rather than the criminal system.

The extent to which the system exists and is separate varies hugely, even within a state. And where the line is between traffic and criminal offences also varies.
“In some ways, it is easier to be a dissident, for then one is without responsibility.”
― Nelson Mandela, Long Walk to Freedom
tonythompson
Posts: 259
Joined: 6 Aug 2010, 1:32pm

Re: Pat Kenny - update and sentence

Post by tonythompson »

I know that sometimes we feel the sentence given in these circumstances seems rather lenient because it involved a cyclist, but I lost 3 members of my family,who were in their car, to a "careless driver" and he got a similar sentence as this.
Still a bit perplexed how someone who's speed took them onto the wrong side of the road going round a curve was just careless.
Crossed Oz Perth to Adelaide to highlight Barrett's Disease http://www.tonystravels.com
iviehoff
Posts: 2411
Joined: 20 Jan 2009, 4:38pm

Re: Pat Kenny - update and sentence

Post by iviehoff »

mattheus wrote:
iviehoff wrote:I think the judge was probably, but sadly, correct in suggesting, in effect, that the driver had not done anything conspicuously terrible by the standards of every day careless driving that so many of us routinely commit.

Isn't this playground justice - two wrongs making a right?
" But Siiir, he did it first, and you didn't cane him!!! "

No, it has nothing to do with trying to make two wrongs make a right, and no one is whinging back to teacher. The problem is that very many people do essentially the same thing, and only that tiny minority who are found out, because chance events draw attention to it, are punished at all (only to that extent does the playground analogy follow). The underlying problem is the persistent and widespread offending. This means that social attitudes are not strongly against this offending - we call it only "careless" driving, and judges don't think it is a terribly awful thing to do. Drink driving is seen as wrong and stigmatised, even when no damage results; "careless" driving ought to be seen in the same way. "Careless" driving is precisely "dangerous" driving, just with a lower probability of causing damage.
iviehoff
Posts: 2411
Joined: 20 Jan 2009, 4:38pm

Re: Pat Kenny - update and sentence

Post by iviehoff »

tonythompson wrote:Still a bit perplexed how someone who's speed took them onto the wrong side of the road going round a curve was just careless.

As I said just above, "careless" driving is (not in a legal sense) dangerous driving, and it is a social refusal to condemn it terribly strongly that leads us to give it the dismissive name "careless".

I think the legal reality is that there has to be a degree of intention to (legal sense) "dangerous" driving, ie they would have to be driving deliberately on the wrong side of the road, rather than being incompetent about taking a corner too fast. This is why there are so few convictions for dangerous driving, because intention is so difficult to demonstrate. "Causing death by careless driving" was an offence deliberate brought in to be relatively easy to convict people of, but with the concomitant consequence that the penalties for it are relatively light.

But apparently not always. There was a recent case in Wales where someone failed to control the car at a bend, drove off the road, killing several of the vehicle's occupants. He was found not guilty of any offence. No outside agency, road fault, etc, was blamed.
Tonyf33
Posts: 3926
Joined: 17 Nov 2007, 3:31pm
Location: Letchworth N.Herts

Re: Pat Kenny - update and sentence

Post by Tonyf33 »

People who make conscious decisions to not slow down in conditions that were clear to all the other road users that day that didn't end up killing someone or bumping into something or were speeding in the first instance are not acts of carelessness.
Careless is when you drop something, fail to indicate, forget to put your seatbelt on or your lights when required and someone flashes you to remind you. Also when people don't brake quite hard enough & transgress over a give way/stop line a smidge, drive over a kerb when parking or turning, slightly bump into someone in front in slow traffic or reverse into someone's vehicle in the supermarket car park. These are minor misjudgements/carelessness if you like, 999/1000 no real harm done but potentially still could harm.

However how is it careless when a driver makes that conscious decision to not slow down enough on approach to a hazard (hazard perception being a basic driving test requirement) so not slow enough into the bend they can't see around, they carry on at too fast a speed when the sun is low in the sky or there's fog or its raining or icy. None of these situations are rare, they occur in most temperate Northern hemisphere countries very often. 'Normal' good driving standard (that is what would pass you the basic test) is to slow down so you are able to stop in that distance you can see to be clear.
Then you've got the reaching for something and not be looking at the road ahead (Sat Nav, fag lighter, map, book, make up or making a call/texting/
All of these are clear deliberate decisions you've made, that is not careless, that IS dangerous given the mass of the vehicle you are driving plus the speed that is often involved for the situation that the incident occurs.
Read the sentence below, read it again & then explain to me how killing another human being or severly injuring them because of your conscious actions/inactions whilst driving a ton plus of metal that clearly has the ability to do serious harm (1,900 people killed and 24,430 KSI are stats to prove the point) is not FAR below what a competent driver would think acceptable? None of the above is to me and I'd like to think of myself as a safe & competent driver.
Dangerous driving is defined as driving in a manner which falls FAR below that of a competent driver and driving in such a way that it would be obvious to a competent driver that there is a serious risk of personal injury or serious damage to property
daveg
Posts: 388
Joined: 9 Jan 2007, 10:46pm
Location: Chapel Allerton. Leeds

Re: Pat Kenny - update and sentence

Post by daveg »

thirdcrank wrote:
daveg wrote: ...Isn't this about intention?...


I'd say yes and no. On a broader scale you are right, IMO, in that the most of the drivers in the cases which tend to be both reported and then discussed on here, were probably only behaving in a manner that's come to be seen as normal, bad driving isn't an inevitable fact of life.

It seems to me then, that the question is can the legal system do anything about it? More specifically, does deterrent sentencing work? All sorts of evidence both ways there, of course, but as others have suggested, the mandatory disqualification element of the breathalyser legislation certainly made people think.

The sometimes apparently harsh sentences that people highlight in debates like this also tend to show that some sentencers at least believe in the deterrent sentence when there's a threat from great unwashed. The message went out last summer during the rioting, for example that exemplary sentences were going to be the order of the day. Over the years, I remember others - so-called football hooliganism being associated with Leeds being one. Holiday makers with a sense of humour faced with airport security has been other.

One obvious problem is with the number of people whose job depends on their driving licence, but it's arguable that mandatory driving bans for a wider range of offences might make people in that position take a tad more care. A greater use of driving bans rather than fines might also deal with that other - largely unreported issue - of the substantial amount of fines that are never paid, especially if the various types of fine write-off are not included.

Of course, driving bans only work to the extent that they are observed. I suspect that the type of driver I'm talking about, the "otherwise law-abiding" driver would be deterred by the threat of mandatory bans, if only because of the threat to their livelihood.

The point I would then make is that this general improvement in driving behaviour would inevitably reduce the number of collisions resulting in injury or death. The reduced number of cases which did occur might then be appropriate for a more severe sentence.

(FWIW, I think the criminal court system has proved to be quite ineffective as a way of dealing with driving. I've argued before on here that there should be an administrative way of suspending the driving licences of people who collide with things and people.)


Some interesting points here about sentencing guidlines and very salient too. You're quite right that having mandatory sentences or higher entry points would have an effect on drivers who are mostly law abiding but whether or not that would give better justice I don't know. Two things come to mind. It's a lot of years since I studied law but I recall a case (name has gone) that I think was a road traffic incident in which a child was injured or killed. The case law that came from that established that it was the actions / lack of actions of the driver that were subject to judgement and not the consequences in so far as the consequences could not reasonably be forseen. Now that alone is open to interpretation about how reasonable it is to forsee potential consequences. If someone was reckless then yes, consequnces should have been forseen but if not then it is just their actions/inactions that stand to be judged. At the charging point this may be the difference between careless and dangerous driving.

Second is about how the penalty imposed affects others. As fas as I know the intention of the law is always to punish the offender. But there are trickle out effects to others if that offender is, say, the main breadwinner for the family. If a lifetime or very lenghty driving ban was imposed so as to prevent the offender working then that will either act as encouragement to ignore the ban (and arguably be a greater risk through being uninsured etc.) or if a suitable change of employment cannot be found, then it has a profound effect on the rest of the family. Some more serious crimes will have this effect on the family in any case, but I think in road traffic matters it would remain the principle to punnish the offender.

I know the judicial system often attracts a bad press but it falls to the Judge to weigh up all these arguments and come up with a decision. I would think arriving at a decision that suits everyone is just about asking for the impossible.
If it wasn't for cars, there wouldn't be the amount of tarmac that there is.
User avatar
meic
Posts: 19355
Joined: 1 Feb 2007, 9:37pm
Location: Caerfyrddin (Carmarthen)

Re: Pat Kenny - update and sentence

Post by meic »

It seems rather typical of Judges higher mental abilities that they can decide it is inappropriate to impose a punishment because it would actually "punish" the offender and indirectly those people they are associated with.
These same Judges also understand that deterrents dont work because they keep meeting people who prove that point.

Ordinary people out on the street are learned in a much different way, they know exactly what they can get away with (and what they CANT get away with). They also understand that treating Judges as fools is pretty effective as long as you dont let the Judge know.
Yma o Hyd
thirdcrank
Posts: 36776
Joined: 9 Jan 2007, 2:44pm

Re: Pat Kenny - update and sentence

Post by thirdcrank »

daveg

It seems to me that the system must stick with the idea that criminal justice is exercised on behalf of society as a whole and it's not about "justice" for individual victims. In other words, the legal system tries to get everybody to behave themselves, to reduce as far as possible the numbers of victims so individual justice is unnecessary. In those terms and in respect of road traffic matters, the legal system has completely failed, which is why discussions like this take place. We have, as a society and for reasons only of expediency, accepted that avoidable conduct which may kill or injure others is acceptable or should only be liable to relatively mild penalties. This means that when it does kill or injure others, the legal outcome seems to many connected, directly or indirectly, with the casualties, to be inadequate to the point of being insulting.

We have a long list of criminal offences connected with using vehicles, particularly motor vehicles. That list has grown continually, parly because "bad conduct" described in general terms has been inadequate to prevent it. The list of those offences has grown so much that many are rarely if ever enforced and when they are, they tend to be described as "technical" or so called loophole defences are advanced to avoid conviction. I suppose "technical" is a euphemism for "victimless." Why does "bad driving" matter? Because somebody may be killed or injured. Was anybody killed or injured? A: No. Then why are we bothering? B: Yes. How unfortunate. Luckily, the driver was only driving to the generally accepted standards and he was unlucky enough to kill one of those nuisance cyclists or "peds" (how I despise that expression :evil: ) so he should not be punished for that.

I suggest the validity of what I am saying is shown at the other end of the scale. The things that the authorities are really concerned about like parking and the congestion charge have been decriminalised to take them completely out of this broken system.

meic

The fact that this thread involves an individual death has prevented me developing your theme.
karlt
Posts: 2244
Joined: 15 Jul 2011, 2:07pm

Re: Pat Kenny - update and sentence

Post by karlt »

There is precious little evidence that harsher sentences have a deterrent effect either on offenders or on the population at large. Probability of being caught does. Given that in 99.9% of these cases there is no intent to cause harm, the problem is that it's widely expected that a prosecution is only likely if harm does occur; the driver does not expect he will cause harm because he normally gets away with these acts of careless driving and therefore he is not deterred.

I do not believe in sentencing by outcome. To my mind two drivers who both drive blinded by the sun are equally guilty and deserving of the same punishment even if one does kill someone and the other has no negative outcome at all; otherwise one is either rewarding one driver for good luck or punishing the other for bad luck - I don't see that as justice. There's a limited amount that can be done to catch people when there is no outcome, but that would be the ideal. What it does mean is that sentencing should be based on the potential of the driving to cause harm, not the harm that was actually caused.

That does mean that if someone is caught doing 70 down a 30 zone they should receive the same penalty as if they'd killed someone, which is an easily foreseeable result of driving in that manner.
User avatar
meic
Posts: 19355
Joined: 1 Feb 2007, 9:37pm
Location: Caerfyrddin (Carmarthen)

Re: Pat Kenny - update and sentence

Post by meic »

karlt wrote:There is precious little evidence that harsher sentences have a deterrent effect either on offenders or on the population at large. Probability of being caught does. Given that in 99.9% of these cases there is no intent to cause harm, the problem is that it's widely expected that a prosecution is only likely if harm does occur; the driver does not expect he will cause harm because he normally gets away with these acts of careless driving and therefore he is not deterred.

I do not believe in sentencing by outcome. To my mind two drivers who both drive blinded by the sun are equally guilty and deserving of the same punishment even if one does kill someone and the other has no negative outcome at all; otherwise one is either rewarding one driver for good luck or punishing the other for bad luck - I don't see that as justice. There's a limited amount that can be done to catch people when there is no outcome, but that would be the ideal. What it does mean is that sentencing should be based on the potential of the driving to cause harm, not the harm that was actually caused.

That does mean that if someone is caught doing 70 down a 30 zone they should receive the same penalty as if they'd killed someone, which is an easily foreseeable result of driving in that manner.


Lack of evidence just shows they werent looking. However as Kwackers always points out you also need a fair possibility of the sentence being applied for it even to be an issue.
These cases are showing a lethal combination of very improbable, very light sentence.
No wonder nobody makes the effort.

As for evidence, I am aware of an experiment in the USA where a publicised severe penalty for pulling out in front of motorcyclists had a very pronounced but temporary effect.
Also the severity of drink driving sentences does have a very good effect on the population as a whole.
Yma o Hyd
thirdcrank
Posts: 36776
Joined: 9 Jan 2007, 2:44pm

Re: Pat Kenny - update and sentence

Post by thirdcrank »

The most obvious thing to say about detection is that it's fundamental to the whole criminal justice system because without detection - except perhaps in what has become known as "a shoot to kill" situation - nothing else can happen.

Beyond that, it seems to me to be impossible to ignore the effects of detection. This seems to lead straight into the effect of public attitudes. Being exposed as any sort of deviant - in the widest sense - may be sufficient deterrent for most people. As it is, being detected for most traffic offences is no big deal, even given the reducing likelihood of detection.

It's my own feeling, based on a non-academic reading of judicial decisions in motoring cases, that the judiciary has largely led public opinion towards seeing a lot of poor driving as normal. Most of those decisions are taken in the Queen's Bench Division of the High Court, which is why they are often labelled "QBD." In spite of what I just posted in reply to meic, here's a recent pic (which I have posted before.)
article-0-0F17FF4E00000578-38_634x427.jpg
Post Reply