The Scottish Sentencing Council has published its first offence sentencing guidelines relating to cases where death is caused by driving. The guideline can be used for all those sentenced for the relevant offences on or after 16 January 2024.

It has often been recognised by those tasked with sentencing in death by driving cases, that no sentence imposed can diminish the grief and suffering experienced by the loved ones of those who lose their lives in road traffic accidents. A judge's role is to determine a sentence that appropriately reflects the severity of the crime. The guideline therefore aims, therefore, at least in part, to provide more clarity and increase understanding of the sentencing process. The guideline may also help to ensure a common approach to sentencing across the Scottish Courts for such offences.

Prior to this guideline being approved, the Scottish Courts could make reference to the English and Welsh sentencing guideline: Causing Death by Driving, however, given the different sentencing powers across the two jurisdictions, that guideline made reference to certain sentencing options that were not available to Scottish judges. For example, the concept of a suspended sentence (where a custodial sentence is imposed but the accused is not imprisoned) does not exist in Scotland. Accordingly, the new guideline provides sentencing judges with only directly relevant options.

Whilst the sentencing guideline is not to be rigidly enforced, allowing sentencing judges to continue to exercise their discretion, it provides a framework to assist judges when addressing the complex issues that can arise in such cases. Should a court decide not to follow the guideline, they are required to state their reason for doing so.

The Guideline

The Guideline considers four particular offences under the Road Traffic Act 1988:

  • Section 1 - Causing death by dangerous driving
  • Section 3A - Causing death by careless driving when under influence of drink or drugs
  • Section 2B - Causing death by careless, or inconsiderate, driving
  • Section 3ZB and 3ZC - Causing death by driving: unlicensed, uninsured, or disqualified.

As part of the sentencing exercise, the Court will be required to consider the seriousness of the offence as well as identifying any applicable aggravating or mitigating factors.

Maximum available sentence

The guideline provides applicable sentencing ranges for judges to consider. Interestingly, as a matter of law, the maximum potential sentence under statute for causing death by dangerous driving is life sentence, however, the guideline provides, as its highest range, 7-12 years which reflects more recent sentencing decisions in Scotland. The Court will be entitled, however, should the circumstances of any case require it in the judge's opinion, to depart from the ranges indicated in the guideline and go above that range.

Consideration of HGV drivers

Another distinction which will now exist between the English and Scottish sentencing guidelines relates to the treatment of HGV drivers. In terms of the English guideline, a death caused by driving an HGV is treated as an automatic aggravating factor in the sentencing process. However, the Scottish Sentencing Council has decided not to adopt the same approach as in England and Wales, which is likely to be welcomed by those in logistics, transport and distribution sectors, for fear of otherwise alienating future HGV drivers.

Future impact

It remains to be seen if the introduction of the guideline will bring about a material change to sentencing attitudes for such offences in the Scottish Courts. However, it is hoped that the guideline will bring a greater sense of transparency for all those involved in serious driving cases.

If you require any further information on this topic, please contact Clare Bone, Victoria Anderson or you usual Brodies contact.


Clare Bone

Partner & Solicitor Advocate

Victoria Anderson

Senior Associate

Hannah McMahon

Trainee Solicitor