HERALD COLUMN

It is a sunny afternoon. A young man, returning from work overtakes on a highway, and runs into a car, killing the other driver. The young man misjudged whether it was safe to overtake but he was sober, and not using a mobile phone. What sentence should he receive?

The children of the victim feel that the punishment should fit the consequences of the crime – he took a life and, like any murderer, he should face a life sentence. Other members of the public feel that the punishment should be sufficient (perhaps eight years) to make other drivers think twice before driving carelessly. The lawyer argues that it is only murder if you set out intentionally and unlawfully to kill another person. This was a momentary lapse of concentration, not an intentional act, and the key question is culpability not consequence. This is, therefore, not murder but careless driving and the young man should spend perhaps two and a half years in custody.

The parents of the young man feel that what happened was terrible, and that their son will be sorry for what he did for the rest of his life. But he didn’t ever mean to do it. In fact, he did what almost all of us have done as drivers at one time or another. Putting him in prison will not bring the dead man back to life. It will cost the taxpayer tens of thousands of pounds. And it won’t protect the public because he doesn’t pose any threat to the public. All it will do is lose the young man his job, his home and his relationship, and damage his mental health. So there should be no prison sentence at all.

What is the right answer in this case? We sometimes talk as though this could be answered by pure logical thought. But in truth this question – life, eight years, two years, or no years – is unanswerable, because our values and attitudes are irreconcilable on this issue. We might disagree about what prison is, what it could be, and what it ought to be. Some of these are questions of fact. Is a prison a good way of punishing someone (is it too hard, or is it too soft and how would you measure that)? Is putting one person in prison a good way of deterring someone else from committing a crime (and how do you calculate the sentence you need to act as an effective deterrent)? Is prison a suitable place for rehabilitating or changing the behaviour of offenders (or does it in fact make people worse)?

But some of these are questions of values. Do you believe that there is a fundamental and unbreakable ethical principle which means that prison ought only to be used for one particular purpose – only for rehabilitation, or only for punishment (Kant argues, for example, that because a human being should always be treated as an ‘end in himself’ never as a means to an end, you must never punish one person as a means to deter another person from committing a crime, nor to prevent the same individual from committing a future crime. Bentham would argue exactly the opposite)?

And what aspect of the crime are you punishing? Does the guilt depend largely on the intention of the individual – whether they intended to kill? How much weight should be given to what the driver knew about the danger of the road? How much to what they didn’t know, but ought to have known? And is it only the conduct of the driver that matters, or should the punishment also be proportionate to the consequences (should a careless driver be punished more for killing twenty children in a school bus, than for injuring one pensioner, if the careless driving were the same in each case)?

Our views about crime and punishment change over time. Our society passes more lenient sentences on some crimes than they did in the past (forgery, for example, which used to be punished with the death penalty); others receive much tougher and longer sentences (our prison population is twice what it was forty years ago, and now includes prisoners who are over a hundred years old). Until quite recently, there was no offence of death by careless driving at all. Now the maximum sentence is five years. The maximum sentence may soon be life. But the heart of the tragedy is not philosophical but personal.

Take a moment to reflect on what it means to be a judge – dealing with cases, where they feel the horrifying consequences of the act – the sudden death of a loved one, but where they also know that almost all of us have driven carelessly at one time or another, and were lucky not to cause damage. They are forced to pass a sentence, knowing that there can never be a right answer to the question. Take a moment too for the parents of the young man, who see their son inadvertently kill someone through a momentary act of foolishness and being locked in a prison. And take a moment, for the families of the victim, who lost, in a sudden moment – and forever – someone they loved so deeply. The central purpose of our democracy is to understand these differences, and respond to them, but it can rarely, finally, resolve them.