Tag Archives: driving

Spies to be permitted to speed

bond

Yesterday, 12 January 2014, the BBC News website ran a story stating that ‘Spies are to be allowed to speed under changes to the UK motoring laws.

The piece explained that MI5 and MI6 officers, who currently have to abide by the rules of the road, e.g. not speed, not run red traffic lights etc., will soon be granted the same exemptions as police officers and other emergency services staff.

Why the need for the change? 

Well under the current system, as the article states, MI5 and MI6 officers must abide by the road traffic laws. This means that, for example, where national security is at risk and a chauffeur needs to drive Judi Dench back to MI5 as quickly as possible, or Bond needs to drive carelessly to impress a lady, they have two choices, a) break the speed limit and drive carelessly, or b) drive at 30mph and risk the world ending.

(On a policy point, it is plainly sensible that MI5 and MI6 officers have the same exemptions as the police, who are permitted to break the law in certain circumstances.)

The current situation

If the driver chooses option a), he or she is in line for some penalty points (or more), a fine disqualification from driving (depending on the seriousness of their transgression).

For a wide number of offences, the courts have the ability to disqualify drivers if they deem in appropriate (known as discretionary disqualification). For a number of offences, the court must disqualify the driver (known as obligatory disqualification).

If the driver has other points on their licence, they may be in line for disqualification via the totting up procedure (where a driver has 12 points or more on their licence).

Can they be excused?

The courts have the ability to ‘excuse’ a driver from disqualification where their offence is one which carries obligatory disqualification

The power is under Road Traffic Offenders Act 1988 s 34 and courts can choose not to disqualify, or disqualify for a period less than the period determined by statute, a driver who has committed an offence carrying obligatory disqualification. This is called finding special reasons.

The test which the court must apply comes from a case from the 1950s; R v Wickins.

Wickins held that a special reason must:

  1. be a mitigating or extenuating circumstance,
  2. not amount to a defence in law,
  3. be directly connected to the offence, and
  4. be a matter which the court ought properly take into account.

Of course not every mitigating feature will amount to a special reason.

Offences/Circumstances

Failing to provide a specimen of breath – it is highly unlikely that special reasons will be established for this offence (i.e. dont bank on it)

Driving a very short distance – this can be a special reason, but it would be unusual.

Driving at the request of a policeman – this can be a special reason but only in limited circumstances.

Driving not impaired by alcohol (e.g. you were driving over the limit but there was nothing wrong with your driving) – this cannot be special reason (for obvious reasons).

Driving in an emergency – this can be a special reason but only in limited circumstances.

Driving in a medical emergency – this can be a special reason

Personal hardship – this cannot be a special reason (it does not relate to the offence)

Ignorance of the law – this cannot be a special reason (think of everyone trying it on!)

Drink was laced (the offence of drink driving) – this can be a special reason

So there are some examples – the circumstances in which special reasons can be found are (sensibly) narrow. As for Bond and Judi Dench, they would probably get away with it under the ‘driving in an emergency’ category, but the reasons for extending the exemptions to them seem like common sense.

Jill Archer’s brush with the law

 

An elderly lady with failing eyesight runs her car into a cyclist on a country lane, causing him some slight injury and torn clothing. This will sound familiar to listeners of BBC Radio 4’s The Archers. But what does the law say about motorists who find themselves in this situation? A brief discussion of the issues.

Driving with failing eyesight

The law specifies the minimum acuity level for motorists – the standard is higher for taxi drivers and commercial drivers. The minimum eyesight standard is set out in Motor Vehicles (Driving Licences) Regulations 1999, which was amended in March 2013. You can see (or not) the standards here.[1] The DVLA will revoke the licences of motorists who do not meet the standard. Where a motorist has her licence revoked by the DVLA, she can appeal to the magistrates’ court.[2]

But what of the motorist who is in denial about failing eyesight? Those who quite naturally don’t want to lose their independence and have trouble accepting their failing health? Driving without meeting the standard is an offence resulting in 3 penalty points. The penalty points are particularly relevant to a motorist who drives without wearing their glasses, or who refuses to take an eye test.

The accident

In The Archers, Jill Archer collided with a cyclist (her grandson), knocking him off his bike. Is there any liability here?

Careless driving

Careless driving is an offence under Section 3 of the Road Traffic Act 1988, which can result in disqualification from driving. The question would be whether Jill’s driving fell below the standard expected of a competent and careful driver. If Jill knew that her eyesight was failing, it would tend to support the prosecution case that she was not being a careful driver: she told David, ‘I just didn’t see him.’ Ultimately, we don’t know anything about the road layout, sight lines, driving conditions, weather, Jill’s speed, or the behaviour of Josh the cyclist as he pulled out, so advising on liability for this offence is impossible at this stage. Suffice to say, the question would be whether a competent and careful driver would have had the same collision as Jill.

Failing to report

The law states that a motorist who has had an accident must stop immediately[3] and be prepared to supply their name and address. There’s no technical definition of ‘accident,’ but knocking someone of their bike is pretty obviously encompassed.

In Jill Archer’s situation there’s no practical requirement for her to give her name and address to her grandson, but is she obliged to report the accident to the police station? That’s always a thorny issue, because the motorist may well think to herself, ‘If I tell the police I’ll only make it worse – I may be prosecuted!’ In fact, failing to report an accident is the most serious of the three offences considered, and is imprisonable.

Since there is no injury to Josh, there is no requirement for Jill to make a report to the police or produce her insurance documents. Although she might yet be prosecuted for driving with poor eyesight or careless driving, it’s unlikely that her family members would tip off the DVLA or police, and very unlikely that Josh would support a prosecution of his grandmother. In the circumstances, Jill’s had a very lucky escape. Of course, she should resist the urge to tweet about it.

Jon Mack is a barrister at Blackfriars Chambers, and tweets @JonDMack


[2] Road Traffic Act 1988 s.100

[3] Hallinan v DPP [1998] Crim LR 754, DC

Charles Watts banned from driving, drives home from court

Charles Watts, 24, was arrested moments after leaving court.

The Daily Mail (we know, sorry) reported that he appeared in court because he was driving at 67mph in a 40mph zone. He, with 16 others, had been caught as part of a police ‘crack down’ on road racers near the Lakeside Shopping Centre in Essex. Those drivers were road racing, drifting and speeding at up to 80mph on a 40mph stretch of the dual carriageway.

Road racing is a particular problem in the Lakeside area of Essex.

It is not clear what offence Watts was convicted of, although it is likely to be driving without due care and attention. It could be simple speeding, but we are simply not sure.

It was reported that Watts was given 6 penalty points for driving at 67mph. He already had 6 points on his licence for previous offences of speeding and using a mobile phone whilst driving (presumably 3 points each) and so fell to be disqualified as a ‘totter’ as he had 12 points on his licence.

The law

We are concerned here with the Road Traffic Offenders Act 1988 s 35, colloquially known as ‘totting up’ because it involves adding – or ‘totting’ – up the number of penalty points on a licence.

(1)Where—

(a) a person is convicted of an offence to which this subsection applies, and

(b) the penalty points to be taken into account on that occasion number twelve or more,

the court must order him to be disqualified for not less than the minimum period unless the court is satisfied, having regard to all the circumstances, that there are grounds for mitigating the normal consequences of the conviction and thinks fit to order him to be disqualified for a shorter period or not to order him to be disqualified.

The following steps are the questions the court would have had to ask itself.

1)    Does obligatory disqualification apply? If so, ‘totting up’ does not apply.

Some offences receive automatic disqualification, such as causing death by careless driving.

2)    Are there ‘special reasons’ for not endorsing the licence (awarding penalty points)?

Where special reasons are present, the court can choose not to add penalty points to a licence. These cases are rare. Examples may be driving in an emergency (though it is not advisable) or where someone’s drink has been ‘spiked’ and they are convicted of driving with excess alcohol.

3)    Are there 12 points or more?

12 points is the point at which a person falls to be disqualified as a totter.

4)    Would disqualification cause unnecessary hardship?

It will be necessary to demonstrate that the driver would not only lose his/her employment but also that there were consequences flowing from that loss of employment, e.g. the driver’s family members are affected if they may lose their home etc.

5)    Has the driver been disqualified previously?

If yes, one period of 56 days+ , the disqualification will be for a minimum of 12 months. If two periods of 56 days+ the disqualification will be for at least 2 years.

Nb. Disqualification as a ‘totter’ erases all penalty points so that there is no double punishment. Other disqualifications do not.

Back to Charlie

Watts was disqualified for 9 months and fined £183. Watts reportedly claimed he was unable to pay the fine as he only had £1 on his person. Of course, fines are not payable at the court and certainly not to the judge/magistrates that impose them!

It is reported that Watts, who had (perhaps foolishly) driven to court, didn’t fancy getting the bus home and so hopped into his car.

Chief Insp Ben Hodder, who led the crackdown, tweeted: ‘Someone who was disqualified from driving at court today #OpWagtail decided to ignore the court and try and drive anyway! #arrested.’

Watts was charged with driving whilst disqualified and driving without insurance.

He will return to Basildon Magistrates’ Court on 17 October when he is due to enter a plea.

Sentence

If convicted, the following will apply.

For driving whilst disqualified, the maximum sentence is 6 months or a £5,000 fine. The court can also impose 6 penalty points and disqualify someone from driving.

Interestingly there is a power to deprive the defendant of the vehicle used to commit the offence, however this is likely to be considered to be disproportionate. For a recently imposed ban, the Guidelines suggest a starting point of 12 weeks custody [page 139 of the PDF, numbered page 122].

On the sparse facts we have, there appears to be an absence of aggravating factors listed in the guideline, and the presence of a mitigating factor, namely the distance driven. However, the effect of this mitigation is limited (to my mind it is worth nothing) as the distance driven is presumably short only because Watts was caught by the police! This perhaps demonstrates the usefulness (or otherwise) of the guidelines.

In reality, the aggravating factors are the flagrant disregard for an order of the court, the short period of time between the imposition of the ban and the driving and his previous convictions for driving matters.

Because this matter is yet to be sentenced we will refrain from giving any further opinion.

Death by driving: Careless or Dangerous?

We were asked to look at death by driving and when careless driving becomes dangerous, in particular, with reference to the sad case some 10 days ago of Courtney Meppen-Walter, who pleaded to causing death by careless driving.

The offences

Firstly, let’s look at the different offences.

1)      Causing death by careless or inconsiderate driving  (RTA 1988 s 2B) (this is the ‘simple’ offence)

2)      Causing death by careless driving when under the influence of drink or drugs etc. (RTA 1988 s 3A)

3)      Causing death by dangerous driving (RTA 1988 s 1)

It is also worth noting that there is now an offence of causing serious injury by dangerous driving (LASPO 2012 s 143), thereby filling the lacuna between dangerous driving and causing death by dangerous driving.

Offences 1) and 2) are obviously the same offence, save for the presence of drink/drugs in the driver’s system at the time of the offence. So, in the context of the Meppen-Walter case, let’s treat them as one and the same.

The maximum sentences are as follows:

1)      Death by careless (simple) 5 years and obligatory 12 month disqualification

2)      Death by careless (drink/drugs) 14 years and obligatory 2 year disqualification

3)      Death by dangerous  14 years and obligatory 2 year disqualification

So what makes careless into dangerous?

Well this is no doubt a question of specific facts.

Helpfully, the Act provides us with some assistance:

RTA 1988 s 3ZA Meaning of careless / inconsiderate driving

(2)A person is to be regarded as driving without due care and attention if (and only if) the way he drives falls below what would be expected of a competent and careful driver.

(3)In determining for the purposes of subsection (2) above what would be expected of a careful and competent driver in a particular case, regard shall be had not only to the circumstances of which he could be expected to be aware but also to any circumstances shown to have been within the knowledge of the accused.

(4)A person is to be regarded as driving without reasonable consideration for other persons only if those persons are inconvenienced by his driving.]

RTA 1988 s 2A Meaning of Dangerous driving:

(1)For the purposes of sections 1 and 2 above a person is to be regarded as driving dangerously if (and, subject to subsection (2) below, only if)—

(a)the way he drives falls far below what would be expected of a competent and careful driver, and

(b)it would be obvious to a competent and careful driver that driving in that way would be dangerous.

(2)A person is also to be regarded as driving dangerously for the purposes of sections 1 and 2 above if it would be obvious to a competent and careful driver that driving the vehicle in its current state would be dangerous.

So essentially, we are talking about the level by which the driver in question falls below the standard expected of him or her.

The sentencing guidelines (which can be found here) provide a list of factors which are designed to assist the court in determining the correct level of culpability and therefore the appropriate sentence for the offence with which it is dealing. These include:

a)      Previous convictions for motoring offences,

b)      Disregarding warnings,

c)      Failing to stop,

d)     Falsely claiming the victim was to blame for the collision,

e)      Injuries caused in addition to the death

Categorisation

Death by driving cases can be categorised by reference to the behaviour of the driver. For example, where the resulting collision and death are a product of taking one’s eyes off the road to change the radio station, this can be categorised a momentary inattention. This helps to ascertain the level of culpability attributable to the driver.

Where the driver has been consistently speeding 20 mph above the prescribed limit, ignoring warnings that the road ahead contains sharp turns or a ‘T’ junction, this is clearly deliberate, persistent poor driving which is far more culpable than the ‘momentary inattention’ example above.

So what about Meppen-Walter?

Well we have very few details about the case. We know that he was ‘racing’, playing or otherwise acting irresponsibly with another vehicle. We know that he was speeding at the time of the incident, 55mph, and was still accelerating.

BBC News reported that: The court was told Mr Singh, 32, and Mrs Kaur, 37, had been sitting in the front of a Nissan Micra when it was struck by Meppen-Walter’s Mercedes C220 saloon, owned by his grandfather, at 22:15 BST on 1 September.

They had been emerging from a side street when the crash happened, at the junction of Great Ducie Street and Sherborne Street.

Mr Meppen-Walter remained at the scene and tried to help the victims. Meppen-Walter had one previous conviction for speeding – again doing 56mph in a 30mph zone.

BBC News also reported that: “The probation report says he’s a young man who wished he could have those 10 seconds back, but of course he can’t.”

This suggests to us that it was a case of more than a momentary inattention, and The Telegraph reported that: The traffic investigation concluded the “overriding factor” in the incident was the speed of the Mercedes.

So, taking account of the speed and the fact that Meppen-Walter was ‘jockeying’ with another vehicle, it appears that case was one that fell not far short of dangerous driving.

Looking at the guidelines, it would have likely attracted a starting point of 15 months with a range of 36 weeks – 3 years. The Judge appears to have increased the starting point to reflect some aggravating factors, and then reduced it to take account of his plea and (probably) his young age.

The sentence was one of 16 months.