MCN Law- dangerous driving

In MCN on Wednesday, December 6, 2006 as part of MCN Law one readers asks why he’s been accused of dangerous driving.

In response, motorcycle specialist lawyer Andrew Campbell from Withy King, interpretates the difference between between Dangerous Driving and Driving Without Due Care and Attention (and Driving Without Due Consideration).

Here on motorcyclenews.com we have the complete legal definition of the difference for you to read through.

We also have the legal definition of what is meant by failing to stop at or report an incident.

Follow the links below to read the full articles.

Question:

I’ve been accused of a dangerous driving after I overtook an unmarked police car on a blind bend, and a car coming the other way swerved off the road into a ditch. Ok it wasn’t the best decision I’ve made but I thought I’d only get done for driving without due care and attention?

 

Answer:

The police were perfectly within their rights to pursue a dangerous driving charge.The reader overtook on a blind bend which in itself is obviously dangerous. That this was a dangerous manoeuvre is evidenced by the fact that another vehicle was forced into a ditch as a result. I think it would be helpful to readers if I set out a summary of various driving offences and examples of such offences.

 

Dangerous Driving and Driving Without Due Care and Attention

Failing to Stop

Distinction between Dangerous Driving and Driving Without Due Care and Attention (and Driving Without Due Consideration)

A charge of dangerous driving under Section 2 of the Road Traffic Act 1988 (RTA)  must only be allowed to proceed if it satisfies the tests laid down by the Code; in other words that there is enough evidence to provide a realistic prospect of conviction on the charge of dangerous driving and, if so, whether it is in the public interest to prosecute the defendant in relation to that offence.

In relation to the public interest test, it should be borne in mind the prosecution of traffic offences is vital to the promotion of road safety and the protection of the public.

Definition

A person drives dangerously when:

The way he drives falls far below what would be expected of a competent and careful driver

and

It would be obvious to a competent and careful driver that driving in that way would be dangerous.

Both parts of the definition must be satisfied for the driving to be “dangerous” within the meaning of the Act. (Section 2A(1) RTA 1988)

There is no statutory definition of what is meant by “far below” but “dangerous must refer to danger of personal injury or of serious damage to property: (Section 2A(3) RTA 1988). Additionally, (Section 2A(2) RTA 1988) provides that a person is to regarded as driving dangerously if it would be obvious to a competent and careful driver that driving the vehicle in its current state would be dangerous.

When considering the state of the vehicle, regard may be had to anything carried by or attached to the vehicle: (Section 2A(4) RTA 1988).

Dangerous driving is an either way offence carrying a level 5 fine and/or 6 months custody in the Magistrates Court; in the Crown court the maximum penalty is 2 years custody and/or an unlimited fine.

Wherever the case is heard, the Court must disqualify the driver from driving for at least a year and order him to pass an extended driving re-test, unless “special reasons” are found for not disqualifying (in which case it must endorse the driver’s licence with 3-11 penalty points unless there are, again, “special reasons ” for not doing so).

The test of whether a driver has fallen far below the required standard is an objective one. It concerns situations when the manner of the driving in question is deliberate and it also covers situations when the manner of the driving occurs as a result of an error of judgment, of incompetence, or inexperience.

Dangerous driving can therefore cover a range of behaviours from a single error of judgment to a prolonged and deliberate course of driving with disregard for the safety of other road users.

It is important to recognise that a single inadvertent act or omission may possibly fall so far below the standard of driving of a competent and careful driver that it constitutes dangerous driving.

Examples of cases which illustrate the latter principle include: Att.Gen’s Reference No 32 of 2001 (2002) 1 Cr.App.R. (S) 121 (offender failed to stop at a junction where there was a give way sign and collided with a taxi, failing to see it, that was being driven across the junction perfectly properly); and Att.Gen’s Reference No.76 of 2002 (Hodges) (2003) 1 Cr.App.R. (S) 100 (offender drove across junction marked by a give way sign and collided with a car that was being driven along the major road, and had no explanation for his failure to see the car) -“This was a single mis-judgment. It was a bad mis-judgment but nevertheless a single one” (p.524).

It is important to remember that the manner of the driving must be seen in the context of the surrounding circumstances in which the driving took place (e.g. amount of traffic, visibility).

It is not necessary to consider what the driver thought about the possible consequences of his actions: simply whether or not a competent and careful driver would have observed, appreciated and guarded against obvious and material dangers.

In the case of a vehicle in such a state of disrepair as to be dangerous consideration should be given to whether the vehicle should have been driven at all as well as to how it was driven in the particular circumstances.

Although the test for “dangerous” is an objective one, deliberate or persistent disregard of, say, traffic directions (be they “stop”, “give way” or traffic lights) may be evidence that the manner of the driving has fallen far below the standard required, thus making a charge of dangerous driving appropriate.

The following are examples of driving which may support an allegation of dangerous driving:

•    Racing or competitive driving.

•    Speed, which is highly inappropriate for the prevailing road or traffic conditions.

•    Aggressive driving, such as sudden lane changes, cutting into a line of vehicles or driving much too close to the vehicle in front.

•    Disregard of traffic lights and other road signs, which, on an objective analysis, would appear to be deliberate; or disregard of warnings from fellow passengers.

•    Overtaking which could not have been carried out safely.

•    Driving a vehicle with a load which presents a danger to other road users.

•    Where the driver is suffering from impaired ability such as having an arm or leg in plaster, or impaired eyesight.

•    Driving when too tired to stay awake.

•    Driving with actual knowledge of a dangerous defect on a vehicle.

•    Using a mobile phone whether as a phone or to compose or read text messages. (See R v Browning (2001) EWCA Crim 1831; (2002) 1 Cr. App.R. (S) 88)

In (R v Cooksley and others TLR 8.4.03) the Court of Appeal gave detailed guidance as to sentencing in causing death by dangerous driving cases; this case nonetheless offers guidance as to what can constitute dangerous driving at the top end of the scale. In addition to some of the factors mentioned above regard can be had to:

•    Callous behaviour at the time such as throwing a victim off the vehicle or failing to stop.

•    Causing death (and presumably serious injury) in the course of an escape or an attempt to avoid detection.

Careless driving and driving without due consideration – Section 3 RTA 1988.

These apparently straightforward offences can cause substantial difficulties for prosecutors, particularly as the consequences of an incident may be much more serious than the offence suggests.

The offences are summary-only and the only available penalties are a fine, penalty points and/or disqualification.

You should focus on the extent to which the evidence proves that accused’s conduct fell below the standard required by law.

Put another way, the test is: what did the defendant do, or fail to do? It is not: what happened as a result of the defendant’s action or inaction, even if this has serious consequences.

There will be times when another Road Traffic offence, such as failing to obey a traffic sign, will cover the same facts and may be easier to prove.

At the other end of the scale, you will frequently have to consider this advice in conjunction with the advice on dangerous driving, refer to dangerous driving, in this guidance, in order to decide upon the appropriate charge.

This offence is committed when the accused’s driving falls below the standard expected of a reasonable, prudent and competent driver in all the circumstances of the case. (Wilkinson, 5.41 to 5.82)

The maximum penalty is a level 4 fine (presently £2,500). The court must also either endorse the driver’s licence with between 3 and 9 penalty points (unless there are ‘special reasons’ not to do so), or impose disqualification for a fixed period and/or until a driving test has been passed. (Wilkinson, 19.01)

The test of whether the standard of driving has fallen below the required standard is objective. It applies both when the manner of driving in question is deliberate and when it occurs as a result of incompetence, inadvertence or inexperience.

Occasionally an accident occurs but there is no evidence of any mechanical defect, illness of the driver or other explanation to account for why the accident happened. In these cases, a charge of careless driving may be appropriate, but you should exercise caution.

If you can prove how an incident occurred [e.g. a collision] the case can be put on the basis that there is a very strong inference that the defendant was driving below the standard expected of a reasonable, prudent and competent driver. In the absence of any explanation by the defendant as to the cause of the accident, a court may infer that the offence was committed, but where the defendant does provide an explanation for the accident, however unlikely, you will have to consider whether to proceed.

The civil law doctrine of res ipsa loquitur [the thing speaks for itself] has no direct application to the criminal law. (But see Wilkinson at 5.50 “In the absence of any explanation by the defendant, if the only conclusion which is possible to draw is that the defendant was negligent or had departed from what a reasonably prudent and confident driver would have done in the circumstances, a court should convict”).

In some cases, particularly where there has been a collision, the evidence will show that more than one driver was at fault.

It will be necessary to establish that there is evidence from an independent source against any driver who is to be charged, but the possibility of charging more than one driver remains if both have failed to comply with the statutory standard.

When considering the public interest test you should look at the degree of blameworthiness: the greater the blameworthiness, the greater the public interest in favour of prosecution.

There are specific reasons to proceed where the defendant has not passed a driving test, particularly where he/she is unfit to drive because of a disability or is driving otherwise than in accordance with the conditions of a provisional licence.

See Section 36 Road Traffic Offenders Act 1988 for power to disqualify the driver until he passes a driving test, and Section 22 Road Traffic Offenders Act 1988 where the defendant may be unfit to continue to drive, the court has power to notify the Secretary of State about any relevant disability.

Conversely, the public interest does not call for a prosecution in every case where there is, evidentially, a realistic prospect of conviction for careless driving. A prosecution should not be commenced because of technical lapse from the statutory standard where a case is likely to attract only a nominal penalty and will have no deterrent effect on a defendant or other motorists.

It will not necessarily be appropriate to prosecute in every case where a minor collision occurs. What matters is the extent of the error, not the extent of any damage. It is not the function of the prosecution [or the criminal courts] to conduct proceedings in order to settle questions of liability for the benefit of individual motorists or insurance companies.

Therefore the public interest will tend to be against a prosecution for careless driving where the incident is of a type such as frequently occurs at parking places or in traffic queues, involving minimal carelessness.A prosecution may not be necessary where the only or main loser (in terms of personal injury or damage) was the proposed defendant. Refer to ‘nearest and dearest’, in this section above, in this guidance.

The following are examples of driving which may amount to driving without due care and attention:

•    overtaking on the inside;

•    driving inappropriately close to another vehicle;

•    driving through a red light;

•    emerging from a side road into the path of another vehicle;

Conduct whilst driving, such as:

•    using a hand held mobile telephone while the vehicle is moving;

•    tuning a car radio;

•    reading a newspaper/map;

•    selecting and lighting a cigarette/cigar/pipe;

•    talking to and looking at a passenger;

The above examples are merely indicative of what can amount to careless driving. It is necessary to put the facts in context and consider whether the particular facts of the case warrant a charge of careless or dangerous driving.

The reason for the driver’s behaviour is not relevant to the choice of charge: it is the acts or omissions of the driver, or conduct whilst driving, which determine whether the driver has fallen ‘below’ (careless driving) or ‘far below’ (dangerous driving) the standard required.

Consider whether a defendant has failed to observe a provision of the Highway Code.

This does not itself render that person liable to criminal proceedings, but a failure, particularly a serious one, may constitute evidence of careless or dangerous driving. (Section 38(7) RTA 1988) is the statutory authority for this point.

Where there is an overlap between careless driving and some other offences such as driving with excess alcohol, a regulatory offence, an offence of strict liability, or a ‘Construction and Use’ offence, the merits of the individual case may often be adequately met by charging the specific statutory or regulatory offence.

In short, a prosecutor may ask: what does the ‘due care’ allegation add to the case – and what additional penalty is likely?

In practice, there will need to be some further evidence to show that the manner of the driving fell below that which is to be expected in order to justify proceedings under Section 3 RTA 1988.

Driving without reasonable consideration – Section 3 RTA 1988

This offence is committed when a vehicle is driven on a road or other public place “as a result of which other persons using the road or place are inconvenienced.” ‘Other persons’ may include persons in or on the driver’s vehicle itself. The penalties are the same as for “Careless Driving”.

Generally, prosecutors prefer ‘Careless Driving”‘ to “Driving without due consideration” as the former is easier to prove – there is no need to show that an actual road user is inconvenienced, etc. But ‘due consideration’ is more appropriate where the real harm done is aimed at, or suffered by a particular person.

The accused must be proved:

•    to have fallen below the standard of a reasonable, prudent and competent driver in the circumstances of the case; and

•    to have done so without reasonable consideration for others; and

•    to have inconvenienced an actual road user.

Note the essential difference between the two offences under Section 3 RTA 1988 is that in cases of careless driving the prosecution need not show that any other person was inconvenienced.

In cases of inconsiderate driving, there must be evidence that some other user of the road or public place was actually inconvenienced.

This offence is appropriate when the driving amounts to a clear act of incompetence, selfishness, impatience or aggressiveness.

There must, however, also be some inconvenience to other road users, for example, forcing other drivers to move over and/or brake as a consequence. Examples of conduct appropriate for a charge of driving without reasonable consideration are:

• flashing of lights to force other drivers in front to give way;

• misuse of any lane to avoid queuing or gain some other advantage over other drivers;

• unnecessarily remaining in an overtaking lane;

• unnecessarily slow driving or braking without good cause;

• driving with un-dipped headlights which dazzle oncoming drivers;

• driving through a puddle causing pedestrians to be splashed;

• driving a bus in such a way as to scare the passengers.

Note that you must decide which version of the offence to charge as the section creates two separate offences and there is no alternative verdict provision in the Magistrates/Youth court. (R-v-Surrey Justices, ex parte Witherick [1932] 1 K.B. 450).

Driving without due consideration – public interest factors.

The public interest considerations for the two offences created by this section are largely the same.

You may be more inclined to prosecute where you have decided that due consideration is the appropriate charge and you will be calling evidence to show that the defendant caused harm, annoyance or distress [e.g. the example regarding the pedestrians and the puddle above].

Relationship between S.2 and S3 RTA Offences

The manner of the driving must be considered objectively. In practice, the difference between the two types of bad driving will depend on the degree to which the driving falls below the minimum acceptable standard.

If the manner of the driving is below that which is expected, the appropriate charge will be careless driving; if the manner of the driving is far below that which is expected, the appropriate charge will be dangerous driving.

There is no statutory guidance about what behaviour constitutes a manner of driving which is “below” and “far below” the required standard. The appropriate charge will therefore have regard to the extent of departure from the required standard, rather than to the consequences of that departure.

There is no clear cut dividing line between acts of careless driving and acts of dangerous driving.

The factual examples set out in this standard are merely indicative of the sort of behaviour which may merit prosecution under Section 2 or Section 3 RTA 1998.

It is important to put the facts of the case in context. Although the test is objective, the manner of the driving must be seen in context of the circumstances in which the driving took place.

Behaviour which may not be criminal in certain conditions may merit proceedings in other conditions, for example, a safe lane change in slow moving traffic may become unsafe on a motorway where speeds are faster, there is less time to react and the consequences of any accident are likely to be more serious.

Similarly, behaviour, which might merit proceedings under section 3 in certain conditions, may merit a prosecution under section 2, for example, if there is poor visibility; increased volume of traffic; adverse weather conditions; or difficult geography, such as blind corners.

Failing to stop/report an accident

Definition [Wilkinson’s 21st edition 7.04 and A 25.240]

Section 170(2) of the Road Traffic act 1988 provides that the driver of the motor vehicle must stop and, if required to do so by any person having reasonable grounds for so requiring, give his name and address, the name and address of the owner of the vehicle and the identification marks of the vehicle. The duty to stop means to stop sufficiently long enough to exchange the particulars above: (Lee -v- Knapp 1966 3 All ER 961).

Section 170(3) places an obligation on the driver, if he does not give his name and address under subsection (2) above, to report the accident to a police constable or police station as soon as reasonably practicable and in any case within 24 hours. The duty to report means “as soon as reasonably practicable”: (Bulman -v-Bennett 1974 RTR). It does not mean the driver has 24 hours within which to report the collision.

When the evidence reveals a failure to comply with both subsections (2) and (3), proceedings should be brought for both offences. The failure to stop is usually viewed as the more serious of the two.

A person who fails to comply with subsection (2) or (3) above is guilty of an offence punishable with a maximum sentence of six months’ imprisonment.