Offences Involving Standards of Driving

Question 1

Offence
Causing Death by Dangerous Driving—Road Traffic Act 1988, s. 1

Answer 1

• Triable on indictment
• Life imprisonment
• Obligatory disqualification—minimum three years
• Compulsory re-test

The Road Traffic Act 1988, s. 1 states:

A person who causes the death of another person by driving a mechanically propelled vehicle dangerously on a road or other public place is guilty of an offence.

Question 2

Causing Death by Dangerous Driving

Answer 2

For the purposes of this offence, the definition of ‘driver’ does not include a separate person acting as a steersman.

Note that this offence applies to a ‘mechanically propelled vehicle’ and can be committed on a road or public place.

Provided the basic elements (mechanically propelled vehicle on a road/public place) are met, you must prove that:

• the defendant caused the death of another person; and
• the defendant drove dangerously.

Where the defendant is charged under s. 1, evidence of drink will be admissible where the quantity of it may have adversely affected the quality of his/her driving (R v Woodward [1995] RTR 130).

Section 36 of the Road Traffic Offenders Act 1988 (requiring the court to disqualify a person convicted of certain offences until he/she has passed the relevant test) applies to this offence. This means that, if convicted of this offence, the defendant will have to take an extended driving test before getting his/her licence back.

Under the Powers of Criminal Courts (Sentencing) Act 2000, s. 143, forfeiture of the motor vehicle used for the purpose of this offence may be ordered.

Question 3

Causes the Death of Another

Answer 3

The death must be that of a person other than the defendant. This would include a foetus which was later born alive but which subsequently died.

A driver causing the death of another in this way could still be indicted for homicide (R v Governor of Holloway Prison, ex parte Jennings [1983] 1 AC 624), however, a charge of manslaughter will rarely be brought in such cases.

The driving by the defendant must be shown to have been a cause of the death; it is not necessary to show that it was the sole or even a substantial cause of death (R v Hennigan [1971] 3 All ER 133). Therefore it is irrelevant whether or not the person killed contributed to the incident which resulted in his/her death or where it is alleged that a second collision was the immediate cause of death (R v Girdler [2009] EWCA Crim 2666).

The Court of Appeal has clarified that this offence relates to causing death by driving and not causing death while driving and therefore the ‘driving’ does not have to be coextensive with the collision that resulted in the death.

In R v Jenkins [2012] EWCA Crim 2909, the court held that parking a van to make a delivery, leaving it in conditions of poor visibility where another vehicle collided with it, was certainly a causal link to the fatality that occurred.

Question 4

The Road Traffic Act 1988, s. 2A states:

Answer 4

(1)
For the purposes of sections 1, 1A 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, 1A 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.
(3)
In subsections (1) and (2) above ‘dangerous’ refers to danger either of injury to any person or of serious damage to property; and in determining for the purposes of those subsections what would be expected of, or obvious to, a competent and careful 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)
In determining for the purposes of subsection (2) above the state of a vehicle, regard may be had to anything attached to or carried on or in it and to the manner in which it is attached or carried.

Question 5

What is ‘Dangerous Driving’?

Answer 5

The courts have held that both elements of s. 2A(1)(a) and (b) must be demonstrated by the prosecution to prove this element of the offence (R v Brooks [2001] EWCA Crim 1944).

This is an objective test which focuses, at s. 2A(1)(a), on the manner of driving rather than the defendant’s state of mind and, at s. 2A(1)(b), on what would have been obvious to a hypothetical ‘competent and careful driver’. An example is where a diabetic driver drives on a road in the knowledge that he/she is likely to suffer a hypoglycaemic episode (R v Marison [1997] RTR 457).

In Attorney-General’s Reference (No. 4 of 2000) [2001] EWCA Crim 780, the Court of Appeal reviewed the requirements of s. 2A. That case involved a bus driver who had inadvertently pressed the accelerator pedal instead of the brake, killing two pedestrians. The court held that under s. 2A the test is an objective one and there is no requirement to show any specific intent to drive dangerously. It is for the jury to determine what constitutes dangerous driving. The court held that the relevant actus reus is the act of driving in a manner which was either dangerous (in the case of a dangerous driving charge) or without due care and attention (in the case of the alternative offence). Where, as in this case, the driver had been conscious of the act he was performing, it was no defence to claim that he had not intended to press the accelerator. That was more a matter for mitigation than guilt. This view was approved by the Court of Appeal in R v Shearing [2012] EWCA Crim 842, where the court recognised that there is an overlap between this offence and that under s. 2B (causing death by careless driving; see para. 2.14.6).

The standard of driving must be shown to have fallen far below that expected of a competent and careful driver; minor driver errors would not amount to such behaviour.

In determining what would have been obvious to a competent and careful driver, s. 2A(3) and (4) introduces a subjective element by taking account of circumstances known to the defendant. This mixture of tests means that, although a defendant’s behaviour will be judged against the ordinary standards of competent and careful drivers, the defendant’s conduct will also be assessed in the light of facts personally known to him/her (such as knowledge of the risk of a load falling off the vehicle (R v Crossman [1986] RTR 49)). However, the test is a high one, as confirmed in R v Conteh (Kondeh) [2003] EWCA Crim 962. In that case, the defendant had caused the death of a pedestrian who was crossing the road at a pelican crossing. The lights were red for pedestrians and green for the defendant who was driving at 20 mph in a bus lane. It was shown that the driver of a vehicle in the outside lane had indicated to the pedestrian that she could cross the road. Quashing his conviction under s. 1, the Court of Appeal held that the threshold in s. 2A was a high one and it could not be said that the defendant’s driving fell ‘far below’ the required standard, nor would it have been ‘obvious’ to a competent and careful driver that it was dangerous. Further, it was good practice expressly to remind a jury that breach of the Highway Code did not necessarily mean that an offence had been committed.

If the vehicle involved was in a dangerous condition, it is important that you prove either:

• that the dangerous condition would itself have been obvious to a competent or careful driver; or
• that the defendant actually knew of its dangerous condition.
  (R v Strong [1995] Crim LR 428.)

In some circumstances, the condition of the driver will be relevant. There are specific offences involving driving while under the influence of drink and/or drugs (see para. 2.14.5) and there are several generic road policing offences dealing with drink and drugs. However, the mere presence of a controlled drug (such as cocaine) in a driver’s blood may of itself be relevant to the issue of whether a person drove dangerously—even if there is no specific evidence as to the drug’s effect on the person’s driving (R v Pleydell [2005] EWCA Crim 1447). The fact that a driver was adversely affected by alcohol is a circumstance relevant to the issue of dangerous driving, but is not in itself determinative to prove the offence (R v Webster [2006] 2 Cr App R 103). There is no requirement to prove whether the defendant was above or below the prescribed limit, as that is not an element of the offence (R v Mari [2009] EWCA Crim 2677); evidence of the amount of alcohol consumed and said to affect the defendant’s ability to drive suffices.

The defendant’s belief, however honestly held, as to the conditions surrounding his/her driving at the time is not relevant to the issue of whether he/she drove competently and carefully (R v Collins [1997] RTR 439). In Collins, a police driver went through a red traffic light at almost 100 mph colliding with another vehicle and killing two people. His belief that the traffic at the lights was being operated by other officers was not a relevant factor for the jury in considering whether or not his driving had been dangerous.

The dangers presented by dangerous driving mean that there will be many occasions where significant injury is caused to another person by the driving of the vehicle. The Court of Appeal has held that there is nothing wrong in principle in charging a driver with causing grievous bodily harm as well as dangerous driving, in appropriate circumstances, and that to do so did not amount to an abuse of process (R v Bain [2005] EWCA Crim 7). However, where a driver was charged with both offences, a court could not impose consecutive terms of imprisonment for both offences arising out of the same incident. With the introduction of the offence of causing serious injury by dangerous driving (see para. 2.14.3), the need to charge both offences may well be consigned to history.

The Court of Appeal gave judgment on the point of whether self-defence was capable of amounting to a defence to a charge of dangerous driving. It concluded that it was; albeit only rarely (R v Tracey Riddell [2017] EWCA Crim 392).

Question 6

The CPS has provided examples of circumstances that are likely to be characterised as dangerous driving and are derived from decided cases. They include:

Answer 6

• racing or competitive driving;
• failing to have a proper and safe regard for vulnerable road users such as cyclists, motorcyclists, horse riders, the elderly and pedestrians or when in the vicinity of a pedestrian crossing, hospital, school or residential home;
• speed which is particularly 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;
• disregard of warnings from fellow passengers;
• overtaking which could not have been carried out safely;
• driving when knowingly suffering from a medical or physical condition that significantly and dangerously impairs the offender’s driving skills, such as having an arm or leg in plaster or impaired eyesight. It can include failure to take prescribed medication;
• driving when knowingly deprived of adequate sleep or rest;
• driving a vehicle knowing it has a dangerous defect or is poorly maintained or is dangerously loaded;
• using a hand-held mobile phone or other hand-held electronic equipment whether as a phone or to compose or read text messages when the driver was avoidably and dangerously distracted by that use (R v Browning (2001) EWCA Crim 1831, R v Payne [2007] EWCA Crim 157);
• driving whilst avoidably and dangerously distracted, such as whilst reading a newspaper/map, talking to and looking at a passenger, selecting and lighting a cigarette or by adjusting the controls of electronic equipment such as a radio, hands-free mobile phone or satellite navigation equipment;
• a brief but obvious danger arising from a seriously dangerous manoeuvre. This covers situations where a driver has made a mistake or an error of judgement that was so substantial that it caused the driving to be dangerous even for only a short time. Cases that illustrate this principle include:
• Attorney-General’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, failing to see a taxi that was being driven across the junction perfectly properly and colliding with it);
• Attorney-General’s Reference (No. 4 of 2000) [2001] EWCA Crim 780 (offender unintentionally pressed the accelerator instead of the brake);
• Attorney-General’s Reference (No. 76 of 2002) (Hodges) [2003] 1 Cr App R (S) 100 (offender drove across a 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 other car)—‘this was a single misjudgment. It was a bad misjudgment but nevertheless a single one.’

Question 7

Meaning of Dangerous ‘Current State’

Answer 7

The offence may also be committed if the state of a vehicle, including any attachment or load and the way in which it is attached or carried, would make driving it dangerous in the eyes of a ‘competent and careful’ driver. In relation to the dangerous state of a vehicle being ‘obvious’, no special definition is required and such an observation could arise from an inspection which is something between a fleeting glance and a long look (R v Marsh [2002] EWCA Crim 137).

The Court of Appeal has considered the meaning of the term ‘current state’ of the vehicle. In R v Marchant and Muntz [2003] EWCA Crim 2099, the court held that the term implied a state different from the original state of the vehicle. In that particular case, the vehicle involved had been a tractor fitted with a boom and grab for moving bales. The grab comprised a set of forward-pointing spikes on an upper and lower jaw. With the boom and grab set in the position recommended by the manufacturer, the defendant manoeuvred the tractor to make a turn and, while he waited to do so, a motorcyclist rode into the spikes and p. 506↵later died from his injuries. The defendants were charged with causing death by dangerous driving, with the prosecution relying on the s. 2A(2) provision that it would have been obvious to a competent and careful driver that driving the vehicle in its current state would have been dangerous. The defendants argued that the vehicle was an agricultural vehicle specially authorised by the Secretary of State under s. 44 of the Road Traffic Act 1988. The Court of Appeal held that there would be cases where, even though a vehicle was authorised in this way, its condition would allow a prosecution under s. 1 or 2. However, such cases would almost always involve allegations that the driver had created the danger by manoeuvring the vehicle, rather than simply relying on any danger caused by the vehicle’s presence on a road (or other public place). Clearly, if the vehicle had been used in a built-up area or had been altered, allowed to deteriorate or used in a way that contravened the manufacturer’s recommendations, the s. 2A argument would have had more force. In the circumstances of the particular case, however, the defendants’ convictions were quashed.

In a further case involving another tractor, the Court of Appeal clarified the extent to which the practice of piling bales of straw onto a trailer would give rise to liability under s. 2. In that case, the defendant had been towing a semi-trailer with some 22 bales of straw on it, one of which fell off and seriously injured a pedestrian. The defendant maintained that this ‘system of work’ had been employed for 25 years without incident and that he had never been warned that it might be unsafe. On the evidence, the court held that it would be perverse to find that the system of carrying bales in this way was inherently ‘dangerous’ (R v Few [2005] EWCA Crim 728).

Question 8

Offence
Causing Serious Injury by Dangerous Driving—Road Traffic Act 1988, s. 1A

Answer 8

• Triable either way
• Five years’ imprisonment and/or a fine on indictment
• Six months’ imprisonment and/or fine summarily
• Obligatory disqualification—minimum two years
• Compulsory extended re-test

The Road Traffic Act 1988, s. 1A states:

(1)A person who causes serious injury to another person by driving a mechanically propelled vehicle dangerously on a road or other public place is guilty of an offence.

Question 9

Causing Serious Injury by Dangerous Driving

Answer 9

This offence was introduced to the Road Traffic Act 1988 by s. 143 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012. The elements of this offence (‘dangerous’ and ‘dangerous driving’) are the same as those under s. 1.

‘Serious injury’ means physical harm which amounts to grievous bodily harm for the purposes of the Offences Against the Person Act 1861. There may be cases where the injuries falls short of ‘serious’ by this definition. The CPS suggests that in these cases it may be appropriate to consider an additional assault charge of s. 47 of the Offences Against the Person Act 1861.

The Road Traffic Offenders Act 1988, s. 24, provides an alternative verdict to this offence under the Road Traffic Act 1988, s. 2 (dangerous driving) and s. 3 (careless, and inconsiderate, driving). A person convicted of the offence is subject to a minimum disqualification period of two years, unless the court considers that there are special reasons either not to disqualify or to disqualify for a shorter period. A person convicted of this offence will be disqualified until he/she passes an extended driving test (s. 36 of the Road Traffic Offenders Act 1988).

Under the Powers of Criminal Courts (Sentencing) Act 2000, s. 143, forfeiture of the motor vehicle used for the purpose of this offence may be ordered.

Question 10

Offence
Dangerous Driving—Road Traffic Act 1988, s. 2

Answer 10

• Triable either way
• Two years’ imprisonment and/or a fine on indictment
• Six months’ imprisonment and/or statutory maximum summarily
• Obligatory disqualification
• Compulsory re-test

The Road Traffic Act 1988, s. 2 states:

A person who drives a mechanically propelled vehicle dangerously on a road or other public place is guilty of an offence.

Question 11

Dangerous Driving

Answer 11

The elements of this offence are the same as those for s. 1.

Evidence showing how the particular vehicle was being driven before the incident itself may be given in support of the charge of dangerous driving. However, care needs to be taken by the prosecution not to seek to adduce inadmissible evidence about the defendant’s past bad driving (R v McKenzie [2008] EWCA Crim 758). Where the dangerous driving leads to a collision, the court may allow a police officer who is an expert in the investigation of collisions to give evidence of opinion as to the cause of that collision (R v Oakley [1979] RTR 417).

In addition, there is a rarely used offence of causing bodily harm by wanton or furious driving or racing (Offences Against the Person Act 1861, s. 35) which is punishable by two years’ imprisonment.

Section 36 of the Road Traffic Offenders Act 1988 (requiring the court to disqualify a person convicted of certain offences until the relevant test has been passed) applies to this offence. This means that, if convicted of this offence, the defendant will have to take an extended driving test before getting his/her licence back.

Question 12

Offence
Causing Death by Careless Driving when under the Influence of Drink or Drugs—Road Traffic Act 1988, s. 3A

Answer 12

• Triable on indictment
• Life imprisonment
• Obligatory disqualification—minimum three years

The Road Traffic Act 1988, s. 3A states:
(1)
If a person causes the death of another person by driving a mechanically propelled vehicle on a road or other public place without due care and attention, or without reasonable consideration for other persons using the road or place, and—
(a)
he is, at the time when he is driving, unfit to drive through drink or drugs, or
(b)
he has consumed so much alcohol that the proportion of it in his breath, blood or urine at that time exceeds the prescribed limit, or
(ba)
he has in his body a specified controlled drug and the proportion of it in his blood or urine at that time exceeds the specified limit for that drug, or
(c)
he is, within 18 hours after that time, required to provide a specimen in pursuance of section 7 of this Act, but without reasonable excuse fails to provide it, or
(d)
he is required by a constable to give his permission for a laboratory test of a specimen of blood taken from him under section 7A of this Act, but without reasonable excuse fails to do so,
he is guilty of an offence.
(2)
For the purposes of this section a person shall be taken to be unfit to drive at any time when his ability to drive properly is impaired.
(3)
Subsection (1)(b) (ba) (c) and (d) above shall not apply in relation to a person driving a mechanically propelled vehicle other than a motor vehicle.

Question 13

Causing Death by Careless Driving When Under the Influence of Drink or Drugs

There are a number of different ways that this offence can be committed. The prosecution needs to establish that:

Answer 13

• the driving has caused the death of another person;
• the driving was without due care and attention or without reasonable consideration for other road users; and
• the driver is either unfit through drink or drugs, or the alcohol concentration is over the prescribed limit, or there has been a failure to provide a specimen in pursuance of the Road Traffic Act 1988. This would include cases where the accused:
• had consumed so much alcohol that the proportion of it in his/her breath, blood or urine at that time exceeded the prescribed limit; or
• had in his/her body a specified controlled drug and the proportion of it in his/her blood or urine at that time exceeded the specified limit for that drug; or
• within 18 hours after that time, the accused was required to provide a specimen in pursuance of s. 7 of the Road Traffic Act 1988 but without reasonable excuse fails to provide it; or
• he/she is required by a constable to give his/her permission for a laboratory test of a specimen of blood taken from him/her under s. 7A of the 1988 Act, but without reasonable excuse fails to do so.

The elements in relation to ‘causes the death of another person’ are the same as those under s. 1.

The elements relating to ‘due care and attention’ and ‘reasonable consideration’ are discussed at para. 2.14.6.1.

Question 14

Causing Death by Careless Driving When Under the Influence of Drink or Drugs

Answer 14

For this offence, this means that s. 3A(1)(b), (ba), (c) and (d) apply only where the driving is of a ‘motor vehicle’, but the offence under s. 3A(1)(a) may be committed while driving any ‘mechanically propelled vehicle’.

Effectively, the prosecution would therefore have to prove careless driving and the related ‘drink/drug driving’ offence in exactly the same way as if both offences had been charged, together with the requisite causal link to the death. The offence, however, does not require any causal connection between the alcohol or drugs and the death (R v Shepherd [1994] 1 WLR 530).

In applying the appropriate test to determine whether the defendant has driven without due care and attention, the jury are entitled to look at all the circumstances of the case, including evidence that the defendant had been affected by alcohol or had taken such an amount of alcohol as would be likely to affect a driver (R v Millington [1996] RTR 80).
The requirement under s. 3A(1)(c) is for the provision of a specimen for analysis under s. 7 of the Road Traffic Act 1988 and not a screening test under s. 6.

The wording in s. 3A(1)(c) seems to indicate that the request to provide a specimen must be made within 18 hours after the driving which caused the death and not after the death itself.

Section 36 of the Road Traffic Offenders Act 1988 (requiring the court to disqualify a person convicted of certain offences until the relevant test has been passed) applies to this offence. This means that, if convicted of this offence, the defendant will have to take an extended driving test before getting his/her licence back.

Question 15

Offence
Causing Death by Careless or Inconsiderate Driving—Road Traffic Act 1988, s. 2B

Answer 15

• Triable either way
• Five years’ imprisonment and/or a fine on indictment
• 12 months’ imprisonment (six months in Scotland) and/or statutory maximum summarily
• Obligatory disqualification

The Road Traffic Act 1988, s. 2B states:

A person who causes the death of another person by driving a mechanically propelled vehicle on a road or other public place without due care and attention, or without reasonable consideration for other persons using the road or place, is guilty of an offence.

Question 16

Causing Death by Careless, or Inconsiderate, Driving

Answer 16

The elements in relation to ‘causes the death of another person’ are the same as those under s. 1.

This section was added to bridge the large gap between causing death by dangerous driving and careless driving that resulted in a death. There will clearly be an overlap between the driving standards of this offence and those of causing death by dangerous driving, a fact the courts have recognised (see Shearing at para. 2.14.2.2, Keynote).

Question 17

What is ‘Careless and Inconsiderate’ Driving?

Answer 17

A person is to be regarded as driving without due care and attention if (and only if) the way he/she drives falls below what would be expected of a competent and careful driver (s. 3ZA(2)).

In determining what is to be expected of a competent and careful driver, the following factors need to be considered:
* the circumstances of which the driver could be expected to be aware;
* any circumstances shown to have been within the driver’s knowledge.

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 because of incompetence, inadvertence or inexperience.
In the absence of any explanation by the defendant as to the cause of the collision, a court may infer that the offence was committed. In R v Warwickshire Police, ex parte Manjit Singh Mundi [2001] EWHC Admin 448, the court held that crossing a central white line without explanation was, in itself, evidence of careless driving.

As with dangerous driving, the test is entirely objective in nature and focuses on the manner of driving rather than the defendant’s state of mind. The element that distinguishes dangerous driving from careless driving is that the dangerous driver falls far below the required standard, while the careless driver merely falls below the required standard (see para. 2.14.2.2, Keynote).

Note also that if the defendant is alleged to have driven without reasonable consideration for another road user, that other road user must actually be inconvenienced by the defendant’s driving; it is not enough that there was potential for inconvenience (s. 3ZA(4)).

There is one objective standard of driving which is expected of all drivers, including learner drivers (McCrone v Riding [1938] 1 All ER 157). Once you have proved that a defendant departed from that standard of driving, and that the defendant’s actions were ‘voluntary’, the offence is complete. There is no need to prove any knowledge or awareness by the defendant that his/her driving fell below that standard (R v Lawrence [1982] AC 510).

The standard of driving that would be expected of a competent and careful driver will be a question of fact for the court to decide and, in so deciding, the magistrate(s) may take into account local factors such as the expected level of traffic, the time of day, peculiar hazards etc. (Walker v Tolhurst [1976] RTR 513).

Question 18

CPS guidance as to the driving that courts will regard as careless or inconsiderate outlines examples that are typical of what are likely to be regarded as careless driving:

Answer 18

• overtaking on the inside;
• driving inappropriately close to another vehicle;
• inadvertently driving through a red light;
• emerging from a side road into the path of another vehicle;
• tuning a car radio (when the driver was avoidably distracted by this action);
• using a hand-held mobile phone or other hand-held electronic equipment when the driver was avoidably distracted by that use;
• selecting and lighting a cigarette or similar when the driver was avoidably distracted by that action.

Question 19

Offence
Causing Serious Injury by Careless, or Inconsiderate, Driving—Road Traffic Act 1988, after section 2C

Answer 19

• Triable summarily
• 12 months’ imprisonment and/or a fine on indictment
• Obligatory disqualification

The Road Traffic Act 1988, s. 2C states:
(1)
A person who causes serious injury to another person by driving a mechanically propelled vehicle on a road or other public place without due care and attention, or without reasonable consideration for other persons using the road or place, is guilty of an offence.
(2)
In this section ‘serious injury’ means—
(a)
in England and Wales, physical harm which amounts to grievous bodily harm for the purposes of the Offences against the Person Act 1861.

In s. 3ZA of that Act themeaning of careless, or inconsiderate, driving is given in subs. (1).

Question 20

Offence
Causing Death by Driving: Unlicensed or Uninsured Drivers—Road Traffic Act 1988, s. 3ZB

Answer 20

• Triable either way
• Two years’ imprisonment and/or a fine on indictment
• 12 months’ imprisonment and/or statutory maximum summarily
• Obligatory disqualification

The Road Traffic Act 1988, s. 3ZB states:

A person is guilty of an offence under this section if he causes the death of another person by driving a motor vehicle on a road and, at the time when he is driving, the circumstances are such that he is committing an offence under—
(a)
	section 87(1) of this Act (driving otherwise than in accordance with a licence), or
(b)
	…
(c)
	section 143 of this Act (using motor vehicle while uninsured).

Question 21

Causing Death by Driving: Unlicensed, Disqualified or Uninsured Drivers

Answer 21

The elements in relation to ‘causing the death of’ and ‘another person’ are, generally, the same as those under s. 1.

This offence was initially construed as a ‘but for’ offence. It was considered that a person who should not have been on the road as they were disqualified, had no insurance or no driving licence ought to have their presence ‘punished’ where a fatality occurred. It was considered that ‘but for’ the presence of this person on that road, who indeed should not have been there, at that time a fatality may not have occurred and converted the basic offence to a far more serious one. This was confirmed by the Court of Appeal in R v Williams [2010] EWCA Crim 2552, where the deceased walked directly into the path of the uninsured defendant’s car. The conviction was upheld despite the lack of any fault in the quality of the defendant’s driving.

However, the Supreme Court has now ruled that there must be something more than ‘but for’ causation.

In R v Hughes [2013] UKSC 56, their lordships made clear that the ‘but for’ interpretation ‘confuses criminal responsibility for the serious offence of being uninsured with criminal responsibility for the infinitely more serious offence of killing another person’.

In terms of directions to the jury where such an offence is charged:

… it is not necessary for the Crown to prove careless or inconsiderate driving, but … there must be something open to proper criticism in the driving of the defendant, beyond the mere presence of the vehicle on the road, and which contributes in some more than minimal way to the death.

An example of the ‘but for’ test is seen in R v Wilson [2019] RTR 24. The Court of Appeal said ‘s.3ZB is satisfied and the second limb of the test in Hughes is made out—“contributes in some more than minimal way to the death”—if the driving at the critical time was such as significantly or materially to increase the risk of death resulting from the appellant’s culpable acts or omissions.’

The judgment emphasised that the causal link was between the driving and the death rather than the driving and the collision. The defendant in that case had been travelling at 40 mph in a 30 mph zone and there was expert evidence to the effect that at this speed death was at least four times more likely than a collision at 30 mph.

This offence may only be committed by the driver of a motor vehicle (not a mechanically propelled vehicle unlike ss. 2, 2B and 3).

The introduction of s. 3ZC is to increase the sentence for causing death driving a vehicle whilst disqualified from two years to 10 years. The intention is to treat disqualified drivers differently from other illegal drivers.

This section, in relation to disqualified drivers who ‘cause’ death or serious injury, must be read in the light of the Supreme Court judgment in Hughes above.

Section 3ZD extends the offence under s. 1A of causing serious injury by dangerous driving specifically to disqualified drivers, increasing the sentence to four years’ imprisonment from the six months’ imprisonment under s. 1A and removing the need to show ‘dangerous’ driving. In this section, ‘serious injury’ means physical harm which amounts to grievous bodily harm for the purposes of the Offences Against the Person Act 1861.

Question 22

Offence
Causing Death by Driving: Disqualified Drivers—Road Traffic Act 1988, s. 3ZC

Answer 22

• Triable on indictment
• 10 years’ imprisonment and/or a fine
• Obligatory disqualification

The Road Traffic Act 1988, s. 3ZC states:
A person is guilty of an offence under this section if he or she—
(a)
causes the death of another person by driving a motor vehicle on a road, and
(b)
at that time, is committing an offence under section 103(1)(b) of this Act (driving while disqualified).

Question 23

Offence
Causing Serious Injury by Driving: Disqualified Drivers—Road Traffic Act 1988, s. 3ZD

Answer 23

• Triable either way
• Four years’ imprisonment and/or a fine on indictment
• 12 months’ imprisonment and/or fine summarily
• Obligatory disqualification

The Road Traffic Act 1988, s. 3ZD states:
A person is guilty of an offence under this section if he or she—
(a)
causes serious injury to another person by driving a motor vehicle on a road, and
(b)
at that time, is committing an offence under section 103(1)(b) of this Act (driving while disqualified) …

Question 24

Offence
Careless and Inconsiderate Driving—Road Traffic Act 1988, s. 3

Answer 24

• Triable summarily
• Fine
• Discretionary disqualification

The Road Traffic Act 1988, s. 3 states:

If a person drives a mechanically propelled vehicle on a road or other public place without due care and attention, or without reasonable consideration for other persons using the road or place, he is guilty of an offence.

Question 25

Careless and Inconsiderate Driving

Answer 25

The elements in relation to ‘due care and attention’ are discussed at para. 2.14.6.1.

Where a constable in uniform has reasonable grounds for believing that a mechanically propelled vehicle is being used or has been used on any occasion in a manner which contravenes s. 3 or 34 (off-road driving) and is causing (or is likely to cause) alarm, distress or annoyance to members of the public, the constable has the powers set out in the Police Reform Act 2002, s. 59.

Question 26

Factors Affecting Offence of Careless Driving

Answer 26

Evidence of earlier incidents involving careless or inconsiderate driving around the same time as the offence charged may be admissible to support that charge under some circumstances (Hallett v Warren (1926) 93 JP 225) as it may if the offence is charged as one continuing offence (Horrix v Malam [1984] RTR 112).

If a witness reports the driver of an unidentified vehicle as having committed a driving offence, it is critical that the witness provides direct evidence of what he/she actually saw. It would not be enough to produce evidence from the police to show that they had received details of the vehicle which they subsequently traced back to the driver. Both vehicle and driver must be linked by admissible and relevant evidence (Ahmed v DPP [1998] RTR 90).

If a driver falls asleep at the wheel, he/she will be guilty of careless driving (Henderson v Jones (1955) 119 JP 304) but evidence of this fact from the driver alone will not be enough to support a charge under s. 3 (Edwards v Clarke (1951) 115 JPN 426).

Question 27

Responding to an Emergency Situation

Answer 27

If a motorist takes action in response to an emergency situation, his/her actions are to be judged against what was a ‘reasonable’ course of action in those circumstances in assessing whether or not the driving amounted to an offence (R v Bristol Crown Court, ex parte Jones [1986] RTR 259).

Question 28

Relevance of Breaching Road Traffic Regulations

Answer 28

Breaching certain road traffic regulations will always be potentially relevant evidence of poor driving but will not always be conclusive of the issue. For instance, although colliding with another vehicle has been held not to amount to sufficient evidence in itself of careless driving, crossing a central white line without explanation has (Mundi v Warwickshire Police [2001] EWHC 448 (Admin)). (See also Bensley v Smith [1972] Crim LR 239.) However, simply breaching the regulations at a pedestrian crossing is not of itself proof that the person’s driving fell below the required standard (Gibbons v Kahl [1956] 1 QB 59). On the other hand, just because a traffic signal is showing a green light does not mean that a driver is entitled to assume that no other person or vehicle might be proceeding from another direction and it may be that, in the circumstances, a reasonably careful driver would have anticipated that a pedestrian or other road user might still move into his/her path (Goddard and Walker v Greenwood [2002] EWCA Civ 1590).