Chesterfield crime and motoring law solicitor Denney Lau
As poor weather promises to cause chaos on our roads, more care is needed by those driving in the snow to carry out essential journeys that were routine only the previous week. If your journey remains necessary, and you choose to drive, then there are some things to bear in mind.
Your duty actually starts before you start driving.
The Highway code stipulates that if driving in adverse weather conditions, you must be able to see out of every glass panel in your vehicle. This common sense approach is supported by by section 41D of the Road Traffic Act 1988. It states that you must have a full view of the road ahead. This clearly precludes driving through a small hole you have scraped in the snow on your windscreen.
Failure to comply with this could result in a fine but perhaps more importantly penalty points.
However, leaving your vehicle unattended with the engine running and the heaters on to clear your windscreen may not only see you having your car stolen and left with no claim under your insurance. This will amount to the offence of ‘quitting’ your vehicle, whether or not the doors are locked, and could lead to a fine.
Finally, make sure your lights and number plates are also clear, or risk another fine.
Inconsiderate driving?
There is not a law stating it is illegal to drive with snow on the roof. If, however, you choose to do so and snow falls off into the path of another car then you could be penalised. For example, it may amount to inconsiderate driving – Section 3 of the Road Traffic Act 1988.
This can result in a fine with the court endorsing between 3 and 9 penalty points.maximum penalty being level 5 fine and the Court must endorse between 3 and 9 penalty points or consider disqualification. Alternatively, you could be charged for using a motor vehicle in a dangerous condition – 40A of the Road Traffic Act 1988.
Where weather conditions make it more difficult to drive safely
There are two catch all offences that will be more easily committed in conditions where driving is difficult. It is easy to imagine losing control of a vehicle, or failing to notice another motorist, while driving in the snow.
If there is an accident, or poor driving is witnessed, then consideration will be given to whether one of the following offences has been committed.
The first is the offence of driving without due care and attention, or careless driving. This is Section 3 of the Road Traffic Act 1988. To convict a motorist a court must be sure that the manner of driving falls below the standard expected of a competent driver. Again, a fine will be expected, but between 3 and 9 points can be placed on the driving licence. A discretionary disqualification could be imposed, or the points could count towards a totting ban.
Dangerous driving in the snow
Section 2 of the Road Traffic Act 1988 sets out the offence of dangerous driving. This offence is committed when a person’s standard of driving falls far below what would be expected of a competent and careful driver. This will be in circumstances where it would be obvious to a competent and careful driver that driving in that way would be dangerous.
This offence can be dealt with at the Crown Court as well as the Magistrates’ Court, and can lead to imprisonment and a compulsory driving disqualification and extended re-test.
Instruct an expert in road traffic law
We would ask that, when considering driving in the snow, you think about whether your journey is really necessary. If so, you take all of the precautions explained above.
There is a specific offence of dangerous driving, which carries a maximum prison sentence of 2 years. If that driving is a cause of someone’s death, that maximum sentence unsurprisingly increases to one of 14 years. A more recent offence of causing serious injury by dangerous driving was created in 2012 and carries a maximum sentence of 5 years in prison.
In each case there are minimum disqualification periods and very lengthy actual disqualifications which involve the passing of a mandatory re-test before a driver can return to the road. Insurance premiums which will remain significant for many years to come, with some drivers unable to secure insurance at all, at any price.
What is dangerous driving?
Dangerous driving is defined by section 2A Road Traffic Act 1988:
“…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.”
There is also a further element of dangerous driving related to unsafe vehicles, although this is not within the scope of this article.
The test is an ‘objective one’ which means that it is not to be judged through the eyes of the actual driver but the eyes of a ‘competent and careful driver’. As a result it, in any trial, it will be for a magistrate, District Judge or jury to decide on guilt.
The crucial part of the test is that the driving falls ‘far below’ the standard expected. It is this aspect of the offence that, on occasion, makes advising in these cases such a highly skilled task.
In some cases it will be immediately obvious that the driving falls ‘far below’ the standard of a competent and careful driver. For example, if a person is driving at 100 mph on the wrong carriageway of the motorway at night without lights, then there is no room for debate.
But some case are more difficult. What if, believing that you have sufficient sight of the road ahead, you overtake only to hit an oncoming vehicle in the opposite lane. Would that fall into the category of driving ‘far below’ the standard, or it is simply an unfortunate error of judgement, and one that could perhaps be properly categorised as careless rather than dangerous driving?
No statutory definition exists of driving falling ‘far below’
There is no statutory definition of what is meant by ‘far below.’ Section 2A(3) of the 1988 Act states that “dangerous” must refer to the danger of personal injury or serious damage to property.
Case law also makes it clear that the driver’s particular skill or lack of is not relevant as set out in Bannister [2009] EWCA Crim 1571.
A full exploration of the circumstances of the alleged offence will be required in borderline cases. The Crown Prosecution Service regards the following as being examples of dangerous driving:
racing or competitive driving;
failing to have 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 the 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 where an 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; offender unintentionally pressed the accelerator instead of the brake; 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.
It should be stressed, however, that ultimately it will be a matter for the court to decide.
Cases of dangerous driving less than clear cut
Some of the examples in the above list may seem surprising, for example where a person unintentionally pressed the accelerator instead of the brake. It is worth repeating that much will depend on what actually happened. Argument may well be possible around concepts such as ‘…even for only a short time…’
Similarly, argument can be raised about when a breach of a legal duty in ‘…failing to have proper and safe regard…’ strays over the line from being careless driving to an incident of dangerous driving?
A lawyer will need to try and dilute the very real risk of judging everything from the perspective of hindsight and the outcome of the driving.
Legal strategies to defend dangerous driving cases
In stressful situations, particularly where serious harm has been caused, there is an instinctive reaction to think that the driving error must also have been very serious.
Standing back, as lawyers, we know that the truth is that on occasion even the slightest error can result in very serious consequences. It is therefore vital that if you are to be interviewed by the police following an accident that you secure legal representation at the outset.
All of our legal advice and assistance at a police station or any other place will be free of charge to you as a suspect regardless of your financial means. You can read more about the help we can give here. The scheme also operates if you are not under arrest but being spoken to on a voluntary basis. This does not mean that the police are treating the allegation any less seriously and more information can be found here.
Accident investigation and reconstruction is now an important consideration in many cases. This allows scientists and engineers to see exactly the cause(s) of an accident and the magnitude of error, often exposing the culpability of others. Such reports can be expensive, but help will be available if you are eligible for either Magistrates or Crown Court legal aid.
Eye-witness testimony is not always reliable and is also often tainted by the result of the driving as opposed to the driving itself. This will need to be exposed through expert cross examination of the witnesses in court.
In some cases there may still be some room for manoeuvre and a plea to the lesser offence of careless driving may be appropriate.
How we can assist you if you face dangerous driving allegations
Whether an act of driving amounts to dangerous driving is often not easy to ascertain. Our experienced lawyers routinely deal with all manner of driving cases, from the minor to the most serious.
Whether facing imprisonment or not, the loss of a driving licence is for many people an incredibly serious penalty in itself. We will take all steps possible on your behalf to avoid that happening.
VHS Fletchers East Midlands offices
We have six offices across the East Midlands and provide advice and provide nationwide advice and representation. Find your nearest office here. Alternatively use the contact form below.
Over the last few days, the government has announced proposals to introduce new offences and increase sentencing for a range of other offences.
One of our criminal law solicitors, Graham Heathcote, explained the proposals on Radio Nottingham on October 16. You can listen to his interview hear about the proposed changes to the road traffic offences and sentences.
Here is his written summary of the proposals.
Knife crime
Knife crime increased by 20% in the last year. Possession of a knife during the same period has increased by 23%. This has prompted the government to look again at this legislation.
New laws will make it an offence to deliver a knife sold online to a private residential address. In the future it is proposed that all online purchases will have to be delivered to a collection address. This will allow verification of the age of the purchaser when they collect the item.
Offensive Weapons
The possession of an offensive weapon in a public place is already a criminal offence. Changes in the law will see an additional 19 items, including flick knives and push daggers, banned in private places such as residences as well.
Some limited defences will be allowed by the Government. These will rely on cultural, artistic or religious use of the items. There will also be common sense exemptions such as museum displays.
A new definition of ‘flick knife’ is also proposed. This is intended to broaden the number of weapons that fall into this classification category.
School Premises
It is already an aggravated offence to possess knives and offensive weapons on school premises.
The definition of ‘school premises’ does not currently cover higher and further education establishments. These might be sixth form colleges or universities. The intention is to change the definition to ensure that such institutions also fall within the legislation.
Threats with blades
The government intends to amend the existing offence of threatening with an article with blade or point or an offensive weapon. This is currently set out in section 139AA of the Criminal Justice Act 1988.
The law as it stands requires the prosecution to prove that a defendant was threatening another with the weapon “in such a way that there is an immediate risk of serious physical harm to that other person”.
The plans will strengthen this offence. An attempt will be made to ensure that if anyone threatens another person with a knife the offence is committed when the victim reasonably fears they would be likely to suffer serious physical harm. This test will be based on how a reasonable person would respond to such a threat. It will not depend on whether the victim was objectively at risk of immediate serious physical harm.
Acid and Corrosive Substances
The perception is that violent attacks using acid and other substances is on the rise. As a result the government argues that a new offence is justified.
The Government proposes to create a new offence of possessing a corrosive substance in a public place. This offence will be modelled on the current offence that can be found in section 139 of the Criminal Justice Act 1988. This offence is possessing a bladed article in a public place.
It is envisaged that similar defences to the knife possession offence would also apply to the proposed corrosive substance possession offence. These would include where a person could prove they had a good reason or lawful authority for having the item in a public place.
Additionally, the government proposes to introduce a new offence preventing the sale of the most harmful corrosive substances to those under 18. The intention is to mirror the existing knife legislation. It is in response to the significant proportion of known offenders who are under 18. The introduction of this offence would make it harder for those under 18 to obtain products containing the most harmful corrosive substances. These liquids are of particular concern and are being used as weapons to inflict life-changing injuries.
Firearms
The government has identified two particular types of firearms that of concern
large calibre (0.50) rifles; and
rapid firing rifles
Both types of firearms are currently available for civilian use under general licensing arrangements. There are concerns, however, about their potential for serious misuse and loss of life were they to fall into the wrong hands. The proposal is that these two types of firearms should be subject to the stricter controls under the existing provisions of section 5 of the Firearms Act 1968. These prohibit a number of types of firearms from civilian use.
Driving Offences
It is proposed that the maximum penalty for causing death by dangerous driving, or causing death by careless driving while under the influence of drink or drugs, be increased to a maximum of life imprisonment.
Should this change is implemented it will lead to new sentencing guidelines being issued which will likely increase the typical sentence in all such cases.
Very few cases, however, would ever merit a sentence of life imprisonment.
There is also a proposal to create a new offence of causing serious injury by careless driving.
This is likely to be one of the most controversial proposals as there is a stark contrast between the lower level of culpability involved in such offending and the unintended harm that can arise.
Conclusion
The government appears to want to send out a tough message about certain types of criminal behaviour. It must be remembered however that sentencing is a fact-specific exercise where the personal mitigation of the defendant must also be considered.
In cases where a guilty plea is inevitable, or a finding of guilt has been made, it is our job to present to a court the best possible mitigation to ensure the lowest sentence possible.
Nottingham crime solicitor Graham Heathcote recently had the pleasure of travelling to Northallerton Magistrates’ Court to represent a client for dangerous driving who he has represented at his two previous firms of solicitors. The client chooses to have Graham represent him, presumably on the basis that he may well be able to work wonders with any case. More of this below…
Dangerous Driving ended in flames?
Graham’s client faced an allegation of dangerous driving. The allegation involved witnesses stating that he was undertaking, tailgating and attempting to manoeuvre between two moving vehicles in adjacent lanes. The incident ended with his client’s vehicle off the road and in a field. The vehicle had rolled onto him all but severing his arm. The car then burst into flames.
Late Instructions
Graham’s client had such confidence in his abilities that he failed to keep four office appointments, finally attending the office 48 hours before the trial. Graham only received the MG5, which is a summary of the allegation and the evidence, from the Crown Prosecution Service the day before the trial. The actual witness statements were only served at 9.45a.m. on the morning of the trial. These included the accident investigation report.
All witnesses were in attendance and prepared to give evidence. The court was in a position to hear the trial. An offer of a plea to careless driving fell on deaf ears.
I Can’t Remember
Cross-examination of witnesses was limited as the client could not recall anything of the incident. Although he gave evidence on his own behalf, that largely consisted of an admission of previous driving offences while asserting that the driving on this occasion didn’t sound like the way he would drive.
After being addressed on the burden and standard of proof, the law relating to dangerous driving and our client’s account the Magistrates found him not guilty of dangerous driving. He was, however, found guilty of careless driving but kept his driving licence.
Contact Graham Heathcote
If you are denying a case and the evidence is somewhat stacked against you, you ought to telephone Graham on 0115 9599550 or email him here.
We would ask that, when considering driving in the snow, you think about whether your journey is really necessary. If so, you take all of the precautions explained above.
