Tag Archives: careless driving

Driver faces prosecution for driving through a puddle

puddle

It is the sort of headline you would expect from the Daily Mail, sensationalist, inaccurate and purely designed to add fuel to their ‘this country has gone to the dogs’ fire.

Well half of that is correct. It was in the Mail but it seems as though the headline is right on the money. (See also the article in the Metro).

So, what happened?

The Metro reported that a driver –a 22 year old man thus far unnamed – was driving passed a group of school pupils. He allegedly drove through a puddle ‘soaking’ the group. The incident was seen by PC Mark Hercules who reportedly said:

‘The vehicle was driven through the puddle at a relatively fast speed making no attempt to slow down or avoid it.

‘We could hear the screams from the children as they got drenched in the cold dirty rain water. The motorist drove off. Fortunately, I was able to witness the whole incident.’

The Mail reported that The police officer stopped the motorist and told him he was reporting him for careless driving.

Debbie Pugh was walking with her 8-year-old son and 11-year-old daughter said:

‘My son was crying his eyes out. I was yelling obscenities. I calmed myself down and the next car we saw was a copper’s car.’

What offences might he have committed?

The Metro stated that the Essex police suggested that careless driving was the most obvious choice, and they were right.

 Careless and inconsiderate driving is an offence under Road Traffic Act 1988 s 3:

 ‘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.’

The section actually creates two offences and the CPS would need to decide which they are charging (See R v Surrey Justices, ex parte Witherick [1932] 1 K.B. 340)

Where inconsiderate driving is charged, it is necessary to demonstrate that the driving caused a road user or other person in a public place was inconvenienced. For careless driving, there is no such requirement. (See Road Safety Act 2006 s 3ZA(4)).

The CPS legal guidance states that driving through a puddle causing pedestrians to be splashed is likely to be considered to be inconsiderate driving.

The penalty is usually a fine and 3-9 penalty points. The court also has the power to disqualify the driver.

Another option would be for an offence against the person, such as a battery, to be charged.

It is a summary only offence which means there is a maximum penalty of 6 months imprisonment. This is not to be confused with common assault, which has the same maximum penalty but different requirements. The difference between the two is often misunderstood or not appreciated:

An assault is committed when a person intentionally or recklessly causes another to apprehend the immediate infliction of unlawful force.

A battery is committed when a person intentionally and recklessly applies unlawful force to another.

The offence can be committed intentionally or recklessly – that is to say, a person does an act causing unlawful force to be applied to another without the specific intent of doing so, but appreciating that his or her actions are likely to so cause unlawful force to be applied.

So, where a driver has seen the puddle and has continued to drive through it, he or she may be guilty of a battery on the basis that they were reckless as to the unlawful force that would be applied to the pedestrians on the footpath.

Is it ‘unlawful force’?

Simply, yes. Just as throwing an egg at someone would be, causing a wave of water to hit them would also be unlawful force.

What will happen?

We’ll keep an eye on it but expect it to be dealt with by a fine. Is there really a need to bring this to court, and waste everyone’s time and money?

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 careless driving: 19 year old kills friend and receives 6 months custody

Naomi Jones, aged 19, pleaded guilty to causing death by careless driving. In July 2011, she was driving with her friend Elysia Ashworth, aged 17, near Blackpool airport. Ms Jones was driving “unacceptably fast” and failed to negotiate a blind bend.  She lost control of the car on the narrow, uneven road collided with a tree.

The accident investigator estimated the speed of impact with the tree as being between 30 and 35 mph. The speed at which the car was travelling as it approached the tree could not be estimated, but it was said to have been faster than 35mph. Ms Jones had only passed her test 4 months prior to the accident.

It appears that Ms Jones was charged with the more serious offence of causing death by dangerous driving but was acquitted by the jury.

Sentencing remarks

As usual, the sentencing remarks are not available, and so we only have what the press reported that the Judge said when sentencing.

Judge Christopher Cornwall said that verdict should not be called into question but in his judgment it was not far short of dangerous driving.

He said, ”There seems to have been every conceivable reason that you should have reduced your speed on that road.

”There is no doubt in my mind that the considerable jolt you experienced ought to have acted as a warning that your speed was unacceptably fast.

”There was no evidence of braking only a desperate attempt to steer around the corner which failed.”

He accepted she was not racing but pointed out ”there may however have been an element of showing off to your friends in the car and those following”.

The sentence

She was sentenced to 6 months’ custody (to be spent in a Young Offender Institution as a result of her age). Given that Ms Jones offered to plead to the lesser offence prior to the trial, it is likely that she would have been given a third discount, as is usual. This means the sentence after a trial was in the order of 9 months.

She was also disqualified for 12 months (a mandatory disqualification in absence of special reasons) and ordered to take an extended re-test.

Presumably the Judge would have been referred to the guidelines (Causing Death by Driving Guideline 2008) which suggest for a case of driving falling ‘not short of dangerous driving’, the starting point is 15 months’ custody, with a range of 36 weeks to 3 years.

It can be assumed that the following were put forth in mitigation: Ms Jones’ age, the fact that the person who died was her very close friend and her relative inexperience as a driver. Conversely, the fact that she was speeding and showing off, she was unfamiliar with the road and so more caution was required, and that she had endangered Ms Ashworth’s life and the life of another passenger (who suffered injuries), were aggravating factors.

It appears that the Judge took the view that the mitigation outweighed the aggravation, and reduced the sentence, with the plea, to 6 months.

Sentences for this offence range from non-custodial sentences to 5 years. With the aggravating and mitigating factors, is 6 months commensurate with the seriousness of the offence? Some would say that 6 months doesn’t properly reflect the loss of a life.