There are currently various Speed Limits in Scotland. They range from 20mph “zones” (including much of Edinburgh) up to 70mph on most motorways and certain dual carriageways.
A bill seeking to make 20mph the new “default” speed limit has been rejected by Holyrood’s rural economy committee reports the BBC.
So what is the current “default” limit? Well the national speed limit is 60mph on single carriageway roads and 70mph on dual carriageways. The most common of Speed Limits in Scotland, however, is 30mph. This is the speed limit which applies to “restricted roads“. These are your typical roads found in built-up areas, including town centres and areas with substantial amounts of housing. It is likely that the closest main road to your house is a restricted road. These roads do not have speed limit signs. Instead the speed limit is designated by a system of street lighting. What is that? Its basically a set of lamposts with no more than 185 metres between each one.
It is primarily these roads which were targeted by Green MSP Mark Ruskell in his bill. He states that reducing the limit is :
“the simplest, quickest and cheapest way to save lives, make our streets safer, and encourage more people to walk and cycle more”
BBC NEws, 31 may 2019
With respect to Mr Ruskell, if he thinks reducing the speed limit by 10mph is likely to get more people walking or cycling then he is living in cloud-cuckoo-land. I’m from Edinburgh and I don’t know a single person who has suddenly thought “hmmmm, 20mph? I know, I’ll walk those 5 miles to work instead. Chucking it down? No problem. Files to carry? It’ll build my muscles!”
As for increasing safety, given that we are repeatedly told how vulnerable cyclists are, I can’t comprehend how flooding the roads with more of them is going to “save lives”. I’m pretty sure I’m not the only one, moreover, who has nearly been flattened by a cyclist pretending that red lights at pedestrian crossings don’t apply to them and their helmet-cams.
And, regretable though it is, the simple fact is that research from 2017 indicates most drivers simply ignore 20mph limits. Whether this is deliberate or not is questionable. Ask any driver how difficult it is to maintain a steady speed of under 20mph. It is harder than you may think.
Are these signs going to become the norm?
Areas currently subject to 20mph limits are flooded with very “un-Green” road signs. If we are simply going to circumvent this environmental issue by making “restricted roads” subject to 20mph rather than 30mph then that is going to require a massive and expensive campaign to educate the public. Enforcement is another issue. The only practical solution to that is a massive, extensive and expensive system of average speed cameras and we all know how popular those are.
In rejecting MSP Ruskell’s bill, the committee stated:
“After considering the evidence presented, the majority view of the committee is that the default, ‘one-size-fits all’ approach proposed in the Bill is not appropriate, as it does not give local authorities the flexibility to devise 20mph limits that they consider appropriate for their areas.”
BBC news, 31 may 2019
In response Mr Ruskell states that the Committee “puts the motoring lobby ahead of child safety”. What an ignorant thing to say. Lets have 20mph zones outside every school in the country by all means. But even then there will be accidents. The only way to stop them is to ban cars altogether. Given the contempt with which he speaks of the (undefined) “motoring lobby”, perhaps that is what MSP Ruskell really wants.
Dangerous Driving in Scotland if prosecuted on summary complaint currently carries a potential jail sentence of up to 6 months in prison. Current proposals by the Scottish government are intended to provide against such “ineffective” short term sentences.
So does this mean the end of jail sentences for Dangerous Driving in Scotland? Probably not but it is worth taking a closer look at.
The current penalties for Dangerous Driving in Scotland are set by the UK Parliament They include mandatory disqualification from driving for at least 12 months, a fine of up to £10,000 and a mandatory resit of an extended driving test before regaining the right to drive. Serious or repeat offences can be punishable by up to six months in prison. Prison sentences are, in practice, rare. The separate offence of causing serious injury by dangerous driving carries up to 12 months in prison if prosecuted on summary complaint. Such sentences are more common but still relatively rare (more serious instances are prosecuted at jury level and carry up to 5 years imprionment).
Prison sentences for dangerous driving are competent but rare
The current proposals by the Scottish Government are aimed at creating a presumption against prison sentences of less than a year. This would encompass all convictions of Dangerous Driving in Scotland and the vast majority convictions involving serious injury by dangerous driving prosecuted at summary level. Currently such a presumption exists only for sentences of 3 months or less.
Community Safety Minister Ash Denholm is quoted a saying:
Clearly, prison remains the right option for those who pose a serious risk to public safety and sentencing decisions will remain a matter for the independent judiciary. However, we want to ensure courts consider the most appropriate sentence in all cases and imprison people only where there is no suitable alternative.
The Times scotland, May 18, 2019
Overall the change is subtle. By virtue of the Criminal Procedure (Scotland) Act 1995, section 204(2) sentencers already have to be satisfied that there is no suitable alternative to imprisonment, at least in respect of people who have not been to prison before. Moreover the final decision remains, as now, with the judiciary.
It is clear that prison remains an option for Dangerous Driving in Scotland. But the view of the legislature will weigh on the minds of sentencing sheriffs. Prison sentences are rare at present. No doubt part of the reason for that is the offence, although serious, is often committed by otherwise law-abiding citizens. The judiciary – correctly- may also feel that the public can be adequately protected by the imposition of lengthy driving bans – in effect taking the offender “off the road” without the more radical step of taking him “off the street”. Going forward, given the view of the legislature, there is likely to be some kind of shift. Already rare sentences will not disappear entirely.
It has been widely reported recently that David Beckham has been disqualified for 6 months for driving while using a mobile phone. The Sun newspaper, with its usual flair for a good headline proclaimed:
BANNED IT LIKE BECKHAM: David Beckham banned from driving for 6 months for using mobile phone at wheel of £100k Bentley
the sun, 9 May 2019
I’m not entirely sure what the value of Mr Beckham’s car has to do with the price of bread but it is true that he was disqualified from driving at Bromley Magistrates Court for a period of 6 months. What is not accurate is to say that it was for driving while using a mobile phone. Mr Beckham received six points for the offence. He was thereafter disqualifed for 6 months because those points meant he had accumulated 12 points within a 3-year period. Had Mr Beckham had less than 6 points, therefore, he would not have been disqualified.
Bromley Magistrates Court where David Beckham was disqualified
So is the answer to the question in our headline “no”? Well not quite. It is possible. The Road Traffic (Offenders) Act 1988 makes clear that the court can impose a period of discretionary disqualification. That, however, is unusual and it is not what happened in this case. In all the time that I have been defending drivers accused of driving while using a mobile phone, the driver has never been disqualified unless either (a) I have requested it or (b) the driver has been on 6 or more points and therefore disqualified for the accumulation of points.
The Sun’s report also stated that Mr Beckham “tried to save his licence by arguing that he only had three points”. I am not entirely clear what has been argued here. However there is a common misconception that, if points have been removed from your licence since the offence but before you are sentenced, that you can avoid disqualification. That is incorrect. It may be that Mr Beckham’s lawyer was arguing a technical point. However the general rule is that the points which count are the points you had at the time of the offence, not at the time of sentencing. So if you had six points at the time of the offence but they have been removed by the time of sentencing, you are treated as having 6 points.
There are only two ways to avoid a 6-month disqualification if that is the case. The first is to argue that such a disqualification would cause exceptional hardship. If successful this can mean that disqualification is avoided entirely. The second is to try to persuade the court not to impose points at all but to impose a short period of discretionary disqualification instead, hence there are times when I have requested such an outcome. Neither argument is easy.
The silver lining for David Beckham is that his 12 points will be wiped clean after he has served his ban and he can get back to driving that “£100k Bentley” with a clean licence.
I get a news feed sent to my phone every morning. It contains the legal issues of the day, everything from commercial and property stuff (too complicated), Brexit (too “oh god not again”) and updates on important cases (which saves me from having to read the actual case). I give it a perfunctory glance and then promptly forget about it. But not today. Because today’s feed contained this quite unbelievable story from The Times.
The article concerns something apparently mundane: an application to Dundee City Council for a taxi driver’s licence. Any individual seeking such a licence has to, quite properly, pass a “fit and proper person” test. Police Scotland are entitled to object to any application. They do so in the form of a letter to the Council setting out their grounds for opposition. This is usually on the basis of previous convictions and sometimes on the basis of fixed penalties for minor contraventions of road traffic legislation.
Dundee City Council
On this occasion there was reference to 3 minor convictions, all in excess of 7 years old. A bit harsh, maybe, but not improper. However the letter also made reference to an allegation of assault to serious injury and permanent disfigurement. Now this is a very serious charge but the applicant was acquitted of this charge by a jury of his peers. And as people in this country are innocent until proven guilty, this means the applicant is innocent in the eyes of the law. But not in the eyes of the moral guardians of Police Scotland. Here is what the letter said:
Police Service of Scotland is of the opinion the applicant is not a fit and proper person to be granted a taxi driver licence and objects to the granting of such a licence. It should be noted that the final charge [listed in the letter] of Assault to Severe Injury and Permanent Disfigurement has been disclosed on this occasion despite the applicant being found not proven for this.The reason for disclosure is that where not proven is the outcome in a case this shows the jury believed that the person in question is guilty of the offence, however there is an insufficiency of evidence to convict. It is the opinion of the Police Service of Scotland that this is pertinent to this application due to the serious nature of the offence and implication of guilty albeit without formal conviction.”
This is quite simply staggering. Lets leave aside the issue of how the police could possibly know the reasoning of the 15 ladies and gentlemen who acquitted the applicant. Lets leave aside how, short of illegally contacting members of the jury, they could possibly know they “believed him to be guilty”. What is most galling is that the police still refer to the “offence” supposedly committed. There was no offence. The accused was cleared by the jury.
A leading QC, Brian McConnachie, has accused the police of “ignorance and a quite staggering misunderstaning of the not proven verdict”. It is my opinion that Mr McConnachie may be giving Police Scotland too much credit. A more cynical view is that Police Scotland knows exactly what the Not Proven verdict means and simply sought to poison the minds of Dundee City Council against the applicant by providing deliberately erroneous information. History has proven that the police are not always above distorting the truth or planting evidence when they just know the accused is Guilty. Such deplorable conduct is mercifully rare and I do not suggest that the conduct here is comparable to that. But I cannot shake the suspicion that the motive is the same – the police just know the accused did it and are going to protect the public by ensuring he does not drive taxis.
Police Scotland claim that the letter was sent “in error”. If that is true, how did that “error” occur? We are not talking about a speliing error or a typo here. A alternative account could be that they have simply been caught out and are desperately backtracking.
Mr McConnachie wonders if this kind of thing is commonplace. I can only speak from my own experience. I recall representing one client accused of using his phone while driving and who had an ongoing application for renewal of his driving licence. He denied the offence. He was subsequently cleared of the offence when the case against him was deserted. In the interim, Police Scotland had opposed his application. The impression is that he was presumed Guilty by the police. The fact he was eventually cleared did not change the fact that the police had, in my opinion quite deliberately, poisoned the well. Cliches abound – “mud sticks”; “you can’t unring a bell”, “no smoke without fire”. I suspect that in this case – as in the current matter – police intentions may be good. They believe they need to protect the public. They need to ensure only fit and proper people drive our taxis and can’t details like “innocent until proven guilty” get in the way. But no matter how pure the motivation, did a wise man not once say the path to Hell is paved with good intentions?
It used to be I could not visit a news site without been reading about police crackdowns on motorists disguised as “raising awareness”. In the dark days of Stephen House, these were not really about raising awareness or “keeping people safe” (Police Scotland’s strap line). They were, in my opinion, little more than cynical revenue-generating exercises for the police. Lately these campaigns have been less prevalent but this article on the BBC website this week suggests the storm clouds are gathering again.
The thrust of the campaign is that plain clothes officers will cycle up and down our busy roads waiting for cars to pass them. If the car gets too close, the officer will radio to colleagues further up the road – and no doubt tucked out of sight – to pull over the offender for a good talking to. If the naughty so and so is deemed not to be taking things seriously (i.e. he fails to show due deference and politeness to the police officer threatening him with 100 lines) he will find himself charged with careless driving. One hopes that said police cyclists will be riding at a regular pace and not at 7mph in the hope of enticing frustrated overtakes but the cynic in me is sceptical.
Now because we have a little thing called corroboration in Scots law, one may wonder how the word of a solitary cyclist will be enough to prosecute the motorist. Is this going to be a case of police officers looking sweet on bicycles made for two? Unfortunately not. There is to be no expense spared here. Each bike will be equipped with rear facing and forward facing cameras. And, as the courts have made clear in the case of Shuttleton v PF Glasgow, the footage alone – although technically just one source – can be sufficient evidence of careless driving. If you are so inclined you can read the entire judgement here. However the gist of it is that video footage is “real evidence”. Once the provenance of the footage is established, the footage itself is enough to establish the offence. As the Lord Justice Clerk put it:
“It is the provenance of the real evidence, not its substance, which must be proved by corroborated evidence; the finding of the fingerprint; or of DNA; or in the case of CCTV footage, proof that th footage is a recording of the event which gives rise to the charge. It is in my view misleading to talk of corroboration in the conventional sense when referring to real evidence”
LadY dorriAn, Shuttleton V pf glasgow
So that’s that? Easy-peasy for the police and the prosecution? Well not quite. But before I talk about why not, I want to make clear that the aim of this campaign is a worthy one. It comes off the back of a survey carried out by YouGov and commissioned by Cycling Scotland. Chief executive Keith Irving stated:
“People who cycle regularly are likely to experience a very scary close pass incident every couple of days…… Every week in Scotland at least three people cycling suffer serious potentially life threatening injuries, usually from a collision with a vehicle”
If that is the case, and I have no evidence to the contrary, then clearly there is an issue to address. That said, I do wonder how many times the cyclist is blameless in these accidents. I don’t have figures for how many times I have seen cyclists ignore red lights, fail to stop at give ways, ignore cycling lanes or weave all over the road. But it happens. A lot. And can lead to accidents. Will the police issue similar crackdowns on these cyclists? I’m not holding my breath based on a case of mine which I discuss below. But there is no doubt that cyclists do get injured as a result of inconsiderate – or just plain selfish – driving.
To be clear, failing to leave a cyclist sufficient space can amount to careless driving (aka driving without due care and attention or reasonable consideration for other road users) contrary to section 3 of the Road Traffic Act 1988. The Highway Code makes clear that a cyclist should be given a wide berth of around 1.5 metres.
Rule 163 of the Highway Code
And section 38(7) of the Road Traffic Act 1988, as any good prosecutor knows, means that a breach of the Highway Code can be taken into account in determining whether an offence has been committed.
But…but…but that isn’t the whole story. The section also states that a breach of the Code “shall not in itself render that person liable to criminal proceedings of any kind”. In short, the law does not demand perfection of our drivers and therefore not every error should be elevated to the level of criminality. Is it really criminal, for example, to only give a cyclist one metre of space on a tight road with a 30mph limit? And how exacting does the evidence of distance need to be?
I remember defending a driver accused of such an overtaking manoeuvre not so long ago. The cyclist had a camera on his helmet and there was little doubt that my client failed to give him 1.5 metres of space. And, boy oh boy, did the cyclist let him know. Claiming he had been “nearly killed” he gesticulated, shouted and swore. He had, in his words, “almost been knocked into the ditch”. Quite how he managed to take one of his hands off the handlebars to give my client ‘the finger’ in those circumstances and still keep his bike under control will have to remain a mystery. But the best bit was when the cyclist then set off in pursuit of my client. He pulled alongside him at a red light (at least he stopped I suppose), hit his window with his bicycle pump and proceeded to shout, swear and threaten my client (who, by the way, was a gentleman in his 70s) in a pretty aggressive manner. Action taken again the cyclist for his deplorable behaviour – zilch. Action taken against my client for a minor error – prosecuted for careless driving.
Fortunately in this case, the footage for obvious reasons was helpful to my client and the prosecutor had the decency to look suitably embarrassed by the whole thing. After all, what had really happened? Answer – a car had overtaken a bike a wee bit too closely but essentially nothing had happened. Apart from some quite unacceptable abuse on the part of the cyclist that is. I argued the point above – yes there was a driver error but not every error is criminal – and the client was found Not Guilty.
So while I’m concerned that we are going to start seeing another glut of police “crackdowns” (remember they are definitely not money-making exercises), I am actually delighted that the police are using cameras for this one. Because we will be able to see what actually happens, not just the police version of what happened. Not that the police would exaggerate or (whisper it) lie, of course. But what if I had a pound for every time I have seen footage which bears little resemblance to the police account? Well, I would still need to work but I might finally be able to replace the old BMX with one of those fancy mountain bike things.
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