Author: admin

Safety drivers to be held criminally responsible following 2018 fatality in USA?

Driverless cars – or autonomous vehicles – are a reality. What was once the preserve of science fiction are now on the roads in certain countries around the world. While this does not include the UK yet, it is surely only a matter of time. Government consultations are under way and legislation could be forthcoming as early as next year.

As road traffic lawyers, our interest is in what happens when something goes wrong. If the car is self-driving, when does the human occupant in the “driver’s seat” cease to be responsible for the vehicle? What happens when the car exceeds the speed limit for example? Who is to blame for what – the human or the car? If it is the human, how does the prosecution prove that? If it is the car, should the manufacturer face charges?

Something as mundane as minor contraventions of the speed limit are one thing. But what about when there is a tragic accident? The people who have a stake in manufacturing these autonomous vehicles may try to convince us that driverless cars are going to make our roads safer and prevent such accidents.

Autonomous vehicle technologies, of which automated lane keeping is the latest, will be life-changing, making our journeys safer and smoother than ever before and helping prevent some 47,000 serious accidents and save 3,900 lives over the next decade,’

Mike Hawes, chief executive, society of motor manufacturers &traders

Tell that to Elaine Herzberg and Rafaela Vasquez. Ms Vasquez was the safety driver for an autonomous UBER vehicle in Arizona USA which struck and killed Ms Herzberg in 2018. Notwithstanding that the car apparently had software problems and that UBER was determined to have “inadequate safety procedures, neither the car manufacturer nor UBER will face criminal charges. Ms Vasquez, however is being prosecuted for negligent manslaughter. If it was the UK, the charge would likely have been causing death by either careless or dangerous driving.

The facts of the case appear to be that Ms Vasquez was that the car was self-driving and Ms Vasquez was watching a video on her mobile phone instead of watchingt the road. Apparently, UBER had – for reasons not clear – had deactivated the automatic emergency braking system. However it is not clear whether that would have made any difference anyway. Although the system detected Ms Herzberg 5.6 seconds before the crash, it failed to determine “what” she was or that she was headed into the vehicle’s path.

The case goes to trial in February next year and is worth keeoing any eye on. Ms Vasquez certainly should not have been watching a video on her phone (if that is indeed what she was doing). But having watched the video, I’m not altogether convinced that it made any difference. It was pitch black. Ms Herzberg seemed to come out of nowhere. She was pushing her bicycle while crossing the road outwith a safe crossing area. She did not seem to know or care that a vehicle was approaching and apparently had methamphetamine in her system. Based on the footage, even a fully attentive driver would have had no chance of stopping in time.

Ms Vasquez has previous felony convictions and has spent 4 years in prison. Ultimately, here, American prosecutors have gone for the easy target, not the multinational companies. My feeling is that UK prosecutors will do exactly the same thing.

1st time offenders hung out to dry by the DVSA

Many facets of our lives have been impacted severely by the effects of COVID-19. Many of these are well-known, from school closures to restrictions upon travel. Much of what the Government and other public bodies have done to help mitigate the effects of this global pandemic has been rightly praised. But, based on what some of my own clients have told me and also from queries I have received, I think one public body can be singled out for its utter inflexibility and stupidity – the Driver and Vehicle Standards Agency (DVSA).

The DVSA is the body which oversees the drink drive rehabilitation scheme (DDRS) in the UK. For those who do not know, the DDRS is an optional educational course. It is available to persons convicted of drink driving whom the sentencing court certifies as suitable to participate. Since the case of PF Paisley v Little, this will include almost all first offenders who ask to be certified. As the court stated:

We do not regard it as necessary for an accused in the appellant’s position [a 1st offender] to justify his attendance at the course. Attendance at such a course is, in our view, the appropriate course to be adopted in the first instance

PF Paisley V Thomas Little, 2019 SAC (CRIM) 15

For the offender, completion can mean the length of disqualification is reduced by 25%. This can be invaluable to the offender in terms of, for example, being able to keep their job or save their business.

The offender has to complete the course by a certain set date, usually well in advance of (what would be) their discounted period of disqualification. Fail to do so and the 25% discount is lost.

So what is the problem? Many scheduled courses were cancelled due to the impact of COVID-19. As a result, many people who had booked for and paid for the course were hung out to dry. From the queries and feedback we have received, people were then being offered courses outwith their completion deadline. And, in a decision that is as baffling as it is outright vindictive, the DVSA has refused to extend completion deadlines.

Can’t get on a course? Tough.

Can’t complete a course you have already started? Tough.

None of this is in any way your own fault? Tough.

No doubt many people will shrug their shoulders at this. Why should we do drink-drivers any favours? Because these courses do not just provide a benefit to the offender, they provide a benefit to us all. Independent studies have shown that offenders who did not attend a DDRS course were 2.6 times more likely to reoffend compared with offenders who had attended a course.

In short – the course works. And when the DVSA screwed the offenders, they screwed you too.

The effect of COVID-19 and the accompanying lockdown has been profound in all walks of life. The legal profession is no exception. Like most criminal defence lawyers, particularly those practising road traffic law, we have experienced a massive downturn in business as local courts close and hearing dates get delayed. And we assumed that, with fewer cars on the road, we would continue to experience a downturn over the coming months.

After all the Department of Transport has reported that motor vehicle use has fallen by two-thirds since the outbreak of the current crisis. Fewer cars on the road surely means fewer speeding drivers, right?

Wrong, apparently, if this BBC report is correct.

According to the report, our quieter roads seem to have been like a red rag to a bull. For example, Greater Manchester Police report more than 6,200 cases of speeding since the beginning of lockdown. That represents an increase of 57%, notwithstanding the reduced amount of cars on the road. Similarly, instances of (alleged) speeding have almost doubled on Lincolnshire’s roads. There are no reported speeding figures in Scotland but Police Scotland stated that over the Easter period between 10 and 14 April, 16 people were found [allegedly] committing drink or drug-driving offences (which actually sounds quite low to me!)

It is not often I find myself agreeing with the police but it is hard to argue with Superintendent Julie Ellison of Greater Manchester Police when she wrote:

At all times road safety in and around Greater Manchester is of paramount importance as speeding can have devastating consequences – not only does it increase the risk of collisions occurring, but it can affect the severity of those that do take place and in the worst case scenario can be fatal.

“In this current climate, keeping the pressure off our emergency services is so important whilst they keep the public safe and well. If someone is speeding and they have a collision, this will take up vital resources including NHS, fire and the police.

https://www.gmp.police.uk/news/greater-manchester/news/news/2020/april/over-6200-drivers-caught-speeding-in-greater-manchester-since-lockdown/

So, to all those speeding drivers out there, please slow down. The last thing our NHS needs is extra, avoidable, work. And the last thing our police officers need to be doing is scraping a 150mph motorcyclist off the road. On a personal note, to the selfish sod in Johnstone, Renfrewshire who thinks its fine to scream through a public park on his dirtbike – I take my children there so no it isn’t. I

One final thing though. The defence lawyer in me can’t end a blog like this without saying that these are allegations. Nothing against any of these drivers has yet been proved in a court of law and yet the police speak as if these allegations are established fact. Speed detection technology can get it wrong. If you don’t believe me, check out this blog here (and don’t let the fact that I am referencing myself to support my arguments get in the way).

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).

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.

But they will become an endangered species.