New Offence of Causing Serious Injury by Careless Driving – What does that mean for drivers and fleet managers?

New Offence of Causing Serious Injury by Careless Driving – What does that mean for drivers and fleet managers?

27/06/2022

Careless Driving

The long awaiting offence of Causing Serious injury by careless driving will be coming into force tomorrow 28th June 2022.

The Govt provided a response to the consultation on driving offences and penalties relating to causing death or serious injury.1 Of those consulted 90% thought that there should be an offence of causing serious injury by careless driving providing strong support for the enacting of an offence of causing serious injury by careless driving

Since the introduction of the offence of Causing Serious injury by dangerous driving in 2012 there has been an enormous void in scope of legislation available to prosecutors when deciding what to charge.

The current law where serious injury was caused only enabled prosecutors to charge “careless driving” carrying penalties of  3- 9 points and a fine (with a possible discretionary disqualification or “Causing serious injury by dangerous driving” which carried up to 5 years imprisonment and a minimum 2 years disqualification with an extended re-test.  This has led to cases being either seriously undercharged, overcharged or not charged at all. Our experience suggests that prosecutors have favoured overcharging where the actual level of injury or bad driving does not warrant a charge of causing serious injury by dangerous driving.  As the penalty is high drivers have felt pressured to plead guilty even though the circumstances may not necessarily meet the criteria. The cost of losing in terms of lost fees and penalties is too high to risk. This has led to disproportionate sentences for the nature of the offence.

Therefore, we welcome this new offence of causing serious injury by careless driving it plugs this gap in charging and sentencing and will hopefully lead to fairer charging and sentencing in the future.

The offence is found under S2C of the Road Traffic Act 1988 and was inserted by the Police and Crime Sentencing Act 2022 and reads as follows:

  • 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.

It is an either way offence which can be dealt with at the Magistrates or the Crown Court dependant on severity/right to elect trial at the Crown Court.  It carries penalties between a fine and/or up to 2 years imprisonment with a mandatory disqualification or 3 -11 points if no disqualification is imposed.

There are no sentencing guidelines but the court will use the existing guidelines on death by careless driving and careless/dangerous driving to pitch the level of sentencing. So prolonged bad driving, other offences committed at the same time, more than one person injured and the level of injury caused will put a driver closer to the higher limit of 2 years with a longer disqualification.  Factors such as low level bad driving, minor misjudgement, lack of previous offending and lower level injury will lower the level of penalty. Until guidelines are issued by the sentencing council we will not be certain of the level of penalty.

 What is the difference between dangerous driving and careless driving?

It is difficult to establish exactly what the difference is between dangerous driving and careless driving. The definition for dangerous driving is “the standard of driving fell far below that of a careful and competent driver” and careless is “the standard of driving below that of a careful and competent driver”.   There is no definition of “far” so it is very much a matter of opinion. The test being that of reasonably careful competent driver in the same situation. So road conditions and other factors would be taken into account.

The briefing paper on serious driving offences SNO14962 gave examples of dangerous driving as:

  • 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 offenders driving skills;
  • 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;
  • 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; or
  • 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.

And examples of careless driving as:

  • 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; or
  • selecting and lighting a cigarette or similar when the driver was avoidably distracted by that use.10 Finally, the guidance explains what factors are not relevant when deciding whether an act of driving is dangerous or careless:
  • the injury or death of one or more persons involved in a road traffic collision. Importantly, injury or death does not, by itself, turn a collision into careless driving or turn careless driving into dangerous driving;
  • the skill or lack of skill of the driver;
  • the commission of other driving offences at the same time (such as driving whilst disqualified or driving without a certificate of insurance or a driving licence);
  • the fact that the defendant has previous convictions for road traffic offences; or
  • the mere disability of a driver caused by mental illness or by physical injury or illness, except where there is evidence that the disability adversely affected the manner of the driving.

If is difficult to judge whether an incident falls within careless or dangerous driving and it is always advisable to seek specialist advice.

What is Serious Injury?

This is physical harm which amounts to grievous bodily harm for the purposes of the Offences against the Person Act 1861. Grievous bodily harm (GBH) is defined as “really serious bodily harm”. It will be a question of degree; some injuries such as broken and loss of limbs are obvious but others not as clear such as a broken finger/hand/rib. Numerous minor injuries can add up to GBH and also psychological injury.

The law around causing serious injury either by careless driving or dangerous driving is a minefield. Drivers should get advice as soon after or at the time of any incident to get the best possible results.  We can influence the charging decision and ensure that vital evidence is not missed or lost.  It could be that a driver has a defence in that the accident was not their fault or the level of injury is such that this charge is warranted. Even if a driver thinks they are guilty we can put forward mitigation to influence the level of sentencing which in a worst case scenario could result in a custodial sentence and lengthy disqualification.  Good preparation and representation can significantly impact on the level of sentence. If you have been involved in an accident and think you may be prosecuted or have been charged please contact us for unparalleled specialist advice

https://roadtrafficdefencelawyers.co.uk/contact-us/

If you are a fleet manager it is important that you are aware when drivers are in such accidents whether in their own cars or a company car.  To ensure that drivers are not unfairly disqualified and the company does not incur significant costs such as

  1. Accident claims
  2. Increase in insurance premiums
  3. Recruitment
  4. Retraining

A pro-active fleet manager will ensure that they have :-

  1. A fleet policy and procedure in place
  2. Driver training in not only driving generally but road traffic law
  3. Management of driver behaviour including driver licence checks
  4. Clear accident management policy and procedure
  5. Road Traffic Offence management
  6. Good document management such as insurance particularly in grey fleet3

All of which will give reflect a very high level of corporate social responsibility and help to make our roads safer.

If you are interested in more information please contact us:-

https://roadtrafficdefencelawyers.co.uk/auriga-fleet-training-management/

Phone : 01270509496

Sources:

  1. https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/651879/consultation-response-on-driving-offences.pdf+
  2. https://researchbriefings.files.parliament.uk/documents/SN01496/SN01496.pdf
  3. https://drivebright.auriga-advocates.com/pages/home/?site_template_id=5fd0e1588a5d0004982ddb0a
  4. https://roadtrafficdefencelawyers.co.uk/2022/06/23/the-most-neglected-fleet-grey-fleet/
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