Road Traffic Offences: Guidance on Charging Offences arising from Driving Incidents

• Introduction
• Application of the Code for Crown Prosecutors
• Death in driving cases where the victim is a close friend or relative of the driver (close friends and family cases)
• Drivers of emergency service vehicles and drivers in emergencies
• Other public interest considerations when charging offences arising from driving incidents
• General issues of relevance to driving offences
  • Referral of Fatal Collision/Manslaughter Cases
  • Terminology
  • Victim and Witness Care
  • Allocation (Mode of Trial) in Cases Involving a Death
  • Bail
  • Acceptance of Pleas
  • Sentencing
  • Inquests
  • Offences Involving Corporate Bodies
  • Commission of a number of offences
  • Seizure of Vehicles Fatality or Serious Injury Cases
  • Factors that are not relevant in deciding whether an act is dangerous or careless
• Offences and Charging Practice
  • Murder and Manslaughter
  • Gross Negligence Manslaughter
  • Corporate Manslaughter
  • Causing death by Dangerous Driving
  • Causing death by Careless or Inconsiderate Driving
  • Causing death by careless driving when under the influence of drink or drugs
  • Relationship between section 1 and section 3A of the RTA 1988
  • Causing death by driving while unlicensed, disqualified or uninsured
  • Wanton and furious driving
  • Causing serious injury by dangerous driving
  • Dangerous Driving
  • Charging Practice
  • Driving without due care and attention
  • Driving without reasonable consideration
  • Alternative verdicts

Introduction

The Crown Prosecution Service (CPS) recognises that being open and transparent about how our practices and procedures are applied by prosecutors when reaching charging and other casework decisions is vital to increasing public confidence in the way we operate.

This guidance deals with a number of the most serious offences that directly result from or relate to a driving incident and the way in which a motor vehicle has been driven. The guidance replaces the two previous documents published in 2007 which set out how the CPS would approach driving related incidents: "Guidance on Prosecuting Cases of Bad Driving" and the "Policy for Prosecuting Cases of Bad Driving". We have consolidated, updated and amended these two documents into this latest guidance.

The guidance is designed to help prosecutors when charging and reviewing cases. In doing so, it outlines the charging standards and factors for consideration when prosecution decisions are taken.

This guidance must always be read in conjunction with the Code for Crown Prosecutors (the Code) when taking prosecution decisions.

Application of the Code for Crown Prosecutors

Prosecutors are reminded that each individual case must be considered on its own facts and on its own merits when applying the Full Code Test as contained in the Code for Crown Prosecutors (the Code). The Full Code Test has two stages. The first is the consideration of whether there is sufficient evidence to provide a realistic prospect of conviction against each suspect on each charge (the evidential stage). If there is sufficient evidence, the prosecutor must then go on to consider the second stage, namely whether a prosecution is in the public interest (the public interest stage).

The relevant considerations are set out in detail in the Code.

Given the serious nature of many of the offences covered by this guidance, especially those cases involving the death of another, or where serious injury has occurred, the public interest will usually be in favour of prosecution. However, there will be cases where we decide that it is not in the public interest to prosecute.

Death in driving cases where the victim is a close friend or relative of the driver ("Close friends and family" cases)

Any case which involves the death of another will inevitably be one of the most serious matters that will be dealt with by prosecutors. Whilst the serious nature of these cases usually means that a prosecution will be in the public interest, prosecutors must acknowledge the greater emotional impact likely to be felt by a driver where the death he or she has caused is that of a relative or someone with whom they share a close personal relationship. These types of cases will now be referred to as "close friends and family" cases, (formerly "nearest and dearest" cases).

When reviewing such cases, prosecutors must balance the circumstances of each individual case with the consequences to the driver, who is likely to have suffered significant personal loss from the bereavement. Whilst there may be sufficient evidence to prosecute, we recognise that in some instances such prosecutions would be inappropriate and it would not be in the public interest to proceed because of the likely life-long consequences of losing a loved one and being responsible for that loss.

However, this must always be balanced against the need to ensure the safety of other road users including motorists, passengers, those on public transport, cyclists and pedestrians. If there is evidence to suggest that an individual may present a continuing danger to other road users, the proper course will be to prosecute that individual. Evidence that someone may present a continuing danger to other road users may exist, for example, if they have previous relevant convictions or a medical condition.

In cases where the degree of culpability of the driver is low and there is no evidence they may present a continuing danger to other road users, it is unlikely that a prosecution will be in the public interest. Examples of lower culpability on the part of the driver may include errors of judgement such as failure to look properly before turning at a junction due to a momentary lapse of attention; or where the illegality arose as a result of a genuine mistake on the part of the driver for example, a mistaken belief that he or she was insured to drive the car.

The same conclusion may be appropriate sometimes if a driver demonstrated a higher degree of culpability but there was no evidence they may be a continuing danger to others. For instance, where an individual is tuning a car radio and is distracted by this and a fatality ensues.

However, where both high culpability and evidence the driver may be a continuing danger are apparent, the proper course will be to prosecute. For example, where an individual demonstrated a prolonged course of dangerous driving; drove whilst over the prescribed alcohol limit; or drove whilst never having had motor insurance or having been previously disqualified from driving or never having passed a driving test. See Att. Gen's Reference No 65 of 2008 [2008] EWCA Crim 3135 (Daltery Roger Pearson) for an illustration of where high culpability and a continuing danger to others are both present.

This is a non-exhaustive set of examples and prosecutors are reminded that each individual case must be considered on its own particular set of facts and its own merits when determining the level of culpability and whether or not there is evidence to show an individual presents a continuing danger.

If a person other than a close friend or family member is also killed as a result of the manner of an individual's driving it may well be that a prosecution for offences relating to each of the deaths is appropriate. Prosecutors will have to consider each case on its own facts and its own merits.

Drivers of emergency service vehicles and drivers in emergencies

In the course of their duties, police officers, ambulance staff and fire-fighters may need to drive a vehicle in response to an emergency in a manner which would otherwise be considered unacceptable. Our starting point is that it is very unlikely to be appropriate to proceed with a prosecution on public interest grounds if a police officer, member of ambulance staff or fire-fighter commits a driving offence while responding to an emergency call.

However, every individual case must be considered on its own facts and merits, and when considering whether it is in the public interest to proceed with the case, prosecutors should have regard to the following factors:

• The nature of the emergency known to or reasonably perceived by the driver. For example, whether the driver was responding to a 999 call in compliance with the agreed operating practice in that service;
• The level of culpability of the driver (including the nature of the driving); and
• Whether there is evidence the driver may be a continuing danger to others. For example, such evidence may include relevant convictions or internal disciplinary proceedings against the driver.

In all cases involving emergency vehicles or drivers in emergencies which are referred by the investigator to the CPS for a prosecution decision, prosecutors will need to check that the following is provided by the investigator:

• evidence in the form of any police collision reports;
• advice provided by the ACPO pursuits lead where applicable;
• statements regarding the manner of the driving.

It is essential that the investigator provides these items when referring the case to the CPS for review or to make a charging decision and they should be requested if they are not provided.

When considering the standard of driving in any particular case and potential defences that might arise, prosecutors should be aware of the case of R v Bannister [2009] EWCA Crim 1571. The basic facts in this case were that a police officer drove in the dark with no road lighting, in conditions of torrential rain with a lot of surface water on the motorway at speeds of up to 120mph, and the police officer's car spun out of control and crashed. The police officer was prosecuted, and in his defence it was argued that as the officer had successfully completed an advanced training course he was able to drive safely at very high speeds. It was contended that the training had enabled him, because of that special skill, to drive at speeds in adverse road and weather conditions safely, even if that would not be the case for the ordinary competent and careful driver. The police officer was convicted and appealed the decision.

The Court of Appeal in its judgment in the appeal against conviction held that special skill (or lack of skill) of a driver is irrelevant when considering whether driving is dangerous. The test to be applied is the objective test of the competent and careful driver as set out in statute.

The Court of Appeal also stated clearly that police officers were not entitled to drive dangerously when on duty or responding to an emergency. It is therefore apparent from the Bannister case that members of the emergency services when responding to emergency calls owe the same duty of care to other road users as ordinary members of the general public. This is relevant to the evidential stage of the Full Code Test. Public interest considerations with regards to emergency vehicle drivers are set out earlier.

Prosecutors should also be aware that there will sometimes be cases when a person who is not a member of the emergency services will have to drive in response to an emergency for example, a parent taking a very sick child to hospital. As with members of the emergency services responding to emergency calls, the public considerations outlined above (for example, the nature of the emergency, the level of culpability) will also apply in these cases.

Other public interest considerations when charging offences arising from driving incidents

The following is not exhaustive but it indicates some further public interest considerations that prosecutors should keep in mind with driving offences:

• The level of culpability of a driver is likely to be relevant. The greater the degree of culpability, the greater the public interest in favour of prosecution;
• If the driver has caused harm, annoyance or distress to other road users, it is more likely to be in the public interest to prosecute; see the section on Driving without reasonable consideration;
• If a person drives below the required standard and they have not passed a driving test, are unfit to drive because of a medical condition, or are driving otherwise than in accordance with the conditions of a provisional licence, it is more likely to be in the public interest to prosecute;

It will not necessarily be appropriate to prosecute every case where a minor collision occurs e.g. where the incident is of a type that involves minimal carelessness which may occur when parking a vehicle or in traffic queues. The extent of any damage does not matter in such cases; it is the extent of the driving error. Prosecutors should ensure that proceedings are not conducted for the sake of settling questions of liability for the benefit of individual drivers or insurance companies.

General issues of relevance to driving offences

Referral of Fatal Collision/Manslaughter Cases

To ensure consistency of approach, charging decisions in all fatal collision cases should be approved by a Chief Crown Prosecutor (CCP), Deputy Chief Crown Prosecutor (DCCP) or nominated senior decision maker (who will have been nominated for this role by their CCP/DCCP).

Where there is evidence that points towards an organisation to which the terms of the Corporate Manslaughter and Corporate Homicide Act 2007 might apply, prosecutors must refer these cases to the Special Crime and Counter Terrorism Division.

Where a prosecutor is of the view that there may be sufficient evidence to warrant full consideration of a charge of gross negligence manslaughter, these cases should be referred to the relevant Complex Casework Unit (see the Homicide: Murder and Manslaughter Guidance).

Terminology

When a suspect's/defendant's manner of driving has resulted in death or serious injury to a victim, the term "fatal collision" or "collision" should be used in all correspondence, conversations at court and in meetings when dealing with these cases. The term "accident" should not be used.

Victim and Witness Care

The CPS offers a direct service to bereaved families in a number of qualifying offences including all the fatal collision offences outlined in this guidance. Prosecutors are referred to the Homicide Cases Guidance on CPS service to bereaved families and to the Direct Communication with Victims policy which includes specific reference to the practicalities of arranging and conducting meetings with bereaved families.

Allocation (Mode of Trial) in Cases Involving a Death

All Allocation (Mode of Trial) decisions in cases involving a death should be agreed and approved by the CCP/DCCP or nominated senior decision maker (who will have been nominated for this role by their CCP/DCCP). In such cases the bereaved family should be advised of the decision and the reasons for reaching it, well in advance of the hearing at which Allocation (Mode of Trial) will be considered.

Prosecutors should make themselves known to members of the bereaved family where they are present at the Allocation (Mode of Trial) hearing and be alert to the need for sensitivity when addressing the issue during the hearing.

In order to inform the representations at the Allocation (Mode of Trial) hearing, prosecutors should compare the circumstances of the particular case they are reviewing with those in the Sentencing Guidelines Council's Causing Death by Driving Definitive Guideline (SGC Definitive Guidelines) especially in respect of the aggravating and mitigating factors set out for the offence in the SGC Definitive Guidelines. See the section of this guidance entitled Sentencing for more information.

Prosecutors should also make explicit reference at the Allocation (Mode of Trial) hearing to relevant factors in the SGC Definitive Guideline.

Prosecutors are reminded of the importance of recording clearly and thoroughly the reasons for their Allocation (Mode of Trial) decisions.

Bail

Where bail is applied for in cases involving serious driving offences and especially in cases involving fatal collisions, prosecutors are reminded that the relevant considerations under the Bail Act 1976 apply. Where there are substantial grounds for believing there is a risk of the defendant committing further offences on bail, failing to surrender or interfering with witnesses, prosecutors should give careful consideration to asking the court to impose conditions on bail or remand the defendant in custody. However, prosecutors are reminded that bail conditions or a remand in custody should never be requested as a punitive measure, despite the strength of the evidence in the case, or seeming lack of defence available to a defendant. Each case must be assessed on its own facts and its own merits and bail conditions sought that are proportionate and necessary.

Whilst the imposition of some or no bail conditions, or a remand in custody are always a decision for the court, prosecutors must ensure that appropriate representations are made to assist the court to address the issue.

In fatal collision cases or cases where serious harm or injury has occurred, a bail condition that the defendant should not drive a motor vehicle will often be appropriate having regard to the overall circumstances of the case and the need to protect the public from drivers who may cause future harm and are a danger to other road users. For example, where a defendant has previous convictions for relevant driving offences, or was on bail for a driving offence and a subsequent serious driving offence has been committed.

Acceptance of Pleas

Prosecutors are reminded of the following in relation to acceptance of pleas:

• Any decision to accept a plea to a lesser offence in fatal collision cases must be approved by the CCP/DCCP or nominated senior decision maker (who will have been nominated for this role by their CCP/DCCP).
• Prosecutors should consult the victim or the bereaved family before any decision to accept a plea to a less serious offence is made. This also applies to circumstances where the defendant indicates a guilty plea on the basis of certain specified facts. However, the final decision in this regard rests with the prosecution.
• Prosecutors should refer to the Criminal Practice Direction VII Sentencing B: Determining the factual basis of sentence.
  Prosecutors should note that paragraph B2 of the Criminal Practice Direction suggests that where a guilty plea is offered to less than the whole indictment and where the prosecution advocate is considering whether to accept a plea to a lesser charge, the advocate may invite the judge to approve the proposed course of action. In such circumstances, the advocate must abide by the decision of the judge. Where that course of action is followed by a prosecutor paragraph B2 of the Criminal Practice Direction should be brought to the attention of the judge.
• Prosecutors must also follow the Attorney General's Guidelines on the Acceptance of Pleas and the Prosecutors Role in the Sentencing Exercise. See also the chapter entitled Sentencing - Overview elsewhere in the Legal Guidance.

Sentencing

The Sentencing Guidelines Council (SGC) Definitive Guideline covers four offences:

• Section 1 of the Road Traffic Act (RTA)1988 (causing death by dangerous driving);
• Section 2B of the RTA 1988 (causing death by careless or inconsiderate driving);
• Section 3A of the RTA 1988 (causing death by careless driving whilst under the influence of drink/drugs); and
• Section 3ZB of the RTA 1988 (causing death by driving while unlicensed, disqualified or uninsured).

The SGC Definitive Guideline is an essential reference point for prosecutors, especially when deciding upon the most suitable venue for trial in offences triable either way. The SGC Definitive Guideline supersedes guidelines set out in case law.

Prosecutors should make sure that the court has all the information it needs to sentence appropriately including any representations concerning mandatory disqualification and retesting. Prosecutors should also remind the court of its power to impose an interim disqualification on a defendant where it is lawful to do so and supply any information contained in the Victim's Personal Statement.

Inquests

Section 16 of the Coroners Act 1988 (as amended by section 20(5) of the Road Safety Act 2006 - RSA 2006) stipulates that a Coroner must adjourn an inquest where a person is charged with any of the offences below:

• causing death by dangerous driving;
• causing death by careless driving while under the influence of drink or drugs;
• causing death by driving while unlicensed/disqualified or uninsured;
• causing death by careless driving.

The inquest should not take place until the conclusion of the criminal proceedings unless there is a reason to proceed with it.

Section 16 of the Coroners Act 1988 does not apply to fatal collisions where section 3 of the RTA 1988 (driving without due care and attention - careless driving) has been charged because in such cases it cannot be shown that the driving caused the death.

Summary trials for careless driving offences should be adjourned until after the inquest has taken place. Smith v DPP [2000] R.T.R.36, R v Beresford (1952)116 JP Jo 194

Where it is considered beneficial to do so, prosecutors should attend an inquest where the related criminal proceedings have still to be concluded.

Offences involving Corporate Bodies

Prosecutors should ensure that cases involving a suspect's manner of driving relating to a workplace are reviewed not only to establish whether the driver should be prosecuted for any offence or offences, but also to determine whether there is evidence to show that an offence or offences have been committed by the driver's employer.

The CPS has a protocol with the Health and Safety Executive, the Local Government Association and the police for the investigation and prosecution of work related deaths and prosecutors should ensure that there is early liaison in appropriate cases where such a death has been caused as a result of a driving offence. See the legal guidance Relations with Other Prosecuting Agencies.

Commission of a number of offences

In cases where the evidence shows a course of conduct which involves the commission of a number of statutory or regulatory offences that are very close in time with one another, there may well be an overlap between careless driving and other offences such as driving with excess alcohol or a Construction and Use offence. In such cases, prosecutors should decide whether a separate charge of careless driving adds anything to the case, and whether any additional penalty is likely to result on conviction, before deciding to charge this offence as well.

On the other hand, a driver may drive through a red traffic light, ignore a pelican crossing and fail to give way at a junction within the same course of driving. The court needs to be made aware of the link between what might otherwise appear as isolated incidents, which in reality form part of a more serious course of conduct. Where this type of situation arises, the manner of driving has, in reality, fallen far below that expected of a competent and careful driver because of the driver's systematic failure to obey the relevant traffic directions. In such circumstances, prosecutors should consider charges under section 2 RTA 1988 (dangerous driving) where the evidence supports these charges, rather than a number of individual statutory or regulatory offences.

Seizure of Vehicles - Fatality or Serious Injury cases

In cases where a fatality or serious injury results, consideration should be given to the seizure and retention of the vehicle in its post-collision condition until the conclusion of the case, and any periods for an appeal. This allows an opportunity for expert examination of the vehicle.

This is because the condition of the vehicle involved in a road collision may be relevant in explaining why the collision happened, for example, a mechanical defect. In this respect, the Court of Appeal has stated in the case of R v Beckford [1996] 1 Cr.App. R 94 that the police should have established procedures to ensure that no car involved in a collision could be scrapped without their express permission. The police should not allow a car to be destroyed where serious criminal charges are to be brought, which might involve the possibility of some mechanical defect to the vehicle becoming a potential issue in the case.

However, in some circumstances it may be appropriate for the police to seize specific defective parts of a vehicle or provide photographic or laser scanned records. It is desirable if consultation takes place with those representing the suspect/defendant before such a course of action is taken.

Factors that are not relevant in deciding whether an act is dangerous or careless

The following 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. Multiple deaths are however an aggravating factor for sentencing purposes (Sentencing Guidelines Council: Causing Death by Driving Guideline, page 5, paragraph 19);
• the skill or lack of skill of the driver - R v Bannister [2009] EWCA Crim 1571
• 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; and

• 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.

Offences and Charging Practice

There are a number of offences which can arise from driving incidents. The elements of each of the identified offences and the levels of possible sentence are set out below.

Murder and Manslaughter

If the vehicle was intentionally used as a weapon to kill or commit grievous bodily harm, a charge of murder may be considered. If the killing was involuntary, that is to say, where it was not intended, manslaughter may be considered. Manslaughter may arise as unlawful act manslaughter and gross negligence manslaughter. In addition, the charge of corporate manslaughter is also available.

Manslaughter is an obligatorily disqualifiable offence - Part II of Schedule 2 of the Road Traffic Offenders Act 1988 (RTOA 1988). An extended retest is also mandatory (section 36 of the RTOA 1988).

Manslaughter should also be considered where the driving has occurred "off road" i.e. other than on a road or other public place, or when the vehicle driven was not mechanically propelled, and death has been caused. In these cases the statutory offences such as causing death by dangerous driving or causing death by careless driving do not apply.

Prosecutors should also see the chapter on Homicide: Murder and Manslaughter in the Legal Guidance.
Unlawful act manslaughter

It must be proved that:

• The suspect's act caused the death of another;
• The suspect's act constituted a criminal offence in itself;
• The suspect had the mens rea appropriate to the unlawful act which caused the death of another; and
• The suspect's unlawful act is objectively recognised as subjecting another to the risk of some physical harm, albeit not necessarily serious harm.

Unlawful act manslaughter will be the most appropriate charge when there is evidence that a vehicle was used as an instrument of attack or to cause fright, (but where the necessary intent for murder is absent), and death occurs as a result.

In the context of driving offences, it is important to remember that there is a difference between cases where there is a specific unlawful act which relates to the manner and standard of the driving, and those where a death has occurred as a result of driving that is unlawful only because of the negligent manner of its performance.

Driving carelessly or driving dangerously do not, on their own, amount to unlawful acts for the purpose of unlawful act manslaughter. Andrews v DPP [1937] A.C. 576

Unlawful act manslaughter should, therefore, only be charged instead of causing death by dangerous driving where there is evidence that the driver either intended to cause injury to the victim or was reckless as to whether injury would be caused.

Gross Negligence Manslaughter

In cases where a death has occurred as a result of the manner of driving, and it is clear from the available evidence that the standard of driving has been grossly negligent on the part of the driver, a charge of gross negligence manslaughter will be the correct charge.

The prosecution must prove the following:

• The suspect owed the deceased a duty of care;
• The suspect was in breach of that duty;
• The suspect caused the death of the deceased;
• The driving fell far below the minimum acceptable standard of driving such that there was an obvious and serious risk of death; and
• The conduct of the suspect was so bad in all the circumstances as, in the opinion of the jury, to amount to a crime (R v Adomako [1993] 3 All ER 79).

The ordinary principles of the law of negligence apply when considering whether there is such a duty. There is a general duty of care on all persons not to do acts imperilling the lives of others. This may mean that a "hit and run" driver might be guilty of manslaughter in certain circumstances. For instance, where a driver fails to stop or to report a collision where he or she knows or ought reasonably to have known that there is a risk of death if no medical assistance is provided to the person who has been hit, it could be argued that the deliberate failure to stop at the scene or report the incident may amount to manslaughter by omission. Consideration should be given to this in appropriate cases where there is clear evidence to satisfy all the above elements. See Wilkinson's Road Traffic Offences for further information.

The examples of driving which fall far below the minimum acceptable standard of driving are also applicable here. See examples listed under Dangerous Driving elsewhere in this guidance.

Gross negligence manslaughter should not be charged unless there is something to set the case apart from those cases where a statutory offence such as causing death by dangerous driving or causing death by careless driving could be proved. This will normally be evidence to show a very high risk of death, making the case one of the utmost gravity. This is in contrast to the statutory offences where all that is required is evidence that the driving was dangerous and that the manner of driving caused the death of another person.

Corporate Manslaughter

The Corporate Manslaughter and Corporate Homicide Act 2007 established this particular offence and covers the way in which activities of corporate bodies etc are managed and organised.

On occasion it will be apparent that working regimes, dangerous or illegal practices, or negligence have contributed to a death. In these circumstances liability may arise either in respect of organisations such as corporations, certain government departments/bodies, police forces, partnerships or trade unions etc.

The normal principles of "gross negligence manslaughter" must be followed to determine liability. The prosecution must prove the following:

• The organisation is one to which the provisions of the Act apply (a qualifying organisation) and caused the death of the deceased;
• There was a relevant duty of care owed by the organisation to the deceased and the organisation was in gross breach of that duty; and
• A substantial element of the breach involved the way the activities of the organisation were managed or organised by senior management.

Prosecutors should refer to the chapter on Corporate Manslaughter elsewhere in the Legal Guidance for more information.

Prosecutors are reminded that where there is evidence that indicates the possibility of charging corporate manslaughter, such cases must be referred to the Special Crime and Counter-Terrorism Division.

Causing death by dangerous driving

The offence of causing death by dangerous driving is committed under section 1 of the Road Traffic Act 1988 (RTA 1988) when the suspect's driving is a cause or factor in the death of another person and the driving was dangerous. By "dangerous" we mean within the meaning of section 2A of the RTA 1988, i.e. the standard of driving falls far below what would be expected of a competent and careful driver and it would be obvious to a competent and careful driver that driving in that way would be dangerous.

The examples given in relation to dangerous driving also apply to this offence. See examples listed under the Dangerous Driving section.

It is an offence triable only on indictment and carries a maximum penalty of 14 years' imprisonment, by virtue of the Criminal Justice Act 2003, and/or an unlimited fine.

The court must disqualify the driver from driving for at least 2 years, unless special reasons are found for not disqualifying (in which case it must endorse the driver's licence with 3 - 11 penalty points, again, unless there are special reasons not to do so). An extended retest is also mandatory.

Level of Decision-Making

Charging decisions in all fatal collision cases should be approved by a Chief Crown Prosecutor (CCP), Deputy Chief Crown Prosecutor (DCCP) or other nominated senior decision maker (who will have been nominated for this role by their CCP/DCCP). See the section entitled Referral of Fatal Collision/Manslaughter Cases.

Causation

The manner of the defendant's driving must have been a cause of the death.

The defendant,s driving need not be the sole, principal or even a substantial cause of the death. It need only be beyond a negligible cause of the death. The leading authorities are R v Hennigan [1971] 55 Cr App R 262, R v Skelton [1995] Crim LR 635 and R v Barnes [2008] EWCA Crim 2726. These cases were cited in R v L [2011] RTR 19 where the following principles were set out:

• The defendant's driving must have played a part not simply in creating the occasion for the fatal accident, i.e. causation in the "but for" sense, but in bringing it about;
• No particular degree of contribution is required beyond a negligible one;
• There may be cases in which the judge should rule that the driving is too remote from the later event to have been the cause of it, and should accordingly withdraw the case from the jury.

The Court of Appeal in R v Kimsey [1996] Crim LR 35 approved the expression "more than a slight or trifling link" as a useful way of explaining "de minimis" to the jury.

In R v L [2011] Toulson LJ said

"... it is ultimately for the jury to decide whether, considering all the evidence, they are sure that the defendant should fairly be regarded as having brought about the death of the victim by his careless driving. That is a question of fact for them. As in so many areas, this part of the criminal law depends on the collective good sense and fairness of the jury."

The court in this case also acknowledged that establishing when dangerous driving is actually the cause of death may not be a particularly easy concept.

Although proving causation in fatal collision cases can, on occasion, be straightforward, prosecutors should be alive to the fact that it is possible, (though this is likely to be extremely rare), for a vehicle to be driven carelessly or dangerously without the careless or dangerous act or omission being causative of death. For example, causation may not be made out where a driver was avoidably distracted by something in the car, and suddenly a pedestrian stepped out into the road and was so close to the driver's car that a collision was inevitable, even if the driver had been paying full attention. Here, the death that occurred was unavoidable, irrespective of the manner of the driving.

Another example where causation may be difficult to prove could occur where there has been a collision between two cars, whereupon a third vehicle, being driven by a driver who was momentarily distracted or who failed to react sufficiently to the situation, ploughed into the crash scene. If the drivers of the first or second vehicles suffer fatal injuries, it might not be clear whether the subsequent dangerous or careless driving by the driver of the third vehicle was a cause of death.

Prosecutors will need to have regard to relevant case law on this subject and as always bear in mind that any decision to proceed will ultimately depend on the facts and merits in any given individual case.

Acceptance of pleas

Prosecutors are reminded that the section on Acceptance of Pleas in the General Issues section of this guidance must be adhered to.

Causing death by careless or inconsiderate driving

The offence of causing death by careless driving under section 2B of the RTA 1988 is committed when the manner of the suspect's driving causes the death of another person.

The definition of this offence is linked to the provisions of section 3ZA of the RTA 1988. The section stipulates that a person is to be regarded as driving without due care and attention if (and only if) the way he or she drives falls below what would be expected of a competent and careful driver.

The clear difference between this offence and an offence of causing death by dangerous driving is the standard of driving. For causing death by dangerous driving, the standard of driving must fall far below what would be expected of a competent and careful driver; whereas for this offence the standard of driving must merely fall below what would be expected of a competent and careful driver.

Although also covered by section 2B of the RTA 1988, the offence of causing death by inconsiderate driving is a separate offence. In this instance, prosecutors must show that inconvenience has been caused to other persons in order to prove this offence. Section 3ZA(4) of the RTA 1988 defines inconsiderate driving and states that a person is to be regarded as driving without reasonable consideration for other persons only if those persons are inconvenienced by his driving. Again the standard of driving must fall below what would be expected of a competent and careful driver. See the section entitled Inconsiderate driving for further information.

The offence can be tried either in a magistrates' court or in the Crown Court. The maximum penalty for the offence on indictment is five years' imprisonment with a mandatory minimum period of disqualification of twelve months (or 3 -11 points where special reasons are found not to disqualify).

The examples given in this guidance to illustrate careless and inconsiderate driving also apply to this offence. See examples set out in the Careless Driving/Driving without reasonable consideration sections.

In either offence whilst the driving does not have to be the sole cause of death, it does have to be a cause R v Hennigan [1971] 55 Cr App R 262 and R v Barnes [2008] EWCA Crim 2726 See Causing death by dangerous driving elsewhere in this guidance.

Charging Practice

A charge or count on an indictment should not usually contain both offences. Prosecutors should either charge causing death by careless driving or causing death by driving without due consideration to others.

Where drugs or alcohol are involved in the commission of a driving offence, there will be increased culpability and this must be reflected in the appropriate charge if these additional elements can be proved.

In these circumstances, an offence under section 3A of the RTA 1988 (causing death by careless driving when under the influence of drink or drugs) should be charged rather than the section 2B of the RTA 1988 offence.

Allocation (Mode of Trial)

The Allocation (Mode of Trial decision) must be agreed and approved by the CCP/DCCP or other nominated senior decision maker (who will have been nominated for this role by their CCP/DCCP). See the section entitled Allocation (Mode of Trial).

The SGC Definitive Guideline sets out the starting points for the either way offences together with typical aggravating and mitigating factors.

Examples of aggravating factors specific to this offence include:

• Other offences committed at the same time;
• Previous convictions for motoring offences, particularly those that relate to the manner of driving;
• Causing the death of more than one person;
• Serious injury caused to others, in addition to any death caused;
• Irresponsible behaviour (failing to stop or falsely blaming a victim for the collision).

Examples of mitigating factors include:

• Serious injury to the suspect as a result of the collision. However, the severity of any injuries should not have any influence on the decision to charge and the general principles set out in the Code should be applied;
• If the deceased was a close friend or relative of the driver;
• The actions of the victim or a third party contributed to the commission of the offence;
• The driving was in response to a proven and genuine emergency which did not provide a defence;
• The lack of driving experience of the offender contributed significantly to the likelihood of the collision and/or death;
• Personal mitigation such as a good driving record, conduct after the offence (e.g. providing assistance at the scene or showing remorse).

Acceptance of pleas

With charges of causing death by careless/inconsiderate driving, it will not normally be appropriate to accept a plea to an offence of careless or inconsiderate driving.

Causing death by careless driving when under the influence of drink or drugs

The offence of causing death by careless driving when under the influence of drink or drugs under section 3A of the RTA 1988 is defined as being committed when a mechanically propelled motor vehicle is driven on a road or other public place and:

• the driving has caused the death of another person;
• the driving was without due care and attention or without reasonable consideration for other road users; and
• the driver is either unfit through drink or drugs, or the alcohol concentration is over the prescribed limited, or there has been a failure to provide a specimen in pursuance of the RTA 1988.

The suspect's driving must have been a cause of death. See the section on causing death by dangerous driving - R v Hennigan [1971] 55 Cr App R 262 and R v Barnes [2008] EWCA Crim 2726

The examples given in relation to driving without due care and attention (careless driving) also apply to this offence. See examples listed under the Careless driving section.

The offence is triable only on indictment and carries a maximum penalty of 14 years' imprisonment and/or an unlimited fine.

The court must disqualify the driver from driving for at least 2 years (3 years if there is a relevant previous conviction), unless special reasons are found for not disqualifying (in which case it must endorse the driver's licence with 3 - 11 penalty points, again, unless there are special reasons not to do so). An extended retest is also mandatory.

Charging Practice

Proper procedures must be adopted and applied in the requesting and/or obtaining of any sample of breath, blood or urine. In cases where the procedures are flawed, there is a risk that the evidence may be excluded. R v Coe [2009] EWCA Crim 1452

Where possible, careful consideration must be given to whether the remaining evidence will support an alternative allegation of causing death by careless driving while unfit to drive through drink/drugs, in which case, evidence other than that from an intoximeter machine can be relied upon to demonstrate the defendant's unfitness to drive.

It is not necessary to add a further charge relating to drink/driving when the defendant is charged with causing death by careless driving when under the influence of drink/drugs, because a guilty verdict to the relevant drink/drive offence can be returned by the jury under the statutory provisions.

This is also true of the offence of causing death by careless or inconsiderate driving. See the section on Alternative verdicts.

There may be rare occasions where the only issue to be decided is the degree to which the driving fell below the required standard and there is a genuine triable factual issue between the prosecution and the defence. As section 3A of the RTA 1988 (causing death by careless driving when under the influence of drink/drugs) is not an available alternative verdict to section 1 of the RTA 1988 (causing death by dangerous driving), it may be necessary to put both counts on the indictment to give effect to the ability of a jury to reach a verdict.

Such situations will be rare and must be capable of justification, especially since section 2B RTA of the 1988 (causing death by careless driving) is a statutory alternative verdict to section 1 of the RTA 1988 (causing death by dangerous driving). See the section on Alternative verdicts.

Consumption of alcohol or drugs

Assessing the relevance of the consumption of alcohol or drugs is a difficult area. In R v McBride (James) (1961) 45 Cr. App. R. 262, two principles were set out in relation to alcohol consumption:

• the mere fact that the driver has consumed alcohol is not of itself relevant to or admissible on the question of whether his driving is careless or dangerous. For such evidence to be admissible, it must tend to show that the amount of alcohol taken was such as would adversely affect a reasonable driver or alternatively that the driver was in fact adversely affected; and
• the court retains an overriding discretion to exclude such evidence if its prejudicial effect outweighs its probative value.

The principles were applied in R v Woodward (Terence) [1995] 1 WLR 375 (CA).

A similar approach should be followed with drugs.

Relationship between section 1 and section 3A of the RTA 1988

Offences under section 1 of the RTA 1988 (causing death by dangerous driving) and section 3A of the RTA 1988 (causing death by careless driving when under the influence of drink/drugs) carry the same maximum penalty, so the choice of either charge will not inhibit the court's sentencing powers.

The courts have made it clear that for sentencing purposes the two offences are to be regarded on an equal basis (Att. Gen's Reference (No.39 of 1993); R v Brown [1994] Crim LR 337; R v Locke [1994] Crim LR 338) although the SGC Definitive Guideline gives a greater range of sentences for section 3A of the RTA offences, depending upon the amount of alcohol or drugs consumed.

The consumption of alcohol is an aggravating feature within the definition of section 3A. The consumption of alcohol is not part of the definition of section 1 but may be treated as an aggravating feature in appropriate cases. See the SGC Definitive Guideline.

Where the offence of causing death by dangerous driving (section 1 of the RTA 1988) can be proved, it should be charged.

However prosecutors may, on occasion, make the decision to charge both section 1 and section 3A offences in the alternative. This will usually be when the manner of the driving is on the borderline between careless and dangerous. Where this is the case, a plea may be offered to either one of the charges. Prosecutors are reminded that they must adhere to the Attorney General's Guidelines on the Acceptance of Pleas and the Prosecutor's Role in the Sentencing exercise when considering accepting a plea in this circumstance. However, given that the courts view both section 1 and section 3A offences on a similar basis for sentencing, any plea accepted will enable the court to impose a sentence that reflects the full criminality of the offence.

Causing death by driving while unlicensed, disqualified or uninsured

The offence of causing death by driving while unlicensed, disqualified or uninsured under section 3ZB of the RTA 1988 is committed when the suspect causes the death of another person by driving a motor vehicle on a road and, at the time of driving, one of the following offences is being committed:

• section 87(1) of the RTA 1988 (driving otherwise than in accordance with a licence);
• section 103(1)(b) of the RTA 1988 (driving while disqualified); or
• section 143 of the RTA 1988 (using motor vehicle while uninsured or unsecured against third party risks).

It is an offence triable either way with a maximum sentence of two years' imprisonment and a minimum disqualification of 12 months.

Following the judgment of the Surpreme Court in the case of R v Hughes [2013] UKSC 56 the standard of driving does have some relevance. The Supreme Court held (at paragraph 36) that there has to be "some act or omission in the control of the car, which involves some element of fault, whether amounting to careless or inconsiderate driving or not, and which contributes in some more than minimal way to the death of an individual." The word "causing" involves more than simply placing a car on a road.

Charging Practice

In the normal course of events, where there is sufficient evidence under section 3ZB of the RTA 1988 (causing death by driving while unlicensed, disqualified or uninsured), a prosecution for these offences should follow. Any consideration of culpability is for the court when deciding whether the offence is made out. However, given the judgment of the Supreme Court in R v Hughes, there has to be some element of causation arising from the driving of the accused (see previous section). It can not be simply that the accused had not obtained the appropriate documents, even if, as will usually be the case, there was some level of culpability in not having those documents.

Where there is clear evidence that the driving fell below the required standard and was a cause of death, the appropriate offence incorporating dangerous or careless driving should also be charged.

Prosecutors should set out each limb of the offence in separate charges or counts on an indictment as a charge/count alleging multiple aspects of the offence may be deemed bad for duplicity. It is suggested here that section 3ZB creates three separate offences.

Prosecutors should note that offences under section 3ZB of the RTA 1988 (causing death by driving while unlicensed, disqualified or uninsured) can only be committed on a road. Contrast this with section 143 of the RTA 1988 (using motor vehicle while uninsured) which can be committed on a road or other public place.

Similarly, for causing death by driving while unlicensed, disqualified etc a person must be driving a motor vehicle, whereas for using a motor vehicle while uninsured a person may also be using a motor vehicle Elliott v Grey [1959] 3 W.L.R. 956 a vehicle is in use on the road even when it is stationary and unattended.

Causation

In R v Hughes (see above), the Supreme Court clarified the position re causation. The Court concluded that Parliament could not have intended a double strict liability offence which, by removing the cause element with regard to the driving, it would de facto have created. It was accepted that when road traffic collisions occur, there are often a number of contributory factors, but for the section 3ZB offence the accused's driving must have some link to the collision, even if this is less than what would be required in an inconsiderate driving/due care case.

The Supreme Court gave the notional examples of a driver driving safely and well at 34mph in a 30mph limit or at 68mph in a 60mph limit as circumstances where the driving was at fault but not necessarily so far below the required standard so as to amount to careless driving. Driving with an underinflated tyre or one which had fallen below the prescribed tread limit - something which could have been discovered by checking the tyre - was another example of a situation where the section 3ZB offence might arise.

The 'but for' principle with regard to the fact that the car was on the road illegally was dismissed, as it was decided that without any causation linked to the driving, the outcome would be disproportionate. It was felt that the accused would not be being punished for what they had done wrong, but rather for something much more serious.

Allocation (Mode of Trial)

The (Allocation) Mode of Trial decision must be agreed and approved by the CCP/DCCP or other nominated senior decision maker (who will have been nominated for this role by their CCP/DCCP). See the section entitled Allocation (Mode of Trial).

The SGC Definitive Guideline sets out the starting points for the either way offences together with typical aggravating and mitigating factors.

Examples of aggravating factors specific to this offence include:

• Previous convictions for motoring offences, either involving the manner of driving or involving driving while disqualified, unlicensed or uninsured;
• Causing the death of more than one person;
• Serious injury caused to others, in addition to any death caused;
• Irresponsible behaviour (failing to stop or falsely claiming that someone else was driving).

Examples of mitigating factors include:

• The decision to drive was brought about by a proven and genuine emergency falling short of a defence;
• Suspect believed he or she was insured or licensed to drive;
• Serious injury to the suspect as a result of the collision. However, the severity of any injuries should not have any influence on the decision to charge and the general principles set out in the Code should be applied;
• The deceased was a close friend or relative of the driver;
• Personal mitigation such as a good driving record, conduct after the offence (providing assistance at the scene, showing remorse).

Acceptance of Pleas

With a charges under section 3ZB (causing death by driving while disqualified, uninsured etc), it will not normally be appropriate to accept a plea to an offence of driving otherwise than in accordance with a licence and/or while disqualified and/or uninsured. Where there are multiple charges/counts on an indictment to reflect the different limbs of the offence, (for example where a defendant is facing one charge/count of causing death by driving while unlicensed and another charge/count of causing death while uninsured) it may be appropriate to accept a plea to one of those offences.

This will only apply in cases where there are no charges/counts of causing death by dangerous/careless driving, causing death by careless driving while under the influence of drink/drugs or any other offence where the driving fell below the required standard and was a cause of death.

Wanton and Furious Driving

The offence of wanton and furious driving under section 35 of the Offences Against the Person Act 1861 is committed when bodily harm (i.e. injury) is caused to any person as a result of the manner of driving of a suspect and is not limited to motor vehicles but covers any kind of vehicle or carriage including bicycles.

It is an offence triable only on indictment (except when committed by a youth).

The offence carries a maximum penalty of 2 years' imprisonment and/or an unlimited fine. Penalty points and discretionary disqualification can be imposed by the courts under section 28 of the Road Safety Act 2006.

The offence can only be committed if the driver has a degree of subjective recklessness so far as the foreseeabilty of causing injury is concerned. In other words, he or she must appreciate that harm was possible or probable as a result of the manner of driving: see R v Okosi [1996] CLR 666.

Charging Practice

Prosecutors should only prosecute this offence when it is not possible to prosecute for an offence under the RTA 1988, for example:

• when the driving was not on a road or other public place;
• when the vehicle used was not a mechanically propelled vehicle (such as a bicycle or horse drawn vehicle);
• when a Notice of Intended Prosecution has not been given (unless such a course might be regarded by the courts as amounting to an abuse of process).

When a vehicle has been deliberately used as a weapon and has caused injury prosecutors should normally prosecute for the offence of dangerous driving or a specific assault under other provisions in the Offences Against the Person Act 1861, subject to there being sufficient evidence to provide a realistic prospect of conviction, for one of those offences.

Causing serious injury by dangerous driving

Section 143 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 created an offence of causing serious injury by dangerous driving by amending the RTA 1988 and inserting a new section 1A. This amendment came into force on 3 December 2012.
The offence is committed when the manner of the defendant's driving is dangerous and results in another person suffering a serious physical injury.
Under Section 1A(2) of the RTA 1988 dangerous driving has the same meaning as set out in Section 1 of the RTA 1988 and "serious injury" is defined as "... physical harm which amounts to grievous bodily harm for the purposes of the Offences Against the Person Act 1861."

The offence is an either way offence carrying a level 5 fine and/or 6 months' custody in the magistrates' court with a mandatory disqualification period of at least 2 years (unless special reasons are found not to disqualify) and endorsement. An extended retest is also mandatory.

In the Crown Court, the maximum penalty is 5 years' imprisonment and/or a fine with a mandatory 2 year minimum period of disqualification (unless special reasons are found not to disqualify) and endorsement. An extended retest is also mandatory.

Charging Practice

The charge should only be used in cases where the level of injury is most serious and has occurred as a result of an incident involving a mechanically propelled vehicle being driven on a road or other public place.

Whilst previously, offences resulting in serious injury which occurred as a result of a driving offence could be charged under section 20 or section 35 of the Offences Against the Person Act 1861 (OAPA 1861), Parliament has decided that a more focused approach which targets offences with this specific set of circumstances is more appropriate.

In addition, Parliament has responded to road safety campaign groups and victims and their representatives who have called for the gap in sentences between the current 2 year maximum for dangerous driving and the 14 year maximum for causing death by dangerous driving to be addressed. The 5 years' imprisonment maximum for this offence addresses that concern.

Where a person is found not guilty of manslaughter in England and Wales, they may instead be convicted of the offence of causing serious injury by dangerous driving.

Where a person is found not guilty of this offence they may be convicted of dangerous driving (section 2 of the RTA 1988) or careless, or inconsiderate driving (section 3 of the RTA 1988) in the alternative. See the section on Alternative verdicts.

Injury that falls short of serious in cases of Dangerous Driving

There may be cases where the injuries are such that they do not evidentially satisfy the offence under section 1A RTA 1988 causing serious injury by dangerous driving. In these cases it may be appropriate to consider an additional assault charge of section 47, applying the CPS charging standards. The prosecution must be able to prove under section 47 that the defendant subjectively foresaw that a person would be subjected to unlawful force, however slight, and that the defendant took the risk (alternatively, that the defendant foresaw the possibility that a person would apprehend immediate and unlawful violence and took the risk). If the evidential criteria are satisfied for the dangerous driving then it will often be the case that the mens rea will be made out for a section 47 assault.

It is to be noted that there is nothing wrong in principle in charging an assualt with a driving offence, R v Bain [2005] EWCA Crim 7. However it is wrong to impose consecutive sentences.

Injury and Driving without Due Care and Attention

There is no similar legislative provision for the prevalent situation where the victim sustains an injury and the driving does not meet the evidential criteria of Dangerous driving. In some cases it may be appropriate to consider an additional assault charge. This may offer more options in sentencing. In considering any ancillary assault charge, the level of seriousness of the Due Care would have to be one that would ordinarily fit within the level 1 bracket within the sentencing guidelines. However, this should not be too prescriptive and each case will have to be considered on its own merits, considering all the evidence.

Depending on the level of seriousness of the injury (in accordance with the charging standard), prosecutors will consider offences contrary to section 47 or section 20.

For the section 20 offence, the Prosecution must prove that either the defendant intended or actually foresaw, that the act might cause some injury, albeit it may be of a more minor nature than the actual one sustained R v Savage; DPP v Parmenter [1992] 1 AC 669. The driver must have held that knowledge, but it is not necessary to prove that the identity of that person was someone that the driver foresaw.

For the section 47 offence, the prosecution must prove that the defendant subjectively foresaw that a person would be subjected to unlawful force, however slight, and that the defendant took the risk (alternatively, that the defendant foresaw the pssibility that a person would apprehend immediate and unlawful violence and took the risk).

It would be likely that if a section 18 was considered then the intent would already have been within the Dangerous driving bracket, so the specific charges of serious injury and Dangerous driving would be appropriate under section 1A Road Traffic Act 1988.

Dangerous Driving

The offence of dangerous driving under section 2 of the RTA 1988 is committed when a person's standard of driving falls far below what would be expected of a competent and careful driver and it would be obvious to a competent and careful driver that driving in that way would be dangerous.

Dangerous driving is an either way offence carrying a level 5 fine and/or 6 months' custody in the magistrates' court.

In the Crown Court, the maximum penalty is 2 years' imprisonment and/or an unlimited fine.

Wherever the case is dealt with, the court must disqualify the driver from driving for at least a year and order an extended retest (section 36 of the Road Traffic Offenders Act 1988). Where "special reasons" are found for not disqualifying the court must endorse the driver's licence with 3-11 penalty points unless there are, again, "special reasons" for not doing so.

Prosecutors should note the following relevant factors:

• Both parts of the definition must be satisfied for the driving to be "dangerous" within the meaning of the Act - Section 2A(1) of the RTA 1988.
• There is no statutory definition of what is meant by "far below" but "dangerous" must refer to danger of personal injury or of serious damage to property - Section 2A(3) of the RTA 1988.
• Section 2A(2) of the RTA 1988 provides that a person is to be regarded as driving dangerously if it would be obvious to a competent and careful driver that driving the vehicle in its current state would be dangerous.When considering the state of the vehicle, regard may be had to anything carried by of attached to the vehicle - Section 2A(4) of the RTA 1988.
• Skill (or indeed lack of skill) of a driver is an irrelevant circumstance when considering whether the driving is dangerous. R v Bannister [2009] EWCA Crim 1571

Charging Practice

Dangerous driving includes situations where the driver has of his or her own free will adopted a particular way of driving, and also where there is a substantial error of judgement, that, even if only for a short time, amounts to driving falling far below the required standard. If the driving that caused the danger was taken as a deliberate decision, this would be an aggravating feature of the offence.

It is important to remember that the manner of the driving must be seen in the context of the surrounding circumstances in which the driving took place (for example amount of traffic, visibility, weather conditions, excess speed etc.) and these unique factors will be relevant in reaching an appropriate charging decision in each case.

The test for "dangerousness" is an objective one: persistent disregard of, say, traffic directions (be they "stop", "give way" or traffic lights) may be evidence that the manner of the driving has fallen far below the standard required, thus making a charge of dangerous driving appropriate.

The following examples of circumstances that are likely to be characterised as dangerous driving are derived from decided cases and the SGC Definitive Guideline:

• 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 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:
  • Att.Gens' Reference No 32 of 2001 (2002) 1 Cr.App.R. (S) 121 (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);
  • Att.Gen's Reference No 4 of 2000 2000]) EWCA Crim 780 (offender unintentionally pressed the accelerator instead of the brake);
  • Att.Gen's Reference No.76 of 2002 (Hodges) (2003) 1 Cr.App.R. (S) 100 (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) "this was a single misjudgement. It was a bad misjudgement but nevertheless a single one" (p.423).

It is not necessary to consider what the driver thought about the possible consequences of his actions: simply whether or not a competent and careful driver would have observed, appreciated and guarded against obvious and material dangers.

In the case of a vehicle in such a state of disrepair as to be dangerous, consideration should be given to whether the vehicle should have been driven at all, as well as to how it was driven in the particular circumstances.

Driving without due care and attention

The offence of driving without due care and attention (careless driving) under section 3 of the RTA 1988 is committed when the defendant's driving falls below the standard expected of a competent and careful driver - section 3ZA(2) of the RTA 1988.

The maximum penalty is a level 5 fine. The court must also either endorse the driver's licence with between 3 and 9 penalty points (unless there are "special reasons" not to do so), or impose disqualification for a fixed period and/or until a driving test has been passed.

In determining what is to be expected of a competent and careful driver, the prosecutor must take into account not only the circumstances of which the driver could be expected to be aware, but also any circumstances shown to have been within the driver's knowledge.

The test of whether the standard of driving has fallen below the required standard is objective. It applies both when the manner of driving in question is deliberate and when it occurs as a result of incompetence, inadvertence or inexperience.

Occasionally, a collision may occur but there is no evidence of any mechanical defect, illness of the driver, or other explanation to account for why the collision happened. In these cases, a charge of careless driving may be appropriate, but prosecutors should exercise caution.

If the evidence is capable of proving how an incident occurred (e.g. a collision), the case can be put on the basis that there is a very strong inference that the defendant was driving below the standard expected of a competent and careful driver.

In the absence of any explanation by the defendant as to the cause of the collision, a court may infer that the offence was committed, but where the defendant does provide an explanation for the collision, however unlikely, you will have to consider whether to proceed.

The civil law doctrine of res ipsa loquitur [the thing speaks for itself] has no direct application to the criminal law. (But see Wilkinson's at para 5.52):

"the fact that res ipsa loquitor has no application to criminal law does not mean that the prosecution have to negative every possible explanation of a defendant before he can be convicted of careless driving where the facts at the scene of an accident are such that, in the absence of any explanation by the defendant, a court can have no alternative but to convict"

See also R v Warwickshire Police Ex p. Manjit Singh Mundi [2001] EWHC Admin 448 (the court held that crossing a central white line without explanation was, in itself, evidence of careless driving).

In some cases, particularly where there has been a collision, the evidence will show that more than one driver was at fault. It will be necessary to establish that there is evidence from an independent source against any driver who is to be charged, but the possibility of charging more than one driver remains if both have failed to comply with the statutory standard.

There are decided cases that provide some guidance as to the driving that courts will regard as careless or inconsiderate and the following examples are typical of what we are likely to regard as careless driving:

• 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 (note that this is an offence itself under Regulation 110 of the Road Vehicles (Construction and Use) (Amendment) (No. 4) Regulations 2003). If this is the only relevant aspect of the case it is more appropriate to use the specific offence;
• selecting and lighting a cigarette or similar when the driver was avoidably distracted by that use.

These examples are merely indicative of what can amount to careless driving. In addition, prosecutors should note that some of these examples also fall within the examples of dangerous driving.

Charging Practice

Prosecutors must note that the same factors must be taken into consideration as those outlined for the charging practice in respect of dangerous driving offences under section 2 of the RTA 1988. The manner of the driving must be seen in the context of the surrounding circumstances in which they took place (for example; amount of traffic, visibility, weather conditions, excess speed etc). The circumstances in every case will be unique and must be considered in each case before reaching a decision as to the appropriate charge.

It is necessary to put the facts into context, decide the degree to which the standard of driving fell below that required, and consider whether the particular facts of the case warrant a charge under section 3 of the RTA 1988 (careless driving) or under section 2 of the RTA 1988 (dangerous driving). See the section on Commission of a number of offences for additional guidance.

Prosecutors should also consider whether a driver has failed to observe a provision of the Highway Code. This does not itself render that person liable to criminal proceedings, but a failure, particularly a serious one, may constitute evidence of careless or even dangerous driving; see section 38(7) of the RTA 1988.

Driving without reasonable consideration

The offence of driving without reasonable consideration under section 3 of the RTA 1988 is committed only when other persons are inconvenienced by the manner of the defendant's driving, see section 3ZA(4) RTA 1988.

The maximum penalty is a level 5 fine. The court must also either endorse the driver's licence with between 3 and 9 penalty points (unless there are "special reasons" not to do so), or impose disqualification for a fixed period and/or until a driving test has been passed. The penalty is the same as for driving without due care and attention.

A driving without due consideration charge is more appropriate where the inconvenience is aimed at and suffered by other road users.

Note the essential difference between the two offences under section 3 of the RTA 1988 is that in cases of careless driving the prosecution need not show that any other person was inconvenienced. In cases of inconsiderate driving, there must be evidence that some other user of the road or public place was actually inconvenienced; Dilks v Bowman-Shaw [1981] RTR 4 DC.

Charging Practice

This offence is appropriate when the driving amounts to a clear act of incompetence, selfishness, impatience or aggressiveness in addition to some other inconvenience to road users. The following examples are typical of actions likely to be regarded as inconsiderate driving:

• flashing of lights to force other drivers in front to give way;
• misuse of any lane (including cycling lanes) to avoid queuing or gain some other advantage over other drivers;
• unnecessarily remaining in an overtaking lane;
• unnecessarily slow driving or braking without good cause;
• driving with un-dipped headlights which dazzle oncoming drivers, cyclists or pedestrians;
• driving through a puddle causing pedestrians to be splashed;
• driving a bus in such a way as to alarm passengers.

Prosecutors must decide which version of the offence to charge as the section creates two separate offences and there is no alternative verdict provision in the magistrates'/youth court: R v Surrey Justices, ex parte Witherick [1932] 1 K.B. 340.

Alternative verdicts

Section 24 of the Road Traffic Offenders Act 1988 (RTOA 1988) allows for the return of alternative verdicts where the allegations in the indictment amount to, or include an allegation of an offence specified in the table set out in that section.

The section applies to magistrates' courts as well as to juries, provided the magistrates court has jurisdiction to try the "Offence charged". The alternatives are set out in the table below. Section 33 of the Road Safety Act 2006 (RSA 2006) is also relevant here. It allows for a jury to return an alternative verdict to a charge of manslaughter. However, prosecutors should note that section 33 of the RSA 2006 has not overturned the decision in the case of R v Seymour [1983] RTR 455 and it remains the case that alternative charges may not be put on the indictment.

Where the accused is charged with an offence under Section 3A of the RTA 1988 he or she may not be convicted as an alternative with any offence of attempting to drive: section 24(2) of the RTOA 1988.