When Driving Becomes Dangerous
Once again, there have been numerous news stories this week about deaths and serious injuries caused by bad driving.
There is a specific offence of dangerous driving, which carries a maximum prison sentence of 2 years. However, if that driving is a cause of someone’s death, the maximum sentence rises to one of 14 years. Since 2012, if the dangerous driving results in serious injury, then the maximum sentence is one of 5 years.
In each case there are minimum disqualification periods, very lengthy actual disqualifications and insurance premiums which will be significant for many years to come; some drivers may not even be able to secure insurance at all, at any price.
What is dangerous driving?
Dangerous driving is defined by section 2A Road Traffic Act 1988:
“…a person is to be regarded as driving dangerously if (and, subject to subsection (2) below, only if)—
- (a) the way he drives falls far below what would be expected of a competent and careful driver, and
- (b) it would be obvious to a competent and careful driver that driving in that way would be dangerous.
The test is an ‘objective one’. This means that it is not to be judged through the eyes of the actual driver, but through the eyes of a ‘competent and careful driver’. Effectively, therefore, it will be for a magistrate, judge or jury to decide.
The crucial part of the test is that the driving falls ‘far below’ the standard expected, and it is this that on occasion makes advising in these cases such a very skilled task.
In some instances, it will be obvious that the driving falls ‘far below’ the required standard. So, if you drive at 100 mph on the wrong side of the motorway at night without lights, there is no room for debate.
But, what if, believing that you have sufficient sight of the road ahead, you overtake only to hit an oncoming vehicle in the opposite lane. Is that driving ‘far below’ the standard, or it is simply an unfortunate error of judgment, one that could perhaps be properly categorised as careless driving not dangerous?
There is no statutory definition of what is meant by “far below”, but section 2A(3) of the 1988 Act states that “dangerous” must refer to the danger of personal injury or serious damage to property.
We also know from case law that the driver’s particular skill or lack of is not relevant (Bannister  EWCA Crim 1571).
The Crown Prosecution Service regards the following as being examples of dangerous driving, but it must be stressed that ultimately it will be a matter for the court to decide:
- racing or competitive driving;
- failing to have 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  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”.
Some of the examples in the above list may seem surprising, for example where a person unintentionally pressed the accelerator instead of the brake. Again, it is worth stressing that much will depend on what actually happened, with concepts such as ‘…even for only a short time…’ being open to argument.
Similarly, when does ‘…failing to have proper and safe regard…’ (a legal duty anyway) stray over the line from being careless driving to dangerous driving?
And finally, is ‘overtaking which could not have been carried out safely…’ something that is inherently in danger of being judged by hindsight?
In stressful situations, particularly where serious harm has been caused, there is an instinctive reaction to think that the driving error must have been very serious.
What we know of course is that on occasion even the slightest error can result in very serious consequences. It is therefore vital that if you are going to be interviewed by police after an accident that you have legal representation from the outset.
It does not matter if you are arrested or have been asked to go for an interview under caution (a Caution +3 interview), legal advice and assistance at a police station is free of charge, regardless of your financial means.
Accident investigation and reconstruction is now an important consideration in these cases, allowing scientists and engineers to see exactly the cause(s) of an accident and the magnitude of error, often exposing the culpability of others.
Eye-witness testimony is not always reliable and is also often tainted by the result of the driving as opposed to the driving itself.
In some cases, it will be clear-cut, but there may still be room for manoeuvre and a plea to the lesser offence of careless driving may be an option.
How we can assist
Whether facing imprisonment or not, the loss of a driving licence is for many people an incredibly serious penalty in itself, so all steps should be taken to avoid that happening.
Please note that the information contained in this article was correct at the time of writing. There may have been updates to the law since the article was written, which may affect the information and advice given therein.