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Legal changes

More drivers involved in non-fatal collisions to face the prospect of prison sentences

A warning for all businesses where employees drive for work purposes

The Government has this week announced that it will create a new criminal offence of “Causing Serious Injury by Careless Driving”, which would carry the possibility of a custodial sentence. The Government intends to pass legislation in early 2021 that will put these plans, first consulted on in December 2016, into law. The exact details and wording of the legislation have not yet been revealed.

Response to the consultation on driving offences and penalties relating to causing death or serious injury - October 2017

Driving offences and penalties relating to causing death or serious injury - December 2016

Current situation

Currently, drivers who cause serious (but non-fatal) injury can only be charged with either “Causing Serious Injury by Dangerous Driving” or simple “Careless Driving”. The offence of “Causing Serious Injury by Dangerous Driving” currently carries a maximum sentence of 5 years’ imprisonment (and mandatory disqualification), whereas the offence of Careless Driving carries a fine and penalty points (with disqualification being discretionary).

Dangerous Driving is driving which falls far below of what would be expected of a competent and careful driver (where it would be obvious that driving in that way would be dangerous), whereas Careless Driving is that which simply falls below the standard of a competent and careful driver. Careless Driving does not require any conscious risk-taking behaviour – it can be established from as little as a momentary lapse of concentration.

Under the current law, therefore, drivers who cause serious injury, but whose driving is simply Careless, as opposed to Dangerous, do not face the possibility of imprisonment. This also means that the police tend to treat those suspected of Careless driving in a very different way to those suspected of more serious offences, often deciding to interview drivers voluntarily at a later date, rather than arresting them at the roadside.

Serious injury

“Serious injury”, within the meaning of criminal driving legislation, covers a whole range of injuries, and is not restricted to the most serious cases. It is likely to cover the following injuries types of injuries:

  • broken or displaced limbs or bones, including fractured skull, compound fractures, broken cheek bone, jaw, ribs, etc;
  • injury resulting in permanent disability, loss of sensory function or visible disfigurement;
  • injuries which cause substantial loss of blood, usually necessitating a transfusion or result in lengthy treatment or incapacity;
  • serious psychiatric injury; and
  • a number of individually minor injuries which are collectively considered “really serious”.

Such injuries are far from unusual in road traffic collisions, and are almost inevitable in collisions involving pedestrians, cyclists and motorcyclists (and e-scooter riders).

Government plans

In its consultation document in 2016, the Government sought views on whether an offence of “Causing Serious Injury by Careless Driving” should be created, and whether an appropriate maximum sentence for that offence would be 2 or 3 years’ imprisonment.

There was strong public support for the creation of the new offence (90% were in favour) and on Monday 14 September the Justice Secretary, Robert Buckland, announced that the Government intends to bring that offence into law in early 2021.

This week’s announcement has not specifically detailed what maximum sentence that new offence would carry. However, given the Government’s current “tough on crime” mantra, a maximum sentence of any lower than that originally proposed seems unlikely, and indeed 73% of the responses to the 2016 proposals supported a 3-year maximum sentence.

Consequences for businesses

The likely effect is that a significant number of cases which would previously have been charged as simple “Careless Driving” will now be charged under the new offence of “Causing Serious Injury by Careless Driving”, and could therefore result in custodial sentences for drivers. This raises the stakes considerably for drivers who are involved in any collision, as well as for their employers.

Where any collision occurs in which the other person receives medical attention, it would be best to assume that the driver is being treated as a suspect for an offence which carries potential imprisonment, and to act accordingly. The arresting of drivers in such cases, and police interviews in the immediate aftermath of the accident, are likely to become far more common.

Both this, and the increased stakes for the driver, make it even more essential for drivers to have access to expert legal advice immediately after an accident. Businesses will want to help their drivers by having a system in place for those drivers to access legal advice immediately, at any time of day.

Responsible businesses will also want to consider ways of lowering the risk of their drivers being involved in an accident – considering issues such as driver hours and breaks (beyond the minimum legal requirements), the use of hands-free phones whilst driving, and increased driver training and retraining.

Businesses should also be aware that, with the increase in seriousness (and the fact that such cases will now usually have to be heard in the Crown Court) the length and cost of proceedings is likely to increase significantly, as well as the potential for negative media exposure for the business.

Life sentences for top end driving cases causing death

The Government has also announced plans to increase the maximum penalty for both offences of “Causing Death by Dangerous Driving” and “Causing Death by Careless Driving under the Influence of Drink or Drugs” from 14 years’ imprisonment to life imprisonment.

Whilst it is this aspect of the legislation that has grabbed the headlines in the mainstream media, the reality is that, as the vast majority of such sentences do not currently reach near to 14 years’ imprisonment, this will only affect a very small number of the most serious cases. Businesses should be far more concerned by the new “Causing Serious Injury by Careless Driving” offence, which will likely affect large numbers of cases in all businesses up and down the country.

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