Road traffic update

There have been few cases on the breathalyser provisions and on the requirements of section 172 RTA 1988 (providing details of drivers caught committing offences on camera) since the previous update (2006) 150 SJ 20 660, 26.05.06. However, there have been recent important cases on sentencing where death has been caused, on the appropriate test to be applied to determine whether driving is 'dangerous' and on the evidential requirements of speeding cases. In addition, new legislation has increased the overall penalty for using a mobile phone when driving and the majority of drivers convicted by courts of offences will now be required to pay a surcharge of £15 to a victim's fund.

Dangerous driving: personal skills of driver

This case was concerned with a police officer who, whilst on duty, drove an unmarked police car at speeds of 148 mph on a motorway, 114 mph on a single carriageway 'A' road and 60 mph in a built-up area. He was charged with dangerous driving. The case came before a District Judge in April 2005 when the defendant was acquitted on the basis that the police officer's specialist skills as a trained driver were relevant to the question of dangerousness applying a subjective test. That acquittal was overturned by the Divisional Court (DPP v Milton [2006] EWHC 242) which stressed that the test under section 2A(1) RTA 1988 was an objective one. The case was remitted for a re-hearing before a different District Judge.

At the re-hearing the defendant was convicted. The District Judge found that the definition of 'dangerous' in section 2A(3) of the Act precluded him from taking into account the exceptional driving ability of the defendant driver who, it was accepted, had been trained to the level of 'Grade 1 Advanced Police Driver'. This time it was the turn of the driver to successfully appeal against the District Judge's decision.

In Milton v Crown Prosecution Service [2007] EWHC 532 (Admin) the Administrative Court reviewed the effect of section 2A(3) RTA 1988.

The section states: 'In subsections (1) and (2) above, 'dangerous' refers to danger either of injury to any person or of serious damage to property; and in determining for the purposes of those subsections what would be expected of, or obvious to, a competent and careful driver in a particular case, regard shall be had not only to the circumstances of which he could be expected to be aware, but also to any circumstances shown to have been within the knowledge of the accused.'

These latter words were interpreted by the District Judge to mean that the test to be applied in determining whether the driving in the instant case was 'dangerous' was an objective one in absolute terms and thus the specialist advanced driver training skills of the appellant were not matters to be taken into account.

The Administrative Court disagreed with this approach. Whilst accepting that subjective considerations such as what the accused driver thought about the situation (whether on the road or relating to his journey or his personal circumstances) are irrelevant, the court took the view that the fact-finder must have regard to any circumstance relevant to the issue of dangerousness which was capable of being established as being within the knowledge of the accused. Section 2A(3) should not be interpreted to mean that only circumstances adverse to the defendant driver should be taken into account. Thus consumption of alcohol, liability to a hypoglycaemic attack, driving without a break for an excessive period of time, exhaustion or somnolence must all be taken into account. Similarly, matters favourable to the driver should also be taken into account '“ responding to an emergency, sudden or unexpected brake failure or, as in this case, the particular skill of the driver '“ all are matters capable of being relevant to the assessment of dangerousness.

However, the Court warned against any opening of the floodgates to allow driving skills (or lack of them) to be argued in all cases. 'It will, in my view, only be the extremes of 'special skill' and 'almost complete lack of experience' that will be such as could affect the mind of the decision-maker,' per Lady Justice Smith.

The case against the unfortunate PC Milton has now been referred back to the magistrates court for a third trial.

Driving offences causing death

The Court of Appeal in R v Richardson [2006] EWCA Crim 3186 has taken the opportunity to revise the guidelines applicable in cases of bad driving where a death occurs in light of the increase in the maximum sentence applicable to such offences brought about by implementation of the relevant parts of CJA 2003.

The Court has taken the view that the increase to the maximum penalty was to address cases of the most serious gravity so as to permit the sentence to be greater than before. However, in order to reflect the gravity and seriousness of offences below the highest level of culpability, the Court has introduced some corresponding increase in sentences at the lower end of the scale.

The aggravating and mitigating factors for such offences as identified by the Sentencing Advisory Panel and adopted by the Court of Appeal in R v Cooksley [2004] 1 Cr. App. R. (S) 1 continue to be the basis upon which sentences are to be fixed. Thereafter, however, the four starting points for the different levels of culpability are re-assessed as follows:

• no aggravating circumstances '“ 12-18 months becomes 12 months to two years;
• intermediate culpability '“ two to three years becomes two to four years;
• higher culpability '“ four to five years becomes four to seven years; and
• most serious culpability '“ six years or more becomes seven to fourteen years.

The Court went on to consider the basic distinctions between the offences of causing death by dangerous driving and that of causing death by careless driving whilst under the influence of drink or drugs. R v Cooksley had decided that the two were to be treated equally for sentencing purposes. Under the new guidelines, the consumption of alcohol provides the most significant aggravating element of the offence of causing death by careless driving. If there are no others, it will normally fall within the category of offences of causing death by dangerous driving which lack any additional aggravating features. As the consumption of alcohol increases, so does the relative culpability '“ and, by the time the consumption is at or about double the legal limit, the case falls within the intermediate category.

More pain for errant drivers?

In 2004, the government passed legislation which would provide for courts to impose a surcharge on offenders convicted of offences in addition to any financial penalty imposed at the time. The purpose of the surcharge would be to provide money to fund criminal justice initiatives in both the public and voluntary sector. While the legislation was passed in 2004 and became part of the Domestic Violence, Crime and Victims Act, it was not immediately implemented.

However, two Statutory Instruments have recently been laid before Parliament: one of which brings the legislation into force from 1 April 2007, while the other specifies the types of case to which a surcharge will apply and the amount of that surcharge. Surcharging will only apply in relation to offences committed on or after 1 April 2007.

The legislation (which becomes a part of CJA 2003) requires courts to order an offender to pay a surcharge of £15 when dealing with him for one or more offences. However, where the penalty imposed is neither a fine plus costs nor a fine plus compensation plus costs then there is no need to impose the surcharge.

An order for absolute discharge or under the Mental Health Act 1983 does not count as a matter 'dealt with' for these purposes and again, no surcharge is necessary.

Practitioners will be aware that when fixing the amount of a fine, sentencers are required to take into account both the seriousness of the offence and the means of the offender to pay a financial penalty. The Act is specifically amended so that a court cannot reduce the amount of a fine to take into account the fact that a surcharge is to be paid unless the court comes to the conclusion that the offender's means are such that he cannot pay both the fine and the surcharge. In such a case it would be permissible to reduce the amount of the fine to reflect the amount of the surcharge.

Using mobile phones: new penalties

Section 26 of the Road Safety Act 2006 came into force on 27 February 2007 (Road Safety Act Commencement No. 1 Order 2007/237). The section inserts a new section 41D into the Road Traffic Act 1988, creating an endorseable offence in respect of a person who contravenes or fails to comply with a construction and use requirement:

• as to not driving a vehicle in a position which does not give proper control or a full view of the road and traffic ahead; and
• as to not driving or supervising the driving of a motor vehicle while using a handheld mobile telephone or other handheld interactive communication device.

The offence is punishable at level 3 (maximum £1,000) or level 4 (£2,500) where the vehicle being driven is a bus/coach or goods vehicle. The amount of any fixed penalty increases from £30 to £60. Now that the offence has become an endorseable one, there should be an increase in the number of such cases being judicially considered by the courts '“ especially in relating to issues such as what constitutes 'driving' and what constitutes 'using'.

Speed cameras: continuity and service of evidence

The recent case of Griffiths v DPP [2007] EWHC 619 (Admin) dealt with a number of technical points surrounding a speed camera prosecution and the service of evidence in such cases.

The Divisional Court held that a print developed from a chemical film in a Gatsometer camera was a record produced by the device within the meaning of section 20(1) Road Traffic Offenders Act 1988 and therefore, admissible even where it was not directly produced by the device. The record produced by the device is the negative image on the film. It contains not only the image of the vehicle but all the relevant data including the code number of the device (from which its position can be identified), the time at which the camera operated and the speed of the vehicle as calculated by the device.

The record produced directly by the speed camera, the film, is not readable until it has been developed. It is then readable through a viewer or it can be printed onto paper. The photographic print is then a record produced by the device notwithstanding the need for development and printing processes. The print produced from the film thus satisfied the section 20 requirement of a record produced by a prescribed device. As such, there is no need for evidence of continuity.

'Fit person' to hold PCV driving licence

It is unusual for courts to be asked to deal with an appeal against the decision of a Traffic Commissioner to revoke a person's passenger carrying vehicle (PCV) driving licence '“ and even more unusual for such a case to find its way to the Divisional Court. The decision in R (Stace) v Milton Keynes Magistrates' Court (2007) 171 JP 1 thus provides a useful reminder of the appeal provisions and of the criteria to be applied in determining whether a person is 'fit' to hold such a licence.

The Court determined that in deciding the question of 'fitness' the court should have had regard to all the information available to it and not just the fact of the defendant's convictions. This would include, in the defendant's favour, a positive response to a community sentence and his behaviour since conviction. Against this would be weighed the gravity of his conduct leading to the convictions, the risk of any repetition of violence and the way in which the claimant's propensity for violence impinged upon his abilities as a driver.