Tim Ridyard, Partner, Advocate and Road Transport Lawyer at Woodfines solicitors, takes a look a recently published consultation intended to tackle careless driving.

Introduction

A recently published, and anticipated, government consultation outlines proposals made by the Department for Transport (DfT) in two areas:

  1. the offence of careless driving, and

  2. the increase in penalty levels for fixed penalty notice (FPN) offences.

This covers all drivers, both private and commercial. However, as commercial drivers spend many hours on the public highway, by the law of averages they may be significantly affected, compared to many private drivers who only drive small mileages.

Furthermore, the impact of fixed penalties for careless driving will be important for commercial drivers, against whose vocational licences action can be taken by the Traffic Commissioner if they incur such endorsements. Instances of careless driving by professional drivers in commercial vehicles are always regarded seriously by courts and traffic commissioners alike. Indeed, the Magistrates’ Courts Sentencing Guidelines used for cases prosecuted by the police specifically refer to poor driving standards as constituting an aggravating feature.

Careless driving: the current situation

There exist two separate offences with identical penalties under the generic heading of “careless driving”: driving without due care and attention, and driving without due consideration for other road users.

It is not currently possible for a FPN to be given to a driver that provides the opportunity to pay the penalty and have the driving licence endorsed as an alternative to Magistrates’ Court proceedings. A prosecution must either follow or not, even if the police may give a driver a verbal warning. It has long been a gripe of police officers that the administrative burden in pursuing drivers by way of court proceedings is disproportionate and unduly cumbersome — in short, a disincentive. The Government’s view is that many drivers who engage in adverse driving conduct avoid sanctions altogether because of this; this poor driving is often towards the lower end of the defending scale, but a failure to intervene creates a poor enforcement culture.

The proposal

The proposal is that in certain limited circumstances the police (not VOSA examiners) would be given the power to offer drivers a FPN or remedial training; if the driver accepted this (ie paid the penalty and surrendered the licence for endorsement) then prosecution would be avoided. There would be a power to endorse a licence with a maximum of no more than three penalty points. (The power available to a court for any offence of careless driving is a fine plus either penalty points on a scale of three to nine points or disqualification, but not both.)

It is not envisaged that FPNs would be issued to drivers or remedial training offered for more serious categories of careless driving, which would continue to be heard in court by way of a Magistrates’ Court prosecution; careless driving is a “summary only” offence, which means it can only be heard in a Magistrates’ Court, except on appeal to the Crown Court.

FPNs for careless driving would also be restricted to situations witnessed by a police officer, such incidents also not including any victims, collisions or complaints from a member of the public.

The consultation gives examples of the type of adverse driving behaviour which might be the subject of FPNs.

  • Tail-gating, ie driving too close to a vehicle in front.

  • Using the wrong lane on a roundabout.

  • Ignoring lane closure signs and pushing into an orderly queue.

  • Lane discipline, such as “hogging the middle lane”.

  • Inappropriate speed.

  • Wheel spins.

Remedial training would not be offered in all instances. It would not be contemplated where other offences had to be dealt with, such as a lack of insurance, previous attendance on driver training, and where driving had been aggressive and deliberately careless.

It would appear, therefore, that this proposal would very much centre on the police being able to deal with careless driving incidents on the basis of their own eye-witness evidence. In some ways it might be said that this is a departure from other offences where fixed penalties are imposed.

Fixed penalties are normally reserved for truly “strict liability offences” such as speeding, defective tyres, exceeding drivers’ hours, overloading, etc.

It might be said that a determination of whether driving was careless or not would be subjective, ie the opinion of a police officer. It is likely that in some cases drivers would decline a fixed penalty and prefer a court to determine guilt.

It is also, of course, undoubtedly the case that drivers who do not feel their driving is careless will nevertheless be discouraged from contesting the case. Despite the undoubted “success” of the fixed penalty scheme (which now covers countless offences) in terms of easing administrative burden, consistency of penalty and large income streams (eg in the road transport sector), drivers have no financial incentive to contest cases where they have a legitimate and reasonable defence. Even when the standard amount of a fixed penalty increases, the sum will remain relatively low for an offence such as this. What driver would contest a matter in court if, by losing the case, he or she ran the risk of paying prosecution costs, a far higher fine, and also faced the risk of the court imposing a greater number of penalty points than would have been imposed with the fixed penalty?

Fixed penalty increases

While the most familiar fixed penalty relates to speeding (£60 plus three penalty points) the road transport sector saw a huge increase in the number of offences covered by this scheme when graduated fixed penalties were introduced some years ago. The net result of those changes is that penalties are currently now set within the range of £30 to £200. Non-endorsable offences are normally set at £30, endorsable offences with penalty points (in law no more than three penalty points can be imposed for any offence) are set at £60, the offence of driving without insurance is set at £200 (with six penalty points). Graduated fixed penalties are imposed for drivers’ hours offences and for excess weight at £60, £120 or £200, according to the seriousness of the offence.

The main proposal is that fixed penalty offences currently set at £60 should increase by 50% to £90. The proposal would include seat belt offences. The Government regards this as necessary to bring levels in line with inflation and also to align offences with non-road traffic offences of a similar seriousness. For example, it cites offences of disorder as similar, with such offences already being set at £80.

The proposal for non-endorsable offences currently set at £30 is to increase them to £45, again by 50%.

The current fixed penalty of £200 and six penalty points (driving without insurance) would be increased by 50% to £300. This underlines the impact on insurance policies caused by uninsured driving, and that the insurance industry estimates uninsured and untraced drivers as being five times more likely to be involved in accidents and contributing to 160 deaths and 23,000 injuries per year.

Graduated fixed penalties

The proposal is to amend graduated fixed penalty amounts to align them with increased fixed penalties, ie by 50%. It would appear, therefore, that graduated fixed penalties for drivers’ hours and overloading offences will increase to £90, £180 and £300 (from £60, £120 and £200 respectively). This would undoubtedly impact on professional drivers as fixed penalty amounts in the upper range might already be said to represent a significant amount of disposable weekly income. By way of example, failure to ensure production of all drivers’ hours records at the roadside (an arguably frequently mis-interpreted rule by VOSA examiners) leads to the imposition of a £200 fixed penalty, which may represent 40–50% of a commercial driver’s net weekly income. An increase of 50% in fixed penalties might well have a very significant impact for these employees.

Conclusion

The Government intends to implement the above changes as soon as practicably possible following the end of the consultation in September 2012, and certainly by April 2013. It would appear there is no question of the fixed penalty system being watered down or restricted; on the contrary, it appears to be regarded as an effective means of enforcement with a significant income stream, removing more and more offences from the Magistrates’ Court system. Whether large areas of enforcement should be increasingly removed from the scrutiny of courts of law is another matter and continues to be an issue of some concern to some lawyers and members of the judiciary.

Details of the consultation, which closes on 5 September 2012, are available on the DfT website.

Last reviewed 23 August 2012