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Blackstone's Criminal Practice 2009

Part C

Updates to Part C: Road Traffic Offences


C2 Evidence and Procedure in Road Traffic Cases

C2.7 Admissibility of Records of Secretary of State

The Criminal Procedure (Amendment No. 2) Rules 2008 (SI 2008 No. 3269) amend the CrimPR inter alia so as to substitute part 37 with effect where the court tries a case or the accused pleads guilty from 6 April 2009. The procedure for proving previous convictions is not replicated in the new part 37.

C2.10 Admissibility of Evidence from Prescribed Devices

By virtue of the Road Traffic Offenders (Prescribed Devices) Order 2008 (SI 2008 No. 1332), an additional device measuring odometer pulses between two points is now also a prescribed device.

C2.10a Admissibility of Evidence from Prescribed Devices

The Road Traffic Offenders Act 1988, s. 20 and the Road Traffic Offenders (Prescribed Devices) (No. 2) Order (SI 1992 No. 2843) were considered in Robbie the Pict v DPP (2009) The Times 14 May 2009, in which it was held that a Gatsometer BV Type 36 traffic light camera was an approved device for recording the position of motor vehicles in relation to light signals.

C2.15 Duty to Provide Information

In Duff v CPS [2009] EWHC 675 (Admin), D, having been the driver, had previously responded to a request sent to his wife in accordance with the RTA 1988, s. 172 in her capacity as the registered keeper of the vehicle in question. The Divisional Court held that D's response to that notice did not provide him with a defence to a subsequent failure to respond to a different s. 172 request sent directly to him in his capacity as the driver.


C3 Road Traffic Offences Triable on Indictment

C3.10 Tests for Dangerous Driving

Milton v DPP [2007] 4 All ER 1026 was overruled in Bannister [2009] EWCA Crim 1571, in which the Court of Appeal held that the special skill (or lack of skill) of a driver is an irrelevant circumstance when considering whether a given piece of driving was dangerous within the meaning of the RTA 1988, s. 2A.

As in Milton, this case concerned allegedly dangerous driving by a highly trained Grade 1 advanced police driver. As in Milton, it was argued that the driver's experience and training were relevant factors that should be taken into account in deciding whether his driving was or was not dangerous, in accordance with the guidance given in s. 2A(3). That submission succeeded in Milton, but was rejected in Bannister, where Thomas LJ said:

If the special skill of the driver is taken into account in assessing whether the driving is dangerous, then it must follow inevitably that the standard being applied is that of the driver with special skills and not that of the competent and careful driver, because the standard of the competent and careful driver is being modified. . .
The decisions of this court on taking into account matters such as knowledge of circumstances such as drunkenness or susceptibility to hypoglycaemic attacks are based on a different premise. Such matters do not go to the standard of the competent and careful driver, but are facts relating to the condition of the driver which are as relevant as the driver's knowledge of the unroadworthiness of a car or the conditions of the weather or the road. Those facts can be taken into account without in any way departing from the test of the competent and careful driver- an objective test to be applied by the jury or other decision maker. In contradistinction to that, taking into account the special skill of a driver would be to substitute the test of the ordinary competent and careful driver set out in the statute and in effect to re-write the test Parliament clearly laid down.
. . . It therefore follows that the special skill (or indeed lack of skill) of a driver is an irrelevant circumstance when considering whether the driving is dangerous.

Can this really be correct? Driving which is gravely incompetent and endangers other road users must of course be dangerous within the meaning of s. 2A, even if the driver concerned is highly trained. Bannister may indeed be an example of such driving. But it makes no sense to ignore the skill, training and experience (or inexperience) of a driver when determining whether his driving is (even objectively) dangerous. A police pursuit driver following a stolen vehicle at high speed may for example be driving safely (given his skill and experience) even though the driver of the stolen vehicle is considered to be driving dangerously on account of his speed.

The test set by s. 2A is objective, but that does not require the courts (or the hypothetical competent and careful driver in s. 2A(1)(b)) to be blind to the particular circumstances of the case. Bannister is in that respect an unfortunate and misguided ruling.

C3.17 Causing Death by Dangerous Driving: Sentence

The severity of current sentencing policy in respect of motorists who kill is illustrated by Rosevere [2008] All ER (D) 127 (Aug), in which a 61-year-old driver received a sentence of 30 months' imprisonment after pleading guilty on a charge of causing death by dangerous driving. He ran over a drunken woman who was lying in the carriageway of a poorly lit road, dressed in dark clothing. He did not stop, later claiming that he was suffering from a migraine and had not realised what he had hit, but he had been convicted of causing death by reckless driving in 1990 after hitting a deaf pedestrian who stepped into his path.

The trial judge did not regard this earlier case as a relevant sentencing consideration, saying, 'This is not a case involving excessive speed or of inherently bad driving over any great distance, nor are there any other aggravating features present', but the Court of Appeal disagreed, opining that in view of that earlier conviction the sentence was if anything too lenient.

We now have a sentencing regime that routinely punishes fatal driving offences more severely than either negligent or constructive manslaughter. See Hirst, 'Causing Death by Driving and other Offences: A Question of Balance' [2008] Crim LR 339.

C3.17 Causing Death by Dangerous Driving: Sentence

In Clarke [2009] EWCA Crim 921, [2009] All ER (D) 135 (May) the appellant, a diabetic, killed a pedestrian after losing control of his vehicle whilst suffering a hypoglycaemic attack and slipping into a state of hypoglycaemic unawareness. His conviction (against which he did not appeal) was evidently based on the jury's acceptance of the prosecution's expert evidence, according to which the appellant must at some point have become aware that he was suffering from hypoglycaemia and could have prevented the accident by stopping and eating or taking glucose tablets. Two expert witnesses for the defence had argued that the appellant was 'more likely than not unaware of the onset of the attack', in which case he could presumably have been able to rely on automatism as a defence. It was accepted on appeal that any such awareness might only have been momentary and that the appellant was meticulous in testing his blood sugar levels. Indeed, he had done so earlier that day.

His deteriorating medical condition was also such as to make any period of imprisonment particularly onerous. Despite this, the Court of Appeal felt unable to suspend his sentence, but a sentence of 12 months' imprisonment was substituted for the three-year sentence originally imposed.

As to the implications of hypoglycaemic attacks whilst driving, see also Davies v CPS Bradford [2009] All ER (D) 110 (May).


C5 Drink-Driving Offences

C5.26 Evidence as to Specimens

Where a blood specimen has been taken for analysis and notice is served on behalf of the defendant requiring the analyst to attend the trial, this does not necessarily preclude reliance on hearsay evidence under the CJA 2003, s. 116 where (for example) the analyst has gone abroad and his attendance cannot reasonably be secured. The RTOA 1988, s. 16, is merely permissive as a means of adducing evidence of analysis of a specimen and is not the only method of doing so: Brett v DPP [2009] EWHC 440 (Admin).

As to possible objections based on human rights arguments, the fact that a defendant in such a case will have been given an identical sample which he could have analysed means that the prejudice potentially suffered where the prosecution rely on hearsay evidence is greatly reduced, if not extinguished.

C5.31 Excluding Improperly Obtained Specimens

The decision in Fox [1986] AC 281, that a lawful arrest is not an essential prerequisite for lawfully requiring a specimen under the RTA 1988, was followed in DPP v Wilson [2009] EWHC 1988 (Admin). The courts will exclude evidential specimens where the procedure followed when taking them was even slightly irregular, but if that procedure was properly followed it does not then matter (as far as admissibility is concerned) that the defendant was not lawfully arrested, or indeed that he should never have been arrested at all.

A further setback was suffered by the 'loophole defence industry' in Steven [2009] EWCA Crim 1452, where the defendant was convicted of an offence under the RTA 1988, s. 3A(1)(c) (causing death by careless driving and failing without reasonable excuse to provide a specimen for analysis).

Following his involvement in a fatal road traffic accident, S was taken to hospital and a sample of his blood was taken for medical purposes. This was later acquired by the police, but S then declined to provide either breath or blood specimens for analysis pursuant to RTA 1988, s. 7.

At the trial, the prosecution needed to establish (1) that S was guilty of careless driving (causation not being in dispute) and (2) that he had failed without reasonable excuse to provide a specimen for analysis. Evidence was given of the blood sample taken before the police arrived. This showed him to be more than 2 ½ times over the legal limit for alcohol and tended to support other evidence suggesting that S was guilty of careless driving and of wilful refusal to provide a specimen for analysis. Because it was not taken with his consent or divided in accordance with RTOA 1988, s. 15, the sample could not have been used to prove a 'driving offence connected with drink or drugs', such as that under s. 3A(1)(a), but as the Divisional Court rightly noted, the constraints imposed by s. 15 do not apply to 'refusal' offences such as that under RTA 1988, s. 3A(1)(c). Nor was there any unfairness in the procedure such as might justify the exclusion of evidence under the PACE 1984, s. 78. The conviction was not unsafe.


C6 Summary Traffic Offences

C6.34 Driving Otherwise than in Accordance with a Licence

For the purposes of considering whether a person holds a valid driving licence satisfying the RTA 1988, it is consistent with Directive 91/439/EEC on driving licences that a person may simultaneously hold two valid driving licences, one of which is a Community licence and the other a driving licence issued by another Member State, where both licences had been obtained before the accession to the EU of the latter State (Criminal proceedings concerning Schwarz (Case C-321/07) [2009] All ER (D) 227 (Feb)). In particular, there is no requirement under the Directive to treat the licence earlier in date as automatically being lost or the second licence as a nullity. However, Schwarz also demonstrates that it would be permissible in Great Britain to refuse to recognise a driving licence issued by another Member State before that State acceded to the EU and before the issuing of a GB driving licence, where the GB licence had been withdrawn on the grounds of its holder's unfitness to drive, i.e. the domestic determination on fitness to drive prevails over any continuing permission afforded to the person arising from the licence issued in the other Member State.

Similarly, applying the principles in Criminal proceedings concerning Weber [2009] RTR 57, the Directive does not preclude the refusal to recognise a driving licence issued by another Member State to a person whose right to drive in Great Britain has been withdrawn, even if that withdrawal occurs after the issue of the other driving licence, provided the other licence was obtained during a period when the GB licence was suspended and both the suspension and withdrawal of the GB licence were based on grounds existing at the date of issue of the other licence.


C7 Sentencing Generally

C7.2 Penalty Points

The SCA 2007, s. 63(1) and sch. 6, para. 15 came into force on 1 October 2008 (SI 2008 No. 2504). As a result, the reference in the RTOA 1988, s. 28(2) to incitement has effect as a reference to (or to conduct amounting to) encouraging or assisting the offences under part 2 of the SCA 2007.

C7.2a Penalty Points

The Road Safety Act 2006 (Commencement No. 5) Order 2008 (SI 2008 No. 3164) inter alia brings s. 4 of the Act (graduated fixed penalty points) into force on 31 March 2009.

C7.7 Fines and Imprisonment

The Road Safety Act 2006 (Commencement No. 5) Order 2008 (SI 2008 No. 3164) inter alia brings s. 4 of the Act (graduated fixed penalty points) into force on 31 March 2009. The reference to s. 3 of the 2006 Act in the main work here should be a reference to s. 4.

C7.9 Disqualification for Certain Offences

The SCA 2007, s. 63(1) and sch. 6, para. 15 came into force on 1 October 2008 (SI 2008 No. 2504). As a result, the reference in the RTOA 1988, s. 34(5) to incitement has effect as a reference to (or to conduct amounting to) encouraging or assisting the offences under part 2 of the SCA 2007.

C7.12 Disqualification for Repeat Offences

The SCA 2007, s. 63(1) and sch. 6, para. 15 came into force on 1 October 2008 (SI 2008 No. 2504). As a result, the reference in the RTOA 1988, s. 35(5A) to incitement has effect as a reference to (or to conduct amounting to) encouraging or assisting the offences under part 2 of the SCA 2007.

C7.18 New System of Endorsement: Driving Record

The Road Safety Act 2006 (Commencement No. 5) Order 2008 (SI 2008 No. 3164) inter alia brings ss. 8 (driving record) and 9 (unlicensed and foreign drivers) into force on 1 April 2009.

C7.24 Financial Penalty Deposits

The Road Safety Act 2006 (Commencement No. 5) Order 2008 (SI 2008 No. 3164) inter alia brings s. 11 of the Act (financial penalty deposits) into force on 31 March 2009. Section 12 and sch. 4 are among the other provisions brought into force by the Order.

C7.24a Financial Penalty Deposits

The Road Safety (Financial Penalty Deposits) Order 2009 (SI 2009 No. 491) specifies certain matters for the purposes of part 3A of the Road Traffic Offenders Act 1988, which provides that constables or vehicle examiners may impose a financial penalty deposit requirement on a person in certain circumstances. Articles 3 to 5, with the Schedule to the Order, specify the person, offences and circumstances in which a financial penalty deposit requirement can be imposed. Article 6 specifies the manner of payment. Article 7 sets out the steps to be followed by the Secretary of State where making an appropriate refund in accordance with part 3A.

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