Transport Committee Inquiry: Traffic Law and its Enforcement

27 September 2003

RoadPeace is UK's national charity for road traffic victims. From the time of its inception in early 1992, RoadPeace has monitored the situation of road traffic victims and their concerns and has become aware of the failure of the law in relation to road death and injury. In July 1998, RoadPeace launched its Campaign for Justice for Road Traffic Victims (including an All Party Parliamentary Group), which highlighted as key areas the improvement of road crash investigations and criminal and civil justice, and a joint strategy by Government to address this problem (briefing attached).

RoadPeace is an active member of PACTS, and is a founder member of the Slower Speeds Initiative, the Children and Traffic Coalition and Safer Streets Coalition. At international level, RoadPeace is a key member of the European Federation of Road Traffic Victims (FEVR), and represents FEVR on UN Working Parties, including on Road Safety, and other relevant international meetings.

Is the law on traffic offences appropriate?

Countless enquiries, studies, polls and case histories have made it evident that the law in respect of road death and injury is not only inappropriate, but also breaches several Human Rights' articles, and that a law change is imperative. A 40,000 signature petition calling for an end to treating - in law - road death and injury as a mere by-product of a piece of driving instead of the killing or maiming of human beings, has been presented by the Chair of the Parliamentary Group for Justice for Road Traffic Victims to the House of Commons already three years ago. (petition attached)

RoadPeace believes that the inappropriate current law and additionally the failure to prosecute under existing law, represent injustice, lack of deterrence and are incompatible and inconsistent with the government's casualty reduction target and Integrated Transport Policy.

Inappropriate law and charges Background to the present road traffic law

Until the late 1950s, deaths caused as a result of bad driving were treated like any other case of gross negligence manslaughter. The 1956 Road Traffic Act created the statutory offence of causing death by reckless or dangerous driving. In 1977, the offence became one of causing death by reckless driving and by 1992 one of causing death by dangerous driving. Behind the change in the law was the view that in the 1950s jurors were reluctant to convict motorists of manslaughter.

Attitudes have changed, as the change in attitude to drink driving has shown. In 1984, Lord Chief Justice Lane stated that any driver who fails to realise that what he is doing at the wheel is creating an obvious risk, is deserving of severe punishment. In 1993, Lord Chief Justice Taylor stated that the public has become more and more concerned about the offences in relation to causing death by driving, that the law needed to be reviewed and the maximum sentence increased from 5 to 10 years. In the Court of Appeal he stated that Parliament has indicated that it expects a court to pass sentences that deter and punish, so as to offer protection to road users against dangerous driving. This wish of Parliament needs yet to be seen put into practice by the prosecuting authorities.

Nicholas Atkinson, a criminal QC, said at a conference: "If in a fight in the street a punch is thrown and the victim dies, the court does not carry out an investigation into the quality of the punches but it is concerned with the consequences, namely the death of the person punched. Why should it be any different on the road?" He went on: "The death of an individual must be the starting point, which demands proper investigation, and proper punishment where appropriate The death is the tragedy that has to be dealt with and the courts should be seen to sentence appropriately."

Driving without due care and attention (S 3) and problems when applied to road death & injury

There are 3,500 road deaths a year, but only some 250 cases are prosecuted for 'Causing death by

'Dangerous driving' in a Crown Court. The most common charge in fatal crashes (and the few serious injury crashes that get prosecuted) is 'Driving without Due Care and Attention', a mere summary charge, dealt with entirely by lay magistrates - the same charge that applies for backing into a parked car. This is deeply offensive and hurtful to victims, but is clearly also an abuse of their and their loved ones' human rights, since the facts of death or injury are completely ignored - they are neither part of the charge, proceedings nor sentence.

The relatives hear a string of driving offences, with the fact of the death not even mentioned.

Only since a Court of Appeal case (Simmons, 1999) the death may be, but is not required to be, mentioned. Further testimony to the shabby way in which road death and injury are treated in law is the fact that Magistrate Courts do not even record which summary cases involve a death or injury, and which ones do not. So we have a situation where the government does not know how many drivers were charged or convicted in a fatal or injury road crash.

Summary charges are further unacceptable in such serious cases because of the 6-month time limit within which they have to be laid, when investigations and inquests, which bring up relevant evidence, often take much longer. The result is often no prosecution when there should be one, or no opportunity for relatives to bring a private criminal prosecution.

Lack of criminal prosecutions in injury cases, even for Driving without due care and attention, often means that the injured have to accept partial liability and consequently reduced damages.

Slack charging standards

The charging standard agreed between ACPO and the Crown Prosecution Service (CPS) lists many driving offences that have led to deaths or injuries, which in common-sense terms would be considered dangerous, as merely careless ie justifying a 'Driving without Due Care and Attention' charge, eg driving through red, using a mobile phone while driving, reading a newspaper or map. These acts would have resulted in the immediate failure of a driving test, since obviously dangerous.

Penalties, which lack deterrence value

Parking offences are often more expensive than speeding offences. Research has shown that it is the likelihood of being caught rather than the fine itself that influences driver behaviour, but with the reduced number of traffic officers and the restrictions on safety cameras, fines need to be high enough to pose a deterrent. Fines currently need to be collected within 12 months (the Magistrates Courts' performance is judged by the amount of money outstanding at the end of a financial year) and so are often set exceptionally low. Furthermore, drivers who plead guilty receive a 1/3 reduction in fines, even when the case has proceeded to court and the plea takes place just before the hearing.

The same reduction of sentence applies for drivers who are charged with Causing death by dangerous driving; few drivers receive prison sentences even near the maximum level.

Disqualifications are insufficiently used and when they are, they often overlap with any prison sentence, which makes such disqualifications meaningless. Also, to be effective, disqualifications need to be enforced, but this rarely happens.

Hit and run offences, which are a growing problem, are not followed by the serious charge 'Perverting the course of justice', but merely the charges 'Failure to stop' or 'Failure to report'.

The Restorative Justice approach has yet to be extended to road victims. RoadPeace believes that restorative justice should be in addition, not as a substitute, to traditional penalties.

Victim surcharge

In many countries, traffic offences include a victim surcharge, which is allocated towards helping road victims recover and rehabilitate. The Home Office is considering introducing such victim payments, but the fear is that traffic related fines would be allocated to the Criminal Injuries Compensation Board and not help road traffic victims, who very rarely qualify for compensation from this Board.

Civil damages and the law

Civil law is tort based and has traditionally required the victim to prove the driver to be at fault. Civil compensation is thus dependent on the quality of the investigation and on the prosecution of charges. The current law with low penalties does not encourage high quality investigation, or indeed a prosecution. While the police may see merely a low fine (average £250) to result from days of investigative work, proof of culpability will affect the victims' chances of compensation. Poor quality investigations and untrained prosecutors prevent victims from obtaining a fair settlement.

There is a move towards a Strict Liability policy, with a recent appeal case ruling that pedestrians could not be more than 50% liable in road crashes. But until this is more widely known, it will not have a deterrent effect on aggressive driving and victims will be unaware of their entitlements.

Mobile phones and political compromise

Research has shown that the use of mobile phones while driving, both hand held and hands free, is dangerous, yet the proposed bill will only outlaw the use of hand held mobile phones. This is tacit approval of the use of hands free phones, which were found to have a more negative effect on driving performance, including speed control, reaction times and responding to warnings, than driving under the influence of alcohol (TRL, 2002).

Recommendations

1. For any road death involving driver culpability, a charge of vehicular homicide/motor manslaughter/causing death by driving should apply. If this cannot be introduced immediately, then the charges of causing death by careless/negligent driving and causing grievous bodily harm by careless/negligent driving should be added, as a matter of urgency, to the present charges, also to be heard in Crown Courts. The CPS should also use specialist prosecutors, to be the professional equivalent of barristers used by insurance companies in attempts to avoid financial liability. Hearings in Crown Courts would render inquests unnecessary, thus freeing up funds to implement this change. The deterrent effect of more serious and meaningful prosecutions would further compensate for increased costs.
2. A Road Danger Reduction bill is needed. Instead of casualty reduction targets used as the sole indicator, which is a reactive approach, local authorities would be required to be more proactive in reducing road danger. Data would be collected on speeding, thus identifying roads where speeds were excessive and where speed limits needed enforcement. Speed limit compliance should be a best value indicator.
3. Present Charging standards should be reviewed under consultation. New standards should be more consistent with the DVLA testing standards. Any offence that results in a driving test failure should be considered dangerous driving and minor offences as careless driving.
4. Specialist traffic courts, with specially trained magistrates, should be introduced for all traffic offences not involving death or serious injury. Fines should be increased and collected over a longer period. Maximum fines should be open-ended, as they are in Scandinavia.
5. Fines should be used, even if only partially, for support and rehabilitation services for road traffic victims. Drivers would be less likely to object to this use of their fines.
6. A Victim surcharge should be imposed on motoring offences and used to fund support and rehabilitation programmes.
7. A policy of strict liability, as in France and the Netherlands, should be introduced in the UK. This would place the onus of responsibility on drivers, who would be assumed responsible for any injury to a child or elderly pedestrian or cyclist.
8. The use of hands free mobile phones while driving should be banned, since they have been proven to be detrimental to driving. While this ban may be difficult for the police to enforce, insurance companies and employers could ban their use, and post crash analysis of phone records could determine if a hands free phone was used before or at the time of the crash.

Do Police and other enforcement agencies have the right priorities?

Whilst the culture is slowly changing, road crashes involving traffic offences are still too often viewed as 'accidents' rather than avoidable incidents. The police and society accept more risk on the road than they do off the road.

Compare police reaction to speeding with that to domestic violence or racism. That the latter two are seen as endemic has led the Government to take a stronger approach, not weaker as in the case of speeding, evident in tolerance margins, restrictions on safety cameras, etc. The Transport Select Committee had stated in the past that if government got serious about speed management, then road deaths could be reduced to 1,000, reducing road deaths by approximately 67% - a target infinitely superior to the government's present 40% road casualty reduction target in respect of killed and seriously injured, which would spare many families the experience of devastating bereavement. In a recent PACTS Westminster lecture, Professor Allsop argued that if the risk on the road was the same as off the road, road deaths would be as low as 500.

Lack of priority and investment in traffic policing

The numbers of traffic police have been reduced quite dramatically in many areas, including London. In general, police authorities have not adopted traffic law enforcement as a core function, not even as part of the community safety and safer streets programmes. Road casualty statistics are rarely included on police websites. In London, the Metropolitan Police Service (MPS) provides crime and victim statistics to the Police Community Consultative Groups (PCCGs) on a monthly basis, but they exclude road casualty statistics. Another example that road deaths are not given due priority is the video 'The Message', to train police officers to deliver the death message - only one of the seven case studies was a road death, when officers deliver far more messages for road deaths than murder.

Under investment in collision investigation

The task of collision investigation, which is shared between traffic police and general police, suffers from a lack of investment, most especially in respect of injury crashes. In April 2003, the MPS reported that their 46 collision investigators had investigated 348 fatal road crashes and 940 near fatal crashes in 2002 (MPS press office email, 14 April 2003). This meant that the Borough police investigated some 80% of serious injury crashes, along with all slight injury crashes.

Compare the investment in road crash investigations with that of murder investigations: -there are almost 1000 detectives to investigate murders, and the MPS have requested another 135 quoting a recent HMIC report which said murder squads and senior detectives were seriously overstretched (Evg. Std, 12.6.2003). Since the police investigate twice as many road deaths as murders in London, based on the murder detective numbers there should be 2000 collision investigators - over 40 times the current number. This does not even consider the many life threatening and serious injury cases.

The low investment in collision investigation has been documented by Government - according to the Dept. for Transport's most recent Highway Economic Note (2000), the average value of police resources allocated to a fatal crash is £1,330 (approx 0.1% of the total value of prevention for a fatal crash), £180 for a serious injury crash (the equivalent of no more than a few hours of police time) and £40 for a slight injury crash (this would largely be for time recording the crash) (DfT, 2003).

Lack of accountability

Despite the fact that there are over four times more road deaths than murders in the UK, neither the police nor the CPS report on the legal outcome of reported road crashes. The police do not record or monitor whether a charge has been laid and the CPS are unable to identify the number of drivers prosecuted for motoring offences involving deaths/injuries or sentences. This would be inconceivable with other crimes, like rape or burglary, where the judicial disposal rate is closely monitored.

Under-reporting

Under - reporting relates to both casualties not reported to the police and those, which the police fail to record. Unlike with all other crimes, for which the reporting procedures changed recently, road traffic casualties are still measured by the STATS 19 database and not by those reported to the police. In London, the police reported that they investigated 20% more fatal crashes in 2001 and 2002 than were reported by STATS 19. 'Road Accidents Great Britain, The Casualty Report' annually warns of the problem of under-reporting. According to the 1999 publication, a fifth of casualties reported to the police were unrecorded. The continued reliance on Stats19 data leads to under-estimation of risks to road users and the burden on police in terms of investigation resources.

Under-estimation of economic costs

Whereas the Home Office adjusts for under-reporting in its calculation of the costs of crime and of fire, the DfT does not include any adjustment for the many unreported injury crashes. Thus the cost to the country and the need for road danger reduction investment continues to be under-estimated.

The average cost of a crash is also under-estimated, as it does not consider long-term health impacts on primary and secondary victims, the burden on the health sector (i.e. opportunity costs), and most significantly it uses a low value for the human costs (which account for 66% cost of a fatal crash). The current human cost estimate is based on research from the mid 1990s, which found a range of £750,000 to £1,250,000 (at 1997 prices) to be acceptable. Even though it is well known that the prevention of a death on the railways is valued much more highly than on the road, the DfT chose a conservative approach and adopted the mid-point of this range rather than the highest value (DfT, HEN 2000). Moreover, the human cost estimate is based on the value of a single statistical life. Previous studies have suggested that the human costs estimate might be increased by about £0.5 million (1983 prices), if altruism was included (Ball, New Developments in Cost of Injury, 2000).

Safety camera restrictions

There are greater restrictions on safety cameras than there are on CCTV, i.e. greater priority is given to protecting property than to preventing death and injury. It is permissible for plain-clothed detectives to be used to deter thieves, but safety cameras must be highly visible and signed in advance (no other country is known to restrict safety cameras in this way). It should be noted that these restrictions are imposed by the DfT and not by the law. Safety cameras are also evaluated by much higher standards than manual enforcement measures. Automatic enforcement should be seen as a complement and not competition or substitute to manual enforcement.

Imbalance between public prosecutors and defence/insurance lawyers

Defendants in death and injury cases, including commercial vehicle drivers, will have the weight and expert legal representation of an insurance company behind them. The CPS uses agency staff and case workers, who need no legal qualifications, for serious injury cases and their staff who handle fatal cases often appear to be no match in preparation to the insurance company lawyers.

Recommendations

1. A specialist traffic police force is required to stop traffic law enforcement remaining a low priority within the police. At a minimum, increased traffic police resources are required - on the basis of the number of lives at risk.
2. Road danger reduction should be incorporated into safer streets and community safety programmes. Technology - speed limiters and black boxes should be promoted.
3. Minimum national standards for collision investigations should be introduced urgently. Furthermore, an independent monitoring group should be established to evaluate the use and impact of the Road Death Investigation Manual, black box technology, as well as the quality of serious injury investigation. The level of satisfaction with investigations should also be monitored, as is common with other serious investigations, ie Rape, Homicide, etc.
4. Statistics should be kept on the legal outcome of road crashes, if only as a manual system for the time being. For instance, magistrates need to record the reasons for their decision and this should include the mention of any death or injury (The present CPS monitoring system apparently cannot separate cases involving casualties from those that do not).
5. Police road casualty statistics should be based on those reported to the police (as with other victims; in London 30% injury crashes are self-reported) and not those recorded in STATS19, included on police authority websites and in presentations of crime statistics.
6. National road casualty estimates should be based on hospital records. The British Crime Survey, which has included domestic fires in previous years, should cover road traffic injuries.
7. Economic valuation of crashes should be updated to include longer term and secondary impacts. Instead of on a willingness to pay basis, the value of prevention should be based on the acceptable level of damages.
8. Safety camera restrictions should be relaxed, so that communities can request cameras before loss of life occurs. Contributory factors should not be a requirement since these tend to be reported by general police and not collision investigators. Signs should be used as a general measure, but not so that they notify drivers where safety cameras are not present.

Is sufficient priority given to the needs of pedestrians and cyclists?

No, it is not?? A civilised society protects its vulnerable - be they young, elderly or vulnerable road users. Pedestrians and cyclists are much more vulnerable to harm, also horse riders, and the Highway Code rightly imposes a duty of care on motorists.

20 mph speed limit

A 20 mph well enforced speed limit in urban areas would do more to protect pedestrians and cyclists than any other measure. Regardless of fault, vulnerable road users would stand a chance of ending up in a cast instead of a coffin if impact speeds were reduced to a 'survivable speed'.

Turning vehicles/right of way

Unlike in the Netherlands and Germany, turning traffic does not have to give way to through traffic. Too many cycle deaths and injuries involve turning vehicles. Vehicles turning from or into minor streets should also have to give way to pedestrians walking on a main road.

Strict Liability

There should be an economic incentive for drivers to drive defensively and be more pro-active in avoiding collisions with cyclists and pedestrians. A civil compensation policy based on strict liability, and which was widely publicised, would help reduce collisions, and those not avoided would at least have pedestrians and cyclists receiving compensation, which would help finance rehabilitation.

Misguided priorities

a) cycle helmets Until the body is safe from vehicle speed, protecting the head is less important. Priority should be on preventing murder first, and suicide second.

b) cycling on pavements RoadPeace does not condone cycling on the pavement, but in the big scheme, this is a nuisance rather than a threat. To make cyclists choose the road over the pavement, the roads have to be made a safer place to ride. The 30 community support officers in Kensington and Chelsea who were reportedly targeting cycling on the pavement could have been much better employed enforcing pedestrian crossings - When was the last time a driver was fined for not stopping for a pedestrian at a zebra crossing, when was the last publicity campaign on this?

c) focus on training children instead of adults Instead of asking for volunteers to help with kerb craft training programmes, the government should be advertising that drivers will be held responsible for civil compensation in all crashes involving children unless they can prove it was absolutely unavoidable. Cycling lessons should be included in driver training programmes.

d) driver retraining programmes A recent Cochrane review on post licence driver education programmes found no impact from either advanced or remedial driver training programmes.

Specialist prosecutors and trained judiciary, visiting of the scene

Few crashes involving pedestrians or cyclists are prosecuted. RoadPeace would like the CPS to use specialist prosecutors or expert witnesses for victims, to counter common non-conspicuity or blind spot defences, and for the judiciary to be trained in road traffic regulations and the Highway Code. CPS staff should be required to visit the crash site, to be as familiar with it as the insurance lawyers.

Research

All data recorded/monitored on crashes is collected at the start of the investigation, in the first few days after a crash, which is tantamount to an initial diagnosis. RoadPeace has asked police authorities, including the MPS, to complete a post crash investigation report form, which would monitor such issues as side-guards, presence of helmets or cycle lanes, contributory factors identified by the investigation, legal outcome. This would also allow confirmation of the casualty severity. While this data should be collected on all crashes, fatal cycle crashes need it now.

Recommendations

1. 20 mph speed limit to be a default speed limit in urban areas. Use of speed limiters.
2. Turning traffic to give way to through traffic -as is the case in the Netherlands and Germany.
3. Strict liability policy to be adopted and publicised. Working groups with insurance companies and rehabilitation centres to be established.
4. All road safety interventions to be evaluated in terms of their impact on casualty reduction and road danger reduction.
5. Driver training to consider including a cycle training lesson.
6. Experts in pedestrian and cycle collision reconstructions to be used by the CPS.
7. Additional data to be collected from the investigation findings
8. Community support officers to be employed to do mobile speed checks.

Could more be done to deal with dangerous drivers before they cause harm?

1. Stopping powers?
2. Increased use of vehicle confiscation (compare number of vehicles clamped for parking).
3. Mandatory re-test for those accumulating up to 12 points, also minimum fines to be set for Magistrates-as they were years ago.
4. Dangerous driving (with or without any casualties) should receive an automatic 12month ban, the same as drink driving (speed kills more than does drink driving). Life long bans to be used and publicised much more frequently.
5. Tariff system for speeding offences (ELF, Options for Civilising Traffic)
6. Alternative punishment: speeding drivers who are well-off and can afford chauffeurs, such as sport stars or actors, should receive bans, as this would send a message to public and fans. Insurance companies should be encouraged to treat speeding drivers as novice drivers and ban them from high-powered vehicles.
7. Number plate readers-safety camera fines should be invested in ANPR

What impact do uninsured, unlicensed, and banned drivers have on traffic enforcement?

These drivers will not be deterred by automatic enforcement measures. They are the drivers who will commit Hit and Run, often even after causing someone's death or serious injury (penalties, p.2)

Recommendations

1. Consideration should be given to providing third party insurance (injury expenses only) through a fuel levy as is done is several South African countries, including South Africa or introducing a system similar to British Columbia where the government is responsible for licensing drivers, vehicles and providing third party insurance.
2. License plates should only be available from a few sources, MOT garages or post offices.
3. MOT inspections should be required to check insurance coverage.

How will changes in responsibilities, such as those announced on 20 June affect road safety and traffic law enforcement?

RoadPeace welcomes the transfer of responsibility to the Highways Agency and believes a specialist motorway traffic police force is required. All roads maintained by the Highways Agency should be patrolled by the specialist motorway traffic police force. We would also like to recommend that the impact on road crash investigations, including level of satisfaction by families, be monitored, as the Highways Agency may be opening roads to traffic too soon after a crash.

References

Ball D (2000), New Developments in Cost of Injury, The Burden of Injury, Baltimore, Md.

Burns PC, A Parkes, S Burton, RK Smith and D Burch (2002), How Dangerous is Driving with a mobile phone? Benchmarking the impairment to alcohol.

DfT (2003), DfT website (Highway Economic Notes can be downloaded)

DTLR (2002), Dangerous Driving and the law, Road Safety Research Report No. 26, DTLR, London.

DETR (1999), Road Accidents Great Britain: 1998 The Casualty Report, The Stationery Office, London.