PROSECUTING BAD DRIVING:
THE NEED FOR EVIDENCE BASED POLICY AND PRACTICE
Response by the Slower Speeds Initiative to CPS consultation Summary
Speed is the most common factor in driving that causes death and serious injury. But current practice is insensitive to the dangers of speed. When considering charges, the CPS should use the established evidence on the dangers of speed and speeding to evaluate the risks imposed by a driver’s behaviour, including the serious risk of causing death. In the absence of crashes involving death and serious injury only speeding so excessive or persistent as to certainly constitute dangerous driving is likely to come before the courts. The CPS should play a role in ensuring that the evidence obtained from the
investigation of injury collisions supports fair trials. The standard of driving should be evaluated with reference to the dangers of speed and the contributory factors system. Positive and objective standards for the ‘reasonable, competent and prudent driver’ should be adopted, based on the Highway Code.
Introduction
Bad driving has extensive effects. It can have catastrophic outcomes. By creating a dangerous environment, it is an important determinant of who travels where, when and how. Bad driving ranges from intimidation — the threat of violence — to causing violent death. The scope for bad driving and its worst effects is determined not only through failings in individual duty of care but also by institutional failings. The crimes and terrible consequences that require the formal machinery of justice would be far fewer if law-makers and enforcers controlled the potential for harm through appropriate speed limits and vehicle design. Where fatal and disabling violence is the result of predictable conflict between citizens on a public utility, surely prevention is better than cure.
The CPS’s starting point for this consultation is the shift in public opinion that has resulted in the creation of new offences. Expert understanding of bad driving will determine how that shift is translated into justice. What is bad, careless or dangerous driving? What evidence is required to prove bad driving?
What are the appropriate references for evaluating the standard of driving?
Evidence-based prosecution policy and practice (Consultation Questions 2-4) 1. ‘Can speeding become dangerous driving per se?’ (147)
Yes. We set out why below.
1.1 Speed and crash frequency
There is a general exponential relationship between speed and road crashes. As speed increases, so does the distance travelled during the time available to perceive and react. Braking distance increases in proportion to the square of the speed. These relationships are the basis for well-established findings that, for a given road environment, as speed increases so do both the frequency and severity of crashes.
The 'rule of thumb' is that for every 1mph change in average speed there will be a corresponding 5%
change in the number of crashes. The size of the change in crashes ranges from just over 2% to over 9%
according to the road type, quality, and presence of other road users. The change in crashes with speed is highest on congested urban roads and low quality rural roads. (Taylor et al. 2000; Taylor et al. 2002).
Drivers are more likely to crash as their speed increases relative to the average speed on a given road.
Figure 1 shows that at 25% above the average speed the risk that a driver will crash increases by 600%
(Transport Research Laboratory 2002:3).
1.2 Speed and crash severity
If a collision occurs, the likelihood of severe or fatal injury increases disproportionately with speed. Small differences in speed can make a major difference in whether resulting injuries are slight, serious or fatal.
This has been described as ‘the power model’ because the change in the number of injuries of a given severity is an exponential power function of a change in speed: for a 10% increase in mean speed, the number of injury crashes changes by 21%, fatal and serious crashes by 27% and fatal crashes by 46%
(Figure 2). As with crash frequency, the strength of the relationship depends on characteristics of the road: it is larger on urban roads compared to motorways.
Figure 1: Change in risk of crashing with increase in speed relative to average speed
(Source: Transport Research Laboratory 2002:3)
Figure 2: The ‘Power Model’ : relationship between change in mean speed and crashes involving injury
(Source: ECMT/OECD 2006:39, Fig. 2.4)
1.3 Speed and other contributory factors in road crashes
‘The mean speed of traffic is the most important risk factor for road accident fatalities. It has a more powerful effect on road accident fatalities than any other known risk factor, including the overall amount of travel. Speed as a risk factor is always present. Many other risk factors are, like darkness or a slippery road surface, are not always present. (Elvik et al. 2004:89)
The importance of speed as a factor in crashes is well established. But its importance relative to other factors which lead to death and injury and are used as evidence in the prosecution of bad driving offences should also be taken into consideration.
The revised STATS19 system used by the police for recording road crashes confirms that the most important factors in road crashes involving death or injury can be categorised as some sort of driver behaviour (Robinson and Campbell 2006), that is, as ‘bad driving’. The top three of the nine categories of contributory factor now recorded are ‘driver/rider error or reaction’, ‘injudicious action’ and ‘behaviour or inexperience’. ‘Driver/rider error or reaction’ accounts for 64% of fatal and 60% of serious crashes,
‘injudicious action’ for 32% of fatal and 27% of serious crashes and ‘behaviour or inexperience’ for 29%
of fatal and 27% of serious crashes. (The total is over 100% because up to 6 contributory factors, but on average 2.4, can be recorded for each crash.) Factors categorised under ‘road environment’, ‘pedestrian behaviour’, ‘driver impairment’, ‘visibility’ and ‘vehicle condition’ are of less importance (but see
discussion on the importance of drink driving as a contributory factor below). 'Special codes' (5%) include factors for 'stolen vehicle' or 'vehicle in course of crime' which contribute respectively to 1% and 0% of recorded crashes, including fatal and serious.
Table 1 lists the top ten factors recorded in crashes involving death and serious injury and compares their importance for both types of crash and their importance in all crashes.
Figure 3: Contributory Factor type: crashes by severity: GB 2005
(Source: Campbell and Robinson 2006: Chart 1)
Table 1: Top 10 contributory factors in road crashes in 2005
Contributory factor and category Fatal (%)
Serious (%)
importance to fatal crashes
importance to serious crashes
importance to all crashes (top 10 only)
Driver/Rider Error or Reaction 64 60
Loss of control 35 20 1 2 5
Failed to look properly 17 26 3= 1 1
Poor turn/manoeuvre 12 15 5= 4 4
Failed to judge other persons
path/speed 10 13 7 5= 2
Swerved 7 4 9 10= -
Sudden braking 3 4 10= 7=
Injudicious Action 32 27
Going too fast for conditions 17 13 3= 5= 6
Exceeding speed limit 12 7 5= 7 9=
Following too close 1 3 7=
Behaviour or Inexperience 29 27
Careless, reckless or in a hurry 18 17 2 3 3
Aggressive driving 8 5 8 8= -
Learner/Inexperienced driver 5 5 10 8= 9=
(Source: Robinson and Campbell 2006: Table 2)
With the possible exceptions of ‘poor turn/manoeuvre’, ‘swerved’ and the catch-all category of
‘learner/inexperienced driver’, it is obvious that slower initial speeds would have permitted longer reaction times, shorter braking distances and less serious consequences.
Speed, either ‘exceeding the speed limit’ or ‘going too fast for conditions’, was recorded as a factor in 26% of fatal crashes and 28% of road deaths in 2005. 18% of serious crashes had one or the other recorded as a contributory factor.
The only contributory factor more frequently recorded was ‘loss of control’, noted in 35% of fatal crashes and 20% of serious crashes. It is obvious, even from the few case studies in Annex C of the consultation document, that speed is very often a factor in loss of control crashes.
The contributory factors system allows up to six factors to be recorded for every crash. On average 2.4 are recorded. Loss of control without speed also as an element (Singh 2007) was recorded in 21% of fatal and 13% of serious crashes, fewer than similar crashes where speed is a factor.
Nevertheless, the contribution of speed is likely to be underestimated in the contributory factors system.
As discussed above, small differences in speed can lead to very large differences in both the likelihood of a crash occurring and its outcome. Such small differences are very unlikely to be detected in a detailed crash investigation, let alone by a police officer recording factors at the scene of a crash prior to any investigation. The contribution of speed is likely to be obvious only when the evidence provided by injuries or damage to vehicles is overwhelming. The fact that the relative importance of speed in the contributory factors system increases with crash severity supports this analysis that its effect is difficult to measure with current investigative techniques.
The contributory factors system does underestimate the contribution of drink driving, recorded in only 9%
of fatal and 8% of serious crashes in 2005. When coroner data is added to STATS19, the proportion of fatal crashes where alcohol was a factor in 2005 rises to 16% (Department for Transport 2006a). When
under-estimated speed-related fatal crashes are compared with better-estimated drink-driving fatal crashes, speed is still 1.6x times more important than alcohol as a factor. The greater importance of speed as a factor in crashes has been borne out in other research comparing the effects of increases in speed and increasing blood alcohol content (Figure 4).
It is often suggested that speeding should become as socially unacceptable as drink driving. On this evidence is clear that it should be more socially unacceptable.
Figure 4: Relative risks of casualty collision involvement associated with speed and with blood alcohol content (BAC) on urban roads with a 60 km/h speed limit
(Source: ECMT/OECD 2006:37, Fig. 2.2)
Figure 5: Risk attributable to selected risk factors (Swedish data)
(Source: Elvik, R. et al. 2004:88, Figure 22)
The importance of speed as a risk factor in road crashes and as a factor in bad driving relative to other common violations is shown in Figure 5.
2. The context for prosecuting bad driving: systematic insensitivity to the impacts of speed
Despite this rapidly accumulating knowledge base, the dangers of speed are inadequately acknowledged in road traffic law, enforcement and prosecution.
2.1 Speed limits
We welcome the recognition that ‘road traffic collisions with serious consequences often occur where there is evidence that the vehicle causing the collision was travelling above the speed limit, but not necessarily substantially above the limit’ (149). The evidence shows that road traffic collisions with serious consequences can occur within the speed limit. From a road safety perspective, many speed limits are too high. This is particularly the case for our two most prevalent speed limits, where most casualties occur.
a) The restricted road speed limit: 30mph
Around 40% of road deaths, 59% of road deaths and serious injuries and 68% of all road casualties occur on built-up roads. Of these pedestrians and cyclists account for 45% of the deaths, 43% of the deaths and serious injuries and 26% of casualties of all severities (Department for Transport 2005b). In the UK in 2003, per unit of exposure measured as distance travelled, pedestrians were 16 times and cyclists were 20 times more likely to be killed or seriously injured than car occupants. These figures do not take into account the problem of under-reporting and under-recording of casualties, which are thought to lead to underestimates of serious injuries by a factor of three for all road users and nearly six for cyclists (Department of Transport, Local Government and the Regions 2001; Aeron-Thomas 2000).
31% of all road deaths, 50% of road deaths and serious injuries, and 59% of all road casualties occur on roads with a 30 mph speed limit. The breakdown for vulnerable road users is not published but one would expect it to be even higher than for built-up roads as a whole.
We do not have data for the speeds involved in these crashes. However there are good grounds for believing that the majority of them occur where free travelling speeds are below 40mph and impact speeds above 20mph, giving an indication of how dangerous these speeds are.
In 2005 45% of car drivers exceeded the 30mph speed limit by 10mph when conditions permitted. Only 5% exceeded the 30mph limit by more than 10mph (Department for Transport 2006c).
The graph of risk factors (Fig. 5 above) shows that after speed, the next most important risk factor in road deaths is vulnerability. There is a limit to the amount of kinetic energy the unprotected human body can absorb without catastrophic consequences. In general, at impact speeds of 20mph (32 km/h) or less, most (around 90%) of unprotected road users will survive a collision, although many will have serious injuries.
At impact speeds between 30mph (48 km/h) and 40mph (64 km/h), depending on the source of
information, 20% to 80% of pedestrians will be killed. At impact speeds over 40mph most pedestrians will be killed (Figure 6).
Car occupants wearing seatbelts are unlikely to be injured at impact speeds up to 43mph (70 km/h) in frontal impacts and 30mph in side impacts (OECD 2006).
Figure 7 (Ashton 2001) shows how dangerous speeding is: travelling at 35mph trebles the fatal injury risk to pedestrians relative to travelling at 30mph.
b) The national speed limit: 60mph
In 2005, 42% of fatal and 24% of serious crashes occurred on roads with a 60mph speed limit
(Department for Transport 2006a). Serious and fatal crashes on non-built up roads tend to involve more vehicles and more casualties, and a higher proportion of them are fatal or serious. 12% of crashes on urban roads resulted in death or serious injury compared to 18% of crashes on rural roads.
Figure 6: Probability of a pedestrian being killed when struck by a car
(Source: ECMT/OECD 2006:41, Fig 2.5)
Figure 7: Influence of travel speed on risk of pedestrian sustaining fatal injuries: change in accident risk relative to risk at 30 mph
(Source: Ashton 2001)
In 2005 the average speed of car drivers on single carriageway roads was 49mph. Only 11% of drivers exceeded the national speed limit and only 2% exceeded it by more than 10mph.
It has been estimated that fewer than 40% of Class A & B class roads and 7% of Class C and Unclassified roads with 60mph limits have mean speeds above 50mph (Lynam et al. 2004). Figure 8 shows the results from a representative sample of rural single carriageway roads.
Research for the Department for Transport recommended a new two tier system for setting speed limits for rural single carriageway roads. It concluded that 50mph would be suitable for 75% of better quality (upper tier) roads (Lynam et al. 2004). This indicates that on most roads the national speed limit is higher than the ‘average driver’ requires. A limit which is too high has consequences for driver speed choice since speed limits are, as the Department for Transport says:
‘a key source of information to road users, particularly as an indicator of the nature and risks posed by that road to both themselves and other motorised and non-motorised road users. Speed limits should, therefore, be evidence-led, self-explaining and seek to reinforce people’s assessment of what is a safe speed to travel.’ (Department for Transport 2006b)
The national speed limit is more often than not giving the wrong information to drivers about risks.
Figure 1 above showed the extent to which risk is elevated by driving at speeds above the mean. If mean speed is 50mph then at a speed 25% above the mean, or 63 mph, a driver has elevated his crash risk six times relative to that of other drivers.
If the primary purpose of speed limits is safety, then, by definition, exceeding them must be considered 'unsafe'. Since driving within limit, especially on our 'most dangerous roads' is more dangerous than speed limits might make drivers think, evidently driving above speed limit must be considered dangerous.
Figure 8: Mean speeds across rural single carriageway roads: all road classes and groups
Even if no collisions occur most of the time, risk is elevated for all road users and many are discouraged by danger from using the road network.
Speeding is dangerous per se: illegal speed (and not grossly excessive speed) should be treated as dangerous driving. However, in practice it is only the most grossly excessive speeding that is likely to come to the attention of the CPS in the absence of death or serious injury due the way speed limits are enforced.
2.2 Enforcement effort
Since their introduction, Safety Camera Partnerships have been responsible for the majority of speed limit enforcement in the UK. In 2004, 2.1m speeding offences were dealt with by official action. 91% of these offences were detected by speed cameras (Fiti and Murray 2006).
There are now reported to be around 6000 speed camera sites. Only a small proportion, around 20%, of these sites are likely to be ‘live’ at any one time. Making the generous assumptions that half of the sites are live and that each site secures speed limit compliance over 1km, then 3000km of the nation’s speed limits are enforced, or less than 1%. 80% of cameras sites are on urban roads. On the same assumptions as above, then under 2% of the urban road network has enforcement at any one time.
Table 2: ACPO Enforcement thresholds (mph) Speed Limit Prosecution threshold speed
FPN Summons
20 25 35
30 35 50
40 46 66
50 57 76
60 68 86
70 79 96
(Source: ACPO 2004)
Enforcement thresholds are very high. ACPO guidance is shown in Table 2. As we have seen, 35mph in a 30mph limit trebles the risk of pedestrian fatality and the majority of pedestrians will be killed at this speed. All would be seriously injured. The enforcement threshold for the national speed limit is 68mph.
Again, this is a speed with greatly elevated risks.
In practice, thresholds, especially in urban areas, may be higher than the ACPO guidance, simply to manage the workload involved in issuing fixed penalty notices. We understand that the threshold for 30mph in London is 42mph.
The table also shows the level of speeding which leads to a court appearance.
Of the 1.9m speeding offences detected by cameras, only 7% were prosecuted in court (Fiti and Murray 2006).
The fixed penalty notice system imposes the minimum possible points and fines. The system of ‘totting up’ legally condones re-offending. When a driver offends often enough to be sent before a magistrates’
court, disqualification is discretionary.
This leniency creates danger. Drivers who get flashed by speed cameras are twice as likely to be involved in crashes involving injury than drivers who don’t get flashed (Stradling 2004).
It is therefore very likely that the CPS only see cases of drivers whose speeding constitutes dangerous driving. They come before the courts for driving at speeds that, on the evidence of the speed crash relationship discussed above, pose a serious risk of death or because they have shown that they persistently ignore speed limits.
A lenient regime of high speed limits, high enforcement thresholds, low levels of enforcement and high tolerance of offending provide abundant opportunities for the crash prone driver finally to injure or kill and wind up in court.
2.3 Prosecution practice
As a rule, the Slower Speeds Initiative does not get involved in prosecutions. However, we have looked into two cases where a speeding driver killed and where treatment of the dangers of speed and its relevance to the standard of driving was insensitive and ambivalent.
a) DC, a child pedestrian
In 2001, DC, a 9 year-old boy was killed on a residential road with a 30mph limit by a driver who was found on the basis of skid mark evidence to have been travelling at 38mph at the point of impact. No charges at all were brought.
At the time of DC’s death the local police force had a speed limit enforcement threshold of 39mph in a 30mph limit. Section 89(2) of the Road Traffic Regulation Act 1984 requires two sources of evidence to secure a speeding prosecution. The only witnesses to DC’s death, apart from the driver and a passenger, were other children. The crash investigator’s evidence was insufficient to secure a prosecution for speeding and no other corroborating evidence, such as the injuries that resulted in DC’s death, was considered.
The CPS explained the position to DC’s mother:
‘There were two main aspects of the Crash Investigators report which led me to the conclusion that there was insufficient evidence upon which there could be a realistic prospect of conviction for careless driving. The first was the conclusion that it may have taken [DC] in the order of 1 second to move from the kerb to the road thus the time available to [the driver] to react to his presence and take avoiding action was extremely short. The second was the conclusion that even had [the driver] been travelling at 30 miles per hour the collision would have still occurred.’
The chief inspector of police stated that:
‘From all the available accounts and evidence it was concluded that [DC] had stepped out from an area of coppiced woodland immediately adjacent to the road allowing the driver little or no time to respond.’
Figure 9 shows stopping distance at different speeds and includes a reaction time of ‘around 1 second’.
The forensic evidence indicated that DC had been struck at 38mph, or 61 km/h. According to the graph the driver would have been travelling approximately 50mph (80 km/h) at the time of braking (bottom bar).
Had the driver been travelling at 30mph (48 km/h), the graph shows that DC probably would not have been struck (top bar). Had he been struck at 30mph, the driver would have been travelling at around 45mph (72 km/h; between second and third bar from bottom) at the time of braking, well above the then enforcement threshold.
Despite clear evidence that the driver’s speed must have been an important component in the time available to respond, the child was blamed for his own death. The possibility that the crash might still have occurred and DC might have been killed at ‘legal’ speeds seemed to have been adduced to further
support the view that the standard of driving was not careless but rather that the child was to blame. The contradiction between a 39mph enforcement threshold and accepting the dangerousness of driving within the speed limit is ignored.
The police chief inspector informed DC’s mother
‘in assessing a standard of driving it is necessary to show that the driver has departed from the standard of the reasonable prudent and competent driver. The fact that a person is exceeding the speed limit does not in itself amount to dangerous or careless driving unless accompanied by other
aggravating factors.’
The inquest took place six months after the crash. By the time DC’s mother heard the evidence
concerning her son’s death, it was too late to challenge the handling of the case by the police and the CPS.
Since DC’s death ACPO enforcement thresholds have been slightly reduced. But no other aspects of the way this case was handled have changed. There is a charge of causing death by careless driving, but the driver was not found to have been driving carelessly.
b) DG, adult cyclist
In 2004, 60 year-old DG was cycling home after dark when he was killed on a residential road with a 30mph limit by a newly-licenced 18 year-old driver who lost control of his car on a bend when
approaching from the opposite direction. DG was wearing a helmet, reflective belt and had working front and back lights on his bicycle. Three parked cars were also written off in the crash. The driver was eventually charged with careless driving, fined £300 and disqualified for a year.
DG’s family had to campaign to have the trial adjourned until after the inquest which did not take place until 10 months after DG was killed. The coroner convened a jury and the driver attended. The car left no skid marks but other evidence from the crash scene showed that the driver had been travelling at speeds between 34mph and 49mph when he lost control of his car.
Figure 9: Stopping distances at different speeds (including a reaction time of around 1 second)
(Source: ECMT/OECD 2006:36, Fig. 2.1)
It was clear from testimony, both expert and lay, and from questions from the coroner and the jury that everyone was aware that speed was a factor in the crash. It was equally clear from all the testimony, including police witnesses, the coroner and the jury, that 34mph was considered a normal speed in a 30mph limit, despite having to allow for the possibility that this speed was dangerous enough to kill a healthy cyclist.
Although the evidence showed that DGs death had been the result of illegal speed, the coroner instructed the jury that without conclusive evidence that the speed had been at the upper end of the possible range there were no grounds for a finding of gross negligence. His death was the result of an ‘accident’.
The Family Liaison Officer told DGs family that DG had ‘simply been in the wrong place at the wrong time’. Cycling cautiously and legally was no protection. Once the driver lost control DG’s fate was sealed, but again the victim was to blame for his own death, even though a careless driving charge was brought.
3. ‘Beyond reasonable doubt’ the problem of evidence
We have shown that while speed is the most important single factor in crashes involving serious injury and death, it is likely to be underestimated in crash reporting except when blatant. Even so the evidence which is available may not support serious charges or indeed any charges.
Change in velocity is the primary quantity used for representing crash severity in crash reconstruction computer models but this information is said to be available in less than 40% of crashes investigated (NHTSA EDR Working Group 2001). The increasingly widespread use of anti-lock braking systems is removing one very important source of evidence of speed, skid marks. This was a problem in the case of DG. There is a terrible irony in the fact that just as research findings potentially make the system more sensitive to the dangers of speed, it is becoming harder to provide evidence of speed using traditional methods.
In addition, S89(2) of the Road Traffic Regulation Act 1984 appears to be having the perverse effect of discounting or excluding evidence of the contribution of illegal speeds to death and injury.
The availability and admissibility of evidence of the speeds involved in injury collisions poses serious problems for securing justice. Coupled with inappropriately high speed limits, it means that vulnerable road users are disproportionately likely to be killed but that those who kill them receive an exaggerated benefit of ‘reasonable doubt’, as the two case studies above demonstrate.
4. The standard of driving: the need for objectivity and a positive standard
‘... the Road Traffic Act 1991 ... required an objective assessment on how far the observed driving behaviour deviated from what a careful and competent driver would do, and on whether it would be obvious to a careful and competent driver that the behaviour was dangerous. Ironically, subjective assessment of the quality of driving still seems essential ...’ (Corbett 2003:20)
‘Cars and speed are part of the broader fabric of society, and their social and political contexts are important. For instance. if “deviants” were targeted for speed control purposes this could in fact mean those who refrain from speeding.’ (Corbett 2003:106)
We have argued that there is systematic insensitivity to speed in law enforcement and prosecution, despite the established dangers of speed in a given road environment and the evidence of speed as a contributory factor in road death and serious injury.
This insensitivity has implications for the view taken of the standard of driving, as illustrated by the two cases above. The function of the justice system in both cases was affected by very tolerant attitudes toward speeding on the part of all agencies involved, even when it resulted in death. A driver can speed, kill and still not depart from ‘the standard of the reasonable prudent and competent driver’. This tolerant attitude results from and underpins high rates of speeding which must influence the way the standard of driving is likely to be viewed in court cases (Figure 10).
The 2006 RAC Motoring Report found that a similar percentage (48%) of drivers self-report speeding while 84% consider themselves law-abiding (Coombe et al. 2006). A study of driver responses to speed cameras identified ‘conformers’ who would keep their speeds within a margin of up to 10mph above the limit ‘because they did not like breaking the law’ (Corbett 2003:123).
Surveys of drivers consistently find that the majority consider their driving to be above average, described as a ‘cognitive distortion’ by Corbett as is the ‘illusory’ perception of being in control, especially while speeding (2003:126 and 115).
A recent study of the attitudes of more than 2200 drivers found that only 38% of those who were involved in a crash changed their driving habits as a result while the majority considered that the crash was not their fault (Step Beyond and Midlands Safety Camera Partnership 2006). A 1999 study also found that the majority of drivers blamed others, even children, for crashes in which they were involved (Silcock et al.
1999). The driver who killed DC was officially entitled to this view of her driving by the way the case was handled.
Figure 10: Percentage of vehicles exceeding speed limit on non built-up and built-up roads in Great Britain, 2005
(Source: Department for Transport 2006c)
Views of the standard of driving — of the reasonable, competent and prudent driver — will be influenced by these ‘cognitive distortions’. In addition, the RAC survey makes it clear that drivers underestimate the importance of speed as a road safety problem. Instead, unaware of the evidence from STATS19, they perceive drink and drug driving to be the biggest road safety problems (89% and 55% respectively) and support tougher enforcement and punishment for the offence (Coombe et al. 2006).
Drivers will tend to choose speeds that are higher than is desirable for everyone because their knowledge is inevitably limited:
‘[D]rivers ... get much of the benefit immediately for themselves and their associates in terms of earlier arrival (and possibly the pleasure of going faster). They do bear some of the costs themselves (in increased fuel consumption, wear and tear to their vehicles, and risk of accidents and their consequences for themselves) but they are known to under perceive these costs. They do not themselves bear any of the human consequences for others than themselves and their associates, or much of the damage to the environment, or any of the damage to the quality of life in the areas through which they drive. This is why there is an inherent tendency for all of us to drive faster than is good for ourselves or society, and why speed management is largely concerned with moderating the currently chosen levels of speed.’ [our emphasis] (Allsop 2002:Ev 186)
On the other side of the windscreen, attitudes are changing, as the CPS consultation makes clear. Recent research into anti-social behaviour has found that ‘speeding traffic is rated as the greatest problem in local communities’ (Poulter and McKenna 2007:388; Wood 2004). Over half of people asked think that traffic in their area is dangerous to pedestrians and other road users and a quarter say the impact of traffic on their quality of life is serious (Department for Transport 2005a).
In 2005 The Association of Chief Police Officers, the Home Office and the Department for Transport acknowledged in a joint statement that speeding is one of ‘the four most significant dimensions of unlawful, disorderly and dangerous road and vehicle use’ (ACPO et al. 2005).
Conclusions, Recommendations and Answers to CPS Questions
Q1 What are your views on the approach proposed and in particular where do you think the boundaries between causing death by dangerous driving and gross negligence manslaughter may lie?
Speed is the most common factor in driving that causes death and injury. The way in which danger increases with speed can be quantified, including the levels at which the risk of causing death is very high (see section 1 of our response). Current investigative techniques will usually only conclusively
demonstrate the contribution of speed where it is blatant.
Therefore where death is caused and there is evidence that the driver was speeding, there should be a charge of causing death by dangerous driving up to speeds where the risk of causing death was certain.
We suggest that this threshold is at speeds about 20mph above the current posted limit for all speed limits.
Where drivers survive fatal crashes at these speeds, there should be a charge of gross negligence manslaughter. So, killing a pedestrian as a result of driving at 50mph in a 30mph speed limit would be gross negligence manslaughter.
However, we pose the following question. Speeding is against the law. When it can be shown that the death was a result of speeding (or other violations of traffic laws), why shouldn’t a driver who kills be charged with unlawful act manslaughter? Apart from the criterion that the vehicle should be used as an instrument of attack, causing death by speeding fits all the other criteria. Even mens rea is met if it is considered that speeding usually intentional (see 89-94). This would then reserve causing death by dangerous driving for forms of dangerous driving that did not involve law breaking as well.
Q2. Does the guidance for prosecutors (including the examples cited for each offence) need amending? If so, please say why. (see Chapter 3)
Yes.
Evidence based prosecution policy and practice
We refer to our answer to Q1. Excessive and inappropriate speed is dangerous. Prosecutors, like everyone else involved with the enforcement of road traffic law, should refer to the evidence base on speed, including available information on contributory factors, when assessing bad driving (see Section 1 of our response).
Prosecutors should also take account of the systematic insensitivities to the dangers of speed, reflected in high speed limits, enforcement effort and thresholds, the fact that the fixed penalty system that imposes minimum penalties and permits reoffending.
Ensuring better evidence is available for court cases
Prosecutors should advise police on the need for better evidence on speeds leading to and during
collisions. If speed is detected at all as a factor in a crash, then it is almost certain to have been dangerous.
The Crown Prosecution Code states that ‘Crown Prosecutors will be proactive in identifying and, where possible, rectifying evidential deficiencies ...’ (Annex A 4.2) The CPS has a clear role to play in overcoming the difficulties in securing evidence in cases of road death and injury. This is a very big problem and solving it should be the basis of a separate study and consultation:
• Could current investigative procedure be improved?
• Why are injuries to victims and damage to vehicles and property not taken into account to corroborate estimates of speed?
• What changes are required to secure better and more objective evidence?
In North America evidence from vehicle event data recorders (EDRs) that are installed as part of air-bag or braking systems is increasingly being used in court cases to provide evidence of speed and other driver actions in the seconds preceding a crash. Courts in Europe are beginning to ask why this information is not available here to ensure objective data and fairer, swifter trials (Schmidt-Cotta et al. 2006). From 2011 all passenger cars sold in the US which have EDRs will have to meet standards that will permit the evidence they contain to be used by appropriate legal and road safety agencies (ECMT/OECD 2006). The CPS could play a role, along with the police and road safety establishment, in ensuring that rapid progress is made in Britain to make EDR evidence available to the courts.
Objective and positive guidance on evaluating the standard of driving
The standard of a competent driver is liable to accommodate bad and dangerous driving, especially where speed is concerned, because it is subjective and inherently prone to underestimate the dangers and impacts of speed. There should be objective and positive references for the standard of driving as well as
examples of departure from competent driving.
STATS19 system of contributory factors should be used when evaluating bad driving. The Highway Code provides an objective standard of competent driving which includes observance of law and rules.
Moreover, all drivers must be familiar with the Highway Code in order to obtain a licence. The driving test is another objective standard of competence and also relies on the Highway Code.
The public interest test
We have discussed the issues which should be considered under the evidential test for prosecuting dangerous driving. The public interest test includes ‘the victim of the offence was vulnerable, has been put in considerable fear, or suffered personal attack, damage or disturbance’ (page 37, item i). We argued at the beginning of this response that bad driving causes fear, especially to vulnerable road users.
Speeding is anti-social and damages quality of life. It introduces noise and excessive air pollution in addition to fear and severance. The public interest in prosecuting bad driving goes further than securing
justice for vulnerable road users — policies to reduce obesity and slow climate change require a radical expansion of active travel, walking and cycling. Road danger is the main deterrent to the use of these modes.
Q3. What are your views on momentary inattention and single misjudgements? Where do you think the boundaries are between dangerous and careless driving? (see Chapter 3)
Recent research indicates that inattention though ‘momentary’ is likely to be frequent and plays a larger role in crashes than has been previously detected (Dingus et al. 2006). It offers further evidence of the inherent dangerousness of driving, and of the importance of law and regulation in reducing the seriousness of predictable conflicts between road users. A ‘single misjudgement’ is likely to be part of an habitual pattern of driver behaviour
Dangerous driving should be defined as involving law breaking and/or having the potential to cause death or serious injury. Careless driving would involve rule breaking and/or having the potential to cause minor injury.
Q4. Please provide any views, comments and examples of cases involving excessive speed where the decision as to whether the driving was careless or dangerous was not clear. (see Chapter 3)
See our discussion of prosecution practice in section 2.3 of our response and our response to Question 2.
Decisions on charging are influenced by estimates of speed and these are often considered unreliable due to availability of evidence or the absence of corroboration in the case of excessive speed. The CPS should be proactive in securing better evidence given the importance of speed in crashes.
Q5. Please provide any views and comments on prosecution practice in the area of employer/corporate liability. (see Chapter 3)
Research commissioned by the Health and Safety Executive estimates that ‘between 25% and 33% of all serious and fatal road traffic incidents involve someone was at work at the time’ (Work-related Road Safety Task Group 2001: 2). In delivery fleets where the pressure to speed is arguably the greatest the insurance claims rate is about twice the average. Company car drivers have about 50% more crashes than average drivers even after adjusting for the fact that they drive twice as far as average drivers (Lynn and Lockwood 1998). Characteristics of speeders include those who drive high annual distances, a company car and as part of their work (Stradling 2002).
This is an area which deserves separate study.
[Q6 and Q7: we support the response from RoadPeace.]
Q8. Do you think it would be beneficial for the case prosecutor to attend the inquest? If so, why?
(see Chapter 4)
Yes. See our discussion in section 2.3. Attendance at inquests would make case prosecutors aware of the evidence, and any deficiencies in it, which forms the basis for charging and the failure of coroners to consider the question of what should be done to prevent the recurrence of deaths which are the subject of the inquest and where there is a strong public interest in preventing their recurrence.
Q9. Should case prosecutors regularly attend court and prosecute road traffic cases where a death has occurred? (see Chapter 4)
Yes. Road death and serious injury are treated too lightly in the courts.
Q10. Is there any part of the document you strongly disagree with? If so please identify which paragraph and provide a brief explanation as to why you disagree.
‘the fact that the driving caused someone’s death does not make the driving dangerous’ (121) Not all dangerous driving results in death or serious injury. But all driving which causes death or serious injury must be dangerous, by definition, unless very exceptional circumstances can be proved. This is
supported by the earlier statement ‘the fact that a defendant genuinely believed that in the circumstances his or her driving was not dangerous is irrelevant’ (116).
Drivers should know how to take responsibility for and be held legally accountable for the amount of kinetic energy they have at their disposal and where it goes, otherwise they shouldn’t be on the public highway.
REFERENCES
Aeron-Thomas, A. (2000) Support and Better Treatment of Road Crash Victims - The Missing Chapter, London:
RoadPeace
Allsop, R.E. (2002) 'Road Traffic Speed: Understanding and Managing its Effects', in House of Commons Transport Local Government and the Regions Committee (2002)
Ashton, S.J. (2001) 'Influence of travelling speed on accident and injury risk in pedestrian accidents' presentation to Child Road Safety conference, Kingston-upon-Hull, May 2001
Association of Chief Police Officers of England, Wales and Northern Ireland (2004) Speed Enforcement Guidelines - Joining forces for safer roads
Association of Chief Police Officers, the Department for Transport and the Home Office (2005) Roads Policing Strategy
Coombe, D., Baxter, A., Carpenter, M. (2006) RAC Report on Motoring 2006. The Future of Motoring: A clear road map or collision course? RAC
Corbett, C. (2003) Car Crime Cullompton, Devon: Willan Publishing Department for Transport (2005a) Attitudes to streetscape and street uses Department for Transport (2005b) Road Casualties Great Britain 2004 Department for Transport (2006a) Road Casualties Great Britain 2005 Department for Transport (2006b) Setting Local Speed Limits Circular 01/2006
Department for Transport (2006c) Vehicle Speeds in Great Britain 2005 Transport Statistics Bulletin SB (06) 21 Department of Transport, Local Government and the Regions (2001) Road Accidents Great Britain 2000: The
Casualty Report
Dingus, T.A., Klauer, S.G., Neale, V.I., Petersen, A., Lee, S.E., Sudweeks, J., Perez, M.A., Hankey, J., Ramsey, D., Gupta, S., Bucher, C., Doerzaph, Z.R., Jermeland, J. and Knipling, R.R. (2006) The 100-Car Naturalistic Driving Study: Phase II — Results of the 100-Car Field Experiment DOT HS 810 593 Springfield, Virginia, U.S. Department of Transportation National Highway Traffic Safety Administration
ECMT/OECD (2006) Speed Management, OECD
Elvik, R., Christensen, P., Amundsen, A. (2004) Speed and road accidents: An evaluation of the power model, Oslo:
Institute of Transport Economics (TOI)
Fiti, R. and Murray, L. (2006) Motoring Offences and Breath Test Statistic England and Wales 2004 Home Office Statistical Bulletin 05/06 Home Office
House of Commons Transport Local Government and the Regions Committee (2002) Road Traffic Speed, Vol II:
Minutes of Evidence and Appendices, HC557-II, London:TSO
Lynam, D., Hill, J., and Barker, J. (2004) Developing a speed management assessment framework for rural single carriageway roads, Published Project Report 025TRL Limited
Lynn, P. and Lockwood, C. (1998) The accident liability of company car drivers TRL report 317, Crowthorne, Bucks: Transport Research Laboratory
NHTSA EDR Working Group (2001) Event Data Recorders - Summary of Findings bythe NHTSA EDR Working Group NHTSA National Highway Traffic Safety Administration
Poulter, D.R. and McKenna, F.P. (2007) 'Is speeding a “real” antisocial behaviour? A comparison with other antisocial behaviours', Accident Analysis & Prevention 39 (2007) 384-389 Elsevier
Robinson, D. and Campbell, R. (2006) 'Contributory factors to road accidents', Department for Transport Schmidt-Cotta, R-R., Steffan, H., Kast, A., Labbett, S., Brenner, M. (2006) VERONICA: Vehicle Event Recording
based on Intelligent Crash Assessment; Project Final Report, European Commission Directorate General for Energy and Transport (DG-TREN)
Silcock, D., Smith, K., Knox, D. and Beuret, K. (1999) What Limits Speed? Factors Affecting How Fast We Drive Basingstoke: AA Foundation for Road Safety Research
Singh, R. (2006) personal communication from Rashmeeta Singh in the Department for Transport's Road Safety Statistics Division, 6th March 2007
Step Beyond/ Midlands Safety Camera Partnerships (2006) Drivers' Attitude Study: Final Report, Midlands Partnership Group
Stradling, S. (2002) ‘Road Traffic Speed: Memorandum by Transport Research Institute, Napier University’
(RTS45) in House of Commons Transport Local Government and the Regions Committee (2002)
Stradling, S. (2004) 'Speeders and Crash Involvement', paper presented to 'Speed' Conference, organised by Brake at the Institution of Civil Engineers
Taylor, M., Baruya, A. , and Kennedy, J.V. (2002) The relationship between speed and accidents on rural single carriageway roads TRL Report 511 Crowthorne, Bucks Transport Research Laboratory
Taylor, M., Lynam, D. and Baruya, A. (2000) The effects of drivers' speed on the frequency of accidents, TRL Report 421 Crowthorne, Bucks Transport Research Laboratory
Transport Research Laboratory (2002) 'Speed and accidents - let's put the record straight' in TRL News September 2002, Transport Research Laboratory, Crowthorne
Wood, M. (2004) Perceptions and experience of antisocial behaviour: findings from the 2003/2004 British Crime Survey, Home Office Online Report 49/04; London: Home Office
Work-related Road Safety Task Group (2001) Preventing at-work road traffic incidents - Discussion document, Health and Safety Executive
