Dangerous Driving
The Meaning of Dangerous Driving
2A. — (1) For the purposes of sections 1 and 2 above a person is to be regarded as driving dangerously if (and, subject to subsection (2) below, only if —
(a) the way he drives falls far below what would be expected of a competent and careful driver, and
(b) it would be obvious to a competent and careful driver that driving in that way would be dangerous.
(2) A person is also to be regarded as driving dangerously for the purposes of sections 1 and 2 above if it would be obvious to a competent and careful driver that driving the vehicle in its current state would be dangerous.
(3) In subsections (1) and (2) above "dangerous" refers to danger either of injury to any person or of serious damage to property; and in determining for the purposes of those subsections what would be expected of, or obvious to, a competent and careful driver in a particular case, regard shall be had not only to the circumstances of which he could be expected to be aware but also to any circumstances shown to have been within the knowledge of the accused.
(4) In determining for the purposes of subsection (2) above the state of a vehicle, regard may be had to anything attached to or carried on or in it and to the manner in which it is attached or carried.
General Note
This section defines the meaning of "dangerous driving" for the purposes of ss.1 and 2 of the Act.
A person drives dangerously if the way he drives falls far below what would be expected of a competent and careful driver, and it would be obvious to a competent and careful driver that driving in that way would be dangerous (subs. (1)); or if it would be obvious to a competent and careful driver that driving the vehicle in its current state would be dangerous (subs. (2)). For this purpose, "dangerous" refers to a danger either of injury to any person or of serious damage to property (subs. (3)). The reference to "any" person indicates that a danger to the accused himself would suffice; a danger to a passenger in or on the vehicle would certainly be sufficient (cf. R. v. Klein, The Times, April 13, 1960).
In determining what would be expected of, or obvious to, a competent and careful driver in a particular case, regard is to be had not only to the circumstances of which he could be expected to be aware but also to any circumstances shown to have been within the knowledge of the accused (subs. (3)). So if, for example, the accused knew at the time of the driving that his vehicle was in some respect dangerously defective, that would be a matter to which the court would have regard, even if the defect would not have been obvious to another driver, however competent and careful.
Finally, in determining for the purposes of subs. (2) the state of a vehicle, the court may have regard to anything attached to or carried on or in it and to the manner in which it is attached or carried (subs. (4)). This enables the offences of dangerous driving to cover situations such as that in R. v. Crossman [1986] R.T.R. 49, where a conviction of causing death by reckless driving was upheld where a lorry was driven with an insecure load of which the driver was aware, and which fell off and killed a pedestrian.
Subs. (1) In Aitken v. Lees, 1993 S.C.C.R. 845 (H.Ct.), the accused was convicted of dangerous driving on evidence that he had overtaken a bus which had stopped at a red light at a pedestrian crossing, and had struck a child on the crossing. The sheriff stated that, looked at objectively, the accused’s driving had been dangerous and that the criteria in s.2A applied to it. On appeal, it was held that there had been ample material on which the sheriff could conclude that the text in subs. (1)(b) was satisfied, but that he had failed to address his mind to the test in subs. (1)(a). Given that this was a "marginal case", and that the question of the standard of the accused’s driving was one for the sheriff, as the judge of the facts, and not the appeal court, the conviction was quashed.
In McQueen v. Buchanan, 1996 S.C.C.R. 826, HCJ Appeal, the accused was convicted of dangerous driving on evidence that he drove at 114 m.p.h. on a single carriageway on which the speed limit was 60 m.p.h., the road being used by other drivers at the time. On appeal, it was held that it had been open to the sheriff, having found that there was traffic, albeit light, travelling in both directions, to assess the extent to which other drivers might be deceived or put at risk by the accused’s excessive speed and therefore to find that the statutory test was satisfied. The court observed that driving at excessive speed may in itself give rise to such obvious risks in certain circumstances that the statutory test is satisfied without requiring to carry out a minute examination of the road layout and the presence or otherwise of other road users. The demands of public safety require a common sense approach to determine what amounts to dangerous driving, and potential risks must be assessed when considering the particular circumstances which pertained at the time. See also Howdle v. O’Connor, 1998 S.L.T. 94, HCJ Appeal, where the sheriff acquitted of dangerous driving a motorist who had driven on a motorway at an average speed of 119 m.p.h., on the grounds that there were no hazards on the motorway at the time, the traffic was moderate and the road surface was dry. On appeal by the prosecution, it was held that the sheriff had taken too much account of the fact that the potential risks had not materialised and that, considering his grossly excessive speed and the presence of other cars, the accused had been guilty of dangerous driving.
A belief entertained by the accused at the material time is not relevant to the question whether he drove as a competent and careful driver would have done: R. v. Collins (Lezlie) [1997] R.T.R. 439, CA. In that case, a police driver crossed a junction against a red traffic light at nearly 100 m.p.h., with no visibility of the road entering onto the junction from his nearside. He believed the junction was controlled by other police officers, because of (1) his knowledge of police practice, (2) the fact that police officers had been controlling two earlier junctions, (3) the presence at the junction of a police car with flashing blue lights and (4) the apparent absence of moving traffic from the junction as he approached it. As he drove through the junction, he collided with another vehicle and two persons were killed. His convictions on two counts of causing death by dangerous driving were upheld on appeal. The court said that the officer’s driving had in the circumstances been clearly dangerous, and rejected the argument that the jury should have been directed to consider his belief that the junction was controlled by other police officers or, alternatively, that the factors operating on his mind at the time should have been put to the jury.
Subs. (2) Where the underside of a second-hand car recently bought by the accused was so corroded as to render the driving of the vehicle dangerous, but the accused was not aware of the corrosion, which would have been apparent only to someone going underneath the vehicle, it was held that the defect would not have been "obvious" to a careful and competent driver for the purposes of subs. (2): R. v. Strong [1995] Crim.L.R. 428, CA. The court said that for this purpose something would be "obvious" to a driver only if it could be "seen or realised at first glance, evident to him".
This test was approved in R. v. Roberts (David); R. v. George [1997] R.T.R. 462, CA, where it was pointed out that R. v. Strong involved corrosion in a second-hand vehicle recently purchased by an ordinary motorist, and that more might be expected, depending on the circumstances, of a professional driver such as a PSV or HGV driver. Furthermore, what might be obvious to, e.g., a trained mechanic, who was accustomed to doing all his own maintenance and repair work, might not be obvious to an ordinary, unskilled motorist. But in every case it would have to be obvious in the R. v. Strong sense that to drive the vehicle in its current state would be dangerous because of the relevant defect. The court added that where a driver is an employee, it will be important to consider any instructions given to him by his employers: generally speaking, it would be wrong to expect him to do more than he was instructed to do, provided that the instructions were apparently reasonable. In that case, the conviction was quashed of an employed driver who had complied with his employer’s instructions in relation to checking the wheels, nuts and tyres on his lorry, as there was no evidence that he should have appreciated the instructions were inadequate.
Although subs. (2) deals only with driving a vehicle in a dangerously defective state, it has been held that Parliament must have intended the offence of dangerous driving also to cover driving when the driver is in a dangerously defective state, whether through alcohol or for any other reason: R. v. Woodward [1995] 2 Cr.App.R. 388 at 395, per Lord Taylor C.J.; R. v. Marison [1997] R.T.R. 457, CA (diabetic with known propensity to sudden hypoglycaemic attacks).
It has been held in Scotland that the words "in its current state" in subs. (2) do not imply that the vehicle must be subject to a defect which makes it dangerous but include vehicles which can be considered dangerous by virtue of their design: Carstairs v. Hamilton, 1997 S.C.C.R. 311, HCJ (in which the court upheld a conviction based upon a finding that it would have been obvious to a competent and careful driver that driving a go-kart along a busy residential road would be dangerous).
Procedure: Scotland
In Scotland, unlike England, there is no right to claim trial by jury. The question of whether an offence should be tried summarily or on indictment is decided by the prosecutor. If the accused is charged on indictment he will necessarily be tried by a jury.
If the prosecutor decides to proceed summarily he serves a complaint under the Criminal Procedure (Scotland) Act 1995 (c.46). The charge in the complaint should be in accordance with the appropriate form prescribed in Sched. 5 to the 1995 Act or by Act of Adjournal (for which see s.305 of the Act). Citation of the accused proceeds on an induciae of 48 hours unless on account of special circumstances the court fixes a shorter induciae (s.140 (2) of the 1995 Act). Proceedings under the 1995 Act in respect of a statutory offence must be commenced within six months of the alleged contravention unless the statute or order alleged to have been contravened fixes any other period (s.136(1), (2)). Proceedings are commenced when a warrant to apprehend or cite the accused is granted (s.136(3)). The six-month period within which proceedings are to commence is calculated from the date of posting of the complaint and not the date of receipt thereof: see Lockhart v. Bradley, 1977 S.L.T. 5.
Objections to the competency or relevancy of a complaint should be stated at the first diet (s.144(4), (5)). The complaint may be amended at any time prior to the determination of the case (s.159): Herron v. Gemmell, 1975 S.L.T.(N.) 93.
It is not necessary to give particulars of the dangerous driving in the charge or indictment: Todrick v. Dennelar (1904) 7 F. (J.) 8; 12 S.L.T. 573 (complaint); Watson v. H.M. Advocate 1989 S.L.T. 24 (indictment); and see R. v. Warburton-Pitt (1991) 92 Cr.App.R. 136 at 138-139.
In Burrell v. Hunter, 1956 S.L.T.(Sh.Ct) 75, in a charge of dangerous driving it was alleged that the offence was committed by the accused "while suffering from a nervous disorder aggravated by the consumption of alcohol." The sheriff repelled an objection to the relevancy of the words quoted.
Where a course of driving falls into two separate parts, there is no reason why there should not be separate charges of dangerous driving and wanton and furious driving under the Offences Against the Person Act 1861 (c.100), s.35: R. v. Austin [1981] R.T.R. 10.
On a trial on indictment for an offence under this section, where the jury find the accused not guilty of the offence specifically charged they may find him guilty of an offence under s.3: RTOA 1988, s.24(1) (alternative verdicts).
As to the circumstances in which a judge should direct the jury on the possibility of an alternative verdict under s.3, see R. v. Fairbanks [1986] R.T.R. 309; R. v. Maxwell [1988] 1 W.L.R. 1265; and R. v. Jeavons [1990] R.T.R. 263. Where the possibility of an alternative verdict under s.3 is introduced for the first time in the judge’s summing-up, without warning to counsel and without counsel being afforded any opportunity to address the jury upon it, there is an irregularity in the course of the trial and a conviction of the alternative offence will be liable to be quashed on appeal: R. v. Hazell [1985] R.T.R. 369.
Where the prosecution do not accept a plea to careless driving and proceed with the count of dangerous driving (the indictment consisting of only one count) the plea to the lesser charge must be taken as being withdrawn. It is not open to the judge to convict on the basis of that plea in the absence of an alternative verdict by the jury: R. v. Thompson [1980] R.T.R. 386.
Where an employer sent out an employee to drive a vehicle which the employer knew was in a defective state and there was a serious risk of harm resulting to other road-users and the defect in fact resulted in an accident in which a person was killed, the employer was guilty of counselling and procuring death by dangerous driving: R. v. Robert Millar (Contractors) Ltd; R. v. Millar above. The employers gave their instructions in Scotland but the accident occurred in England and it was held that the accused were properly tried in England as the offence was not a self-subsisting crime, but one of participating in the dangerous driving in England.
Evidence: Scotland
Direct identification by witnesses may not be necessary if the driver has admitted to the police and others that he was driving and such admission is corroborated by other facts and circumstances: Copeland v. Shields, 1959 S.L.T.(Sh.Ct.) 509; (1959) 75 Sh.Ct.Rep. 15; Sinclair v. Clark, 1962 S.L.T. 307; Lockhart v. Crockett, 1987 S.L.T. 551. There was held to be sufficient corroboration, in the special circumstances of the case, in Sinclair v. MacLeod, 1964 S.L.T.(Notes) 60. But an accused is not sufficiently identified by the evidence of a single credible witness; Mitchell v. Macdonald, 1959 S.L.T.(Notes) 74. In Stewart v. M’Lugash (1962) 78 Sh.Ct.Rep. 189, evidence of the accused’s confession that he was the driver was held inadmissible because at the time of the confession he was a suspect person and had not been cautioned. But in Miln v. Cullen, 1967 S.C. (J.) 21, police asked a motorist, whom they believed to be unfit, whether he was the driver of a car. He answered in the affirmative, and was then cautioned and charged. It was held that the answer to the original question was admissible at common law, there being no unfairness. In applying the test of fairness one must have regard not solely and in isolation to the situation of the suspect or accused, but also to the public interest in the ascertainment of truth and in the detection and suppression of crime: Foster v. Farrell, 1963 J.C. 46, below, distinguished as relating only to admissibility under s.232 of the Act of 1960 (now s.172).
Defences
Most defences will concentrate on the quality of driving seeking to establish it did not meet the standard requyired to qualify as dangerous. This will often require independent expert evidence. Additionally in some cases other defences arise and these are dealt with below.
Defence of Automatism: Scotland
For the position in Scotland, see Ross v. HM Advocate, 1991 S.L.T. 564, overruling in part Cunningham v. HM Advocate, 1963 S.L.T. 345; and see Cardle v. Mulrainey, 1992 S.L.T. 1152; Ebsworth v. HM Advocate, 1992 S.L.T. 1161; MacLeod v. Napier, 1993 S.C.C.R. 303. It had been held in Cunningham that a special defence that the accused was not responsible on account of temporary dissociation due to epileptic fugue or other pathological condition was incompetent, as it did not claim a condition amounting to insanity. Lord Justice-General Clyde said "Any mental or pathological condition short of insanity…is relevant only to the question of mitigating circumstances and sentence." This aspect of the decision no longer represents the law, the High Court in Ross establishing that automatism resulting from an external factor may, as in England and Wales, be a defence. The essential requirements are that the accused must have experienced "a total alienation of reason amounting to a complete absence of self-control" due to "some external factor which was out with the accused’s control [and] which he was not bound to foresee" (Ross, at 569F). The reference to an "external factor" indicates that, notwithstanding the partial overruling of Cunningham, there is no reason to suppose that in Scotland epilepsy may found a defence of non-insane automatism: cf. Bratty’s case, above; R. v. Sullivan, above.
The defence in Ross v. HM Advocate was based upon the involuntary ingestion of drugs. If automatism is self-induced by the voluntary ingestion of drugs or alcohol, it cannot provide a defence: Finegan v. Heywood, The Times, May 10, 2000, HCJ Appeal, citing Brennan v. HM Advocate, 1977 J.C. 3 and distinguishing Ross (accused in state of parasomnia resulting from deliberate and self-induced intoxication).
In MacLeod v. Mathieson, 1993 S.C.C.R. 488 (Sh.Ct.), the accused, a diabetic, suffered a hypoglycaemic episode while driving on his own. His car crossed the carriageway and collided with two oncoming vehicles. He was charged with careless driving. He had been a diabetic for 18 to 20 years and, while he had never previously suffered such an episode while driving, on 50 per cent of the occasions when he suffered an episode, he did not recognise the symptoms. It was held that since he could have foreseen that if he drove a car, particularly if he was unaccompanied, he would at some time suffer a hypoglycaemic episode, he would not recognise the symptoms and he would be likely to lose control of the car, with potentially damaging consequences, the accused had failed to satisfy the test in Ross v. HM Advocate. Cp. Farrell v. Stirling, 1971 S.L.T.(Sh.Ct.) 71, which concerned a first hypoglycaemic episode which the accused had had no reason to foresee.
Defence of Mechanical Defect
"There does not seem…to be any real distinction between a man being suddenly deprived of all control of a motor car by some sudden affliction of his person and being so deprived by some defect suddenly manifesting itself in the motor car": R. v. Spurge [1961] 2 Q.B. 205. Such a defect may be a defence to a charge under this section if it causes a sudden total loss of control in no way due to any fault on the part of the driver; but such defence has no application where the defect is known to the driver or should have been discovered by him had he exercised reasonable prudence: R. v. Spurge, supra (considering Simpson v. Peat [1952] 2 Q.B. 24); Burns v. Bidder [1966] 3 All E.R. 29. See also Hougham v. Martin [1964] Crim.L.R. 414; 108 S.J. 138 (fanciful suggestion that modern mass-produced vehicles were prone to mechanical defects); R. v. Robert Millar (Contractors) Ltd [1970] 2 Q.B. 54; R. v. Atkinson [1970] R.T.R. 265.
Where the accused does not put a defence of mechanical defect forward, it is wrong for justices to speculate on such a potential defence: Bensley v. Smith [1972] R.T.R. 221.
Defence of Assisting in Lawful Arrest
Section 3(1) of the Criminal Law Act 1967 may afford a defence to a charge of dangerous driving where the acts alleged by the prosecution to amount to dangerous driving also amount to the use of reasonable force for the purpose of assisting in the lawful arrest of offenders: cf. R. v. Renouf [1986] R.T.R. 191.
Defence of "duress of circumstances"
In Scotland, there is no decision on whether there is a defence of necessity to charges under the section: McNab v. Guild, 1989 S.C.C.R. 138; Morrison v. Valentine, 1991 S.L.T. 413.
In Scotland a person convicted on indictment may appeal to the High Court of Justiciary against conviction and/or sentence. On summary conviction an appeal may be taken by way of Stated Case or Bill of Suspension.
Furious driving of carriages
By the Offences Against the Person Act 1861, s.35, "Whosoever, having the charge of any carriage or vehicle, shall, by wanton or furious driving or racing, or other wilful misconduct, or by wilful neglect, do or cause to be done any bodily harm to any person whatsoever, shall be guilty of an offence and being convicted therefore shall be liable at the discretion of the court to be imprisoned for any term not exceeding two years."
This antiquated offence serves little real purpose in the modern world. It derives from an era which predated the invention of the internal combustion engine, and its abolition has been recommended by the Criminal Law Revision Committee (14th Report, Cmnd 7844 (1980), p. 65) and the North Committee (Report of the Road Traffic Law Review (1988), para. 8.16). The only continuing utility of the offence is that, unlike the offences under the Road Traffic Acts, it is not confined to driving on a road or other public place. But the offence is rarely charged, and when it is, there is usually another and more appropriate charge available under the Road Traffic Acts and/or the legislation relating to offences of violence: cf. R. v. Okosi [1997] R.T.R. 450, CA, and commentary by J.C.S. at [1996] Crim.L.R. 666.
This section applies to all carriages and vehicles, public or private, and to bicycles: R. v. Parker (1895) 59 J.P. 793. As to "wanton" driving, see R. v. Burdon (1927) 20 Cr.App.R. 80; R. v. Okosi above.
In Scotland, the reckless driving of a vehicle or riding of a cycle is a crime at common law if it is to the danger of the lieges or if it causes actual injury: HM Advocate v. Harris, 1993 S.L.T. 963, overruling Quinn v. Cunningham, 1956 S.L.T. 55.
This article was written by Peter Watson of Levy & McRae. It is used with permission.
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