Philippa Luscombe, partner in the Penningtons Manches personal injury team, looks at the process of police investigation and prosecution following a serious road accident resulting in serious injury or death.

Investigating a road traffic accident

Police attendance at a road traffic collision (RTC) is required in the following circumstances:

  • any person is injured or killed;
  • there is a suggestion that a driver has been under the influence of drink or drugs;
  • the road is obstructed; or
  • there are any allegations or offences.

Initial response

The initial point of contact when there is an RTC is likely to be the control room. While dispatching officers and emergency services, the actions of the control room will also be the focus of the initial stages of any investigation. Control room staff should attempt to record such information as:

  • dangers at the scene
  • name, home address and telephone number of the informant
  • first account of the informant
  • location of the scene and possible entry and egress points
  • vehicle identification
  • details of other people present at the scene
  • first description of suspect(s).

Officers arriving at the scene of the RTC have primary duties above those of the investigation such as preserving life and treating injury, preventing further collisions, setting up traffic control. Their duties also include securing the scene for investigation (if needed).

Investigation

The level of investigation carried out will be determined by the circumstances and the level of injury. When a person is killed or seriously injured there will always be an investigation. There is also likely to be an investigation if there are aggravating circumstances such as driving while intoxicated or suspicion of an offence.

Where a collision has led to a death or life-changing injury, a Road Policing Senior Investigating Officer (RP SIO) will be assigned. A constabulary may have a specific Serious Collision Investigation Unit (SCIU) with its own specialist officers.

Although the RP SIO is responsible for all of the decisions made during the investigation, they will manage a team to carry out the investigation. The team will include:

  • Collision investigator(s) and/or vehicle examiner(s);
  • Family liaison officer(s) who will remain in touch with the family of anyone seriously injured and killed and advise them of the ongoing investigation
  • Investigating officer(s).

The investigation itself will involve:

  • implementing an investigative strategy:
      • allocating resources
      • taking investigative action
      • pursuing lines of enquiry
      • briefing and debriefing the team.
  • gathering forensic and witness evidence
  • recording the scene
  • developing and testing hypotheses
  • identifying parties, witnesses and other data sources
  • identifying materials that may need to be seized later
  • interviewing and managing suspects.

Interviews

An injured person and/ or their family may be interviewed as part of this process of investigation. However, the police will not interview anyone who is not physically or mentally fit to be interviewed. If Family Liaison are involved then they will often provide general updates on the progress of the investigation but cannot advise on the details of the evidence being obtained.

Impact statement

In cases where a prosecution is likely, the police may take what is known as an ‘impact statement’ from the injured person or relatives. This is aimed at setting out the impact of the defendant’s actions on individuals and to influence the judge when considering an appropriate sentence.

Steps and timings for making a decision to prosecute for road accident

When a crime is reported to the police there are three stages to the process:

Investigative stage

The police will gather evidence including forensic evidence and witness statements. Suspects may be arrested (but need not be) and will be interviewed under caution.

Based on the evidence the police will take one of three actions:

  • Issue a Notice of No Further Action if they believe there is insufficient evidence to take a case forward
  • Issue a formal warning or caution where they believe a crime has been committed but for which prosecution is not seen as appropriate
  • Charge a suspect with an offence.

Notice of Intended Prosecution

For an individual to be charged with an offence under the Road Traffic Act, they must be served a ‘Notice of Intended Prosecution’ (NIP) within 14 days of the incident.

If the driver of a vehicle is not known, then the owner of the vehicle may be served instead. NIPs can also be issued verbally to the driver at the time of the offence.

Serving an NIP does not automatically mean that the recipient will face prosecution: it is a warning that they may face prosecution.

Decision to prosecute

If a decision has been made to charge a suspect, the police will detail all the circumstances surrounding the alleged offence to the Crime Prosecution Service (CPS) in writing and provide all of the evidence gathered.

The CPS lawyers will review the case and determine whether or not to prosecute. Their decision will be based on two questions:

  • Evidential threshold – is the evidence such that there is a realistic prospect of conviction?
  • Public interest threshold – is it in the public interest for the offence to be prosecuted?

If the evidential threshold is not met, the matter may be is referred back to the police for further investigations and evidence gathering before being reassessed by the CPS. If the thresholds are still not met then the CPS will discontinue the case. A decision to prosecute must be made within six months of the accident.

Prosecution in the public interest?

Given the serious nature of cases involving a death or serious injury, the public interest will usually be in favour of prosecution. However, there will be cases where the CPS decides that it is not in the public interest to prosecute.

Cases where the death or injury in an RTC is that of a close friend or family member of the potential defendant pose serious considerations on whether prosecution is in the public interest. Prosecutors must balance the consequences to the driver against the need to ensure the safety of other road users. Where the risk of a similar incident occurring is low, the CPS may decide not to charge.

What offences are prosecuted?

There are a number of offences which can arise from driving incidents.

  • If the vehicle was intentionally used as a weapon to kill or commit grievous bodily harm, a charge of murder may be considered.
  • If the killing was involuntary, that is to say, where it was not intended, manslaughter may be considered. Manslaughter may arise as unlawful act manslaughter and gross negligence manslaughter.
  • In cases where a death has occurred as a result of the manner of driving, and it is clear from the available evidence that the standard of driving has been grossly negligent on the part of the driver, a charge of gross negligence manslaughter will be the correct charge.

The prosecution must prove the following:

  • The suspect owed the deceased a duty of care
  • The suspect was in breach of that duty
  • The suspect caused the death of the deceased
  • The driving fell far below the minimum acceptable standard of driving such that there was an obvious and serious risk of death
  • The conduct of the suspect was so bad in all the circumstances as to amount to a crime in the opinion of the jury.
  • It will sometimes be apparent that working regimes, dangerous or illegal practices, or negligence have contributed to a death. In these circumstances, corporate manslaughter liability may arise for organisations such as corporations, certain government departments/bodies, police forces, partnerships or trade unions etc.
  • The offence of causing death by dangerous driving may also be charged when the suspect’s driving is a cause or factor in the death of another person and the driving was dangerous. The definition of "dangerous" is that the standard of driving 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.

Other charges that may be brought include:

  • causing death by careless driving when under the influence of drink or drugs
  • causing death by driving while unlicensed, disqualified or uninsured
  • wanton and furious driving
  • causing serious injury by dangerous driving
  • dangerous driving
  • driving without due care and attention
  • driving without reasonable consideration
  • a section 47 assault charge, particularly where the injuries are such that they do not evidentially satisfy the offence of causing serious injury by dangerous driving.

Bail

A suspect who is charged may be bailed until a court date. The police will only bail a suspect if they are confident the suspect will attend court on the given date and will not pose any threat to the public or commit any crime. If the police are not confident the suspect will attend court or the suspect is accused of a serious or violent offence, the police may decide to remand the suspect in custody until the court date. A suspect may also be bailed without charge and will be given a date to return to the police station to find out if they will be charged.

Disclosure

In a criminal trial the prosecution is obliged to disclose all its relevant evidence to the defence in advance of the trial. A person charged with a criminal offence has the right to be provided with the evidence the prosecution intends to use at their trial, as well as the evidence which it has but does not intend to use, if that evidence could assist the defence.

Trial process

The prosecution team puts its case forward, presents its evidence and calls its witnesses (whom the defence may cross-examine)

  • If the court believes there is a case to answer, then the trial will proceed. If not the trial will end
  • The defence team submits its case, presents its evidence and calls its witnesses (whom the defence may cross-examine)
  • Both sides will make closing arguments and speeches
  • Court gives verdicts and reason.