One of the aims of the Road Safety Act 2006 is to make roads safer and reduce the number of accidents by discouraging dangerous driving behaviour such as speeding and drink driving. In light of this objective, two new offences of causing death by careless (or inconsiderate) driving and causing death while driving unlawfully have been created by the 2006 Act and came into force on 18 August 2008.
Death by careless driving
Causing death by careless (or inconsiderate) driving is one of the most contentious areas of the 2006 Act. It is a lesser offence to causing death by dangerous driving and is punishable by a maximum penalty of 5 years imprisonment. Previously, where death resulted from careless driving, at its worst, the penalty was a driving ban, penalty points and/or a fine.
The legal test for this new offence is that, beyond all reasonable doubt, the standard of driving fell below that expected of the reasonable, competent and careful driver. This is in contrast to falling 'far' below, which is the test for death by dangerous driving.
Inherent in the concept of causing death by dangerous driving is the link between the nature of the driving and the resulting death. The dangerous driver who is drunk or under the influence of drugs knows that there is a significant and foreseeable risk of a crash. Criminal intent is present.
However, careless driving involves culpability at its lowest level. All drivers, however experienced, will make mistakes of one sort or another, at one time or another. That does not necessarily mean that their driving has fallen "far below" the appropriate standard. The effect of the new offence is that "mere negligence", such as a momentary lapse in concentration which results in a fatality, could lead to a custodial sentence. Intent is not present. Each case will be judged on its own facts and circumstances.
Death while driving unlawfully
Causing death while driving unlawfully, that is, while unlicensed, disqualified or uninsured, is punishable with up to two years imprisonment and/or a fine.
Employers and fleet managers should be aware of these new offences, particularly death by careless driving, and what steps can be taken to assist employees involved in such an incident and keep disruption to their businesses to a minimum.
Action points for practical steps to take in light of the new offences
The new offence of causing death by careless (or inconsistent) driving enacted by the Road Safety Act 2006 came into force on 18 August 2008. Employers and fleet managers should consider the following action points to minimise the risk of offences being committed and business being disrupted as a result:
- A thorough review and/or extension of an organisation's driving policy is particularly critical given the Corporate Manslaughter and Corporate Homicide Act 2007, which came into force on 6 April 2008. An organisation can be found guilty of an offence if the way in which its activities are managed or organised (1) causes a persons death; and (2) amounts to gross breach of a relevant duty of care owed by the organisation to the deceased. Conviction under this Act will result in an unlimited fine payable by the organisation which can have a serious impact on business reputation and profitability for years to come. This may be particularly relevant where, for example, an employee driving on company business is involved in a fatal road traffic accident while using a mobile phone contrary to company driving policy and upon investigation it is discovered that senior management knew that employees were ignoring the driving policy or simply failed to supervise and monitor employees to ensure compliance. Each case will be judged upon its own facts and circumstances.
- Prevention is better than cure. Reduce the risk of an accident. If not already in place give serious consideration to extending your health and safety policy and procedures to cover issues such as use of mobile phones and other handheld devices while driving on company business, ensuring drivers take appropriate rests on long journeys, have time to complete their journeys safely, are not unduly tired when undertaking any journey for work and check continuing competence by requiring employees to produce driving licences and notification to you of any driving convictions on an ongoing basis.
- If drivers use their own vehicles for work, consider monitoring the road worthiness of their vehicle through the requirement to produce valid MOT certificates, valid insurance (including business use) and service documentation. This increased monitoring may avoid potential comeback on an employer in the event of an accident and heighten awareness, so reducing the risk of an accident.
- All employers have a duty to assess, inform, train and supervise workers who drive vehicles as part of their jobs (in the same way that they do for workers who use any type of work equipment), regardless of the regularity of the driving. All reasonable practicable measures should be taken to ensure that work related journeys are safe, staff are fit and competent to drive safely and the vehicles used are fit for purpose and in a safe condition. This applies equally to frequent and infrequent drivers, such as employees travelling between sites. For infrequent drivers consider a classroom based workshop covering key road safety issues, such as fatigue, speed management and vehicle checks as well as the organisation's driving policies.
- Business disruption occurs when a key member of staff is not available for work due to a road collision, whether during or outside work. Consider making arrangements for immediate legal representation to be available for any drivers arrested for road traffic offences so that they can be fully represented at interview. Those charged with death by careless driving are likely to want the case to go to trial in an attempt to avoid a custodial sentence, even if the chances of success are slim. This is despite the reduced sentence that a guilty plea would attract. It is imperative that they do not unwittingly compromise their position through unguarded comments.
- Have in place and make employees aware of clear, written guidelines for what the employee and employer must do following a fatal or serious road traffic accident. For example, employees might be advised that in the event of such an incident they can choose not to agree to a police interview until they have spoken with their employer and they in turn have organised for immediate legal representation at the police station.
- Consider very carefully your motor insurance policy wording to ascertain exactly what legal costs cover is provided for criminal prosecutions and the extent to which such cover is discretionary. Change your provider if necessary.
A one-size-fits all approach does not work when it comes to managing occupational road risk. But, from a legal and business disruption perspective, it is important that no employee who drives for work is overlooked when it comes to risk assessment and training considerations, no matter how frequently they take to the road.