John Dales, Director
I was browsing my Twitter timeline the other day, and came across something that I found properly objectionable. It was a statement from a solicitor who specialises in motoring law, and whose Twitter identity emphasises his focus on defending those accused of driving offences. The utterance that caught my eye was this:
“Unhappy client this morning converted to a happy one as he left court with 19 points and still has a driving licence.”
In case you don’t know, you’re liable for a minimum six-month driving ban if you amass 12 or more penalty points (endorsements on your licence) within 3 years. How you might accrue points varies. For example, if caught, exceeding the speed limit will give you 3-6 points, depending on how much over the limit you went; using a mobile phone is also punishable by 3-6 points; driving or attempting to drive with alcohol level above the limit has a 3-11 points tariff; and using a vehicle with defective brakes is worth 3 points. You can explore the huge range of offences and penalties here, if you’re so inclined.
I do, of course, know nothing about the particulars of the case; and I’m not actually taking issue with the solicitor in question (other than about his boasting). As he said later:
“I don’t make the law or the decisions. Laws allow people to argue they shouldn’t be banned. If you don’t like it then tell your MP.”
It is these laws, as they relate to driving, and their application in our courts that I am taking issue with.
Drilling down a little, I found that the solicitor explained that the reason his client didn’t get a driving ban, despite the 19 points, was because the court accepted his plea that a ban would cause “exceptional hardship”. Looking elsewhere, I find that the law doesn’t seem to define what “exceptional hardship” means in any hard and fast way. Issues that might qualify include the loss of employment leading to the loss of accommodation, loss of the ability to travel to work, and the knock-on impact on third parties (e.g. due to a business having to close). Should you wish, you can read an enlightening case study on this topic here. Coincidentally, this case also involves a driver with 19 points on his licence.
Reflecting on this, I think it’s reasonable to accept that a driving ban that might cause “exceptional hardship” should not be imposed lightly. However, I also think that the burden of responsibility for not being disqualified from driving lies – plainly – with the driver. If the driver believes their ability to drive is essential for the avoidance of “exceptional hardship”, then they should drive within the law. A single breach of the law is understandable, if not acceptable, but if a driver has accrued 19 points within three years, they have missed several reminders of the precariousness of their position and it is highly questionable whether they deserve what one might describe as the court’s mercy.
Interestingly, the solicitor I started with later commented, “Got to admit I agree with this” when someone else proposed:
“There should be no hardship (excuse). I’ve never had a single point or even a parking ticket. I drive for the job, and personally. A driving licence is essential to my current role, so I don’t do anything to risk having it taken off me. If you’re on 9 points then obey the law. Easy.”
That said, the person or people likely to experience “extreme hardship” may not necessarily be the driver themselves, and this does indeed introduce other considerations.
One set of considerations I’d like to draw attention to are the facts that, on average, five people are killed, 75 are seriously injured, and 400 are slightly injured UK roads – every single day! For ‘slightly injured’ you can read ‘needing proper medical attention’; for ‘seriously injured’ you can read ‘a few inches the other way and it would have been curtains'; and for ‘killed’ you can read ‘made dead’.
You would not wish a ‘slight’ injury on anyone you care for, including yourself; and it’s entirely reasonable to state that hundreds of people daily begin experiencing “exceptional hardship” because of injuries they personally sustain on our highways. The length of this experience will be considerable in many cases. And hundreds (possibly thousands) more – those who are dependent on people who are killed or seriously injured – also begin experiencing “exceptional hardship” every day.
UK data from 2017 show that 44% of people killed on our roads were in cars, 26% were walking, 19% were motor-cycling, and 6% were cycling. Putting causal factors (and blame) to one side, those killed while walking were almost all hit by something bigger/heavier/faster. The same is likely to apply to most of those killed while cycling. When you then look at fatality rates (deaths per distance travelled) this shows that people walking are around nine times more likely to be killed while travelling than those in motor vehicles with four or more wheels; and people cycling around eight times more likely. (People motorcycling are around 30 times more likely to die per mile travelled than people in vehicles with four wheels or more.)
A study of five years of UK collision data published by the Institute of Advanced Motoring in 2011 found driver/rider error to be the main contributory factor in crashes; it being cited in 67.5% of all collisions in which someone was injured (65% in fatal crashes and 62% in the case of serious injuries).
In other words, huge numbers of people begin to experience “exceptional hardship” every day as a result of bad driving. Even if we put aside the fact that most of these people (including all of the dependents) will be entirely innocent victims, shouldn’t we, as a society, be seeking to do all we can to reduce the likelihood of people experiencing “exceptional hardship” because of traffic violence?
As they stand, however, our laws and their application seem somehow to be in sympathy with the saying often attributed to Stalin that “a single death is a tragedy; a million deaths is a statistic”.
The MP Ken Clarke is someone I generally have a lot of time for, but he seemed to reveal the same blindness to what we might call ‘the greater harm’ when, as Justice Minister in 2010, he said the following:
“In the case of ordinary dangerous driving without any serious consequences, although I deplore all dangerous driving, we cannot start imposing heavy prison sentences on everybody who might otherwise be a blameless citizen and then behaves in an absolutely reprehensible way when driving his car.”
(If you want to explore the context, have a look at Column 180 in the December 7th 2010 episode of Hansard.)
In my view, this is very dangerous talk because it sends out the message that, so long as there don’t happen to be any serious consequences from a specific case of ‘absolutely reprehensible’ driving, the law should be lenient. But what about the next incident; or the next? 19-point drivers are essentially serial offenders and in many ways they’re ‘collisions waiting to happen’. Misguided leniency in the case of less serious incidents also completely ignores the fact that many slight injuries are a margin away from being serious, and many serious injuries are a whisker away from being fatalities.
At least Mr Clarke did then say he was open to exploring changes in the sentencing regime relating to driving. But it wasn’t until May 2014 that the Ministry of Justice announced a ”full review of all driving offences and penalties, to ensure people who endanger lives and public safety are properly punished”. It then took another two and a half years (December 2016) before the MoJ finally published consultation on a decidedly partial review of ‘Driving offences and penalties relating to causing death or serious injury’.
The report of that consultation, published in October 2017, said that “the responses to the consultation demonstrate considerable support for the Government’s proposals to create a new offence of causing serious injury by careless driving and to increase the maximum penalties for the offences of causing death by dangerous driving and causing death by careless driving under the influence of drink or drugs from 14 years’ imprisonment to life”. But we’re still waiting for any action.
Just as worrying, to me at least, is the following extract from the consultation report, concerning the proposal to increase the minimum period of disqualification for drivers convicted of any causing death by driving offence:
“A number of respondents made the point that disqualification periods were more important as a deterrent in response to less serious driving offences, before a driver went on to commit more serious offences that could lead to death or serious injury.”
Very unhelpfully, this seems to confuse the matters of ‘serious offences’ and ‘serious consequences’. When you’re in charge of a motor vehicle travelling at speed, a relatively minor offence (e.g. travelling a few miles and hour over the limit) can have major consequences (e.g. death rather than injury).
This point is somewhat moot, of course. Because, almost nine years after Ken Clarke said it was worth “having a look” at sentencing changes, and more than five after his successor as Justice Minister (Chris Grayling – heaven help us all) promised a “full review of all driving offences and penalties”, nothing at all has happened.
The longer the law and successive Governments tolerate bad driving, the longer judges and especially members of juries will do likewise. It is an unavoidable conclusion, from numerous relevant court cases, that many members of many juries easily imagine themselves behind the same wheel as the defendant. “I don’t always keep to the speed limit either. I’ve also had problems when the sun angle is low. We’ve all had our sorry-mate-I-didn’t-see-you moments. And who hasn’t had people walking or cycling out in front of them without warning?” This remarkable Twitter thread (by Jon Ormondroyd, I think) is both an extraordinary piece of research and, by turns, a dispiriting and heart-breaking indictment of our current traffic laws, sentencing rules, and related court decisions. Read ‘em and weep.
Historical sources indicate that it was Spiderman’s uncle who said, “With great power comes great responsibility”. As things stand, however, the legal system does not assign great enough responsibility to drivers who, behind the wheel of vehicles weighing upwards of a tonne, clearly have – as the record shows – great power to kill and maim (even if none of them intend to do so).
Since a comprehensive review of traffic laws and sentencing guidelines was promised, in May 2014, nothing has changed. In the same period, around 10,000 people have been killed on the UK’s roads.
Five people dead every day. Seventy-five more seriously injured. Every day. If we’re really worried about cases of “exceptional hardship” in the context of bad driving – and we should be – then this is where we should start.
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We can all add our voice to the call for urgent reform of the law on traffic offences. One way is to follow the advice of the solicitor I began with and ‘tell your MP’. And you can also support the campaigning work of organisations like Road Peace and Brake; with the latter’s Roads to Justice Campaign specifically calling for the closure of ‘the “exceptional hardship” loophole’. It’s more than high time for change – and you can help make the difference.
This House of Commons Briefing Paper on Serious Driving Offences, published in December 2016, provides useful background up to the launch of the Government’s consultation on a limited review of driving offences and penalties.