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Select Committee on Transport Written Evidence


Memorandum by Brake (TLE 22)

TRAFFIC LAW AND ITS ENFORCEMENT

BACKGROUND INFORMATION ON BRAKE'S WORK

  Brake is the national road safety charity, dedicated to stopping deaths and injuries on roads and to caring for people bereaved and affected by road crashes. Brake carries out research into road users' attitudes on aspects of road safety, including traffic law and its enforcement. It also works with people bereaved and seriously injured in road crashes to campaign for changes in the law, which will benefit road safety.

  Brake is a registered charity funded by donations and by four Government departments—Home Office, Department for Transport, Department for Education and Skills and the Department of Health.

  Like anyone who breaks the law and endangers lives, drivers who break laws on the road should expect to be punished for their risky behaviour. Drivers who cause death and injury, or put their own and others' lives at risk through their illegal driving; and companies running fleets of vehicles which do not follow safe procedures, must be held to account through the criminal justice system. This system must ensure that the charges brought and penalties incurred are appropriate to the offence and discourage law-breaking on the road. However, many people who are affected by road crashes and the agencies who support them feel that the justice system is not working when it comes to prosecuting and penalising drivers for bad driving.

DETAILS OF BRAKE RESEARCH RELEVANT TO THIS INQUIRY

  (NOTE: all Brake publications and documents mentioned are available from Brake by calling 01484 559909)

  Traffic law and its enforcement is central to Brake campaigning. Since our inception, we have believed that comprehensive enforcement of improved traffic laws is key to preventing deaths and injuries on roads. Key research published by Brake includes:

1.   Green Flag report on safe driving, 2001, researched and published by Brake

  A survey of more than 1,000 drivers on the topic of charges and penalties and the need for speed cameras and other types of enforcement. This report found that popular opinion would support a tougher charge and penalty structure for dangerous drivers, and increased levels of enforcement, to get dangerous drivers off the roads.

2.   Careless and death by dangerous driving sentences, 1998

  Brake researched 22 verdicts of careless driving and 34 verdicts of causing death by dangerous driving following a total 104 deaths on the road and found that: out of 22 verdicts of careless driving brought against drivers (who had caused a total 42 deaths), the average fine was £500; and out of 34 verdicts of causing death by dangerous driving brought against drivers (who had caused a total of 62 deaths), 28 sentences were less than four years in prison. The lowest prison sentence was four months.

3.   Numerous consultation responses to Government reviews and select committee investigations

  These include: On the move by foot (Department for Transport consultation on setting up a strategy to encourage walking, September 2003); Proposal for an offence of using a hand-held mobile phone while driving (Department for Transport consultation on bringing legislation to ban certain types of mobile phone while driving, November 2002); The nature and effects of illegal and inappropriate road traffic speed (Transport Select Committee inquiry, January 2002); The Goods Vehicle (Enforcement Powers) regulations 2001 (Department for Transport consultation on bringing legislation to allow the impounding of illegal commercial vehicles, May 2001); Preventing at-work road traffic incidents (Health & Safety Executive consultation, May 2001); Review of road traffic penalties (Home Office consultation on penalties for traffic offences, March 2001).

4.   ANECODOTAL INFORMATION COLLECTED BY BRAKE

  BrakeCare is in constant contact with police traffic officers as we are the provider of Home Office funded care literature and also of training in victim liaison issues for traffic police. This has resulted in BrakeCare being given a lot of anecdotal information from a variety of police forces about the lack of resources for traffic policing. This anecdotal evidence, collected by BrakeCare from conversations with various police forces, suggests very strongly that the number of dedicated, skilled and experienced traffic police is falling.

IS THE LAW ON TRAFFIC OFFENCES APPROPRIATE?

  It is widely recognised that enforcement measures to get dangerous drivers off our roads need to be backed up by appropriate charges and penalties for driving offences, to ensure that drivers fully understand the potential risk they pose to road users by driving dangerously.

Charges for traffic offences

  Brake recommends that the offence of "careless driving" be scrapped, as the term "careless" undermines the seriousness of the offence: careless driving is dangerous. Brake considers the charge of "careless driving" to be grossly inappropriate for drivers who break the law by taking risks on the road. The word "careless" should not be applied when an action puts lives at risk, as happens when any driver takes risks behind the wheel.

  At present, there is only one word's difference between the legal definitions of "careless driving" and "dangerous driving". "Careless driving" is defined as "driving that falls below the standard expected of a careful and competent driver" and "dangerous driving" is defined as "driving that falls far below the standard expected of a careful and competent driver." This means that to convict a driver of "dangerous driving" or "death by dangerous driving", the magistrates or jury must be convinced that the standard of driving was "far below", rather than merely "below" the required standard. This can be perceived as a difficulty: Crown Prosecutors are often reluctant to bring a charge of "dangerous driving" or "death by dangerous driving", rather than "careless driving", unless there are several "aggravating factors".

  In January 2002, the then Department for Transport, Local Government and the Regions published a research report by TRL, Dangerous driving and the law. The report confirmed that the 1991 Road Traffic Act, which was designed to reduce the difficulties with the charges of "careless driving" (where a death had resulted), "dangerous driving", and "death by dangerous driving", had not been entirely effective.

  In the cases it analysed in the report, TRL noted that prosecutors often preferred a charge of "careless driving" to "death by dangerous driving". It also noted that maximum penalties are rarely used in "dangerous driving" cases, stating that "cases which appear to be very serious often receive less than half of the maximum sentence."

  Brake considers that scrapping the offence of "careless driving" would not only lead to fewer difficulties for Crown Prosecutors in bringing cases to a satisfactory conclusion, but would also help to change the false public perception that many crashes are "accidents" that cannot be avoided.

  Another major failing of the current criminal justice system is the lack of a charge of "causing serious injury by dangerous driving". The TRL report recommended that this oversight in the law be rectified by introducing legislation to create a charge of "causing serious injury by dangerous driving". Brake agrees and considers that this charge should carry the same maximum penalty as that of "causing death by dangerous driving".

  Brake is raising both these points with the Home Office this month as part of the HO review of charges which is currently being undertaken, partly as a result of Brake's campaigning.

Penalties for traffic offences

  Brake welcomes the Government's promise to increase the maximum penalty for dangerous driving to five years jail and death by dangerous driving to 14 years jail. It should act on these promises as soon as possible. The Government should also introduce the same maximum penalties for "permitting" these offences. Brake urges the Government to act quickly on its intention to raise penalties for these offences to signal its commitment to taking bad driving seriously.

  However, Brake is concerned that fines for driving offences where a death or serious injury has not occurred are often not high enough to deter drivers from committing offences. It therefore welcomes proposals to link fines to ability to pay, particularly when this has the effect of increasing the fine. The Home Secretary should link fixed penalty fines to the driver's ability to pay, with anyone earning the national average wage being fined at least £1,000.

  Brake is also concerned that fines against companies should be severe. Previous research by Brake has indicated that sometimes the fine for failing to replace a bald tyre can be less than the cost of the tyre itself. Also, company directors, individually named, and companies, should be successfully charged with manslaughter when their systems have directly led to a death—for example, telling a driver to ignore tachograph regulations leading to a death when the driver falls asleep, or failing to ensure vehicles use banksmen to reverse, resulting in a death of a pedestrian. These charges should result in prison sentences, as well as large fines against the companies. There is currently a failure to make corporate liability charges stick in the courts.

  Other penalties that should be introduced, which Brake considers would act as a deterrent to committing driving offences include:

    —  a requirement for all drivers disqualified for six months or more to be required to retake the driving test to re-take their licence;

    —  a requirement for all drivers receiving a second driving disqualification to receive an automatic ban from driving for life;

    —  a requirement for all drivers retaking the driving test following a ban to be required to attend a compulsory driver improvement course;

    —  penalties running consecutively rather than concurrently. In particular, driving bans should only start once a driver is released from custody;

    —  a requirement for all drivers taking compulsory driver improvement courses to undergo an assessment of their attitude towards driving to determine whether they have completed the course successfully.

  Brake welcomes the use of "non-traditional" penalties such as community service and driver improvement courses for minor driving offences, when they are likely to prevent the driver from re-offending. However, it considers that the availability of "non-traditional" penalties should not deter the courts from handing out tough penalties for blatantly dangerous driving. It therefore recommends that the Home Office issues strict guidelines on when "non-traditional" penalties can be imposed.

Do police and other enforcement agencies have the right priorities?

  Brake considers that the lack of priority given to traffic policing by central Government is hampering Government efforts to reduce the number of casualties on our roads. A 1998 thematic inspection report by HM Inspectorate of Constabulary, Road Policing and Traffic, recommended that "road policing should be an integral part of core policing". Despite this recommendation, traffic policing is still not among the national policing priorities for forces in the UK.

  The current National Policing Plan, published in November 2002, is indicative of the Government's lack of commitment to traffic policing. In this document, the Home Office sets four main policing priorities for all forces: tackling anti-social behaviour and disorder; street crime and violent crime; organised crime across police boundaries; and increasing the number of offences brought to justice.

  The National Policing Plan 2003-06 affords only a one-paragraph mention of traffic policing in the main text (3.39, page 20) and merely places road casualty reduction among a list of issues that should be "considered" by forces when developing local strategies, rather than among the national policing priorities.

  Anecdotal evidence collected by Brake, from conversations with various police forces, demonstrates that the number of dedicated traffic police is falling, due to focus on the priorities outlined in the National Policing Plan and traffic officers are being re-deployed to meet targets elsewhere in the force, which are seen as having a higher political priority. As a result, many police traffic departments (where dedicated traffic departments still exist) are left under-staffed, under-resourced and with low morale, feeling that their valuable efforts in getting dangerous drivers off the roads are under-appreciated.

  Brake is concerned that in-depth investigations, such as the investigation carried out into the tired driver who caused the "Great Heck" train crash in 2001, are not possible in the majority of road crashes, due to a lack of trained Accident Investigation officers available to carry out road crash investigation in the police and Vehicle and Operator Services Agency (VOSA). This may be one reason why many of the cases where crashes are suspected to have been caused by tired drivers (an estimated one in five crashes) cannot be proved and why only half of drivers involved in fatal crashes are tested for alcohol.

  Brake therefore recommends that the Home Office makes traffic policing a national priority for police forces in the next National Policing Plan. If this is not possible, Brake recommends that there are, at the least, measures in place to prevent numbers of traffic police from being depleted in order to meet force targets for other national priorities.

Is sufficient priority being given to the needs of pedestrians and cyclists?

  The primary need of pedestrians and cyclists on our roads is safety. Concern for safety on the roads is one of the major factors for the decline in numbers of pedestrians and cyclists in recent years, as noted in the Department for Transport's recent discussion document On the move by foot (September 2003). Before committing to walking and cycling on a regular basis, people need to be convinced that:

    —  there are appropriate speed limits and enforcement procedures in place;

    —  drivers respect these speed limits and drive responsibly;

    —  dangerous drivers have a high chance of being apprehended by traffic police and subject to strict and appropriate penalties; and

    —  there are appropriate engineering measures in place to help pedestrians, including crossings.

  Given that 808 pedestrians and 133 cyclists were killed, and 38,884 pedestrians and 17,146 cyclists were seriously injured, on British roads in 2002, these conditions are evidently not being met at present. In fact, the UK has one of the worst records in Western Europe for killing and injuring child pedestrians on the roads. Although pedestrian and cyclist casualty figures have fallen in recent years, this is partly due to decreasing levels of walking and cycling, rather than an indication of roads being safer. Until our roads are made safer through greater investment in engineering and enforcement measures that produce evidence of a real change in danger levels for pedestrians and cyclists, this vicious circle will not be broken.

  Speeding is one of the major threats to pedestrians and cyclists, and there is a direct link between speed and chance of survival: if a driver hits a child at 35 mph, they are twice as likely to kill them as at 30 mph. Where speed cameras have been installed, under the aegis of local Safety Camera Partnerships, drivers have slowed down, with a consequent reduction in casualties. Drivers on roads without speed enforcement, however, continue to drive too fast. Brake would like to see proven enforcement measures such as speed cameras introduced in all areas where they would benefit pedestrian and cyclist safety: a policy which would require a relaxation of the strict rules for choosing camera sites.

  The Government needs to invest in traffic policing, to reverse the UK-wide trend of falling numbers of traffic officers and to provide sufficient enforcement tools for them to do their job properly. Volume of traffic is increasing steadily and traffic police numbers should increase in line with this trend. Pedestrians and cyclists feel safer and more confident where traffic police have a visible presence.

Could more be done to deal with dangerous drivers before they cause harm?

  There are several mechanisms that can be used to deal with dangerous drivers before they cause harm to other road users.

IDENTIFYING DANGEROUS DRIVERS

  We need to have enforcement systems in place that allow dangerous drivers to be identified when on the road, so that they can be stopped before they cause a crash. The most effective way to identify a driver who is driving dangerously, whether driving at an inappropriate speed, drunk, driving when tired, driving erratically because of using a mobile phone, following too close behind the vehicle in front, or driving in any other dangerous manner, is by having sufficient numbers of dedicated traffic police officers out on traffic patrol. However, with falling numbers of traffic police, police forces are struggling to allocate sufficient numbers of officers to traffic patrol, and are only able to respond to crashes once they have happened.

  Modern technology, such as the automatic number plate recognition (ANPR) system and safety cameras are very effective tools in the police's armoury and can free up traffic officers for patrol duty. However, they are no substitute for officers on patrol, as they are each only able to target one aspect of illegal driving. Nevertheless, these pieces of technology are still not being used to their full potential. ANPR is still not available to all police forces and guidelines on the siting of safety cameras are still so limiting that many communities that have a problem with speed have to wait until deaths and injuries occur before they can install a speed camera.

  The police should also be given greater powers to prevent crashes, including the ability to randomly stop and test drivers alcohol consumption.

  Brake welcomes the increase in enforcement intelligence in VOSA to tackle dangerous commercial vehicle operators, which includes investment in ANPR, mobile roller brake testers, and improved computerised, linked intelligence between the VI and Traffic Area Network (TAN). However, more money needs to be invested in these measures, many of which are only available for use in "pilot" numbers, despite their obvious benefit to road safety.

  Brake also welcomes the possibility that VOSA may "risk assess" licensed operators in the future and concentrate targeting operators with a poor risk rating. This "fits" well with the HSE publication recently of risk guidance for fleet operators, in line with Brake's own guidance (our guide Managing Road Risk is available to the committee). The DfT and the HSE should take a more "joined-up" and active approach to advising companies on their risks and risk management, and targeting obviously high-risk companies, revoking licences as necessary and before deaths can occur.

DETERRING DANGEROUS DRIVERS

  Effective enforcement of the law, combined with meaningful sentences, provide an effective system of deterrent and preventing repeat offenders from continuing driving.

  Once dangerous drivers have been apprehended they also need to be given sentences that are appropriate. This would serve two purposes: firstly, longer prison sentences for the most serious offences would keep repeat dangerous drivers off the road, preventing them from doing further harm; and secondly, these longer sentences would act as a deterrent to other drivers from driving dangerously (see above "Is the law on traffic offences appropriate?").

  Tough messages, repeated in the media, from judges and magistrates, combined with tough sentences meted out, can be a real deterrent. There should be urgent moves to educate judges and magistrates (who do not currently have to receive training in traffic offences) about the importance of traffic law and the purpose of the maximum sentences. In October this year, for example, judge Findlay Baker QC gave just a four year prison sentence for causing death by dangerous driving to the killer of a 16 year-old girl. Robert McLauglin was unlicensed, uninsured, and driving at 60 mph in a 30 mph zone. This sentence is less than half the maximum, yet a more serious example of this offence is hard to imagine.

  In addition, tough enforcement must be advertised through TV and radio adverts funded by the Department for Transport. In New Zealand, for example, frequent adverts on TV report on the extra numbers of traffic officers and cars being deployed on roads. This communication-led approach is effective, as it explains the need for enforcement as well as delivering the enforcement. It is not, however, common in the UK at national level, although local campaigns on safety cameras have been effective.

PREVENTING DANGEROUS DRIVERS FROM RE -OFFENDING

  Where bad drivers are caught before they cause a death or serious injury, courts should always consider including an element of driver education and rehabilitation in their penalty. Studies have demonstrated that driver education courses about the effects of speeding and drink-driving are very effective at preventing re-offending. This education should not be instead of a traditional sentence, but rather in addition to it. They should be introduced across the spectrum of driving offences and across the UK in order to hopefully educate dangerous drivers before they cause a major crash.

What impact do uninsured, unlicensed and banned drivers have on traffic enforcement?

  It is generally accepted that drivers who are willing to drive without insurance, without a licence or while banned have such a disregard for the law that they are also very likely to commit other driving offences, adding to the numbers of dangerous drivers on our roads.

  A research report for the Home Office (no 206, published in 2000), The criminal histories of serious traffic offenders, asserted that people who commit criminal offences are over-represented in the ranks of dangerous drivers. This was confirmed in practice by the still ongoing Home Office pilot of an automatic number plate recognition (ANPR) system, which allows police to identify illegal vehicles using the number plate as identification. The pilot found that untaxed or uninsured vehicles were often also being driven while in an unroadworthy condition, by a driver serving a ban or by somebody that had previously committed driving offences. Both the report and pilot conclude that "illegal" drivers, such as those who are uninsured, unlicensed and/or banned, are committing a disproportionately high number of offences.

  The problem of "illegal" drivers has recently been brought to the public's attention by the media coverage of a crash in Newcastle on 31 December 2002, which killed six-year-old Rebecca Sawyer and left her 18-month-old sister Kirsty with serious head injuries, broken bones and in a coma. The driver who caused the crash, Ian Carr, had 89 previous driving convictions, including a previous conviction of causing death by dangerous driving and was both banned from driving and uninsured, when he drove through a red light, causing the crash.

  The Sawyer family's MP, Denis Murphy, met with Northumbria Police to discuss the case and was told that eight of the 61 fatalities on Northumbria's roads in 2001-02 were caused by drivers who were already disqualified from driving, many of whom had a string of previous driving convictions.

  Although it is very difficult to quantify the exact scale of the problem of unlicensed, uninsured and banned drivers on our roads, a study conducted by Direct Line in 2001 demonstrated that there are in excess of 27 million uninsured vehicles in the UK, and estimated that there are 1.25 million drivers who drive without insurance. In 2001 the UK had the second highest rate of uninsured drivers in Western Europe, only Greece had worse rates of offending.

  In order to combat these problems the Government should make the ANPR system available to every police force in the UK and take steps to connect the existing system to the offenders register and the national insurance database. It should also extend the use of electronic tagging for perpetrators of driving offences who are known to drive while banned, without insurance or while unlicensed. However, without sufficient numbers of traffic officers, forces will continue to find it difficult to apprehend unlicensed, uninsured and banned drivers who flout the law.

How will changes in responsibilities, such as those announced on 20 June, affect road safety and effective law and enforcement?

  While it welcomes the freeing up of an estimated 540 police officers from duties that could be carried out by another agency, Brake is concerned that these officers may be redeployed away from traffic policing.

  Also of concern is the handing over of some incident management and crash investigation duties to the Highways Agency. While it makes sense for Highways Agency officers to control traffic flow around the site of any crash, and to aid police accident investigation officers where they have technical expertise, Brake is concerned to ensure that police forces retain control of crash investigation, to make sure that criminal proceedings are brought, where appropriate.

SUMMARY OF BRAKE'S KEY RECOMMENDATIONS ON TRAFFIC LAW AND ITS ENFORCEMENT

Changes needed to the charges that can be brought for driving offences

  1.  The Government should introduce legislation to scrap the charge of "careless driving".

  2.  The Government should introduce legislation to create a charge of "causing serious injury by dangerous driving".

Changes needed to the penalties that can be brought for driving offences

  3.  The Government should introduce a charge of "causing serious injury by dangerous driving", which should also carry the same maximum penalty as "causing death by dangerous driving": 14 years jail. The same maximum penalties should also be available for "permitting" these offences.

  4.  Fixed penalty fines should be linked to the driver's ability to pay, with anyone earning the national average wage being fined at least £1,000 for common offences such as speeding, and higher for companies held responsible.

  5.  All drivers disqualified for six months or more should be required to retake the driving test and attend a compulsory driver improvement course to regain their licence and any driver receiving a second driving disqualification, should receive an automatic ban from driving for life.

  6.  The Government should introduce legislation to allow penalties to run consecutively rather than concurrently. In particular, driving bans should only start once a driver is released from custody.

Changes needed to the priority given to traffic policing

  7.  The Government should make traffic policing a national priority for police forces in the next National Policing Plan and put measures in place to prevent numbers of traffic police from being depleted in order to meet force targets for other national priorities.

  8.  The Government should ensure that police forces are putting sufficient resources, including numbers of officers, into traffic policing.

Changes needed to the priority given to the needs of pedestrians and cyclists

  9.  The Government should relax the current limitations on the siting of speed cameras to allow cameras in key risk areas such as outside schools rather than just at crash blackspots to encourage walking and cycling by making road safer.

Changes needed to deal with dangerous drivers before they cause harm

  10.  The Government should make the ANPR system available to all police forces and link it to further sources of offender, licensing and insurance information.

  11.  The law should be changed to give police officers powers to stop drivers for random breath tests, and to reduce the drink drive limit in line with the rest of Europe.

  12.  The courts should offer driver education and rehabilitation courses to greater numbers of drivers committing minor driving offences.

  Brake welcomes this inquiry by the Transport, Local Government and the Regions Committee and strongly recommends that the Committee calls Mary Williams OBE, Brake's chief executive, as a witness. Brake believes that its extensive experience of road safety and our commitment to law enforcement in this area would be of value to the inquiry.

October 2003





 
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