You are asked to review and critically evaluate the current law applying to Scotland relating to the prosecution of drivers for causing death.

1. For the purposes of s.1 & 2 above a person is to be regarded as driving dangerously if (and, subject to subsection (2) below, only if) –

1. the way he drives falls far below what would be expected of a competent and careful driver, and
2. it would be obvious to a competent and careful driver that driving in that way would be dangerous

‘Dangerous diving’ replaced ‘reckless driving’ in the repealed ss.1 &2 of the RTA 1988 because it was believed ‘recklessness’ placed too much emphasis on the behaviour of the driving rather than the quality; most driving offences are of strict liability for which proof of mens rea is unnecessary.  What constitutes reckless driving was fully and definitively described in the case Allan v Patterson.  A person drives recklessly when the quality of the driving

“fell far below the standard of driving expected of the competent and careful driver and that it occurred either in the face of obvious and material dangers which were or should have been observed, appreciated and guarded against, or in circumstances which showed a complete disregard for any potential dangers which might result from the way which the vehicle was driven.”

Awareness of danger is assessed objectively and fatal consequences cannot be taken into consideration by the court assessing the quality of the driving.  It gas been found that dangerous driving included driving a vehicle when the driver was aware of a dangerous defect.  In R v Robert Miller (Contractors) Ltd , a lorry driver took to the road knowing that one of his tyres was defective.  The defect caused an accident which resulted in death.  The driver was convicted under s.1, however, it must be noted that mens rea was required unlike other road traffic offences.

The interpretation of: “driving a mechanically propelled vehicle”, however, is not defined by the Act.  In the case of Ames v McLeod, it was held that when one is “in a substantial sense controlling the movement and direction of the car” one is driving for the purpose of the RTA.  (Lord Justice-General Clyde).  Therefore, it could be interpreted that if A pushes a car along the road while controlling the steering wheel through the window, it could be possible that if an accident occurred and a person died as a result of A pushing the car, A could be charged under s.1.  In Farrell v Stirling, a diabetic who went into a state of hypoglycaemia (never having experience such a condition in the past) just before an accident was held by the court not to be driving, thus not guilty of careless driving.  However, such a defence would not have succeeded if the accused had had previous experiences of the condition and appreciated that it was liable to affect him while he was driving.

The term “public place” was defined by Brown v Braid as a place “on which members of the public might be found, and over which they may be expected to be passing, or over which they are in use to have access”.  It was suggested in Young v Carmichael that a place is not a public place because members of the public have access to it; it must be shown that members of the public were “expected to be there”.  The term “road” is clearly defined in the Roads (Scotland) Act 1984 and in Hogg v Nicholson that on a road on a private estate is still a road, as defined by statute.  Therefore if an offence is committed on a road which is situated on a private estate, the offender could be charged under s.1, as long as the other criteria is met.  However, if the offence occurred in a place which is not covered by “road or other public place”, then a charge of Culpable Homicide or Murder would be taken.

For a conviction under s.1 it must also be found that the death resulted from the driving complained of.  Unless the cause or connection between the driving and the death is ‘de minimis’ a motorist can be convicted under s.1 if the driving is shown to be one of the causes which result in the death of the victim.  In McCluskey v HMA, the driver caused injuries to an unborn baby, who died shortly after birth, and was convicted under s.1.  However, if an unborn baby dies as a result of the accident, there would not be a charge under s.1; Macdonald defines homicide as the destruction of “self-existent human life”.  If an accident causes a passer-by to have a heart attack the driver is unlikely to be charged under s.1, however, it is not clear.

Death by careless driving?

Although unlikely, a charge under s.3 “driving without due care and attention” may result if someone dies as a result of the accused’s carelessness.  The court would have to look at all situations and if the driving was found to be careless, rather than dangerous, conviction under s.3 may take place.  The complaint, however, should not contain any reference to the death, since that would amount to a charge of “causing death by careless driving” which is not an offence.

Careless driving when under influence of drink or drugs

A new offence of causing death by careless driving when under influence of drink or drugs was inserted by s.3 of the Road Traffic Act 1991.  s.3A states that it is an offence to cause death while driving without due care and attention or without reasonable consideration for other persons, and while unfit to drive through drink or drugs.

Culpable Homicide

It is possible to bring charges of culpable homicide against a motorist rather than to undertake a prosecution under the RTA.

Involuntary culpable homicide is the causing of death unintentionally but either with a degree of negligence which is regarded as sufficient to make the homicide culpable but not murderous, or in circumstances in which the law regards the causing of death as criminal even in the absence of negligence.  

Usually only adopted for the most serious cases. – The standard of driving to be considered on a charge of Culp. Hom should nonetheless should be identical to the standard applied in a statute charge.  

There will be other features in the circumstances of the case and the quality of the driving.

Sentencing available to the court where CH is committed includes unlimited prison sentence.  Whereas stat has max of ten years.

Highway Code

S.38(7) RTA 1988 provides that failure to observe the Highway Code may tend to establish liability for reckless driving, a violation of the HC does not mean driver should, or will be prosecuted.  

Defence

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