Serious Injury & Fatality Cases

Road Traffic Act 1988, Section 1: Causing death by dangerous driving

A person who causes the death of another person by driving a mechanically propelled vehicle dangerously on a road or other public place is guilty of an offence

The offence carries a maximum prison sentence of fourteen years and a minimum period of two years disqualification.

The driver must re-sit and pass the extended test of competency to drive before he can regain his licence.

The constituent elements of the offence are that the Crown must prove that the manner of driving was dangerous and that a causal link exists between the manner of driving and the resultant death. The driving also requires to take place in a mechanically propelled vehicle and be on a road or other public place.

These are evidential matters which the Crown require to prove beyond reasonable doubt.

These cases attract a high degree of publicity and are, generally speaking, emotionally charged affairs. It is important that if you have been charged with death by either careless or dangerous driving in Scotland that you ensure your representation is of the highest standard available.

These offences are still rooted in road traffic law and their key ingredients are within the Road Traffic Act 1988.

Our expertise can make the difference and we are available 24/7 to deal with urgent enquiries of this nature.

Road Traffic Act 1988, Section 1A

This charge specifically encapsulates the injuries caused as a result of the driving and provides for an enhanced range of penalty. It is clear the intention of Parliament is to ensure that dangerous drivers who cause serious injury are held accountable for the emotional and physical damage that can result from their irresponsible actions. The provisional indication is that these charges will be prosecuted by the Crown under solemn procedure which will allow the Court to take full advantage of the maximum available custodial sentence of five years.

The law is keen to recognise that it will often be insufficient for the Crown to rely upon a momentary lapse of judgment in order to achieve a conviction. Furthermore the prosecution of dangerous driving in Scotland is not a mathematical equation. Put in simple terms, three examples of driving without due care and attention as part of the same course of conduct does not justify the Crown to seek and obtain a conviction for dangerous driving.

There are various technical issues which will always be considered as a matter of routine. It is important, in certain circumstances, that an appropriate warning is issued within 14 days following the commission of the offence. There is a statutory presumption of compliance which operates in favour of the Crown and therefore it is imperative that any legal submission on the basis of deficient warning is both identified and properly argued.

Where appropriate, we can instruct a drive-through at the locus as this can often prove to be crucial in establishing lines of sight and assist the Court greatly when considering whether the driving complained of is caught by either of the provisions of Sections 2 or 3 of the Road Traffic Act 1988. A good defence lawyer should always remember the standard of proof in criminal proceedings. The Crown have a duty to release all incriminatory and exculpatory evidence. If this disclosure omits crucial information in relation to the locus, it can often be tactically inept to instruct an expert report as this may serve to fill in the blanks for the prosecution.

The stage at which a plea of guilty is entered is now a relevant consideration in road traffic cases. Historically no discount would be applied to either the level of endorsement or length of disqualification for early pleas of guilty however an accused is now eligible for a discount if the plea is tendered at an early stage in the proceedings. A Court is never permitted to discount a period of disqualification or reduce the level of endorsement below the minimum penalty prescribed by law.

Serious Injury by Dangerous Driving

This new category of dangerous driving offence was arguably unnecessary however the provision provides for an enhanced range of minimum penalty and the early signs are that the Crown will pursue cases of this nature under solemn procedure.

Unsurprisingly, the dangerous driving penalty as set out in Section 1A of the Road Traffic Act 1988, stipulates that dangerous driving convictions carry an obligatory disqualification, with a minimum period of two years.

If tried on indictment, the maximum term of imprisonment is up to five years.

It seems clear, therefore, that the intention of Parliament is to ensure the Scottish Courts have robust sentencing powers when dealing with cases of bad or objectionable driving which result in serious injury.

It is open to the Court to find a person accused of causing serious injury by dangerous driving guilty of the lesser charges of either dangerous driving or, contrary to Sections 2 and 3 of the Road Traffic Act 1988 respectively.

There is no requirement for the Crown to issue a warning in terms of s.1 of the Road Traffic Act 1988, commonly referred to as a Notice of Intended Prosecution (NIP). Quite literally, these cases can proceed without warning and it can come as a major shock to receive a letter from the Crown advising that there is a petition warrant outstanding for a charge of this nature.

The charge has two key elements: dangerous driving and serious injury. The legal authorities and the twin test under Section 2A of the Road Traffic Act 1988 are equally applicable to the new provisions. It is also worth noting that if it is considered obvious to a competent and careful driver that driving a vehicle in its current state would be dangerous, then this would also satisfy the legal test. Thereafter the Court will consider the causal link and whether the injuries sustained as a direct result of the driving can be categorised as serious. Whether a driver intended to cause the resultant injuries is not a relevant consideration.

Section 2B Causing Death by Careless or Inconsiderate Driving

A person who causes the death of another person by driving a mechanically propelled vehicle on a road or other public place without due care and attention, or without reasonable consideration for other persons using the road or place, is guilty of an offence.

The offence carries a maximum prison sentence of five years and a minimum period of one years disqualification.