What is the new offence of causing serious injury by careless or inconsiderate driving?
In June 2022, a new offence of causing serious injury by careless driving came into force in the U.K. having been created under The Police Crime and Sentencing Act 2022 and inserted into the Road Traffic Act 1988. As the name suggests, to be charged with causing serious injury by careless driving a driver would have caused serious injury due to “driving being performed without due care and attention or without reasonable consideration for other persons using the road or place.”1
The new offence comes after amendments to the Highway Code earlier this year that created a hierarchy of road users and placed a responsibility on those who can cause the greatest harm to reduce the danger they pose to others.2
For this reason, drivers who have even momentary lapses in concentration that lead to a serious injury may reasonably expect to be investigated and charged with this new offence. Where a ‘vulnerable road user’ such as a pedestrian or cyclist has sustained a serious injury, this may give rise to a more severe sentence. It’s important to note the definition of serious injury under the legislation can be as little as a broken bone.
How does the new driving offence differ from existing driving offences?
The new offence was introduced to address the perceived gap in the law in the case of non-fatal collisions where despite the injured party suffering life-changing injuries, the only ‘serious’ driving offences available were either the offence of causing serious injury by dangerous driving or causing serious injury when driving disqualified. If neither of those offences were applicable, the only remaining offence would be the summary only offence of careless driving (driving without due care and attention). Although the injury to another is considered as an aggravating feature making this offence more serious, the maximum sentence for the offence of careless driving is disqualification, with drivers more commonly being sentenced to between three to nine points and a means-assessed fine.
Whilst the offence of causing serious injury by careless driving was introduced to close the gap between those cases where careless driving resulted in life-changing injuries but not death, given the low threshold when it comes to the definition of ‘serious injury’ it’s likely only where a driver is involved in a non-injury collision will they face the offence of careless driving. Any collision involving an injury will have, at the starting point, the consideration of the offence of causing serious injury by careless driving, moving upwards in severity to causing serious injury by dangerous driving depending on the extent to which the standard of driving is seen to have fallen below, or far below, that of the careful and competent driver.
What are the specific sentencing implications of causing serious injury by careless or inconsiderate driving?
The new offence is an ‘either-way offence’, meaning it can either be heard in the Magistrates’ Court or Crown Court. If convicted of causing serious injury by careless driving a driver could face the maximum penalty of two years’ imprisonment if the case is heard by the Crown Court, or up to maximum of 12 months’ imprisonment if dealt with by the Magistrates’ Court.
What are the implications of this new offence?
With the introduction of this new offence all collisions, however minor they appear, resulting in what may seem to be minor injuries will now be the subject of a police investigation that could result in a prison sentence.
The police investigation will involve the driver being invited to an interview under caution where not only will they be at risk of incrimination, but also potentially you as their employer. A large part of the police questioning the driver will revolve around training, policies and procedures and, crucially, the culture within the company in relation to the risks associated with driving. In essence this interview is used to explore the possibility of offence by both the driver as well as their employer.
Given the new offence is an ‘either-way offence,’ it’s likely there will be an increase in the number of cases being heard in the Crown Court. This will result in a longer wait for the matter to go to trial and increase legal defence costs.
What impact will a driver being found guilty of causing serious injury by careless driving have on your company?
Drivers who cause an injury will now face being charged with the new offence and the risk of a custodial sentence if the driver pleads guilty or is convicted. The likelihood of facing such a sentence will have a significant impact on both the driver and on the reputation of the operator.
Operators must educate their drivers on this new offence, the seriousness of it, and the approach to legal representation for police interviews under caution. HR teams will also need to review organisations’ approaches around disciplinary and internal investigations where the driver is subject to a lengthy police investigation relating to an offence carrying a custodial sentence.
If a driver is convicted of the new offence, either by entering a guilty plea or after trial, it is important companies ensure any relevant notifications are made, for example where an Operator’s Licence is held to the Traffic Commissioner. It’s entirely possible an operator may not be aware of a driver’s prosecution, so it’s important operators have the procedures in place for all drivers to be informed from the outset.
Operators have a duty to notify the Traffic Commissioner within 28 days of any relevant convictions or information that might relate to the company’s fitness to hold a licence for the company or any of its officers, servants, or agents, which includes drivers.
The definition of what is a relevant conviction will likely include this new offence, particularly as the sentence could be for a term of imprisonment of more than three months or a community order of more than 60 hours. This is not least because it is generally expected a company will notify the Traffic Commissioner of any offences committed by employees who hold vocational licences.
Notifying the Traffic Commissioner could result in more information being requested, a driver being called to a Driver Conduct Hearing and the company potentially being called to a public inquiry where the facts of the offence relate to the company.
Whenever a notification is made to the Traffic Commissioner, it can place a company under the spotlight of their regulator. Those who fail to notify or make an inadequate notification can leave organisations exposed. It is for this reason many operators should take legal advice at the point of notification as a matter of course.
How can fleet operators review policies and procedures to mitigate risks around the new driving offence?
Fleet operators’ primary consideration will no doubt be road safety and ensuring drivers have appropriate training and carry out the appropriate checks to minimise the risk of harm to other road users.
It is important fleet operators advise drivers of this new offence and the more serious consequences, as well as review their policies, procedures and driver training to ensure it is up to date.
This might involve a range of steps, including:
In the immediate aftermath of any collision involving one of your drivers, be that another road user or where damage has been caused, it is essential to speak to a solicitor as soon as possible. This can help prevent an individual from incrimination, but also protect the interests of the organisation in terms of the account put forward by the driver in police interview.
Operators should also consider seeking legal advice following a collision to ensure an appropriate investigation and evidence-gathering procedures are initiated, ensuring all internal investigations are protected by legal privilege.
How can documenting risk controls around causing serious injury by careless or inconsiderate driving offence boost claims defensibility?
To better prepare the company to defend itself against civil claims which might arise from the new offence of causing serious injury by careless driving, documenting the risk mitigation measures and controls you introduce is vital.
This means, for example, documenting ‘toolbox’ briefings, having drivers sign to say they have read and understood the revised handbook and other measures.
Having a demonstrable audit trail and creating a culture of safety within your organisation will help minimise exposure to possible company ramifications such as prosecution or regulatory action before the Traffic Commissioner. Part of this is demonstrating the company has done everything reasonably practicable as an employer.
For expert help on navigating emerging risks facing your fleet, get in touch.
1 Police, Crime, Sentencing and Courts Act 2022
2 The Highway Code: 8 changes you need to know from 29 January 2022
