British Law

Despite being English, I have found myself over the last six months starting to question the viability of some of the legal aspects that we live by in the UK.

For example:

  1. If a driver has a car crash, and someone is killed in the car, particularly when no other cars are involved, should the driver be allowed to continue driving until the court case or should the licence be removed straight away?

  2. If a driver blows positive on a breath test, should that person be allowed to continue driving until after the court case or should the licence be removed straight away?

I clearly believe that the answer to both questions is ‘take the licence away’ otherwise I wouldn’t have asked them. I would however be interested in other people’s views on anything to do with dangerous driving, or drunk driving. For example if a member of your family is killed in a car accident, there is no legal redress for you as a victim, unless you are a dependent you are not protected by English law. In other areas of the law where someone is killed by someone else, and it’s not premeditated, i.e. a fight breaks out in a bar and someone is killed accidently, it is still classed as ‘manslaugher’ a lower charge of murder, should this be applied to dangerous or drunk driving?

There are many other laws that just seem wrong or out dated, such as ‘joint enterprise’ but that is a separate discussion and covered very well by the new BBC single drama called ‘Common’

This is my first post and expect that I’m talking to myself, but should anyone read this I would welcome your opinion.

IPL

19 thoughts on “British Law

  1. Ian, I can only offer my deepest sympathy for you and your family.

    From the perspective of a local barrister, I would like to offer you a legal view on your opinion from a state of no emotive influence. I will address four main points: whether the licence should have been taken away, whether the driver is responsible, potential ‘redress’ for the family as a victim and my view on the whole situation. I would like you to note I am only partially aware of the facts of the case but I have can offer my available advice.

    The English legal system is defined by the common law principle that a man is “innocent until proven guilty”. The judge will have considered whether the driving licence was to be seized when the bail conditions were produced, if so they were. Unless it was to be legally enforced, the courts do have to abide by Article 5 ECHR (freedom of liberty) unless they have exceptional reason to derogate from such a position by the facts of the case. I feel the licence should not have been removed due to the man not yet being ‘guilty’, neither should a restriction on his freedom of person be encouraged.

    There are two main lines of argument concerning the liability of the driver. Firstly, the ability to consent to an injury obtained in road traffic accident is barred by s. 149(3) of the Road Traffic Act 1988. However, it may be a different story, if this case does indeed go to the higher courts, looking at Pitts v Hunt [1991]. If the injured party in this case is found to have ‘encouraged’ the driver to drive dangerous (Note: a moment of doubt on facts. I am lead to believe there is currently no evidence the driver produced a positive breath test, it is more so that he failed to provide a sample), if the driver is not found to have acted in illegality then the injured party’s contributory encouragement could be crucial, particularly in the civil courts.

    There is no way to ‘redress’ the families as a victim in this case. There is one exceptional case, McLoughlin v O’Brian [1983], but the families will only have a claim for damages dependent on the time period they saw the injured party after the accident and upon proof of any ‘proper’ psychiatric harm suffered by that same family member. The inability of families to be ‘redressed’ is fundamentally a policy issue, it would be too costly and too time consuming for the legislators to ‘open the floodgates’ and let all families of all road traffic accidents make a claim.

    Ultimately, the case will hopefully see its climax when the trial comes to court. However, I would like you to just take your time for one moment and to think about how the driver actually feels in this situation. Think how many times had this group of males taken this journey, intoxicated or not? Any of them men could have been driving on that fatal night and you cannot be assured of the pressure placed upon the driver. Obviously there is an evident lack of thought on the position of the driver but all three other men in their twenties were not forced into that car on that fatal night, all had the option to not enter the car.

    In your future writings I would like you to take one piece of advice at this troubled time: ‘those who think past emotion regularly devise the most sense’.

    1. Morning Harold,

      Without prejudice

      Many thanks for your condolences and your acknowledgment of only partial awareness of the facts. I understand a person is innocent until proven guilty, but I believe that this ‘one size fits all’ isn’s the best solution in some cases. In my blog I have only given some hypothetical questions as I believe that social media is a good avenue for starting debate and discussion, and not to tell the world what your dog had for breakfast that morning. It is only my opinion that in both the questions I have asked that the law should be changed, especially when a passenger in a car that person was driving is killed, and refuses to provide a sample as you write above.
      I don’t ask for redress I only point out that there is none, which again I believe should be looked at.
      I don’t think it’s fair to enter into a discussion about a specific case that won’t go to the crown court until August, but I do know that one person would not have got into a car if there was any drink or drugs involved because he refused to get into a car two days earlier when he knew the driver had been drinking then.
      Thank you for your final piece of advice, I have remained silent about specific cases and will do so until I get the opportunity to read a victim personal statement out in court. I have opened the debate as I do believe some laws need to be addressed, and a journey of 1000 miles has to start with a single step.

      IPL

  2. Hi Ian

    I believe that death by dangerous driving needs different levels as with assault. For example section 20 is grievously bodily harm and section 18 is grievously bodily harm with intent. This should apply to death by dangerous driving ; if a death occurs and your drove at 37 mph compared to 30 mph it is possible that your speed had increased without awareness , yet at 50 mph you know you are speeding.

    Another aspect should be the whole picture , so how many risk factors are involved due to intent . 1) risk; speeding, second risk; drinking over the limit, third risk; dark with no lighting and fourth risk; raining or wet conditions . The levels of intent increase with each new risk factor increasing the likelihood of a collision. Therefore under these circumstances the intentional danger should be treated far more seriously. I can appreciate to treat as manslaughter the argument would be ; would that person be willing to inflict such injuries personally compared to manner in which they drove. However there is no reason why the same sentences and restrictions cannot apply. The intention to drive in such a manner with so many risk factors warrants that person loosing his licence instantly and in addition loosing his liberty . The act was intentional therefore he should be accountable instantly for the lose of life they caused .

    1. Hi Rachel,

      Many thanks for comments. British Law is a minefield of ancient rules and regulations that often don’t apply any more to todays society. Without generalizing, many young people have little or no respect for their own parents, let alone the law and the people who police it. I agree with your comments, there should be levels applied to an offence like the ones we are debating on the blog. Foe example; if there is a fatality then it should be standard that the driver isn’t allowed to drive again until he is proven innocent, a bit like the ‘sin bin’ in rugby on a yellow card. If he’s proven guilty then he gets the red card. The sentence determined by a similar system to the one you describe above. Drink/drugs should be even more clear cut, a positive test or a refusal to provide, should attract the yellow card straight away and the licence removed. An earlier comment suggests that there are other circumstances that should be taken into consideration, for example the passengers have a choice whether to get into the car or not. How would this apply if the driver was driving a bus, a train, plane or a passenger boat? Would the drivers legal argument be the same? ‘They didn’t have to get on the bus’

      1. Hi Ian.
        Firstly I am sorry for your loss. I can’t imagine what you have been through in recent months.

        To answer your initial questions.
        I think innocent till proven guilty on the case of being a driver that is involved in a fatal accident.
        On the drink driving issue I believe licence should be suspended until the case is heard.

        I don’t think you can compare a driver in a car to a coach driver etc. They are in a position of trust. And if involved in an incident would be suspended from work but not banned from driving all together until after a court case surely?

        I think discussing education for younger and less able drivers would be a more productive activity than discussing the issues of the law following a tragic accident. I along with many others I would guess only made it through my late teens and early twenties down to good look rather than good management both as a driver and as a passenger. And have friends and relatives that sadly did not.

        I would not wish either your situation nor the family of the drivers situation on anyone, and feel prevention is a more positive path than challenging laws.

      2. Hi James,

        Many thanks for your thoughts about us, it was very kind of you to start your comment with that. Your contribution to the debate is well balanced and a probably a fair assessment. I shan’t revisit as I hope my views on the these laws are clear, but I would like to respond on your thoughts on education. I couldn’t agree more about educating the young, this has been something in the forefront of my mind for a few months now. If you have entered this debate through ‘Dom Loftus – Cumbrian Lad’ page, you may have seen we have set up a charitable foundation in his name called ‘The Cumbrian Lad’ The whole purpose of this is to educate and help young school leavers and to offer bursaries to the most needy. I have a meeting tomorrow with a local support agency who has agreed to help us, and I have a meeting with the senior school that Dominic attended to set up other programs. My feeling is if we can stop just one teenager going down the wrong path, all the hard work will be worth it. Once again thank you for joining the discussion and I hope you continue to contribute if more questions are posted.

        IPL

  3. Hi Ian, I can not imagine how you must be feeling following your devastating loss. I have read the previous comments with interest and an open mind. I have very little knowledge of the legal system but as a teacher I have been very concerned by the first response written. It would seem absurd that after such a tragic accident the driver was able to ‘refuse’ to provide a sample. Surely this should be compulsory? Although I agree with the phrase ‘innocent until proven guilty’ surely there needs to be some common sense applied to such tragic circumstances. I agree with the fact that young adults can be wreckless and determined at times. I have a 26 year old son of my own who I have observed driving around late at night while I have lain awake worrying. If he had been the driver of that car that night I would not have let him get behind the wheel of a car again until he faced up to his responsibilities. Regardless of the fact that the other passengers had a choice, ultimately, the driver needs to take full responsibility for their actions.
    I teach children everyday how to behave in the correct way and how to live, work, collaborate, be resilient, strong individuals… They will make mistakes… But if an antiquated legal system allows those mistakes to be exploited and for ‘choices’ to be made which are not only upsetting to the victims of these terrible accidents, but also cowardly and unnecessary, then I fear that justice will never be done.

    1. Hi Paula, your thoughts as a mother are pretty close to mine as a father, I too would lay awake at night waiting to hear the distinctive engine of a 50cc scooter coming down the drive, or a low CC car with the CAT removed to make it sound more powerful than it was. I still wish I could hear one of those sounds now, but I won’t. I too agree that people are innocent until proven guilty to a large extent, but as an average person on the street without extensive legal training, but also without the burden of centuries of accumulated and antiquated laws, just common sense, I believe that there are circumstances that require a more clinical approach to dealing with offenders, such as a positive breath test or refusing to provide one. And finally, as a moral and ethical upstanding parent like yourself, and if the shoe was on the other foot, my son Dominic’s feet wouldn’t touch the ground until he reached the nearest police station and held his hand up to the crimes he had committed. Unfortunately, ethics and morals often go out of the window when the self preservation gene kicks in, and modern parents haven’t got the intelligence, social skills and understanding to enforce law onto their unruly and often spoilt offspring.
      Many thanks for your thoughts and comments and I’m sure your charges leave your lessons as better human beings.

      IPL

      1. Dear Ian

        It troubles me that you seem to take the view that it would be acceptable to undermine one of the most fundamental principles of the English legal system- the presumption of innocence- in the present context simply because in your mind, you are certain that the defendant is guilty. If we translated this approach to the rest of the criminal law where would this leave us as a society which rightly places great weight on the human rights of those accused of crimes? On the whole I would have to agree with the local barrister that whilst it must be very difficult for you, it is necessary to take an impartial non-emotional approach when considering complex legal issues.

  4. Clearly the law is a very complex thing and not understood by many. However, I disagree with the above comment. I do not think this blog is to say that the driver of the car is guilty as yet. The court case will determine this in the coming months. It would seem to me that the main point here is that the driver caused a fatal accident and whether he was drunk, not drunk, speeding, not speeding, driving dangerously or not driving dangerously, he should not be allowed back in a car until this has been fully investigated, for his own sake as well as anyone else’s. The fact he refused to provide a breath test suggests that he was worried about it otherwise why not provide one? And more importantly, why was he allowed to refuse? We all have some knowledge of the legal system from the news and some of us from personal experiences. There seems to be a number of flaws in the system and perhaps a more modern day approach should now be taken in these matters. We allow ‘children’ to drive cars and be in charge of other people in those cars when many of them don’t have the emotional maturity to do so. If a harder line was taken in such circumstances then they may possibly think more carefully about their driving and tragic crashes like this may be avoided.

  5. The whole point of the court case IS to establish causation of the accident. Your statement that “the main point here is that the driver caused a fatal accident” is, once more, to lay blame with the driver before his Article 6 right to a fair trial has been exercised. It is for the jury to decide the level of culpability of the driver, if indeed they find him to be culpable at all.

    1. I see your point in the wording of my previous comment. I will re word and say that the driver was involved in a fatal car crash. But the point remains that whatever the reason for the crash it still remains that it is possible that he was responsible therefore, to avoid any further incidents, it would seem sensible that his licence be taken from him until the court proves otherwise. I notice that you do not comment on the fact he refused to provide a sample and was not made to. You rightly defend your profession as I would mine, however, there are flaws in every profession and this would appear to be one of them. I comment on here more from a mothers perspective who observed her son attend more funerals by the age of 22 than I had in my 40+ years, all of young people involved in road traffic accidents. I merely suggest that something needs to be done to prevent such devastating losses and the law appears to fall short in these circumstances. In the case of someone being involved in an assault attack, part of the ‘bail conditions’ state that the accused are not allowed to make contact with the victim until after the court case. If the accuser is innocent until proven guilty then why is this stipulation put in to place? And why is this not the case with someone involved in a fatal car accident? It would seem to me that that some kind of risk management should be implemented. Given the fact that the driver refused to provide a sample then this should suggest a higher risk?

    2. Morning Law Student,

      Many thanks for your contribution to the debate. Again, as I responded to the Barrister, I understand the Law ‘Innocent until proven guilty’ and to a large extent agree. But I don’t believe it is robust enough to deal with certain situations in modern society and doesn’t reflect the changes in; technology, people’s lack of responsibility, and the general disintegration of law and order and in many aspects of our lives. This law goes back to the second and third century under: Ei incumbit probatio qui dicit, non qui negat. ‘Proof lies on him who asserts, not on him who denies’. The phrase ‘Innocent until proven guilty’ was then coined by the English lawyer Sir William Garrow (1760–1840)

      All the other contributors to this debate have given their comments from a modern perspective and from the way society views things today, and to be frank more from the heart than you’ve suggested I’ve asked the questions in but, I shall return to that. You, as you barrister colleague did, have written what psychologists would call a ‘Fundamental Attributional Error’, by stating ‘What if this was applied to all law’ a huge assumption as the debate isn’t discussing that at all. My point being, many laws were put in place when most of society; couldn’t read or write, didn’t have running water, electricity hadn’t been invented, and common people travelled rarely beyond 10 miles from where they live. Under the English class system you were, for the most part, a peasant, or a rich land-owning feudal lord. Take a wild guess who was writing the laws. And under such laws for example, ‘killing the King’s deer’ on the lord’s land was punishable by death. Fortunately, hungry peasants sentenced to be hanged for such crimes, were alternatively sentenced to slavery in the new Colonies. (The Black Act, see Footnote 1)

      Many of today’s ‘career’ criminals are very sophisticated and can often go undetected by using modern technology, and then found innocent by their barristers hiding under old laws when they are caught. I believe that this technology can also be used to defend our rights as citizens, and to help the police and courts to catch more offenders and punish them correctly. I also believe that there are certain situations that short cuts, when robustly tested with case law can be applied. I am a great admirer of our Police, but often they are ham strung by the law, and by petty criminals who will say ‘I know my rights!’ I know cases were school children are saying this to teachers when they are being punished!! In this blog, I have given a small hypothetical situation where the removal of a driving licence can be applied by using modern technology. If a driver is stopped and proves positive on the spot for drugs or drink or refuses a breath test or to give a sample. The removal of a licence can be invoked as there is no doubt of the offence. I appreciate there is often some doubt about technology, but ten years ago everyone doubted online purchases and how insecure they would be. Do you know anyone that doesn’t buy things on line now?

      Finally, we are discussing hypothetical situations and testing ancient law. You wrote ‘..in the present context simply because in your mind, you are certain that the defendant is guilty’. I am making no assumptions and not discussing any specific case’; I have posed some questions to test an area of law that in my opinion can be improved upon. There are others that we might discuss later, I gave the example last time of Common Purpose or ‘Joint Enterprise’ another law going back to the early 1800’s that could be ‘tweaked’ to reflect advances in technology and changes in today’s society. I would also ask the question ‘if someone pleads guilty to an offence, why should that automatically give them a ‘discount’ on their sentence’? I am clearly not a legal mind I am an ordinary person, law is complicated as Paula said, and I appreciate as I’m sure Paula does, that a guilty plea encourages cases to go through the courts quicker and all the mechanics around that. But as a suggestion, if someone pleads guilty to a crime, instead of reducing their sentence, why not give them access to a TV or radio instead of getting that as standard?

      The Police and court systems are under immense financial and time pressure, and laws that in many people’s minds are outdated, partially create this environment.

      Footnote 1
      The Black Act was an Act of Parliament passed in 1723 in response to a series of raids by two groups of poachers, known as the Blacks, arising in the aftermath of the South Sea Bubble’s collapse and the ensuing economic downturn. The Blacks gained their name from their habit of blacking their faces when undertaking poaching raids. They quickly demonstrated both “a calculated programme of action, and a conscious social resentment”, and their activities led to the introduction of the Black Act to Parliament on 26 April 1723; it came into force on 27 May. The Act introduced the death penalty for over 50 criminal offences, including being found in a forest while disguised. No other single statute passed during the eighteenth century equalled [the Black Act] in severity, and none appointed the punishment of death in so many cases. Following a criminal law reform campaign in the early 19th century, it was largely repealed on 8 July 1823, when a reform bill introduced by Robert Peel came into force.

      IPL

  6. Very interesting and so true. Many of our existing laws do not fit in with modern society, which is why I think we have such different opinions to the legal minds who comment on here. Modern day thinking versus legal jargon which, as you mentioned in your response, can often mask crimes. Very worrying.

    1. Hi Paula,

      You have hit the nail on the head. As a society we have changed and developed more in the last 100 years than the last millennium, but the law generally hasn’t. And I can understand that, it’s would be difficult to change our guiding principles. It also takes 6 years to qualify as a solicitor I believe, then of course the on going training for silk etc. So for someone to say actually, ‘You are banged to rights until you are proven innocent’ goes against the grain. Although that’s not what most of the comments are saying, Rachel and Dave have both given very workable solutions for one or two of the laws we have discussed over the last week.
      We do have different opinions than these legal minds, they have to defend the principles that we live by, it’s what they have been trained to do, and I too would defend what I believe in.
      What I do find strange sometimes are defence lawyers, I know everyone deserves a fair trail in British Law, gone are the days for being hung for horse stealing, but they must be a special breed (no pun intended) because despite people pleading guilty, they are still defended. When you live in the real world like many of the people who have commented on this blog, you just know someone is guilty simply by the overwhelming evidence. Take the poor Anne Maguire news just recently, tragic. That boy will be defended robustly, and he has the legal right for that. I would suggest the defending lawyer will argue that the system failed him, and it should have been picked up that he a picture of the ‘Grim Reaper’ on his Facebook and he had been ‘depressed’ lately. It goes back to one of the other questions on the blog about people taking responsibility (for their actions)

      IPL

  7. Ian
    While I cannot comprehend how you personally feel, I know only too well the affects it can have, having watched 3 separate crashes in which I saw someone die in front of me over a 10 year period. This trauma was in addition to the fact that I was in charge of roads policing in a UK force, saw many crashes after the event, and heard and read about many more deaths.
    I make a small contribution to this debate as I know we need to do more in the UK. The presumption of innocence would not be affected by a suspension of a driving licence – which I would subscribe to – but this requires magistrates and judges to be determined to use it to grant a period of peace to both the driver and those affected by the crash. I also know that many drivers are seriously affected by a death if they were driving. (Harold – sadly not all judges consider seizing a driving licence when granting bail).
    As for failure to provide a sample of breath – there should (in my opinion) be no reason why the driver is not suspended from driving as it is an absolute offence – this does not presume guilt but awaits the trial to determine if the offence is punishable.
    The law in the UK has many faults and we can do more to make it practical and effective. I have witnessed many cases where the law does not fit the circumstances and indeed the law cannot fit them all – but we trust judges to determine how best to deal with the case.
    The point about education is well made. I have given many talks and am willing to do so again to send the message to all drivers – they/we can all do something to reduce deaths on the road by adhering to a few simple rules (amazingly you can see these in the Highway Code – that booklet that not enough drivers read or keep abreast of). Educating young drivers with my experience provides them with a few home truths about driving – if only a few think about their driving I have made a start. When I lecture to companies I always end up with this point: when you get into a driving seat you should STOP, THINK, you are about to drive a vehicle close to 1 ton and you are responsible – there is only one way to drive, safely, for the whole journey!

    I send my best wishes and hope you can find peace in that what you are doing is going to help in the future.

    1. Hi Les,
      Many thanks for entering into the debate. That again sounds like a very well balanced argument, and clearly spoken from experience. Your comments about education are welcome as in the future this is something I wish to try to get involved in and to help with, even if we can save one life or stop one accident it will be worth doing. We have set up a charitable foundation called the ‘Cumbrian Lad’ and part of that will be to try and provide funding to young people in areas of need, and further education might be part of that. It sounds like you are willing still to discuss with and educate the young on this topic? If so please stay in touch and pop onto the blog every now and then.

      IPL

  8. The British Law debate here demands comment about the British driving test.
    It is not fit for purpose.
    Especially for young drivers.
    Getting 44? questions right does not make anyone fit to drive a one ton missile.

    Car control should be the only test – on a race track, in all weathers and on gravel. Anyone who does a good lap time and can repeatedly control the car under duress should be considered suitable for a licence. A driving licence, or a pilot’s licence for example should not be a right – it should only be earned with great attention to skill, safety and aptitude, in this case driving skill and safe car control. Those without the reactions, technical skill and aptitude should be kept off the road. It is NOT a right to drive!

    Driving offences should also be categorised simply based on effect, e.g. 1st degree bad driving, 2nd degree bad .., 3rd degree …
    The cause of the offence should be irrelevant – whether it is doing one’s mascara, changing a CD, lighting a cigarette, being under the influence of fatigue, drugs, drink, or simply being incompetent without car control – whatever.
    The effect should have primacy – hence 1st degree, 2nd degree etc.
    At the moment, some drivers are being penalised heavily for extremely minor indiscretions with no significant effect or risk to others, yet others are getting very minor penalties for hugely negligent and dangerous behaviour.
    As an example, I know of someone who was nearly killed by a poor driver who was out of control. A near head-on resulted, the assailant ended up 80 yards down the road having bounced off the wall three times. It was only the skill of the victim in the other car that saved them both. The assailant was given 3 points for “driving without due care and attention”.
    3 points for “driving without due care and attention” can also be given for a minor scratch or indiscretion in a car park that has absolutely no potentially serious consequences.
    Crazy!

  9. I can’t comment on the legalities involved here only to say, that in my experience, as a society we have very ambivalent beliefs about driving. I listened yesterday to a driver bemoaning the fact she had been caught speeding. Her indignity is measured by the fact that I have heard her tell this story on numerous occasions. She is clearly aggrieved and has warned those who listen about the police van that has been parked, sneakily, on a bend, ‘after you’ve put your foot down.’ Today I saw a driver on two phones – one held to the ear and the other apparently being used for texting. The will of the people to enforce traffic laws is not there. Strengthening such laws is not a vote winner. As a society we are appalled by deaths cause by plane crashes, but somehow accept deaths on our roads as ‘accidents’. The driver of the vehicle in which a friend died was given a two year suspended sentence. Witnesses claimed the driver had admitted to being tired. Instead of stopping, windows were opened. The judge said the incident was so traumatic for the driver that it would be unfair to punish her further. The loss of life was an ‘unfortunate’ consequence for which no one was responsible – and therein lies one of the problem. Essentially good and responsible people can kill people, and it is regarded as accidental and that somehow they are victims too. Unfortunately the motoring laws are very soft and lack the challenges of other laws. Let’s start by reviewing the word ‘accident’. Fatalities, sadly, are very often avoidable and are not therefore accidental.
    We have a long way to go.

    Thoughts with you and yours,

    M

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