Automated Vehicles

Automated vehicles

A joint report from the Law Commission of England and Wales and the Scottish Law Commission has been published. The topic is automated vehicles and makes recommendations for the safe and responsible introduction of self-driving vehicles.

The Law Commission is the statutory independent body created to keep the law under review and to recommend reform where needed.

Why was the report needed?

The Scottish Law Commissioner questioned how the law should deal with self-driving technologies. According to the Public Law Commissioner, there was an opportunity to promote public acceptance of automated vehicles and make recommendations on safety assurance and clarify legal liability.

The report recommends the introduction of new legislation regulating automated vehicles with a clear distinction between features that assist drivers and those that are self-driving.

As automated vehicles develop it could mean a vehicle could drive without human intervention. The legal consequences of such a development are huge. The human in the driver seat would not be the main focus of accountability for road safety. This would lead to a need for new systems of safety assurance, and the report recommends this is implemented by a new Automated Vehicle Act to set out new regulatory regimes and "new legal actors".

Key recommendations

1. Write a test for self-driving into the law - a clear line to be drawn to distinguish self-drive from driver support features; a transparent process for setting a safety standard; and also new offences to prevent misleading marketing.

2. An approval and authorisation process would be built on the current domestic and international technical vehicle approval scheme. A new second stage would be added to authorise vehicles for use as self-driving on GB roads.

3. A safety assurance scheme to be introduced to provide regulatory oversight throughout the lifetime of an automated vehicle to ensure they are safe and continue to comply with road rules.

4. Legal roles to be brought in for users, manufacturers, and service operators. Criminal responsibility for the person in the passenger seat will be removed.

5. Manufacturers and service operators will be held criminally responsible for misrepresentation or non-disclosure of safety-relevant information.

What are AVs?

AVs is the term used to refer to automated vehicles. The vehicles can also be called autonomous vehicles or driverless cars. They can drive themselves without being controlled or monitored by an individual for at least part of the journey.

The difference between driver support and self-driving is that the former is available to help the driver. An example of driver support would be assistance to maintain a safe distance from the driver in front.

It is anticipated that in the future the driver support features will develop to the point that a vehicle will be able to drive itself, without human intervention.

What is self-driving?

The term is used in the report to indicate a legal threshold. If a vehicle is described as having a self-drive ADS (automated driving system) feature, and that feature is engaged, the person in the driving seat is not responsible for the dynamic driving task. A clear distinction is required to set out when a person is no longer responsible for the dynamic driving task. The ADS is responsible for monitoring the driving environment and responding to events; the person in the driving seat (if there is one) may relax and divert their attention knowing the ADS is engaged.

It will be an offence to describe a feature as "self-driving" if it has not been authorised.

Authorisation scheme

The authorisation scheme will decide whether any ADS feature is self-driving or not. 

Accountability

Once a vehicle is authorised as having self-driving ADS features, the system of legal accountability will change:

1. The person in the driving seat will become a "user-in-charge" and have immunity from a wide range of offences. The person will retain other driver duties such as arranging insurance and checking loads.

2. A vehicle will be backed by an Authorised Self-Driving Entity (ASDE). If the vehicle is caused to drive in a criminal way by the ADS feature, it would be dealt with as a regulatory matter. The issue would be between the in-use regulator and the ASDE. The emphasis would be on understanding the issue and learning from it.

3. "No user-in-charge" (NUIC) features are a reference to the ADS features that may be authorised without a user-in-charge. Anyone in the vehicle would be a passenger only. The responsibility for overseeing the journey would be with a licensed NUIC operator.

4. In respect of civil liability, the provisions of the Automated and Electric Vehicles Act 2018 will apply. The insurance company will compensate the victim directly without the need for the victim to prove anyone was at fault.

How can we help?

We ensure we keep up to date with any changes in legislation and case law so that we are always best placed to advise you properly. If you would like to discuss any aspect of your case, please contact Damien Morrison on 01904 666 888 or dm@maasolicitors.co.uk. 

[Image:  "Google Self-Driving Car" by *rboed* is licensed under CC BY 2.0  ]

E-Scooters

[Image credit: fullstoppr/13256567)

E-scooters

Did you know that e-scooters fall within the definition of a motor vehicle? You would not be alone if you said no. Due to the growing popularity of e-scooters and general ignorance in respect of the laws governing them, the Metropolitan Police have issued an open letter to retailers to warn purchasers where they are illegal to use.

This is timely advice given that E-scooters are reported as being a top-selling Christmas gift again.

Illegal?

All privately owned e-scooters are illegal to use in public places and on the road. It should be noted, however, that this does not apply to trials of rented scooters currently taking place on a limited basis in some areas.

Why and where are they illegal to use?

As a result of the way that they are motorised and designed, the e-scooter falls within the definition of a motor vehicle. 

This means that the laws applying to motor vehicles also apply to e-scooters so one cannot be used on a public road without complying with the appropriate legal requirements. 

As well as public roads the law applies to spaces set aside for pedestrians including pavements and cycle lanes.

The law also applies to other so-called "powered transporters" such as segways, hoverboards and go-peds. It does not apply to electrically assisted bikes (although these have their own regulations).

What are the legal requirements for use?

In principle, if a user could meet the same requirements as a motor vehicle user, they may be able to use public roads. This would include insurance, licensing, registration, driving licence, use of safety equipment and conformity with technical standards. 

It is unlikely, however, that an e-scooter user would be able to conform with all the requirement leaving it illegal to use in these places.

Is it legal to use them anywhere?

It is legal to use an e-scooter on private land if you have the permission of the landowner. 

What are the penalties?

There is a range of offences that could be committed, from simple use on the road a penalty could be a fine, penalty points or disqualification. Use, whilst under the influence of drink or drugs, would be more serious and can lead to imprisonment. 

Has anyone actually been prosecuted?

There are recorded cases of prosecutions involving segways, go-peds and a "City Bug" electric scooter, and we recently helped a client who had been out drinking with friends, who used an electric scooter to get themselves home after a heavy night out, and was prosecuted for driving whilst over the proscribed limit.

If in any doubt please seek legal advice before use.

How can we help?

If you would like to discuss any aspect of your case, please contact Damien Morrison on 01904 666 888 or dm@maasolicitors.co.uk

Failure to Provide Breath Specimen

Failure to provide a specimen of breath

Section 7 Road Traffic Act 1988 states that a person who, without reasonable excuse, fails to provide a specimen when required to do so is guilty of an offence. The offence can be punished by up to six months imprisonment and in some cases, also carries mandatory disqualification from driving.

In legal terms, the offence is relatively straightforward, but in practice, there are lots of issues, both legal and medical, that lawyers less versed in road traffic law might well miss.

Vulnerable detainees

Vulnerable detainees must have the support of an appropriate adult. In Miller v DPP [2018] EWHC 262 (Admin) the court observed:

"Amongst the reasons behind Code C requiring the presence of an appropriate adult is that he or she is independent of the police authorities, and is able both to safeguard the welfare of the detained person and to provide him with an independent perspective. The appropriate adult is likely to have a significant role to play in providing a calming influence on a minor or vulnerable adult who may have become, as in the present case, distressed and agitated as a consequence of finding himself confronted with a particularly stressful and pressured situation in custody. As [Counsel] submitted, the essence of the charge of refusing to provide a specimen involves the person under investigation understanding the nature of the request involved in requiring a sample and also, importantly, an insight into the consequences of the failure to allow the police to take an evidential sample. The appropriate adult is likely to play a key role in the process of both explaining the purpose of obtaining the evidential sample, and also the consequences of a failure to permit the police doing so."

This point is often missed by custody sergeants as they do not wish to delay breath test procedures in order to allow for the presence of an appropriate adult.

Medical Reasons

The following medical aspects must be considered in all cases:

·         Injuries to mouth, lip or face.

·         Tracheostomy, rib or chest injury.

·         Respiratory issues, such as asthma.

·         Neurological problems such as facial palsy.

·         Phobias.

·         Shock.

·         Severe alcohol intoxication.

·         Short stature (as odd as this might appear there is an important 1993 study on this point).

Any lung disease issue needs to be carefully explored, and there is now quite a body of interesting medical research on this issue, particularly in the context of the Lion Intoxilyzer 6000 series (Honeybourne et al (2000)).

We have considerable expertise in defending all manner of road traffic allegations and understand the critical interplay between law and medicine, which is often a feature of these cases. You should contact us as soon as possible to discuss the most appropriate case strategy. Do not leave it to amateurs.

How can we help?

If you need specialist advice, then get in touch with Liam Hassan on 01904 666 888 and let us help. We can advise on a plea, defences and potential sentences in a wide range of circumstances. 

[Image credit: "Medical" by havens.michael34 is licensed under CC BY 2.0]

Covid, Self-Isolation and Employer Duties

Covid, Self-Isolation and Employer Duties

The Health Protection (Coronavirus, Restrictions) (Self-Isolation) (England) Regulations 2020 came into effect on 28 September 2020.

The regulations:

·         prohibits an employer from allowing a worker to attend any place (except the place where they are required to self-isolate) for any purpose connected to the worker’s employment;

·         sets out the prohibition on knowingly allowing a self-isolating worker or a self-isolating agency worker to be present anywhere for work purposes, other than the place where they are required to self-isolate;

·         requires a self-isolating worker to inform their employer of the requirement on them to self-isolate; and

·         requires a self-isolating agency worker to inform either their employer, the agency or the principal of the requirement on them to self-isolate. It requires whoever has received such a notification to pass the information on to the two other parties.

An important point to note is that the rules apply not only to conventional employees but also to other workers, including agency workers.

An employer or employee who breaches these rules can be prosecuted, or issued with fixed penalty notices ranging from £1,000 - £10,000 (for subsequent breaches). A corporate body may face prosecution in addition to any officer of the company who consented to the act, was in connivance, or was neglectful.

Companies also need to carefully consider what reputational damage might be caused to their brand in the event of negative publicity or conviction.

As always, the legislation is both detailed, ever-changing and complex, so if in any doubt as to your obligations, please get in touch with us as soon as possible.

How can we help?

If you need specialist advice, then get in touch with Damien Morrison on 01904 666 888 and let us help. We can advise on a plea, defences and potential sentences in a wide range of circumstances. 

Image credit: "Coronavirus COVID 19" by https://www.vperemen.com is licensed under CC BY 2.0

Memory in Criminal Cases

Memory Fallibility

In the criminal courts, we are seeing an ever-increasing number of cases where the court hears evidence from witnesses recounting what apparently happened some years earlier. Of course, in many cases, some of that evidence would have been recorded at the time, by way of a witness statement. Still, it is widespread for such evidence to be supplemented by important additional detail that the witness appears easily to recall. That witness may not be lying, but it does not mean that we can rely upon such evidence. In this article, we consider how a court or jury should approach such evidence.

The issue of the extent to which a court should rely on the recollection of witnesses and the fallibility of human memory first arose in a commercial setting through observations made by Leggatt J in Gestmin SGPS SA v Credit Suisse (UK) Ltd and Another [2013] EWHC 3560 (Comm) (‘Gestmin’) at [15] – [22], and more recently in Blue v Ashley [2017] EWHC 1928 (Comm) at [68] – [69].

In the Gestmin case, at [22], Leggatt J expressed the view that the best approach for a judge to adopt in a trial was to place little, if any, reliance on a witness’s recollection of what was said in meetings and conversations; rather factual findings were to be based on inferences drawn from documentary evidence and known or probable facts.

This was followed in Blue v Ashley, where Leggatt J at [70], having rehearsed his own earlier observations in Gestmin, approached evidence of a crucial conversation in a way that was “[m]indful of the weaknesses of evidence based on recollection”.

The Court of Appeal considered both of these cases in Kogan v Martin and Others [2019] EWCA Civ 1645 (‘Kogan’). This was a case where the judge at first instance had wrongly regarded Leggatt J’s statements in Gestmin and Blue v Ashley as an “admonition” against placing any reliance at all on the recollections of witnesses.

In Kogan the court observed:

"Gestmin is not to be taken as laying down any general principle for the assessment of evidence. It is one of a line of distinguished judicial observations that emphasise the fallibility of human memory and the need to assess witness evidence in its proper place alongside contemporaneous documentary evidence and evidence upon which undoubted or probable reliance can be placed. Earlier statements of this kind are discussed by Lord Bingham in his well-known essay The Judge as Juror: The Judicial Determination of Factual Issues (from The Business of Judging, Oxford 2000).

But a proper awareness of the fallibility of memory does not relieve judges of the task of making findings of fact based upon all of the evidence. Heuristics or mental short cuts are no substitute for this essential judicial function. In particular, where a party's sworn evidence is disbelieved, the court must say why that is; it cannot simply ignore the evidence."

A court (and therefore a jury as well) must, however, be mindful of the fallibility of memory and the pressures of giving evidence. The relative significance of oral and contemporaneous evidence will vary from case to case. What is important, as was highlighted in Kogan, is that the court assesses all the evidence in a manner suited to the case before it and does not inappropriately elevate one kind of evidence over another.

So where for example a witness was giving evidence about an incident which had lasted perhaps only a few seconds some years before, in circumstances where the recollection was taking place in the aftermath of unimaginably traumatic events, those features alone would highlight the need for this critical evidence to be assessed in its proper place, alongside contemporaneous documentary evidence, and any evidence upon which undoubted, or probable, reliance could be placed.

We take care only to instruct advocates who are familiar with what is now a considerable body of case law in relation to witness testimony and its potential weaknesses.

How can we help?

If you need specialist advice, then get in touch with Keith Whitehouse on (01904) 666 888 and let us help. We can advise on a plea, defences and potential sentences in a wide range of circumstances. 

Image credit: "confuse" by Tall Chris is licensed under CC BY 2.0

Hate Crime

Hate crime – a change of emphasis

The Law Commission is considering proposals to reform hate crime laws. Hate crime is where a victim is targeted, perhaps for an assault, criminal damage or harassment, based on a protected characteristic. 

What are protected characteristics?

Currently, the protected characteristics are race, religion, sexual orientation, disability and transgender identity. 

Why are reforms needed?

The Commission says that there are issues with how the hate crimes laws work in practice. Several different pieces of legislation cover the laws and some overlap; it is also argued that not all of the protected characteristics are treated equally. 

For some offences such as assault, criminal damage and harassment, there is an aggravated form of the offence for hate crimes. These require an increase in the sentence as a result of the hate crime element. 

There are also separate offences for stirring up racial hatred or stirring up hatred based on sexual orientation or religion. The offence of stirring up racial hatred requires the behaviour to be ‘threatening, abusive or insulting’. For the other two offences, the behaviour must be threatening, and there is no mention of being merely abusive or insulting. 

Some definitions of "transgender" in the current laws have also been criticised for using language that is outdated.

What reforms are being proposed?

Sex and gender - it is proposed to add sex and gender to the protected characteristics to enhance protections against crimes based on misogyny. 

Additional characteristics - establishing criteria to decide if any other additional characteristics should be recognised. For example, age, sex workers, homelessness, philosophical beliefs and alternative subcultures. The aim is to identify and fill any potential gaps in the characteristics whilst referencing the underlying principle and the practical implications of changing the law.

Aggravated offences - the protections of the aggravated offences and the stirring up hatred offences to be extended so that all of the protected characteristics are treated the same. This would include any additional characteristics that may be added to the list. 

Stirring up hatred - these offences would be reformed "so that they are less difficult to prosecute in cases where the defendant clearly intended to stir up hatred, but provide greater protection for freedom of expression where such intention cannot be proven". The offences are proposed to be extended to cover incitement of hatred towards disabled and transgender people, and hatred on the grounds of sex or gender. 

Racist chanting - the offence of racist chanting at a football match would be extended to cover chanting based on sexual orientation. There is also a consultation on extending the offence to cover other protected characteristics along with other forms of behaviour such as the use of racist gestures and throwing missiles.

What happens next?

The Commission will need to consider the impact of any changes on other aspects of the criminal justice system, including other offences and sentencing practice. They also need to ensure that any recommendations comply with human rights obligations such as freedom of expression and the prohibition of discrimination. Finally, there will be consideration of the implications of any recommendations for other areas of law, such as the Equality Act 2010. 

The consultation is open until 24th December 2020 after which the final recommendations will be made to the government next year.

It is worth noting that reform proposals such as this have the potential to highlight current problems and it is likely that some judges may pay closer attention to them when sentencing; we might therefore reasonably expect some upward adjustment to sentence in a few cases.

How can we help?

If you need specialist advice, then get in touch with Adam Henry on (01904) 666 888 and let us help. We can advise on a plea, defences and potential sentences in a wide range of circumstances. 

Forced Marriage

Forced Marriage

Coercing someone into marrying another for some financial or societal benefit is illegal.

In April of this year, three young women in Sheffield became subject to Forced Marriage Protection Orders. This case highlights the how embedded this type of offending is in some parts of England and Wales, particularly concerning young girls.  

Various offences fall under the banner of forced marriage, and it is essential to be aware of their constituent parts if you are concerned about this issue.   

While family law courts make orders of the kind mentioned above, breaching them engages the criminal law. 

What is the offence?              

A serious offence is using coercion or deception for the purpose of marriage, under section 121 of the Anti-social Behaviour, Crime and Policing Act 2014.

This offence occurs if someone”

 "uses violence, threats or any other form of coercion for the purpose of causing another person to enter into a marriage, and believes, or ought reasonably to believe, that the conduct may cause the other person to enter into the marriage without free and full consent."

What are the penalties?   

The offence is triable either-way (so before a magistrates’ court or a crown court) but warrants significant sentences following a conviction on indictment, seven years' imprisonment (and/or a fine) being the maximum penalty. 

Similarly, the related offence of breaching a forced marriage protection order can lead to a sentence of up to five years’ imprisonment. Prior to the 2010 legislation the only punishment for doing this was contempt of court. That is still an option under the new regime, alongside this new penalty. 

Forced marriage and mental health     

These offences inevitably lead to interactions between the law and people’s religious and cultural views.

Another aspect is protecting those who are incapable of consenting to marriage because of mental incapacity.   

All these factors were considered in the case of Luton BC v B [2015] EWGC 3534 (Fam). In that case, a person was deemed to lack capacity to consent to either marriage or sexual relations, in relation to the latter specifically because "the combination of autism and intellectual disability prevents [the person] from making the crucial link between actions and consequences”. 

How we can help

If you are alleged to have been involved in these or any other offences, or have further questions about this area of law, then please contact Damien Morrison on 01904 666 888, or email dm@maasolicitors.co.uk. We have specialists available who fully understand these particularly complex laws.

Harassment

What is harassment?

There are two distinct criminal offences, one of harassment putting people in fear of violence and one without. Stalking is a similar but separate offence and is not covered in this article.

What does it involve?

There has to be a course of conduct involving as little as two incidents against another person or persons.

The dictionary definition is to “torment by subjecting to constant interference or intimidation”.

The law does not provide a comprehensive definition and there are many actions that can foreseeably alarm or cause a person distress that would not constitute harassment.

The offence is aimed at conduct that alarms or causes a person distress and which is oppressive and unreasonable.

What do the prosecution have to prove?

•    That there is a course of conduct;

•    which amounts to harassment of another; and

•    which the defendant knows, or ought to know amounts to harassment of another.

Additionally, for the more serious offence the prosecution has to prove:

•    that the course of conduct causes another to fear that violence will be used against him; and

•    that the defendant knows or ought to know that his course of conduct will cause another to fear that violence would be used against him

How do I know it is harassment?

The test of whether you ought to know whether the course of conduct amounts to harassment is whether a reasonable person, in possession of the same information, would think the conduct amounted to harassment. The same test applies in respect of fear of violence.

Are there any time limits?

At least one of the incidents has to have occurred within six months of the charge, for the basic offence without violence.

What about defences?

There are three available defences for the basic offence:

1.    that the course of conduct was for the purpose of preventing or detecting crime;

2.    that it was conducted under a rule of law;

3.    that it was reasonable in the circumstances.

Additionally, it is a defence for the more serious offence if the course of conduct was reasonable for the protection of the defendant or another or for the protection of their or another’s property.

What sentence could I get?

For the offence without violence (the basic offence) up to six months imprisonment can be imposed (2 years if racially aggravated).

For the more serious offence involving fear of violence the maximum sentence was 5 years and is 10 years for offences committed on or after 3rd April 2017 (7 or 14 years if racially aggravated, again dependent on date of offence).

A restraining order can also be imposed, the aim of which is to protect the victim of the offence from further incidents, contact or risk of violence. Such an order can prevent contact with the victim and provide for an exclusion zone around their address. A restraining order can be imposed even if you are acquitted of the offence.

The law in respect of harassment and the potential defences is complicated, and there are other specific offences of harassment (for example of debtors) that are not covered in this article.

How we can assist

If you are being investigated for or have been charged with this offence please contact our office for further advice and representation, our solicitors are experts in criminal law and can guide you through the complexities. Please contact Liam Hassan on 01904 666 888 or by email at lh@maasolicitors.co.uk.

Forensic Testing - Is your conviction safe ?

Forensic Testing - Is your conviction safe ?

New details have emerged about forensic testing deficiencies at two of the country's leading laboratories. Police are currently investigating the circumstances, and a number of people have been arrested.

Randox Testing Services (RTS) and Trimega Laboratories handle samples for some of the most high-profile criminal and family law cases, the accuracy of the tests being of paramount importance to people facing criminal prosecution for offences ranging from drink driving to murder.

Home Office Minister Nick Hurd told parliament:

'Most drug tests from RTS between 2013 and 2017 are being treated as potentially unreliable. RTS was mainly commissioned by individual police forces when investigating criminal offences.'

It is believed that the results from as many as 10,000 tests could be under question.

Is Your Conviction Safe?

If a conviction in your case rested wholly or partially on the reliability of forensic tests, it is essential that you seek further legal advice.

While the Crown Prosecution Service will be carrying out a review into criminal cases, this will take a considerable period of time, and many will question whether the body that brought the prosecution in the first place is ideally placed to make decisions as to the safety or otherwise of a conviction.

Those affected will, therefore, wish to consider whether any further forensic testing ought to take place, and even whether or not there are grounds to appeal. All convictions will need to be considered on a case by case basis.

Even if your cases did not involve the two laboratories currently under investigation, this scandal throws a spotlight on the hidden world of forensic testing and calls in to doubt results from other forensic testing providers.

How We Can Assist

Regardless of whether we handled your case initially our experienced team of lawyers has the expertise to ensure the safety of your conviction is beyond question.

If you believe that inaccurate forensic testing may have led you to be wrongfully convicted (and that includes pleading guilty to an offence), please contact Damien Morrison on 01904 666 888 or dm@maasolicitors.co.uk.

None for the road...

None for The Road

As we put Halloween and Bonfire Night behind us, easing into those dark wintry nights, it isn't long before Christmas is in our sights and party season gets underway.

As night follows day, this time also coincides with a national police initiative concerning drink driving, as forces across the country prepare for a spike in the numbers of those tested and arrested for drink and drug driving offences.

While these offences may not seem particularly serious when viewed against other offences, what is not often understood is the real impact that a conviction can have.

Research shows that loss of a licence leads in a great many cases to loss of employment, in turn to loss of housing as bills cannot be paid, and sometimes it is the final straw that breaks a relationship. The financial costs will be felt for many years thereafter as insurance premiums will be greatly increased.

What we also see is that a great many people come before the courts with alcohol readings that are not high, and where offences have been detected the 'morning after'. Offences that can be said to have been committed perhaps more out of ignorance than a wilful disregard for others.

A single error of judgment with devastating consequences.

What is a safe level of drinking if I propose to drive?

No alcohol is the safest level as it ensures that when you get behind the wheel, your reactions are not impaired to any degree at all.

Crucially it also prevents the guesswork that brings so many people before the courts.

Urban myths such as '2 pints are ok' have long since been proved to be false, as have back of the envelope guesses as to how long it takes alcohol to leave the body.

Different people will deal with alcohol in different ways, and even this can vary for a single person depending on a multitude of factors.

Merely feeling OK to drive is not a reliable indicator as to whether you are below the legal limit or not.

As we get merry, we reach a tipping point; we can make foolish choices that will prove costly, sometimes not just measured in financial terms but in injury and even loss of life.

You do not hear a lawyer say this often - but we do not wish to see you this Christmas.

Think, before you drink and drive.

How we can assist ?

If you do find yourself in trouble, there is a lot we can do to assist.

The police must follow complex procedures to establish a case against you – we can ensure that this has been done.

We can also investigate issues such as 'laced drinks' and 'special reasons'.

Well-presented mitigation can make a real difference to the outcome and even where a disqualification cannot be avoided, we can often achieve a reduction in length.

Contact Damien Morrison on (01904) 666 888 or dm@maasolicitors.co.uk to discuss any driving related matters.