Response to Department for Transport Consultation on Penalties for Careless Driving and Other Motoring Offences
August 2012

Introduction

The ABD was formed in 1992 to campaign for a better deal for Britain’s motorists. It is a voluntary organisation funded by subscriptions and donations from members and supporters. It currently has around 1,000 members and a further 3,000 supporters on social media sites. The ABD receives no funds from public bodies or private-sector businesses, so is truly independent. It is a member of the Parliamentary Advisory Council for Transport Safety and the National Council of Voluntary Organisations.
The ABD’s national committee has agreed the response to this consultation. The response is in line with the policies outlined on the ABD’s website. Individuals who join or support the ABD are assumed to support its policies in general, so it is not necessary (nor would it be practicable) to seek the views of the entire membership in preparing responses to consultations of this type.
The on-line response form is not considered to be a suitable format with which to adequately express the ABD’s views on the Government’s proposals, so responses to the questions in the consultation document are set out below.

Careless Driving

Q.1 Do you agree with the proposed approach to make careless driving a fixed penalty offence and open to the offer of remedial training?
The ABD is strongly opposed to making careless driving a fixed penalty offence. Unlike other fixed penalty motoring offences such as speeding or using a mobile phone, where there is usually some form of tangible evidence or record of the offence, careless driving is largely subjective, especially at the lower end of the scale. The consultation document makes it clear that fixed penalty notices (FPNs) or remedial training would only be offered in situations witnessed by a police officer where there are no victims, no collisions and no public complaint. This means that the ‘evidence’ against a driver could often be the uncorroborated opinion of a single police officer.

While a driver would still have the option of going to court, experience shows, especially in magistrates’ courts, that a police officer’s word will invariably be accepted over that of a defendant, even where the police officer’s evidence is shown to be faulty. The presumption of innocence does not apply in practice, therefore, with only wealthy defendants having the option of appealing to a higher court to seek justice. Consequently, the majority of drivers accused of careless driving would feel they had no option but to accept the FPN or remedial training, even if they genuinely believed they had done nothing wrong.

No doubt the majority of drivers would opt for the training course, if offered. While the ABD strongly favours education over punishment, it has serious concerns over the police having a financial incentive to send as many drivers as possible on training courses. This is already happening in some parts of the country with speed awareness courses, where the police have relaxed the criteria for offering the courses to offending drivers so they can earn more referral fees. This money is being used to fund the operation of safety camera partnerships, now that the Government has withdrawn direct funding for camera operations.

This practice is morally unacceptable and of dubious legality. The police rightly have discretion to decide whether a driver should be prosecuted, let off with a warning or offered remedial training for a minor offence. If the offence is sufficiently serious to warrant consideration of a fine and penalty points, however, it is wrong that the police should be encouraged to waive prosecution in return for payment, albeit one made indirectly. This could be construed as perverting the course of justice.

It is easy to see how an explosion in police enforcement of allegedly careless driving offences could occur if this fee-earning practice is extended to remedial training courses. The ABD believes the following safeguards need to be implemented as a minimum, whether careless driving becomes a fixed penalty offence or not:

The consultation document fails to make a compelling case for allowing careless driving to become a fixed penalty offence. The case appears to hinge on the cost and bureaucracy to the police of taking drivers to court for lower-end instances of careless driving, discouraging them from doing so. But the consultation document then admits that “these examples of the offence may not be suitable for prosecution when considering the public interest and lower risks”. So why try to bring them into the criminal arena at all?
Lower-end cases of careless driving may be, as the consultation document states, antisocial and increase danger to other road users, and some drivers may be unaware that their actions come into this category. This is evidence of the need for remedial training, not prosecution. The police already have the discretion to refer drivers to improvement courses and the ABD would welcome a greater police presence on the roads to advise such drivers of the error of their ways. This only applies, of course, if the police are not allowed to benefit financially, as explained above.
Q2. Do you agree that the FPN offence should carry 3 penalty points and a fine of £90.
Since the ABD does not agree that careless driving should be a fixed penalty offence, it also disagrees with the proposed penalty points and fine. As noted in answer to Question 1, if the proposals go ahead the level of careless driving for which a fixed penalty would apply would be at the low end of the scale, where there has not been an accident, injury or public complaint. Criminal sanctions should only be applied in cases that are serious enough to warrant consideration of taking a driver to court.
Disturbingly, the consultation document makes the main case for the proposed penalty points and fine as being an encouragement to drivers to accept the offer of remedial training instead. This could be construed as facilitating the money-making activities of the police and safety partnerships through course referral fees. If this were the case, it would be totally unacceptable.
If improving road safety is the real aim, low-level offences should be dealt with by a police traffic officer giving advice or a warning. In the case of more serious offences, a summons or the option of a remedial course should be offered, as now, but with the proviso that the police or safety partnership must not be allowed to gain financially. In order to tackle careless driving effectively, more police traffic patrols are needed. This obviously costs money, but the cost of enforcement must never be met from the income raised from that enforcement, otherwise priorities become distorted. This happened with the cost-recovery system for speed cameras and still occurs with civil enforcement of waiting and other traffic restrictions. It must not be repeated.
Q.3 Do you agree with the criteria for the guidance on issuing an FPN or remedial training?
While some of the examples listed in the consultation document constitute unsafe or inconsiderate driving, they are exhibited in varying degrees. At the lower end of the scale they should be tackled with advice or a warning, at the higher end, or in the case of repeat offenders, with prosecution or remedial training. In all cases, however, the full sequence of events needs to be taken into account. Looking at each of the six examples in turn:
Driving too close to a vehicle in front.
This is certainly an unsafe practice and extreme examples should be subject to enforcement. Safe headways are, of course, related to speed and should be assessed in terms of time rather than distance. The length of time the tailgating has been taking place is also relevant. As noted in response to Question 1, a driver could be maintaining a safe distance only for another driver to move into the space ahead, requiring time for the first driver to drop back to restore a safe headway.
While the main danger from tailgating is the risk that the following driver will not be able to stop in time if the one ahead brakes suddenly, it creates additional risks on single-carriageway rural roads. If a driver in a queue of traffic behind a slow-moving vehicle has no intention of overtaking but nevertheless follows at a short headway, it increases the difficulty and danger for other drivers who wish to overtake. This is inconsiderate driving, as is that of the slow driver at the head of the queue if he or she fails to pull over from time to time to allow following vehicles to pass.
Wrong lane on a roundabout.
Making this an ‘offence’ could lead to many drivers being prosecuted for errors created by misleading or inadequate signage, especially if they are unfamiliar with a particular junction. For example, at a simple four-arm roundabout with two lanes at each entry point, lane one is normally available for vehicles going straight ahead or turning left, while lane two is for those going ahead or turning right. Sometimes, however, lane one might be marked for left-turners only, or lane two for right-turners only. These restrictions are often shown only by carriageway markings, which may be obscured by queuing vehicles at peak times, requiring an approaching driver to commit to a lane before being aware of the restriction.
At large roundabouts with traffic signals at each entry point and wide circulating areas, the lane markings for a particular exit often change from one set of signals to the next, which can easily catch drivers out if they are not familiar with the junction. Drivers should not be threatened with prosecution for falling into traps set by badly designed road layouts.
Ignoring a lane closed sign and pushing into an orderly queue.
This is a contentious issue, as queue lengths will be shorter if traffic remains in all available lanes for as long as possible, so there is less danger of upstream junctions being affected. Indeed, at some motorway road works and dual carriageway terminations, signs encourage drivers to use all lanes and then merge in turn. Encouraging this give-and-take approach is surely the better option than prosecution.
Lane discipline such as remaining in lane two or three when lane one is empty and there is no other vehicle to overtake.
This is an issue that creates a great deal of frustration and is often the cause of tailgating. It is particularly serious when a car driver in lane two of a three-lane motorway prevents overtaking by a lorry or coach, which is not allowed to use the outside lane. The police should certainly take action against this behaviour, but again using judgement to decide between giving advice or prosecution.
Inappropriate speed.
This is a far more important road safety issue than exceeding a statutory speed limit, which may or may not be unsafe. As well as travelling too fast for the conditions, inappropriate speed can also be travelling much more slowly than other road users expect. Except in extreme cases, however, judging what may be an inappropriate speed is highly subjective so, if prosecution is being considered, the facts must be examined in court.
Wheel spins.
This seems a relatively trivial issue to consider as careless driving. It is quite possible to initiate wheelspin inadvertently in slippery conditions and, if snow chains are fitted, spinning the wheels may be necessary to gain traction. Deliberate showing-off by spinning the wheels may be tiresome, but hardly warrants prosecution unless it is part of sustained, reckless driving.

Increasing levels of motoring fixed penalty notice offences

Q.4 Do you agree we should increase the penalty levels for most endorsable plus seat belt wearing fixed penalty offences to £90?
The consultation document puts forward two reasons for the proposed increase from the current £60 fixed penalty to £90. The first is that inflation has eroded the real value of the current penalty since 2000. This is true, but the Government’s favoured measure of inflation for adjusting benefits such as pensions is the Consumer Prices Index, which rose by 32 per cent between January 2000 and January 2012. By this measure, the penalty should increase to £79.20, which suggests a figure of £80 would be reasonable. Only by using the much higher increases in the Retail Prices Index (43 per cent) or Earnings Index (48 per cent) would a figure higher than £80 be justified, but the Government should not choose the measure of inflation that maximises its income, while using a different measure to minimise its outgoings. The ABD does not, therefore, support the proposed increase to £90.
The other reason suggested for the proposed increase is that the cost of remedial training courses is significantly higher than the fixed penalty, so drivers might be reluctant to take the training option. This ignores the fact that the financial cost to a driver of receiving an endorsable penalty is far greater than the fixed penalty itself. Insurance companies are likely to increase future premiums significantly, which can take years to return to normal levels. Consequently, there is a substantial benefit to a driver from avoiding penalty points, even if the immediate cost is higher.
It is clear from the consultation document that the Government wishes to encourage the police to offer remedial training as an alternative to an FPN whenever possible. This is laudable, provided the motive is purely to improve road safety by showing offending drivers the error of their ways. As has already been stated, however, it is not acceptable to encourage a greater police presence financed from course referral fees, as this could distort police priorities and lead to drivers being coerced to take remedial training on the flimsiest of evidence. It cannot be stressed too often that funding enforcement from referral fees is unacceptable and must be banned.
Q.5 Do you agree we should increase the levels for non-endorsable fixed penalties to £45 (excluding parking offences)?
For the same reason as explained in the first paragraph response to Question 4, penalties should increase in line with the Consumer Prices Index, so there is only justification for raising the current £30 penalty to £40, not £45.
Q.6 Do you agree that we should increase the fixed penalty level for driving without insurance to £300?
Although this proposal represents a greater than inflationary increase as measured by the Consumer Prices Index, the ABD does not object to the proposed increase due to the seriousness of the offence. At the same time, however, the Government needs to tackle the issue of steeply rising insurance costs, which contribute to the temptation to drive without insurance. Referral fees and the compensation culture generally are pushing up premiums and need to be addressed.
Q.7 Do you have any views on whether to increase the fixed penalty levels for the offence of keeping a vehicle without insurance?
The ABD has never seen the point of this offence, as only vehicles that are kept on the public highway should need to be insured. If a driver has to take a car off the road for a few weeks while saving up to have a repair carried out, he or she must now either continue to insure it needlessly or submit a Statutory Off-Road Notification.
Even if a vehicle is insured for use by a particular driver, that is no guarantee it is insured if being driven by someone else. So relying on the insurance database as evidence that a vehicle is insured can allow uninsured drivers to slip through the net.
The creation of this offence has just increased bureaucracy without ensuring that all instances of uninsured driving are detectable. Consequently, the ABD does not support an increase in penalties for this offence.
Q.8 Do you think graduated fixed penalties should be increased to the levels being proposed for the other motoring FPNs in the consultation document?
Since these penalties relate mainly to drivers of commercial vehicles, the ABD does not have any strong views on the subject. If penalties are to be increased, however, they should rise in line with inflation as measured by the Consumer Prices Index, not the higher levels proposed in the consultation document.