The current law applying to Scotland

Assume that you have been asked by the Scottish Parliament's Justice Committee to write a report in between 1500 and 2000 words. You are asked to review and critically evaluate the current law applying to Scotland relating to the prosecution of drivers for causing death. In the course of your answer you should analyse the elements of each offence, particularly in relation to any mental element which might or might not be required.

Identifying differences between offences and discussing the circumstances in which each offence would be relevant, making reference where applicable to the relevance of the Highway Code. You should provide a critical evaluation of the law and its potential application. Presently in Scotland, the road traffic is primarily based on two statutes: the Road Traffic Act 19881 (RTA) as amended by the Road Traffic Act (1991)2 and the Road Traffic Offenders Act 1988 (RTO), and common law. There has been much debate over the current law applying to Scotland relating to the prosecution of drivers for causing death.

This report aims to outline the current law, relating to the prosecution of drivers for causing death, the elements and circumstances of each offence, and to evaluate the applicability of the law to each offence. The areas of Scottish law, which this report will evaluate, are s. 1 of RTA3 – death by dangerous driving; s. 3A of RTA4 – Causing death by careless driving when under the influence of drink or drugs, and the common law crimes of Culpable Homicide (voluntary culpable homicide, involuntary unlawful culpable homicide, and involuntary lawful homicide), and Murder (intent to kill and wicked recklessness).

Death by dangerous driving Section 1 of the Road Traffic Act 1988, as amended by the Road Traffic act 1991, states that a person is guilty of an offence who "causes the death of another person by driving a mechanically propelled vehicle dangerously on a road or other public place"5. For prosecution under s. 1, it is necessary to show that the accused drove a "mechanically propelled vehicle", in a public place, in a dangerous manner, and thus caused the death of another person.

'Dangerous driving' is defined in section 2A of the Act. 'Dangerous diving' replaced 'reckless driving' in the repealed ss. 1 &2 of the RTA 1988 because it was believed 'recklessness' placed too much emphasis on the behaviour of the driving rather than the quality; most driving offences are of strict liability for which proof of mens rea is unnecessary. What constitutes reckless driving was fully and definitively described in the case Allan v Patterson7. A person drives recklessly when the quality of the driving

"fell far below the standard of driving expected of the competent and careful driver and that it occurred either in the face of obvious and material dangers which were or should have been observed, appreciated and guarded against, or in circumstances which showed a complete disregard for any potential dangers which might result from the way which the vehicle was driven. " Awareness of danger is assessed objectively and fatal consequences cannot be taken into consideration by the court assessing the quality of the driving. It gas been found that dangerous driving included driving a vehicle when the driver was aware of a dangerous defect.

In R v Robert Miller (Contractors) Ltd 8, a lorry driver took to the road knowing that one of his tyres was defective. The defect caused an accident which resulted in death. The driver was convicted under s. 1, however, it must be noted that mens rea was required unlike other road traffic offences. The interpretation of: "driving a mechanically propelled vehicle", however, is not defined by the Act. In the case of Ames v McLeod9, it was held that when one is "in a substantial sense controlling the movement and direction of the car" one is driving for the purpose of the RTA.

(Lord Justice-General Clyde). Therefore, it could be interpreted that if A pushes a car along the road while controlling the steering wheel through the window, it could be possible that if an accident occurred and a person died as a result of A pushing the car, A could be charged under s. 1. In Farrell v Stirling10, a diabetic who went into a state of hypoglycaemia (never having experience such a condition in the past) just before an accident was held by the court not to be driving, thus not guilty of careless driving.

However, such a defence would not have succeeded if the accused had had previous experiences of the condition and appreciated that it was liable to affect him while he was driving. The term "public place" was defined by Brown v Braid11 as a place "on which members of the public might be found, and over which they may be expected to be passing, or over which they are in use to have access". It was suggested in Young v Carmichael12 that a place is not a public place because members of the public have access to it; it must be shown that members of the public were "expected to be there".

The term "road" is clearly defined in the Roads (Scotland) Act 198413 and in Hogg v Nicholson14 that on a road on a private estate is still a road, as defined by statute. Therefore if an offence is committed on a road which is situated on a private estate, the offender could be charged under s. 1, as long as the other criteria is met. However, if the offence occurred in a place which is not covered by "road or other public place", then a charge of Culpable Homicide or Murder would be taken. For a conviction under s. 1 it must also be found that the death resulted from the driving complained of.

Unless the cause or connection between the driving and the death is 'de minimis' a motorist can be convicted under s. 1 if the driving is shown to be one of the causes which result in the death of the victim. In McCluskey v HMA15, the driver caused injuries to an unborn baby, who died shortly after birth, and was convicted under s. 1. However, if an unborn baby dies as a result of the accident, there would not be a charge under s. 1; Macdonald defines homicide as the destruction of "self-existent human life"16. If an accident causes a passer-by to have a heart attack the driver is unlikely to be charged under s. 1, however, it is not clear.