January 2016 - Motoring law update

1.  R. v Hogan [2015] EWCA Crim 1984

HHJ Morris - "The appellant was convicted of causing serious injury by dangerous driving and pleaded guilty to driving with excess alcohol. On 3rd June 2015 he was sentenced by the judge to 2 years' imprisonment for the causing serious injury by dangerous driving and 4 months' imprisonment for driving with excess alcohol to run concurrently. He was disqualified from driving for 6 years and until an extended driving test had been passed.

In Geale [2012] EWCA Crim 2663, this court said:

    "We respectfully agree that the main purpose of disqualification is to protect the public from the risk posed by an offender driving, and we agree that, where that risk is very low, a lengthy period of disqualification may be inappropriate, particularly where, as here, the offender is dependent upon driving for his livelihood and hence a lengthy period of driving disqualification will put particular financial strains upon him."

    However, such risk is not the only relevant criterion for the assessment of length of the disqualification period. In addition, there is or may be an element of punishment; as is apparent from the fact that, even where the future risk is nil, the statutory provisions require a 12 month minimum period of disqualification. Furthermore, paragraph 30 of the Definitive Guideline makes clear that 'disqualification is a mandatory part of the sentence, subject to the usual very limited exception, and therefore an important element of the overall punishment for the offence.' When considering whether the length of the period disqualification is manifestly excessive, one therefore has to consider it in the context of the sentence imposed and the ancillary orders as a whole."

We bear in mind there should be a punitive element to disqualification and this was a bad piece of driving aggravated by the consumption of alcohol. However, we agree with [counsel] that there is nothing in the appellant's record to suggest this was other than an isolated offence or that a disqualification of this length is necessary for the protection of the public.

We have therefore come to the conclusion that the length of disqualification was manifestly excessive. In the circumstances, we quash the disqualification and substitute a disqualification of 3 years. The requirement to pass an extended driving test remains. To that extent alone this appeal is allowed."

2.  Alexander v Procurator Fiscal [2016] HCJAC 3

Lord Calloway - "At the Sheriff Court in Edinburgh, the appellant was convicted of dangerous driving contrary to section 2 of the Road Traffic Act 1988. The libel was that the dangerous driving consisted in the action of falling asleep on when driving in Longniddry, causing the appellant’s car to cross the central reservation and to collide with an oncoming car, causing damage to both cars and injury to the passengers in the other car.

The act of driving, which is deemed to be dangerous, still requires to be voluntary. Involuntary actions cannot form the basis for a conviction. Once a driver is asleep, his actions cannot be said to be voluntary, as he lacks consciousness.

However, the act of falling asleep, in the absence of special circumstances, is a voluntary act and, when it occurs in the context of driving, will usually be regarded as dangerous. That is because drivers who fall asleep:

“are always aware that they are feeling sleepy, ... there is always a feeling of profound sleepiness and they reach a point where they are fighting sleep ...”.

Although that is a passage of testimony quoted from R v Wilson [2011] 1 Cr App R (S) 11 (at p 13), it coincides with human experience (see AG’s Reference No. 1 of 2009 [2009] 2 Cr App R (S) 742 at 745; Kay v Butterworth (1945) 61 TLR 452). It does not require formal proof. A jury is entitled to infer, from the fact that a driver falls asleep, that, prior to falling asleep, he or she was aware of doing so and ignored the obvious dangers in so doing.

There may be special circumstances which make falling asleep involuntary. These include the onset of a medical condition, such as sleep apnoea, narcolepsy or a hypoglycaemic episode (eg Farrell v Stirling 1975 SLT (Sh Ct) 71; Macleod v Mathieson 1993 SCCR 488). However, a driver who knows of his medical condition, and can foresee that he may fall asleep, will be precluded from relying on that condition. It is for an accused to put any special circumstances in issue, and thereafter for the Crown to establish beyond reasonable doubt that the act of driving was nevertheless voluntary because the special circumstance ought to have been foreseen (Hill v Baxter [1958] 1 QB 279)."

3) Hughes v Pendragon Sable Ltd t/a Porsche Centre Bolton [2016] EWCA Civ 18

Mr Justice Cranston - "This appeal raises a number of not unfamiliar problems in the sale of goods: had the parties entered an agreement to agree, rather than an agreement for sale, because the price and specification for the goods were to be agreed later; was there a collateral contract, overriding the terms of the standard-form sale contract the parties signed; and what was the measure of damages when the seller failed to deliver what were goods in such high demand that substitute goods were not available?

In my view there was a collateral contract that if Porsche supplied a vehicle to Pendragon it would be allocated to Mr Hughes. The email of 23 March 2011 is a clear expression that that was what had been agreed, which Mr Mansfield accepted in his evidence. There is ample authority that the courts may treat a statement intended to have contractual effect as a contract collateral to the main transaction, in particular where one party enters the main contract because the statement is an assurance on a certain point. Mr Hughes was ordering the 911 GT3 RS from Pendragon and paying the deposit on 18 March 2011 because of the assurance that he would be first in the queue if Porsche allocated one to the dealership.

I would allow this appeal and award Mr Hughes damages of £35,000.”

4.  A consultation on changes to the Fixed Penalty Notice and penalty points for the use of a hand-held mobile phone whilst driving

This consultation seeks views on proposals announced in the Statement, namely

Increasing the penalty levels and Fixed Penalty Notice (FPN) for the offence of using a hand-held mobile phone whilst driving. Hand-held mobile phone use whilst driving is a dangerous activity which increases the risk of a collision.

This consultation considers proposals for increasing the FPN level from £100 to £150 for all drivers as well as increasing the penalty points from 3 to 4 for non-HGV drivers and from 3 to 6 points for those that hold a Large Goods Vehicle (HGV) licence who commit the offence whilst driving a HGV.

5.  A Bill to amend the Road Traffic Act 1988 to lower the prescribed limit of alcohol in relation to driving or being in charge of a vehicle; and for connected purposes.

The Bill is at the 2nd reading House of Lords stage. Proposed amendments:

(1) In section 11(2) of the Road Traffic Act 1988 (interpretation of sections 4 to 10), the definition of “the prescribed limit” is amended as follows.

“(a) 22 microgrammes of alcohol in 100 millilitres of breath"

“(b) 50 milligrammes of alcohol in 100 millilitres of blood"

“(c) 67 milligrammes of alcohol in 100 millilitres of urine"