Careless Driving In Scotland

Careless Driving In Scotland | Road Traffic Act 1988 Section 3

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Careless Driving in Scotland

Careless Driving in Scotland is an offence under the Road Traffic Act 1988 section 3. In recent years we have noticed a significant upturn in our queries relative to Careless Driving in Scotland. The most probable reason for this is an extension of police powers. Police officers can now issue Conditional Offers of Fixed Penalties for careless driving under Section 3 of the Road Traffic Act 1988. The outcome is that minor accidents that would once be left to individual and insurers to sort out are now appearing before the courts. The paragraphs below will provide you with some basic information if you have been charged with careless driving in Scotland. Then, further down the page, we provide more detailed information in our “learn more” boxes. We separate things in this way because we appreciate that not everyone wants to be faced with screeds of text, particularly if you are viewing this page on your mobile phone. First however you may wish to check our case results.

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What Is Careless Driving?

Careless driving charges are traditionally brought as a result of accidental or careless acts and consequently often follow unintentional incidents such as collisions, accidents and general instances of poor driving habits. Sheriff Gordon once described Dangerous Driving as “Bloody awful driving” and Careless Driving as “Awful driving”. For example, an unintended road incident which has resulted in no serious damage or injury may incur a charge of careless driving or driving without due care. Accordingly, in order to secure a conviction, it need not be established that the driver is guilty of a deliberate act.

Careless driving is an offence under the Road Traffic Act 1988 section 3.  It is defined under section 3ZA as those  “who drive a motor vehicle on a road in a manner that falls below what would be expected of a competent and careful driver” or ”’those who drive without reasonable consideration for other persons using the road or place”. Essentially, to be classified as careless driving it must be shown that the driver departed from the standard of a reasonably prudent and competent driver in all the circumstances of the case.

In order to secure a conviction for Section 3 careless driving it must be shown that other persons have been inconvenienced in some way by the accuseds’ driving. Circumstances known to have been within the knowledge of the accused must be taken into account, however their age, experience or physical or mental health is irrelevant as are their views on what happened. The Highway Code can and is used as a guide to acceptable driving behaviour but failure to comply with the code will not automatically lead to a conviction (S37(7) 1988 RTA).


Penalties

The penalties for careless driving include fines of up £5,000 and between 3-9 penalty points or a discretionary driving disqualification.


Police Procedure

If the police attend the scene or are actual witnesses to an allegation of careless driving in Scotland, it is now common for the police to issue an “on-the spot” ticket – or, as it is formally known – a Conditional Offer of a Fixed Penalty. This is an administrative way of dealing with minor offences and carries 3 penalty points and a fine of £100. If you accept and pay this ticket, that is the end of the matter. It is NOT a criminal conviction. You do not have to take the ticket from the police.  Similarly you can take the ticket but not “accept” it by paying it. We would ALWAYS recommend that you obtain legal advice before accepting a ticket. Call us on 0800 048 8696 for our help. Our initial consultation is always completely free of charge.

In certain situations, particularly if you are involved in a  serious road traffic incident, the police may wish to interview you under caution if they feel that there is a reasonable suspicion you have committed an offence. If you refuse to attend on a voluntary basis they may decide to arrest you in order to carry out the interview. In this event you will be entitled to free representation by either the local Duty Solicitor or a solicitor of your choice. Similarly you are  entitled to a solicitor to be present with you during questioning. Choose your solicitor now as the police will not provide you with a list of experienced solicitors! Do your research now and keep the details of an experienced road traffic lawyer in your mobile phone. Ask friends and relatives who they would recommend or just get on the internet and do the homework required. Google Ads are just that-Ads go to the actual websites and see if the lawyers seem to know what they are talking about then arrange to meet with them if you have a case outstanding.

Advice

It should be remembered that if you have been involved in an accident or if the quality of your driving is under scrutiny, whatever you say at the scene is often crucial. It will be helpful to your defence to make a detailed note of what you said to the police or anyone else at the scene as soon as possible after the incident whilst events are still fresh in your mind. In addition to this photographs of the location or any damage, details of lighting and weather conditions and the contact details of any witnesses are always useful in the event the case proceeds to trial.

Finally, it should be noted that if the evidence against you is overwhelming it may be advisable to plead guilty in order to maximise your credit and minimise the penalty. It is often worthwhile to seek advice on whether you should plead guilty or not guilty. Whatever you do it is ALWAYS advisable to obtain free legal advice from a reputable solicitor, particularly one who specialises in road traffic law on a daily basis.

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LEARN MORE ABOUT CARELESS DRIVING IN SCOTLAND

The legislation covering Careless Driving in Scotland is found in two different sections of the Road Traffic Act 1988.

The first is section 3, which creates the offence. It provides: If a person drives a mechanically propelled vehicle on a road or other public place without due care and attention, or without reasonable consideration for other persons using the road or place, he is guilty of an offenceIt is clear from this, therefore, that there are actually two kinds of Careless Driving in Scotland. The first is driving without due care and attention.The second is driving without reasonable consideration for other road users (which includes pedestrians). In practice, the Crown very rarely limits itself to prosecuting only one of these types of careless driving. Almost 100% of complaints will charge the accused with "driving without due care and attention or reasonable consideration for other persons using the road". This is perfectly competent. Given that there is a separate legal burden for inconsiderate driving, it is also sensible. 

The second section which is relevant is section 3ZA. This section defines the meaning of Careless Driving in Scotland. It states:

  1. A person is to be regarded as driving without due care and attention if (and only if) the way he drives falls below what would be expected of a competent and careful driver.
  2. In determining what would be expected of a careful and competent driver in a particular case, regard shall be had not only to the circumstances of which he could be expected to be aware but also to any circumstances shown to have been within the knowledge of the accused.
  3. A person is to be regarded as driving without reasonable consideration for other persons only if those persons are inconvenienced by his driving.

Overall then the criteria for Careless Driving in Scotland is very broad. Something as minor as splashing a pedestrian in the rain can fall within its ambit. At the same time, however, not every driver error should be elevated to a criminal standard. We hear from potential clients being given fixed penalties for the most minor incidents from time to time and we do not always consider them to be merited. Each case ultimately turns on its own facts and circumstances.

One thing that is worth noting is that "inconsiderate" driving requires actual inconvenience to be caused to another road user. Driving without due care and attention does not have the same requirement. A second thing worth recognising is that there is a subjective element to the charge as "regard shall be had not only to the circumstances of which he could be expected to be aware but also to any circumstances shown to be within the knowledge of the accused". A good example of this could be a driver caught out by a sharp bend which did not have signage to warn of its severity. If the driver is shown to have local knowledge of the road then the lack of signage will be of only very limited assistance to his defence. On the other hand, if it is the first time he has driven that road then the lack of signage may afford a defence to his error.

A person cannot be convicted of careless driving in Scotland unless, subject to certain exceptions, they have received a timeous warning that such a prosecution may occur. This is made clear in section 1 of the Road Traffic (Offenders) Act 1988 which provides:

1. Requirement of warning etc. of prosecutions for certain offences.

(1) Subject to section 2 of this Act, a person shall not be convicted of an offence to which this section applies unless—
(a) he was warned at the time the offence was committed that the question of prosecuting him for some one or other of the offences to which this section applies would be taken into consideration, or
(b) within fourteen days of the commission of the offence a summons (or, in Scotland, a complaint) for the offence was served on him, or
(c) within fourteen days of the commission of the offence a notice of the intended prosecution specifying the nature of the alleged offence and the time and place where it is alleged to have been committed, was—
(i) in the case of an offence under section 28 or 29 of the Road Traffic Act 1988 (cycling offences), served on him,
(ii) in the case of any other offence, served on him or on the person, if any, registered as the keeper of the vehicle at the time of the commission of the offence.
1A) A notice required by this section to be served on any person may be served on that person—
(a) by delivering it to him;
(b) by addressing it to him and leaving it at his last known address; or
(c) by sending it by registered post, recorded delivery service or first class post addressed to him at his last known address.
(2) A notice shall be deemed for the purposes of subsection (1)(c) above to have been served on a person if it was sent by registered post or recorded delivery service addressed to him at his last known address, notwithstanding that the notice was returned as undelivered or was for any other reason not received by him.
(3)The requirement of subsection (1) above shall in every case be deemed to have been complied with unless and until the contrary is proved.
(4) Schedule 1 to this Act shows the offences to which this section applies.

Therefore a driver MUST receive either a verbal warning at the time of the alleged offence or receive a written notice of intended prosecution within 14 days. The warning at the time does not require a specific form of wording so long as the meaning is clear. It is settled, therefore, that being charged with careless driving at the time of the incident will also fulfil the purpose of a “section 1 warning”. In practice the police will usually do both – provide a verbal warning of intent to prosecute and caution and charge the driver. What will not suffice, however, is a verbal warning and/or charge delivered, for example, the next day. Such a subsequent warning must be delivered (a) within 14 days and (b) must be in writing. So, for example, someone is seen by civilians contravening a solid white line or witnessed undertaking or tailgating, all classic examples of careless driving in Scotland. The civilians report the matter to the police who visit the accused 10 days later. In those circumstances a verbal warning will not suffice. Unless a written notice of intended prosecution is provided, the accused will have a legal defence to the charge. Moreover you can only be successfully prosecuted if you are warned for the correct offence or at least a more serious alternative offence. Therefore if you are warned for speeding you cannot be successfully prosecuted for careless driving in Scotland. On the other hand, if you are warned for dangerous driving, this will suffice. This is because dangerous driving and careless driving are statutory alternatives by virtue of section 24 of the Road Traffic (Offenders) Act 1988. However a warning for careless driving will not suffice in respect of dangerous driving as the latter is a more serious charge than the former.

It should be noted in terms of section 2 of the Road Traffic (Offenders) Act 1988 that there are exceptions to this rule. The main exception is if there is an accident. In those circumstances there is no need for a warning. “Accident” is not defined in the legislation but High Court rulings have made clear there dies not necessarily need to be a collision or damage. However it is clear that of real significance must occur and, often, near misses may constitute accidents. It should also be noted that the burden of proof lies with the accused. It is for the accused to prove that he did not receive a warning (or the correct warning). In our experience, the police tend to be honest about such errors and the necessary evidence can be obtained in cross-examination.

The law surrounding careless driving in Scotland and notices of intended prosecution is, therefore, a complex area of the law for which specialist legal advice should be sought.

Careless driving in Scotland carries various penalties contained in Schedule 2 of the Road Traffic (Offenders) Act 1988. The range of penalties is 3-9 penalty points or a period of disqualification. There is no limit to the potential period of disqualification. We recall witnessing a case while waiting for our own case to start where a driver was disqualified for 12 months and ordered to resit an extended test before being allowed to drive again (i.e. a penalty skin to dangerous driving There will also be a financial penalty. The maximum penalty for speeding in Scotland is £5000. In practice, many fines are in the hundreds of pounds but four figure sums are not unheard of, especially if the case began life as dangerous driving.

So when can a driver expect penalty points and when can he expect disqualification?


Careless driving in Scotland – penalty points

If you’re stopped by the police for an allegation of careless driving in Scotland, they can either:

  • Offer you a fixed penalty for 3 points and a fine of £100
  • Send the case straight to the Procurator Fiscal and you will receive a citation setting out the charge, a Summary of evidence and a date to respond with details of how you plead to the charge.

If you are offered and choose to accept a ticket then that is the end of the matter and no conviction is recorded against you. However the maximum amount of points for Careless driving in Scotland is 9. So, once a case goes to court, the range of points open to the court is 3-9. Mitigating circumstances such as an emergency or a previously clean driving record could earn you a lesser sentence. The main factor that the court will take into account is the quality of the driving itself. The court is not supposed to take into account the consequences of the driving such as damage or injury caused. That particular issue has been muddied by the creation of the offence of causing death by careless driving. Our view remains, however, that it is the quality of the driving that is relevant.

It may be that you accept that you drove carelessly but do not accept every element of the charge against you. In such circumstances it is more important than ever to instruct capable lawyer. We often find ourselves representing clients in such a position. The Crown can sometimes be persuaded to drop that aspect or those aspects of the charge This can make the difference between points and disqualification.



Careless Driving in Scotland – disqualification


Disqualification can generally occur in one of two ways:

  • The circumstances are such that the court decides that only a period of disqualification is appropriate. This is most common in cases where the original charge was dangerous driving but was reduced to careless driving either as a result of plea negotiations or the sheriff deciding that, while the test for dangerous driving was not met, a conviction for careless driving was appropriate. The vast majority of careless driving cases that we handle do not result in disqualification.
  • The court imposes penalty points but the points imposed mean that the driver has accumulated 12 points within a three-year period. This triggers the possibility of a minimum disqualification of 6 months under section 35 of the Road Traffic (Offenders) Act 1988. This is commonly described as “totting up”. The relevant dates are the dates of the offences themselves, not the dates that the points are actually placed on the licence. 

Careless Driving in Scotland – discount

Since the case of Gemmell and Others, it is clear that Careless Driving in Scotland can attract a discount. At times the Sheriff Appeal Court has leant away from Gemmell but the issue was put beyond any doubt by subsequent rulings in the High Court.The level is determined by the timing of the plea. As a general rule, the earlier you plead Guilty, the bigger the discount potentially available. A plea of Guilty as soon as possible could see, for example, 6 penalty points reduced to 5 or even 4. In some circumstances, the court can “discount” from disqualification down to penalty points. However no discount can reduce the penalty to below 3 penalty points as this is the minimum set by Parliament. If, on the other hand, you plead Guilty on the day of your trial, you may not receive any discount at all. The timing of the plea can be of critical importance. For example, if a driver already has points, the discount given can be crucial in avoiding a 6-month disqualification under “totting-up”.

In a similar way on points, a period of disqualification is also subject to discount. If, for example, the court was minded to impose a 4-month disqualification for a high speed, this could be reduced to 3 months for an early plea. In some cases it may be possible to persuade the court to discount a period of disqualification down to penalty points.


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