The Law & What It ‘Means’
Leaving the scene of an accident (in which injury or damage was caused) without stopping or providing your details is an offence under section 170 of the Road Traffic Act 1988.
In general terms, simply leaving the scene of an accident is not an option.
For example, if you bang into a stationary car while reversing, you have a duty under the law to stop. If you simply drive off, and the impact has caused damage to the other car, you have committed an offence. The law here is quite strict.”Stop” seems to mean “stop and wait”.
For example, what if you get out, see damage but there is no-one around to provide details to? It seems to be that this is context-sensitive.
Report to the Police:
If it is an apparently abandoned car in the middle of nowhere and it is the dead of night, the law does not require you to hang around indefinitely. Instead, as soon as reasonably practicable, you are required to report the accident to the police even although – on one view – you are potentially incriminating yourself in respect of careless driving. On the other hand, if the accident occurs at a busy shopping centre, you cannot simply leave. the law here is a little bit fuzzy. You are not under an active duty to seek out the other driver before leaving the scene of an accident. On the other hand, you can’t simply leave either as you have a duty to provide your details to a person reasonably requiring them.
Leaving a note on the other car with your details and then leaving the scene of an accident, we would argue, means you have fulfilled your duty but what the law seems to say is that you need to wait at the scene for the other driver to show up. It is not clear how long you are expected to wait and each case will ultimately turn on its own particular facts and circumstances.
But what if your reason for leaving the scene of an accident is that you were not aware that damage has been caused? Or what if you did not realise you had been in an accident in the first place?
I was aware I had been in a collision but did not realise it had caused damage
This will probably be determined by the scale and nature of the damage. It will be for the Crown to prove by corroborated evidence that there has been an accident and that accident caused damage. In certain circumstances the Crown may also require to prove that the damage was “obvious”. If the damage is so minor that it is easily missed, or if you were otherwise genuinely unaware for another good reason, we would argue that you should be acquitted although there may be something called a “tactical burden” upon you in these circumstances. Basically this means you may need to give evidence that you were genuinely unaware of the damage and state why.
If you were aware that you had been in an accident, being genuinely unaware of damage because you simply did not check would not, in our opinion, amount to a defence to leaving the scene of an accident. However if you stopped, checked and simply did not see damage due to its minor nature then you should be acquitted. In marginal cases, the “tactical burden” on you to lead evidence may arise but every case will be different.
My reason for leaving the scene of an accident was that I did not realise there was an accident
This scenario is covered by the leading case of Sutherland v Aitchison and several English cases. In Sutherland, a driver on a single track road mounted the verge in order to pass a vehicle driving in the other direction. The driver heard a noise which he surmised was his exhaust striking a stone. There had, in fact, been an impact between the two vehicles. In those circumstances, the driver clearly did not realise there had been an accident. It was decided, however, that having heard a noise, the driver should have stopped and satisfied himself as to what had happened. The author of the text Wheatley’s Road Traffic Law in Scotland (who is a senior prosecutor with whom we do not always agree) therefore concludes:
“If the circumstances of an incident of driving are such that a driver had, or should have had, reasonable cause to suppose he might have been in an accident, then he has a duty in terms of this section to stop and satisfy himself about what had happened…… accordingly a driver would appear to have a duty to satisfy himself that he has not been in an accident, if the circumstances suggest he might have been”
Law In England
The law in England appears broadly similar. Driver knowledge (or constructive knowledge) is key. In Harding v Price it was decided that the stature places a positive duty upon the driver to stop but that burden cannot be discharged unless the driver has knowledge of the accident. In other words, leaving the scene of an accident is only an offence if you know you have been in an accident. Knowledge, however, includes constructive knowledge. One cannot simply close one’s eyes to the obvious to escape their duties. Knowledge therefore includes situations where the driver knows deep down there has been an accident but kids himself otherwise. This can be inferred from the circumstances.
Thus, in England, (1) if the prosecution can show actual knowledge of an accident or that the the driver ought reasonably to have known there was an accident (eg a sudden jolt or a loud bang) and (2) prove damage or injury then (3) the burden of proof is on the defence to produce some evidence of the defendant’s unawareness of them. This burden is on the balance of probabilities. This reverse burden of proof was addressed in the case of Selbie v Chief Constable of Avon and Somerset. Although the statute did not contain a statutory defence of “lack of knowledge” (thus justifying the reverse burden), it was held that the absence of any reference to the defendant’s knowledge in the statute had the effect of shifting the burden of proof once damage or injury was proved.
Is the law different in England and Scotland?
The law seems to have the same basic principles. Actual or constructive (i.e. the driver should have known) knowledge is required. It is for the prosecution to prove one of these. If the prosecution manages to do this, there will be a burden upon the defence to displace the inference of knowledge. The question is what kind of burden is placed upon the defence in Scotland. Is it simply a “tactical” burden to lead some evidence casting reasonable doubt on the prosecution’s case? Or is it, as in England, a reverse burden of proof where the defendant needs to prove his lack of knowledge rather than simply casting doubt on the prosecution’s case?
Our opinion is, in the absence of an actual statutory defence which places a burden of proof upon a defendant, there is no reverse burden of proof and the defendant should only require to cast reasonable doubt upon the prosecution case. We are fortified in that opinion by the leading English text (Wilkinson’s Road Traffic Offences) which states:
“Where such a burden is placed upon the defendant, the proof is on the balance of probabilities”.
In itself that seems clear enough. But the text then continues:
“If, after hearing all the evidence, the court is in doubt whether or not the defendant knew that he was involved, he should be acquitted”.
What is described in the latter sentence by the authors of the English text would equate in Scotland to a “tactical burden” where the defence does not have to prove anything but only requires to cast doubt upon the prosecution case.
Get In Touch
Ultimately, if you are charged with leaving the scene of an accident, your knowledge of that accident is key. Although that may sound straightforward, what constitutes “knowledge” actually raises complex factual and legal questions. These complex questions are our speciality. So, if you have been charged with a section 170 offence, get in touch and we will be happy to discuss your case free of charge.