Driverless cars and the criminal law


The Government have indicated that they expect driverless cars to be available for use on UK roads by 2021. We already have passed into law, albeit not yet in force, the Automated and Electric Vehicles Act 2018 which received Royal Assent on the 19 July 2018. Section 2 of the Act places the liability for accidents caused by automated vehicles fairly and squarely on the shoulders of the insurer of the vehicle in question. Section 3 of the Act deals with the contributory negligence that may arise where the driver of the automated vehicle allows the vehicle “to begin driving itself when it was not appropriate to do so”. To this extent there is some qualification to what might otherwise be seen as the strict liability of the insurer to compensate for losses arising from the use of automated vehicles on our roads.

So much for the question of civil liability but where does that leave us on the question of criminal liability for the large number of road traffic offences we are currently subject to as either drivers, users or owners of motor vehicles?

The Law Commission Report on Automated Vehicles

The Law Commission has been asked to provide a report on the wider legal implications of the introduction of automated vehicles .They have indicated that they will complete their findings by March 2021 and have recently issued a consultation paper inviting representations from interested parties by the 8th of February 2019. Chapter 7 of the consultation document addresses the issue of criminal liability.

Broadly the Law Commission identify four key areas where there will be a need to adapt our criminal law to meet the circumstances presented by the use of automated vehicles. These are as follows:

The first of the above involves some wrangling with some of the current road Vehicles (Construction and Use) Regulations 1986 which would as presently drawn prohibit the remote operation of a vehicle or the driving or causing to drive of a vehicle where that person was in a position “that he cannot have proper control of the vehicle or have a full view of the road and traffic ahead” (Regulation 104).

The second group of offences would include offences such as speeding, dangerous or careless driving. Clearly when the vehicle is in fully automated mode the suggestion will be that the driver cannot be held liable for the offence. More complicated situations might arise when the vehicle is capable of operating in both the fully automated as well as the driver controlled mode. There may be real issues in determining which system applied at the specific moment that an offence was committed with a likely heavy reliance on the vehicle’s technology being interrogated to establish liability. It seems likely that where the vehicle is being used in fully automated mode the driver will be absolved from criminal liability. It is perceived that to do otherwise would be likely to deter the public from taking up the use of these automated vehicles.

A more thorny issue arises where a person is travelling in an automated vehicle set on automated mode but they encounter a particular hazard on the road. Should such a person have criminal responsibility for failing to intervene and prevent an accident? What if the automated vehicle makes a mistake? Should the “driver” take action?

It would seem likely that even in vehicles operating in a fully automated state there may still need to be a “user in charge” who is “qualified and fit to take over the driving task”. One can only imagine the confusion that might arise here where the “user in charge” has to make a judgement as to when the vehicle is malfunctioning and when it may be appropriate to take over control. Any thought that use of an automated vehicle will allow them to be “driven” with impunity by the occupants who may consider they can never attract criminal liability will clearly not be correct if this provision applies. It seems that the “user in charge” will still need to be qualified to drive and not suffering from any impediment to driving such as intoxication by drink or drugs or defective eyesight.

The Law Commission examine the circumstances that may arise if a vehicle in automated mode exceeds the speed limit and questions where criminal liability might lie if for example the Highway Authority have failed to communicate a temporary speed limit or where there is a software defect in the vehicle itself. They suggest that there will be a system of regulation of the vehicle manufacturers with sanctions where there are found to be failures to upgrade software or where they have suppressed test results. Criminal liability under the Corporate Manslaughter and Corporate Homicide Act 2007 might apply to reckless or negligent manufacturers where as a result of a shortcoming on their part death results.

Beyond the actual offences relating to the driving the Law Commission also look at those offences that arise from being the “user” of the vehicle. Who now becomes liable for the reporting of accidents to the police or ensuring that a vehicle is properly maintained and roadworthy, Will the “user in charge” be liable if they fail to install the manufacturer’s regular software updates?

Beyond the consideration given to the new framework for “drivers” “users in charge” and manufacturers the Commission also looks at wider offences that might be committed by unlawful interference with automated vehicle computer systems. These range from simple tampering with the vehicle sensors to more sinister considerations of cybercrime by the wholesale attack on the systems of multiple vehicles by computer hacking.

So there is much to think about in what is a relatively short period of time. If anyone thought that the use of autonomous vehicles would simplify our road traffic legislation they should perhaps think again.

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