COVID-19: Impact on Drivers, Companies & the Criminal Law

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COVID-19: Impact on Drivers, Companies & the Criminal Law

Published 1 April 2020

With all public services under increasing pressure due to coronavirus (COVID-19), we consider the increased risks to the individual drivers, issues that companies are facing during this challenging period and the impact that this crisis might have on the investigation and prosecution of road traffic collisions.

Police Investigations

Over the coming months, police resources are likely to be stretched to their limit as, inevitably, the number of officers self-isolating and therefore unable to work will increase. According to recent news reports, certain offences will be ignored if a critical tipping point in relation to the police’s ability to deliver services is reached and officers will be redeployed to ‘critical activities’ such as 999 calls and what is deemed to be serious crime. Priority will not be given to ongoing pre-charge cases or to traffic collision prevention. We should therefore expect a delay with ongoing matters meaning that vehicles will be held for longer and uncertainty in relation to a driver’s future will be extended.

Prosecutions for minor collisions are likely to fall, given that the police are unlikely to have the resources to attend the scene of the collision.

In terms of serious road traffic collisions, the message from the police is that it is very much business as usual. However, in practice, we are finding that unless the police interviews are urgent (such as where a driver is arrested immediately following a serious or fatal collision), they are being delayed. The six month time limit for prosecuting summary offences such as driving without due care and attention does not apply to more serious and fatal road traffic collisions and so the police are likely to postpone the interview in such cases in the knowledge that no time limitations apply.

It seems inevitable that the timescales for police investigations will be extended. In a system in which it can already take 12-18 months for a charging decision, the reality is that this is likely to increase. Inevitably it also means that the key investigations in high value civil claims will also be delayed.

Hearings and Trials

Many criminal courts are already operating at capacity and, in reality, cases are likely to take even longer to reach trial. Road traffic cases often take 2 years to reach trial and the expectation is that this will increase dramatically during this period.

The Lord Chief Justice has set out the latest position in relation to Crown Courts, with over one half of the Court Estate closing to the public with effect from the morning of 30 March 2020.

“My unequivocal position is that no jury trials or other physical hearings can take place unless it is safe for them to do so. A particular concern is to ensure social distancing in court and in the court building. This morning no new trials are to start. Jurors summoned for this week are being contacted to ask them to remain at home, and contact the court they are due to attend. They will only be asked to come in for trials where specific arrangements to ensure safety have been put in place. In some cases, this may mean that jurors may be called in to start a new trial later on Monday. All hearings in the Crown Court that can lawfully take place remotely should do so and other hearings not involving a jury should continue if suitable arrangements can be made to ensure distancing.”

Insofar as part-heard jury trials are concerned, the announcements added that efforts to bring these to a conclusion should continue, ensuring that social distancing and other safety measures are in place.

Magistrates’ Courts have adopted a similar position in that most are dealing with urgent custody cases only and if possible, their position is that “all hearings that can lawfully take place remotely should do so if the facilities exist.” As every criminal case starts in the Magistrates’ Court, and given the lack of such properly functioning digital facilities across many of these courts, this is likely to contribute to further issues with progressing cases.

All non-urgent hearings, including sentences, are being adjourned to a later date, exacerbating an already congested system.

Whilst technology may enable a number of hearings to be held remotely, in non-custody cases many people will not have access to the technology required and therefore limited progress will be made in many cases currently in the system.

The longer this period of ‘lockdown’ lasts, the bigger the backlog for the criminal courts and the greater the disruption to a system already under huge strain.

Scottish Perspective

Similarly in Scotland, much of the Court business has come to a halt with cases being administratively adjourned or continued until further notice, alternatively dates being refixed in August and beyond.

All criminal business normally taking place in the 49 Sheriff Courts have now been consolidated into 10 Sheriffdom ‘hub’ courts which will only deal with defined essential business or other emergency business. The High Court continues to deal with preliminary hearings and adjourn trials.

Indeed there have been no new jury trials commenced or new juries empanelled since mid March until further notice. Jury trials already underway were to continue to conclusion where practical. Since that time, stricter social distancing rules have been put in place and, in response, the number of criminal trials running have been significantly reduced.

The above changes are essentially reinforced by the Coronavirus (Scotland) Act 2020 which came into force on 7 April 2020 and enables the courts to make further changes.

The temporary measures introduced by the new Act which have an impact on criminal business include:

  • Increased use of electronic signatures and transmission of documents where hard copies would normally need to be delivered to someone or lodged into court
  • Suspension of the requirement to physically appear in court by allowing attendance by electronic means. In the criminal context, this will not apply to trial diets unless the court directs and this would only be the case where it considers that appearance by electronic means would prejudice the fairness of proceedings or otherwise be contrary to the interests of justice
  • Provision of an additional exception to the rule that hearsay evidence is inadmissible in criminal proceedings
  • Increase of the maximum level of fiscal fines from £300 to £500 to expand the alternatives to prosecution
  • Extension of certain statutory time limits for solemn and summary cases to be brought to trial

The extent to which these legislative changes will, in practice, enable criminal court business to continue remains to be seen in the coming weeks and months. From the perspective of defence agents, the extension of the time limits referred to above may simply serve to add to the backlog of cases in Court and, like the situation in England, the timescale for cases to reach trial will be even longer.

What will the police attitude be to such collisions in light of the relaxation of the regulations?

Clearly, this is an issue for companies and individual drivers alike to consider.

Another significant change is a relaxation of rules for drivers under the European Union drivers’ hours rules or the GB drivers’ hours rules, in relation to the carriage of goods in all sectors, effective from 23 March until 21 April 2020. This applies to the transport of all essential goods such as food, medical equipment and medication.

The longer this period of ‘lockdown’ lasts, the bigger the backlog for the criminal courts and the greater the disruption to a system already under huge strain.

Clearly, the relaxation of a key rule which helps to protect both the driver and other road users may cause significant issues. Perhaps one of the most significant statements from the HSE is:

“We are clear that driver safety must not be compromised, and they should not be expected to drive whilst tired. Employers remain responsible for the health and safety of their employees, other road users, and anyone involved in loading and unloading vehicles"

Whilst the guidance indicates that this decision is an exceptional contingency measure and must only be used where necessary, this does leave both the driver and employer open to risk.

It’s not hard to predict that we may see an increase in fatigue related collisions. The new guidance puts the onus essentially on the driver to decide where a departure from the rules is ‘necessary’ and to decide themselves when they feel ‘tired’ enough to take a break. If a collision were to occur, it’s true to say the driver would still be investigated, but the investigation would clearly also be directed towards the company.

Finally, with delivery drivers being recruited at breakneck speed, are proper checks always being carried out on those applying for these jobs to ensure that the driver has the necessary skills and experience?

With the above in mind, companies need to consider their position carefully as to what updated policies should be in place during this exceptional period and the guidance that they should provide to their drivers.

Relaxation of Regulations: Effect on Collision Rates

In my view, the relaxation of regulations in relation to road transport sees the most significant change that have been brought into place during this crisis and has the potential for devastating consequences.

The view of many is:

“There are fewer cars on the road, hence the number and frequency of RTCs will reduce”

It is, perhaps, fair comment. Fewer cars on the road may well lead to fewer collisions, although given that this is a fluid situation in terms of the measures in place, it is difficult to predict just how much of an effect this might have longer term.

However, there are many other risk factors to be considered other than the number of cars on the road. Part of the Government’s response to tackle this crisis is to help supermarkets and other corporations who provide essential delivery services to do this much more quickly – in effect sacrificing the usual training and checks that would normally accompany such recruitment.

Therefore regulations regarding professional driving have already been relaxed to ensure the supply chain continues to operate as efficiently as possible.

The new HSE guidance can be found here:

https://www.hse.gov.uk/news/drivers-transport-delivery-coronavirus.htm

This includes an exemption for MOT for lorries, buses and trailers from 21 March 2020 for 3 months (which may be extended). The situation is more complicated still for car and motorcycle owners. For MOT’s due up to 29 March 2020, they must be carried out IF you are not self-isolating with symptoms or IF you are NOT in the ‘vulnerable group’. For the full guidance, click below.

https://www.gov.uk/guidance/coronavirus-covid-19-mots-for-cars-vans-and-motorcycles-due-from-30-march-2020

For MOTs falling due after 29 March 2020, they are to be extended up to 6 months but ‘you must keep your vehicle safe’.

What are the implications of this? Yes, drivers are responsible for keeping their vehicle roadworthy during this time but can every driver know about every potential issue that an MOT could expose? Are we all being exposed to greater risks by potentially having un-roadworthy vehicles on the roads? This may well lead to an increased number of collisions. The big question is: what will the police attitude be to such collisions in light of the relaxation of the regulations?

Clearly, this is an issue for companies and individual drivers alike to consider.

Another significant change is a relaxation of rules for drivers under the European Union drivers’ hours rules or the GB drivers’ hours rules, in relation to the carriage of goods in all sectors, effective from 23 March until 21 April 2020. This applies to the transport of all essential goods such as food, medical equipment and medication.

The longer this period of ‘lockdown’ lasts, the bigger the backlog for the criminal courts and the greater the disruption to a system already under huge strain.

Clearly, the relaxation of a key rule which helps to protect both the driver and other road users may cause significant issues. Perhaps one of the most significant statements from the HSE is:

“We are clear that driver safety must not be compromised, and they should not be expected to drive whilst tired. Employers remain responsible for the health and safety of their employees, other road users, and anyone involved in loading and unloading vehicles”

Whilst the guidance indicates that this decision is an exceptional contingency measure and must only be used where necessary, this does leave both the driver and employer open to risk.

It’s not hard to predict that we may see an increase in fatigue related collisions. The new guidance puts the onus essentially on the driver to decide where a departure from the rules is ‘necessary’ and to decide themselves when they feel ‘tired’ enough to take a break. If a collision were to occur, it’s true to say the driver would still be investigated, but the investigation would clearly also be directed towards the company.

Finally, with delivery drivers being recruited at breakneck speed, are proper checks always being carried out on those applying for these jobs to ensure that the driver has the necessary skills and experience?

Authors

Charlotte Le Maire

Charlotte Le Maire

Leeds

+44 (0)113 251 4773

Ash Sharma

Ash Sharma

Birmingham

0121 698 5122

Karen Railton

Karen Railton

Glasgow

+44(0)141 223 7842

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