Supervising a Learner – could you be liable?

By November 24, 2016 February 10th, 2017 Uncategorized

In this article I’m discussing Criminal Offences not Civil law so I’m not going into Tort/Negligence claims.

(I’m also not going to cover the obvious, you need to be over 21 and have held a license for 3 years, the drink drive limit, the eyesight requirements, and the restrictions on mobile phone use all apply to you)

Contrary to the belief of some, the supervising driver or ADI is not immune from offences committed by a learner driver.

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There are several cases about this but the main point is :- A person supervising a learner driver is required, not to provide tuition for the learner, but to ‘supervise’. That means doing whatever is expected to prevent the learner driver from acting carelessly or endangering others.

The most common stated case for this is:

Rubie V Faulkner (1940) , where the supervisor was convicted of aiding and abetting a driver in the commission of driving without due care and attention.

In this case the driver pulled out to overtake a horse and cart on a bend and hit a lorry coming in the opposite direction.

The supervisor could fully see the road ahead and failed to take control in an attempt to stop the collision occurring.

The court held that he could have said “do not overtake in this area” or, “keep in” when the learner driver attempted to overtake.

Note they didn’t state that he could have grabbed the steering wheel. The courts seem unwilling to rule on the position of the supervising driver in the vehicle or his/her ability to physically take control, probably because it’s only in cars that’s possible, and it would perhaps place a greater obligation on a supervising driver in a vehicle fitted with dual controls vs one without.

In Lovelace v Fossum (1972), a driving instructor in, slippery weather conditions gave the instruction to slow down before a bend – this was followed. The instructor repeated the instruction to slow down when they were about 90 feet from the bend but the driver didn’t hear and lost control of the vehicle which skidded off the road.

The court found them both equally to blame as the ADI failed to manage the situation safely and the learner driver failed to use the best skill he possessed to obey the instructor. However this was a liability case and not a criminal case.

R v Lyons (1982) A learner driver having his last lesson before his test,was told to make an emergency stop.

He did so without looking behind,was struck by a by a motor cycle from the rear and was convicted of driving without due care and attention

He appealed and the appeal was rejected – the court stated that the degree of care expected of Lyons was that which a reasonable & prudent driver would exercise in the same circumstances. Regardless of directions from his instructor he should have made certain that it was safe to execute the manoeuvre.

Now first of all each case is tested on its merits. It’s only possible to give general guidance on what the law says and refer to cases that have already been decided in higher courts and so are ‘binding’ on lower courts like the Magistrates.

(It’s entirely possible that with enough time and money, and a good enough argument on your own circumstances you could appeal a case all the way to the Supreme Court and they might decide in your favour and overturn the earlier rulings*)

For example, a supervisor can be convicted of aiding and abetting where the learner driver was over the prescribed limit or unfit through drink or drugs.  (The case was Crampton V Fish 1969)

Another well known case is Bentley v Mullen (1986). In this  case, after an accident, the ADI and the pupil walked away. They returned later hoping the mess would have been cleared away and that they could continue. The ADI was convicted of aiding and abetting, the court held that the duty to supervise the learner extended to supervising them meeting legislative requirements, and didn’t end just because they’d stopped driving.

Aid and Abet, Counsel and Procure

Anyone could be criminally liable as an accessory for any offence (not just road traffic), under this provision. (S.44 Magistrates Court Act 1980)

44 Aiders and abettors.

(1)A person who aids, abets, counsels or procures the commission by another person of a summary offence shall be guilty of the like offence and may be tried (whether or not he is charged as a principal) either by a court having jurisdiction to try that other person or by a court having by virtue of his own offence jurisdiction to try him.

(2)Any offence consisting in aiding, abetting, counselling or procuring the commission of an offence triable either way (other than an offence listed in Schedule 1 to this Act) shall by virtue of this subsection be triable either way.

(In Crown Courts its in the Accessories and Abettors Act 1861, but for traffic matters we’ll stick with the Magistrates for now)

So what does that mean?

Aid – Giving help, support or assistance, abet – inciting, instigating or encouraging, counsel -advising or instructing, procuring – bringing about

Note it’s not broken down, it’s charged as ‘aid, abet, counsel, or procure’

So any supervising driver (or even passenger for that matter) could be charged with  aiding and abetting offences.

The main ones are even covered by the  NIP (notice of intended prosecution) offences: From the CPS Guidelines

Section 1 RTOA 1988 provides that a defendant cannot be convicted of certain road traffic offences unless he or she has been warned that the question of prosecution would be taken into consideration. Such a warning is normally known as ‘notice of intended prosecution’, or NIP.

The offences to which section 1 RTOA applies are listed in schedule 1 of that Act. They are, under the RTA:

Section 2 (dangerous driving)
Section 3 (careless driving/driving without reasonable consideration)
Section 22 (leaving the vehicle in a dangerous position)
Section 28 (dangerous cycling)
Section 29 (careless cycling)
Sections 35 and 36 (disobeying certain traffic signs and police signals)
And under the Road Traffic Regulation Act:

Sections 16, 17(4), 88(7) and 89(1) (speeding offences)
or aiding and abetting any of the above.

Yes, you’ll notice speeding offences are in that list – There’s even a license endorsement codes for it – SP34 (or SP54 on a motorway)

It was taught in Police training when I joined back in the 90’s, that you reported the accompanying driver for aid/abet speeding if you stopped a learner.

However it must also be borne in mind that back then the enforcement guidelines were a lot different, and we usually didn’t even even bother with speeding in most cases unless it was about 10mph above the posted limit, so if you stopped a learner they’d likely already be going well over the limit and the aid/abet would may have been easier to prove.

Why is it less common now? I think it’s mainly because speeding is enforced by cameras, so a fixed penalty or speed awareness course gets offered remotely without any further investigation into the events.

When I started there were no cameras in the entire force. Speeding was enforced by officers with radar guns who stopped you there an then to deal with offence, or by ‘following check’s and VASCAR.  Officers would stop and conduct enquiries there an then and report the supervisor if deemed necessary.

Use, Cause, Permit

 These terms are generally related to Construction and Use Offences, with a couple of points –

One – If you allow someone to drive your vehicle knowing that they do not have insurance, then if stopped you can be charged with that offence and receive a minimum of six points on conviction.

This is relevant to both ADI’s and supervising drivers with regards to ‘off road use’.

In 2000 the Road Traffic Act was amended to require insurance in a ‘Public Place’. (It was also amended to require accidents in a public place be reported, as there’d be no point if you didn’t have to report the accident and could just drive off)

20 years ago, you might have seen parents taking their children down to a local car park on a Sunday to practice, you might even see it now, but there’s no grey area. It’s illegal and the supervising drivers are risking point’s on their own license.

You might be thinking well doesn’t this apply to all these under 17 off road courses?

No because they aren’t in a public place. (The definitions and law, on what is and isn’t a public place are massive, but take my word for it)

ADI’s can actually have off-road insurance (other people might be able to as well, I’ve never checked), in fact my policy automatically covers anyone from the age of 14 off road.

Also note – The driver doesn’t need a license off road –

The offence of driving otherwise than in accordance with a license is contained within S87 of the Road Traffic Act 1988

Drivers of motor vehicles to have driving licences.

(1)It is an offence for a person to drive on a road a motor vehicle of any class otherwise than in accordance with a licence authorising him to drive a motor vehicle of that class.

(2)It is an offence for a person to cause or permit another person to drive on a road a motor vehicle of any class otherwise than in accordance with a licence authorising that other person to drive a motor vehicle of that class.

Note it says ‘on a road’ nor ‘road or other public place’ but they can still be convicted under the Road Traffic Act for all the usual offences:-
Causing death by dangerous driving, Dangerous driving, Causing death by careless, or inconsiderate, driving, Careless, and inconsiderate, driving, driving without reasonable consideration etc as each section has the usual vehicle on a road or other public place” so again the supervising driver could be prosecuted

The Court of Appeal recently set the criteria for convicting a supervising driver for Aid and Abet Causing Death by Dangerous Driving  (R v Paul David Martin 2010) as:-

  1. The supervising driver knew that the learner driver was driving in a manner than he knew fell far below the standard of required of a competent and careful driver
  2. The supervising driver know that he had the opportunity to stop the learner driver from driving in that manner deliberately did not take that opportunity
  3. and by not taking that opportunity intended to assist or encourage the driving
  4. by his presence and failure to intervene encouraged the learner driver to drive dangerously.

In the case of Planton V Director of Public Prosecutions (2001). A Person found sitting in the driving seat of a car with the engine running was found to be ‘driving’ – So should you leave a Provisional License holder in the car with the engine running you could also be committing an offence under S87 (2) above.

Also note, if you fail to check the learner has a valid license, and hasn’t been disqualified etc through the online portal, then again you can be found liable for the cause or permit offence if stopped by the police.

(If a passenger genuinely believes that the driver is entitled to drive the vehicle in which they are both found, that belief will prevent the passenger being charged with ‘aiding and abetting’ the offence (Bateman v Evans(1964). In the case of someone supervising a ‘learner driver’ who turns out to be disqualified, it seems reasonable to expect a supervisor to establish that the driver under his/her supervision has a current and valid licence before venturing out onto the road.)

Standard of Driving

Surely the law cut’s learners some slack – After all they’re only learning.

You’d think so but actually not – The case is McCrone V Riding (1938). The learner had been acquitted of careless driving after the magistrates held that he was ‘exercising all the skill and attention to be expected from a person with his short experience’ . It was appealed to Crown Court and the judgement still stands today and forms the basic of all Road Traffic law.  The basic standard expected of a new driver was the same as that expected of any driver with the same duty as provided in the Act.   ‘There is only one acceptable minimum standard of driving and all drivers including learners must observe it. If not they commit the offence of careless driving’

What happens if a learner has 6 points (or more) on a provisional license?

Nothing – But when they pass their test, if they get any points at all within the 2 years, the New Drivers Act kicks in and they have to retake the tests.

What happens if a learner gets 12 points on a provisional license?

They get a short period disqualification under the ‘totting up rules’ the same a full license holder would.

What if an L plate falls off?

You need to stop – They are driving otherwise than in accordance with a license, This used to be a common amongst moped riders for some reason who loved to take the front L Plate off. (and as above you could also be charged with permitting the offence) I’ve also seen some on mopeds with just a red L with a very small white boarder around it. Again this is the same offence, the L Plate has to comply with the regulations, if it doesn’t then it’s still classed as if you aren’t displaying one.

*This happened in the Milton case, as mentioned in this article there is ‘only one standard of careful and competent driving that applies to all drivers”, Milton was as a Grade One Police driver charged with Dangerous Driving. He was acquitted at Magistrates Court, the Crown appealed, and he was convicted, he then appealed to the high court and was acquitted ” The High Court found “The question that was posed was:  Is someone’s superior driving skills a circumstance within their knowledge which should be taken into account?  The position of the Law previously was a definite ‘No’.  All the Court would look at is what the normal careful and prudent driver would think of the standard of driving.
The Court decided in this case that the fact that PC Milton was a Grade 1 advanced police driver was a circumstance that could be taken into account.  Effectively, the Court is saying is that some driving manoeuvres/conduct may be considered dangerous for a driver of ‘normal’ skill, but that it may not be the case for a driver of extreme ‘special skill’.  The Court did make a point of stating that this decision is not limited to police officers”
Another Police Officer a few years later was charged with the offence (R v Bannister), and the Milton case formed part of the case. He was convicted and appealed the verdict. The Court of Appeal ruled that taking into account the driving skills of a particular driver was inconsistent with the objective test of the competent and careful driver set out in the Act, overruling the Milton case and bringing the law back to how it had always been. Presumably because otherwise every driving offence would start being argued on the basis of the skill of the driver and not the common standard.

 

 

 

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