In Scotland, Section 2 of the Road Traffic Act 1988, a.k.a. dangerous driving, states that: “A person who drives a mechanically propelled vehicle dangerously on a road or other public place is guilty of an offence.” The minimum penalty for a contravention of the Road Traffic Act Section 2 is a 12 month disqualification, an order to sit an extended test and a fine of up to £5,000.
Whilst there may be a common perception of what constitutes dangerous driving, there is a strict two stage test applied by the Courts in Scotland.
Firstly the Crown require to prove that the standard of driving falls far below what would be expected of a reasonable and competent driver.
Thereafter it needs to be demonstrated that it would be obvious to such a driver that the manner of driving is dangerous.
It should also be noted that a person is to be regarded as driving dangerously if it would be obvious to a competent and careful driver that driving the vehicle in its current state would be dangerous. Assuming the appropriate notice of intended prosecution has been issued by the Crown or Police Scotland, a simple construction and use charge could therefore result in a Court citation for the altogether more serious contravention of Section 2 of the Road Traffic Act 1988.
This definition may seem to be unnecessarily complicated, however it is essentially for the Sheriff to consider the evidence as a whole and assess whether the offence has been proved by the Crown beyond reasonable doubt. A particularly skilled driver faces the same legal test as the newly qualified driver. The legal test for dangerous driving is therefore an objective one. Most people will have a general grasp of the types of bad or objectionable driving which may be criminalised by these provisions.
At the time of writing, there are three verdicts in Scots Law: guilty, not guilty and not proven.
The effect of the latter two verdicts is identical, namely you would be acquitted of dangerous driving. It is also open to the Court to make a finding of guilt in relation to the lesser charge of careless driving under Section 3 of the Road Traffic Act 1988. This is referred to as the implied alternative. The range of penalty applicable for a conviction for the implied alternative of careless driving is 3-9 penalty points however it remains open to the Court to impose a period of disqualification on a discretionary basis.
Care should be taken when negotiating these cases with the Crown. Whilst the reduction of a charge from dangerous to careless may appear to be a wonderful downgrade, it is still open to the Court to impose a period of disqualification and it is perfectly competent for the Sheriff to dispose of such cases by imposing bans in excess of 12 months. Indeed, there is no statutory limit on the period of disqualification. It is however possible to exert a degree of control over the facts and circumstances of a case which can significantly impact upon sentence.
Dangerous driving charges can involve various factors. Cases involving grossly excessive speeds can be prosecuted as dangerous driving however, it is important to note that speed in itself can only be relied upon in exceptional cases in the absence of any other actual or potential dangers. Unlike speeding prosecutions, the Crown do not have to adduce corroborated evidence of the accuracy of the speed measurement device in order to secure a conviction under Section 2 of the Road Traffic Act 1988.
We have successfully defended cases involving speeds in excess of 120mph, the highest being 140mph. Our definition of success in these examples is an outright acquittal. No plea negotiation to a reduced speed, no plea to a reduced charge of careless driving but a not guilty after trial. Our extensive experience conducting speed based prosecutions is there to be used to the advantage of our clients.
A conviction for dangerous driving in Scotland will ordinarily result in the imposition of a disqualification from driving for a minimum period of twelve months. This is the statutory minimum and it is, of course, perfectly competent for a Court to impose a ban in excess of this period. Indeed, the Court may impose a life ban should the particular circumstances of the case merit such a serious disposal.
Once the period of disqualification has been served, any person convicted of dangerous driving in Scotland will have to sit and pass the extended driving test before obtaining a full driving licence again. It is important to note that a driver will remain to be disqualified from driving until such time as the extended driving test has been passed. These are the most common penalties for dangerous driving convictions however alternative sentencing options may be open to the Court.
Dangerous Driving: Penalty Points as an Alternative to Disqualification
Schedule 2 of the Road Traffic Offenders Act 1988 orders the endorsement of a driving licence with 3-11 penalty points in cases where a period of disqualification has not been imposed following a conviction for dangerous driving.
It may appear confusing to suggest on the one hand that the penalty for dangerous driving is a mandatory disqualification from driving of at least twelve months but yet it is possible for the Court to simply endorse a licence with penalty points. This is where the legal concept of special reasons comes into play. Special reasons are, put simply, mitigating circumstances which fall short of an absolute defence in law. They must relate to the offence and not the offender.
The distinction is a crucial one: it is not a special reason to argue that a conviction for dangerous driving will lead to unemployment, homelessness, etc. It is only the circumstances of the offence which will be considered by the Court within the realms of a special reason submission. This can be a tricky balancing act as the Court will have to weigh the serious nature of the dangerous driving offence and public safety concerns against the special reason advanced by the driver. Perhaps the most common special reason argument relied upon, certainly in our experience, is medical emergency.
Dangerous Driving: Plea to Reduced Careless Driving Charge
Your Court citation for dangerous driving in Scotland will normally detail a brief narrative of the circumstances upon which the Crown will seek to rely in support of their prosecution under Section 2 of the Road Traffic Act 1988. Whilst the citation may only contain one charge, there is always a further charge of careless driving which invisibly sits behind the dangerous driving charge. It is known as the implied alternative and essentially it is open to the Crown to accept a plea of guilty to this lesser charge of careless driving. It is similarly always open to a Sheriff to convict an accused of careless driving rather than the principal charge of dangerous driving.
The reduction of a charge from dangerous driving to careless driving, whether pre-trial or post-trial, represents a significant downgrading of the offence. The Court can still impose a period of disqualification however the case may be concluded simply by the imposition of 3-9 penalty points.
It is important to ensure legal advice is obtained from a proficient legal practitioner. Whilst there may be circumstances where we will counsel an approach to the Crown to offer a plea of guilty to a reduced careless driving charge, equally there may be instances where we will specifically advise that no approach is made to the Crown. If we consider the Crown are not in a position to offer a sufficiency of evidence for both careless and dangerous driving charges, clearly we would not seek to enter into any plea negotiations with the Crown.
Dangerous Driving: Imprisonment
A conviction for dangerous driving in Scotland can result in a period of imprisonment. If you are prosecuted at solemn level, i.e. before a jury, you could be sentenced to a period of imprisonment of up to five years. Dangerous driving prosecutions in Scotland however tend to be prosecuted summarily, i.e. before a Sheriff, and the maximum period of imprisonment for dangerous driving is reduced to twelve months.
Whether a period of imprisonment is within the Court’s contemplation will depend upon a number of factors, including the seriousness of the dangerous driving offence itself and whether an accused has previous convictions for similarly serious driving offences. It is important to note that s.196 of the Criminal Procedure (Scotland) Act 1995 obliges a Court to have regard to the stage at which a plea of guilty is entered and consider whether a discount in sentence is appropriate. The sentencing process should involve the selection of a starting point sentence which is thereafter discounted, if appropriate, to take into account the stage at which the plea of guilty was intimated. The discount in sentence is discretionary although the disqualification cannot be discounted below the statutory minimum.
Our Track Record
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