Driverless Vehicles

2nd August 2022 Driving Offences

Autonomous Vehicles and Driver Responsibilities

In 2018, the law surrounding Autonomous Vehicles (AV) was brought under the Automated and Electric Vehicles Act which obtained royal assent on the 19th of August. As a result, many insurers dedicated specific policies for these driverless cars. The law now covers driverless vehicles and provides updates to their insurance requirements.

A recent BBC article has discussed the legal position of Automated Lane-Keeping Systems (ALKS) and specifically, the need for a human in the driver’s seat to react to transmission demands.

2.12 In these cases, the system will issue a “transition demand”, using escalating warning signals to alert the driver that they have 10 seconds to take control. If the driver does not respond, the vehicle will perform a “minimum risk manoeuvre”, coming to a slow stop in lane, with its hazard warning lights on.

Interestingly, the BBC article fails to mention that recent studies have indicated 10 seconds is a sufficient amount of time. However, manufacturers are not in a position to decide the exact time to be allowed and it is to be left on a ‘watch and wait’ basis in legal practice.

2.26 The ALKS Regulation provides that if the driver fails to respond to a transition demand, at least 10 seconds should elapse before the minimum risk manoeuvre is started. Although some studies indicate that 10 seconds is sufficient, the time may vary. In its response to the call for evidence, the ABI and Thatcham cite three studies suggesting that it may take between 15 and 40 seconds for the driver to become fully aware of traffic conditions.

 2.27 We are not in a position to decide the minimum period between the transition demand and the need to take back control. This difficult issue will need to be monitored in practice.

It is interesting that the Law Commissions’ report confirms that at the end of the transition demand period, the user in charge would take the full obligations as the driver and the immunity from driving offences would cease. Although, it is stated a failure to respond does not necessarily mean an offence is committed. 

Insurance

Regarding insurance, the following categories have been developed well:

  1. Liability of insurers, where an accident is caused by an automated vehicle.
  2. Contributory negligence.
  3. Accidents resulting in unauthorised software alternations or failures to update software.
  4. Right of an insurer to claim against those responsible for the accident.

Insurance companies have developed policies covering the use of driverless cars. Therefore, if there is a policy of insurance in place then they must pay the third party. If the vehicle owner is not insured then they are responsible for the damage.

Insurers are likely to dedicate specific exclusions for their policies; while the first phase of vehicle are being tested and see then what’s decided regarding transition demands. It would not be surprising if insurers themselves develop technology alongside with manufacturers to monitor human input for the purposes of liability and cover.

The Highway Code 

To account for the deployment of this new technology, the highway code and accompanying legal framework will need to be amended to determine the relevance of certain rules. For example, the rules regarding stopping distances and time, the computer is programmed to always take these into account. Plus, the need for mirror-signal-manoeuvre to be drilled into every student driver when cars of the future will do this for you. Most of the highway code may become redundant, as cars will be able to read road signs and perform actions that humans are taught to do. The law commission has proposed to place responsibilities with the manufacturers, users in charge and licenced fleet operators:

2.15 The Highway Code must be amended to clarify that the fallback-ready user should retain the residual responsibility of remaining vigilant to extraordinary external conditions where it is not appropriate to continue using the automated driving functionality.3 (emphasis in original)

Legal Framework 

In relation to driverless cars the whole legal framework will need to be changed to take driverless cars into consideration.

There are still differing opinions surrounding autonomous vehicles. Many welcome the idea as motoring technology has already come a long way to assist drivers in avoiding accidents, such as collision assist, cameras, lane assist, driver alerts (when tired), blind spot indicators and more. Many are still against driverless cars and would rather trust their safety to human drivers rather than new technology. It will take some time for people to adapt but AVs are definitely a positive step forward in driver safety. Although, with society advancing in this way it’s likely to attract cyber criminals, therefore the security of such vehicles is paramount.

Legal Accountability & Immunity from offences and prosecutions

In late January 2022, the Law Commission (LC) published Report No 404 / SLC Report No 258 where it set out its aim to promote a no-blame safety culture that learns from mistakes through a duty of candour.

The report offered a changed system of legal accountability once a vehicle is authorised as having “self-driving” features, and a self-driving feature is engaged. The LC believe this is best achieved through the system of regulatory sanctions, rather than by replicating the criminal sanctions applying to human drivers. 

In order to determine legal accountability, it is recognised that the safety assurance will rely heavily on information provided by the ASDE (manufacturer) and the non-user in charge (NUIC) operator to the regulator. NUIC’s who are not physically present in the vehicles are expected to respond to alerts from the vehicle if it encounters a problem it cannot deal with, breaks down or is involved in a collision.

Thus, the LC recommends it to be a criminal offence where manufacturers or NUIC’s fail to provide information to the regulator; or give them false or misleading information when evaluating a vehicle’s safety. The report confirms senior managers and staff should face prosecution for breaches of the duty of candour in some circumstances.

There are currently eight aggravated offences of causing death or serious injury by dangerous driving. The LC at 5.14 recently stated these offences will not be committed when a vehicle is driving itself. We do not think it is right to prosecute an ASDE for the behaviour of the vehicle simply because a human driver would be prosecuted in similar circumstances.

This has been decided due to the difficulty to establish causation, the link between the wrong and the harm caused. The LC has proposed a three-part test:

Where a corporation or senior manager commits one of the offences we have outlined, that offence should be aggravated where the misrepresentation or non-disclosure: 

  1. related to an increased risk of a type of adverse incident; and
  2. an adverse incident of that type occurred; and
  3. the adverse incident caused a death or serious injury.

Overall, the report clarifies the approach to be taken concluding; the law on autonomous vehicles should not allow traditional drivers of AV’s to be prosecuted, even where death has occurred. However, whether the courts and legislators will follow this report, on moral grounds, is still to be determined.

Talk to us

If you have been accused of committing a motoring offence, it is essential to get specialist help from a solicitor. Call us for free on 0345 241 5305, fill in our online enquiry form, or visit our motoring offence page.

This blog was co-authored by Hojol Uddin and Daniel McGlashan.

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Hojol Uddin is a Partner and Head of Department located in Manchesterin our Driving Offences department

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