03 August 2023

Since 28 June 2022, it has been open to the Crown to libel a new driving offence; Causing Serious Injury by Careless Driving under S.2C of the Road Traffic Act 1988.

We are now starting to see this offence appear on Complaints and Indictments throughout the Scottish Courts for alleged offences committed post June 2022.

The offence was created to close the gap between the existing offences of Careless Driving in terms of Section 3 of the Road Traffic Act 1988 and causing Serious Injury by Dangerous Driving in terms of Section 1A of the 1988.

Careless Driving (Section 3) is likely to be libelled as an offence where the manner of driving falls below the standard of a competent and careful driver. Dangerous Driving (Section 1 or Section 1A), on the other hand, requires the standard of driving to fall far below the standard of a competent and careful driver.

The new offence recognises that in cases where the standard of driving may not fall far below the requisite standard, and may amount to no more than a momentary lapse of concentration, often catastrophic consequences can and do still result for complainers.

For the offence to be libelled, “serious injury” must have been caused. This is defined in S.2C as “severe physical injury” and is generally considered to be an injury for which a person is required to be an inpatient in hospital, for example, broken bones, internal injuries, crushing injuries and even severe cuts and lacerations.

Perhaps the most notable feature of the new offence is that it allows the Courts to impose significantly tougher sentences in cases where serious injury was caused, but the driving may have amounted to no more than a momentary lapse of concentration.

Whilst the maximum penalty for Careless Driving is a fine along with 3-9 penalty points, or in the most serious cases, a discretionary driving disqualification of at least 6 months, the minimum penalty for a S.2C offence is an obligatory disqualification period of at least 12 months and a fine, extending to a maximum of 2 years imprisonment. This brings the penalty closer to that of Dangerous Driving.

It is, therefore, crucial that if a road traffic accident occurs in circumstances likely to give rise to a Section 2C charge, prompt and robust legal advice should be sought.

There is even more of a requirement for specialist road traffic legal advice in these circumstances as post June 2022, drivers face an increased risk of losing their licence and now liberty if convicted of this new offence.  

BTO’s Regulatory and Criminal Defence team are experts at representing drivers across Scotland in road traffic matters in both the Sheriff and High Courts. If you are charged with any road traffic offence, or if you have any queries, our team will be happy to assist you.

Vikki Watt, Partner & Solicitor Advocate: vwa@bto.co.uk / 0141 221 8012

Jaimie McGready, Solicitor: jmg@bto.co.uk / 0141 221 8012