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Blog: What is an “accident”? Avoiding the service of a Notice of Intended Prosecution for a road traffic offence

21 Jul 2021

Aileen Colhoun, a partner in Hickman & Rose’s Serious and General Crime team, has written a blog explaining why, for some of the most serious road traffic offences, defining what an ‘accident’ is can prove crucial.

In order to prosecute any individual for a road traffic offence, the police are required to follow a clearly defined set of steps.

In cases of alleged dangerous driving, careless driving and speeding, one of these steps is the requirement to issue the vehicle’s driver (or its registered keeper) with a Notice of Intended Prosecution, known as a “NIP”.

A NIP is an official written warning of the police’s intention to pursue a criminal prosecution. By warning the relevant person of this intention the NIP enables its recipient to gather evidence which could be useful in their case.

In order to be valid a NIP must be served within 14 days of the alleged offence. Generally speaking, any criminal prosecution for the specified offences in which a NIP is issued after this two-week cut off, is invalid.

There are, however, some exceptions to this two-week cut off rule. One important – and often used – one is where the offending has resulted in an accident.

This “accident” exception has enabled the police and CPS to continue with numerous prosecutions in which either a NIP has not been issued, or one was issued out of time.

For people facing the prospect of criminal prosecution for dangerous or careless driving, or speeding, an understanding of the application of the accident exception, can make the difference between a criminal conviction and a case being thrown out of court.

The Accident Exception

The rationale of the “accident” exception is that a NIP is unnecessary because the driver would have been aware that he or she was involved in an accident. In such circumstances, so the argument goes, a driver would have had an opportunity to record or recall events at the time or to look for evidence, such as eye-witnesses or CCTV, which might assist in defending any subsequent prosecution.

But what is the position where there is a dispute as to whether or not there has even been an “accident”? What if the police say there was an accident, but the driver says there wasn’t?

In such a case, whether a criminal prosecution can continue depends on the answer to the question: “what is an accident?”

What is an accident”?

While most people can confidently say what an accident is, from a legal standpoint the answer is less obvious than one might think.

The fact that “accident” is not defined in the Road Traffic Offenders Act 1988 means that it has been left to the courts to make decisions as to what constitutes an accident.

There have been a number of key rulings to help courts determine this question. These include the following:

Chief Constable of West Midlands Police v Billingham

The 1979 case of Chief Constable of West Midlands Police v Billingham held that “accident” should be given its ordinary meaning and would include cases where there has been a deliberate act.

In this case the defendant had set a police car in motion, which had rolled down a slope and collided with a telegraph pole. It seems likely that most people would consider that to be an “accident”.

But what of a situation where there has been no collision, injury or damage? Could that properly be considered to be an “accident”?

Bremner v Westwater

In the 1993 Scottish case of Bremner v Westwater a driver had driven his car at excessive speed, without lights, during the hours of darkness and at one point had overtaken another vehicle in the face of oncoming traffic, causing the driver of the overtaken vehicle to brake sharply and the driver of an oncoming vehicle also to brake sharply and take evasive action.

The evasive action resulted in the oncoming vehicle mounting the nearside verge to avoid a head-on collision.

The court held that the occurrence by which the driver effectively drove the oncoming vehicle off the road onto the verge could properly be described as an “accident”.

Is that a fair decision? Undoubtedly the driving described could be considered dangerous. But what if the driver had been unaware of the consequences of his driving and of the fact that the oncoming car had to take evasive action? Should the prosecution in those circumstances have been permitted to prosecute without service of a NIP?

Bentley v Dickinson

In the 1983 case of Bentley v Dickinson the defendant reversed his car out of a drive and collided with another vehicle. It was found as a fact that the driver was unaware that the collision had occurred. The court held that a NIP is required if an accident occurs of which the defendant was unaware.

R v Currie

In the 2007 case of R v Currie, the defendant, having been stopped by police officers, returned to his car when the officer talking to him was distracted and started the ignition.

The officer shouted at him to stop and ran towards the vehicle. The vehicle lurched forward and the police officer had to put her hands on the bonnet. Another driver blocked the way forward, the officer grabbed hold of the open passenger door and the defendant reversed up the road causing the officer to lose her grip on the door. On two occasions, the offender nearly hit another vehicle.

In this case a NIP had not been served and the defendant was prosecuted for dangerous driving. The defence argued that there had not been an “accident”.

It was held that it was for the judge to decide, as a matter of fact, if there had been an “accident” and that it was clear that the judge was entitled to find that there was an “accident” in those circumstances. It was emphasised that the purpose of the NIP requirements was to draw the attention of a potential defendant to the possibility of prosecution; in circumstances such as these, the events would have been “sufficiently memorable” for that to be unnecessary.

Conclusion

For certain road traffic offences, determining whether or not there has been an accident can prove decisive.

Put simply (and leaving aside the statutory exception of due diligence relating to identifying the driver or registered keeper) in order to be legally prosecuted for the specified road traffic offences, if there has been an accident there is no required service of a NIP; offending independent of any accident does require a NIP.

The courts’ definition of an accident appears to have shifted over time. It seems that there has been a movement away from the ordinary meaning of the word “accident” towards driving which would have been considered “memorable,” thereby providing the prosecution with a get out for failing to serve a NIP within the statutory time limit.


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