Gfamily wrote: ↑Sun Dec 04, 2022 5:20 pm
The 1991 amendment to the 1988 Road Traffic Act gives an obligation to drive with reasonable consideration for other persons using the road (more specifically is says that failing to do so is an offence).
I would expect that, when used in the Highway code, "Should" indicates what is required to be reasonably considerate of other road users, and failure to do that may be used to indicate an offence. It's not absolute, as failing to do a "should" may be reasonable under the circumstances.
But running over a pedestrian crossing over the road at a junction is not excused because it's only a "should" that says you should allow them to cross.
shpalman wrote: ↑Sun Dec 04, 2022 5:46 pm
Many of the rules in the Code are legal requirements, and if you disobey these rules you are committing a criminal offence. You may be fined, given penalty points on your licence or be disqualified from driving. In the most serious cases you may be sent to prison. Such rules are identified by the use of the words ‘MUST/MUST NOT’. In addition, the rule includes an abbreviated reference to the legislation which creates the offence.
Although failure to comply with the other rules of the Code will not, in itself, cause a person to be prosecuted, The Highway Code may be used in evidence in any court proceedings under the Traffic Acts to establish liability. This includes rules which use advisory wording such as ‘should/should not’ or ‘do/do not’.
"May", "may", "may", etc. But how often in practice? Rarely, is the answer. Sufficiently rarely that these statements above more nearly wishful thinking than any kind of description of how our road environment works in legal practice. And this, by the way, is precisely why I consider road laws in this country to be not fit for purpose. You can do everything that is required of you, be perfectly careful, and get killed, and find that frequently there is no liability at all for the killer. The road laws completely fail to place any proper duty of care to avoid driving in a way that avoids substantial risk of killing people. And if they did, I think these rather curious bits of "advisory" wording would have to be thought through rather more carefully.
If it does come to court, the "should'"s above are only going to get bit-parts in the case, some small adjustment to the balance of responsibility, if you can find them guilty of something in the first place.
Running over a pedestrian (or other vulnerable road user) at a junction is actually excused remarkably frequently. If you go looking for cases, you will find numerous heart-breaking cases of precisely this. In this type of case, "Sorry didn't see them," does actually amount to a legal defence which is very hard to break down. "They must have run out in front of me, because I would have seen them." Even at a junction where you "should" give way to them, I think you will find this is a remarkably effective defence in practice, you'll find no shortage of cases where it worked for the defence.
To actually get bad drivers nicked, we need hard laws that they have broken. Or, what is essentially equivalent in this country, a system of legal precedent whereby the meaning of things like "careless" is amenable to testing against those old established cases, which currently it isn't. The a judge can say, there is precedent this action is deemed bad enough to be considered negligent.
Because ultimately, the only people who say what is "careless" or "dangerous" is the judge or the jury, and if it is at all contentious the defence advocate will advise a jury trial. Because the jury are mostly drivers themselves. And many of them go, well if that's bad enough to get you nicked, well deep inside here I know that I've done that a few times, and that was perfectly OK. So I can't acknowledge that to be "careless" or "dangerous" in way that gets you nicked.
Even if you actually break the law, you can still get off for the main event, the death. In a case a few years ago, a driver with illegally over-tinted windows all round, stationary at the kerb, opened the door and knocked a passing bicycle under a bus. Death resulted. Now "dooring" is actually a specific offence worth something like 3 pts on your licence and £150 fine or something. The heavily tinted windows something similar. So even though in this case the two contributory specific offences were committed and prosecuted, the fact that someone died as a result was completely lost. Overall outcome, some fine and a few points on the licence. So, this illustrates very nicely that even doing things you shouldn't do, in fact in this case mustn't do, doesn't necessarily lead to you taking responsibility for the enormity of the outcome. Even though it was comprised two utterly negligent acts, sufficiently negligent that they are actually illegal, that might reasonably be expected to lead to people's death. If this had been a dangerous piece of factory machinery that had been negligently managed in this way and led to someone's death, you would have been facing a manslaughter charge and a stretch. Because for some reason once it concerns personal road conveyances, the idea that drivers must avoid negligent handing of this dangerous piece of machinery has been completely lost, and explicitly so in law.