Hello and welcome to episode three of the Project EDWARD 2023 Podcast. My role in the Safe System. My name is James Luckhurst and today I'm in Liverpool with Dr. Adam Snow from Liverpool, John Moores University. Adam is going to be reflecting on the penalty points system for drivers, the totting up rules and whether anything has changed in terms of reported abuse of the exceptional hardship plea opportunity.

We'll also be considering the latest thinking on distractions in the company of Dr. George Yanis, who's a professor in traffic and safety engineering and director of the Department of Transportation Planning and Engineering at the School of Civil Engineering at the National Technical University of Athens.

Speaker 1

Speaker 1

We'll also be considering the latest thinking on distractions in the company of Dr. George Yanis, who's a professor in traffic and safety engineering and director of the Department of Transportation Planning and Engineering at the School of Civil Engineering at the National Technical University of Athens. But all that in a few minutes. First, Dr. Adam Snow. Welcome, Adam, to the podcast.

Speaker 1

Please do what everyone's being asked to do and explain your role in the safe system.

Speaker 2

Well, I think my role really in the safe system is thinking about ways of making our response to danger more effective. And doing this through the evaluation of what works, what doesn't, and why using, you know, kind of principles of academic rigor, academic studies and interpreting those results.

Speaker 1

Let's start then. Why is it necessary to have a system of legal sanctions for drivers and riders as well?

Speaker 2

Speaker 2

Those that we know about that is for the fly injuries, because that's only what the police are called out to. So we're looking at approximately five people a day dying in road crashes. There's a epidemic of them recently, on average, about eight days a year in which there are zero road deaths, as everyone else has at least one, if not more.

Speaker 2

And to put that into context, they're actually more days in a year where there are ten plus road deaths than there are zero road deaths. Is it that kind of help kind of make sense? Why do we have a system? I suppose another way of looking at it, why is that different from kind of like the general criminal law, if you like?

Speaker 2

Because it's a tendency to see road traffic offenses as something kind of slightly different for people. And I think it's the kind of underpinning of risk, really. And one of the things that people don't like really is the idea that the harm that comes from it is divorce almost from the offense itself. Now, what I mean by that is that you are punished rather than for the risk of waiting, i.e. for crashing or anything like that.

Speaker 2

You're punished for something that creates the risk of that crash, which, you know, in all fairness, most of the time does necessarily lead to any negative outcome. What can and certainly does, you know, not infrequently lead to very negative outcomes.

Speaker 1

But you couldn't be punished for the act if it didn't have a negative outcome. Could no one would ever know?

Speaker 2

No, that's true. And that is, again, one of the one of the issues, particularly speeding enforcement, really, is that in reality, we probably all speed a lot more than we should and a heck of a lot more than is actually captured in official enforcement actions. So, again, I think that probably plays into people's minds in terms of the negative response is to road traffic enforcement in particular.

Speaker 2

And there is certainly a large minority, shall we say, the variant road traffic enforcement in the round because again, because of concerns, I think the legitimacy of the system that kind of punishes behavior that hasn't eventuated a harm like it will do in criminal law. You know, if you're going to do a burglary or even attempted burglary, it's going to cause some harm along the line.

Speaker 2

If you do some speeding, the chances are it probably won't straightaway. But you know, that kind of BS built in then to your attitude to the road and to road safety, which eventually potentially could lead to much more serious and catastrophic injury. And there is no plan to this. There's nothing you can point out to say, well, because you spent you 15 times in the last week, you're now ten times more likely to have a crash.

Speaker 2

The chances are you'll never be in a position to know it will just happen to you one day. And that's all we can point back and say, well, that's what caused it. So the more we can change those attitudes before that happens, the better. And that's, I think, one of the aspects of dealing with this problem, which is the enforcement aspects that make sense.

Speaker 1

Looking at the system that we use. In your opinion, is it fit for purpose?

Speaker 2

Yes and no. I think what I would say is I think we've we're reaching a point or we've already reached a point whereby enforcement can deliver everything it can and it can't deliver much more in terms of the number of people dying on the roads. Then people serious injuries on the road. I think enforcement is to limit everything it can.

Speaker 2

That's not an argument to say we should do less. That's an argument to say we should do exactly what we're doing and keep doing it, if not more, if we can. But I think we probably because because the statistics on the number of deaths and injuries have plateaued really in the last ten years, nothing really has changed or the small fluctuations say, well, that there are small drops.

Speaker 2

But I think really looking at education, looking at engineering and environment, the other hand of threes, the 40 idea that they probably need more input now really if we want to kind of seriously and reduce the number of people dying.

Speaker 1

I recently heard a government minister speaking and he said that we need to take the public with us where enforcement is concerned. But that's not going to happen, is it?

Speaker 2

I'm not aware of what the minister said, but I no doubt he he will be aware of. There is a significant resistance. I'm not saying it's majority resistance by any stretch of the imagination, but there is significant resistance to increase speeding the, you know, the reduction of speed limits to 20 miles an hour in Wales as well has been a bit of an online backlash, if you like.

Speaker 2

How real that is in the real world, I don't know. I suspect it's not as high as people think. And my experience of dealing with people kind of offline, shall we say, when it comes to speeding is that most people do support speeding enforcement and actually want more. It's not that they want less, but then when that gets into this kind of national kind of global conversation based on online comments and the like, you tend to attract the more outrageous elements of it, shall we say.

Speaker 2

So does it you know, is there is there religious cynicism? I don't think so, no. I mean, like I say, you are quite lucky that you've been convicted of a criminal offense and you're given, you know, potentially going spend. I was just learning about speeding to make you safer. That's, you know, I'm sure there's many Rob, somebody was out there that would love that opportunity.

Speaker 2

So I'm not quite sure how we can say that. It's necessarily illegitimate that there is always in the background of all of these conversations is the idea of revenue raising. All I can say from an academic perspective is just is not there. It is not that it can be used as a revenue raising. There's not to say there's not anecdotal evidence that some officers in some authorities think, oh, I could do this now to raise some money.

Speaker 2

That's not to suggest that doesn't happen occasionally, but overall, it really doesn't.

Speaker 1

Add in the papers like using headlines about mums to be with 66 points on their licenses or still being allowed to drive it. To what extent does this undermine the integrity of the system?

Speaker 2

If you look at the data on driving licenses in England and Wales, so there's roughly about 51.6 million driving licenses that have been issued. So about 94% of the population of Adelaide population has a driving license, be it provisional or full driving license, the majority have a full license. And there is some bizarre data. If you look at the DVLA issue data each year, statistics on the number of points on people's licenses.

Speaker 2

So there is one female in the country at the moment from the Greater Manchester area who has 126 points on their license and there is one male aged 27 who has 63 points on that license. The question then becomes why have they got those points in the license and why aren't they banned? But it's not an easy, easy to answer.

Speaker 2

Is that because the way in which the DVLA present their data means that there is an overlap between someone being disqualified and someone having points on their license, i.e. you've been ordered to be disqualified for drink driving. You've reached that ban. You come to the end of, say, an 18 month ban, you took your extended retest and then you apply for a license.

Speaker 2

Again, those points will still be on your license, which which is exactly what we want. So it's good that they're selling the license because your insurers are going to want to know that, obviously, because you are a very high risk individual. If you've got 126 points on your license, there's something going wrong there. So it's important that we do have that information.

Speaker 2

So the idea that we do have people driving around regularly, you know, 60, 70, 80 points, and I'm not sure that their evidence is that just actually happening. What it is, is just the way in which DVLA collect their statistics, I think is what we're seeing, although obviously there is the facility which might talk back in a minute about how you can keep your license if you're over 12 points, so-called exceptional hardship defense or special reasons.

Speaker 2

So yeah, just in relation to that one individual in Manchester with 126 points on the thing I've got to say as well, which probably needs more research at the moment, is Greater Manchester, I know, have had issues with what are called an IP farms, so notice intending prosecution farms, which is where basically someone agrees to provide an address to take points.

Speaker 2

And I wonder if that is part of that as well. This is one individual who is pretending to be a lot of other individuals in order to make that point. So I start serious offense, very serious criminal offense of perverting the course of justice. You will get a prison sentence for that if you do it. So I just wonder whether that might be part of that.

Speaker 2

That particular scenario about some of these more Iowans. But I think a lot of it is just a legacy of the data really that's published, and it's not as accurate as it could be.

Speaker 1

We will come back and talk to Adam Snow and and go into a bit more detail on exceptional hardship in just a few minutes. But time now to turn our attention to distractions for drivers and in particular to future insights into real time monitoring of driver distraction. I spoke about this to Dr. George Yannis from the National Technical University of Athens.

Speaker 3

There is a great potential in technology today for real time monitoring of driver distraction. This can happen mainly in two ways. One way is through in-vehicle cameras which monitor driver status, including any distraction from inside or outside the vehicle. But also there is the possibility for telematics through the mobile phone of the driver, where among other indicators, the mobile phone use is monitored in in both cases of course, there are issues of the driver to allow to be monitored.

Speaker 3

So we need to guarantee that the data are used for the right purpose, to give feedback to the driver and not to the police and to provide suggestions. Gamification and an incentive tool to improve driving behavior and of course, driver distraction online. And on the other hand, we have seen that these systems can go up to changing the behavior and lead to up to 30% of less crash, less crashes.

Speaker 3

The future is a combination of technology, but also behavioral education measures will have to go to to embed that a culture of driving assisted by technology, but also through the change of cultural patterns. So it is a combination of tools which always brings most of the results and the one assist to the other.

Speaker 1

That was Dr. George Yiannis from Athens. We go back to Dr. Adam Snow. Now here we are in Liverpool concluding our conversation on penalties for drivers. Let's talk then about exceptional hardship.

Speaker 2

Firstly, I should say that exceptional hardship is a way of keeping your license once you have obtained more than 12 points on your license. So this is what's known as the totting up procedure, which is probably what for most people know it as. Once you get a fixed penalty notice for whatever it might be, speeding is most typical.

Speaker 2

The most common or no insurance might be no the one. You get six penalty points for that on your license through a fixed penalty or speeding, you'll get three, which means you have a number of offenses you can commit before the question has to be asked. Are you still fit to be a driver? And so once you get to nine points, say, for instance, for speeding, you've got three speeding offenses, The next one you get, if it's within the relevant period, which should be three years, the next, when you get will basically require you going to court and you'll be prosecuted, the Magistrates Court and then the magistrates will have to decide whether you should

Speaker 2

keep your license beyond those 12 points. And that's what's called exceptional luck. Sorry, that's they.

Speaker 1

Will they decide the circumstances that would allow you to keep it because you would automatically lose it wouldn't you, with 12.

Speaker 2

Speaker 2

So there's two there are a number of reasons why you can keep your license. The two main ones are, you argue, exceptional hardship or there is something that the court sees that they believe will mitigate the normal circumstances of the outcome, which is a disqualification. So there you might be looking at something if you are a drunk being found, drink driving, if you've been drink spiked, potentially, if the court looks at that and it is completely at the discretion of the court, if the court looks out, they might say, okay, that will mitigate the normal circumstances.

Speaker 2

And so we won't impose a penalty or we won't impose a disqualification in those circumstances. So they can do that. And there's case law where they have to the exceptional hardship, on the other hand, is more about what the effect is going to have on the actual person who who's been driving essentially. So again, they have to prove that it caused them exceptional hardship.

Speaker 2

The only way you can do that spinning out into the witness box. So you go into the witness box and then your defense typically solicitor will examine you. And to try and tease out these points to show exceptional hardship. Now, what we can say about exceptional hardship is basically there is no daft definition of what it is from the case law.

Speaker 2

The closest we get, bizarrely, is from a family law case. It's nothing to do with road traffic case. We'll say and say, okay, this is day and this was a divorce, which at the time you had to prove that you could dispense with a three year qualifying period for a divorce, for separation, if you could show it would cause you exceptional hardship.

Speaker 2

So then the court cited seven what the word exceptional hardship meant. And this was a definite well, they said basically there wasn't a definition of it. So any attempt to define the meaning would be betrayal of a deliberate imprecision favored by Parliament. So Parliament is being deliberately imprecise by using exceptional hardship to allow for all sorts of circumstances.

Speaker 2

But it must mean or must be shown to be something out of the ordinary. So what does that mean then? So you will typically hear someone say, Oh, he just said he'd lose his job and that that was exceptional hardship. Again, whose case? I'll say that is not enough on its own. Just losing your job will not save you from being banned.

Speaker 2

Having some effect on your family, maybe causing family breakdown. Again, that in itself is not enough. It has to be an exceptional hardship on your family. And you know, you may end up with a situation whereby you are facing loss of your job. There is civil breakdown of your marriage. Maybe you lose your children as a result of it, then that could then be considered exceptional hardship as a result of this one penalty.

Speaker 2

What the courts have said repeatedly that this is a penalty. It's not a an opportunity just to kind of be nice, so to speak, or to give people another chance. Disqualification is a penalty and it should be used as such.

Speaker 1

Now, driving while disqualified, that takes us you know, let's assume these disqualifications got there and that can attract up to six months in prison. Do you know how often courts actually impose that sentence?

Speaker 2

Speaker 2

Speaker 2

20%, probably another 20% will get what's called a suspended sentence, whereby it's past the custody threshold, which is the phrase that the judge will use, i.e., so serious that only custody can solve it. But then they suspend the sentence for whatever reason it might again be, because, of course, hardship for whatever reason they might be, there are there's lots of guidance on what they can and can't suspend the sentence.

Speaker 2

So so 40% then pass across the threshold. About half of those that for defense or 20% get immediate custody, 20% get suspended sentence. The most common punishment by far is a community order that gets about 40 on its own. This 38% receives a community sentence of something like unpaid work, and then about 26% a quarter will receive a fine.

Speaker 2

So I can give you some indication of what that actually looks like. So the average custodial length of sentence is about 2.9 months. So about 12 weeks is the average custodial sentence and the average fine is about £315 fine, which turns around 15.5 in the context of motoring is not. What we can say is that custody has been reducing as a proportion of all offenses sentenced and the fine has been increasing.

Speaker 2

The community order is pretty much stayed the same. So when I say the fine increases, the proportion of people find have increased not the amount of the fine, although the amount of fine does increase each year. So yeah, and I think in terms of going forward, you're I don't know if you've seen it this week. So the senior presiding judge for England and Wales Criminal Courts has pretty much encouraged judges not to send people to prison because we're pretty much full.

Speaker 2

So that will no doubt net in next year's figures higher. This is because that will lead to a reduction again in custody for this offense.

Speaker 1

It does feel into the conversation we've had that there is a certain element of inconsistency and unpredictability in all of these punishments. Is there a benefit in having that?

Speaker 2

So I think there's two ways to think about consistency. And this is the way it's been done in sentencing research over the years. Really, there is consistency of outcome and consistency of process. Consistency of outcomes always can be very difficult because it's very difficult to kind of compare to cases. You know, you get one person who's up for exceptional hardship.

Speaker 2

They seemingly have the same thing. You know, they're both driving at 36 miles an hour and a 30, but their fourth or fifth offense. And then you sort of think, well, that person's got family, that person's got family. Why would they? Exceptional hardship, perhaps the family, but not there for this person's family. And so it's very difficult then to look at consistency of outcome because you do end up with these strange disparities.

Speaker 2

But once you start kind of really investigating the cases, they become explainable or explicable. We can understand perhaps why the judge felt differently for the particular time, what you look for in sentencing. Instead, it's what you call consistency of process. Are they going through the same process of sentencing? Are they taking into consideration the same things? And in that regard, we are generally quite good in England and Wales because we have the Sentencing Council, the issue guidelines which basically tell judges and give them an indication of one what they should do in terms of determining the seriousness of the offense in front of them, what it does in terms of the culpability, you know, how

Speaker 2

culpable are they, how seriously that was their behavior. And then it will set ranges from, you know, so 30 miles an hour. They were going 90 miles an hour in a 30 miles an hour zone, clearly very high, culpable if there was a crash as well as very high harm. So you look at at the very top end of the range and it'll give you a range from something like, you know, a high level community order to 52 weeks custody or something like that.

Speaker 2

And that consistency of process is what we're very good at, the consistency of outcome. I think is always going to be very difficult and I don't think it's a system you want really a a pure consistency of outcome I don't think would be a perfect system because it can't take into consideration those difficult questions. Take the drink driving example where someone's been drink spiked.

Speaker 2

You should be aware as a normal person of whether your driving is impaired. And so most of the courts will look at it and think, well, okay, you're still going to get a ban, but that doesn't mean you should then basically get the same ban as someone who just went out and had the same amount of alcohol. For instance, or took the same drug and then went and drove at the same time.

Speaker 2

That culpability is different. But if we're just going to look at the headlines, then you start thinking, well, where's the consistency of outcome there? But it's the consistency, the process that matters. They've both been through the same process, both looked at the same guidance and therefore were able to kind of come to a decision that was just in that particular case.

Speaker 2

And so I think that's where you wouldn't really want a consistency of outcome in sentencing, although it might intuitively appeal, I don't think it'd be very effective in terms of punishment or in terms of deterring people.

Speaker 1

Speaker 1

We'll be back with episode four next week as we continue our eight week series running right through till the middle of December. But for now, from me, James Luckhurst, it's goodbye.