Like many I watched the recent television documentary “Too scared to speed” concerning emergency response workers driving to incidents using their blue lights and sirens. At the end of the program I drew two immediate conclusions. Firstly, the emergency workers shown in the programme who had been prosecuted deserved to be. Secondly, the documentary completely blurred the unique difference between an officer blue lighting to an incident and an officer pursuing a vehicle that has failed to stop. The two scenario’s are simply worlds apart and I will attempt in the following paragraphs to explain why. I will also explain what exceptions actually apply to emergency response drivers and cover a little bit of case law as best I understand it.
In todays modern world, health and safety legislation runs through everything we do, whatever we do and wherever we do it. From continuity checked electrical appliances at work, use of door enforcers, the location of mobile speed check sites, etc, etc the list goes on and on. All require a risk assessment. Some situations merely require a one off assessment to be reviewed on a periodic basis. Other situations require a dynamic risk assessment that is continually re evaluated. Response driving is one such situation. But do we not do that already in our day to day lives when driving. Looking ahead, taking information from the road, using that information to form a driving plan then giving information to other road users to signal our intentions. Constantly risk assessing our environment. Our assessments should be dispassionate and analytical. Human factors such as stress, fatigue, an over confidence in our own abilities and anger can affect our judgement making ability, sometimes with disasterous results as the program has shown. We can only know our limits when we go past them which is why we train in a safe environment. Finding our limits operationally is not the time to do it and can be dangerous.
What exceptions apply to an emergency driver? Section 87 of the Road Traffic Regulation Act 1984 states: No statutory provisions imposing a speed limit on motor vehicles shall apply to any vehicle on an occasion when it is being used for fire brigade, ambulance or police purposes, if the observance of that provision would be likely to hinder the use of the vehicle for the purpose for which it is being used on that occasion.
The exemption is also offered to vehicles used for the purpose of training. Two important things here. Firstly, it is the purpose to which the vehicle is being put to that matters. So a privately owned vehicle used for police purposes may attract the s87 exemption. Conversely a liveried police vehicle used for a private errand would not. Secondly, s87 only applies to speed. It does not absolve emergency drivers from their standard of driving..
Okay, there is a second exemption that falls under reg.36(1)(b) of the Traffic Signs Regulations and General Directions 2002. When a vehicle is being used for fire brigade, ambulance, bomb or explosive disposal, national blood service or police purposes and the observance of the prohibition conveyed by the red signal in accordance with sub – paragraph (a) would be likely to hinder the use of that vehicle for the purpose for which it is being used, then sub- paragraph (a) shall not apply to the vehicle, and the red signal shall convey the prohibition that that vehicle shall not proceed beyond the stop line in a manner or at a time likely to endanger any person or to cause the driver of any vehicle proceeding in accordance with the indications of light signals operating in association with the signals displaying the red signal to change its speed or course in order to avoid an accident.
Again the exemption is to drive through a red traffic light (and also kept left signs by the way). But the last few sentences are wholly important. “shall not proceed beyond the stop line in a manner or at a time likely to endanger any person or to cause the driver of any vehicle proceeding in accordance with the indications of light signals operating in association with the signals displaying the red signal to change its speed or course in order to avoid an accident.”
This is wholly impactive! I will try and summarise various bits of case law regarding the second exemption. There is no defence of necessity for “doing” a red light. The other driver should not be obliged to change speed or course of direction to avoid a collision. The duty of care of any driver of an emergency vehicle is not to proceed in a manner likely to endanger any person. Police drivers will be judged against the same standard of care as other drivers and there is no special exception for them.
However, there is more case law, this time in favour of the emergency driver. BUT, it cannot be taken as a defence but merely mitigation. The judge will consider it but they are not under any legal obligation as to whether to influence their judgement or not. Speed alone is not decisive of negligence. Emergency drivers are entitled to expect other road users to take note of the signs of their approach. A breach of the highway code does not necessarily lead to an offence. A drivers skill and training should be taken into consideration.
ACPO have also added their own guidelines to operational police officers in respect of photo camera’s in respect of traffic light junctions and speed camera’s. It will be assumed that the emergency lighting will be operating if such a camera is activated.(Thats why ambulances now have an additional solitary steady blue light on the rear of the vehicle.) ACPO have also issued protocols that insist that if attending an emergency incident with blue lights and sirens then the speed should not exceed +20 mph above the red ring limit. So thats 50 in a 30, 60 in a 40, etc, you get the idea. If the protocols are not observed then a Notice of Prosecution will be sent to the emergency driver who will then have to justify their actions. “Nationals” or derestricted speed limits are slightly different. They are not red ringed. My own forces policy is that “standard” police drivers must still adhere to the +20 mph limit. “Advanced” drivers must show reasonable consideration to other road users.
Those of you with a good memory will recall that s87 does not state a speed limit, simply that the limit does not apply. How can this be then fair? Remember also that s87 only exempts speed and not the manner of driving. It has been argued successfully that exceeding policy guidelines would not make a driver guilty of excess speed but it does leave them open to driving without due care and attention.
Phew that was pretty heavy going wasn’t it? I worry that many front line officers don’t know this and to a lesser extend road policing officers. I have to be honest, I have seen police vehicle’s, ambulances and fire engines fly through red lights without slowing down! No one questions the drivers mindset, their intentions to do their best, to get to the job as quick as they can in order to stop bad things happening to good people. Im afraid that your good intentions, your intent, your mindset have no defence under The Road Traffic Act 1988. It is an objective test.
Now you know what you know, look again at the drivers prosecuted in the documentary. Are they guilty under the current law?
Practically, I can only speak for myself and in how I drive. If I’m responding to an emergency incident I keep an eye on my speedo to adhere to ACPO protocols. A red light means stop as does a green light. I treat every red light as a give way junction. I usually crawl through at about 5 mph giving me time to stop for the motorist/pedestrian who fails to see me. Remember they have right of way.
I suspect the television programme and this subsequent blog is the result of the recent case of PC James Holden of the Hampshire Police. PC Holden is a member of the road policing unit who was involved in a pursuit of a thief who stole a vehicle. Before I go on further I invite you to watch the pursuit below.
Now I said pursuits are a different thing entirely. They are dynamic, high risk and to be honest I hate them. I have watched the pursuit video myself. I considered the drive measured, dispassionate and wholly appropriate. That is my opinion as an advanced/pursuit/TPAC trained police driver.
Let me discuss vehicle pursuits because they fall into two camps. The first result of a circulation, these are the best type as it allows resources to be put in place. The second happen spontaneous, allowing little or no time to plan for a resolution.
Pursuits are nasty. Let me tell you why. On a vehicle failing to stop having been “lit up” a call is put in “Fail to stop” The FIM (force incident manager, inspector rank) assessing your driving quals will either authorise or order the immediate dis engagement. There is a big responsibility that lays heavy on their shoulders because the FIM is basically saying pursue. In a pursuit, the red ring +20 mph no longer applies. There is no speed limit to adhere to other than to show reasonable consideration to other road users. The ground commander (the vehicle immediately behind the target vehicle calls the shots). They are also expected to give a continuing risk assessment on conditions, their preferred tactics and resolution to the pursuit. This is over and above a running commentary as to the targets route, direction and speed. Clearly a hectic time. That is why it is high risk because it is high pressure. Remember those exemptions? They still apply with all their caveats. The FIM can always call off a pursuit but can never order the ground commander to continue. That is the sole decision of the GC. So when would a pursuit be called off. There are many reasons and they are based in common sense. The age of the driver, is the driver known, weather conditions, nature of the terrain, is it kicking out time at school. The list is endless and varied. But going back to risk assessments and human factors. I know when a pursuit is getting dangerous. The hairs on the back of my neck stand up. It is instinctive. When you get that feeling, the pursuit probably isnt yet dangerous but human instinct is excellent and gives you fair warning. It is then that the emergency driver must be cold and dispassionate. There can be no room for red mist and professional pride. Its its time to call it off then you call it off. To continue is asking for trouble.
What dismayed myself and I suspect every other pursuit driver in this country was the fact that PC Holden was taken to court. He did his job, he did it well. It also highlighted the fact that in law there is no defense for police drivers to dangerous driving. The bottom line is that to pursue a driver you must also take up a contrary position. Remember your skills can be used as mitigation but not as a defence. In essence to pursue a dangerous driver you must also be driving dangerously! I saw nothing that overstepped the exemptions and PC Holden drive was measured, proportional and safe. His own force disagreed together with there motor driving school and as a result he was charged. Thankfully the jury found him not guilty and had obviously taken into account the various mitigations listed above. The judge however could have directed the jury to discount those mitigations and it might have been a different story. This is the rub of the whole matter. There is no automatic right to take into account a drivers skills and experience, the use of the vehicle at that time and the circumstances surrounding the incident.
A representative from “Brake” on the programme, a well respected road safety charity commented that every emergency driver should be prosecuted regardless. Every driving incident is unique with many causation factors. I have filled out enough yellow books in my time to know this. My own view is that this approach is unrealistic, wholly unworkable and in fact counter productive.
I reproduce the comments from the Officers fed rep:
John Apter said PC Holden, 35, had had “12 months of hell” as a result of his prosecution for dangerous driving.
“What happened to James was wrong, he did what he was trained to do.”
Although it is the Crown Prosecution Service which chooses whether to bring charges, Mr Apter said: “I urge the chief constable to review this investigation root and branch.
“For [PC Holden] to perform a pursuit and then be on the wrong end of a police investigation because of that just can’t be right.”
Hampshire Constabulary said: “The circumstances of the pursuit were reviewed and the decision made by the Crown Prosecution Service to charge
During the pursuit on 6 February 2011, the van, taken by a 19-year-old man with 145 previous convictions, was driven at high speed through several red lights and the wrong way along the A3 dual carriageway.
The van crashed through a railway barrier in Cosham before being stopped by another police patrol on the other side of the railway.
During the trial, the jury was shown footage of the pursuit taken with a camera fitted inside PC Holden’s vehicle.
PC James Holden ended the pursuit when the van crashed through a railway level crossing
Mr Apter added: “PC Holden is a highly trained advanced police driver.
“He brought somebody to justice and he faced potentially the ultimate sacrifice.
“No police officer is above the law, but James has been prosecuted for doing his job.
“That has sent alarm bells across officers – we need to ask why we came to be in this position.”
It took a jury at Guildford Crown Court two hours to clear PC Holden of any wrongdoing.
After the verdict, Hampshire Constabulary said: “It is important that the justice system is transparent and that police officers are subject to the same scrutiny as members of the public.”
So we are where we are and questions are now being asked whether the law should be changed in favour of emergency drivers. I think with regards to emergency response driving to an incident then the exemptions are clear as is their limitations. If the driver follows them implicitly then I believe they are afforded protection from the law. Pursuit driving though I have doubts. PC Holden demonstrated that whilst adhering to the exemptions he was still liable for an offence. I’m sure no member of the public would want to see someone killed in the recovery of their stolen vehicle from a burglary at their home an hour earlier. But until clarification is reached emergency response driver’s will now have that doubt at the back of their mind as to whether to pursue or not and that is not a healthy seed to plant. Pursuit drivers deserve to know where they stand because otherwise getting prosecuted for doing your job is not an option.