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"When your vehicle has issues on a motorway, you look for the safety of the hard shoulder….Since the implementation of smart motorways, this lane has become a live lane and if the unforeseen happens, you are stranded in what is now a death trap and also delaying emergency vehicles attending an incident."
As the government confirms that it will undertake an urgent review of smart motorways following several tragic deaths, we look at their use and perceived benefits, criticisms of the system and the future viability of such roads.
What is a smart motorway?
Smart motorways, or managed motorways as they were previously called, were first introduced in 2006. Highways England (previously the Highways Agency) developed these roads with the aim of increasing traffic capacity and decreasing congestion by utilising the existing carriageway space.
Since this time, the network of smart motorways has grown significantly to include stretches of smart motorway on nine of the major networks and they now account for around 400 miles of England's roads.
There are three main types of smart motorway:
Across Europe, elements of smart motorways have been implemented since 2002, with multiple countries using the dynamic hard shoulder model.
Is life too fast in the slow lane?
Keen to emphasise the benefits of such motorways, Highways England published statistics from data gathered since the first smart motorway opened in 2006 to say:
Yet not everyone has been convinced, with criticisms being voiced by a number of organisations including the RAC, the AA, MPs and the Coroner's Service. Members of the public were also invited in early 2019 to sign a petition to scrap smart motorways, which received 1,179 signatures.
Criticisms have primarily arisen following a number of fatalities involving stranded vehicles and vehicles proceeding down closed lanes. These criticisms have mainly focused on those with a "dynamic hard shoulder" and those with "all lane running", with members of the public being unsure when they can and cannot use the hard shoulder.
The RAC says: "In recent years, there has been a movement towards the permanent conversion of the hard shoulder into a running lane which has concerned us.
"The removal of the hard shoulder fundamentally increases the risk to drivers who might suffer a car breakdown and are unable to reach a refuge area."
Even Chief Executive of Highways England, Jim O'Sullivan, who was initially at pains to reiterate their safety saying that there was a “disproportionate” focus on the risk, has recently called smart motorways "too complicated for people to use".
What are the implications for drivers?
It is already an offence for drivers to proceed down a closed carriageway (a lane marked with a red "X"). Indeed, a recent survey showed that over 23% of road users disregard the red "X" and drove in closed lanes. Drivers falling foul of this face penalties of a fine, 3 penalty points and potentially disqualification from driving.
In circumstances when a collision occurs on a smart motorway drivers could find themselves facing prosecution for careless driving or dangerous driving and, of course in more serious cases, causing serious injury or death by dangerous driving and causing death by careless driving.
However, when considering offences such as careless or dangerous driving the court has to apply the objective test of a "reasonable driver" and not that of "the perfect driver" to the standard of driving.
With supporting expert evidence identifying the dangerous and/or complications of smart motorways a jury would be persuaded that a reasonable driver may themselves be confused, resulting in a collision.
Given that chief officials and MPs are themselves calling smart motorways "too complicated" and "simply not safe" it is certainly conceivable that, depending on the circumstances of the case, this could also be raised as a mitigating factor for sentencing purposes.
What happens next?
It was announced by Grant Shapps, the Transport Secretary that his department would conduct an urgent review into the safety of smart motorways with a view to drawing up a series of recommendations in the next few weeks.
The impact of this remains to be seen; however in light of the above, and with Highways England potentially facing judicial review of the decision to introduce such roads, it appears that no more "dynamic hard shoulder" motorways will be constructed. It is hoped that serious consideration is given to the viability of these motorways before more fatalities occur.
Authors: Kate Hargan, Senior Associate, Daniel David, Associate, and Luisa Lister, Professional Support Lawyer
 Extract from petition to scrap Smart motorways- https://petition.parliament.uk/petitions/230058
 Road Traffic Act 1988 section 36