E-scooters- eco revolution or criminal menace?

The use of e-scooters[1] is becoming increasingly popular, with more than 100 hire schemes in operation worldwide and a market estimated to be worth up to $50 billion by 2025[2]. However, current experience with the developing technology has raised important safety issues and significant questions remain over appropriate insurance requirements.

The future of transport

On 16 March 2020 the UK Department for Transport (DfT) launched its “Future of Transport Regulatory Review”[3]. A key aspect of this review was to consider whether micro-mobility vehicles, such as e-scooters, should legally be allowed on public roads and, if so, what vehicle and user requirements would be appropriate to ensure public safety.

In May 2020, the DfT consulted on urgent legislation to allow trials of rental e-scooters to commence earlier across the UK and more widely than had been proposed, reflecting the need to mitigate reduced public transport capacity during the pandemic[4]. On 4 July 2020, the necessary changes to legislation came into force to allow the trials to commence. Those trials remain ongoing and are not scheduled to conclude until October 2021.

Within the confines of the trials, e-scooters were to be covered by insurance provided by the rental provider. Users would be required to hold a driving licence in some form, either full or provisional, thereby allowing use of the trial vehicles from the age of 16. Use of helmets was recommended but not made compulsory.  The trial vehicles would be able to use roads and cycle lanes and tracks, but not motorways or pavements. Finally, e-scooters would be exempt from vehicle registration and licencing/road tax obligations.

A pathway to crime?

However, the trials have faced significant challenges due to the reported misuse of  e-scooters, which have posed risks to both users and pedestrians alike. One scheme ran into difficulties when two teenagers were seen riding hired scooters on a dual carriageway with a 70mph speed limit, and a shopping centre put up warning signs after claims that customers were being “terrorised”. A second trial in Hartlepool was abandoned entirely. Since then, the scooters have been linked to shoplifting, drug dealing and escaping arrest[5].

Freedom of information requests to 20 areas set for pilot schemes have shown apparent links between e-scooter use and criminal activity. Norfolk police recorded more than 120 offences involving e-scooters, including one being used to tow a trailer along a road while "swerving from side to side"[6]. In London, the Metropolitan Police recorded more than 200 incidents last year and seized more than 150 devices. In Merseyside, police recorded more than 100 incidents involving the scooters last year and have seized 94 this year alone. One report of a gun crime described it as an "allegation of discharge by person on scooter"[7].

Despite these teething problems, the trials have continued to roll out across the UK, as well as the use of privately purchased e-scooters. Yet, it remains illegal to use such private e-scooters on public roads or pavements. Riders who breach this face a £300 fixed-penalty notice and 6 points on their driving licence. An incident leading to the injury or death of someone whilst riding one, could result in prosecution for very serious offences such as causing death by careless driving or dangerous driving. Furthermore, those riding dangerously or whilst under the influence of alcohol or drugs can also be convicted of offences that could lead to imprisonment.

In December 2019, a 28-year-old man became the first person in the UK to be charged with drink driving on an e-scooter when he crashed into a moped in London whilst under the influence of alcohol, causing injury to both the driver of the moped and pillion passenger[8]. The defendant was disqualified from driving for 16 months and ordered to pay £3,367.96 in compensation to those injured.

All of the above presents a number of interesting questions. What is considered careful and competent when riding an e-scooter? Should a user be subject to a competency test similar to the compulsory basic training carried out by riders of motorcycles and mopeds? Should there be an additional class added to the user’s driving?  Currently, for those wishing to participate in an approved e-scooter trial, there is a requirement for a full or provisional UK driving licence, but no additional lessons or testing.

Insurance issues

What is of significant concern is the lack of clarity around the insurance provision for these vehicles. Within hire schemes operating in England, the hirer carries the responsibility for insurance. However, for those privately purchased, and thus illegally operated, e-scooters there are currently no requirements to display registration plates or carry a compulsory motor insurance policy.

Perversely, those injured by illegally operated e-scooters may find pursuing a personal injury claim to be more complicated than if they had been hit by a larger motor vehicle. With no insurance in place, injured parties would have to refer the claim to the Motor Insurers Bureau (MIB). However, this stop-gap solution is not feasible in the long term, with the MIB itself critical of the lack of information in this area.

It has previously been suggested that whilst insurance should be mandatory, it could be possible for e-scooter specific policies to be created and purchased. The speed of an e-scooter is significantly lower than a car, weighs far less, and there are no passengers: it may not be necessary to require the same level of coverage.  However, there is no doubt that e-scooters do pose a risk to both other users and pedestrians which will need to be priced into policies appropriately.  Similarly, any insurer offering cover for e-scooters may wish to place exclusions on their potential liability, such as making it a condition that the policyholder carries the necessary licence, wears appropriate safety equipment, etc when in use.

Is the genie out of the bottle?

What should provide a clearer indication of the way forward is the report expected in May 2022 following the conclusion of the trials. It is certainly arguable that the e-scooter genie is out of the bottle, particularly for younger generations. If e-scooters are to be encouraged as an alternative mode of transport, either as greener travel or to reduce the numbers using public transport in response to the COVID-19 pandemic, then regulation needs to be balanced carefully. The feedback from the e-scooter trials should enable the government to consider the legislation and regulatory requirements to make e-scooters a success on UK roads.

Authors: Kate Hargan, Senior Associate, and Luisa Lister, Professional Support Lawyer