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On Thursday 9 December, the Department for Transport’s (DfT) consultation on creating a Road Collision Investigation Branch (RCIB) closed. Whilst the outcome of the DfT’s consultation is expected to be published in early 2022, Clyde & Co’s response highlights a number of issues below.
Whilst road traffic collisions are currently investigated by discrete police forces for the purpose of investigating potential criminal liability or perhaps by accident reconstruction experts for the purpose of determining civil liability, no single body exists with an overarching remit to investigate the causes of road traffic collisions more generally, suggesting the opportunity to learn from – and to prevent future incidence – is either missed or not fully exploited.
As the imminent deployment of Automated Vehicles (AVs) on British roads is likely to bring novel causes of collisions, such as how users respond to transition demands from AVs as the dynamic driving task transfers from the automated driving system to the user in charge (and vice versa), the safety of all road users could be compromised if a single organisation were not to be charged with responsibility for (a) investigating developments in this emerging technology, and (b) making recommendations for intervention or remedial action to safeguard against future casualties.
In any event, as road collisions lead to significantly more deaths in Great Britain than collisions involving other modes of transport – and accident investigation branches have been in operation for decades covering air accidents, marine accidents and, more recently, rail accidents – the ongoing absence of an RCIB seems increasingly difficult to justify.
We consider that an RCIB should never apportion blame or liability. Instead, we consider that it must only establish causation between potentially competing causes of an accident, rather than overreaching by straying into blame or liability. We, therefore, opposed creating an exception if an RCIB considered the attribution of blame was necessary to achieve its objective of improving safety.
Instead, we envisage the role of any AIB, including an RCIB, to be exclusively inquisitorial, i.e. akin to a coroner who undertakes a specialist inquiry into seemingly non-natural deaths that is intended to substantiate whether a death was indeed non-natural, and establish the causes and circumstances surrounding it. The important distinction between an accusatorial process, such as a criminal trial, and an inquisitorial process, such as a coroner’s investigation and inquest, was articulated in R. v South London Coroner Ex p. Thompson (1982) 126 S.J. 625:
“… An inquest is a fact finding exercise and not a method of apportioning guilt. The procedure and rules of evidence which are suitable for one are unsuitable for the other. In an inquest it should never be forgotten that there are no parties, there is no indictment, there is no prosecution, there is no defence, there is no trial, simply an attempt to establish facts…"
It seems all AIBs (bar, perhaps, the Rail Accident Investigation Branch) were established before the general right of access under section 1 of the Freedom of Information Act 2000 and the Freedom of Information (Scotland) Act 2002 entered force on 1 January 2005.
We question whether any RCIB – in common with all other AIBs – should now be afforded immunity from FOIA requests, given AIBs are carrying out a public function by undertaking safety investigations in the public interest. Whilst seemingly within the scope of section 41 (information provided in confidence), it may become unworkable for an RCIB to apply exemptions to individual requests, given the high incidence of road traffic collisions and the growing frequency with which FOIA requests are being made. A general immunity may mean no additional resources are required to consider the scope and application of absolute or qualified FOIA exemptions comprising section 30 (investigations and proceedings), section 31 (law enforcement), section 40 (personal information) and section 41 (information provided in confidence).
For further information, or to discuss any matters arising, please do not hesitate to get in touch with our head of motor, or your usual Clyde & Co contact.
*This content was written by BLM prior to its merger with Clyde & Co*