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Law Commission

Scottish Law Commission

Reforming the law

Automated Vehicles: joint report

HC 1068

SG/2022/15

Law Com No 404


Scot Law Com No 258


Law

Scottish Law Commission

Commission

Reforming the law

Law Commission of England and Wales

Law Commission No 404

Scottish Law Commission

Scottish Law Commission No 258

Automated Vehicles:

joint report

Presented to Parliament pursuant to section 3(2) of the Law Commissions Act 1965

Laid before the Scottish Parliament by the Scottish Ministers

Ordered by the House of Commons to be printed on 25 January 2022

HC 1068

© Crown copyright 2022

This publication is licensed under the terms of the Open Government Licence v3.0 except where otherwise stated. To view this licence, visit nationalarchives.gov.uk/doc/open-government-licence/version/3.

Where we have identified any third party copyright information you will need to obtain permission from the copyright holders concerned.

This publication is available at www.gov.uk/official-documents.

Any enquiries regarding this publication should be sent to us at Enquiries@lawcommission.gov.uk or info@scotlawcom.gov.uk

Print ISBN 978-1-5286-3149-5

E02712832 01/22

Printed on paper containing 75% recycled fibre content minimum

Printed in the UK by the HH Associates Ltd. on behalf of the Controller of Her Majesty's Stationery Office

The Law Commissions

The Law Commission of England and Wales and the Scottish Law Commission were set up by the Law Commissions Act 1965 for the purpose of promoting the reform of the law.

The Law Commissioners of England and Wales are:

The Right Honourable Lord Justice Green, Chair

Professor Sarah Green

Professor Nick Hopkins

Professor Penney Lewis

Nicholas Paines QC

The Chief Executive of the Law Commission of England and Wales is Phil Golding.

The Law Commission is located at 1st Floor, Tower, 52 Queen Anne's Gate, London

SW1H 9AG.

The Scottish Law Commissioners are:

The Right Honourable Lady Paton, Chair

David Bartos

Professor Gillian Black

Kate Dowdalls QC

Professor Frankie McCarthy

The Interim Chief Executive of the Scottish Law Commission is Charles Garland.

The Scottish Law Commission is located at 140 Causewayside, Edinburgh, EH9 1PR.

The terms of this report were agreed on 8 December 2021

The text of this report is available on the Law Commission's website at

https://www.lawcom.gov.uk/project/automated-vehicles/

https://www.scotlawcom.gov.uk/law-reform/law-reform-projects/joint-projects/automated-vehicles/

iv


Contents

LIST OF ABBREVIATIONS

GLOSSARY

The rationale for regulating automated vehicles

Preserving flexibility

Our terms of reference

A new regulatory framework

What is an “automated vehicle” (AV)?

Road vehicles

A focus on passenger transport

Areas outside the scope of this report

Our consultation

Consultation Paper 1

Consultation Paper 2

Consultation Paper 3

Structure of this report

When should a vehicle be considered as able to drive itself safely?

Safety assurance: initial authorisation and in-use safety

Regulating marketing about driving automation

New legal actors: the user-in-charge and NUIC operator

The duty of candour

Interference by third parties

Civil liability

Recommendations

Appendices

Additional material published alongside this report

Acknowledgements and thanks

The team working on this review

A new vocabulary

The SAE Taxonomy

The SAE Levels

The dynamic driving task

The operational design domain (ODD)

Automated vehicles, systems and features

“Self-driving”

Automated Lane Keeping Systems (ALKS)

Explaining driving automation to the public

“Road or other public place”

Three new legal actors

Authorised Self-Driving Entity (ASDE)

The user-in-charge

The NUIC operator

New regulatory schemes

The Secretary of State’s safety standard

Approval and authorisation as self-driving

In-use safety regulation

NUIC operator licensing

A new Automated Vehicle Act

Devolution

The need for a joint approach

Recommendation 1.

Overarching themes

Equality

Accessibility

Data

DRIVING

Why the line matters

Self-driving and monitoring

The definition in the Automated and Electric Vehicles Act 2018

“Monitoring” in the SAE Taxonomy

Our approach to monitoring in Consultation Paper 3

Conclusion: an individual does not need to monitor

Receptivity of a user-in-charge to a transition demand

Requirements for transition demands

A clear, multi-sensory signal

Sufficient time to gain situational awareness

The consequences of failing to take over control

Responding to events in the absence of a transition demand

The SAE view: responding to system failures, such as a tyre blow-out

The German view: “obvious circumstances”

France and Australia: responding to emergency vehicles

Our proposal in Consultation Paper 3

Conclusion: no requirement to respond without a transition demand 46

The monitoring test for vehicles without a user-in-charge

Recommendation: writing the threshold for self-driving into law

Recommendation 2.

Permitted activities for the user-in-charge

Guidance in the Highway Code

Prohibited activities

Recommendation 3.

Recommendation 4.

Preventing dangerous interventions by the user-in-charge

Recommendation 5.

Possible safety standards: consultees’ views

Option C: Safer than the average human driver

Option A: As safe as a competent and careful driver

Option B: As safe as a human driver who does not cause a fault accident

All three standards too low

Equity in the distribution of risk

Standards must be measurable

Safety standards: summarising the debate

Who should set a safety standard?

How would a safety standard be used?

The role of the safety standard pre-deployment

The role of the safety standard when vehicles are in-use

Our recommendation

Recommendation 6.

Recommendation 7.

Overview of our proposed approval and authorisation system

Stage 1: Approval stage

Two paths to approval

Approving an AV, not an ADS

GB whole vehicle approvals

Domestic AV technical approval

Recommendation 8.

Stage 2: Authorisation

The authorisation authority

Why is the authorisation stage necessary?

Support for a second authorisation stage

Authorisation outcomes: the effect of failing to gain authorisation

Different outcomes for different features?

Recommendation 9.

Authorisation assessment

The safety case

An equality impact assessment

Data

Registering the ASDE

ASDE requirements

Duties on the ASDE arising from authorisation

Recommendation 10.

Recommendation 11.

Recommendation 12.

Recommendation 13.

Recommendation 14.

Recommendation 15.

A new legislative framework

Appeals

Recommendation 16.

Recommendation 17.

A new statutory scheme

Recommendation 18.

Should AV authorisation and the in-use scheme have the same regulator?

In-use safety scheme: responsibilities

Evaluating the safety of AVs

Recommendation 19.

Recommendation 20.

Investigating traffic infractions involving AVs

Recommendation 21.

Recommendation 22.

Communication with users

Recommendation 23.

New powers to apply regulatory sanctions

Existing powers under the General Product Safety Regulations 2005

Warnings

Civil penalties

Redress orders

Compliance orders

Suspending and withdrawing authorisation

Restorative conferences

Appeals

Recommendation 24.

Recommendation 25.

Recommendation 26.

Recommendation 27.

Recommendation 28.

Search warrant powers

Recommendation 29.

Should the regulator have a consumer protection role?

Open to external views

Recommendation 30.

A forum to collaborate on road rules

Consultees’ views

Conclusion

Recommendation 31.

Collision Investigation

Recommendation 32.

Cybersecurity

Recommendation 33.

Driving automation that is not self-driving

The current law

Experience in other jurisdictions

Two new criminal offences

“Commercial practice”

Offence 1: Describing unauthorised driving automation as “selfdriving”

Recommendation 34.

Offence 2: Misleading drivers that a vehicle does not need to be monitored

Recommendation 35.

Online marketing across jurisdictions

Recommendation 36.

Enforcement

Recommendation 37.

Recommendation 38.

CHAPTER 8: THE ROLE OF A USER-IN-CHARGE

The definition of a user-in-charge

An individual

In position to operate the vehicle controls

In the vehicle

An ADS feature is engaged

Recommendation 39.

Qualified and fit to drive

Consultation Paper 3 proposals

Support for requirements to be qualified and fit to drive

Recommendation 40.

Causing or permitting an unfit or unqualified person to be a user-in-charge

Recommendation 41.

Being carried without a user-in-charge

The mental element

Recommendation 42.

What if an AV requiring a user-in-charge is made to drive empty?

Provisionally licensed drivers

Recommendation 43.

The immunity from dynamic driving offences

The French approach

What is dynamic driving?

The user-in charge’s immunity: recommendation

“Engaged” or “correctly engaged”?

Recommendation 44.

The liability of a user-in-charge for non-dynamic driving offences

Insurance

Roadworthiness

Parking

Duties following accidents

Ensuring child passengers wear seatbelts

Loading

Route planning

Recommendation 45.

Communicating the dynamic/non-dynamic distinction to users

Committing dangerous driving offences through non-dynamic failures 155

The effect of section 40A of the Road Traffic Act.

A new offence for users-in-charge

Recommendation 46.

Drafting the dynamic/non-dynamic distinction

Criminal liability following handover

A specific defence where problems are brought about by the ADS

Recommendation 47.

Failing to respond to a transition demand

Reacquiring driver obligations

Recommendation 48.

Medical emergencies

Recommendation 49.

Professional users-in-charge and passenger services

CHAPTER 9: NUIC OPERATOR LICENSING

Policy development: From HARPS operators to NUIC operators

Consultation Paper 2

Consultation Paper 3

The need for a NUIC operator to oversee the journey

Terminology

What oversight duties will arise?

Remote assistance compared to remote driving

Is the remote assistant role safety-critical?

The challenges of running a remote operations centre

Regulating the organisation or the individual?

Other NUIC operator duties

Maintenance

Insurance

Safety-critical updates and cybersecurity

Other duties: conclusion

Four models of NUIC operation

Model 1: Combining the ASDE and operator roles

Model 2: A separate NUIC operator

Model 3: Privately-owned NUIC vehicles

Model 4: NUIC operation confined to a geographically limited location 177

Recommendation: All NUIC vehicles to have a licensed operator

Recommendation 50.

Recommendation: Requirements for being a NUIC operator

Good repute

Financial standing

An establishment in Great Britain

Demonstrating professional competence

Recommendation 51.

Recommendation 52.

Recommendation 53.

Recommendation: submitting a safety case

A potential NUIC operator must submit a safety case

Recommendation 54.

Recommendation: setting licence conditions

Recommendation 55.

Recommendation: powers of the regulator

Regulatory sanctions

Recommendation 56.

Power to request information

Recommendation 57.

Inspection powers

Recommendation 58.

How long should a NUIC operator licence last?

Recommendation 59.

The role of criminal offences and traffic management penalties

Who should administer NUIC operator licensing?

Consultees’ views

Conclusion

Recommendation 60.

Issues not addressed in this report

Tier 2 duties for freight services

Remote driving

CHAPTER 10: NUIC PASSENGER SERVICES

The current law

The challenges of running passenger services without a driver

Passenger services in other jurisdictions

An interim permit procedure for NUIC passenger services

The need for more evidence

Devolution

A new procedure to grant interim passenger permits

Charging fares

Would vehicles need to be authorised?

Accessibility

An obligation to publish information on safeguarding and accessibility 200

Taxi and private-hire type services: the need for consent

NUIC passenger services and bus service regulation

Consultation with road authorities and the emergency services

Recommendation 61.

Enforcing the requirement for an interim passenger permit

Recommendation 62.

National accessibility standards and a statutory advisory panel

Recommendation 63.

Recommendation 64.

Longer term options for passenger services

CANDOUR

What we said in Consultation Paper 3

Reasons for the new offences

Provisional proposals

Support from consultees

When would the offences apply?

Information to both the authorisation authority and the in-use regulator 212

Extending the offence to NUIC operators as well as ASDEs

A continuing duty to provide information?

Defining “safety-relevant information”

Misrepresentations and non-disclosures to overseas regulator

Due diligence defence

The criminal liability of senior managers

Alternative definitions of senior management

“Consent or connivance”

The nominated person who signs the safety case

Criminal liability of senior managers: the overall effect

A new offence for other employees?

Aggravated offence for death or serious injury

Aggravated offences in road traffic law

Our provisional proposal

Consultees’ views

Our conclusion

A duty of fair presentation?

Prosecution

Penalties

Recommendation 65.

Summary of recommended changes to wrongful interference offences

Tampering with the mechanism

Recommendation 66.

Tampering with infrastructure

Unauthorised vehicle taking

England and Wales

Recommendation 67.

Scotland

Causing danger to road users

England and Wales

Scotland

Should section 22A extend to Scotland?

New aggravated offence of causing death by wrongful interference

Responses to Consultation Paper 3

Recommendation 68.

Mental state: intent to interfere

Recommendation 69.

An “approved work” defence

Automated and Electric Vehicles Act 2018: a brief overview

Injury to the insured person

Secondary claims

Listing and authorisation

Recommendation 70.

Contributory negligence and causation

Contributory negligence

Causation

Consultation Paper 3 proposals

Responses to Consultation Paper 3

Conclusion

Secondary claims under the Consumer Protection Act 1987

Problems with how product liability law treats software

Not essential for the introduction of AVs

Consultation Paper 3 proposal

Responses to Consultation Paper 3

Recommendation 71.

Uninsured vehicles

Recommendation 72.

Data retention

Our proposals

Responses to Consultation Paper 3

Conclusion

Recommendation 73.

Data sharing

Consultees’ views

Conclusion

Recommendation 74.

Recommendation 75.

List of Abbreviations

ABI: Association of British Insurers.

ADS: Automated Driving System.

ADSE: Automated Driving System Entity.

AEV Act: Automated and Electric Vehicles Act 2018.

ALKS: Automated Lane Keeping System.

ASDE: Authorised Self-Driving Entity.

AV: Automated Vehicle.

AVP: Automated Valet Parking.

BPRs: Business Protection from Misleading Marketing Regulations 2008, SI No 1276.

BSI: British Standards Institution.

CAV: Connected and Autonomous Vehicle.

CCAV: Centre for Connected and Autonomous Vehicles.

CP1: Consultation Paper 1.

CP2: Consultation Paper 2.

CP3: Consultation Paper 3.

CPRs: Consumer Protection from Unfair Trading Regulations 2008, SI No 1277.

DDT: Dynamic Driving Task.

DfT: Department for Transport.

DPTAC: Disabled Persons Transport Advisory Committee.

DSSAD: Data Storage Systems for Automated Driving.

DVSA: Driver and Vehicle Standards Agency.

EDR: Event Data Recorder.

GB: Great Britain.

GDPR: United Kingdom General Data Protection Regulation (EU) 2016/679.

GPSR: General Product Safety Regulations 2005, SI No 1803.

HARPS: Highly Automated Road Passenger Service.

HGV: Heavy Goods Vehicle.

HSW Act 1974: Health and Safety at Work etc Act 1974.

IEEE: Institute of Electrical and Electronics Engineers.

IVA: Individual vehicle approval.

MIB: Motor Insurers’ Bureau.

MIT: Massachusetts Institute of Technology.

MSU: Market Surveillance Unit.

NUIC: No User-in-Charge

NUIC operator: No User-in-Charge vehicle operator.

ODD: Operational Design Domain.

OECD: Organisation for Economic Co-operation and Development.

OEM: Original Equipment Manufacturer.

PSV: Public Service Vehicle.

RoSPA: Royal Society for the Prevention of Accidents.

SAE: Society of Automotive Engineers International.

SMMT: Society of Motor Manufacturers and Traders.

StVG: Strassenverkehrsgesetz (the German Road Traffic Act).

TfL: Transport for London.

TfWM: Transport for West Midlands.

UIC: User-in-charge.

UNECE: United Nations Economic Commission for Europe.

VCA: Vehicle Certification Agency.

Glossary

ABI/Thatcham Report: Association of British Insurers (ABI) and Thatcham Research, Defining Safe Automated Driving. Insurer Requirements for Highway Automation (September 2019).

ALKS Regulation: UN Regulation 157 on uniform provisions concerning the approval of vehicles with regard to Automated Lane Keeping Systems E/ECE/TRANS/505/Rev.3/Add.156 (ALKS Regulation). It was made under the procedures set out in the UNECE 1958 Agreement (below) and entered into force on 22 January 2021.

Approval authority: Under the UNECE 1958 Agreement (described below), each Contracting Party must specify an approval authority. The approval authority has responsibility for issuing approvals pursuant to a UN Regulation, though it may designate technical services to carry out testing and inspections on its behalf. The approval authority for the UK is the Vehicle Certification Agency (VCA).

Authorisation authority: A new role recommended in this report. It will be the government agency responsible for the second stage (authorisation) of AV safety assurance in Great Britain. When authorising the vehicle, the authorisation authority will assess each of the vehicle’s ADS features and specify those which are “self-driving”. The authorisation authority will also assess whether the entity putting the vehicle forward for authorisation has the reputation and financial standing required to be an ASDE. See Chapter 5.

Automated Driving System (ADS): A term used in the SAE Taxonomy to describe a vehicle system that uses both hardware and software to perform the entire dynamic driving task on a sustained basis.

Automated Driving System Entity (ADSE): We used this term in Consultation Papers 1 and 3 to refer to the entity we now call an Authorised Self-Driving Entity (ASDE) (see below).

Automated Driving System (ADS) feature: A part of an ADS designed to operate in a particular operational design domain. As single automated vehicle may have several features: see Chapter 2.

Automated Lane Keeping System (ALKS): An ADS feature which steers and controls vehicle speed in lane for extended periods on motorway-type roads. See Chapter 2.

Authorised Self-Driving Entity (ASDE): A role recommended in this report. It is the entity that puts an AV forward for authorisation as having self-driving features. It may be the vehicle manufacturer, or a software designer, or a joint venture between the two. We discuss the ASDE role and its associated obligations in Chapter 5. We previously referred to it as an Automated Driving System Entity (ADSE).

Automated vehicles: A general term used to describe vehicles which can drive themselves without being controlled or monitored by an individual for at least part of a journey. They have an ADS able to perform the entire dynamic driving task.

Commercial practice: Defined in the Consumer Protection from Unfair Trading Regulations 2008 as “any act, omission, course of conduct, representation or commercial communication (including advertising and marketing) by a trader, which is directly connected with the promotion, sale or supply of a product to or from consumers, whether occurring before, during or after a commercial transaction (if any) in relation to a product”.

Conditional automation: A term used in the SAE Taxonomy to describe an automated driving system which can perform the entire dynamic driving task but with the expectation that a user will be receptive and respond appropriately to requests to intervene and to certain failures affecting the vehicle: SAE Level 3.

Consultation Paper 1: The first consultation paper in the joint review of automated vehicles by the Law Commission and Scottish Law Commission. It was published in November 2018 and is available at: https://www.lawcom.gov.uk/project/automated-vehicles/.

Consultation Paper 2: The second consultation paper in the joint review of automated vehicles by the Law Commission and Scottish Law Commission. It was published in October 2019 and is available at: https://www.lawcom.gov.uk/project/automated-vehicles/.

Consultation Paper 3: The third consultation paper in the joint review of automated vehicles by the Law Commission and Scottish Law Commission. It was published in December 2020 and is available at: https://www.lawcom.gov.uk/project/automated-vehicles/.

Cybersecurity Regulation: UN Regulation 155 on uniform provisions concerning the approval of vehicles with regards to cybersecurity and cyber security management system E/ECE/TRANS/505/Rev.3/Add.154. It was made under the procedures set out in the UNECE 1958 Agreement (below) and entered into force on 22 January 2021.

Driver support: Driving automation features such as adaptive cruise control or lane changing features which support the driver. The driver is still responsible for the dynamic driving task, including monitoring the environment.

Driving automation: A generic term used in the SAE Taxonomy to apply to all six levels of automation. It covers the full range of driving technology, from driver support features to automated driving features capable of carrying out the whole dynamic driving task.

Dynamic Driving Task (DDT): A term used in the SAE Taxonomy to describe the real-time operational and tactical functions required to operate a vehicle in on-road traffic. It includes steering, accelerating and braking together with object and event detection and response. See Chapter 2.

Fault accident: An accident where, if a human driver had driven the car instead of an ADS, the driver would be held liable for causing the accident in the civil law of negligence.

GB whole vehicle approval: We use this term to refer to the three domestic schemes to approve vehicles in Great Britain: individual vehicle approvals (IVAs), GB small series approvals and GB Type Approval. See Chapter 5.

Haptic: Involving the transmission of information through the sense of touch. Haptic alerts may (for example) shake the seat or vibrate the seat belt.

HARPS: Highly automated road passenger services. We used this term in Consultation Paper 2 to refer to a service which uses highly automated vehicles to supply road journeys to passengers without a human driver or user-in-charge. In this report we discuss the regulation of such passenger services through interim passenger permits, as set out in chapter 10.

HF-IRADS: Human Factors in International Regulations for Automated Driving Systems group position paper submitted on 18 September 2020 to the Global Forum for Road Traffic Safety.

Highly automated vehicle: A term used in the SAE Taxonomy to describe a vehicle equipped with an automated driving system which can perform the dynamic driving task without requiring a user to be receptive to requests to intervene. Also known as SAE Level 4.

Human factors research: The study of how humans behave, both physically and mentally, in relation to particular environments, systems, products or services. Also sometimes referred to as ergonomics.

Individual vehicle approval (IVA): The approval scheme for vehicles and trailers which have been imported, assembled or manufactured as individual vehicles. The scheme checks that vehicles meet required technical, safety and environmental standards. The Driver and Vehicle Standards Agency (DVSA) administers the scheme in Great Britain.

Interim passenger permit: A new provision recommended in this report. The permit would be granted by ministers for passenger services using NUIC vehicles. See chapter 10.

In-use regulator: A new role recommended in this report. The in-use regulator will have statutory duties and powers to maintain in-use safety once AVs are deployed on GB roads. See Chapter 6.

Minimal risk condition: A term used in the SAE Taxonomy to describe a stable, stopped condition to which a user or an ADS may bring a vehicle to reduce the risk of a crash when a given trip cannot or should not be continued.

No user-in-charge (NUIC) vehicle: A new category recommended in this report. It refers to a vehicle equipped with one or more ADS features designed to perform the entire dynamic driving task without a user-in-charge.

Operational design domain (ODD): A term used in the SAE Taxonomy to describe the domain within which an automated driving system can drive itself. It may be limited by geography, time, type of road, weather or by some other criteria.

Provisional GB Type Approval: The interim scheme in place of EU whole vehicle type approval since 1 January 2021 following the UK’s exit from the EU. It is expected that in 2022, a comprehensive GB Type Approval scheme will replace the provisional scheme.

Remote oversight: Using connectivity to allow a human to oversee vehicles even if they are not in the vehicle. It refers to tasks conducted by staff while NUIC vehicles are in use, such as identifying unexpected objects and managing emergencies. See Chapter 9.

Risk mitigation manoeuvre: A manoeuvre which is sufficient to reduce the risk of a crash, if the user-in-charge fails to respond to a transition demand. In Chapter 3 we explain that what is sufficient would be set by regulators.

SAE Taxonomy: Society of Automotive Engineers International, J3016 Taxonomy and Definitions for Terms Related to Driving Automation Systems for On-Road Motor Vehicles, It was first published in 2014 and last revised, in collaboration with the International Standards Organisation (ISO), in April 2021.

Safety driver: A person who, as part of their employment, test drives vehicles equipped with driving automation technologies.

Self-driving features: Under the scheme outlined in Chapter 5, the authorisation authority would specify that an ADS feature is self-driving. The authority must be satisfied that the feature can control the vehicle so as to drive safely and legally, even if an individual is not monitoring the driving environment, the vehicle or the way that it drives. Once a vehicle is authorised as having a self-driving feature, and that feature is engaged, the human in the driving seat would no longer be responsible for the dynamic driving task.

Small series type approval: An approval scheme with technical and administrative requirements commensurate with smaller production runs. The UK’s approval authority for small series type approvals is the VCA.

Society of Automotive Engineers International (SAE): A global association of engineers and technical experts in the aerospace, automotive and commercial-vehicle industries. Its taxonomy established six levels of driving automation in technical document J3016.

Society of Motor Manufacturers and Traders (SMMT): A trade association representing more than 800 automotive companies in the UK.

Software Update Regulation: UN Regulation 156 on uniform provisions concerning the approval of vehicles with regards to software updates and software update management system E/ECE/TRANS/505/Rev.3/Add.155. It was made under the procedures set out in the UNECE 1958 Agreement (below) and entered into force on 22 January 2021.

Transition demand: An alert issued by an ADS to the user-in-charge to take over the dynamic driving task, communicated through visual, audio and haptic signals, which gives the user-in-charge a transition period within which to respond. Absent a response, the ADS performs a risk mitigation manoeuvre bringing the vehicle to a stop. This term is also used in UN Reg 157 on Automated Lane Keeping Systems, to refer to a “logical and intuitive procedure to transfer the Dynamic Driving Task (DDT) from the system (automated control) to the human driver (manual control)”.

Transition period: The period of time between the start of the transition demand and the time when the user-in-charge is expected to take over the dynamic driving task.

Type approval: Type approval is the confirmation that production samples of a type of vehicle, vehicle system, component or separate technical unit meets specified requirements. The process involves the testing of production samples and the evaluation of the measures in place to ensure conformity of production. Once type approval is given by an approval authority it allows the manufacturer to produce the vehicle type in an unlimited series, providing vehicles continue to meet the specified requirements.

United Nations Economic Commission for Europe (UNECE): The organisation was established in 1947 to promote economic cooperation and integration among its member states. The UNECE provides a multinational platform for policy dialogue, negotiation of international legal instruments and development of regulations and norms. It administers the UNECE 1958 Agreement (below).

UNECE 1958 Agreement: An international agreement governing the approval of motor vehicles in 56 countries. It was agreed in 1958 and has since been revised three times. The full title and citation for the third revision is Agreement concerning the Adoption of Harmonized Technical United Nations Regulations for Wheeled Vehicles, Equipment and Parts which can be Fitted and/or be Used on Wheeled Vehicles and the Conditions for Reciprocal Recognition of Approvals Granted on the Basis of these United Nations Regulations (Revision 3) E/ECE/TRANS/505/Rev.3”. This is referred to in the report as the “revised 1958 agreement”. For the text, see https://unece.org/fileadmin/DAM/trans/main/wp29/wp29regs/2017/E-ECE-TRANS-505-Rev.3e.pdf.

User-in-charge: An individual who is in the vehicle and in position to operate the driving controls while a self-driving ADS feature is engaged. The user-in-charge is not responsible for the dynamic driving but must be qualified and fit to drive. They might be required to take over following a transition demand. They would also have obligations relating to non-dynamic driving task requirements including duties to maintain and insure the vehicle, secure loads carried by the vehicle and report accidents. An automated vehicle would require a user-in-charge unless it is authorised to operate without one. See Chapter 8.

xxii


been asked by the Centre for Connected and Autonomous Vehicles (CCAV) 1to review the law relating to automated vehicles (AVs). This report presents our recommendations for a new regulatory framework to govern the introduction and continuing safety of AVs on roads or other public places in Great Britain (GB).

THE RATIONALE FOR REGULATING AUTOMATED VEHICLES

Preserving flexibility

OUR TERMS OF REFERENCE

A new regulatory framework

To consider where there may be gaps or uncertainty in the law, and what reforms may be necessary to ensure that the regulatory framework is fit for purpose, including but not limited to addressing the following issues:

What is an “automated vehicle” (AV)?

Road vehicles

A focus on passenger transport

Areas outside the scope of this report

OUR CONSULTATION

Consultation Paper 1

Consultation Paper 2

Consultation Paper 3

without intervention by anyone on board (such as remotely operated ridehailing).

STRUCTURE OF THIS REPORT

When should a vehicle be considered as able to drive itself safely?

threshold from driver assistance to “self-driving”. We recommend a high test for a vehicle to be authorised as having self-driving features: it must be safe even if a human user is not monitoring the driving environment, the vehicle or the way it drives. A user may be required to respond to a clear and timely signal to take over driving (a “transition demand”), but otherwise must not be relied on to respond to events or circumstances.

Safety assurance: initial authorisation and in-use safety

Regulating marketing about driving automation

New legal actors: the user-in-charge and NUIC operator

The duty of candour

Interference by third parties

Civil liability

Recommendations

Appendices

ADDITIONAL MATERIAL PUBLISHED ALONGSIDE THIS REPORT

ACKNOWLEDGEMENTS AND THANKS

THE TEAM WORKING ON THIS REVIEW

10


A NEW VOCABULARY

The SAE Taxonomy

The SAE Levels

Design intent v legal prescription

As a practical matter, it is not possible to describe or specify a complete test or set of tests which can be applied to a given ADS feature to conclusively identify or verify its level of driving automation. The level assignment rather expresses the design intention for the feature....29

The dynamic driving task

The operational design domain (ODD)

Automated vehicles, systems and features

A given driving automation system may have multiple features, each associated with a particular level of driving automation and ODD.36

“Self-driving”

In this report we largely endorse this definition, which embeds safety. Before being authorised, the authorisation authority must be satisfied that the vehicle is safe even if an individual is not monitoring the driving environment, the vehicle or the way it drives.

Automated Lane Keeping Systems (ALKS)

Explaining driving automation to the public

“Road or other public place”

The challenges of open access

THREE NEW LEGAL ACTORS

Authorised Self-Driving Entity (ASDE)

The user-in-charge

The NUIC operator

ASDE

Needed for all on-road AVs. Puts the AV forward for authorisation as having self-driving features and is legally responsible for the performance of the AV. Responsible for the safety case. Must be of good repute, and have appropriate financial standing in the UK.


Image 1

NEW REGULATORY SCHEMES

The Secretary of State’s safety standard

Approval and authorisation as self-driving

Approval
Authorisation

In-use safety regulation

NUIC operator licensing

A NEW AUTOMATED VEHICLE ACT

Devolution

The need for a joint approach

Recommendation 1.

The UK, Scottish and Welsh governments should work together to introduce a uniform scheme that will apply across Great Britain.

OVERARCHING THEMES

Equality

Responses to Consultation Paper 3

Before these vehicles can be used on Britain’s roads, there needs to be extensive testing to provide evidence that autonomous vehicles can identify individuals of all races and ethnicities in different daylight conditions, individuals wearing robes and skirts (if the system works by identifying leg movements) and individuals in different kinds of wheelchairs and mobility scooters.

This database could include data that helps ensure all groups are treated equally, e.g. by documenting types of religious or cultural clothing that AV developers may otherwise have been unaware of, or how road crossing behaviour of visually-impaired people aided by guide dogs may differ from 'typical' behaviour, such that these permutations are engineered for.

Embedding equality within our recommendations

Accessibility

Responses to Consultation Paper 3

Accessibility should be one of the benefits that AV technologies can offer. People with hearing loss who are currently able to drive normal vehicles should find AVs an attractive alternative which will help to reduce the workload and which will introduce alert mechanisms that are adapted to their needs.

steering wheel adaptations and or the ability to drive using only hand controls or while seated in their own wheelchairs.

Embedding accessibility within our recommendations

Data

Current EU and UNECE initiatives

2.103 For each of the recorded elements, the DSSAD must record “at least” a date and time stamp. Although technically feasible, the DSSAD is not required to record location.

Data issues in this report

2.104 In Consultation Paper 3 we looked at the bare minimum of data that would be needed to make our proposals work. We concluded that the DSSAD (or other data storage system) would need to record location data. This proposal was strongly supported by consultees 92and now forms part of our recommendations.93

2.105 We also proposed that ASDEs should be under a legal duty to disclose information to insurers that is necessary to decide claims fairly and accurately. Again, the great majority of respondents agreed with us94 and it now forms part of our recommendations.95

Data issues not addressed in this report

2.106 However, many data issues are not addressed in this report. Particular concerns have been expressed about the adequacy of current collision detection systems.96 We received a detailed response from the International Telecommunications Union Focus Group on AI for Autonomous and Assisted Driving (FG-AI4AD), which looked at this issue in depth. The response points out that, if an AV collided with a pedestrian in the absence of human witnesses, there would be no clear way of establishing what had happened.97

2.107 Where a collision is detected, data will be needed to understand what went wrong. Again, the data which AVs are currently required to collect is likely to prove inadequate. 98A study for British Standards Institute recommended that AVs should record “digital commentary driving” (DCD) data streams. Following an incident this would allow investigators to understand (among other things) what the ADS “saw”, how the object was classified, and what predictions the system made about its movements. It is argued that, without this data, it will be difficult to learn from the incident to make improvements for the future.99 Although this data might be available, it is not required.

2.108 There is considerable work still to be done in developing standards for data collection concerning collisions and other incidents. There are also complex issues about how best to protect data and preserve privacy. Data is an area where more work is needed.

34


Chapter 3: The line between driver assistance and self-driving

WHY THE LINE MATTERS

if performed by a human driver, this would be dealt with as a regulatory matter. The issue would be resolved between the in-use regulator and the ASDE. The emphasis would be on understanding what happened and applying that learning to improve future safety.

vehicle to be authorised as having self-driving features: it must be safe even if a human user is not monitoring the driving environment, the vehicle or the way it drives. There are two interlinked parts of this definition: first, the vehicle must be safe; second, it must not rely on human monitoring.

SELF-DRIVING AND MONITORING

The definition in the Automated and Electric Vehicles Act 2018

“Monitoring” in the SAE Taxonomy

Our approach to monitoring in Consultation Paper 3

Conclusion: an individual does not need to monitor

RECEPTIVITY OF A USER-IN-CHARGE TO A TRANSITION DEMAND

Taxonomy illustrates the difference between monitoring and receptivity using an example:

A person who becomes aware of a fire alarm or a telephone ringing may not necessarily have been monitoring the fire alarm or the telephone.113

A logical and intuitive procedure to transfer the dynamic driving task (DDT) from the system (automated control) to the human driver (manual control). This request is given from the system to the human driver.115

REQUIREMENTS FOR TRANSITION DEMANDS

A clear, multi-sensory signal

Sufficient time to gain situational awareness

Is able to indicate to the driver - by means of visible, audible, tactile or otherwise perceptible signal - the need to retake manual control of the vehicle with a sufficient time buffer before it returns control of the vehicle to the driver (emphasis added).126

The conditions under which the system sends a take-back request to the driver... the transition period [defined as a maximum duration] 127 and the procedures for informing the driver.128

in an effective manner with sufficient lead time for the driver to safely assume dynamic control provision of a safe, predictable transition process.129

The consequences of failing to take over control

Level 3 and 4 systems

It may entail automatically bringing the vehicle to a stop within its current travel path, or it may entail a more extensive maneuver designed to remove the vehicle from an active lane of traffic and/or to automatically return the vehicle to a dispatching facility.135

The need to mitigate risk if the transition demand fails

RESPONDING TO EVENTS IN THE ABSENCE OF A TRANSITION DEMAND

The SAE view: responding to system failures, such as a tyre blow-out

The German view: “obvious circumstances”

France and Australia: responding to emergency vehicles

remain in condition and in position to immediately perform a take-back in order to perform the manoeuvres incumbent upon them pursuant to the provisions of this Code, in order to:

remain vigilant to respond to ADS requests, mechanical failure or emergency vehicles and regain control of the vehicle without undue delay when required.150

Our proposal in Consultation Paper 3

Consultation responses

Conclusion: no requirement to respond without a transition demand

THE MONITORING TEST FOR VEHICLES WITHOUT A USER-IN-CHARGE

RECOMMENDATION: WRITING THE THRESHOLD FOR SELF-DRIVING INTO LAW

Recommendation 2.

For a feature to be self-driving, the authorisation authority must be satisfied that it can control the vehicle so as to drive safely and legally, even if an individual is not monitoring the driving environment, the vehicle or the way that it drives.

Vehicles that rely on ADS features to issue transition demands to users-in-charge may be authorised as self-driving provided that the transition demand:

Vehicles should not be authorised as self-driving if an individual is expected to respond to objects or events in the external environment (such as low impact collisions and emergency vehicles) in the absence of a transition demand.

PERMITTED ACTIVITIES FOR THE USER-IN-CHARGE

Maintain physical and mental skills to safely exercise dynamic control of the vehicle... [and]

Refrain from activity other than driving if that activity may impede this response or is unsafe.. 157

Users should... Comply with applicable laws, including when performing activities other than driving. Prior to any road use, drivers should familiarise themselves with how to operate the vehicle and the requirements regarding activities other than driving.

Manufacturers should. Inform and educate drivers about their role in the safe operation of the vehicle. Refrain from misleading names, descriptions, or marketing that could encourage improper use of the automated driving system. and consider additional measures, as appropriate to ensure proper use of the automated driving system...

Contracting parties should... Consider appropriate domestic measures to address activity other than driving. and. the roles of driver education and driver testing in ensuring that drivers have the skills and knowledge necessary to manage the demands of new technologies.158

Guidance in the Highway Code

Prohibited activities

Recommendation 3.

Recommendation 4.

PREVENTING DANGEROUS INTERVENTIONS BY THE USER-IN-CHARGE

The issue is not confined to transition demands. If a driver’s steering input or acceleration occurs when they are not looking at the road, they may not intend to take over driving. So, although monitoring for driver attentiveness is a distinct issue, it is closely related to preventing unintentional take-overs.

Recommendation 5.

Safeguards against unwitting take overs should also be part of domestic GB typeapproval.

54


Chapter 4: Setting a safety standard

Driving safely is always a balance of safety and usefulness. The safest automated vehicle (and human driver) is the one that never leaves the garage. Industry, government and consumers must come together then to decide what safe driving means for a machine, and how we can measure conformance with that definition so that governments will feel comfortable providing a license to drive to an automated vehicle.170

The public are unlikely to accept an AV that acted in the same way as a human driver who caused death by dangerous driving. Furthermore, even if AVs are safer overall, they should not introduce greater risks for any particular group, such as pedestrians or cyclists.

POSSIBLE SAFETY STANDARDS: CONSULTEES’ VIEWS

Option C: Safer than the average human driver

Mobileye's position is that the standard mentioned in C is the most appropriate standard. Evidence shows that the average for a human driver to be involved in an accident is once every 50,000 hours of driving. Mobileye believes that a good and realistic goal for an AV, is to be achieve a better average than a human driver.

Ultimately, the aim should be to set clear blue water between the performance of an AV and the performance of a human. However, if too high a standard is set at the outset it will present an unachievable hurdle to obtain (and prove) pre-deployment. This would deny the public the productivity, transport cost and convenience gains AVs bring, and could restrict AV deployment to a limited number of domains and/or companies, reducing the benefit derived and market competition.

We support the view set out in an industry-wide standard, ISO/TR 4804:2020, which suggests a meaningful threshold should be a positive risk balance while avoiding unreasonable risks. The acceptance criteria in determining a positive risk balance should be based on traffic accident statistics that are representative of relevant traffic types and scenarios.

As the history of automotive has shown, continuous improvement and innovation in safety is a hallmark of the industry. Aided by data from in-use monitoring, it is expected that continuous improvement and innovation will result in automated vehicles that are even safer in the future.

Using a “positive risk balance” as a starting point

"Safer than the average human driver" is a reasonable starting point but there is also the option to sit between this and "safe as a competent and careful human driver" by adding a stretch percentage e.g. 20% safer than average. This will help reduce casualties, increase confidence and provide a better economic case.

Some modest degree of improvement... (may be 5 - 10%) is a reasonable starting point. However, year by year this standard should increase as technology should allow us to be safer over time. Starting at 5% better and then asking for another 5% every other year, etc.

The AV industry has promoted its technology as being much safer than a human driver and promising a big saving in road casualties, so they should be held to that. An average reduction in casualties (per km) travelled on the same categories of road of at least 75% should be required.

Option A: As safe as a competent and careful driver

RoSPA believes that automated vehicles must be as safe as a human driver in all situations. These vehicles must abide by traffic rules, avoid collisions and treat other road users with consideration. We do not believe that these vehicles should be deployed on our roads before they meet these standards. [Royal Society for the Prevention of Accidents]

A major selling point for investing in the development of automated vehicles is that they have the potential to make roads a safer place for all road users. It is our expectation that the minimum standards for assessing the safety of automated vehicles would be that they are at least ‘as safe as a competent and careful human driver’. [International Underwriting Association]

To accept anything less than competent and careful driving from an AV would not be in keeping with the proposed benefits of introducing AVs onto our roads. There is also the risk that if more accidents were allowed to happen, drivers would be dissuaded from believing that AVs are safe; this could result in significant long-term issues in take-up. [Direct Line Group]

Developments of the “careful and competent” standard

We advocate this high threshold to ensure that the advent of AVs results in a step-change improvement in road safety, and not merely an incremental advance. Our current standards of road safety are intolerably poor compared with other transport networks (rail, maritime and aviation), and it is the most vulnerable groups (e.g. children, pedestrians, cyclists etc) who suffer most from these failures.

Option B: As safe as a human driver who does not cause a fault accident

We believe that the public would demand much higher than average driving standards. What would be achieved by a competent and careful driver would need to be examined in detail, probably in court anyway, so the most practical approach is (b).

[Option B] is desirable but some compromise may be necessary to make it technically achievable. For example basing the definition of 'at-fault' on a machine-verifiable technical standard rather than existing law.

All three standards too low

Our Vision Zero approach to road safety aims to eliminate all deaths and serious injuries from London's transport network by 2041. To this end we would advocate for the highest level of safety possible. We would expect this to be safer than a competent and careful human driver and continually improving.

In 2019 in London, there were 3,147 deaths and serious injuries of pedestrians, cyclists and motorcyclists, versus 575 for car occupants. Automation has the potential to deliver a sea change in road safety for these vulnerable road users, and we aren’t currently seeing the level of focus and ambition here that we would like.

Human error has been attributed to causing nearly 90% of crashes. Of this number, over 40% of this fatality is attributed to alcohol consumption, drugs, distraction and fatigue. Therefore, humans should not be used as a yardstick as we are not trying to just reduce collision numbers with driverless cars, but eliminate it.

Ethics experts have put forward several reasons for why machines, more broadly, should be held to higher standards than humans - for instance, because an error in the machine’s algorithm will be magnified through machine learning in a way that human error would not or because it is more challenging to rectify and overturn these errors in complex models or because machines are inherently limited in recognising something as new when their model does not hold.

Some early research seems to support the view that a sizeable proportion of the public wants self-driving cars to be at least two orders of magnitude safer than conventional cars, akin to rail and air travel, which is what we would predict from risk acceptability in forms of transport involving novelty and a lack of control. People expect higher safety when they are putting their lives in the hands of others, and this may be further complicated with the addition of (possibly unaccountable) automation.

Equity in the distribution of risk

Regulators might have targets for safety, but members of the public may legitimately disagree especially if the beneficiaries of safety improvements are predominantly the users of ADS rather than shared by all road users.

Standards must be measurable

Known safety targets (even if they remain fluid) can provide interim clarity for developers on their progress while also giving consumers a basis for appreciating that an AV is safe enough for their needs.

It will be of the utmost importance that the definition of ‘competent and careful driver’ is clear and quantifiable in order to support manufacturers in their development of ADS. The quantification element could be in respect of incident frequency and severity rates, which could be used to benchmark the performance of automated vehicles.

A suggestion would be to seek to establish a predicted collision rate, for example one per X million miles or kilometres. This would need further clarification with respect to context because the injury-collision rate per mile travelled for human drivers is higher on rural roads and urban roads compared to motorways.

SAFETY STANDARDS: SUMMARISING THE DEBATE

WHO SHOULD SET A SAFETY STANDARD?

The decision of what is “safe enough” in the context of automated vehicles is quintessentially a policy decision rather than a legal or technical decision. It should be a decision made on behalf of the British public by suitably advised politicians and for which those politicians are accountable.

We consider that the definition of the safety standard may therefore need to be more nuanced than can be achieved in a single sentence. We would tentatively propose that the definition and publication of the acceptable safety standard (against which the “sufficiently safe” decision is made) should be a duty placed on the Secretary of State rather than one to be enshrined in legislation.

The balancing of risk should rightfully sit with the Secretary of State for Transport, as this is unequivocally a political decision that should be informed by expert guidance. [AXA UK]

We believe that advice from a specialist regulator is essential to ensure that there is a full understanding and appreciation of the actual capabilities of any given vehicle but that ultimate responsibility and accountability rests at a government level. [Zurich Insurance]

All these considerations are inherently both political and regional in nature, and therefore best decided by individual governments. [HORIBA MIRA]

HOW WOULD A SAFETY STANDARD BE USED?

It has never been feasible to provide an accident rate comparison between a new transport system and its predecessor (e.g. railways versus canals, or aeroplanes vs railways) prior to that new transport system being deployed commercially on a wide scale. Therefore, it shouldn't be seen as feasible or reasonable to require a statistically valid comparison of accident rates for AVs and manual vehicles prior to AVs being approved.

The role of the safety standard pre-deployment

The role of the safety standard when vehicles are in-use

OUR RECOMMENDATION

driver assistance. It would also be possible to compare AVs with humans who are legally permitted to drive. In other words, one could compare automated driving with a pool of human drivers after removing all deaths or injuries caused by drivers who were unlicensed, disqualified, drugged or over the alcohol limit.

Recommendation 6.

Recommendation 7.

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Chapter 5: Initial approval and authorisation

OVERVIEW OF OUR PROPOSED APPROVAL AND AUTHORISATION SYSTEM

figure:

Figure 5.1 The two-stage process. Vehicles or vehicle types must first go through the approval stage. The vehicle or vehicle type can initially be assessed via the international UNECE type approval system or the Domestic AV technical approval scheme. The vehicle or vehicle type will then need to obtain GB whole vehicle approval via the GB Type, small series or individual vehicle approval schemes. To be authorised with self-driving features the vehicle/ vehicle type would then need to undergo the second authorisation stage. Vehicles/vehicle types which fail this stage will not have ADS features which can legally self-drive. Vehicle types that obtain GB whole vehicle approval but are not put forward for authorisation will also not have ADS features which can legally self-drive the vehicle.

STAGE 1: APPROVAL STAGE

Two paths to approval

We favour having national approval in addition to international. We are unsure how international regulation will evolve, and we believe this would inhibit early AV deployments if it were the only route to regulated operation. [Wayve]

There needs to be a fine balance between ensuring that the type approval processes for vehicles allowed onto the UK roads are stringent enough, but also ensuring that they do not diverge too significantly from other markets given that the UK manufactures many cars for export as well. [ABI/Thatcham]

Approving an AV, not an ADS

A self-driving system is highly sensitive to small changes. For example, small adjustments of the control system will affect the vehicle dynamics, the position of the sensors and their field of view will affect the perception system. It should be considered whether the developer would have sufficient knowledge about the rest of the vehicle to be in a position to provide sufficient information to satisfy the requirements to obtain approval. [Five AI]

It is important to recognise that you cannot take an approved ADS, put it on an approved vehicle, and expect them to be approved together. [Assuring Autonomy]

While the majority of the software and hardware that comprise an ADS may be portable between vehicles, most safety outcomes are dependent on vehicle-specific attributes (such as sensor mounting points which affect field-of-view and propensity to gather debris on the sensors, braking capability, controller/actuator calibration, vehicle dimensions, etc). [Connected Places Catapult]

“installed” is the wrong terminology. ADS need to be integrated into the vehicle at the point of manufacture [Thatcham/ABI]

An ADS is not installed. It is weaved and integrated into all the other systems that exist. This is not about treating the ADS as a separate component and then bolting it on. The ADS needs to be absorbed into the warp and weft of the whole vehicle. [Assuring Autonomy International Programme]

and heavy goods vehicles are often built and approved in this way. It offers developers who do not build an entire vehicle a route to technical approval.

GB whole vehicle approvals

Domestic AV technical approval

Recommendation 8.

STAGE 2: AUTHORISATION

The authorisation authority

Why is the authorisation stage necessary?

Support for a second authorisation stage

We agree with this second stage of the Law Commissions’ two stage process. Separate to the issue of technical vehicle or system approval, the approval of an ADS to be competent to drive on UK roads and to comply with UK road rules is a matter for national law, as is the obligation on the Secretary of State to designate automated vehicles under AEVA. We agree with the Law Commission that this approach reflects the current international approach to motor vehicle approvals and the national approach to driving standards (including where appropriate mutual recognition of driving licences).

As rightly pointed out by the Law Commissions’ report, the current legal framework for defining a vehicle as capable of self-driving is inadequate. We welcome the suggestion of establishing a new legislative framework for classifying self-driving vehicles. Members of the public and a broad range of experts should be involved in developing this framework.

Authorisation outcomes: the effect of failing to gain authorisation

Different outcomes for different features?

Recommendation 9.

Authorisation assessment

The safety case

An equality impact assessment

Data

The DSSAD must record each time an ALKS is activated or deactivated or issues a transition demand (together with a date and time stamp). It also records when the vehicle is involved in a detected collision. However, there are as yet no standards for what collisions must be detected: it is possible that many “soft” collisions would not be detected by the system.223

The need for location data
Safeguarding data

Registering the ASDE

ASDE requirements

Good repute
Appropriate financial standing

The assessment of sufficient resources (including access to sufficient funds if required) should be in the context of the proposed deployment/sales model, not just volume [Five AI]

We propose instead that the ADSE should be responsible for acquiring appropriate insurance. [Oxbotica]

Duties on the ASDE arising from authorisation

Duties relating to safety
Duties of disclosure

Recommendation 10.

Recommendation 11.

Recommendation 12.

Recommendation 13.

collision investigation branch.

Recommendation 14.

Recommendation 15.

A NEW LEGISLATIVE FRAMEWORK

5.104 This drew overwhelming agreement.232 Several consultees stressed the need for any framework to be flexible. Whilst legislation should establish an authorisation scheme, the criteria to be applied might change, as understanding develops. KPMG commented:

as more data is collected in the UK and abroad, and different regimes develop in other countries, alternative procedures might emerge.233

5.105 We are encouraged that the great majority of consultees agreed that a new legislative framework is needed and should provide regulation-making powers. We also agree that, as far as possible, the framework should remain flexible such that it can be updated in line with the development of AV technology and best practice.

Appeals

5.106 In Consultation Paper 3 we asked for observations on how the current appeals process for type approvals works under regulation 19 of the Road Vehicles (Approval) Regulations 2020. We also asked whether there should be a similar provision which would allow manufacturers to appeal the authorisation decision.

5.107 We received comparatively little feedback on these points. Appeals appear, in practice, to be seldom used in relation to the approval process. Most consultees did not feel as if they knew enough about the current appeals process to provide observations.

5.108 In relation to the authorisation decision consultees generally felt that there would be a need for an appeals process:

We would like to ensure there is a right to appeal for all future AV regulation. [Wayve]

An appeal process is important.... There is a lot that will not be black or white, making technical arguments on benefits vs risks critical. [Bryan Reimer (MIT)]

5.109 Among those who addressed the detail of regulation 19, the main comment was that it only provided applicants with 14 days to appeal. It was suggested that this might not be enough time for developers to re-mount their case for authorisation.

Yes, we agree that the process should be similar but, given limited experience to date, are concerned that 14 days may not be enough time to gather evidence. [Stagecoach Group plc]

5.110 The authorisation decision will follow a more holistic assessment, not just of the technical capabilities of the vehicle but also the ability of the ASDE to take responsibility for its vehicle on an ongoing basis. Given the range of factors the authorising authority will have to consider, we believe that an appeals process is required. We think that prospective ASDEs should have a route of appeal where they have a case that the authorisation authority has erred in their assessment.

5.111 We are sympathetic to the argument that prospective ASDEs should have the time they need to consider their position, take legal advice and put forward an appeal. The effect of any delay would be felt by the manufacturer themselves, rather than a third party. We therefore think that it would be more appropriate to allow 12 weeks to appeal than 14 days.

Recommendation 16.

5.112 The new Act should provide regulation-making powers to specify:

The new legislative framework should also require that if authorisation is granted, it should state whether the AV is authorised for use with or without a user-in-charge.

Recommendation 17.

5.113 The new Act should provide a process for appealing against an authorisation decision.

A NEW STATUTORY SCHEME

The safety of these vehicles under real world conditions is yet to be known and both technology and regulation will evolve, an automated vehicle may well comply with driving rules when approved but quickly become out of step with regulation in the years that follow. [AXA]

It is important that there are mechanisms to require improvements, withdraw approval and update standards for future approvals based on operational experience. [CertiCAV]

Recommendation 18.

Should AV authorisation and the in-use scheme have the same regulator?

However, the United Kingdom now has the freedom to decide its own policy with respect to Great Britain.236 We sought views on whether the administrator of the inuse scheme should be separate from the authorisation authority or whether the two should be combined in a single body.

so that the two should have different priorities and different powers, more specifically tailored to the tasks they perform and responsibilities they hold.

that the safety scheme administrators and type-approval authorities should be kept separate to ensure that safety considerations are not compromised by the pressures often seen in type approval.

The advantage of such an approach is that it would bring together expertise and would stop problems from falling between demarcation lines. The number of technical, legal and policy specialists in this area is still small, and it makes sense to concentrate their expertise.

Maintaining the distinction between approval and in-use safety
Working together

IN-USE SAFETY SCHEME: RESPONSIBILITIES

Evaluating the safety of AVs

If the individual is to be monitored they should be aware it is happening and it should be with their consent e.g. by their agreeing to the data being gathered and shared as part of accepting the terms and conditions of a telematic insurance policy. There should also be safeguards on how such information gathered to establish general patterns of behaviour should, or should not, be used in respect of the individuals from whom it is gathered.

Recommendation 19.

Recommendation 20.

Investigating traffic infractions involving AVs

a bus service held up by an automated vehicle which has strayed over the bus lane marking may have a significant adverse impact on up to 100 people, and this needs to be taken into consideration.

We agree that investigating both safety-related and other traffic infractions, including those subject to a penalty charge notice, is appropriate. This investigation would help build a picture of why certain infractions are occurring and provide the understanding to remedy them, improving both safety and compliance. This has the potential not just to relate to a single operator but also to drive improvements across the entire CAV ecosystem. [TfL]

In use monitoring needs to align with behavioural rules and identify anything that goes beyond these rules. Breaches need to be categorised and investigated - in the same way as a collision would be investigated. Learning should be fed back into the development of rules, scenarios generated for validation and safety goals. [PACTS/TRL]

Relying on reports from the police, local authorities and the public

Yes, but only if by investigate you mean process and act upon reports from other agencies, such as local authorities and the police. Otherwise, it would be an impossibly large task, particularly if it covers nonsafety-related infractions, such as driving in a bus lane or blocking a box junction. [The Institute of Highway Engineers]

In order to avoid any overlap between the enforcement powers of local police forces and any regulator(s) - with duplication of effort - we would propose that infractions should continue to be investigated by police in the way, with a power to make referrals to the regulator(s) as appropriate. [BLM Law]

Conclusion: investigating traffic infractions
Who will refer cases to the in-use regulator?

Recommendation 21.

“Traffic infraction” refers to an action (or inaction) which forms part of the dynamic driving task and which (if conducted by a human driver) would make the human driver liable for a criminal offence or civil penalty.

Recommendation 22.

Communication with users

in principle, anyone who elects to use AV related vehicles should be required to pass a competency-based test (as an extension to a driving licence) in order to drive an AV.

Recommendation 23.

NEW POWERS TO APPLY REGULATORY SANCTIONS

We agree that each of these could have a place in a regulator's toolkit, where measures are gradual and proportional. We suggest the approach taken by this regulator should encourage mutual learning in the industry during early AV deployments. [Wayve]

Existing powers under the General Product Safety Regulations 2005

Where an enforcement authority has reasonable grounds for believing that a product is a dangerous product and that it has already been supplied or made available to consumers, the authority may serve a notice (“a recall notice”) requiring the person on whom it is served to use his reasonable endeavours to organise the return of the product from consumers to that person or to such other person as is specified in the notice.247

must not be driven.

“reasonable” consumer action.

maintenance or similar checks. This may be used with a recall.

maintenance or servicing requirements can detect a potential problem and avoid the defect.253

Warnings

require extensive administrative resources to administer.254 However, warning notices are most effective when they are backed with credible threats of further sanction. As the Macrory report on making regulatory sanctions effective explains:

advice and incentives should play a key role in ensuring regulatory compliance, and should normally be the first response of regulators. Nevertheless, an effective sanction regime plays an equally vital role in a successful regulatory regime. It underpins the regulator’s advisory functions, and its very existence will often act as an inducement to compliance without the need to invoke the formal sanctions.255

Civil penalties

A published framework

Legislative and Regulatory Reform Act 2006. Under these provisions, regulators must carry out regulatory activities in a way that is transparent, accountable, proportionate and consistent. They must also have regard to the Regulators’ Code. In turn, the Regulators’ Code requires regulators to “publish a clear set of service standards”, including information on their enforcement policy, explaining how they respond to non-compliance.259

Setting a maximum amount

Redress orders

Compliance orders

it may be possible to fix the issue using one of a number of different approaches (for example, a software update, hardware change, process change (e.g. new calibration method), an ODD change (a new route) or an infrastructure aid change) and the ADSE may consider a different approach is better. For example, the ADSE may prefer to upgrade the sensor hardware on a vehicle rather than the software to fix an issue with an AV hesitating to merge into a lane.

Suspending and withdrawing authorisation

significant safety risk arising as a result”. The ORR must, before revoking either an entire safety certificate or a part of it, notify its holder that it is considering revocation and give them the opportunity to make representations.269

Restorative conferences

6.107 Restorative conferences encourage a greater understanding between all those directly affected by an incident. In 2006, the Macrory report looked at sanctioning regimes and penalty powers in detail.271 The Macrory report received overwhelming support from consultees for the use of restorative conferences. 272An example of their use is by the Australian Competition and Consumer Commission following the mis-selling of insurance policies to Aboriginal communities. Senior insurance company managers came away ashamed from visits to remote communities where they met with the victims of insurance mis-selling, local Aboriginal community councils and local officials. 273The company ultimately agreed to compensate policyholders, establish an education fund for financial literacy and conduct an internal inquiry. These outcomes were significantly better than could have been expected through litigation.

6.108 In the context of AVs, restorative conferences could be appropriate in some circumstances.274 Following a death or serious injury, for example, senior managers from the ADSE could meet the victim and/or their family face-to-face to discuss why the accident happened and what steps were being taken to ensure that it never happened again. As with the other proposed regulatory sanctions, consultees were overwhelmingly in favour of this power.

Appeals

6.109 In Chapter 5 we recommended that the new legislative framework for AV authorisation should set out a process for appealing against the decision of the authorisation authority. Similarly, we also believe that there should also a process for appealing against regulatory sanctions imposed by the in-use regulator.

6.110 Appeals processes are a typical feature of regulatory sanction schemes. For example, under section 162 of the Data Protection Act 2018, a person who is given an information, assessment, enforcement, or penalty notice by the Information Commissioner has a right of appeal. 275 Similarly the Competition Act 1998 makes provisions for persons aggrieved by a decision by the Competition and Markets Authority (CMA) to bring appeals in relation to that decision.276

6.111 In line with other regulatory sanctions schemes, we recommend that the new Act which establishes the role of the in-use regulator and gives it powers to enforce its findings, should also set out an appeals process.

Recommendation 24.

Recommendation 25.

Recommendation 26.

Recommendation 27.

Recommendation 28.

SEARCH WARRANT POWERS

Agencies within DfT such as the VCA and DVSA also have search warrant powers.280

Recommendation 29.

SHOULD THE REGULATOR HAVE A CONSUMER PROTECTION ROLE?

Centralising both the pre-deployment approval and post-deployment regulation of consumer affairs and market surveillance under one unitary authority creates confusion and blurs the focus of this agency. These responsibilities can be adequately performed by existing agencies, namely the Advertising Standards Authority in respect of regulating consumer and marketing materials and the Competition and Markets Authority in respect of market surveillance.

Authority which already has responsibilities to protect consumers and investigate problems in certain markets or sectors.

OPEN TO EXTERNAL VIEWS

In the first instance, the establishment of a professional body consisting of the manufacturing sector, agencies with a service provision for enabling technology for AVs (eg SatNav), and users of AVs would most likely be very helpful. This could take the form of a working group to enable discussions to take place to progress issues, which need to be resolved as they arise.

Just as the HM Inspectorate reports on the effectiveness of policing and other bodies so the Regulator should come under similar scrutiny. Further, the Regulator will be of great interest to a Parliamentary Select Committee, their presence and actions closely monitored and challenged by road safety organisations.

Recommendation 30.

A FORUM TO COLLABORATE ON ROAD RULES

Consultees’ views

We agree so long as such a forum is neither parochial nor divorced from the wider discussion required to assure that there is no unexpected or unwarranted divergence in the expected behaviour of autonomous vehicles in different jurisdictions. This appears to us to be an area where the focus should be on international cooperation. [Faculty of Advocates]

Behaviour rules have started to be developed by software developers - where possible this existing understanding should be built upon rather than starting from the beginning. There needs to be established rules and a process for adapting and amending these to reflect developments and learning.

A dialogue between developers and regulators regarding the application of road rules to self-driving vehicles is desirable. However, eventually, it is the concern of the state, in accordance with its priorities, to determine principles and precise rules for ADSEs to follow. In Mobileye's opinion, creating a digital code for this purpose is possible and desirable, and Mobileye's RSS could serve as a basis for such code....

Mobileye is aware that the Law Commission's current stand is that a digital highway code that sets precise rules for every instance is not possible.. However, after years of research and testing Mobileye stand behind its position that the RSS can do just that.

A diverse range of relevant stakeholders including road safety organisations, emergency services, vehicle manufacturers, software engineers, data managers, insurers, etc. should be represented.

Conclusion

6.147 With 95% of consultees agreeing with our proposal, we continue to think that the UK Government should establish a forum to collaborate with developers on how road rules apply to automated driving. Given the many uncertainties, we are not minded to recommend a specific statutory duty prescribing the way in which the UK Government should establish a forum at this stage. However, we think that the in-use regulator and approval authority should be part of such a forum and hold discussions with developers and the public. The forum should consider how road rules and other traffic laws might be adapted for automated driving. We do not envisage that the forum would have any power to change road rules itself. Instead it should make recommendations to the UK Government, devolved administrations and local government.

Recommendation 31.

6.148 The UK Government should establish a forum for collaboration on how road rules, traffic laws and guidance such as the Highway Code should apply to automated driving.

COLLISION INVESTIGATION

6.149 In Consultation Paper 3, we proposed that a specialist collision investigation unit should be established to analyse data on collisions involving AVs; to investigate the most serious, complex or high-profile collisions; and to make recommendations to improve safety without allocating blame. This unit would be separate from the in-use regulator but provide independent reports with recommendations which could be used by the in-use regulator to improve safety. This unit would be constituted similarly to accident investigation branches in the aviation, rail and maritime sectors.

6.150 A clear majority of respondents agreed with this proposal. Of the 82 respondents, 67 answered “yes” (82%) and only 4 (5%) answered “no”. Respondents who agreed with the proposal highlighted that a specialist accident investigation unit would be needed for AVs as these investigations would require new types of expertise. Others also highlighted that the independent investigation of incidents could inform the safety assurance process:

If automated cars malfunction, they are likely to do so in ways which are unfamiliar to coroners or police officers. Understanding the causes of such failure will involve new types of expertise. [Royal Society for the Prevention of Accidents (RoSPA)]

An independent collision investigation unit with trained personnel could provide huge insight into how to reduce collisions. Especially where there is a novel pattern, for example, where oddities in the road design could have been a contributing factor across systems from multiple ADSEs. [Oxbotica]

6.151 Given the high level of support for specialist collision investigation we are recommending that an independent collision investigation unit be given responsibility for investigating serious, complex or high-profile collisions involving AVs.

6.152 We note that currently the RAC Foundation in collaboration with the DfT and National Highways are undertaking a project to investigate the feasibility of a road collision investigation branch (RCIB). The project has published papers already and is due to produce a final report in 2022. 286This unit would be a specialist investigation unit for all road traffic accidents, not just those involving AVs. In October 2021, DfT also launched a consultation asking for public views on the creation of a RCIB.287

6.153 In the absence of final recommendations from the RAC Foundation, and because the government is consulting on the matter, we have not sought to allocate responsibility for AV collisions to a road collision investigation unit. However, we believe that if such a road collision investigation unit were to be established, it would be preferable to give this unit responsibility for investigating collisions involving AVs - which would avoid duplication of effort. As many stakeholders have also indicated, at least in the initial stage of deployment, collisions involving AVs are likely to involve conventional vehicles as well.

Recommendation 32.

6.154 An independent collision investigation unit should be given responsibility for investigating serious, complex and high-profile collisions involving automated vehicles.

CYBERSECURITY

it is fundamentally almost impossible to separate safety and security in automated vehicles.... The issues of safety and security must be considered in tandem as cybersecurity is the most important building block in ensuring safety of automated vehicles. [Blackberry]

Recommendation 33.

Chapter 7: Marketing of driving automation

An ADS is normally defined in terms of hardware and software “that are collectively capable” of performing the entire dynamic driving task on a sustained basis. However, we most wish to prohibit systems that are not “capable” of safely performing the dynamic driving task but which give the impression of being self-driving.... We therefore think that the prohibition should be aimed at unauthorised systems which purport (through marketing for example) to be self-driving or which give users the (false) impression that the user does not have to monitor the driving environment.291

DRIVING AUTOMATION THAT IS NOT SELF-DRIVING

THE CURRENT LAW

EXPERIENCE IN OTHER JURISDICTIONS

TWO NEW CRIMINAL OFFENCES

“Commercial practice”

any act, omission, course of conduct, representation or commercial communication (including advertising and marketing) by a trader, which is directly connected with the promotion, sale or supply of a product to or from consumers, whether occurring before, during or after a commercial transaction (if any) in relation to a product.303

Figure 7.1 Overview of the two new marketing offences.

Offence 1: Describing unauthorised driving automation as “self-driving”

What terms should be protected?
Protecting a possible kitemark
What commercial practices would be covered?
What authorisation is required?
Trials and safety drivers

Recommendation 34.

unless the driving automation technology is specified as a self-driving feature by the authorisation authority under the authorisation scheme recommended in this report.

The offence should not be committed if the only use of the driving automation technology is by a person who, as part of their employment, test drives vehicles equipped with driving automation technologies (a “safety driver”).

Offence 2: Misleading drivers that a vehicle does not need to be monitored

A prudent person test?

Recommendation 35.

Online marketing across jurisdictions

Recommendation 36.

Enforcement

How should the new provisions be enforced?

Recommendation 37.

Who should be responsible for civil enforcement?

Recommendation 38.

134


Chapter 8: The role of a user-in-charge

THE DEFINITION OF A USER-IN-CHARGE

An individual

In position to operate the vehicle controls

In the vehicle

Not remote operation
Not “in direct sight”

A dynamic driving task demands not just line of sight from user to vehicle but also functional line of sight along the path of the vehicle. Line of sight principles as applied to buses and rail (including light rail), for example, are based on how far the driver can see ahead of the vehicle along its path.

Despite clear multisensory transition demand signals, a user-in-charge that is outside of the vehicle may not be able to take over the controls of the vehicle in the same way that a user-in-charge in the driving seat can.

the vehicle, they may be focused on other activities, such as emptying bins. However, they may be required to respond to an alert if something goes wrong (in much the same way as a user-in-charge responds to a transition demand). Alternatively, an attendant might oversee self-driving vehicles within a car park, responding to alerts if problems arise. However, these possibilities all carry inherent risks. In these circumstances, we think that responsibility should rest with a licensed NUIC operator, who must ensure that the system is safe overall. The operator would need to provide suitable equipment to receive alerts from vehicles, train its staff and monitor their performance.

An ADS feature is engaged

Recommendation 39.

For these purposes, a “relevant ADS feature” is an ADS feature in an authorised vehicle which the authorisation authority has specified as self-driving for use with a user-in-charge.

An ADS is engaged from when it is switched on until:

engine; the ADS issues an alert to say that the trip is completed; or the userin-charge leaves the vehicle voluntarily.

QUALIFIED AND FIT TO DRIVE

Consultation Paper 3 proposals

Support for requirements to be qualified and fit to drive

Recommendation 40.

Causing or permitting an unfit or unqualified person to be a user-in-charge

The current law

Recommendation 41.

BEING CARRIED WITHOUT A USER-IN-CHARGE

This proposal is important to prevent the misuse, or abuse, of the automated driving system (ADS), such as the user-in-charge vacating the driver’s seat after activating the ADS... Although technical solutions such as driver availability and monitoring systems should be able to prevent such abuses, they must not be seen as a substitute for legislation that clearly forbids being carried without a user-in-charge.

The mental element

Recommendation 42.

What if an AV requiring a user-in-charge is made to drive empty?

PROVISIONALLY LICENSED DRIVERS

This is the only way for people to gain hands-on experience with automated technology and will teach them the limitations of different ADSs from the outset of their driving experience. This will further enhance safety in the future.

We accordingly recommend that a provisional licence holder should be able to act as a user-in-charge, if accompanied by an approved driving instructor in a vehicle with dual controls. This can be achieved through existing regulation-making powers, without need for legislative reform.361

Recommendation 43.

THE IMMUNITY FROM DYNAMIC DRIVING OFFENCES

First and foremost, it would be wrong for the user-in-charge to be held accountable where s/he is not in control of the vehicle. ... It would also undermine one of the rationales for automated driving, which is to enable the user-in-charge to engage in other activities during road travel, as users-in-charge would feel obligated to monitor the dynamic driving task when the ADS is engaged for fear of incurring a civil or criminal liability. It follows that it would also risk undermining consumer appetite for ADS, as well as undermining public trust and confidence.

The French approach

What is dynamic driving?

THE USER-IN CHARGE’S IMMUNITY: RECOMMENDATION

“Engaged” or “correctly engaged”?

Recommendation 44.

The immunity should not apply if the user-in-charge has taken steps to override or alter the system so as to engage the ADS when it is not designed to function.

The immunity should cease if the user-in-charge deliberately interferes with the functioning of the ADS.

THE LIABILITY OF A USER-IN-CHARGE FOR NON-DYNAMIC DRIVING OFFENCES

Insurance

Roadworthiness

Parking

Duties following accidents

Ensuring child passengers wear seatbelts

Loading

Route planning

Recommendation 45.

The new Act should include a regulation-making power to adapt the lists of dynamic and non-dynamic offences in the light of experience, including a power to allocate some or all roadworthiness responsibilities to the ASDE.

COMMUNICATING THE DYNAMIC/NON-DYNAMIC DISTINCTION TO USERS

Committing dangerous driving offences through non-dynamic failures

The effect of section 40A of the Road Traffic Act.

A person is guilty of an offence if he uses, or causes or permits another to use, a motor vehicle or trailer on a road when—

is such that the use of the motor vehicle or trailer involves a danger of injury to any person.

A new offence for users-in-charge

Recommendation 46.

Instead, a user in charge should be liable for a new offence of using a vehicle in an obviously dangerous state. The offence would be committed where:

In deciding whether the vehicle is in a dangerous state, regard should be had to anything attached to or carried on or in it and to the manner in which it is attached or carried.

An aggravated form of the offence should apply where the use caused death or serious injury.

Drafting the dynamic/non-dynamic distinction

8.121 There are other driving offences which may be committed in either a dynamic or nondynamic way. The distinction between dynamic and non-dynamic offences will need careful drafting. Our current view is that it might be helpful to include both a general principle, together with two non-exhaustive lists of common dynamic and non-dynamic offences. It would also be useful to have some provisions to amend the lists in the light of experience. Amendment might be necessary either to clarify areas of uncertainty or to adapt the distinction to an ADS’s capabilities.

CRIMINAL LIABILITY FOLLOWING HANDOVER

8.122 Following a completed handover, either voluntary or in response to a transition demand, the user-in-charge would become a driver. They would be subject to all the ordinary responsibilities of a driver. From this point, they would be required to pay due care and attention and would be liable for any infringements of road rules or standards. This would include offences that did not require proof that the defendant’s driving fell below the standard of a reasonably competent and careful driver.

A specific defence where problems are brought about by the ADS

8.123 We do not think that an individual should be penalised for a breach that was brought about by the ADS and which a competent and careful driver could not reasonably prevent. In Consultation Paper 3 we illustrated this problem with the following example:

While in self-driving mode, an automated vehicle mistakenly turns into a one-way street in the wrong direction. The user-in-charge takes over, but is unable to avoid a collision. Alternatively, no collision takes place, but in the moment the user-in-charge takes over, they are driving in the wrong direction, and absent an exception they are guilty of an offence simply on that basis.396

8.124 We provisionally proposed that drivers should have a specific defence to an offence committed following takeover as a result of the actions of the ADS. We suggested that the defence should be available if “given the actions of the ADS, a competent and careful driver could not have avoided the offence”.

8.125 Consultees agreed with the principle that a driver who takes over from an ADS should have a defence to a criminal charge where the problem was caused by the ADS.397 For example, the Association of Personal Injury Lawyers (APIL) thought it:

crucial that users of AVs are not discouraged from correcting a system error because of the risk of being criminally liable and prosecuted for an offence which they could not have avoided.

8.126 A number of consultees argued, however, that the proposed test was too narrow, setting “too high a bar”. 398The Bar Council said:

“Could not have” is a test that risks imposing too high a burden on the user-in-charge who takes over control of the vehicle. There is a range of acceptable human driving skill - above the level of what should be considered criminal. That range applies among individuals of course, but also within individuals: the hypothetical “competent and careful driver” cannot sensibly be considered to drive at all times at only one specific level of skill.

If a driver looks up from a secondary activity to see an immediate risk of collision, they are likely to try to take over without having had time to reengage with the driving task. In this situation, their best efforts to avoid a crash may fall below the standard of a driver who is already fully engaged. Criminalising this behaviour is unlikely to be an effective deterrent and may not improve safety.

Recommendation 47.

FAILING TO RESPOND TO A TRANSITION DEMAND

Reacquiring driver obligations

Recommendation 48.

8.137 The new Act should provide that a user-in-charge who fails to respond to a transition demand will acquire the legal responsibilities of a driver at the end of the transition period.

Medical emergencies

8.138 Consultees were concerned about what would happen if a user-in-charge is unable to respond to a transition demand because they have suffered a medical emergency, such as a heart attack or stroke.

8.139 In Consultation Paper 3, we suggested that the issue would be adequately addressed by general criminal law principles exempting drivers in these circumstances. However, several consultees asked for specific statutory provisions. AXA UK suggested an explicit exemption from criminal liability for “those failing to respond to a transition demand” due to “proven health emergency”. The SMMT argued for an amendment to the Motorway Traffic Regulations “and other relevant traffic laws” to clarify this issue.404

8.140 The current law on medical emergencies while driving usually comes to the right result: a person has a defence if they were unable to drive as a result of a medical emergency they could not foresee. However, the way that the law reaches this result is complex and uncertain.

8.141 The law in this area differs between England and Wales on the one hand and Scotland on the other. Below we consider each in turn.

The law in England and Wales

8.142 While some defendants suffering medical emergencies may have recourse to the defence of (non-insane) automatism, some may be forced to rely on the defence of insanity (also referred to as insane automatism). To distinguish between these two defences, the courts have relied on an arbitrary distinction between loss of control due to an “external factor” (such as substances or a blow to the head) and loss of control due to an “internal factor” (a malfunctioning of the body). While involuntary conduct caused by an “external factor” is classed as (sane) automatism, conduct caused by an “internal factor” is classed as insanity (or insane automatism).405

8.143 In 2013, the Law Commission of England and Wales published a discussion paper which criticised this distinction. 406Two cases of diabetic defendants illustrate the problem. One suffered a hypoglycaemic episode as a result of failing to eat after taking insulin.407 The other suffered a hyperglycaemic episode as a result of failing to take his prescribed insulin. 408The first defendant was able to plead sane automatism since the insulin, an external factor, had caused the episode. The second defendant was forced to rely on insanity because his loss of control was caused by his diabetes.

8.144 As a result, the legal definition of “insanity” stretches far beyond what a layperson would understand by the term. Defendants have had to plead insanity when suffering from epilepsy 409or sleepwalking conditions. 410The label of insanity is clearly inappropriate in such cases. As the 2013 discussion paper pointed out, epileptics, diabetics and others with mental conditions “might understandably be reluctant to plead the defence”. 411A plea of insanity also has practical consequences. Firstly, those pleading insanity must discharge a higher burden of proof.412 Secondly, unlike a successful plea of (sane) automatism, a successful insanity plea does not result in an acquittal. Instead it results in a “special verdict” of “not guilty by reason of insanity”.413 The courts then have powers to order measures such as a restrictive hospital order or supervision order. 414This is referred to as a “disposal” rather than a sentence but can clearly have severe implications for those affected.

The need for reform in England and Wales

8.145 The issue of medical emergencies applies to all driving offences, not just those at the end of the transition period. The law of England and Wales in this area is clearly unsatisfactory. It is unnecessarily complex and may require an unhelpful resort to the law of insanity. However, we think that the issue should be addressed for all driving offences, not simply those following a transition period.

8.146 Following its 2013 Discussion Paper on Insanity and Automatism, the Law Commission of England and Wales intends to recommence work to produce a report as soon as time allows. Following this report, we hope that the Government will introduce comprehensive reform in this area.

The law in Scotland

8.147 In Scotland, a defence of automatism, if upheld, marks driving as involuntary 415and prevents the driver from being treated as driving the vehicle. Case law indicates that the defence of automatism can be relied on solely for involuntary conduct due to external factors 416which the accused is not bound to foresee. External factors are factors emanating from outwith the mind or body of the driver. One such factor is the administration of a drug unbeknown to the driver. Factors which are not external include epilepsy, diabetes or a heart attack. 417In practice prosecutors appear not to follow this distinction between external and internal factors. 418Nevertheless it is supported by binding case law. Accordingly, whether a driver who suffers an unpredictable medical emergency can be excused from a criminal offence arising from their driving depends in part on the source of the emergency. If the defence of automatism does not apply, the person charged might have to establish that they were unable to appreciate the wrongfulness of the conduct by reason of a mental disorder. 419If they did so, the court could make a compulsion order which could involve the person being detained in a special hospital.420

The need for reform in Scotland

Recommendation 49.

PROFESSIONAL USERS-IN-CHARGE AND PASSENGER SERVICES

Chapter 9: NUIC operator licensing

POLICY DEVELOPMENT: FROM HARPS OPERATORS TO NUIC OPERATORS

Consultation Paper 2

Consultation Paper 3

THE NEED FOR A NUIC OPERATOR TO OVERSEE THE JOURNEY

Terminology

If “supervise” as used here is meant to convey a different meaning from the J3016 meaning, that should be clearly explained.

What oversight duties will arise?

Event-driven provision, by a remotely located human, of information or advice to an ADS-equipped vehicle in driverless operation in order to facilitate trip continuation when the ADS encounters a situation it cannot manage.429

Remote assistance compared to remote driving

Is the remote assistant role safety-critical?

The challenges of running a remote operations centre

Connectivity
Cyber-security
Equipment
Training, working conditions and rest breaks
Communication with passengers, the public and emergency services

Regulating the organisation or the individual?

Approaches in other jurisdictions
Our approach

OTHER NUIC OPERATOR DUTIES

Maintenance

Insurance

Safety-critical updates and cybersecurity

Other duties: conclusion

FOUR MODELS OF NUIC OPERATION

Model 1: Combining the ASDE and operator roles

One possible option
Combined authorisation and enforcement for combined entities

Model 2: A separate NUIC operator

Applying for a licence showing how ASDE requirements are met

Model 3: Privately-owned NUIC vehicles

Our Consultation Paper 2 proposal
Our Consultation Paper 3 proposal

Burges Salmon also welcomed the proposal but restricted their comments to “the early deployment stage”.

Our current view

Model 4: NUIC operation confined to a geographically limited location

RECOMMENDATION: ALL NUIC VEHICLES TO HAVE A LICENSED OPERATOR

Vehicles permitted for use on UK roads, no matter the volumes, should meet UK safety assurance (UKSA). Only once vehicles are deemed to be compliant with regulation and UKSA should vehicles be then released for testing on UK roads. Trials should take place as part of the testing phase - i.e. not on public roads. Once the UKSA has been attained, then the vehicles should be deployed for further real-world testing.

Recommendation 50.

RECOMMENDATION: REQUIREMENTS FOR BEING A NUIC OPERATOR

Good repute

Financial standing

An establishment in Great Britain

Demonstrating professional competence

The case in favour of a safety management system
Conclusion: a safety management system

Recommendation 51.

Recommendation 52.

Recommendation 53.

RECOMMENDATION: SUBMITTING A SAFETY CASE

A potential NUIC operator must submit a safety case

Recommendation 54.

Where an ASDE and the NUIC operator are the same entity, the entity may submit a joint safety case covering both roles, to be assessed by the authorisation authority.

In other cases, the safety case should address the ASDE’s written specifications for what must be done to ensure safe operation.

RECOMMENDATION: SETTING LICENCE CONDITIONS

9.112 As discussed, the list of duties may be less onerous for limited uses, such as a public car park offering valet parking.

9.113 As we discuss in Chapter 10, we also envisage a requirement that the NUIC operator does not conduct passenger services without an interim passenger permit. We set out our recommendations for interim passenger permits in the next chapter.

Recommendation 55.

9.114 When granting a licence, the regulator should specify the responsibilities which fall on the NUIC operator in the terms of the licence.

RECOMMENDATION: POWERS OF THE REGULATOR

Regulatory sanctions

9.115 Under our recommended scheme, a breach of the licence conditions will be enforced through a system of regulatory sanctions by the in-use regulator. We would expect that the police, vehicle examiners and the public would bring complaints to the attention of the regulator, who would then investigate. If the regulator established that the licence conditions had been broken, it would then have a broad range of sanctions available to it.

Sanctions where the ASDE and NUIC operator roles are combined
Sanctions where the NUIC operator is a separate entity

Recommendation 56.

Power to request information

Recommendation 57.

Inspection powers

Recommendation 58.

HOW LONG SHOULD A NUIC OPERATOR LICENCE LAST?

Recommendation 59.

Initially, the duration should be five years.

THE ROLE OF CRIMINAL OFFENCES AND TRAFFIC MANAGEMENT PENALTIES

9.139 It may be helpful to give an example of how we see the two means of enforcement working together. For minor parking tickets, where the NUIC operator is also the registered keeper, we would expect the NUIC operator to receive and pay the ticket, in the same way as a user-in-charge. However, we would anticipate that it would be a licensing condition that NUIC operations should not disrupt traffic flow. In the event of systemic parking breaches, leading to complaints of congestion, the issue would be referred to the NUIC regulator, who would have powers to issue a compliance order. Further breaches could lead to redress orders or higher civil penalties.

WHO SHOULD ADMINISTER NUIC OPERATOR LICENSING?

9.140 We have considered which organisation should grant the NUIC operator licence. In Consultation Paper 3, we suggested two possible agencies: the Traffic Commissioners or the in-use regulator which administers the safety assurance scheme. 498We noted that the Traffic Commissioners could draw on their experience of administering the PSV and goods vehicle operator licensing schemes. On the other hand, the in-use safety assurance regulator would be well-placed to develop expertise in the challenges of automated driving. We welcomed observations.

Consultees’ views

9.141 Our question generated a mixed response. Of the 50 respondents who answered this question, 17 thought that the Traffic Commissioners were best placed to administer the scheme, at least in the first years of deployment.499 Two arguments were put in favour of the Traffic Commissioners. The first is that PSV and HGV Operators would only have to deal with one body, not two. The second is that the Traffic Commissioners could draw on their existing expertise and practices.

9.142 Some respondents thought that the in-use safety assurance regulator should administer NUIC operator licensing. Wayve preferred this option because they questioned whether the Traffic Commissioners would have the “deep technical capability” necessary to “assure technical operation and safety, rather than transport operation”. A handful of respondents suggested that the two entities could collaborate or assist each other in administering the scheme.

9.143 Some respondents suggested that the scheme should be administered by the Driver and Vehicle Standards Agency (DVSA);500 the Driver and Vehicle Licensing Agency (DVLA);501 or the Department for Transport (DfT) more generally.502

Conclusion

9.144 In practice, collaboration between the various DfT agencies is common. For example, the Traffic Commissioners do not employ staff directly, but instead delegate their functions to named employees of the DVSA, which provides them with administrative support and personnel.503 We would expect continued flexibility about how agencies are organised and staffed. We therefore recommend that legislation places responsibility for operator licensing on the Secretary of State for Transport, with a power to allocate responsibilities flexibly.

9.145 If, as we suspect, the first NUIC vehicles are operated by combined ASDE/NUIC operator organisations, it is likely that expertise in assessing the safety case will be developed by the authorisation agency, while expertise in enforcement issues will lie with the in-use regulator. To use this expertise to best effect, the Secretary of State may wish to allocate responsibility for granting licences and enforcing licensing conditions to these two existing agencies.

9.146 In time, as use of NUIC vehicles grows, the process of granting licences may become more routine and less dependent on technical expertise. In the long term, we can see advantages to streamlining NUIC operator licensing with other licensing schemes, such as those applying to PSVs and HGVs.

Recommendation 60.

9.147 The new Act should place responsibility for NUIC operator licensing on the Secretary of State for Transport.

ISSUES NOT ADDRESSED IN THIS REPORT

Tier 2 duties for freight services

9.148 The next chapter (Chapter 10) considers additional “Tier 2 duties” where NUIC vehicles carry passengers. There would also be a need for Tier 2 duties for freight (and potentially other niche use cases). However, we have not consulted on freight specifically during our review. The implications of automating the process of loading vehicles and coupling and uncoupling trailers, and broader impacts require separate analysis and consultation.

Remote driving

THE CURRENT LAW

driver obligations and it is unclear how these could apply in the context of a NUIC vehicle.

THE CHALLENGES OF RUNNING PASSENGER SERVICES WITHOUT A DRIVER

Safeguarding

Accessibility

Boarding and alighting

Controlling congestion

PASSENGER SERVICES IN OTHER JURISDICTIONS

AN INTERIM PERMIT PROCEDURE FOR NUIC PASSENGER SERVICES

The need for more evidence

Devolution

A new procedure to grant interim passenger permits

Charging fares

Would vehicles need to be authorised?

The key question is not whether the service has a driver (for now). Instead, the question relates to how the service is designed to operate in the long-term. Is the service designed to operate in a NUIC vehicle without a driver or user-in-charge?

Accessibility

An obligation to publish information on safeguarding and accessibility

Taxi and private-hire type services: the need for consent

NUIC passenger services and bus service regulation

The current law
Our recommendations

Consultation with road authorities and the emergency services

Interim Passenger Permit

Image 1

Permit could be subject to conditions e.g. number of vehicles, location, ability to charge fares, and notifying timetables to the Traffic Commissioners.

Recommendation 61.

transport authority have been obtained.

scheme.

Enforcing the requirement for an interim passenger permit

Recommendation 62.

NATIONAL ACCESSIBILITY STANDARDS AND A STATUTORY ADVISORY PANEL

Recommendation 63.

The accessibility advisory panel should include:

Recommendation 64.

LONGER TERM OPTIONS FOR PASSENGER SERVICES

208


Chapter 11: ASDEs, NUIC operators and the duty of candour

WHAT WE SAID IN CONSULTATION PAPER 3

Reasons for the new offences

Provisional proposals

serious injury; and

Support from consultees

AVs being an entirely new technology, and one about which many people will feel considerable apprehension in the early period of their introduction, it is entirely appropriate to do as the Commission proposes, and adopt the more restrictive elements from existing offences that apply to comparable industries.

The safety assurance scheme will rely crucially on the ADSE to submit a safety case. All those involved in the process need to be honest, open and accurate in putting the case together. We hope that the proposed offences would deter ADSEs from compromising safety standards to gain a competitive advantage.

WHEN WOULD THE OFFENCES APPLY?

Information to both the authorisation authority and the in-use regulator

Extending the offence to NUIC operators as well as ASDEs

A continuing duty to provide information?

Defining “safety-relevant information”

Misrepresentations and non-disclosures to overseas regulator

DUE DILIGENCE DEFENCE

Where evidence is adduced that is sufficient to raise an issue with respect to the defence in paragraph (3), the court or jury must presume that the defence is satisfied unless the prosecution proves beyond reasonable doubt that it is not.

THE CRIMINAL LIABILITY OF SENIOR MANAGERS

Alternative definitions of senior management

“Consent or connivance”

“Consent or connivance” goes further than encouragement. While “consent” requires proof of both awareness and a positive action, connivance (from the Latin “to close the eyes”) can include circumstances where the director is “well aware of what is going on but his agreement is tacit, not actively encouraging what happens but letting it continue and saying nothing about it”565 and “wilful blindness” (where the person has suspicion but deliberately avoids acquiring positive knowledge).566

The nominated person who signs the safety case

The nominated person’s liability: proof of neglect or a due diligence defence?

Criminal liability of senior managers: the overall effect

11.53 A prosecution could also be brought against any other senior manager who had consented to or connived at the misrepresentation or non-disclosure. Here the prosecution would need to prove the necessary mental element: either that the senior manager was aware of the wrongdoing or that they had deliberately closed their eyes to it.

A NEW OFFENCE FOR OTHER EMPLOYEES?

11.54 Several respondents wanted to see some penalties imposed on other staff.571 For example, FirstGroup thought that the offence should apply to any individual where “the action leading to the offence was deliberate and without coercion”. Transport for West Midlands suggested the offence should apply where there is “substantial evidence that the junior employee was deliberately acting against the advice of superiors for any reason”. ABI and Thatcham proposed the following test:

While the onus should largely rest on senior managers, wilful omission, or purposeful dissemination of misleading information by junior employees should not preclude repercussion.

11.55 In Consultation Paper 3, we noted that most wrongdoing by junior employees was already a criminal offence. 572For example, a team leader who deliberately lied for material gain would commit an offence under section 2 of the Fraud Act 2006 (or, in Scotland, at common law).

11.56 To commit an offence under the Fraud Act 2006, the employee would need to act dishonestly, with an intention to make a gain for themselves or another, or “to cause loss to another or to expose another to a risk of loss”. We think this already covers the deliberate, non-coerced actions or the “purposeful dissemination of misleading information” mentioned by consultees.

11.57 The Fraud Act 2006 offences do not extend to mere “connivance”, as envisaged for the senior manager offence described above. A junior employee may be aware of what is going on, and let it happen, without taking steps to stop it. This may not necessarily reflect dishonesty, or an intention to make a gain or cause a loss. Instead, employees may remain passive through fear of losing their job, or through hopelessness, or because they are victims of an abusive corporate culture.

AGGRAVATED OFFENCE FOR DEATH OR SERIOUS INJURY

Aggravated offences in road traffic law

Our provisional proposal

Consultees’ views

The risk of an adverse incident resulting in death or serious injury is very real. The threat of prosecution for an aggravated offence carrying a significant maximum sentence will act as a deterrent from compromising safety standards to gain competitive advantage and also avoids a radical asymmetry between the treatment of human drivers and ADSE.

For this to avoid being arbitrary there requires to be some link between the blameworthiness of the act or omission and the gravity of the consequence. The text in the consultation paper surrounding this point correctly (to our mind) identifies the sense in requiring some foreseeability element, such that the act or omission invited more serious consequences of the sort that eventually occurred.

Our conclusion

A DUTY OF FAIR PRESENTATION?

PROSECUTION

PENALTIES

Recommendation 65.

Offence A: non-disclosure or misrepresentations by the ASDE

When putting forward a vehicle for authorisation as self-driving, it should be an offence for the ASDE to

where that information is relevant to the evaluation of the safety of the vehicle.

The ASDE should have a defence if it can show that it took reasonable precautions and exercised all due diligence to prevent the wrongdoing.

Offence B: non-disclosure or misrepresentations by a NUIC operator

When applying for NUIC operator licence, it should be an offence for the applicant to

where that information is relevant to the evaluation of the safety of the operation.

The NUIC operator should have a defence if it can show that it took reasonable precautions and exercised all due diligence to prevent the wrongdoing.

Offence C: non-disclosure and misrepresentations in responding to regulators’ requests

When the regulator responsible for either pre-deployment or in-use safety requests information from an ASDE or NUIC operator it should be an offence for the recipient to

where that information is relevant to the evaluation of the safety of the vehicle or the way that it operates.

The ASDE/NUIC operator should have a defence if it can show that it took reasonable precautions and exercised all due diligence to prevent the wrongdoing.

Offence D: the consent or connivance of senior managers

Where the ASDE/NUIC operator has committed Offence A, B or C, a senior manager would also be guilty of the offence if it took place with their consent or connivance.

A senior manager should be defined as a person who plays a significant role in:

Offence E: offences by the nominated person

Where the ASDE/NUIC operator has made a non-disclosure and misrepresentation in circumstances covered by offence A, B or C, the person who signed the relevant safety case or response to the request for information (“the nominated person”) would also commit the offence.

The nominated person would have a defence if they can show that they took reasonable precautions and exercised all due diligence to prevent the wrongdoing.

Offence F: aggravated offences in the event of death or serious injury following misrepresentation or non-disclosure

Where a corporation or person commits Offences A to E, the offence should be aggravated where the misrepresentation or non-disclosure:

SUMMARY OF RECOMMENDED CHANGES TO WRONGFUL INTERFERENCE OFFENCES

TAMPERING WITH THE MECHANISM

We would agree that legislative amendment should clarify that the tampering offence in s. 25 of the Road Traffic Act 1988 applies to anything that is physically part of a vehicle and any software installed within it so as to ensure clarity. This broad approach would avoid the need to list all types of equipment and mechanisms.

Yes, the offence of tampering should apply to any and all physical and software elements of a vehicle. This is particularly important for brakes and sensors on automated vehicles, as they are heavily reliant on sensors/sensor technology to detect other vehicles and road users and are essential to ensure their safe operation on the road.

Software

Section 25 of the RTA 1988 only applies to a person who 'gets on to the vehicle' or 'tampers with the brake or other part of its mechanism'. In light of the introduction of ADSs, this section needs to be extended to software and all physical parts of a vehicle rather than just mechanics.

Conclusion

Recommendation 66.

TAMPERING WITH INFRASTRUCTURE

The Bar Council provided a detailed response, highlighting that the issue was covered by existing offences.

UNAUTHORISED VEHICLE TAKING

England and Wales

A person shall be guilty of an offence if, without having the consent of the owner or other lawful authority, he takes any conveyance for his own or another's use or, knowing that any conveyance has been taken without such authority, drives it or allows himself to be carried in or on it.

Recommendation 67.

Scotland

The defence in section 178(2) does not apply and generally the common law is used more frequently than the statutory offence. As such, the pizza delivery vehicle example above would be likely to qualify as a “nefarious purpose” and be prosecuted in Scotland under the common law of theft.

CAUSING DANGER TO ROAD USERS

England and Wales

A person is guilty of an offence if he intentionally and without lawful authority or reasonable cause:

in such circumstances that it would be obvious to a reasonable person (whose knowledge includes that of the person interfering)604 that to do so would be dangerous.

its natural meaning. In determining what is objectively dangerous, the court must consider any circumstances known to the accused.

Scotland

There is no need to demonstrate intent to cause injury nor does injury need to have been caused.609

Should section 22A extend to Scotland?

The justifications mentioned in the consultation document do not persuade us. We consider that this criminal offence is not a principal part of the legislative regime for automated vehicles, so any consideration of harmonisation of the law about unlawful interference with autonomous vehicles or their associated infrastructure is outweighed by the importance of harmonisation of the criminality of culpable and reckless conduct of any nature across Scots law.... Creating a new statutory offence (which would presumably also require the enactment of the existing section 22A offence into Scots law) would in reality add uncertainty to Scots law and complicate prosecutions here.

NEW AGGRAVATED OFFENCE OF CAUSING DEATH BY WRONGFUL INTERFERENCE

Responses to Consultation Paper 3

Arguments in favour

Yes, if there be a causative link between the ‘tampering’ and indeed the death, then it is right and proper that a new offence is considered to mark the severity of the consequences much in line with the current range of offences that are already available under the Road Traffic Act. [Kennedys Law]

Arguments against

It seems unfair to treat tampering with AVs differently from conventional vehicles, or other machinery come to that. It can be imagined that the public might not easily distinguish between an AV and a conventional vehicle in many cases. A special punishment for these specific vehicles seems unfair.

Recommendation 68.

Mental state: intent to interfere

Recommendation 69.

An “approved work” defence

We see “lawful authority” and “reasonable cause” as providing separate exceptions to criminal liability and so question the need for an “approved work” defence to ensure protection to those undertaking bona fide approved repairs, or maintenance operations, authorised by a vehicle manufacturer or automated driving system entity.

240


AUTOMATED AND ELECTRIC VEHICLES ACT 2018: A BRIEF OVERVIEW

the insurer is liable for that damage.

Injury to the insured person

Secondary claims

LISTING AND AUTHORISATION

Recommendation 70.

CONTRIBUTORY NEGLIGENCE AND CAUSATION

Contributory negligence

Causation

Consultation Paper 3 proposals

Responses to Consultation Paper 3

Conclusion

SECONDARY CLAIMS UNDER THE CONSUMER PROTECTION ACT 1987

Problems with how product liability law treats software

Not essential for the introduction of AVs

Consultation Paper 3 proposal

Responses to Consultation Paper 3

Recommendation 71.

UNINSURED VEHICLES

Recommendation 72.

DATA RETENTION

Our proposals

Responses to Consultation Paper 3

Conclusion

Recommendation 73.

The required data should include (but need not be limited to) the date, time and location of each occasion when:

The required data should be stored for 39 months from the date when it is recorded and, where a request is made for it within that period, until the required data has been given to the insurer.

DATA SHARING

Consultees’ views

Conclusion

Recommendation 74.

Recommendation 75.

A NEW AUTOMATED VEHICLES ACT

Recommendation 1.

A new Automated Vehicles Act should be introduced to regulate automated vehicles on roads or other public places in Great Britain.

The UK, Scottish and Welsh governments should work together to introduce a uniform scheme that will apply across Great Britain.

Paragraph 2.76

THE TEST FOR SELF-DRIVING

Recommendation 2.

The new Act should set out a test which a vehicle must satisfy before being authorised as having a self-driving ADS feature.

For a feature to be self-driving, the authorisation authority must be satisfied that it can control the vehicle so as to drive safely and legally, even if an individual is not monitoring the driving environment, the vehicle or the way that it drives.

Vehicles that rely on ADS features to issue transition demands to users-in-charge may be authorised as self-driving provided that the transition demand:

end of the transition period; and

Vehicles should not be authorised as self-driving if an individual is expected to respond to objects or events in the external environment (such as low impact collisions and emergency vehicles) in the absence of a transition demand.

Paragraph 3.67

ACTIVITIES BY THE USER-IN-CHARGE

Recommendation 3.

AV regulators should develop guidance regarding activities that a user-in-charge may (or may not) undertake. This guidance should be included in the Highway Code and publicised by Government.

Paragraph 3.80

Recommendation 4.

Initially, it should be an offence for a user-in-charge:

Paragraph 3.81

UNWITTING TAKE-OVERS

Recommendation 5.

The UK Government should work within the UNECE decision-making structures to ensure that safeguards are in place to prevent unwitting take overs by the user-in-charge.

Safeguards against unwitting take overs should also be part of domestic GB typeapproval.

Paragraph 3.85

THE SECRETARY OF STATE’S SAFETY STANDARD

Recommendation 6.

The new Act should require the Secretary of State for Transport to publish a safety standard against which the safety of automated driving can be measured. This should include a comparison with harm caused by human drivers in Great Britain.

Paragraph 4.66

Recommendation 7.

In exercising their functions, the authorisation authority and in-use regulator should have regard to the published safety standard.

Paragraph 4.67

PRE-DEPLOYMENT SAFETY ASSURANCE

Recommendation 8.

The Secretary of State for Transport should establish a domestic AV technical approval scheme to approve vehicles with ADS features which do not have UNECE approvals and which are intended for use on GB roads.

Paragraph 5.39

Recommendation 9.

The new Act should establish an authorisation scheme for vehicles equipped with ADS features to be used in Great Britain. The scheme should be administered by an authorisation authority.

Paragraph 5.63

Recommendation 10.

For a vehicle or vehicle type to be authorised in Great Britain as self-driving as having self-driving features, a prospective Authorised Self-Driving Entity (ASDE) must submit the vehicle or a vehicle representative of the type to the authorisation authority. Before granting authorisation, the authorisation authority must be satisfied that the vehicle or vehicle type:

environment, the vehicle or the way it drives;

Paragraph 5.97

Recommendation 11.

The authorisation authority should assess each ADS feature in relation to the vehicle with which it is presented. If authorisation is granted, it should state whether each ADS feature is authorised for use with or without a user-in-charge.

Paragraph 5.98

Recommendation 12.

To become an ASDE an applicant must:

Paragraph 5.99

Recommendation 13.

Authorisation should be conditional on the ASDE undertaking ongoing duties. These should include:

collision investigation branch.

Paragraph 5.100

Recommendation 14.

The new Act should give the Secretary of State for Transport power to specify requirements as to good repute and appropriate financial standing.

Paragraph 5.101

Recommendation 15.

The authorisation authority should provide guidelines on the information to be included in the safety case and equality impact assessments, and assess both documents as part of authorisation.

Paragraph 5.102

Recommendation 16.

The new Act should provide regulation-making powers to specify:

The new legislative framework should also require that if authorisation is granted, it should state whether the AV is authorised for use with or without a user-in-charge.

Paragraph 5.112

Recommendation 17.

The new Act should provide a process for appealing against an authorisation decision.

Paragraph 5.113

IN-USE SAFETY ASSURANCE

Recommendation 18.

The new Act should establish an in-use safety assurance scheme which gives an in-use regulator responsibilities to monitor the safety of authorised AVs and investigate infractions involving AVs, and powers to enforce its decisions.

Paragraph 6.11

Recommendation 19.

The in-use regulator should be under a statutory obligation:

Paragraph 6.36

Recommendation 20.

The in-use regulator should be given powers to collect relevant data from ASDEs and NUIC operators so as to allow the regulator to compare the safety of automated and conventional vehicles.

Paragraph 6.37

Recommendation 21.

The in-use regulator should be under a statutory obligation:

“Traffic infraction” refers to an action (or inaction) which forms part of the dynamic driving task and which (if conducted by a human driver) would make the human driver liable for a criminal offence or civil penalty.

Paragraph 6.57

Recommendation 22.

The in-use regulator should work with police and local authorities to establish a protocol which enables traffic infractions involving AVs to be investigated efficiently and effectively.

Paragraph 6.58

Recommendation 23.

The in-use regulator should have power to require ASDEs to provide suitable, clearly worded and easily comprehensible information to owners, users-in-charge and registered keepers throughout the life of a vehicle.

Paragraph 6.66

Recommendation 24.

The in-use regulator should have statutory powers to impose the following regulatory sanctions:

(1)

informal and formal warnings;

(2)

civil penalties;

(3)

redress orders;

(4)

compliance orders;

(5)

suspension of authorisation;

(6)

recommendation of withdrawal of authorisation; and

(7)

recommendation of attendance at a restorative conference.

Paragraph 6.112

Recommendation 25.

The regulatory functions of the in-use regulator should be made subject to sections 21 and 22 of the Legislative and Regulatory Reform Act 2006 through the procedure set out in section 24(2) of that Act.

Paragraph 6.113

Recommendation 26.

Regulations should give the Secretary of State the power to set the maximum amount for civil penalties imposed by the in-use regulator.

Paragraph 6.114

Recommendation 27.

Compliance orders issued by the in-use regulator should be outcome oriented for technical issues but may be specific for issues which require the ASDE to communicate information to users.

Paragraph 6.115

Recommendation 28.

The new Act should create a right to appeal against decisions made by the in-use regulator.

Paragraph 6.116

Recommendation 29.

The in-use regulator should have power to apply for a search warrant to obtain information which is relevant to an investigation.

Paragraph 6.123

Recommendation 30.

The in-use regulator should be under a duty to engage with those with an interest in the safety of automated vehicles, including local traffic authorities, the emergency services, road user groups and experts in the field.

Paragraph 6.135

A FORUM TO COLLABORATE ON ROAD RULES

Recommendation 31.

The UK Government should establish a forum for collaboration on how road rules, traffic laws and guidance such as the Highway Code should apply to automated driving.

Paragraph 6.148

COLLISION INVESTIGATION

Recommendation 32.

An independent collision investigation unit should be given responsibility for investigating serious, complex and high-profile collisions involving automated vehicles.

Paragraph 6.154

CYBERSECURITY

Recommendation 33.

The in-use regulator should have responsibility for developing and encouraging best practice with regards to ongoing AV cybersecurity. Where a lack of security gives rise to a safety concern, the regulator’s powers to deal with safety concerns should apply.

Paragraph 6.165

MARKETING DRIVING AUTOMATION

Recommendation 34.

It should be a criminal offence to engage in a commercial practice in connection with driving automation technology designed for use on roads or in public places if the commercial practice uses:

unless the driving automation technology is specified as a self-driving feature by the authorisation authority under the authorisation scheme recommended in this report.

The offence should not be committed if the only use of the driving automation technology is by a person who, as part of their employment, test drives vehicles equipped with driving automation technologies (a “safety driver”).

Paragraph 7.37

Recommendation 35.

It should be a criminal offence to:

Paragraph 7.45

Recommendation 36.

A due diligence defence should be available in respect of both offences (recommendations 34 and 35) if:

Paragraph 7.49

Recommendation 37.

The new Act should give the enforcement agency powers to accept voluntary undertakings and to apply to a court for civil enforcement orders in respect of both offences (recommendations 34 and 35).

Paragraph 7.57

Recommendation 38.

The new Act should require the Secretary of State for Transport to nominate an enforcement agency responsible for pursuing civil enforcement and preventing the offending conduct.

Paragraph 7.60

THE ROLE OF A USER-IN-CHARGE

Recommendation 39.

The new Act should define a user-in-charge as an individual who is in a vehicle and in position to operate the driving controls while a relevant ADS feature is engaged.

For these purposes, a “relevant ADS feature” is an ADS feature in an authorised vehicle which the authorisation authority has specified as self-driving for use with a user-in-charge.

An ADS is engaged from when it is switched on until:

Paragraph 8.25

Recommendation 40.

It should be an offence to be a user-in-charge:

Paragraph 8.33

Recommendation 41.

It should be an offence to cause or permit an unqualified or unfit person to act as a userin-charge.

Paragraph 8.41

Recommendation 42.

It should be an offence to be carried in a vehicle without a user-in-charge while an ADS feature specified for use with a user-in-charge is engaged. Persons should be guilty of the offence if they knew or ought to have known that:

Paragraph 8.50

Recommendation 43.

A provisional licence holder should be entitled to act as a user-in-charge if accompanied by an approved driving instructor in a vehicle with dual controls.

Paragraph 8.60

Recommendation 44.

While a relevant ADS feature is engaged, the user-in-charge should not be liable for any criminal offence or civil penalty which arises from dynamic driving.

The immunity should not apply if the user-in-charge has taken steps to override or alter the system so as to engage the ADS when it is not designed to function.

The immunity should cease if the user-in-charge deliberately interferes with the functioning of the ADS.

Paragraph 8.79

Recommendation 45.

The user-in-charge should continue to be responsible for the following matters which do not arise from dynamic driving:

The new Act should include a regulation-making power to adapt the lists of dynamic and non-dynamic offences in the light of experience, including a power to allocate some or all roadworthiness responsibilities to the ASDE.

Paragraph 8.103

Recommendation 46.

A user-in-charge should not be liable for any of the driving offences set out in sections 1 to 3A of the Road Traffic Act 1988.

Instead, a user in charge should be liable for a new offence of using a vehicle in an obviously dangerous state. The offence would be committed where:

that using the vehicle in its current state would be dangerous.

In deciding whether the vehicle is in a dangerous state, regard should be had to anything attached to or carried on or in it and to the manner in which it is attached or carried.

An aggravated form of the offence should apply where the use caused death or serious injury.

Paragraph 8.120

Recommendation 47.

The new Act should create a defence to any driving offence committed in the period immediately following a handover. The defence should be that the defendant’s driving did not fall below the standard reasonably expected of a competent and careful driver in the circumstances.

Paragraph 8.130

Recommendation 48.

The new Act should provide that a user-in-charge who fails to respond to a transition demand will acquire the legal responsibilities of a driver at the end of the transition period.

Paragraph 8.137

Recommendation 49.

The new Act should create a specific defence applying to driving offences committed in

Scotland by the driver of an automated vehicle with a user-in-charge function where:

Paragraph 8.151

NUIC OPERATOR LICENSING

Recommendation 50.

It should be an offence to use a vehicle on a road or other public place without a driver or user-in-charge unless:

Paragraph 9.87

Recommendation 51.

To obtain a NUIC operator licence, the applicant must show that it:

Paragraph 9.103

Recommendation 52.

The new Act should give the Secretary of State for Transport power to specify requirements as to good repute, appropriate financial standing and operating within Great Britain.

Paragraph 9.104

Recommendation 53.

To demonstrate professional competence, the applicant must submit a documented safety management system, setting out all safety related roles and the competence required for each.

Paragraph 9.105

Recommendation 54.

To obtain a NUIC operator licence, the applicant should submit a safety case, showing how safety will be assured. Among other things, the applicant’s safety case should set out:

Where an ASDE and the NUIC operator are the same entity, the entity may submit a joint safety case covering both roles, to be assessed by the authorisation authority.

In other cases, the safety case should address the ASDE’s written specifications for what must be done to ensure safe operation.

Paragraph 9.110

Recommendation 55.

When granting a licence, the regulator should specify the responsibilities which fall on the NUIC operator in the terms of the licence.

Paragraph 9.114

Recommendation 56.

The new Act should give the regulator powers to impose the following regulatory sanctions on NUIC operators:

Paragraph 9.120

Recommendation 57.

A NUIC operator should be under an obligation to respond to requests from the in-use regulator for information to monitor the continued compliance of NUIC operation. This would include information to compare the safety of NUIC vehicle operations with that of conventional vehicles.

Paragraph 9.123

Recommendation 58.

The regulator should have powers to inspect remote operation centres.

Paragraph 9.126

Recommendation 59.

The duration of a NUIC operator licence should be set in secondary legislation.

Initially, the duration should be five years.

Paragraph 9.131

Recommendation 60.

The new Act should place responsibility for NUIC operator licensing on the Secretary of State for Transport.

Paragraph 9.147

NUIC PASSENGER SERVICES

Recommendation 61.

The new Act should empower the Secretary of State for Transport and the Scottish and Welsh Ministers to issue interim permits for passenger services designed to use NUIC vehicles. The holder of an interim passenger permit would not be subject to taxi, private hire or PSV legislation.

Recommendation 62.

It should be a condition of a “Tier 1” NUIC operator licence that a NUIC vehicle should only provide passenger services in accordance with the terms of an interim passenger permit.

Paragraph 10.58

Recommendation 63.

The new Act should establish an accessibility advisory panel to advise on granting interim passenger permits and assist in the development of national minimum accessibility standards for NUIC passenger services.

The accessibility advisory panel should include:

Paragraph 10.62

Recommendation 64.

In the longer term, the Secretary of State for Transport should set national accessibility standards to apply to all self-driving passenger services using NUIC vehicles.

Paragraph 10.63

THE DUTY OF CANDOUR

Recommendation 65.

The new Act should create the following criminal offences:

Offence A: non-disclosure or misrepresentations by the ASDE

When putting forward a vehicle for authorisation as self-driving, it should be an offence for the ASDE to

where that information is relevant to the evaluation of the safety of the vehicle.

The ASDE should have a defence if it can show that it took reasonable precautions and exercised all due diligence to prevent the wrongdoing.

Offence B: non-disclosure or misrepresentations by a NUIC operator

When applying for NUIC operator licence, it should be an offence for the applicant to

where that information is relevant to the evaluation of the safety of the operation.

The NUIC operator should have a defence if it can show that it took reasonable precautions and exercised all due diligence to prevent the wrongdoing.

Offence C: non-disclosure and misrepresentations in responding to regulators’ requests

When the regulator responsible for either pre-deployment or in-use safety requests information from an ASDE or NUIC operator it should be an offence for the recipient to

where that information is relevant to the evaluation of the safety of the vehicle or the way that it operates.

The ASDE/NUIC operator should have a defence if it can show that it took reasonable precautions and exercised all due diligence to prevent the wrongdoing.

Offence D: the consent or connivance of senior managers

Where the ASDE/NUIC operator has committed Offence A, B or C, a senior manager would also be guilty of the offence if it took place with their consent or connivance.

A senior manager should be defined as a person who plays a significant role in:

Offence E: offences by the nominated person

Where the ASDE/NUIC operator has made a non-disclosure and misrepresentation in circumstances covered by offence A, B or C, the person who signed the relevant safety case or response to the request for information (“the nominated person”) would also commit the offence.

The nominated person would have a defence if they can show that they took reasonable precautions and exercised all due diligence to prevent the wrongdoing.

Offence F: aggravated offences in the event of death or serious injury following misrepresentation or non-disclosure

Where a corporation or person commits Offences A to E, the offence should be aggravated where the misrepresentation or non-disclosure:

Paragraph 11.86

WRONGFUL INTERFERENCE

Recommendation 66.

Legislative amendment should clarify that the tampering offence in section 25 of the Road Traffic Act 1988 applies to anything that is physically part of an automated vehicle, including sensors, and any software installed within it.

Paragraph 12.17

Recommendation 67.

The offence of taking a conveyance without authority under section 12 of the Theft Act 1968 should cover all motor vehicles.

Paragraph 12.27

Recommendation 68.

In England and Wales it should be an aggravated offence to wrongfully interfere with an AV, the road, or traffic equipment contrary to section 22A of the Road Traffic Act 1988, where the interference results in an AV causing death or serious injury.

Paragraph 12.54

Recommendation 69.

The mental element for the aggravated offence (recommendation 68) under section 22A should be intention to interfere with a vehicle, the road or traffic equipment.

Paragraph 12.57

CIVIL LIABILITY

Recommendation 70.

Section 1 of the Automated and Electric Vehicles Act 2018 should be amended to replace the current listing procedure with the authorisation procedure recommended in this report. The provisions of the Automated and Electric Vehicles Act 2018 concerning civil liability (sections 2 to 6 and 8) should apply to any vehicle authorised as having selfdriving features under the scheme set out in Chapter 5.

Paragraph 13.13

Recommendation 71.

The UK Government should review product liability law (including the Consumer Protection Act 1987) to take account of the challenges of emerging technologies. The review should cover product liability as a whole, rather than be confined to automated vehicles.

Paragraph 13.34

Recommendation 72.

The UK Government should put in place measures to provide compensation in respect of uninsured authorised vehicles, equivalent to that provided for under section 2(1) of Automated and Electric Vehicles Act 2018.

Paragraph 13.39

Recommendation 73.

The authorisation authority should require data to be collected and stored to process insurance claims.

The required data should include (but need not be limited to) the date, time and location of each occasion when:

The required data should be stored for 39 months from the date when it is recorded and, where a request is made for it within that period, until the required data has been given to the insurer.

Paragraph 13.52

Recommendation 74.

The new Act should impose a duty on those controlling AV data to disclose data to insurers, where the data is necessary to decide claims fairly and accurately.

Paragraph 13.61

Recommendation 75.

The in-use regulator should have a statutory power to issue a code of practice on AV data, to which all those disclosing data must have regard.

Paragraph 13.62

PUBLIC SECTOR

Autonomous Drivers Alliance (ADA), British Standards Institution (BSI), Centre for Connected and Autonomous Vehicles (CCAV), Centre for Data Ethics and Innovation (CDEI), Centre for the Fourth Industrial Revolution Israel, Lord Tim Clement-Jones CBE, Competition and Markets Authority (CMA), Crown Prosecution Service (CPS), National Traffic Department of Brazil (DENATRAN), Department for Business, Energy and Industrial Strategy (BEIS), Department for Infrastructure (Northern Ireland), Department for International Trade (DIT), Department for Transport (DfT), Disability Equality Scotland, Disabled Motoring UK, Disabled Persons Transport Advisory Committee (DPTAC), DPD, Driver and Vehicle Licensing Agency (DVLA), Driver and Vehicle Standards Agency (DVSA), European Commission, Federal Roads Office Switzerland (FEDRO), Health and Safety Executive (HSE), Highways England, The Highlands and Islands Transport Partnership (HITRANS), Information Commissioner’s Office (ICO), Innovate UK, Institute of the Motor Industry (IMI), International Telecommunications Union (ITU), International Vehicle Standards (IVS), Israel Innovation Authority, Intelligent Transport Systems (ITS) Japan, Joint Research Centre (JRC), Medicines and Healthcare Products Regulatory Agency (MHRA), Met Office, Metropolitan Police, Ministry of Justice (Israel), Ministry of Transportation and Road Safety (Israel), Mobility and Access Committee for Scotland (MACS), National Physical Laboratory, National Police Agency (Japan), National Transport Commission (Australia), Netherlands Vehicle Authority (RDW), Office for Low Emission Vehicles (DfT), Office for Low Emission Vehicles (OLEV), Office for Product Safety and Standards, Office of the Secretary of State for Scotland, Office of National Statistics (ONS), Oxfordshire County Council, Parliamentary Advisory Council for Transport Safety (PACTS), Police Scotland, Polis Network, Singapore Land Transport Authority, Traffic Commissioners for Great Britain, Transport Canada, Transport for Greater Manchester (TfGM), Transport for London (TfL), Transport for NSW, Transport for West Midlands (TfWM), Transport Scotland, UK Research and Innovation, United Nations Economic Commission for Europe (UNECE), Urban Transport Group, Vehicle Certification Agency (VCA), Welsh Government, World Economic Forum, Zenzic.

PRIVATE SECTOR

Transport, CAPRI consortium, CPC and WMG’s CertiCAV project, Cavanaugh Consulting, Chartered Institute of Highways and Transportation (CIHT), Chipside, Commission on the Future of Mobility, Connected and Autonomous POD on-Road Implementation (CAPRI), Connected Places Catapult (CPC), Certivity, Daimler AG, Darwin AI, Deloitte, DHL, Drive U, DRIVEN consortium, DriveNow, Ecomotion, EcoMotion, Edge Case Research, Endeavour consortium, Five AI, Freight Transport Association, Future Coders, Gemserv, Alex Glassbrook (Temple Garden Chambers), Goggo Network, Guide Dogs, Guy Carpenter & Company, Heathrow Airport (Heathrow Pods team), Lucy McCormick (Henderson Chambers), Hogan Lovells, If Vehicles, InMotion ventures, Intel, International Association of Traffic and Safety Sciences (IATSS), International Organization of Motor Vehicle Manufacturers (OICA), KPMG, Logistics UK, MaaS Global, Mitchell Gingrich (Autonomous Consulting), Mobile Programming LLC, Mobileye, MobOx, Motability, Motional, Motor Insurers’ Bureau (MIB), National Express, OmniCAV consortium, Ottopia, Oxbotica, P3 Mobility, PA Consulting, PIARC (World Road Association), Polis Network, Quibus, RAC Foundation, RAND, RTA Communication Systems, Road Collision Investigation Project (RCIP), Realising Accountable Intelligent Systems (RAInS), Reed Mobility, Research Institute for Disabled Consumers (RiDC), Road Haulage Association (RHA), Royal Academy of Engineering, Rydesafely, Society of Automotive Engineers International (SAE), Securing America’s Future Energy (SAFE), SafeKids, Smart Mobility Living Lab: London (SMLL), Mathias N. Schubert (Attorney at Law, Germany), Society of Motor Manufacturers and Traders (SMMT), Squire Patton Boggs LLP, Stephen Brookes MBE, StreetDrone, StreetWise consortium, Sustrans, Tech UK, Technova Inc, techUK, Tesla, Thatcham Research, Tim Marlow Ltd, Towards Identifying and closing Gaps in Assurance of autonomous Road vehicleS project (TIGARS), Transport Research Board (TRB), Transport Research Laboratory (TRL), Uber, Uber ATG (now part of Aurora), Unite the Union, University College London (UCL), Vianova, Volvo, Walking and Cycling Alliance, Warwick Manufacturing Group (WMG), Waymo, Wayve.

ACADEMICS

(University of South Carolina), Prof Rebecca Williams (University of Oxford), Dr Adam Wyner (Swansea University), Xinyi Wu (University of Edinburgh).

CONFERENCES AND WORKING GROUPS

2018

2019

Seminar (20 September 2019, London), International Longevity Centre (1 October 2019, London), AVIVA Automated Vehicles Working Group Roundtable (1 October 2019, Thatcham), SMMT 16th Annual Automotive In-House Lawyers’ Seminar (3 October 2019, London), BSI CAV Strategic Advisory Board Meeting (14 October 2019, London), BPA Annual Conference (17 October 2019), ITS Summit (17 October 2019, Coventry), DPTAC TRO Conference (23 October 2019, teleconference), Smart Mobility Summit 2019 (26 October 2019, Tel Aviv), BPA Local Authorities Meeting (South Central Group) (14 November 2019, Bedford), CAV Scotland (13 November 2019, Glasgow), Council of Europe - Judicial Committee (15 November 2019, Berlin), BPA North Local Authorities Meeting (19 November 2019, Durham), MobOx (19 November 2019, Oxford), Multi User Scenario Catalogue for Connected and Autonomous Vehicles (MUSICC) Symposium (26 November 2019, Milton Keynes), Assuring Autonomy programme, University of York, Toolkit for Responsible & Ethical Automated Driving (TREAD) Workshop (27 November 2019, York), BPA Local Authorities Annual Meeting (29 November 2019, Bath), BPA London Authorities Meeting (3 December 2019, London), PACTS Meeting (20 December 2019, London).

2020

2021

Universities of Aberdeen, Cambridge and Oxford’s Realising Accountable Intelligent Systems (RAInS) project workshop (7 July 2021), Automated Road Transport Symposium (ARTS21) AV safety metrics workshop (12 July 2021), AESIN Security Workstream conference (21 July 2021), PACTS Road Safety Strategy - Stakeholder Consultation Workshop (21 July 2021), Oxbotica Project Endeavour trial (10 August 2021, Greenwich), CAM Testbed UK and Zenzic stakeholder workshop on interoperable simulation (10 September 2021, Advanced Propulsion Centre, University of Warwick,), European Road Transport Research Advisory Council (ERTRAC) stakeholder workshop on Ethics for Connected, Cooperative and Automated Mobility (CCAM) (26 October 2021), Israel’s Ministry of Transport and Road Safety and the Smart Mobility Initiative’s Roundtable Discussion on the Current and Future Regulation of Autonomous Vehicles (8 November 2021), MOVE 2021 Conference (9 to 10 November 2021, London ExCel), International Association of Transportation Regulators 34th Annual Conference (15 December 2021).

Ongoing engagement

284


Introduction

Scope

288


CONSUMER PROTECTION FROM UNFAIR TRADING REGULATIONS 2008 (CPRs)

Displaying a trust mark, quality mark or equivalent without having obtained the necessary authorisation.

is likely to deceive the average consumer”; and

decision he would not have taken otherwise”.

any act, omission, course of conduct, representation or commercial communication (including advertising and marketing) by a trader, which is directly connected with the promotion, sale or supply of a product to or from consumers, whether occurring before, during or after a commercial transaction (if any) in relation to a product”.

PROTECTED TERMS IN UK LAW

mistaken for it, (whether alone or as part of another word),

unless the vehicles offered for hire are London cabs.

UK PRODUCT SAFETY LAW

a product which, under normal or reasonably foreseeable conditions of use including duration and, where applicable, putting into service, installation and maintenance requirements, does not present any risk or only the minimum risks compatible with the product’s use, considered to be acceptable and consistent with a high level of protection for the safety and health of persons.

1

CCAV is an expert unit set up by the UK Department of Transport and Department for Business, Energy and Industrial Strategy, reporting to the Secretary of State for Transport.

2

These have been outlined in several reports including KPMG, 2020 Autonomous Vehicles Readiness Index, https://assets.kpmg/content/dam/kpmg/xx/pdf/2020/07/2020-autonomous-vehicles-readiness-index.pdf, p 4. See also our analysis of CP2, at paras 6.10 to 6.11 and 6.126 to 6.144.

3

This is the definition of “driving itself” in s 8(1)(a) of the Automated and Electric Vehicles Act 2018, discussed in Ch 3 at paras 3.10 to 3.12.

4

See Ch 7 where we discuss how terms used in AV marketing may confuse drivers.

5

For discussion of the boundary see Thatcham Research and Association of British Insurers, Assisted and Automated Driving - Technical Assessment (June 2018): https://news.thatcham.org/documents/thatcham-research-assisted-and-automated-driving-definitions-technical-assessment-79493 and Defining Safe Automated Driving: Insurer Requirements for Highway Automation (September 2019): https://www.thatcham.org/what-we-do/automated-driving/safe-automated-driving/.

6

See Ch 2, paras 2.34 to 2.39.

7

Use cases can overlap and we are not seeking to draw artificial distinctions. For example, self-driving vehicles which may run empty between picking up passengers for different journeys raise similar questions about the use of automated vehicles to transport light goods, for example.

8

See Ch 10, paras 10.26 to 10.58.

9

For discussion of this area see for example the Resolution on Data Protection in Automated and Connected Vehicles of the 39th International Conference of Data Protection and Privacy Commissioners Hong Kong, 25-29 September 2017; and the Working Paper on Connected Vehicles adopted at the 63rd meeting of the International Working Group on Data Protection in Telecommunications, Hungary, 9-10 April 2018.

10

See the UN Regulation 155 on uniform provisions concerning the approval of vehicles with regards to cybersecurity and cyber security management system E/ECE/TRANS/505/Rev.3/Add.154 and the UN Regulation 156 on uniform provisions concerning the approval of vehicles with regards to software updates and software update management system E/ECE/TRANS/505/Rev.3/Add.155, both of which entered into force on 22 January 2021; and CCAV, Department for Transport, and the Centre for the Protection of National Infrastructure, The key principles of cyber security for connected and automated vehicles (August 2017): https://www.gov.uk/government/publications/principles-of-cyber-security-for-connected-and-automated-vehicles/the-key-principles-of-vehicle-cyber-security-for-connected-and-automated-vehicles.

11

Land use policy in England and Wales is primarily within the remit of the Department for Transport and is for the Scottish Government in Scotland. Local authorities also play a significant role in land use policy. Issues related to infrastructure and automated vehicles are being considered by organisations such as CCAV, Highways England, and also the Urban Land Institute UK. See https://uk.uli.org/wp-content/uploads/sites/35/2015/12/Driverless-Cars-and-the-City_Conference_InfoBurst_Urban-Land-Institute_UK_2015_FINAL.pdf.

12

  https://www.lawcom.gov.uk/project/automated-vehicles/.

13

  https://www.lawcom.gov.uk/project/automated-vehicles/.

14

We use the term “automated driving feature” to refer to a system that can drive a vehicle in a particular set of circumstances or “operational design domain”.

15

https://www.lawcom.gov.uk/project/automated-vehicles/.

16

  See https://www.lawcom.gov.uk/project/automated-vehicles/.

17

Automated Vehicles: Consultation Paper 2 on Passenger Services and Public Transport: A joint consultation paper (2019) Law Commission Consultation Paper No 245; Scottish Law Commission Discussion Paper No 169 (CP2), Ch 3.

18

CP2, Ch 8.

19

Automated Vehicles: Consultation Paper 3 - A regulatory framework for automated vehicles: A joint consultation paper (2020) Law Commission Consultation Paper No 252; Scottish Law Commission Discussion Paper No 171 (CP3), Ch 6.

20

CP3, Ch 9.

21

The following researchers at both Commissions contributed to earlier publications at various stages of this review: Eleanor Wilson, Ffion Bevan, Anna Holmes, Alexander Shattock, Fiona Petersen, Alastair Richardson, Danielle Worden, and Scott Cormack.

22

This split is reflected in the UNECE’s structure for regulating technical motor vehicle requirements through Working Party 29 (under the revised 1958 agreement); and road traffic safety through Working Party 1 (under the Vienna Convention on Road Traffic 1968 (adopted 8 November 1968, entered into force 21 May 1977) 1042 UNTS 17 (the Vienna Convention) and the Geneva Convention on Road Traffic 1949 (adopted 19 September 1949, entered into force 26 March 1952) 125 UNTS 3). Amendment 34bis to the Vienna Convention also highlights the distinction between rules about the operation and use of ADSs (a matter for domestic law) compared with technical requirements concerning the vehicle, equipment or parts themselves (matters for both domestic and international legal instruments).

23

The term ADS is explained below at para 2.21(1).

24

Society for Automotive Engineers International (SAE), J3016 Taxonomy and Definitions for Terms Related to Driving Automation Systems for On-Road Motor Vehicles (April 2021) (SAE Taxonomy J3016),

25

SAE Taxonomy J3016, pp 1 and 24.

26

People often refer to the tables published by the SAE rather than engaging with the full SAE Taxonomy set out in the detailed 41-page document. A common misconception is that ‘Level 5’ systems are the only ones that do not require any human intervention to complete a trip (whereas this can also include Level 4 systems, if the trip is entirely within the operational design domain).

27

SAE Taxonomy J3016, para 5.4.

28

SAE Taxonomy J3016, para 3.16.

29

SAE Taxonomy J3016, para 8.2.

30

SAE Taxonomy J3016, para 3.10 (DDT). This is a summary of the general definition of the DDT and its six subtasks which also encompass the operational and tactical aspects of driving. These include manoeuvre planning and enhancing conspicuity through lighting and signalling.

31

SAE Taxonomy J3016, para 3.19.

32

It is an offence for a person to drive a car on a road with a child passenger under 14 years of age who is not wearing the appropriate seat belt or restraint: Road Traffic Act 1988, s 15.

33

SAE Taxonomy J3016, p 17, para 3.21.

34

SAE Taxonomy J3016, p 11, para 3.12, note 6.

35

SAE Taxonomy J3016, para 3.2.

36

SAE Taxonomy J3016, para 3.7 note 2. Where a driving automation system feature can perform the entire DDT, the SAE refer to it as an “ADS feature”: see note 1 and examples 2 and 3.

37

SAE Taxonomy J3016, para 7.1. It is described as a “vernacular term” which is “sometimes used— inconsistently and confusingly—to characterize driving automation systems and/or vehicles equipped with them”.

38

Automated and Electric Vehicles Act 2018, s 1(1).

39

UN Regulation 157 on uniform provisions concerning the approval of vehicles with regard to Automated Lane Keeping Systems E/ECE/TRANS/505/Rev.3/Add.156 (ALKS Regulation).

40

In August 2020, the UK Government issued a call for evidence, exploring whether ALKS meet the test for self-driving set out in the AEVA 2018: CCAV, Safe Use of Automated Driving Systems Call for Evidence (August 2020). In April 2021 the UK Government published the responses received and consulted on possible changes to the Highway Code for the safe use of ALKS. See https://www.gov.uk/government/consultations/safe-use-of-automated-lane-keeping-system-on-gb-motorways-call-for-evidence.

41

See Daimler, “Mercedes-Benz receives world’s first internationally valid system approval for conditionally automated driving” (9 December 2021):

https://media.daimler.com/marsMediaSite/en/instance/ko.xhtml?oid=52173961&viewType=list.

42

  Mercedes-Benz, “Mercedes-Benz receives world’s first internationally valid system approval for conditionally

automated driving”: https://mercedes-benz-media.co.uk/en-gb/releases/1455#:~:text=AMG%20SL-,Mercedes%2DBenz%20receives%20world%27s%20first%20internationally%20valid%20system%20approv al%20for,a%20Level%203%20system1.

43

See CP3, Ch 3, for a full description and analysis of ALKS.

44

See UNECE, “UN regulation on Automated Lane Keeping Systems (ALKS) extended to trucks, buses and coaches” (26 November 2021): https://unece.org/media/press/362551.

45

For an overview of the changes under discussion by the Special Interest Group for Regulation 157, see Informal document, GRVA-11-32, 11th GRVA, 27 September to 1 October 2021, Agenda item 4(d), available at https://unece.org/sites/default/files/2021-09/GRVA-11-32e_0.pdf ; and the documents discussed at the Special Interest Group’s 11th meeting on 9 to 10 December, available at https://wiki.unece.org/display/trans/UNR157+-+11th+session.

46

As explained in the SAE Table, driving automation includes driver support features while automated driving does not.

47

The European New Car Assessment Programme (Euro NCAP) helps consumers across the EU and UK compare vehicles using a safety rating based on tests it designs and carries out. It developed automated driving tests in 2018 (revised as assisted driving tests in 2020) for assisted driving systems. See https://www.euroncap.com/en/vehicle-safety/safety-campaigns/2018-automated-driving-tests/ and https://www.euroncap.com/en/vehicle-safety/safety-campaigns/2020-assisted-driving-tests/.

48

ABI/Thatcham, Defining Safe Automated Driving: Insurer Requirements for Highway Automation (September 2019): see https://www.abi.org.uk/globalassets/files/publications/public/motor/2019/defining-safe-automation-technical-document-aug-2019.pdf. See also SMMT’s guiding principles for marketing automated vehicles developed and agreed by CCAV’s AV DRiVE working group: https://www.smmt.co.uk/2021/11/smmt-publishes-guiding-principles-for-marketing-automated-vehicles/.

49

Department for Transport, Code of Practice: Automated vehicle trialling, (February 2019)

https://www.gov.uk/government/publications/trialling-automated-vehicle-technologies-in-public/code-of-practice-automated-vehicle-trialling.

50

James Stacey Taylor, “autonomy” (Encyclopaedia Britannica, 20 June 2017): see https://www.britannica.com/topic/autonomy.

51

SAE Taxonomy J3016, para 7.1.1. The SAE comments that the use of terms such as “autonomous” and “self-driving” “can lead to confusion, misunderstanding, and diminished credibility” (para 7.1).

52

For further discussion, see Thatcham, “Automated Driving hype is dangerously confusing drivers, study reveals” (7 January 2019): https://www.thatcham.org/automated-driving-hype-is-dangerously-confusing-drivers-study-reveals/.

53

Road traffic legislation refers frequently to vehicles on a road or in a public place. For England and Wales, the Road Traffic Act 1988, s 192 defines a road as “any highway and any other road to which the public has access, and includes bridges over which a road passes”, Similar definitions are to be found in the Public Passenger Vehicles Act 1981, s 82; Goods Vehicles (Licensing of Operators) Act 1995, s 58; Road Traffic Offenders Act 1988, s 98; and Transport Act 1982, s 75. In Scotland, the main definition is to be found in the Roads (Scotland) Act 1984, s 151(1).

54

CP3, paras 2.3 to 2.12 and Appendix 2.

55

Clarke v General Accident Fire and Life Assurance Corpn plc and Cutter v Eagle Star Insurance Co Ltd [Conjoined Appeals] [1998] 1 WLR 1647 at 1652, citing Harrison v Hill 1932 JC 13 at 16; in Scotland: Aird v Vannet 1999 JC 205.

56

Cowan v DPP [2013] EWHC 192 (Admin), [2013] All ER (D) 116 (Jan); in Scotland: Brown v Braid 1985 SLT 37. For discussion of the even wider approach taken, see Appendix 2.

57

As discussed in CP3, Appendix 2, in Scots law access can include unlawful access, provided it is not obtained through overcoming a physical obstruction or in defiance of an express or implied prohibition: see Teale v Macleod 2008 SCCR 12 at [7] and [9] following Harrison v Hill 1932 JC 13 at 17 (Lord Sands).

58

Yates v Murray 2004 JC 16 at 21.

59

The proposed alterations to the Highway Code, a table of proposed changes and an explanatory memorandum were laid before Parliament on 1 December 2021 and are available at: https://www.gov.uk/government/consultations/review-of-the-highway-code-to-improve-road-safety-for-cyclists-pedestrians-and-horse-riders#history.

60

See Ch 5, paras 5.82 to 5.92.

61

For further discussion of the role and responsibilities of an ASDE, see Ch 5, paras 5.93 to 5.102.

62

See Ch 8, paras 8.9 to 8.25.

63

See Ch 3, paras 3.3 to 3.18.

64

Figure 2.2 Overview of the key legal actors.

65

For further discussion, see Ch 5, paras 5.3 to 5.43.

66

See Scotland Act 1998 s 28(8) (in Scotland), Government of Wales Act 2006 s 107(6), and the Sewel Convention: https://researchbriefings.files.parliament.uk/documents/SN02084/SN02084.pdf.

67

Scotland Act 1998, sch 5, head E1(d). Exceptions include parking, the offence of failing to comply with road signs and road safety information.

68

Scotland Act 1998, sch 5, head E1(d).

69

Scotland Act 1998 sch 5, head C8. Type approval constitutes “technical standards and requirements in relation to products” which, before EU exit, were obligations under EU law.

70

Civil wrongs, usually compensated by damages, the equivalent of the law of tort in England and Wales.

71

Including penalties and rules of procedure and evidence.

72

  Scotland Act 1998, sch 5, head E1(b).

73

  Government of Wales Act 2006, sch 7A, s E1.

74

  Government of Wales Act 2006, sch 7A, s E1, para 113,

75

  Scotland Act 1998, sch 5, head E1(d).

76

  Scotland Act 1998, sch 5, head E1(c).

77

See the specific exceptions in Scotland Act 1998, sch 5, head E1(c) and below.

78

The protected characteristics are set out in s 4 of the Equality Act 2010: age; disability; gender reassignment; marriage and civil partnership; pregnancy and maternity; race; religion or belief; sex; and sexual orientation.

79

Equality Act 2010, s 149.

80

NHTSA determined that 291 deaths were caused by air bags between 1990 and July 2008, primarily due to the extreme force that is necessary to meet the performance standard of protecting the unbelted adult male passenger. See D Glassbrenner, “Estimating the Lives Saved by Safety Belts and Air Bags”: https://nces.ed.gov/FCSM/pdf/2003FCSM_Glassbrenner.pdf, referred to in J M Anderson and others, Autonomous Vehicle Technology, A Guide for Policy Makers (RAND Corporation, 2016), https://www.rand.org/pubs/research_reports/RR443-2.html, p 102.

81

See Steve Lohr, “Facial Recognition Is Accurate, if You’re a White Guy” (NY Times, 9 February 2018): https://www.nytimes.com/2018/02/09/technology/facial-recognition-race-artificial-intelligence.html. Recently, the BBC reported that the UK passport photo checker programme was twice as likely to fail photographs submitted by darker-skinned women compared with those submitted by lighter skinned men: Maryam Ahmed, “UK passport photo checker shows bias against dark-skinned women” (BBC News, 7 October 2020): https://www.bbc.co.uk/news/technology-54349538.

82

For discussion of this issue in the context of gender, see C Criado Perez, Invisible Women: Exposing Data Bias in a World Designed for Men (2019).

83

CP3, Consultation Question 6. For further discussion, see Analysis of Responses to CP3 at para C.110.

84

  J-F Bonnefon, and others, Ethics of Connected and Automated Vehicles Recommendations on road safety,

privacy, fairness, explainability and responsibility (European Commission, 2020) https://data.europa.eu/doi/10.2777/966923.

85

They cited M Syed, Rebel Ideas: The Power of Diverse Thinking (2019) and Caroline Criado Perez, Invisible Women: Exposing Data Bias in a World Designed for Men (2020).

86

Mayor of London, Mayor’s Transport Strategy (2018), p 25.

87

In 2019, in England, adults with mobility difficulties made an average of 21 trips per person per year in taxis or private hire vehicles, compared to 11 such trips for the general population. DfT, Taxi and Private Hire Statistics 2021 (30 June 2021), p 14.

88

Hearing Link, “Facts about deafness and hearing loss” (April 2021): https://www.hearinglink.org/your-hearing/about-hearing/facts-about-deafness-hearing-loss/.

89

There are hearing requirements for coach and lorry drivers: see https://www.gov.uk/deafness-and-driving.

90

EU Revised General Safety Regulation (EU) 2019/2144, Official Journal L 325 of 16.12.2019 p 1.

91

UN Regulation 157 on uniform provisions concerning the approval of vehicles with regard to Automated Lane Keeping Systems E/ECE/TRANS/505/Rev.3/Add.156 (ALKS Regulation).

92

Out of 85 consultees, 67 (79%) agreed, 2 disagreed and 16 (19%) responded “other”.

93

See Ch 5, paras 5.79 to 5.80.

94

Out of 80 respondents who answered this question, 63 (79%) agreed, 5 (6%) disagreed and 12 (15%) gave other responses.

95

See Ch 13, paras 13.53 to 13.62.

96

The CP3 response we received from FG-AI4AD commented: “There are currently no regulations, no standards, no testing procedure or even industry best practice for assisted or automated driving system detection of low-impact collisions, vulnerable road user collisions, runover events or near miss events” (p 11).

97

Above, p 14. FG-AI4AD carried out public attitude research, asking “A young girl called Molly is crossing the road alone and is hit by an unoccupied self-driving vehicle. There are no eye-witnesses. What should happen next?”. Almost all (99%) of those asked said that it was crucial to record data about this event.

98

See CP3, paras 17.83 to 17.86, where we cited studies to suggest that considerably more information (including video feeds) may be needed, from up to 30 seconds before the crash to 10 seconds after it.

99

N Reed, S Khastgir, P Spence, B Balcombe and N Fleming, A review of CAV safety benchmarking and a proposal for a “Digital Commentary Driving” technique (BSI/CCAV, June 2021): see

https://www.bsigroup.com/globalassets/localfiles/en-gb/cav/bsi-cav-safety-benchmarking-report-2021.pdf.

100

For discussion, see CP3, paras 4.8 to 4.14 and ABI/Thatcham, Defining Safe Automated Driving (September 2019): see https://www.abi.org.uk/globalassets/files/publications/public/motor/2019/defining-safe-automation-technical-document-aug-2019.pdf.

101

This is summarised in CP1, Appendix 3. See also recent research by MIT using attention map and confusion matrix methodologies of glance behaviour across secondary tasks to compare this behaviour with baseline driving: B Reimer and others “Patterns in transitions of visual attention during baseline driving and during interaction with visual-manual and voice-based interfaces” (2021) 64 Ergonomics 1429.

102

Automated and Electric Vehicles Act 2018, s 8(1)(a).

103

The SAE Taxonomy J3016 refers to the following aspects of the dynamic driving task: lateral vehicle motion control via steering; longitudinal vehicle motion control via acceleration and deceleration; object and event response execution; manoeuvre planning and enhancing conspicuity. Society of Automotive Engineers International (SAE), J3016 Taxonomy and Definitions for Terms Related to Driving Automation Systems for On-Road Motor Vehicles (April 2021) (SAE Taxonomy J3016), para 3.10 sub-paragraphs 1, 2, 4, 5 and 6.

104

SAE Taxonomy J3016.

105

SAE Taxonomy J3016, para 3.10.

106

SAE Taxonomy J3016, para 3.18.

107

The SAE also refer to a fourth form of monitoring: monitoring the user “to assess whether and to what degree the user is performing the role specified for him/her” (para 3.18.1). Here we are not concerned with the monitoring of users but with monitoring of the vehicle and the driving environment. Under our scheme, a user-in-charge will be required to be qualified and fit to drive and will be responsible for monitoring their own fitness. For example, if they are not permitted to sleep, they will need to monitor their own level of drowsiness. Even if the ADS includes user monitoring technology, this would not absolve the user-in-charge from their responsibility to remain fit to drive.

108

SAE Taxonomy J3016, para 3.14.4, Note 4.

109

SAE Taxonomy J3016, para 3.18.3.

110

CP3, Consultation Question 1. For a full discussion of responses to this question, see Analysis of Responses to CP3 at para B.5.

111

P Koopman and B Osyk, “Safety Argument Considerations for Public Road Testing of Autonomous Vehicles” (2019) 1(2) SAE International Journal of Advances and Current Practices in Mobility 512.

112

CP3, Consultation Question 1(2).

113

SAE Taxonomy J3016, para 3.18, Note 3.

114

United Nations Economic Commission for Europe (UNECE) Global Forum for Road Traffic Safety (WP1), proposed resolution on safety considerations for activities other than driving undertaken by the driver when the automated driving system is exercising dynamic control (July 2021) ECE/TRANS/WP.1/2021/2, para 2(c). The proposed resolution is yet to be adopted. Discussions will resume in March 2022 with a view to a possible adoption at that time.

115

UN Regulation 157 on uniform provisions concerning the approval of vehicles with regard to Automated Lane Keeping Systems E/ECE/TRANS/505/Rev.3/Add.156 (ALKS Regulation), para 2.2.

116

The use of Deaf with a capital D refers to people who have been deaf all their lives or since before they learned to talk. “deaf” with use of lower case d refers to anyone with a severe hearing impairment. See the Deaf Health Charity Signhealth: https://signhealth.org.uk/resources/learn-about-deafness/deaf-or-deaf/.

117

CP3, para 4.89, quoting https://www.hearinglink.org/your-hearing/about-hearing/facts-about-deafness-hearing-loss/.

118

See UK Government, Deafness and Driving, https://www.gov.uk/deafness-and-driving.

119

By contrast, those seeking licences to drive buses, coaches or lorries must notify DVLA if they are deaf: see https://www.gov.uk/deafness-and-driving.

120

Oxbotica response to CP3, Consultation Question 2.

121

SAE Taxonomy J3016, Table 2, p 28.

122

SAE Taxonomy J3016, para 5.4.

123

At the end of the transition period the user-in-charge is treated as a driver.

124

CP3, para 4.91.

125

N Kinnear and others, “Safe performance of other activities in conditionally automated vehicles” (TRL, December 2020), published as Appendix A to Department for Transport, Safe Use of Automated Lane Keeping System (ALKS): Summary of Reponses and Next Steps (April 2021), https://www.gov.uk/government/consultations/safe-use-of-automated-lane-keeping-system-on-gb-motorways-call-for-evidence.

126

Strassenverkehrsgesetz (the German Road Traffic Act) (StVG), section 1a. The translation is taken from the Ministry of Digital Infrastructure’s website at https://www.bmvi.de/SharedDocs/EN/Documents/DG/eight-act-amending-the-road-traffic-act.pdf?__blob=publicationFile.

127

French Highway Code, Article 311-1-1(3.2). Official English translation in the notification draft submitted by France to the European Commission on 30 December 2020, ref 2020/852F (France). Available at https://ec.europa.eu/growth/tools-databases/tris/en/search/?trisaction=search.detail&year=2020&num=852.

128

French Highway Code, Article R319-1(I)(3). Official English translation in the notification draft submitted by France to the European Commission on 30 December 2020, ref 2020/852F (France).

129

UNECE Global Forum for Road Traffic Safety (WP1), proposed resolution on safety considerations for activities other than driving undertaken by the driver when the automated driving system is exercising dynamic control (July 2021) ECE/TRANS/WP.1/2021/2, para 3(e).

130

See Ch 5 of the report.

131

See Analysis of Responses to CP3, paras B.28 to B.34.

132

SAE Taxonomy J3016, para 5.4, note 2.

133

SAE Taxonomy J3016, para 5.5, note 1.

134

SAE Taxonomy J3016, para 3.16.

135

SAE Taxonomy J3016, para 3.16, note 3.

136

SAE Taxonomy J3016, para 3.11. The SAE distinguishes between a failure mitigation strategy and a minimal risk condition on the grounds that a failure mitigation strategy “is not part of the fallback function” and “occurs after the ADS has disengaged or been incapacitated by a rare, catastrophic event” (para 8.6).

137

SAE Taxonomy J3016, para 5.4, note 6.

138

SAE Taxonomy J3016, p 32, para 8.6.

139

This is subject to a specific defence where problems in driving have been brought about by the ADS: See Ch 8, paras 8.123 to 8.130.

140

At present, one of UK Government’s principles for introducing AVs on GB roads is that they should be able to cope with existing infrastructure. Existing infrastructure already mitigates the risk of stopping in lane by detecting stops and closing lanes and issuing warnings to motorists. In the future infrastructure could play a more central and interactive role in the overall safety case.

141

SAE Taxonomy, para 5.4.

142

SAE Taxonomy, para 3.17, Example 3.

143

CP3, para 4.103.

144

National Highway Traffic Safety Administration (NHTSA), Tires: see https://www.nhtsa.gov/equipment/tires.

145

Smart Driving, Tyre blowout: see https://smartdriving.co.uk/Driving/Driving_emergencies/blowout.htm.

146

The Strassenverkehrsgesetz (the German Road Traffic Act) (StVG).

147

StVG, as reported in the Federal Law Gazette of 20 June 2017, Part 1 No 38, p 1648.

148

Deutscher Bundesrat, Plenarprotokoll 954. Sitzung, 10.03.2017. The Bundesrat is the upper house of the German parliament. Their response and concerns regarding the introduction of the amendments are available at https://www.bundesrat.de/SharedDocs/downloads/DE/plenarprotokolle/2017/Plenarprotokoll-954.pdf?__blob=publicationFile&v=2.

149

French Highway Code, Article R412-17-1. Official English translation in the notification draft submitted by France to the European Commission on 30 December 2020, ref 2020/852F (France).

150

National Transport Commission (NTC), A national in-service safety law for automated vehicles (May 2021), https://www.ntc.gov.au/sites/default/files/assets/files/NTC-policy-paper-national-in-service-safety-law-for-AVs.pdf, para 12.6.2.

151

CP3, para 4.108.

152

CP3, para 4.111.

153

We explore the difference between dynamic and non-dynamic responsibilities in Chapter 8.

154

We discuss the threshold for safety in Chapter 4 and the authorisation process in Chapter 5.

155

A driver of a traditional vehicle could have difficulty coping with such an event; society tolerates the taking of these remote risks.

156

This test does not match any given SAE Level. It demands more from the automation than SAE Level 3, where the person in the driving seat must remain receptive to evident vehicle system failures, even in the absence of a request to intervene. However, unlike SAE Level 4, requiring the user-in-charge to respond to a clear and timely transition demand may be part of the safety case, if the authorisation agency considers this appropriate in the circumstances.

157

UNECE Global Forum for Road Traffic Safety (WP1), proposed resolution on safety considerations for activities other than driving undertaken by the driver when the automated driving system is exercising dynamic control (July 2021) ECE/TRANS/WP.1/2021/2, para 4(b) and (d).

158

UNECE Global Forum for Road Traffic Safety (WP1), proposed resolution on safety considerations for activities other than driving undertaken by the driver when the automated driving system is exercising dynamic control (July 2021) ECE/TRANS/WP.1/2021/2, paras 4(a); 5(b)(c)(d); and 6(a)(b).

159

In a 2019 poll, for example a third of motorists said they had not read the Highway Code since they took their test and one in five had not read it in 10 years: https://www.thisismoney.co.uk/money/cars/article-6716877/One-five-drivers-havent-picked-Highway-Code-decade.html.

160

Road Traffic Act 1988, s 38(7).

161

Stakeholders expressed particular concerns that users-in-charge would balance screens on their laps, in a way which would cause injury if the airbag deployed.

162

Road Vehicles (Construction and Use) Regulations 1986, reg 110. The emergency exception only applies if the driver is calling 112 or 999 in circumstances where it is unsafe or impracticable to cease driving (reg 110(5)). A further exemption applies for the use of mobile devices for remote parking functions (reg 110(5A)).

163

Road Vehicles (Construction and Use) Regulations 1986, reg 109.

164

For example, under the ALKS Regulation onboard infotainment systems must cut out as soon as there is a transition demand: see para 6.1.4.

165

Road Traffic Act 1988, s 41(1) confers a general power on the Secretary of State to make regulations “as to the use of motor vehicles and trailers on roads, their construction and equipment and the conditions under which they may be so used”.

166

ABI/Thatcham, Defining Safe Automated Driving (September 2019): see

https://www.abi.org.uk/globalassets/files/publications/public/motor/2019/defining-safe-automation-technical-document-aug-2019.pdf.

167

UNECE Global Forum for Road Traffic Safety (WP1), proposed resolution on safety considerations for activities other than driving undertaken by the driver when the automated driving system is exercising dynamic control (July 2021) ECE/TRANS/WP.1/2021/2, para 3(f) and (h).

168

UNECE Global Forum for Road Traffic Safety (WP1), proposed resolution on safety considerations for activities other than driving undertaken by the driver when the automated driving system is exercising dynamic control (July 2021) ECE/TRANS/WP.1/2021/2, para 3(c).

169

ALKS Regulation, para 6.3.1.

170

Mobileye response to CP1.

171

M S Blumenthal, L Fraade-Blanar, R Best and J L Irwin, Safe Enough: Approaches to Assessing Acceptable Safety for Automated Vehicles (RAND Corporation, 2020) (“RAND Report”), p 1, https://www.rand.org/pubs/research_reports/RRA569-1.html.

172

N Kalra and D Groves, The Enemy of Good: Estimating the Cost of Waiting for Nearly Perfect AVs (RAND Corporation, 2017), p ix, https://www.rand.org/content/dam/rand/pubs/research_reports/RR2100/RR2150/RAND_RR2150.pdf.

173

For further discussion of this point, see para 4.37 below.

174

See Analysis of Responses to CP3, Ch C.

175

Consultation Question 4.

176

Out of 89 respondents 22 (25%) thought that the most appropriate standard was as safe as a competent and careful driver and 24 (27%) thought that AVs should be safer than the average driver. Only 5 (6%) explicitly favoured a standard based on fault accidents. The remaining 38 (43%) provided developments of the tests, or alternative approaches.

177

Amnon Shashua, “The Challenge of Supporting AV at Scale” (26 May 2020), https://amnon-shashua.medium.com/the-challenge-of-supporting-av-at-scale-7c06196cced2. There are considerably more road deaths in the US than in GB: see CP1, paras 5.88 to 5.90,

178

For an explanation of SAE Level 2 driver assistance, see Ch 2, paras 2.8. to 2.9.

179

There are six offences of causing death - by dangerous driving (Road Traffic Act 1988 (RTA 1988), s 1); careless driving (RTA 1988, s 2B); careless driving under the influence of drink or drugs (RTA, s 3A), or while uninsured, unlicensed or disqualified (RTA 1988, ss 3ZB(a) and 3ZC). There are two offences of causing serious injury - by dangerous driving (RTA 1988, s 1A) and driving while disqualified (RTA 1988, s 3ZD). There is also an offence of “aggravated vehicle taking” under the Theft Act 1968, s 12A in England and Wales, which may be aggravated in various ways, including by death or injury.

180

In response to such calls, the Police, Crime, Sentencing and Courts Bill, currently before Parliament, introduces maximum life sentences for causing death by dangerous driving, and by careless driving under the influence of drink or drugs. It also introduces a new offence of causing serious injury by careless driving: see https://bills.parliament.uk/bills/2839.

181

For example, in the 10 years between 2009 to 2018, 3,214 people were imprisoned in England and Wales for offences of causing death or serious injury by driving. This included 1,357 people imprisoned for causing death by dangerous driving and 1,027 imprisoned for causing serious injury by dangerous driving. Ministry of Justice, Criminal justice system statistics quarterly: outcomes by offence data tool (2018), https://www.gov.uk/government/statistics/criminal-justice-system-statistics-quarterly-december-2018.

182

ABI/Thatcham response to CP3, Consultation Question 4.

183

For a discussion of these issues, see CP1, paras 5.89 to 5.97.

184

For further discussion of this issue, see CP3, paras 5.69 to 5.78.

185

For the period December 2019 to November 2020 California’s disengagement reports show that Cruise vehicles drove 770,000 miles; and Waymo vehicles 629,000 miles; see Steve Crowe, “Cruise, Waymo lead way in Calif. autonomous vehicle testing” (The Robot Report, 10 February 2021), https://www.therobotreport.com/cruise-waymo-lead-way-calif-autonomous-vehicle-tests/. Cumulatively Waymo vehicles have driven more than 20 million miles; see Reuters, “Waymo self-driving vehicles cover 20 million miles on public roads” (7 January 2020), https://www.reuters.com/article/us-autonomous-waymo-idUSKBN1Z61RX.

186

Mathematic modelling demonstrates, for example, that based on fatalities alone, it would take 8.8 billion miles of driving to show with 95% confidence that automated driving had 20% fewer fatalities than the average US rate: see RAND Corporation, Driving to Safety: How many miles of driving would it take to demonstrate autonomous vehicle reliability? (2016), https://www.rand.org/content/dam/rand/pubs/research_reports/RR1400/RR1478/RAND_RR1478.pdf.

187

Mobileye has conducted a similar calculation; to reduce the fatality rate by three orders of magnitude would require testing in the order of thirty billion miles: S Shalev-Shwartz, S Shammah and A Shashua, “On a Formal Model of Safe and Scalable Self-driving Cars” (Mobileye, 2017), https://arxiv.org/pdf/1708.06374.pdf, p 4.

188

See, for example, the Analysis of Responses to CP1, paras 2.12 to 2.15 and Analysis of Responses to CP3, paras C.126 to C.132 and D.26.

189

Equality Act 2010, s 149.

190

CP1, paras 5.86 to 5.97.

191

CP3, para 10.76.

192

R (X) v Tower Hamlets London Borough Council [2013] EWHC 480 (Admin), [2013] All ER 157, [35], by Males J (when he was a High Court judge).

193

R (Munjaz) v Mersey Care NHS Trust [2005] UKHL 58, [2006] 2 AC 148, [21], by Lord Bingham and [68] -[69] by Lord Hope.

194

R (Munjaz) v Mersey Care NHS Trust [2005] UKHL 58, [2006] 2 AC 148, [21], by Lord Bingham and [68] -[69] by Lord Hope; R (X) v Tower Hamlets London Borough Council [2013] EWHC 480 (Admin), [2013] All ER 157, [35], by Males LJ (when he was a High Court judge). Similarly, failure to follow a published policy is an established ground of judicial review: R (Lumba) v Secretary of State for the Home Department [2011] UKSC 12, [2012] 1 AC 245, [26], by Lord Dyson, [202], by Lady Hale and [313], by Lord Phillips; R (Lee-Hirons) v Secretary of State for Justice [2016] UKSC 46, [2017] AC 52, [17], by Lord Wilson and [50], by Lord Reed.

195

Ch 6, paras 6.28 to 6.37.

196

The regulation of vehicle standards is described in detail in CP3, Ch 6.

197

Subject to the Vienna Convention on Road Traffic 1968, discussed in CP1, paras 2.48 to 2.54.

198

UN Regulation 157 on uniform provisions concerning the approval of vehicles with regard to Automated Lane Keeping Systems E/ECE/TRANS/505/Rev.3/Add.156 (ALKS Regulation).

199

See discussion below at paras 5.26 to 5.34.

200

In the United States, Waymo currently run automated passenger services in the city of Phoenix, Arizona. The vehicles it uses are Chrysler Pacifica vehicles which Waymo has adapted with automated technologies. Uber has used Volvo vehicles in the past to trial automated vehicles technologies.

201

We also proposed that those seeking approval should be required to specify the type of vehicle in which their system is installed and give detailed information about how it would be installed in that type of vehicle.

202

For example, Articles 3 and 4 of the ALKS Regulation make clear that approval is to be granted to a type of vehicle with regard to its ALKS not the ALKS itself. UN Regulations for other vehicle systems are the same.

203

We feel it is now misleading to refer to the entity taking responsibility for the AV after stage 2 as an Automated Driving System Entity (ADSE), when in fact, they will take responsibility for the self-driving vehicle as a whole. To this end, we now refer to this entity as an Authorised Self-Driving Entity (ASDE).

204

eCall telephones emergency services following a major collision. Other significant “EU only” regulations relate (for example) to registration plates and vehicle identification; wheel guards; tyre installation; the refrigerant in air conditioning systems; and gear shift indicators. For further discussion, see CP3, paras 6.11 to 6.15 and 6.40 to 6.43.

205

The scheme currently covers vehicles in categories L (Motorcycles and quadricycles) ,M (Passenger vehicles), N (Goods Vehicles) and T (Agricultural and Forestry Tractors):see https://www.vehicle-certification-agency.gov.uk/vehicle-type-approval/issuing_gb_type_approval/.

206

Vehicle Certification Agency, “Issuing GB type approval” (3 August 2021): see https://www.vehicle-certification-agency.gov.uk/vehicle-type-approval/issuing_gb_type_approval/.

207

See para 5.41.

208

Art 3(2) of the revised 1958 agreement, prohibits “any further testing, documentation, certification or marking” concerning a UNECE approval.

209

See Figure 5.1.

210

UN Regulation 157 on uniform provisions concerning the approval of vehicles with regard to Automated Lane Keeping Systems E/ECE/TRANS/505/Rev.3/Add.156 (ALKS Regulation), as discussed in Ch 2.

211

As discussed in Ch 6. The EU provisions are now in art 39 of Regulation 2018/858 (and were formerly in art 20 of the Framework Directive). The UNECE procedure is in art 12.6 and sch 7 of the revised 1958 agreement.

212

We discuss this test in detail in Ch 3. We discuss what it means for an AV to be safe in Ch 4.

213

They would be a user-in-charge. See Ch 8.

214

The explanatory memorandum to the amendment to the Vienna Convention on Road Traffic, available in the Report of the Global Forum for Road Traffic Safety on its eighty-first session (December 2020) ECE/TRANS/WP.1/173, Annex 2, para 8. The ‘Vienna Convention’ refers to the Vienna Convention on Road Traffic 1968, which is administered by the UNECE.

215

See Ch 2, paras 2.41 - 2.43 and Figure 2.2 which set out the ASDE’s role.

216

See Figure 7.1

217

Under the ALKS Regulation, para 5.1.2, the type approval authority must verify that the system complies with “traffic rules” in all intended countries of operation.

218

Revised 1958 agreement, art 1. Additionally, if the UK decided the safety of AVs on British roads warranted a much more serious option, it could cease applying one or all UN Regulations under article 1 of the revised 1958 agreement - provided the decision was compatible with any obligations arising under the UK’s trade agreements.

219

As discussed in Ch 2, the SAE Taxonomy J3016 accommodates the possibility that an AV might have different “features” with different functionality depending on its ODD (para 3.7).

220

T Kelley, “Arguing Safety - A systematic Approach to managing safety cases” (1998) University of York PhD thesis, p 22.

221

CP3, paras 17.8 to 17.26. We understand that efforts are now underway at a UNECE level to increase the number of events that can potentially trigger an EDR: see for example the proposal for the 01 series of amendments to the UN Regulation on Event Data Recorders (ECE/TRANS/WP.29/2021/58) at https://unece.org/transport/documents/2021/01/working-documents/grsg-proposal-01-series-amendments-un-regulation-no

222

CP3, paras 17.20 to 17.26

223

Such as those in which an air bag has not been deployed.

224

Good repute is also a requisite condition of air operator and railway undertaking licences, granted by the Civil Aviation Authority (CAA) and Office of Rail and Road (ORR) respectively: Regulation on common rules for the operation of air services (EC) No 1008/2008, Official Journal L 293 of 31.10.2008 p 3; Railway (Licensing of Railway Undertakings) Regulations 2005, SI No 3050, s 6(7).

225

The power of the senior traffic commissioner to give guidance and directions is provided for by section 4C of the Public Passenger Vehicles Act 1981. See Senior Traffic Commissioner, Statutory Document No 2: Finance (October 2021):

https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/1025773/ Stat_Doc_2_Finance_-_Version_15.0.pdf.

226

Senior Traffic Commissioner, Statutory Document No 1: Good Repute and Fitness (October 2021): see https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/1025761/ STATDO_1.PDF.

227

Goods Vehicles (Licensing of Operators) Act 1995, sch 3 para 2; Public Passenger Vehicles Act 1981, sch 3 para 1(3). For the meaning of “serious offence” see the Goods Vehicles (Licensing of Operators) Act 1995, sch 3 para 3 and the Public Passenger Vehicles Act 1981, sch 3 para 1(4). For the meaning of “road transport offence”, see the Goods Vehicles (Licensing of Operators) Act 1995, sch 3 para 4 and the Public Passenger Vehicles Act 1981, sch 3 para 3(5).

228

Goods Vehicles (Licensing of Operators) Act 1995, sch 3 para 1(1); Public Passenger Vehicles Act 1981, sch 3 para 1(9).

229

Goods Vehicles (Licensing of Operators) Act 1995, sch 3 para 1(1)(a) and (2)(a); Public Passenger Vehicles Act 1981, sch 3 para 1(1)(a) and 1(2)(a). “Relevant convictions” for the purposes of the Goods Vehicles (Licensing of Operators) Act 1995 are defined in schedule 2, paragraphs 4 and 5 and broadly cover road safety, fitness to hold a licence and environmental protection. A “relevant conviction” for the purposes of the Public Passenger Vehicles Act 1981 is defined in section 82 and means is a conviction (other than a spent conviction) of an offence prescribed for the purposes of the Act, or an offence under the law of Northern Ireland or any other territory outside the UK corresponding to such an offence.

230

Goods Vehicles (Licensing of Operators) Act 1995, sch 3 para 1(1); Public Passenger Vehicles Act 1981, sch 3 para 1(9).

231

See Ch 6, paras 6.149 to 6.154 for our recommendation that there be a specialist road collision unit to investigate accidents involving AVs.

232

89% of those who responded agreed and only 1% disagreed. For further discussion, see Analysis of Responses to CP3, para E.62.

233

Response by KPMG to CP3, Consultation Question 14.

234

The standard of safety required is discussed in Chapter 4.

235

UN Regulation 155 on uniform provisions concerning the approval of vehicles with regards to cybersecurity and cyber security management system E/ECE/TRANS/505/Rev.3/Add.154 (the Cybersecurity Regulation) and UN Regulation 156 on uniform provisions concerning the approval of vehicles with regards to software updates and software update management system E/ECE/TRANS/505/Rev.3/Add.155 (the Software Update Regulation) require manufacturers to maintain these systems as a condition of approval under these regulations. For approvals under the Cybersecurity Regulation there is the fundamental requirement that the manufacturer keep the vehicle cyber-secure throughout its lifetime and for the approval authority to oversee this.

236

Under the terms of the Northern Ireland Protocol, EU Regulation 2018/858 will continue to apply in Northern Ireland.

237

See, for example, the Secretary of State’s regulation making powers under sections 45 and 54 of the Road Traffic Act 1988.

238

UN Regulation 157 on uniform provisions concerning the approval of vehicles with regard to Automated Lane Keeping Systems E/ECE/TRANS/505/Rev.3/Add.156 (ALKS Regulation), Annex 4, para 3.5.4.

239

L Fraade-Blanar and others, Measuring Automated Vehicle Safety: Forging a Framework (RAND Corporation, 2018): see https://www.rand.org/pubs/research_reports/RR2662.html. For discussion, see CP3 paras 10.66 to 10.71. See also Automated Vehicle Safety Consortium, Best Practice for Metrics and Methods of Assessing Safety Performance of Automated Driving Systems (ADS) (June 2021), https://avsc.sae-itc.org/principle-6-5471WV-46540KJ.html?respondentID=30123780#Read-More.

240

Please see Ch 2 at para 2.43 for the rationale behind this change.

241

CP3, para 11.18.

242

See Ch 5, paras 5.93 to 5.94, 5.96 and 5.100.

243

See Ch 11, paras 11.19 to 11.21.

244

CP3, para 4.72.

245

Responses were to Consultation Question 18 which asked whether there should be an in-use scheme and outlined its responsibilities and powers. Out of 65 responses to this question, 51 (78%) consultees who replied agreed and only one disagreed.

246

Criminal Liability in Regulatory Contexts: A Consultation Paper (2010) Law Commission Consultation Paper No 195.

247

General Product Safety Regulations 2005 (GPSR), reg 15(1).

248

GPSR, reg 15(4).

249

GPSR, reg 11.

250

GPSR, reg 12. The authority can also “make the marketing of the product subject to prior conditions”.

251

GPSR, reg 14.

252

GPSR, reg 17.

253

DVSA code of practice, para 7.1

254

Criminal Liability in Regulatory Contexts: A Consultation Paper (2010) Law Commission Consultation Paper No 195.

255

Richard Macrory, Regulatory Justice: Making Sanctions Effective Final Report (November 2006), https://webarchive.nationalarchives.gov.uk/20121205164501/http:/www.bis.gov.uk/files/file44593.pdf, para 1.11.

256

Financial Services and Markets Act 2000, s 207.

257

Financial Conduct Authority, The Decision Procedure and Penalties manual, (December 2020) https://www.handbook.fca.org.uk/handbook/DEPP.pdf.

258

In CP1 and CP3 we referred to these as “fines”. We now refer to civil penalties to clarify that they are to be imposed by the regulator, not the criminal courts.

259

Department for Business, Innovation and Skills (Better Regulation Delivery Office): Regulator’s Code (April 2014), para 6.

260

Data Protection Act 2018, s 157; Wireless Telegraphy Act 2006, ss 32D, 43, 53F and 53L; Communications Act 2003, ss 35A, 41, 96B, 97, 105T, 105Z19, 130, 139ZA, 198ZA, 237, 332, 341, 345, 368J, 368Z4 and sch 13; Gas Act 1986, s 30O; Electricity Act 1989, s 27O.

261

Civil Penalty Amounts, 86 Fed Reg 23243 (3 May 2021) (to be codified at 49 USC § 30165(a)(1) and (3)).

262

Ofgem, 9 August 2019 power outage report (3 January 2020), https://www.ofgem.gov.uk/publications/investigation-9-august-2019-power-outage, p 37.

263

Ofgem, Enforcement Guidelines (2017), https://www.ofgem.gov.uk/system/files/docs/2017/10/enforcement_guidelines_october_2017.pdf, p 60.

264

An order could be directed at a specified category of consumers (eg all consumers served by a particular company) or an appropriate charity or trust or organisation whose objectives make it a suitable proxy for consumers who might have been directly affected.

265

A software regression occurs where a feature that worked before stops working, typically after a system upgrade.

266

See Ch 7 for our recommendations about communications regarding unauthorised systems.

267

Railways (Interoperability) Regulations 2011, reg 4(1) Railways and Other Guided Transport Systems (Safety) Regulations, reg 3(1).

268

Office of Road and Rail (ORR), “Safety certificates and safety authorisations”:

https://www.orr.gov.uk/guidance-compliance/rail/health-safety/laws/rogs/certificates-authorisations.

269

Railways and Other Guided Transport Systems (Safety) Regulations 2006, reg 15(3).

270

We note that informal working papers of the UNECE VMAD group have also suggested the need for inservice authorities to be able to withdraw/suspend and ADS from the market. See VMAD-SG3-13-02 and VMAD-SG3-13-03 at https://globalautoregs.com/groups/160-vmad-sg3.

271

Richard Macrory, Regulatory Justice: Making Sanctions Effective Final Report (November 2006), https://webarchive.nationalarchives.gov.uk/20121205164501/http:/www.bis.gov.uk/files/file44593.pdf.

272

Richard Macrory, Regulatory Justice: Making Sanctions Effective Final Report (November 2006), https://webarchive.nationalarchives.gov.uk/20121205164501/http:/www.bis.gov.uk/files/file44593.pdf para 4.39.

273

Christine Parker, “Restorative Justice in Business Regulation? The Australian Competition and Consumer Commissions Use of Enforceable Undertakings” (2004) 67(2) Modern Law Review, 222.

274

In the criminal context the Restorative Justice Council recommends that for any kind of communication to take place, the offender must have admitted to the crime, and both victim and offender must be willing to participate. Restorative justice can be used for any type of crime and at any stage of the criminal justice system, including alongside a prison sentence. See https://restorativejustice.org.uk/about-restorative-justice.

275

Data Protection Act 2018, s 162(1).

276

Competition Act 1998, ss 46(1) and (2) and 59(1) and Part 4 of the Enterprise Act 2002 in respect of a market investigation reference.

277

Police and Criminal Evidence Act 1984, s 8.

278

Police and Criminal Evidence Act 1984, s 23. A constable may seize anything in the vehicle which “he has reasonable grounds for believing is evidence in relation to an offence” and might be “concealed, lost, altered or destroyed”: s 19(3). This would include the right to download electronic data from the vehicle: s 19(4).

279

Search Warrants (2020) Law Com No 396, ch 19.

280

Road Vehicles (Approval) Regulations 2020 SI No 818, sch 4 para 10; Transport Act 1968, ss 99, 99ZB and 99ZF; Public Service Vehicles (Enforcement Powers) Regulations 2009 No 1964, reg 3(1); Goods Vehicles (Licensing of Operators) Act 1995, ss 41, 42 and sch 5 para 3.

281

Search Warrants (2018) Law Commission Consultation Paper No 235, para 11.59.

282

The proposed alterations to the Highway Code, a table of proposed changes and an explanatory memorandum were laid before Parliament on 1 December 2021 and are available at:

https://www.gov.uk/government/consultations/review-of-the-highway-code-to-improve-road-safety-for-cyclists-pedestrians-and-horse-riders#history.

283

For a summary of the proposals, see https://www.gov.uk/government/consultations/review-of-the-highway-code-to-improve-road-safety-for-cyclists-pedestrians-and-horse-riders/summary-of-the-consultation-proposals-on-a-review-of-the-highway-code.

284

Proposed alterations to Highway Code (December 2021), p 13:

https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/1041273/t he-highway-code-alteration-to-the-highway-code.pdf.

285

GB Highway Code Rule 163.

286

RAC Foundation, Department for Transport and National Highways, Road Collision Investigation Project (RCIP): see https://www.racfoundation.org/collaborations/road-collision-investigation-project.

287

Department for Transport, Open Consultation: Creating a Road Collision Investigation Branch (RCIB) (28 October 2021): see https://www.gov.uk/government/consultations/creating-a-road-collision-investigation-branch-rcib.

288

UN Regulation 155 on uniform provisions concerning the approval of vehicles with regards to cybersecurity and cyber security management system E/ECE/TRANS/505/Rev.3/Add.154, para 5.1.1 (a) - (e).

289

We would also expect that where the provisions of UN Regulation 155 on cybersecurity appear to be broken, the in use-regulator would also refer the issue to the original Regulation 155 approval authority and the authorising authority.

290

In response to CP1, Consultation Question 8(2): out of 121 respondents answering this question, 109 (90%) agreed, only 3 disagreed, and 9 answered “other”. See Analysis of Responses to CP1, para 4.30. In response to CP3, Consultation Question 9(1): out of 76 responses, 65 (86%) agreed. The full analysis of responses is published alongside the report.

291

Summary of responses to CP3 and next steps, para C.18.

292

The SAE Taxonomy defines the term “driving automation technology” as “the hardware and software that are collectively capable of performing part or all of the DDT on a sustained basis: this term is used generically to describe any system capable of Level 1 to 5 driving automation”: Society of Automotive Engineers International (SAE), J3016 Taxonomy and Definitions for Terms Related to Driving Automation Systems for On-Road Motor Vehicles (April 2021) (SAE Taxonomy J3016), para 3.6.

293

Thatcham Research, Euro NCAP & Global NCAP, #TestingAutomation (October 2018), https://www.thatcham.org/automated-driving-hype-is-dangerously-confusing-drivers-study-reveals/.

294

This issue has been coined “autonowashing” by Liza Dixon, https://www.sciencedirect.com/science/article/pii/S2590198220300245.

295

In the unlikely event that future United Nations Economic Commission for Europe (UNECE) regulations allow driving automation technologies which the UK determines not to be safe at all (even with a traditional driver), the UK can resort to the dispute resolution procedure, as discussed at paras 5.56 to 5.58.

296

Consumer Protection from Unfair Trading Regulations 2008 (CPRs) (SI 2008 No 1277), sch 1, para 2. This is a criminal offence under reg 12.

297

CPRs, reg 5(2)(a).

298

§ 228.28 of the California Code of Regulations, Title 13, Division 1, Chapter 1, Article 3.8(a).

299

§ 228.28 of the California Code of Regulations, Title 13, Division 1, Chapter 1, Article 3.8(b).

300

See https://asia.nikkei.com/Business/Automobiles/China-s-auto-industry-calls-for-standardized-self-driving-claims.

301

In 2020 the Centre for Protection against Unfair Competition (Wettbewerbszentrale) took action against Tesla for its use of the word “autopilot”. The Centre argued that the term, taken with associated marketing material, misled customers into believing that the vehicles could drive autonomously. The District Court Munich I (Landgericht Munchen I) agreed and banned Tesla from repeating misleading claims: see https://www.bbc.co.uk/news/technology-53418069.

302

See https://www.bbc.co.uk/news/technology-44225059.

303

CPRs, reg 2.

304

SAE Taxonomy J3016, para 3.5.

305

See Ch 5.

306

As defined at para 7.36.

307

SAE Taxonomy J3016, para 7; ABI/Thatcham, Defining Safe Automated Driving: Insurer Requirements for Highway Automation (September 2019),

https://www.abi.org.uk/globalassets/files/publications/public/motor/2019/defining-safe-automation-technical-document-aug-2019.pdf; for further discussion, see Ch 2 on key concepts.

308

For example, Autonomous Emergency Braking or “AEB”: see https://www.thatcham.org/what-we-do/car-safety/autonomous-emergency-braking/.

309

See, for example, SMMT’s guiding principles for marketing automated vehicles developed and agree by CCAV’s AV DRiVE working group: https://www.smmt.co.uk/2021/11/smmt-publishes-guiding-principles-for-marketing-automated-vehicles/; Zenzic/Thatcham automated driving system consumer ratings: see https://news.thatcham.org/pressreleases/zenzic-and-thatcham-research-reveal-plans-for-automated-driving-system-consumer-ratings-3127080; ABI/Thatcham, Defining Safe Automated Driving: Insurer Requirements for Highway Automation (September 2019), https://www.abi.org.uk/globalassets/files/publications/public/motor/2019/defining-safe-automation-technical-document-aug-2019.pdf; Euro NCAP assisted driving tests: see https://www.euroncap.com/en/vehicle-safety/safety-campaigns/2020-assisted-driving-tests/.

310

https://www.thatcham.org/automated-driving-hype-is-dangerously-confusing-drivers-study-reveals/.

311

See for example the case of Comma.ai which marketed a $1,000 after-market kit called Comma One in 2016 which it claimed was capable of adding semi-autonomous capabilities to conventional cars. The kit was withdrawn after the National Highway Traffic Safety Administration (NHTSA) threatened the company with a fine of up to $21,000 per day unless it proved the safety of the self-driving feature. See https://www.businessinsider.com/george-hotz-comma-ai-shuts-down-driverless-car-project-2016-10?r=US&IR=T.

312

See, for example, the Automated Vehicle Safety Consortium’s (AVSC) Best Practice for in-vehicle fallback test driver (safety operator) selection, training, and oversight procedures for automated vehicles under test, (AVSC00001201911), published 8 November 2019, which addresses the qualifications and training for onboard human oversight of testing for automated driving system (ADS)-operated vehicles.

313

SI 2009 No 2890, reg 6.

314

An alternative approach which may be useful for drafting purposes is for the offence to apply only to advertising intended to come to the attention of persons in Great Britain. See Gambling Act 2005, s 333(4).

315

Enterprise Act 2002, s 217.

316

Enterprise Act 2002, s 219.

317

Enterprise Act 2002, s 211(1) for domestic infringements, s 212(1) for Schedule 13 infringements.

318

Enterprise Act 2002, ss 215 and 217.

319

Above, s 218.

320

Above, s 219.

321

Above, s 220.

322

Granted under the Consumer Rights Act 2015, sch 5.

323

Business Protection from Misleading Marketing Regulations 2008 (BPRs) (SI 2008/1276), reg 15.

324

BPRs, regs 16 and 18.

325

BPRs, regs 3, 13(1) and 13(4).

326

As discussed in Ch 2, an ADS “feature” is a combination of software and hardware which allows a vehicle to drive itself in a particular operational design domain (such as a motorway).

327

Of the 139 respondents who answered this question, 110 (79%) agreed, 23 (17%) answered “other” and 6 (4%) disagreed.

328

CP3, paras 12.17 to 12.20.

329

Of the 79 respondents who answered this question, 37 (47%) agreed, 38 (48%) answered “other” and 4 (5%) disagreed.

330

See Road Vehicles (Construction and Use) Regulations 1986, reg 110(5A).

331

CP3, paras 12.8 to 12.10.

332

CP3, Consultation Question 31 at para 12.53. This reflected a similar proposal in CP1, Consultation Question 25 at para 7.46.

333

Road Traffic Act 1988, s 87(1).

334

Road Traffic Act 1988, s 103(1)(b).

335

Road Traffic Act 1988, s 92(10).

336

Road Traffic Act 1988, s 96(1).

337

Road Traffic Act 1988, s 4(1). See also the offence of “being in charge of” a vehicle under the influence of drink or drugs, Road Traffic Act 1988, s 4(2).

338

Road Traffic Act 1988, s 5(1)(a). See also the offence of “being in charge of” a vehicle with alcohol concentration above the prescribed limit, s 5(1)(b).

339

Road Traffic Act 1988, s 5A(1)(a). See also the offence of “being in charge of” a vehicle with concentration above the specified limit, s 5A(1)(b). There is a defence under s 5A(3) if the drug was used in accordance with medical advice.

340

See Road Traffic Act 1988, s 4(2); s 5(1)(b) and s 5A(1)(b). Although the concept of being “in charge” of a vehicle may cover a user-in-charge, we did not wish to rely on case law developed in a different context to cover the new challenges of automated driving.

341

Of the 71 respondents who answered this question, 59 (83%) agreed, 10 (14%) answered “other” and 2 (3%) disagreed.

342

Road Traffic Act 1988, s 87(2).

343

CP3, para 12.51.

344

Lloyd v Singleton [1953] 1 QB 357 at p 359.

345

Lloyd v Singleton [1953] 1 QB 357 at p 359.

346

See CP1, para 7.43. Indictable offences are subject to an identical provision under the Accessories and Abettors Act 1861, s 8.

347

Criminal Procedure (Scotland) Act 1995, s 293(2). The Scots common law principle of “art and part” liability may also apply, though it is uncertain whether this covers strict liability offences - see Stair Memorial Encyclopaedia, Criminal Law (2nd Reissue 2005) at para 129.

348

Pope v Minton [1954] Crim LR 711.

349

Valentine v Mackie 1980 SLT (Sh Ct) 122. After the two had attended a German beer festival together the previous evening, the accused had allowed the learner driver to take over driving under his supervision shortly after collecting him from his home.

350

CP3, Consultation Question 32. We first proposed this offence in CP1, Consultation Question 26.

351

Of the 70 respondents who answered this question, 44 (63%) agreed, 20 (29%) answered “other” and 6 (9%) disagreed.

352

The CertiCAV team at Connected Places Catapult. See also responses by KPMG, DAC Beachcroft and Burges Salmon.

353

Weightmans.

354

Richard Morris, Andrew Catlin.

355

Andrew Catlin.

356

This test was preferred by the International Underwriting Association (IUA), Urban Transport Group (UTG), Kennedys Law, HORIBA MIRA, the Senators of the College of Justice, and Dean Hatton (an individual respondent associated with the National Police Chiefs’ Council).

357

This point was made by the IUA, UTG and Dean Hatton (an individual respondent associated with the National Police Chiefs’ Council).

358

These are the judges sitting in the Supreme Courts in Scotland (the Court of Session and the High Court of Justiciary).

359

Ch 9, paras 9.82 to 9.87.

360

CP3, para 12.42.

361

Under Road Traffic Act 1988, s 97(3)(a), provisional licences are granted subject to prescribed conditions.

Section 120(1) then confers powers on the Secretary of State to prescribe conditions.

362

Article 1 of Order 2021-443. We have not found an official translation. Article 1 could be read as follows: “Art. L. 123-1.-The provisions of the first paragraph of Article L. 121-1 do not apply to the driver, for offences resulting from a manoeuvre of a vehicle whose driving functions are delegated to an automated driving system, when this system exercises, at the time of the facts and under the conditions provided in Article I. 319-3, the dynamic control of the vehicle”.

363

Art. L. 123-2.

364

CP3, para 2.20.

365

Some offences apply only to drivers; others apply variously to users, “a person in charge of a motor vehicle” or “a person who parks”. For details of 70 common offences, see updated Background Paper A. Road Traffic Regulation Act 1985, s 5 applies to “a person who contravenes” a traffic regulation order, which includes both dynamic and non-dynamic offences, depending on the order in question.

366

Road Traffic Act 1988, s 15.

367

Motorways Traffic (England and Wales) Regulations 1982, regs 3(3) and 7(1).

368

United Nations Economic Commission for Europe (UNECE) Global Forum for Road Traffic Safety (WP1), Resolution on the Deployment of Highly and Fully Automated Vehicles in Road Traffic (20 September 2018), para 4(e).

369

Contrary to the Road Traffic Act 1988, s 143(1).

370

See for example, responses from KPMG and the British Parking Association, discussed in Analysis of Responses to CP3, paras H.137 to H.141.

371

See Motorways Traffic (England and Wales) Regulations 1982, reg 9 and Motorways Traffic (Scotland) Regulations 1995, regs 8 and 6(2) and (3),

372

See City of Bradford Metropolitan District Council v Obaid [2001] EWHC Admin 536, [2001] LLR 451 and Rodgers v Taylor [1987] RTR 86.

373

Schwarz v London Borough of Camden (17 December 2001) London Parking Tribunal (unreported).

374

Strong v Dawtry [1961] 1 WLR 841.

375

In many cases, users are not liable if there is a good reason for the stop. For example, under the Motorway Regulations, users may remain at rest on a hard shoulder in specified circumstances such as breakdown, accident or illness. The same exceptions will also apply to a user-in-charge. See Motorways Traffic (England and Wales) Regulations 1982, reg 7(2) and Motorways Traffic (Scotland) Regulations 1995, reg 6(2).

376

Road Traffic Act 1988, s 170.

377

See Analysis of Responses to CP3, para H.143.

378

[1948] 1 KB 695, later approved by the Court of Appeal in Selby v Chief Constable of Avon and Somerset [1988] RTR 216. A driver cannot claim lack of awareness if that deficiency was caused by voluntary intoxication: Magee v CPS [2014] EWHC 4089. A driver will have awareness if within 24 hours they were told of the accident or noticed a dent in the vehicle: DPP v Drury [1989] RTR 165. Although we have not found any specific Scottish authority on the point, we understand that the Scottish courts take a similar approach.

379

For further discussion of the offence, see Background Paper A. In 2018 the Department for Transport issued a consultation paper proposing to abolish the requirement to report accidents in person at the police station. We have been told that this was generally welcomed and that the Government intends to proceed with the proposals in due course.

380

One issue is the exception in section 170(1)(a), by which the section does not apply if only the vehicle was damaged and/or only the driver was injured. We hope that users-in-charge will report injuries to themselves, but they should not be criminally liable for failing to do so.

381

 Road Vehicles (Construction and Use) Regulations 1986, reg 80.

382

 Road Vehicles (Construction and Use) Regulations 1986, reg 82(2).

383

 Road Vehicles (Construction and Use) Regulations 1986, reg 82(4).

384

 Agreement concerning the International Carriage of Dangerous Goods by Road (adopted 30 September

1957, entered into force 29 January 1968) ECE/TRANS/300, Vols I and II and Corr 1 and 2 (ADR), para 1.4.1.1.

385

ADR, para 1.4.2.

386

ADR, para 1.4.1.2.

387

For example, under section 34 of the Road Traffic Act 1988, it is an offence to drive a mechanically propelled vehicle on common land, moorland, a footway, bridleway or restricted byway In England, the Highway Act 1835, s 72 also prohibits driving a motor vehicle (or carriage) along a footway.

388

The ISO standard for Low Speed Automated Driving (LSAD) systems achieves a similar effect by predefining a route in terms of length and curvature but not width: this distinguishes between decisions about which road to take, and which part of the road to take.

389

ADR, para 1.9.5.

390

There are six offences of causing death - by dangerous driving (Road Traffic Act 1988, s 1); careless driving (Road Traffic Act 1988, s 2B); careless driving under the influence of drink or drugs (Road Traffic Act 1988, s 3A), or while uninsured, unlicensed or disqualified (Road Traffic Act 1988, ss 3ZB(a) and 3ZC). There are two offences of causing serious injury - by dangerous driving (Road Traffic Act 1988, s 1A) and driving while disqualified (Road Traffic Act 1988, s 3ZD).

391

1986 82 Cr. App. R 333; [1986] RTR 49.

392

Wilkinson’s Road Traffic Offences (30th Edition, 2021), para 5-15.

393

Wilkinson’s Road Traffic Offences (30th Edition, 2021), para 5-15.

394

Road Traffic Offenders Act (RTOA)1988, sch 2, para 1. In addition, it carries an unlimited fine and (except in exceptional circumstances) obligatory disqualification: RTOA 1988, s 34 and sch 2, para 1.

395

RTOA 1988, sch 2, para 1. If committed in respect of a goods vehicle or a vehicle adapted to carry more than eight passengers, the punishment is a fine of any amount: RTOA 1988, sch 2, para 1, read together with the Legal Aid, Sentencing and Punishment of Offenders Act, s 85, the Criminal Justice Act 1982, s 37 and the Sentencing Act 2020, s 122.

396

CP3, para 12.62.

397

Of the 71 respondents who answered this question, 54 (76%) agreed, 14 (20%) answered “other” and 3 (4%) disagreed.

398

Response by HORIBA MIRA.

399

For a review of the literature in this area, see N Kinnear and others, “Safe performance of other activities in conditionally automated vehicles” (TRL, December 2020), para 3.4, published as Appendix A to Department for Transport, Safe Use of Automated Lane Keeping System (ALKS): Summary of Reponses and Next Steps (April 2021), https://www.gov.uk/government/consultations/safe-use-of-automated-lane-keeping-system-on-gb-motorways-call-for-evidence.

400

As suggested by Burges Salmon, SMMT and Five AI.

401

As suggested by Faculty of Advocates, British Insurance Lawyers’ Association, HORIBA MIRA, Senators of the College of Justice, Scarlett Milligan.

402

We discuss this issue in depth in Ch 3, paras 3.36 to 3.44.

403

In England and Wales, the Motorways Traffic (England and Wales) Regulations 1982, reg 7. In Scotland, the Road Traffic Regulation Act 1984, s 17(4) as read with the Motorways Traffic (Scotland) Regulations 1995, reg 6(1).

404

This issue was also highlighted by: Bryan Reimer of the Massachusetts Institute of Technology (MIT); FirstGroup; the IUA; the Motor Insurers’ Bureau; and Oxbotica.

405

Criminal Liability: Insanity and Automatism (2013) Law Commission Discussion Paper, para 1.41.

406

Criminal Liability: Insanity and Automatism (2013) Law Commission Discussion Paper, para 1.42.

407

R v Quick [1973] QB 910.

408

R v Hennessy [1989] 1 WLR 287.

409

R v Sullivan [1984] AC 156.

410

R v Burgess [1991] 2 QB 92.

411

Criminal Liability: Insanity and Automatism (2013) Law Commission Discussion Paper, para 1.62.

412

Once a defendant adduces sufficient evidence to put a (sane) automatism defence in issue, the prosecution must prove that the defendant was not suffering from automatism. However, defendants seeking to rely on insanity must prove on the balance of probabilities that they were insane, in order to displace the presumption of sanity: R v Sullivan [1984] AC 156.

413

Trial of Lunatics Act 1883, s 2, as amended by the Criminal Procedure (Insanity) Act 1964.

414

Criminal Procedure (Insanity) Act 1964, s 5.

415

The current requirements for the defence of automatism sit uneasily with the proposition, affirmed in Alexander v Dunn 2016 JC 125 at para. [4], that involuntary actions cannot form the basis for a conviction of a driving offence. Alexander involved a driver with no medical condition being convicted of dangerous driving through falling asleep.

416

HMA v Cunningham 1963 JC 80 (internal factor); Ross v HMA 1991 JC 210 (external factor).

417

HMA v Cunningham 1963 JC 80. In MacLeod v Mathieson 1993 SCCR 488 the sheriff treated diabetes which caused hypoglycaemia as an external factor. However, he was not referred to Cunningham which, following Ross v HMA 1991 JC 210, remains a binding authority. Cunningham appears not to have been placed before the court in the two cases Stewart v Payne and McQuade v Clarke both reported at 2017 JC 155. In both cases the court found that the Crown had acted properly in not prosecuting the driver in question where the driver had lost consciousness due to their internal medical conditions (in Payne’s case a vasodepressor syncope syndrome; and in Clarke’s case a neuro-cardiogenic syncope or vasovagal syncope).

418

In practice the cases are often complex and sensitive, and involve weighing the driver’s medical condition against deaths or injuries to others. In these circumstances as in Stewart v Payne and McQuade v Clarke 2017 JC 155 prosecutors may prefer not to follow the distinction between external and internal factors. Nevertheless, the distinction is supported by binding case law. See HMA v Cunningham 1963 JC 80 read with Ross v HM Advocate 1990 JC 210.

419

Mental disorder is defined in the Criminal Procedure (Scotland) Act 1995, s 307(1), which in turn refers to the Mental Health (Care and Treatment) (Scotland) Act 2003, s 328(1).

420

Criminal Procedure (Scotland) Act 1995, s 57.

421

Ross v HM Advocate 1991 JC 210 at p 218; Stewart v Payne and McQuade v Clarke 2017 JC 155 at [83]; MacLeod v Mathieson 1993 SCCR 488 at p 492.

422

See the Analysis of Responses to CP2.

423

Road pricing is a generic term referring to charges for the use of roads, including motorway tolls and the London congestion charge. For further discussion, see CP2, paras 7.60 to 7.87.

424

Particular concerns were expressed about when a service was provided “for hire or reward”; the distinction between short-term hire and long-term leasing; and the possibility of peer-to-peer lending platforms. See Analysis of Responses to CP2, paras 5.8 to 5.43 and 5.92 to 5.101.

425

Of 74 respondents who answered Consultation Question 38, 58 (78%) agreed, 4 (5%) disagreed and 12 (16%) answered “other”. See Analysis of Responses to CP3, para I.38.

426

Out of 76 consultees who responded to Consultation Question 40, 60 (79%) agreed that a licensed operator should be subject to all of the duties, 6 (8%) respondents to some duties, while 9 (12%) answered “other”. One respondent, who opposed the deployment of NUIC vehicles altogether, said that operators should not be subject to any of the duties.

427

Society of Automotive Engineers International (SAE), J3016 Taxonomy and Definitions for Terms Related to Driving Automation Systems for On-Road Motor Vehicles (April 2021) (SAE Taxonomy J3016), Table 2, p 28.

428

See, for example, responses from Waymo, Wayve and the IROHMS Simulation Laboratory. Further details are provided in the Analysis of Responses to CP3 at paras I.76 to I.78.

429

SAE Taxonomy J3016, para 3.23.

430

SAE Taxonomy J3016, para 3.23, Examples 1 and 2.

431

SAE Taxonomy J3016, para 3.13.

432

For further discussion, see Analysis of Responses to CP3, paras I.18 to I.25.

433

See Ch 3, paras 3.59 to 3.64.

434

The role appears similar to that of a “banksman” used on construction sites to direct vehicle movement on or around the site. The Health and Safety Executive stresses that banksmen must be trained and authorised: See https://www.hse.gov.uk/construction/faqs.htm. Banksmen should also use standard signals: Health and Safety (Signs and Signals) Regulations 1996 L64

435

N Reed, T Leiman, P Palade, M Martens and L Kester. “Ethics of automated vehicles: breaking traffic rules for road safety” (2021) 23 Ethics and Information Technology 777, https://doi.org/10.1007/s10676-021-09614-x.

436

Highway Act 1835, s 72 prohibits a person from driving “a carriage of any description” on a footpath by the side of the road which is “set apart for the use or accommodation of foot passengers”.

437

See Ch 8, para 8.20.

438

Human Factors in International Regulations for Automated Driving Systems group position paper submitted on 18 September 2020 to the UNECE Global Forum for Road Traffic Safety (WP1) at its 81st session, https://www.unece.org/fileadmin/DAM/trans/doc/2020/wp1/ECE-TRANS-WP1-SEPT-2020-Informal-8e..pdf (HF-IRADS position paper).

439

Latency means the time delay before a transfer of data begins following an instruction for its transfer.

440

J Davis, C Smyth and K McDowell, “The effects of time lag on driving performance and a possible mitigation” (2010) 26(3) IEEE Transactions on Robotics, 590 to 593.

441

HF-IRADS position paper, p 6.

442

HF-IRADS position paper, p 3.

443

HF-IRADS position paper, p 3.

444

The Civil Aviation Authority has established a Scheme for the Regulation of Air Traffic Controllers’ Hours (SRATCOH). This also sets out rules for the maximum hours in a shift and for the hours which can be worked in a 30-day period. Rest breaks are expected to provide a certain detachment from the operation eg rest areas and quiet spaces. (CAP 670 - ATS Safety requirement, D27). Air traffic controllers are also subject to strict drink and drugs laws: see Railways and Transport Safety Act 2003, ss 92 to 94.

445

The Railways and Other Guided Transport Systems (Safety) Regulations 2006 SI 2006/599, reg 23. The regulations implement the European Railway Safety Directive 2004/49/EC 2004 into domestic law.

446

Above, reg 24(1)(a).

447

Above, reg 25(1).

448

Office of Road and Rail, Managing Rail Staff Fatigue (January 2012), https://orr.gov.uk/__data/assets/pdf_file/0005/2867/managing_rail_fatigue.pdf, pp 44 to 47.

449

The time of writing is Autumn/Winter 2021. During this period, world leaders negotiated the COP26 agreement in Glasgow, the UK suffered fuel shortages and extreme weather conditions, and protestors blocked traffic on motorways. See https://www.bbc.co.uk/news/science-environment-56901261;

https://www.bbc.co.uk/news/explainers-58709456; https://www.bbc.co.uk/news/uk-england-59510639; https://www.bbc.co.uk/news/uk-58916326.

450

This would include the need to communicate with the full range of passengers, including those who are cognitively impaired or who have hearing loss. For further discussion, see Analysis of Responses to CP2, paras 6.84 to 6.90.

451

The Bill to amend transportation ordinance (no. 129) (self-driving vehicle and vehicle with conditional independence), 5741-2021, was published on 11 August 2021. Available at https://main.knesset.gov.il/Activity/Legislation/Laws/Pages/LawBill.aspx?t=lawsuggestionssearch&lawitemid =2161538. The Bill covers vehicles that meet SAE Level 4 criteria for deployment without safety drivers present in vehicles, to enable their use on public roads with paying passengers. The Bill also expands the authority currently given to the relevant regulator to exempt SAE Level 3 criteria from rules and regulations which in his opinion should not apply to SAE Level 3 vehicles. It is now being considered by the Knesset and is expected to be approved in early 2022. We would like to thank Avi Licht and his team at Meitar Law Offices for their help in analysing the draft bill which is only published in Hebrew.

452

See the Autonome Fahrzeug-Genehmigungs und Betriebsverordnung (AVGBV) Ordinance (10 June 2021) accompanying amendments to the Stra^enverkehrsgesetz (the German Road Traffic Act, StVG).

453

AFGBV, § 14(1).

454

AFGBV, Annex II, para 1.1

455

AFGBV, Annex II, para 1.2. They must also be reliable with a view to the fulfilment of their obligations under § 1f(2) of the StVG amendments: AFGBV, § 14(2).

456

Order 2021-443, Chapter III, Article 5; Article L3151-5 of the Transport Code (as inserted by Order 2021443).

457

Order 2021-443, Chapter III, Article 5.

458

Article L3151-3 of the Transport Code (as inserted by Order 2021-443).

459

For a summary of views put, see Analysis of Responses to CP3, paras I.80 to I.94.

460

P3 Mobility’s response was similar to Pinsent Masons’ on this point.

461

See the Uniform Automated Operation of Vehicles Act drafted by the National Conference of

Commissioners on Uniform State Laws in July 2019 at

https://www.uniformlaws.org/HigherLogic/System/DownloadDocumentFile.ashx?DocumentFileKey=a78d1a b0-fac8-9ea1-d8f2-a77612050e6e&forceDialog=0.

462

This included Mills & Reeve, Logistics UK, Pinsent Masons, Transport for West Midlands, the Office of the Traffic Commissioner and the BVRLA.

463

The task of installing software updates can be of varying complexity. Sometimes expertise may be required; in other instances the installation process may be simple enough for owners to undertake themselves. The safety case will need to account for this.

464

The place must be used by the general public, without objection by the landowner or occupier. For further discussion, see CP3 paras 2.3 to 2.5 and Appendix 2.

465

CP3, Consultation Question 38(3).

466

For a full discussion of responses, see Analysis of Responses to CP3 at para I.37.

467

See paras 9.132 to 9.139 below and Background Paper A.

468

See Analysis of Responses to CP3, Consultation Question 16 responses at para E.70.

469

For discussion of these requirements, see CP2 paras 4.55 to 4.73 and Analysis of Responses to CP2, paras

4.54 to 4.69.

470

The Senior Traffic Commissioner for Great Britain issues guidance and directions under section 4C(1) of the Public Passenger Vehicles Act 1981 (as amended) interpreting the law in relation to requirements to be of good repute or fitness: see https://www.gov.uk/government/publications/traffic-commissioners-good-repute-and-fitness-march-2019. Private hire operators must satisfy their licensing authority they are a “fit and proper person”: Local Government (Miscellaneous Provisions) Act 1976, s 55(1) and Private Hire Vehicles (London) Act 1998, s 3(3)(a).

471

Utopia Traction Ltd [2011] UKUT 357 (AAC); Silvertree Transport Ltd [2013] UKUT 0117 (AAC).

472

Paul Frederick Boomer T/A Carousel [2011] UKUT 86 (AAC) at [5]. A Phoenix company is created where the assets of one company are transferred to another legal entity with no obligation to pay the failed company’s debts.

473

Pemberton Transport Ltd [2010] UKUT 471 (AAC) at [9] to [10].

474

Any insurance against (for example) the cost of maintenance would be in addition to compulsory third party vehicle insurance under Road Traffic Act 1988, s 143 (which would be required in any event).

475

Goods Vehicles (Licensing of Operators) Act 1995, s 13A(2)(a); Public Passenger Vehicles Act 1981, s 14ZA(2)(a).

476

European Parliament and Council Regulation (EC) 1071/2009 (2009 Retained EU Regulation 2009/1071),

477

Retained EU Regulation 2009/1071, arts 2(7) and (9), and 5(a).

478

European Parliament and Council Regulation (EC) 1071/2009 (2009 Retained EU Regulation 2009/1071), art 5(b) and (c).

479

CP3, Consultation Question 39.

480

See for example the Civil Aviation Authority’s CAP 795: Safety Management Systems - Guidance to Organisations (2 February 2015), https://publicapps.caa.co.uk/modalapplication.aspx?appid=11&mode=detail&id=6616#:~:text=Reference%3 A%20CAP%20795%20Title%3A%20Safety%20Management%20Systems%20-,concepts%20to%20implement%20and%20maintain%20an%20effective%20SMS.

481

See Ch 6, paras 6.28 to 6.37. For further discussion, see CP3 paras 10.66 to 10.76 and L Fraade-Blanar and others, Measuring Automated Vehicle Safety: Forging a Framework (RAND Corporation, 2018), https://www.rand.org/pubs/research_reports/RR2662.html.

482

See International Telecommunication Union Focus Group on AI for Autonomous and Assisted Driving (FG-AI4AD) response to CP3, pp 8 - 12; and the United States Department for Transportation National Highway Traffic Safety Administration First Amended Standing General Order 2021-01: Incident Reporting for Automated Driving Systems (ADS) and Level 2 Advanced Driver Assistance Systems (ADAS) (issued on 29 June 2021, amended on 12 August 2021), available at: https://www.nhtsa.gov/sites/nhtsa.gov/files/2021-08/First_Amended_SGO_2021_01_Final.pdf; see also the Strassenverkehrsgesetz (the German Road Traffic Act, StVG), s 1g(1). In France, service organisers are required to submit annual reports, including information concerning safety; see French Transport Code, R3152-14.

483

Goods Vehicles (Licensing of Operators) Act 1995, ss 40 to 42 and sch 5 para 3. See also Road Traffic Act 1988, ss 68(1) and 77(1) and (3). The Consumer Rights Act 2015, sch 5 para 23 confers powers of entry for routine inspection on enforcers, provided that notice in writing is given to the occupier two days before the date of entry.

484

Public Passenger Vehicles Act 1981, s 15(2).

485

Gov.uk, “PSV (Public Service Vehicle) operator licences”: see https://www.gov.uk/psv-operator-licences/how-to-apply-for-a-psv-licence.

486

For the duration of private hire operator licences in England and Wales see the Local Government (Miscellaneous Provisions) Act 1976, s 55(2); in London see the Private Hire Vehicles (London) Act 1998, s 3(5). In Scotland, see the Civic Government (Scotland) Act 1982, sch 1 para 8.

487

Road Traffic Act 1988, s 143(1).

488

Road Traffic Act 1988, s 40A.

489

K McCormac, P Brown, P Veits, N Watson and J Woodhouse (eds), Wilkinson’s Road Traffic Offences (28th ed 2017), para 1.179.

490

In Leathley v Tatton [1980] RTR 21, the defendant was found guilty of driving without insurance when he helped a friend to take a vehicle without consent, by jump starting it and jumping into the passenger seat.

491

Cobb v Williams [1973] RTR 113.

492

Elliott v Grey [1960] 1 QB 367; Tudhope v Every 1976 JC 42 (in relation to the obligation to have adequate third party insurance); Pumbien v Vines [1996] RTR 37.

493

See Pumbien v Vines [1996] RTR 37 (above).

494

See Pumbien v Vines (above); and Tudhope v Every 1976 JC 42. In these cases the courts took divergent approaches in relation to whether the owner of an immobilised vehicle abandoned on the road was a user who required to have an MoT test certificate.

495

[2019] UKSC 16

496

Above at [34].

497

For example, The Traffic Management Act 2004, s 72, provides that the owner of the vehicle is legally liable for a penalty charge. The registered keeper is presumed to be the owner unless proven otherwise.

498

CP3, paras 13.127 to 13.133.

499

AXA UK, ALBUM, Bar Council, Burges Salmon, Cycling UK, DAC Beachcroft, FirstGroup plc, HORIBA MIRA, John Rainbird, Nova Modus, Office of the Traffic Commissioner (OTC), Oxfordshire County Council, Pinsent Masons, P3 Mobility, Shoosmiths, Stagecoach Group plc, and Suzy Lamplugh Trust.

500

ALBUM; the Association of British Insurers and Thatcham Research, Richard Birch, and the British Motorcyclists Federation. The Faculty of Advocates suggested that the DVSA should operate the scheme “on behalf of the Traffic Commissioners”.

501

Amey, the Association of British Insurers and Thatcham Research, Richard Birch, and the British insurance Brokers’ Association (BIBA).

502

Highways England, Transport for Greater Manchester, and Xinyi Wu.

503

Traffic Commissioners for Great Britain, Service Level Agreement for the Provision of Support Services to the Traffic Commissioners of Great Britain by the Driver and Vehicle Standards Agency (March 2021), https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/1004156/ Service_Level_Agreement.pdf, para 2.1

504

The Road Vehicles (Construction and Use) Regulations 1986, reg 104.

505

Public Passenger Vehicle Act 1981, s 81.

506

Public Passenger Vehicles Act 1981, s 1.

507

For a discussion of the complex case law on this issue, see Background Paper B.

508

Civic Government (Scotland) Act 1982, s 23(1).

509

Town and Police Clauses Act 1847, s 45.

510

If the service falls within the description of the regulated activity, such as inviting or accepting bookings (private hire operators) or plying for hire, but is not eligible for a licence (because that requires a driver).

511

If the service falls outside the description of the regulated activity altogether, then it cannot be stopped.

512

For discussion, see Analysis of Responses to CP2, paras 4.123 to 4.125.

513

Analysis of Responses to CP2, para 4.129 to 4.134.

514

HM Government, Taxi and Private Hire Vehicle Licensing: Protecting Users - Statutory Guidance for Licensing Authorities (February 2019) para 2.107, as discussed in CP2, para 4.122.

515

“Disabled people, who currently make up 14 per cent of London’s population, on average make one third fewer trips than non-disabled Londoners”, Mayor of London, Mayor’s Transport Strategy (2018), p 25.

516

In 2019, in England, adults with mobility difficulties made an average of 21 trips per person per year in taxis or private hire vehicles, compared to 11 such trips for the general population: DfT, Taxi and Private Hire Statistics 2021 (30 June 2021), p 14.

517

Analysis of Responses to CP2, para 6.100.

518

CP2, paras 6.43 to 6.49.

519

The Rail Safety and Standards Board’s (RSSB) dedicated webpage for Platform Train Interface (PTI) issues indicates that PTI issues account for 48% of the total passenger fatality risk on the mainline railway network: https://www.rssb.co.uk/what-we-do/key-industry-topics/platform-train-interface#section-3.

520

In 1654, for example, the number of hackney carriages in London was limited to 300 following complaints of congestion: see CH Firth and R S Rait (ed), Acts and Ordinances of the Interregnum, 1642-1660 (1911), pp 922-924.

521

Young women in particular can be left vulnerable if they are unable to book a ride home after a night out. For a full discussion, see CP2, paras 7.88 to 7.119.

522

We note that the relevant regulator has the authority to extend the validity of the operating permit for an extra three years at a time as long as the rationales for the trial are still relevant. See proposed section 14DD of the bill to amend the transportation ordinance (no. 129) (self-driving vehicle and vehicle with conditional independence), 5741-2021.

523

It appears from the Explanatory Memorandum to the Bill that taxi regulation will apply to AVs. The Explanatory Memorandum states that an autonomous vehicle shall, as a rule, be operated in accordance with the provisions of the Ordinance - both with respect to the rules of conduct on the road and with respect to regulation of the service that the Operating Permit Holder will provide. We also note that proposed section 14HH(b) gives the National Supervisor the authority to exclude various provisions including those relating to the operation of a taxi. This shows that in the absence of such exclusion, the relevant taxi provisions will apply.

524

The amendments to the German Stra^enverkehrsgesetz (StVG - Road Traffic Act), the “Gesetz zur Anderung des Stra^enverkehrsgesetzes und des Pflichtversicherungsgesetzes - Gesetz zum autonomen Fahren“ that came into force 28 July 2021 and accompanying draft Ordinance, the “Autonome Fahrzeug-Genehmigungs- und Betriebsverordnung” (“AFGBV” or “the Ordinance”), published on 15 June 2021.

525

French Ministry of Ecological Transition, Order 2021-443 relating to the criminal liability regime applicable to vehicles with automated driving.

526

See the work of the European Commission’s expert Motor Vehicle Working Group -Automated/Connected Vehicle subgroup (MVWG-ACV subgroup) to enable the deployment of urban shuttles and robotaxis available at https://circabc.europa.eu/ui/group/4273d650-b8a9-4093-ac03-18854fbba4b5/library/9ccccc66-3fcd-4536-a643-39c06559439a?p=1&n=10&sort=modified_DESC.

527

The French Mobility Law refers to the “service organiser” as the body responsible for deciding whether or not to commission the automated road transport system. For public passenger transport it specifies the service organiser may be the local authority. See Article L3151-1.I of the Transport Code (inserted by Article 5 of the draft decree implementing Order 2021-443 dated 14th April 2021, issued by the French Ministry of Ecological Transition).

528

The Federal Motor Transport Authority and responsible local authority both have powers in respect of evaluating manufacturers’ risk assessments and approving and monitoring the defined operational area. See StVG, §1f (3).

529

The position in Scotland differs to that in England and Wales. For further discussion, see Background Paper B, paras 1.19 to 1.21.

530

https://www.gov.uk/government/collections/taxi-statistics.

531

For a discussion of the law on taxis and private hire vehicles operating across licensing authority boundaries, see CP2, paras 3.27 to 3.35.

532

Scotland Act 1998, sch 5, Head E1, para (b) and Government of Wales Act 2006, sch 7A, Head E1, para 113.

533

Scotland Act 1998, s 28(8); Government of Wales Act 2006, s 107(6).

534

See paras 10.59 to 10.63 below.

535

See CP2, paras 8.42 to 8.53.

536

CP2, paras 8.6 to 8.77. Since CP2 was published, the Transport (Scotland) Act 2019 has been passed by the Scottish Parliament. The Act permits local transport authorities to operate bus services themselves or under a franchising model. It also introduces a scheme for “bus services improvement partnerships”.

537

In Wales, the Bus Services (Wales) Bill was introduced into the Senedd in March 2020, to make similar provisions. However, the Bill was withdrawn in July 2020, following difficult decisions about coronavirus priorities: see https://gov.wales/welsh-government-introduced-over-50-laws-deal-coronavirus.

538

For further details, see CP2, paras 8.54 to 8.61.

539

Transport Act 2000, s 155.

540

For further details, see CP2, paras 8.30 to 8.33.

541

Bus legislation only applies to public service vehicles, so would not apply to services operating interim passenger permits directly. We are therefore including some equivalent provisions for bus-like services.

542

Transport Act 1985, s 2.

543

This follows the CP2 proposal, discussed in CP2 at paras 8.84 to 8.91.

544

See Rec 50 at para 9.87.

545

See Rec 56 at para 9.120.

546

As noted above, no fundamental redesign is required where passenger services are provided with a user-in-charge. For such services, existing regulation of professional drivers can be applied to the user-in-charge.

547

See Uber’s response to CP3 in particular.

548

For example, a vehicle could function in self-driving mode with a user-in-charge in some Operational Design Domains (ODDs) (for example motorways), with no user-in-charge in others (for example, certain parking lots), and indeed not be operated in self-driving mode at all in other ODDs, such as country roads; or at night. The same vehicle and service may therefore be subject to existing regulatory regimes for some parts of a journey.

549

For example, under the HSW Act 1974, s 3, every employer must “conduct his undertaking in such a way as to ensure, so far as is reasonably practicable, that persons not in his employment who may be affected thereby are not thereby exposed to risks to their health or safety”. Breach of this duty is an offence under the HSW Act 1974, s 33. For more details of all the offences reviewed see CP3, paras 14.22 to 14.55 and Appendix 3.

550

CP3, paras 14.56 to 14.78.

551

CP3, para 14.108.

552

Of the 73 respondents who answered this question, 49 (67%) agreed, 23 (32%) answered “other” and one disagreed.

553

Out of 67 consultees who provided views, 50 (75%) fully supported such a duty. Only three consultees (SMMT, Mills & Reeve and Burges Salmon) disagreed outright.

554

Public Passenger Vehicles Act 1981, s 66. Under s 65 it is also an offence to forge or misuse certain documents in an application for a PSV operator’s licence, with an intention to deceive. Similar offences apply to HGV operator licences: see Goods Vehicles (Licensing of Operators) Act 1995, ss 38 and 39.

555

Public Passenger Vehicles Act 1981, s 74(1).

556

Under the latest German “Level 4” ordinance the holder of the vehicle must carry out a comprehensive check of the vehicle every 90 days and send the results to the Federal Motor Transport Authority: Autonome Fahrzeug-Genehmigungs- und Betriebsverordnung (“AFGBV”), § 13(1).

557

As discussed in Ch 4, we now think that it is preferable to focus on the safety of the vehicle as a whole, rather than distinguishing between the ADS and other systems within the vehicle.

558

SI 2012 No 1916.

559

Under the HSW Act 1974, s 40, the onus is similarly on the defendant to show that it was not reasonably practicable to do more to ensure safety. This was held to comply with Art 6(2) of the European Convention of Human Rights in Davies v HSE [2002] EWCA 2949.

560

See Gibson v Barton (1874-75) LR 10 QB 329 at 336; Re B Johnson & Co (Builders) Ltd [1955] Ch 634; and Registrar of Restrictive Trading Agreements v W H Smith & Son Ltd and others [1969] 1 WLR 1460.

561

Where there is no board, the courts have adapted these words to apply to other corporate structures. For example, “charity trustees” are defined in the Charities Act 2011, s 177 as persons who have general control and management of the administration of a charity. In Bhamani v Sattar [2021] EWCA Civ 243 at [39], by Nugee LJ it was held that members of a Management Committee who did not sit on the board of trustees were nonetheless “charity trustees” for this purpose on the grounds that there were a number of powers vested in them.

562

Insurance Act 2015, s 4(8)(c).

563

See, for example, the Fraud Act 2006, s 12.

564

Corporate Criminal Liability: A discussion paper (2021) Law Commission Consultation Paper.

565

Huckerby v Elliott [1970] 1 All ER 189, p 194.

566

Corporate Criminal Liability: A discussion paper (2021) Law Commission Consultation Paper para 8.10.

567

CP3, para 14.98.

568

California Code of Regulations, Autonomous Vehicle Regulations, §228.06(a).

569

California Code of Regulations, Autonomous Vehicle Regulations, §228.06. For further information, see CP3, paras 7.46 - 7.49.

570

California Code of Regulations, Autonomous Vehicle Regulations.

571

These included the Association of Local Bus Managers (ALBUM), HORIBA MIRA, Dean Hatton of the National Police Chiefs’ Council, ABI and Thatcham, Kennedys Law LLP and the Senators of the College of Justice.

572

CP3, para 14.99.

573

There are six offences of causing death - by dangerous driving (Road Traffic Act 1988 (“RTA 1988”), s 1); by careless or inconsiderate driving (RTA 1988, s 2B); by careless driving under the influence of drink or drugs (RTA 1988, s 3A); or while uninsured, unlicensed or disqualified (RTA 1988 ss 3ZB(a) and 3ZC). There are two offences of causing serious injury - by dangerous driving (RTA 1988, s 1A) and driving while disqualified (RTA 1988, s 3ZD). There is also an offence of “aggravated vehicle taking” under the Theft Act 1968, s 12A in England and Wales, which may be aggravated in various ways, including by death or injury.

574

See for example, Sentencing Advisory Panel, Attitudes to the sentencing of offences involving death by driving (2008) Research Report 5, and Ministry of Justice, Response to the consultation on driving offences and penalties relating to causing death or serious injury (October 2017), https://consult.justice.gov.uk/digital-communications/driving-offences-causing-death-or-serious-injury/results/consultation-response-on-driving-offences.pdf.

575

The Police, Crime, Sentencing and Courts Bill 2021: see https://bills.parliament.uk/bills/2839.

576

See para 4.37.

577

In Scotland, the ASDE might face a charge of corporate homicide, while senior managers might face a charge of culpable homicide: for more details see CP 3, Annex 4.

578

Corporate Manslaughter and Corporate Homicide Act 2007 (there have been no prosecutions under the Act in Scotland) or Transco plc v HM Advocate [2004 JC 29] at common law. See CP3, Annex 3.

579

Insurance Act 2015, s 3.

580

National Liaison Committee for the Work-related deaths protocol (England and Wales), Work-related Deaths: A protocol for liaison (England and Wales) (February 2016), https://www.hse.gov.uk/pubns/wrdp1.pdf. The signatories to the protocol are the National Police Chiefs’ Council, the British Transport Police, the Care Quality Commission, the Care and Social Services Inspectorate Wales, the Chief Fire Officers’ Association, the Crown Prosecution Service, the Health and Safety Executive, the Healthcare Inspectorate Wales, the Local Government Association, the Maritime and Coastguard Agency, the Medicines and Healthcare Products Regulatory Authority: Medical Devices Division, the Office for Nuclear Regulation, the Office of Rail and Road and the Welsh Local Government Association. For further information see https://www.hse.gov.uk/enforce/enforcementguide/wrdeaths/investigation.htm#P4_750.

In Scotland, a protocol for the investigation of work-related deaths has been agreed between the Health and Safety Executive, the Association of Chief Police Officers (Scotland), the British Transport Police and the Crown Office and Procurator Fiscal Service: Work-related deaths: A protocol for liaison (Scotland) (September 2006), https://www.hse.gov.uk/scotland/workreldeaths.pdf.

581

The Human Medicines Regulations SI 2012 No 1916, reg 99.

582

The Police, Crime, Sentencing and Courts Bill 2021, cl 65 (Bill 133 2021-22) (as amended in Public Bill Committee) 24 June 2021: see https://bills.parliament.uk/bills/2839/publications.

583

Computer Misuse Act 1990, s 1.

584

Under Computer Misuse Act 1990, s 3ZA(7), an unauthorised act in relation to a computer creating a risk of serious damage to human welfare by disruption of facilities for transport is punishable by a maximum sentence of life imprisonment.

585

Contrary to Road Traffic Act 1988, s 3.

586

Under Road Traffic Act 1988, s 3ZA(4), “a person is to be regarded as driving without reasonable consideration for other persons only if those persons are inconvenienced by his driving”.

587

Criminal damage can be temporary and reversible, and includes putting water-soluble paint on a pavement: Hardman v Chief Constable of Avon and Somerset [1986] Crim LR 330. On the other hand, spit on a raincoat was not criminal damage as it was so easily removed; the coat had not been rendered imperfect or inoperative: A (A Juvenile) v R [1978] Crim LR 689. The issue is a matter of fact and degree, as determined by a court: Roe v Kingerlee [1986] Crim LR 735 (DC).

588

JS (A Child) v DPP [2017] 4 WLR 102 at 14.

589

See CP1, para 8.30.

590

See CP3, para 15.10.

591

DAC Beachcroft, Burges Salmon, AXA UK, SMMT and Suzy Lamplugh Trust.

592

Association of British Insurers (ABI) and Thatcham, Bar Council, Aviva Insurance, Momentum Transport Consultancy, AXA UK, Kennedys Law, Mills & Reeve, DAC Beachcroft, Office of the Traffic Commissioner, Pinsent Masons, Society of Motor Manufacturers and Traders (SMMT), Faculty of Advocates and Cycling UK.

593

British Motorcyclists Federation, ABI and Thatcham, Aviva Insurance, and Faculty of Advocates.

594

As noted in CP1, paras 8.49 to 8.55.

595

See CP3, para 15.9.

596

Analysis of Responses to CP3, Consultation Question 47 responses at para K.5.

597

FirstGroup, ITS United Kingdom, Nova Modus, Trustworthy Autonomous Systems Hub, Office of the Traffic Commissioner, Burges Salmon, and Highways England.

598

In England and Wales, under Criminal Damage Act 1971, s 1(1); and in Scotland at common law.

599

Theft Act 1968, s 1(1). In Scotland, intent permanently to deprive is not required: Black v Carmichael 1992 SLT 897.

600

Wilkinson’s Road Traffic Offences (28th ed 2017) para 15-06.

601

Theft Act 1968, s 12(7).

602

Kivlin v Milne 1974 SLT (Notes) 2.

603

G H Gordon, The Criminal Law of Scotland, Volume II (4th edn by J Chalmers and F Leverick, 2016), paras

21.46 to 21.50.

604

Road Traffic Act 1988, s 22A(2).

605

Road Traffic Act 1988, s 22A(3).

606

The Laser Misuse (Vehicles) Act 2018 creates a new offence of “shinning or directing a laser beam towards a vehicle”. Although the Act was motivated by concerns about lasers being shone at aircraft, it covers a wide variety of vehicles, including trains, ships and motor vehicles (s 1(6)). However, the offence only applies if the laser beam “dazzles or distracts, or is likely to dazzle or distract, a person with control of the vehicle” (s 1(1)(b), emphasis added). This means that it would not apply to an automated vehicle without a person in control.

607

Also known as reckless endangerment to the lieges.

608

HM Advocate v Harris 1993 JC 150 at 153F-G, 155H-I, and 162G; Cameron v Maguire 1999 JC 63 at 65D to 66A (discharge of rifle few metres from dwellinghouses).

609

HM Advocate v Harris 1993 JC 150; Smith and M'Neill (1842) 1 Broun 240 p 244, per Lord Justice-Clerk Hope; and Robertson v Klos 2006 SCCR 52 (speeding at 158 miles per hour while holding mobile phone).

610

1983 SLT (Sh Ct) 37.

611

(whose knowledge included that of the person interfering), see Road Traffic Act 1988, s 22A(2).

612

Hansard HC Deb 10 Dec 1990, col 687 (the Minister (Malcolm Rifkind QC) referred to the common law offence of malicious mischief which would cover objects on or over a road that caused damage to property, but the offence of culpable and reckless conduct would cover the other types of conduct covered by section 22A).

613

CP3, paragraphs 15.4 and 15.27.

614

CP3, paras 15.57 to 15.58.

615

Out of the 87 consultees who responded, 62 (71%) agreed, 10 (11%) disagreed and 15 said ‘other’ -Analysis of Responses to CP1 at para 7.143.

616

See Analysis of Responses to CP1, para 7.144.

617

In R v Meeking [2012] EWCA Crim 641 a defendant was found guilty of unlawful act manslaughter following a breach of section 22A, where her interference caused a death. However, the case has been criticised on the grounds that section 22A is essentially a crime of negligence rather than intention or recklessness, which is insufficient to be an unlawful act for these purposes. Instead, gross negligence manslaughter would have been more appropriate. For discussion, see CP1 paras 7.102 to 7.103; A Ashworth, “Case Comment” [2013] Criminal Law Review 333 and D Ormerod and K Laird, Smith, Hogan and Ormerod’s Criminal Law (15th ed 2018) p 575.

618

For discussion about the boundaries of gross negligence manslaughter, see CP3 paras 15.38 to 15.41 and K Laird “The evolution of gross negligence manslaughter” (2018) 1 Archbold Review 6.

619

HM Advocate v Harris 1993 JC 150 at 165C, by Lord Prosser.

620

McDowall v HM Advocate 1998 JC 194 at 197 and 198; and HM Advocate v Purcell 2007 SCCR 520.

621

91% of consultees agreed that the aggravated offence should apply in both England and Wales and in Scotland (emphasis added). No respondents answered ‘In England and Wales only’ or ‘In Scotland only’ in response to this consultation question. We have therefore assumed that support for aggravated offence in England and Wales would subsist amongst consultees, even without the extension of the offence to Scotland.

622

DAC Beachcroft, Pinsent Masons, and Burges Salmon.

623

Craig Broadbent and Henry Carter.

624

See CP3, para 15.60.

625

ALBUM, Zurich Insurance, Logistics UK, First Group, George Economides (Oxfordshire County Council), Richard Birch (Acromas Insurance Company), ABI and Thatcham, Cycling UK, BIBA, Mills & Reeve, Direct Line Group, Pinsent Masons, Aviva Insurance, Trustworthy Autonomous Systems Hub, Transport for Greater Manchester and John Rainbird.

626

Senators of the College of Justice, Nova Modus, Bar Council, DAC Beachcroft, Trustworthy Autonomous Systems Hub, Horiba Mira, and BLM Law.

627

For example, Road Traffic Act 1988, s 40A.

628

The Automated and Electric Vehicles Act 2018 (AEV Act), s 2(3) sets out the meaning of "damage" for the purposes of the Act. It covers death, personal injury and most types of property damage. However, it does not cover damage to the AV itself nor pure economic loss.

629

Road Traffic Act 1988 (RTA 1988), s 145(3). There are exceptions for vehicles owned by the Crown and other public bodies (Road Traffic Act 1988, s 144(2)). Under s 144A, it is also an offence to keep a vehicle which does not meet the insurance requirements.

630

AEV Act, sch 1, para 19(2) amends s 145 of the RTA 1988. It provides that the policy required by s 145 “must also provide for the insurer’s obligations to the insured person under s 2(1)” of the AEV Act 2018.

631

An “insured person”, in relation to an insured vehicle, means any person whose use of the vehicle is covered by the policy in question: AEV Act 2018, s 8(2).

632

AEV Act, s 3(2).

633

AEV Act, s 4(1)(b). Under s 4(1)(a), the policy may also exclude liability where the accident was the direct result of prohibited software alterations “made by the insured person, or with the insured person’s knowledge”.

634

Section 5 of the AEV Act suggests that a secondary claim can only be brought by the insurer against a third party once the injured party’s claim is settled. However, it is possible that, under Scots law (Court of Session rule 26.1(1)(a) or (b)(ii) as interpreted by Findlay v NCB 1965 SLT 328 at 330 - 221) and English law (Civil Liability (Contribution) Act 1978, s 1), an insurer could bring a third party into an existing claim using a third party notice.

635

AEV Act, s 5(1) states that “any other person liable to the injured party in respect of the accident is under the same liability to the insurer or vehicle owner”.

636

CP1, paras 6.31 to 6.39.

637

AEV Act, s 3(1).

638

AEV Act, s 6(3).

639

For discussion, see CP1, paras 6.40 to 6.46, and CP3, paras 16.15 to 16.23.

640

Analysis of Responses to CP1, para 6.24.

641

Out of 58 respondents who answered this question, 38 (66%) agreed, 5 (9%) disagreed and 15 (26%) gave other responses.

642

Response from Stewarts Law. Full responses to Consultation Question 52 can be seen in the Analysis of Responses to CP3 at para L.6.

643

CP1 Analysis of Responses, para 6.133.

644

AEV Act, s 5.

645

CP1, paras 6.70 to 6.75.

646

A producer has a complete defence if it can show that the state of scientific and technical knowledge at the time when it put the product into circulation was not such as to enable the existence of a defect to be discovered: Product Liability Directive 85/374/EEC, Official Journal L 210 of 7.8.1985 pp 29 to 33, art 7(e) and Consumer Protection Act 1987, s 4(1)(e).

647

A claim for damages under Part I of the Consumer Protection Act 1987 cannot be brought more than 10 years after the last date on which the product in question was put into circulation; Consumer Protection Act 1987, Schedule 1(1); Limitation Act 1980, s 11A(3).

648

European Commission Expert Group on Liability and New Technologies - New Technologies formation, Liability for Artificial Intelligence and other emerging digital technologies (November 2019); CP3, paras 16.40 to 16.43.

649

European Commission Expert Group on Liability and New Technologies - New Technologies formation, Liability for Artificial Intelligence and other emerging digital technologies (November 2019), p 27.

650

These problems have been raised in response to the Law Commission’s consultation ahead of its 14th Programme of law reform.

651

CP1, paras 6.115 to 6.116.

652

If the in-use safety regulator finds the vehicle is in breach of requirements and imposes a fine on the ASDE for example, this would not be determinative of civil liability, but would be highly influential. See our discussion in CP1 of Wilkes v DePui [2016] EWHC 3096 (QB) at paras 6.78 to 6.87.

653

CP1, paras 6.115 to 6.116.

654

Of 60 respondents who answered this question, 42 (70%) agreed, 3 (5%) disagreed, and 15 (25%) gave other responses. For further discussion, see Analysis of Responses to CP3 at para L.31.

655

AEV Act, s 2(1)(b).

656

AEV Act, s 2(2). This applies to vehicles owned by public bodies, which effectively self-insure.

657

Road Traffic Act 1988, s 143(1)(a).

658

The MIB Untraced Drivers Agreement (2017) refers to a “person alleged to be liable” (para 3).

659

The user-in-charge may retain some incentive to become involved. Under s 2(3)(a) and (b) of the AEV Act, the insurer under the AEV Act is not liable for damage to the AV itself or goods carried on board. The userin-charge may wish to make a claim under their first party insurance against another party for any damage to their vehicle or goods.

660

Analysis of Responses to CP1, para 6.63.

661

CP1, Consultation Question 17(3)(a) and paras 6.52 to 6.59.

662

UN Regulation 157 on uniform provisions concerning the approval of vehicles with regard to Automated Lane Keeping Systems E/ECE/TRANS/505/Rev.3/Add.156 (ALKS Regulation). For further discussion, see CP3, paras 17.20 to 17.26.

663

See Analysis of Responses to CP3, Consultation Question 57 responses at para M.61.

664

We note the European Union has asked for location data in draft Regulation for vehicles fitted with ADSs. See the draft Commission Implementing Regulation (EU) and its annexes laying down rules for the application of the Revised General Safety Regulation 2019/2144, due to come into force on 6 July 2022. The MVWG-ACV sub-group’s draft Annex II of the Implementing Regulation, section 10 includes “position (GPS coordinates)” among the data elements that must be recorded in a clearly identifiable way by the data recorder of vehicles fitted with Automated Driving Systems (ADS). Available at https://circabc.europa.eu/ui/group/4273d650-b8a9-4093-ac03-18854fbba4b5/library/9ccccc66-3fcd-4536-a643-39c06559439a?p=1&n=10&sort=modified_DESC

665

For a discussion of concerns about the need for more information, see Ch 2, paras 2.99 to 2.108.

666

Under Financial Conduct Authority rules, insurers are expected to assemble evidence relating to a claim and make a reasoned reply as to whether they accept or deny liability: ICOBS 8.2.6 (available at https://www.handbook.fca.org.uk/handbook/ICOBS/8/2.html). On this basis, we think that three months is adequate for an insurer to request and identify the data necessary for their claim.

667

This is consistent with the use of neutral servers as advocated by European Automobile Manufacturers’ Association (ACEA). See https://www.cardatafacts.eu/neutral-server-vehicle-data/.

668

ALKS Regulation, n to para 8.4.1.

669

Article 4(7) of the GDPR defines a ‘data controller’ as a person who determines the purpose and means of the processing of personal data.

670

Out of 80 respondents who answered this question, 63 (79%) agreed, 5 (6%) disagreed and 12 (15%) gave other responses. See Analysis of Responses to CP3, Consultation Question 56 responses at para M.44.

671

Analysis of Responses to CP3, para M.54.

672

For example, if there was a dispute between the ASDE and insurer about what data was required, the insurer could apply for an injunction to prevent destruction of the data pending resolution.

673

Digital Economy Act 1971, s 43.

674

https://www.parliament.uk/business/committees/committees-a-z/commons-select/transport-committee/inquiries/parliament-2017/mobility-as-a-service-17-19/

675

See SAE’s Taxonomy and definitions for Terms Related to Driving Automation Systems for On-Road Motor Vehicles, describing six levels of automation, http://standards.sae.org/j3016_201609/

676

SI 2008 No 1277, sch 1, para 2. This is a criminal offence under Reg 12.

677

See reg 2(2), and Case C-210/96 Gut Springenheide GmbH, Rudolf Tusky v Oberkreisdirektor des Kreises

Steinfurt-Amt fur Lebensmitteluberwachung and Another [1998] ECR I-4657.

678

See Care UK v Competition and Markets Authority (23 July 2021) EWHC (unreported) where Lady Justice Bacon took a narrow view of a “transactional decision”.

679

Consumer Protection from Unfair Trading Regulations 2008 (CPRs) (SI 2008 No 1277), reg 2(1).

680

Trade Descriptions Act 1968, s 12.

681

Case C-210/96 Gut Springenheide GmbH, Rudolf Tusky v Oberkreisdirektor des Kreises Steinfurt-Amt fur Lebensmitteluberwachung and Another [1998] ECR I-4657.

682

The General Product Safety Regulations 2005 (GPSR) (SI 2005 No 1803), reg 5.

683

Or £20,000 fine: GPSR, reg 20(1).

684

GPSR, reg 29.

685

Above, reg 2.

686

Above, reg 2.

687

GPSR, reg 7.

688

Above, reg 20(2).

689

The level 5 maximum is unlimited for offences committed after 12 March 2015: Sentencing Act 2020, s 122(3).


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