Criminal investigation and charges

Scroll down for information and advice on criminal charges after a fatal crash.

This includes the police investigation; the Procurator Fiscal; and criminal charges.


The Procurator Fiscal

Procurators Fiscal investigate all sudden deaths. They are qualified lawyers and are employed by the Crown Office and Procurator Fiscal Service (COPFS). They are responsible for the following:

  • instructing a post-mortem examination (see What happens now?);
  • overseeing the police investigation (see below) and then deciding whether or not a criminal prosecution should go ahead, in consultation with senior lawyers called Crown Counsel (see below);
  • deciding whether a Fatal Accident Inquiry should happen (see Can I claim compensation?).

Once the Procurator Fiscal has considered the police report into a crash (see below), they may decide to interview witnesses and carry out further investigations. Once they are satisfied that the circumstances of the death have been fully investigated, they will decide the next step, which may include a criminal prosecution.


Contact with the Procurator Fiscal

The Procurator Fiscal should contact you no later than 12 weeks after a death is reported to them to tell you the progress of the investigation. When the Procurator Fiscal contact you, they should also offer you a personal meeting, which should take place within the next 14 days. If you do not want a meeting, the Procurator Fiscal will communicate with you in other ways according to your needs and wishes. After that, the Procurator Fiscal will contact you every six weeks about the progress of the investigation. If you want a further meeting, this can be arranged.

The Procurator Fiscal should also continue to liaise with you to keep you informed of any progress and to ensure your views are carefully considered when decisions are being made.

Once a criminal charge or charges have been brought against someone, or a decision has been made to bring no charges, the Procurator Fiscal should contact you again to explain the decision. For information on prosecutions, see below.

You should feel free to contact the Procurator Fiscal or the Victim Information and Advice (VIA) officer at any time to ask questions or raise concerns you may have during the investigation into the circumstances of the death. Your police contact can tell you how to contact the Procurator Fiscal if you have not heard from them already.

The COPFS Family Liaison Charter explains how the Procurator Fiscal will liaise with you about the different stages of the investigation process, the information that will be provided and the timescales for giving information. The COPFS Family Liaison Charter is available at www.copfs.gov.uk/investigating-deaths/deaths.


Victim Information and Advice (VIA)

If criminal charges are being considered by the Procurator Fiscal, and you are the nearest relative of a person who died, a Victim Information and Advice (VIA) officer will be assigned to provide you with information about what is happening.

VIA is a service provided by the Crown Office and Procurator Fiscal Service (COPFS). Your VIA officer has direct access to information about your case. If you have been assigned a police Family Liaison Officer you will normally be introduced to a VIA officer in a meeting. At this time, your FLO will pass responsibility to VIA for giving you information. Your FLO will then withdraw from the case.

If you do not have an FLO, you may be introduced to VIA by another police officer or the Procurator Fiscal.

VIA staff can:

  • provide information about the criminal justice system;
  • provide information about the progress of your case, including dates of hearings and decisions about bail, verdicts and sentences;
  • help you to get in touch with organisations that can offer practical and emotional support, if this is what you want;
  • provide additional support, for example if you have to give evidence; and
  • arrange for you to visit the court before the trial.

If you are not introduced to a VIA officer, this may be because someone else (a nearest relative) is receiving help from VIA.

To find out if you are also able to receive help from VIA, you can call COPFS on 0300 020 3000. If VIA cannot help you, they can  refer you to other support agencies if you wish. For more information on VIA, go to www.copfs.gov.uk/involved-in-a-case/victims.


The police investigation

A death on the road is investigated by the police on behalf of the Procurator Fiscal (see above). The police have a duty to try to find out what happened by gathering evidence, and then submit this evidence to the Procurator Fiscal. A police investigation can take several months.

If the police decide to stop an investigation and you have not been told why, you can ask your police contact or make a formal request for this information to Police Scotland. There is information on how to do this in the document ‘Access to Information Protocol’. This guidance can be found at www.copfs.gov.uk/publications/victims-and-witnesses.


Giving a statement

The police may take witness statements from a number of different people. If you were involved in the crash, you saw the crash, or you saw vehicles before or after the crash, you may be asked to give a witness statement. If you were not involved in the crash, but knew the movements of a loved one on the day they died, you may be asked to give a statement too. If you give a statement, the police will write down and record what you say.

If you have made a statement, a lawyer, or more than one lawyer, may want to interview you too. This is an essential part of the investigation and helps lawyers understand the evidence you are providing. Your contact details remain confidential - they cannot be given to someone accused of a crime.

It may be possible for a relative or friend to attend an interview with you to offer support. If you want to be accompanied ask if this is possible. If you have particular communication needs you may also be entitled to assistance from an interpreter or intermediary (someone who helps communicate to you questions the police ask, and communicate back your answers).

If you give a statement, you may or may not be required, at a later date, to give evidence in court. See Court cases for information about giving evidence in court and support to help you do this.


Physical evidence

Collision investigation officers, who are specially trained police officers, or employees of other specialist agencies, investigate a crash in order to identify the cause and obtain evidence. These experts may photograph, measure and video the site of the crash and examine vehicles involved (see Practical issues). Their findings will be included in a collision investigation report (see below). The police may also examine belongings of people who were involved in the crash, such as mobile phones.


Medical evidence

Medical evidence may be provided by personnel who tended to a loved one at the scene of the crash or in hospital, and by the pathologist who did the post-mortem examination (see What happens now?). Medical evidence can include alcohol and drug tests on the drivers involved.


If the crash involved someone driving for work

If the crash involved someone driving for work, the Health and Safety Executive (HSE) may be involved in the investigation. HSE inspectors aim to identify any failure by an employer to ensure health and safety procedures were in place and followed. The investigation will usually be conducted jointly with the police. The police will be able to tell you if the HSE are involved. The HSE can take enforcement action against an employer. For more information about the HSE go to www.hse.gov.uk/scotland.

A Fatal Accident Inquiry (FAI) will normally be held if the death was the result of an accident that happened in Scotland while the person who died was at work (see Court cases).

Standards for police investigations into fatal road crashes are explained in a police manual called the Road Death Investigation Manual. If you want to read this manual, ask your police contact.


The police report

If the police investigation finds any evidence that suggests a crime may have been committed, this evidence is compiled into a report that is sent to the Procurator Fiscal.

This report, which contains all evidence relating to the police investigation, is confidential and you cannot obtain it. However, you are entitled to see a separate police report called a collision investigation report, which explains the physics of what happened in the crash. This report may only be available to you after any criminal proceedings are finished. If you, or a solicitor you are using (see Practical issues), wish to get a copy of it, or discuss its contents, ask the Procurator Fiscal.

Before reading a police collision investigation report, you may want to ask your solicitor or the police what it contains. Police collision investigation reports often contain photographs taken at the time of the crash and sometimes detailed interviews with eye witnesses. It will be possible for the police or your solicitor to remove anything you don’t wish to see or read.

If you are pursuing a claim for compensation (see Can I claim compensation?), your solicitor will usually obtain an ‘abstract’ police report on your behalf as soon as possible. This provides only brief details of the crash and who was involved. Your solicitor may ask for an interview with police officers involved in the investigation. Your solicitor may also request extra evidence from the police report. Your solicitor may only be allowed to interview the police and obtain this extra evidence after any criminal proceedings are finished.


Precognition interviews

After the Procurator Fiscal receives the police report, they may decide whether to 'precognosce' (interview) any witnesses as part of the investigation into the death. These interviews help them decide if criminal proceedings should be brought.

If you have evidence relevant to the investigation (for example, if you witnessed the crash or events leading up to it, or after it), you may be asked to attend a precognition interview with the Procurator Fiscal or a lawyer acting on behalf of someone involved in the crash. You should co-operate with any request to attend a precognition. Your contact details remain confidential. They cannot be given to a person who is accused of a crime.

Precognitions usually take place in private. It may be possible for a relative or friend to attend a precognition with you to offer support. You will need to get permission from the Procurator Fiscal for this to happen. You are not allowed to be accompanied by another witness and your supporter cannot participate in the interview. You can claim reasonable expenses for attending a precognition.


The decision to prosecute or not

The purpose of a criminal prosecution is to find out if a person, or in some cases a company, has broken the law and to punish an offender or offenders. Whether or not a criminal prosecution happens depends on the circumstances of the crash and whether there is enough evidence to support a criminal charge. Sometimes several charges are brought. Sometimes no charges are brought.

The Procurator Fiscal will consider the law, the evidence and whether it is in the public interest for charges to be brought. The crime has to be recognised in Scottish law and there also has to be enough reliable and credible evidence that the crime was committed by someone.

If the Procurator Fiscal thinks a serious criminal charge should be brought against someone, they send a report explaining their recommendation to senior lawyers called Crown Counsel. Crown Counsel will then instruct which charge or charges the accused should face.

Some charges must be brought within certain time limits. The police or the Procurator Fiscal can advise you.

Victims' Right to Review

If a decision is made by the Procurator Fiscal not to bring charges against someone, you may have the right to request a review of that decision, known as a Victim Right to Review. If you wish to request this, contact the Procurator Fiscal to find out if it is possible and the time frame in which you must do it.


Victim statements

If a case is being heard in the High Court or before a sheriff and jury (see Court cases), up to four family members may be asked whether or not they want to make a victim statement. This gives them an opportunity, before sentence is imposed, to explain in writing how the crime has affected their lives, physically, emotionally and financially.

If you are eligible to make a victim statement, the Procurator Fiscal should send you a letter that includes a victim statement form and the date that you need to return the form by. If you do not receive a letter and you feel you are eligible to make a victim statement, you can ask the Procurator Fiscal or VIA for more information.

If you make a victim statement and an accused person is found guilty by trial or pleads guilty, your victim statement will become part of the case papers and will be considered by the sentencing judge or sheriff. You will not have to read out your victim statement in court.

You do not have to make a victim statement. If you choose not to, information about the impact of the crime can still be explained in court.

More information, including details of who can make a victim statement and what can be included in a statement, is available in a booklet, Making a victim statement. The booklet is available at www.mygov.scot/victim-statement.


Charging someone and the possibility of bail

Someone who is being charged with a criminal offence is often called ‘the accused’. An accused person will be issued with a document, called a complaint, petition or indictment, that tells them to appear in court to answer the charge. Before their court appearance, an accused person may be remanded in custody (imprisoned) or granted bail (allowed to remain free before their case is heard).

The accused will be granted bail unless the court has good reason to believe they:

  • would not attend a court appearance;
  • would commit an offence while on bail;
  • would interfere with witnesses;
  • would obstruct the course of justice.

People on bail are required to:

  • turn up, when required, to court hearings;
  • comply with the law;
  • not interfere with witnesses or obstruct the course of justice;
  • make themselves available to the court as and when necessary.

Conditions may be attached to bail, such as limiting where the accused can live, or preventing them coming near you or your home or near someone else. A person on bail can also be electronically tagged. A court may require an accused person to refrain from driving as a condition of bail, but only if it considers that it is necessary to prevent the accused person from committing further offences. Otherwise, an accused person who is on bail and who possesses a valid driving licence will be allowed to continue driving while awaiting trial. If they are convicted of a crime, they may or may not be disqualified from driving as part of their sentence.

The accused person may apply for bail at different stages of the case, even if it has been refused earlier. The accused may appeal against a decision not to grant bail. If bail is still refused on appeal, the accused can ask for the decision to be reviewed, but only if there is good reason.

If bail is granted, the prosecution can only appeal against the decision in rare circumstances.

If the accused is granted bail and their behaviour causes you concern, for example you see them driving in a way that you consider dangerous, or if they threaten you, report it immediately to the police, VIA or the Procurator Fiscal.

VIA should inform the nearest relative of any bail decision. If the accused is remanded in custody, their court hearing must start within certain time limits. You can get more details from the Procurator Fiscal.


Changes to charges

Sometimes, if the accused is charged with a serious offence, the lawyers representing the accused will discuss with the Procurator Fiscal whether the charge should be changed to a different, perhaps less serious offence, based on the evidence of the case. This process is called ‘plea negotiation’ and usually happens before a case goes to trial.

The Procurator Fiscal may decide to continue charging the accused with the original offence or may agree to change the charge to a less serious offence. Their decision is based on the law, the evidence and what is in the public interest.


Criminal offences

The following information explain some of the offences that people can be convicted of following death on the road. Many people find it helpful to know that:

  • Maximum penalties are fixed by law and are different for different charges, sometimes significantly. Courts often impose penalties lower than the maximum.
  • Some charges mention the death or deaths, but others do not. Sometimes the only charges that can be brought by the Procurator Fiscal do not mention the death or deaths.
  • Sometimes a person, or more than one person, is charged with committing more than one offence.

Brake’s helpline on 0808 8000 401 is for anyone who has been bereaved in a road crash, whether you contributed to causing the crash or not.


Causing death by dangerous driving

Section 1 of the Road Traffic Act 1988 (as amended by the Road Traffic Act 1991, section 1)

The law states that: ‘A person who causes the death of another person by driving a mechanically propelled vehicle dangerously on a road or other public place is guilty of an offence.’

The definition of dangerous driving is that:

  1. the way a person drove fell far below what would be expected of a competent and careful driver; and
  2. it would be obvious to a competent and careful driver that driving in that way would be dangerous.

It is also dangerous driving if it would have been obvious to a competent and careful driver that driving a vehicle in its current state (for example, with defective brakes or other defective safety-critical components) would be dangerous.

If a jury decides that an accused person is not guilty of this charge, they may convict them of ‘causing death by careless or inconsiderate driving’ instead (see below).

This offence is usually tried in the High Court but in some circumstances may be heard in a Sheriff Court with a jury. The maximum prison sentence is 14 years at the High Court or five years at a Sheriff Court. Both courts may impose an unlimited fine. Anyone convicted must be disqualified from driving for a minimum period of two years. The offender must take an extended driving test before they can regain their licence.


Causing death by careless or inconsiderate driving

Section 2B of the Road Traffic Act 1988 (as amended by the Road Safety Act 2006, section 20)

The law states that: ‘A person who causes the death of another person by driving a mechanically propelled vehicle on a road or other public place without due care and attention, or without reasonable consideration for other persons using the road or place, is guilty of an offence.’

The law distinguishes between ‘dangerous’ driving and ‘careless or inconsiderate’ driving. The definition of careless and inconsiderate driving is that the standard of a person’s driving fell below (rather than far below) what would be expected of a careful and competent driver.

This offence is usually tried before a sheriff and jury in the Sheriff Court. In those circumstances, the maximum penalty is a prison sentence of five years or an unlimited fine, or both. The charge can also be heard by a sheriff, without a jury, in a Sheriff Court. Here, the maximum penalty is a prison sentence of 12 months or a fine of £10,000 or both. The driver must be disqualified for a minimum period of one year and their licence must be endorsed with three to 11 penalty points. The court has discretion to order the offender to re-sit their driving test before regaining their licence.


Causing death by careless driving when under the influence of drink or drugs

Section 3A of the Road Traffic Act 1988 (as amended by the Road Traffic Act 1991, section 3)

The law states that: ‘If a person causes the death of another person by driving a mechanically propelled vehicle on a road or other public place without due care and attention, or without reasonable consideration for other persons using the road or place, and s/he is, at the time when driving, unfit to drive through drink or drugs, or s/he has consumed so much alcohol that the proportion in his/her breath, blood or urine exceeds the prescribed limit, or s/he fails to provide a specimen, s/he is guilty of an offence.’

The offence is committed if the death is caused by careless driving and the driver has more than the legal limit of alcohol or fails to provide a specimen. This means the police do not necessarily have to show a person’s driving ability was impaired, only that s/he had more than the permitted amount of alcohol or certain drugs.

This offence is usually heard in the High Court but in some circumstances may be heard in a Sheriff Court. The maximum prison sentence is 14 years at the High Court or five years at a Sheriff Court. Both courts may impose an unlimited fine instead of, or in addition to, a prison sentence. Anyone convicted must be disqualified from driving for a minimum period of two years and their licence endorsed with three to 11 penalty points. The offender must pass an extended driving test to regain their licence.


Causing death by driving: unlicensed or uninsured drivers

Section 3ZB of the Road Traffic Act 1988 (as inserted by the Road Safety Act 2006, section 21 and amended by the Criminal Justice and Courts Act 2015)

The law states that: ‘A person is guilty of an offence if s/he causes the death of another person by driving a motor vehicle on a road and, at the time when s/he is driving, the circumstances are such that he is committing an offence under –

(a) section 87(1) of this Act (driving otherwise than in accordance with a licence),

or

(c) section 143 of this Act (using a motor vehicle while uninsured or unsecured against third party risks).’

This offence would only be charged where there is evidence that the standard of driving was in some way at fault and contributed more than minimally to the death. If an uninsured/unlicensed driver was involved in a crash caused entirely by somebody else, they would not be prosecuted for causing death by driving.

An offence under section 3ZB can be heard before a jury in the High Court or the Sheriff Court. In those circumstances, the maximum penalty is a prison sentence of two years or an unlimited fine or both. The charge can also be heard by a sheriff, without a jury, in a Sheriff Court. Here, the maximum penalty is a prison sentence of 12 months or a fine of £10,000 or both. The driver must be disqualified for a minimum period of one year and their licence must be endorsed with between three and 11 penalty points.


Causing death by driving: disqualified drivers

Section 3ZC of the Road Traffic Act 1988 (as inserted by the Criminal Justice and Courts Act 2015 (2015 c. 2))

The law states that: ‘A person is guilty of an offence under this section if he or she –

(a) causes the death of another person by driving a motor vehicle on a road, and

(b) at that time, is committing an offence under section 103(1)(b) of this Act (driving while disqualified).’

This offence would only be charged where there is evidence that the standard of driving was in some way at fault and that it is linked to the death.

An offence under section 3ZC can only be heard before a jury in the High Court or Sheriff Court. The maximum penalty is 10 years’ imprisonment, an unlimited fine, or both. The driver must be disqualified for a minimum period of one year and their licence must be endorsed with between three and 11 penalty points.


Murder and culpable homicide

Common Law

It is possible to charge someone with murder or culpable homicide if their driving has killed. Murder is committed when there was intention to kill a victim or the accused’s conduct was ‘wickedly reckless’. A charge of murder may, for example, be brought if someone used a vehicle as a weapon with an intent to kill. Culpable homicide is committed when the accused caused loss of life through wrongful conduct, but there was no intention to kill nor ‘wicked recklessness’.

Murder and culpable homicide charges are heard in a High Court. Murder carries a mandatory sentence of life imprisonment.


Corporate manslaughter and corporate homicide

Corporate Manslaughter and Corporate Homicide Act 2007

The law states that: ‘An organisation is guilty of an offence if the way in which its activities are managed or organised: (a) causes a person’s death, and (b) amounts to a gross breach of a relevant duty of care owed by the organisation to the deceased.’

A ‘duty of care’ is defined as a duty owed by an organisation to its employees or contractors, a duty owed as the occupier of premises, or other duties described in law that relate to the running of the organisation. An organisation is guilty of a ‘gross breach’ of a relevant duty of care if its conduct fell far below what would be reasonably expected. For example, if a company failed to ensure a vehicle it was operating had serviced brakes, and the vehicle could not be controlled.

This charge is heard in the High Court. Any penalty is against the company, not individuals working for the company. The court may impose an unlimited fine. The court may also impose a remedial order (where an organisation must make changes to prevent future breaches of health and safety laws) and a publicity order (where an organisation must publicise the details of its offence).


Killing someone by using a defective vehicle

If an unsafe vehicle (for example, a vehicle with defective brakes) has been involved in a collision which results in a death, then there are a range of offences that may have been committed by, depending on the case, the driver, the owner or operator of the vehicle if different (for example, the boss of a company running a fleet of vehicles), or anyone else considered responsible.

It may be possible, for example, to charge someone with the offence of causing death by dangerous driving (see above or corporate manslaughter and corporate homicide (see above).

Someone may be found to be in breach of Construction and Use Regulations. These impose requirements relating to safety critical components such as brakes, tyres, steering, tachographs (which record driving time of commercial vehicles) and speed limiters (that restrict speed on commercial vehicles).

Breaches of Construction and Use Regulations are heard in either a Justice of the Peace Court or Sheriff Court. There are a range of maximum fines, the most severe of which is £10,000 in the Sheriff Court and £2,500 in the Justice of the Peace Court (except if a Stipendiary Magistrate is sitting when the maximum is £10,000).

If the vehicle was a lorry, bus or coach, then the person in charge of the company that ran the vehicle may be stripped of their licence to operate such vehicles. The official who decides whether or not to do this is called the Traffic Commissioner. It may also be possible to disqualify a company boss from running any company.


Charges that do not mention death

The following charges do not mention death, but are sometimes brought against a driver who was involved in a fatal crash, or a crash that caused serious injury:

  • Dangerous driving Section 2 of the Road Traffic Act 1988 (as amended by the Road Traffic Act 1991, section 1); and
  • Careless driving Section 3 of the Road Traffic Act 1988

In some cases, there is evidence that a driver was driving dangerously or carelessly before or after the crash, but there is no evidence that this dangerous or careless driving caused the death. In these cases it may only be possible to bring charges of dangerous driving or careless driving, rather than the more serious charges of ‘causing death by dangerous driving’ or ‘causing death by careless or inconsiderate driving’. In cases where there is evidence that a driver was driving dangerously in a crash that caused serious injury, they may be charged with ‘Causing serious injury by dangerous driving’ (see below).

The offence of dangerous driving can be heard before a jury, usually in a Sheriff Court. In those circumstances, the maximum penalty is two years' imprisonment or an unlimited fine or both. The offence can also be heard by a sheriff without a jury in a Sheriff Court. In this case, the maximum penalty is 12 months' imprisonment or a £10,000 fine or both. The driver must be disqualified from driving for a minimum of one year unless there are special reasons to impose a shorter disqualification or no disqualification. Where no disqualification is imposed, the driver’s licence must be endorsed with between three and 11 penalty points. The driver must pass an extended driving test before they can regain a full driving licence.

The offence of careless driving is heard in a Sheriff Court without a jury. The maximum penalty is a fine of £5,000. The driver can be disqualified from driving. Their licence must be endorsed with between three and nine penalty points.


Causing serious injury by dangerous driving

If your case also involved another person or people receiving serious injuries, a charge may be brought in relation to causing those injuries.

  • Causing serious injury by dangerous driving Section 1A of the Road Traffic Act 1988

The offence of causing serious injury by dangerous driving means that a person is responsible for causing severe physical injury to another person as a result of their dangerous driving. This offence can be heard before a jury, where the maximum penalty is five years’ imprisonment or an unlimited fine or both. The charge can also be heard by a sheriff without a jury in a Sheriff Court. In this case, the maximum penalty is 12 months' imprisonment or a £10,000 fine or both. The driver must be disqualified from driving for a minimum of two years unless there are special reasons to impose a shorter disqualification or no disqualification. The driver’s licence must be endorsed with between three and 11 penalty points. The driver must pass an extended driving test before they can regain a full driving licence.


Failing to stop or report an accident

Section 170(4) and Section 170(7) of the Road Traffic Act 1988

A driver involved in a crash causing death, injury or damage must stop and provide their name and address, and the name and address of the owner of the vehicle and the identifying marks of the vehicle. Failure to do so is an offence (often called ‘hit and run’ in the media). It is an aggravation of the offence if the driver did not stop because they thought they were over the legal alcohol limit.

If for any reason the driver does not give this information at the time of the crash, they must report the crash to a police officer or at a police station within 24 hours. Failure to report a crash is also an offence.

Offences under this section are usually heard in a Sheriff Court. The maximum sentence for failing to stop and give details is 12 months’ imprisonment or a £5,000 fine or both. The driver’s licence must be endorsed with between five and 10 penalty points and the court may disqualify them. The penalty for failing to report a crash or provide details of insurance is a £1,000 fine.


Taking and driving away

Section 178 of the Road Traffic Act 1988

The law states that: ‘A person who in Scotland takes and drives away a motor vehicle without having either the consent of the owner of the vehicle or other lawful authority, or knowing that a motor vehicle has been so taken, drives it or allows himself to be carried in or on it without such consent or authority, is guilty of an offence.’ This offence is sometimes called ‘joyriding’ in the media.

This charge can be heard before the sheriff or before a jury in a Sheriff Court or the High Court. The maximum penalty is a prison sentence of 12 months or a £10,000 fine before the sheriff or 12 months and an unlimited fine, or both, on indictment.


Driving otherwise than in accordance with a licence

Section 87(1) of the Road Traffic Act 1988 (as amended by the Road Traffic Act 1991, section 17)

A person commits this offence if they drive when they do not hold a driving licence, or if they do not comply with the conditions of their licence. There may be circumstances where an unlicensed driver is involved in a fatal collision, but it cannot be proved that their actual driving caused the death (for example, where they are driving carefully at a safe speed and another driver collides with them and dies). In these circumstances, they may still be prosecuted for driving without a valid licence.

It is also an offence to cause or permit another person to drive if they do not hold a valid driving licence.

The maximum sentence is a £1,000 fine. In some circumstances, the driver’s licence may be endorsed with between three and six penalty points, or the court may disqualify them.


Driving while disqualified

Section 103(1) of the Road Traffic Act 1988

If a person drives while disqualified from driving, they commit this offence. A person may also be charged with this offence instead of 'Driving otherwise than in accordance with a licence' (see below), if they do not comply with the conditions of a provisional licence gained after a period of disqualification. As with 'Driving otherwise than in accordance with a licence', there may be circumstances where a disqualified driver is involved in a fatal collision, but it cannot be proved that their actual driving caused the death (for example, where they are driving carefully at a safe speed and another driver collides with them and dies). In these circumstances, they may still be prosecuted for driving while disqualified.

The charge can be heard before a jury in the High Court or Sheriff Court. In those circumstances, the driver can be sentenced to 12 months’ imprisonment, or an unlimited fine, or both. The charge can also be heard by a sheriff, without a jury, in a Sheriff Court. Here, the maximum penalty is 12 months’ imprisonment, or a £10,000 fine, or both.


Driving without insurance

Section 143(1)(a) of the Road Traffic Act 1988

If a person drives a vehicle on a road or any other public place without motor insurance, they have committed this offence. As above, there may be circumstances where an uninsured driver is involved in a fatal collision, but it cannot be proved that their actual driving caused the death (for example, where they are driving carefully at a safe speed and another driver collides with them and dies). In these circumstances, they may still be prosecuted for driving without insurance.

The maximum sentence is a £5,000 fine. The driver’s licence must be endorsed with between six and eight penalty points and the court may disqualify them.


Bringing a private prosecution

It is sometimes possible for a member of the public, rather than the Procurator Fiscal, to prosecute another person for a criminal offence. This is called a private prosecution and very rarely happens. The process is very costly and you cannot claim legal aid. There must be sufficient evidence in law that a crime has been committed. The consent of the Lord Advocate (see Can I claim compensation?) is also required before a private prosecution can take place.


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