Why a fleeting mistake at the wheel now has serious consequences
Louise Houliston wonders if the ‘new’ careless driving punishment fits the crime
Historically, setting aside any motor accident involving death, the two key offences were careless driving under s3 of the Road Traffic Act 1988 and dangerous driving under s2A of the same Act. They focus on the standard of an individual’s driving at the time of incident.
When the standard falls below what would be expected of a competent and careful driver or driving without reasonable consideration for other persons, this constitutes careless driving. Examples include a momentary lapse in concentration or a misjudgement.
The standard for dangerous driving is when it falls far below the expectations of a competent and careful driver and it would be obvious to a competent driver that the driving is dangerous. Quite justly, the latter carries greater consequences.
When an injury was sustained as a consequence of poor driving, there was a gap. While there was an offence for causing serious injury by dangerous driving, there was, until 2022, no careless driving equivalent. The introduction of this additional motor offence brings very severe consequences, for an offence which has essentially been committed without intent.
While a Sheriff has discretion over disqualification versus points and/or a fine for careless driving alone, he/she does not when it comes to causing serious injury by careless driving. Where an accused is found guilty of the latter, they will receive an automatic 12-month driving ban, as well as potentially up to two years’ imprisonment or a community payback order (formerly community service). While Scotland does not follow the exact Sentencing Council guidelines for England & Wales, they can be referred to. However, our structure is different and there is no opportunity for deferred sentencing in Scotland.
Further, what is categorised as a “serious injury” by the Crown, is often different to a serious injury in the civil compensation world. Any broken bone, deep wound, multiple lacerations or injury requiring treatment may be considered serious and, as a consequence, the Crown is unlikely to accept a guilty plea to careless driving alone, which carries the lesser sentence.
The offence has serious consequences for individual drivers who have essentially made a fleeting mistake. The automatic ban can result in the loss of employment, being unable to commute to work; extra pressure on domestic arrangements/healthcare; and wider implications on individuals who drive vehicles for a living, not to mention those running transport and distribution companies, and consequently their insurers.
Since the introduction of this offence, I have observed an increase in instructions and prosecutions in my practice, also reflected in Scottish government road traffic offence statistics produced in response to Freedom of Information Request dated 21 January 2026.
Another huge challenge for the accused, employers and insurers, is the length of time it can take for a case to conclude, by way of a guilty plea or trial. According to government statistics, the typical timeframe is roughly 18 months to three years.
This places a huge strain on all directly involved. Further, this timescale can directly impact upon the injured party’s civil claim for damages as everyone awaits the outcome.
While there was a gap in the motor offence world, the injured party has always had the opportunity to seek compensation via civil damages. So, while there should always be consequences for an individual found guilty of a criminal offence, the consequences of this “new” crime can be incredibly harsh.
Louise Houliston is a Partner, Kennedys