In our last article we looked at ways in which the prosecution can prove who was driving at the time an offence was committed. In this article, however, we will look at what constitutes an act of driving for the purposes of offences under the Road Traffic Act 1988 (“the Act”). In most cases this will be very clear cut but, in some cases, whether a defendant was ‘driving’ within the meaning of the Act could be the vital difference between leaving court with a clear criminal record, and being handed a lengthy custodial sentence.
Section 192 Road Traffic Act 1988
The Act itself provides a very basic definition of what “driving” means: a driver is someone who steers the vehicle as well as any other person “engaged in driving”. It is therefore possible for more than one person to be ‘driving’ at the time of an offence. It should be noted that this definition does not apply in cases where the defendant is charged with causing death by dangerous driving.
The basic statutory definition needs fleshing out, and numerous cases have been decided over the years which explore this topic in depth. Despite the cases’ varying factual matrices, it is clear that the question of whether a defendant was engaged in a valid act of driving at the relevant time is to be determined in light of all the circumstances present in the individual case. A selection of principles from decided cases are outlined below.
Core Test: Use of the Driver’s Controls
The Court of Appeal in MacDonagh held that you are driving a vehicle if you are using “the driver’s controls for the purpose of directing the movement of the vehicle”. This is the core test to apply when establishing whether the defendant was engaged in a valid act of driving at the relevant time.
By this test, therefore, ‘driving’ could feasibly include cases where a defendant coasts down a hill with the engine turned off with the gearbox in neutral, or where a defendant steers a car whilst his friends push, or where a defendant steers a car whilst it is being towed by another vehicle.
The case of MacDonagh itself involved a defendant (who was disqualified from driving) pushing his car along the road with two feet on the road and one hand on the steering wheel, after a police officer asked him to move it. However, it was decided that “although the word ‘drive’ must be given a wide meaning, the courts must be alert to see that the net is not thrown so widely that it includes activities which cannot be said to be driving a motor vehicle in any ordinary use of that word in the English language”. On this basis, the defendant’s actions were held not to constitute an act of driving in the circumstances of this individual case: in another case with slightly different circumstances, however, the decision may be different.
Interestingly, in McKoen v Ellis, a case involving a motorcyclist, it was held that pushing and steering a motorcycle with the ignition and lights on counted as ‘driving’, but only if the defendant was wearing biking leathers and a crash helmet at the relevant time.
Does the act of ‘driving’ continue if the vehicle stops moving?
In short: not always. In at least two reported cases, a defendant has been held to be ‘driving’ whilst stationary, although it is clear that this strictly depends on the factual circumstances of the individual case. The reason for stopping the vehicle is relevant as it may signify the end of the journey (ie. parking in a car park) or it may be an integral part of the journey (ie. stopping at a traffic light or pedestrian crossing). The court will also need to consider whether acts relating to the end of a journey (such as locking the car, turning off the ignition, and leaving the vehicle) have been undertaken by the driver. In reality, this is very much a common sense inquiry.
Can ‘driving’ be inferred from circumstantial evidence?
Interestingly, in Whelehan v DPP, although the police did not catch the defendant in the act of driving, they were able to prove to the satisfaction of the court that he had been driving when they found him in the driving seat of a stationary car at 1:20am with the keys in the ignition. Therefore, it is undoubtedly possible (in suitable cases) to infer from the circumstances surrounding the defendant at the time of his arrest that he has recently engaged in the act of driving, even if the arresting officer does not specifically witness it.
Additional fact-specific illustrations of ‘driving’
Below are listed some further examples of cases where a defendant has been found to have engaged in a valid act of ‘driving’. It should be noted that this list is non-exhaustive.
If the court concludes that you were not driving at the relevant time, it is possible for you to escape a conviction entirely. Therefore, if you are accused of any road traffic offence, do not hesitate to contact us for a free consultation.
Only last week we helped a client who was caught doing 56mph in a 30mph limit. With our expertise and assistance, we were able to secure a sentence of only 6 penalty points, when the sentencing guidelines recommended a starting point of a 56 day ban. For more examples of our work, please click here.
The contents of this article should not be relied upon in isolation. Each case is fact specific and this article should not be treated as legal advice or as a substitute for legal advice.
 MacDonagh  QB 448
 MacDonagh  QB 448, 451 per Lord Widgery CJ
  RTR 26
 See Pinner v Everett  3 All ER 257 and Skelton  Crim LR 635
 Edkins v Knowles  QB 748
  RTR 177
 McQuaid v Anderton  3 All ER 540
 Tyler v Whatmore  RTR 83
 Jones v Pratt  RTR 54
 DPP v Hastings  RTR 205
 Burgoyne v Phillips  RTR 49
 DPP v Alderton  RTR 367