The UK’s approach to criminal
responsibility and ethical dilemmas
for SAE level 3 and 4 vehicles

Jessica Uguccioni

Law Commission of England and Wales
25 February 2021
IATSS SymposiumLaw Commissions’ AV Review• Scottish Law Commission and Law
Commission for England and Wales• Independent statutory law reform agencies• UK Government’s Centre for Connected andAutonomous Vehicles• Aim: develop a legal framework for selfdriving vehicles in deployment beyond trials on
GB roads

Three cycles of consultation:
2018/2019/2020

Automated Vehicles:
Summary of Consultation Paper 3A– A regulatory frameworkforautomated vehicles

Summary of LCCP No 252 / SLCDP No 171
18 December 2020

Priority areas: the current consultation
The Meaning of‘Self-Driving’

Safety Assurance
BeforeDeployment

Safety in Use

User and Fleet
Operators

Civil & Criminal
Liability

Data

Overview of today’s presentation
I. How we are adapting the UK legal
framework to better fit AVs
II. The legal status of human users of AVs
III. How safe is safe enough?
IV. The scope of criminal liability for AVs –an update on our policy

Part I: adapting the UK legalframework to AVs

This Photo by Unknown Author is licensed under CC BY-SA

Two core Paths to Automation

Path 1:Path 2:

 Consumer vehicles
sold across borders; Sells a service
rather than avehicle.

Continue to havehuman in the drivingseat Motorway driving
 Parking No driving seat
 Ride hailing Logistics

Key AV-specific legal actors

Part II: the legal status of usersof AVs – the legal challenges ofhuman intervention

Changes to criminal responsibility for driving• A bright line: relaxing driver
distraction laws and removingcriminal liability go together.
• If you tell people they do nothave to pay attention, you
cannot criminalise them if they
fail to pay attention.

The “user-in-charge”• Creation of a new legal category - person in
driving seat is not a driver but a “user-in-charge”• User-in-charge not liable for death or serious
injury under most circumstances when vehicle inself-driving mode
• No obligation to monitor vehicle

Transition Demands• User-in-charge would
only need to take overdriving in event oftransition demand• Should provide clear,visual, audio and haptic
signals and give sufficient
time to gain awareness• User-in-charge will be adeemed driver at end oftransition demand,
whether they take over ornot
This Photo by Unknown Author is licensed under CC BY-SA

Societal shift – from blame to safety• Move to self-driving
requires conceptual leap
for society as a whole• Criminal prosecution ofdrivers currently acts aschannel for societal blame will cease to exist• Challenge in respect ofcollision victims/families

Part III: How safe is safeenough?

As safe as reasonably
practicable• Commonly used across
many industries• Flexible test - involves
weighing the risk against
the money, time andtrouble to aver it

As safe as a competentand careful humandriver• High standard – AVs may bemuch better than humandrivers in some areas andnot as good in others

Four possible standards for“safe enough”
Does not cause a fault
accident• Test – if behaviour had been
performed by human driver,
would they be held liable forcausing accident under law ofnegligence?
• Attempts to create amathematical model of this test

Positive Risk Balance• AVs must result in fewer
overall casualties thanhuman driving• Issues with publicperception, equity of risk
distribution andmeasurement of risk

How safe issafe
enough?

• Level of risk must be acceptable to the public• With four possible standards, we advocate for
combined approach• Ultimately, a political decision informed byevidence and expert advice• Ethical questions raised due to redistributionof risk
This Photo by Unknown Author is licensed under CC BY-NC

Part IV: Scope of criminal liability
for automated vehicles – ourproposals

Criminal liability of the user-in-charge• Human in the driving seat (“user-in-charge”) not
criminally liable for offences related to driving task
while automated driving system engaged• User-in-charge reacquires obligations of driver at endof transition period• Two new proposed offences• Causing or permitting the use of a vehicle by anunfit/unqualified user-in-charge• Allowing oneself to be carried without a user-in-chargeCorporate criminal liability (1)• In our February 2020 symposium presentation, weoutlined the existing law and indicated we wereconsidering creating new offences to hold AV
developers liable• In our third consultation paper, we emphasise a focus
on safety rather than blame, achieved throughregulatory sanctions• When something goes wrong (eg fatal collision), focus
should be on identifying problem and fixing itCorporate criminal liability (2)• Criminal sanctions appropriate if an AutomatedDriving System Entity (ADSE) or its senior managers
commit serious wrongdoing (eg lying about safetytests)• Existing offences insufficient, creating “accountabilitygap”• FOUR proposed new offences

Offence A: non-disclosure and misleading informationin the safety case
When putting forward a vehicle for classification as self-driving, it would be a
criminal offence for the ADSE to(1)fail to provide information to the regulator; or(2) provide information to the regulator that is false or misleading in amaterial particularwhere that information is relevant to the evaluation of the safety of the ADS
or the vehicle.
The ADSE would have a defence if it could show that it took reasonableprecautions and exercised all due diligence to prevent the wrongdoing.
The penalty would be an unlimited fine.

Offence B: non-disclosure and misleading informationin responding to requests
When a regulator requests specific information from an ADSE (whether before
or after deployment), it would be a criminal offence for the ADSE to(1)fail to provide information to the regulator; or(2) provide information to the regulator that is false or misleading in amaterial particularwhere that information is relevant to the evaluation of the safety of the ADS orthe vehicle.
The ADSE would have a defence if it could show that it took reasonableprecautions and exercised all due diligence to prevent the wrongdoing.
The penalty would be an unlimited fine.

Offence C: offences by senior management
Where offence A and/or offence B committed by a body corporate is proved—(1) to have been committed with the consent or connivance of an officer ofthe body corporate; or(2) to be attributable to neglect on the part of an officer of the bodycorporate,then that officer is guilty of the offence.
An officer includes any director, manager, secretary or other similar officer or
any person who was purporting to act in any such capacity.
We see this as equivalent to offences under the Human Medicines Regulations
2012 and General Product Safety Regulations 2005, which carry a penalty of afine and/or a maximum two years’ imprisonment.

Offence D: aggravated offences in the event of deathor serious injury following non-disclosure or provisionof misleading information to the AV safety regulator
Where a corporation or person commits Offences A to C, that offence isaggravated where the misrepresentation or non-disclosure:(1)

related to an increased risk of a type of adverse incident; and(2)an adverse incident of that type occurred; and(3)the adverse incident caused a death or serious injury.

We see this as equivalent to the offence of causing death by dangerous driving,which carries a penalty of an unlimited fine and/or a maximum of 14 years’
imprisonment.

Criminal liability for tampering• Proposed amendments to deter and penalise
wrongful or unauthorised interference with AVs• Amendments to existing statutory offences• New aggravated offence where interference causes
death or serious injury• No proposals on cybersecurity

Milestones to completing the AV
Review

Final date for consultation responses: 18 March 2021
Final Report: Q4 2021
automatedvehicles@lawcommission.gov.uk