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
• Scottish Law Commission and Law Commission for England and Wales • Independent statutory law reform agencies • UK Government's Centre for Connected and Autonomous Vehicles • Aim: develop a legal framework for self- driving vehicles in deployment beyond trials on GB roads
Automated Vehicles: Summary of the Preliminary Consultation Paper Automated Vehicles: Summary of Consultation Paper 2 on Passenger Services and Public Transport Automated Vehicles: Summary of Consultation Paper 3 – A regulatory framework for automated vehicles
Liability Safety Assurance Before Deployment User and Fleet Operators Data
l. How we are adapting the UK legal framework to better fit AVs The legal status of human users of AVs ll. How safe is safe enough? III. IV.  The scope of criminal liability for AVs – an update on our policy Part I: adapting the UK legal frameWork to AVs

Path 1:
▪ Consumer vehicles sold across borders; ▪Continue to have human in the driving seat ▪ Motorway driving ▪ Parking Path 2: ▪ Sells a service rather than a vehicle. ▪ No driving seat . Ride hailing . Logistics

ADSE
Needed for all on-road AVs. Puts the ADS forward for lessal categorisation as self-driving and is lessliv responsible for how the ADS performs dynamic control. The ADSE must have been closely involved in assessing safety and have sufficient funds (e.g. to organise a recall). Path 1: AVs that can only be used with a
User-In-Charge
A UIC is a human in the vehicle or in sight of the vehicle, with access to the controls. The UIC must: (1)   Be qualified and fit to drive Be receptive to a transition demand Maintain and insure the vehicle (4) Report accidents Examples of use cases where a user-in-charge may be required: Sub-trip features such as motorway chauffeur, or valet parking where an element of conventional driving is needed to complete a journey. Path 2: Remote operation – AVs that can be used without a UIC. They must be associated with a
Licensed Fleet Operator
Tier 1 requirements apply to all AVs with No User-In-Charge (NUICs). The operator must: Be qualified (of good repute, professionally competent) (1) Operate remote supervision (2) Maintain and insure the vehicle Report accidents and near misses Tier 2 requirements that apply to certain use cases Requirements for passenger services (HARPS): Requirements for goods deliveries use case: Simple use cases where fulfilment of Tier 1 requirements is sufficient. No additional Tier 2 requirements needed. Weight threshold Type of goods Securing loads (2) (1) Accessibility (1) Safeguarding (2) passengers Price information (3) Example - ride hailing services (3) safely Example - snow plough Example - freight truck Part II. The legal status of users of AVs - the legal challenges of human intervention VectorStock®
VectorStock com/20923414

• A bright line: relaxing driver distraction laws and removing! criminal liability go together.  R • If you tell people they do not have to pay attention, you cannot criminalise them if they fail to pay attention.
•   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 in self-driving mode •   No obligation to monitor vehicle
• User-in-charge would only need to take over driving in event of transition demand ● Should provide clear, visual, audio and haptic signals and give sufficient time to gain awareness • User-in-charge will be a deemed driver at end of transition demand, whether they take over or not
This Photo by Unknown Author is licensed under CC BY-SA

Move to self-driving requires conceptual leap for society as a whole • Criminal prosecution of drivers currently acts as channel for societal blame → will cease to exist • Challenge in respect of collision victims/families
As safe as reasonably
practicable
• Commonly used across many industries • Flexible test - involves weighing the risk against the money, time and trouble to aver it As safe as a competent
and careful human
driver
•  High standard – AVs may be much better than human drivers in some areas and not 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 for causing accident under law of negligence? ● Attempts to create a mathematical model of this test
Positive Risk Balance
•  AVs must result in fewer overall casualties than human driving . Issues with public perception, equity of risk distribution and measurement of risk How safe is safe enough? •  Level of risk must be acceptable to the public •  With four possible standards, we advocate for combined approach •  Ultimately, a political decision informed by evidence and expert advice •  Ethical questions raised due to redistribution of risk PartNV: Scope of criminal liability for automated Vehicles – our proposals
• 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 end of transition period • Two new proposed offences •  Causing or permitting the use of a vehicle by an unfit/unqualified user-in-charge • Allowing oneself to be carried without a user-in-charge
• In our February 2020 symposium presentation, we outlined the existing law and indicated we were considering creating new offences to hold AV developers liable • In our third consultation paper, we emphasise a focus on safety rather than blame, achieved through regulatory sanctions •  When something goes wrong (eg fatal collision), focus should be on identifying problem and fixing it
• Criminal sanctions appropriate if an Automated Driving System Entity (ADSE) or its senior managers commit serious wrongdoing (eg lying about safety tests) • Existing offences insufficient, creating “accountability gap" •  FOUR proposed new offences
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 provide information to the regulator that is false or misleading in a (2) material particular where 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 reasonable precautions and exercised all due diligence to prevent the wrongdoing. The penalty would be an unlimited fine.
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 provide information to the regulator that is false or misleading in a (2) material particular where 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 reasonable precautions and exercised all due diligence to prevent the wrongdoing. The penalty would be an unlimited fine.
Where offence A and/or offence B committed by a body corporate is proved— to have been committed with the consent or connivance of an officer of (1) the body corporate; or to be attributable to neglect on the part of an officer of the body (2) corporate, 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 a fine and/or a maximum two years' imprisonment. Offence D: aggravated offences in the event of death or serious injury following non-disclosure or provision of misleading information to the AV safety regulator Where a corporation or person commits Offences A to C, that offence is aggravated where the misrepresentation or non-disclosure: (1) related to an increased risk of a type of adverse incident; and an adverse incident of that type occurred; and (2) the adverse incident caused a death or serious injury. (3) 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.
• 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
Reviewor Final date for consultation responses: 18 March 2021 V \ O Final Report: Q4 2021 automatedvehicles@lawcommission.gov.uk