Automated Vehicles: who’s in charge?

Further proposals about how automated vehicles will be operated and regulated have just been published in a new Law Commission consultation.

It contains very important material with regard to safety, criminal and civil liability and the role of humans when in charge of vehicles or being carried by them.

An automated vehicle is one that is capable of driving itself for the whole or part of the journey. It is where it is not being controlled by a human “driver”. This is different from a driver-assistance system that helps the driver but where the driver is still controlling the vehicle.

The “user-in-charge”

The consultation considers how over time vehicles will increasingly be able to drive themselves and humans will simply be passengers. However, some parts of journeys would not be conducted with the vehicle in automated mode so a human driver will be needed. It is anticipated motorways will be where most automated driving will take place, at the start at least – but before and after leaving the motorway there would have to be a human driver. When on the motorway the human “driver” will not actually be driving – however, the suggestion is that that a person remain fit to drive whilst the vehicle is operating in an automated mode.

It is proposed that there be introduced the concept of a user-in-charge who may be called on to drive a vehicle in certain circumstances. This would have to be a person who is both qualified and fit to drive except where vehicles are permitted to operate without one. This would mean holding a driving licence, not being disqualified from driving, compliance with eyesight requirements and not being impaired through drink or drugs.

Accidents

It is already the intention that where an accident occurs involving an automated vehicle driving itself, the liability for damage will rest with the insurer who may reclaim damages from any other party liable for the accident including the vehicle manufacturer. This is in the Automated and Electric Vehicles (AEV) Act 2018. Insurance will cover the driver and passengers of the automated vehicle itself. So, if something goes wrong (in automated mode) not will only ‘third party’ road users and members of the public be protected but the vehicle occupants too. When the automated driving system is deployed, the ‘user-in-charge’ would also not be responsible.

Criminal Liability

But what happens if an automated vehicle were to behave in a way that would be a criminal offence had it been driven by a human driver? For example, issues could arise where, say, a speeding offence is committed by an automated vehicle. What would be the procedure? The police would clearly require to know if the driver was a human driver or the vehicle was being operated in automated mode and if the latter what action would be taken? This is just one of countless scenarios that need to be addressed.

It is proposed that automated driving systems only be permitted where they have been duly authorised. Vehicles would be submitted for authorisation by the Automated Driving System Entity (“ADSE”) i.e. the vehicle manufacturer or developer of the Automated Driving System. The ADSE would have legal responsibilities: this would be to ensure safe operating systems, with the ADSE subject to regulatory action where the vehicle performed in a way that would amount to a criminal offence if it were carried out by a human driver. A new agency would be created to regulate the safety of automated systems. It would investigate and be able to pursue sanctions, ranging from improvement notices to criminal fines and removal of authorisation for the automated systems installed in the vehicles.

Vehicle Interference

Other concerns addressed in the consultation include security issues. There are clear risks to be addressed: it may be possible to hack into automated vehicle software or there could be serious vandalism caused by interfering with the vehicle sensors with potentially very serious consequences. Most situations are regarded as already being covered by existing criminal offences but new offences may be necessary in the areas of sensor tampering or taking vehicles without consent.

The entire ambit of road traffic law and civil/criminal liability is impacted by this new technology that is developing very rapidly.