Smart motorways and the criminal law

Steven Baylis, partner at Lime Solicitors, discusses the potential for a corporate manslaughter case.

The use of smart motorways creates an unusual dilemma. The aim is to reduce congestion, which in itself is found to reduce accidents, but it also seems to create new risks to motorists that would not be present were a hard shoulder available.

Many collisions occur where the motorists involved do not have the option of moving to a hard shoulder or emergency area, and are exposed to the risks of being struck by other motorists should they exit their vehicles. In the tragic case of Jason Mercer and Alexandru Murgeanu, their deaths were caused by the negligence of another motorist, who was not driving in a safe manner.


Should drivers be able to get to the hard shoulder, it will not eliminate the risk of incidents of careless driving.

Where an incident is caused by the negligence of other motorists, I cannot see there being a finding of corporate manslaughter. However, Highways England will need to consider the issues very carefully and determine whether anything further can be done to maximise the safety of road users.

This is especially the case now that a coroner has concluded the use of smart motorways pose an ongoing risk of future deaths.

Corporate manslaughter is a criminal offence where a business or organisation is found to have caused a person’s death.

A business can be prosecuted for the offence of corporate manslaughter if the way in which its activities are managed cause a death through a gross breach of duty of care to the deceased.

It should be noted that the Crown Prosecution Service apply a high threshold for liability requiring a gross breach of the relevant duty of care. The prosecution must prove that the breach of duty was causative of the death. A gross breach of duty is where the conduct alleged falls far below what can reasonably be expected of the organisation in the circumstances.

Highways England states that casualty numbers are lower on smart motorways versus conventional motorways. It is stated that smart motorways have a range of protection measures in place, which are not present on other types of high-speed roads. This includes CCTV coverage, systems to detect the flow and speed of traffic, emergency refuge areas and electronic signs to close lanes.

Department for Transport research found on average over the previous five years approximately one in twelve fatalities on conventional motorways happened on a hard shoulder.

It is of course always deeply sad to learn of serious and fatal accidents. In the case of Jason Mercer and Alexandru Murgeanu, the presence of an available hard shoulder could have avoided this tragic incident occurring.

It remains the case though that any significant investment in road expansion schemes would result in more congestion and fewer lanes on motorways in the short-term. As such, there may still be an increased risk of stop-start traffic and greater numbers of crashes.

Likewise, if hard shoulders are to be retained and not used to facilitate smart motorways, this too may create additional congestion and increased incident numbers.

I do agree with the coroner that this needs to be looked at to determine, in the absence of substantial infrastructure investment, whether the use of smart motorways is found to be overall safer than retaining hard shoulders - albeit the risks of tragic incidents such as this one might still occur.

The obvious benefit to the Government of smart motorways is that is eases congestion without the need to invest in expensive motorway expansion schemes. With an increasing population and more vehicles on the road network, a longer-term strategy is clearly required.

Increased and cheaper access to public transport may not be a bad start. The issue is now rightly high on the road safety agenda, with the transport secretary set to hold crisis talks with senior officials at Highways England.

It has come to light through Minutes from a Department for Transport meeting in 2011 that a lawyer raised concerns over converting hard shoulders into permanently live lanes of traffic. It would now seem appropriate for all the research and data held on the issue of smart motorways to be carefully re-analysed and to ensure maximum levels of safety on our motorways. 

Steven Baylis is a partner at Lime Solicitors


Also see

Supported By