The Value of Unenforceable Laws

It is often said that an unenforceable law is futile, perhaps even counter-productive. But is this really true?

When the French government introduced 26 new safety measures earlier this year, the one that attracted the most media attention was number 22. This bans the use of all types of headphones, whether wired or wireless, for any purpose, including both conversations and music, when driving or riding any type of vehicle.

The issues of distraction and sensory deprivation through the use of such equipment are not trivial themselves, but a notable aspect of this legislation is what it doesn’t prohibit, and why.

The introductory paragraph for the rule explains the reasoning behind the new law:

Téléphoner en conduisant détourne obligatoirement l’attention, “kit mains-libres” ou pas.

(“Using the phone while driving necessarily distracts attention, hands-free kit or not.”)

This is backed up by research. But of course, the practicalities of laws are tricky things, not least when they address technology issues.

When French online magazine iphonote.com contacted Sécurité Routière for clarification regarding the Apple Smartwatch, they received the following response:

La montre connectée, tout comme les systèmes Bluetooth intégrés aux véhicules, ne sont pas couverts par le champ de cette interdiction. La raison en est qu’il serait difficile voire impossible de les interdire: ces derniers équipent déjà un grand nombre de véhicules, et le contrôle par les forces de l’ordre de l’utilisation à des fins de conversation téléphonique de ces technologies est quasiment impossible.

(“Smart watches, as with Bluetooth systems integrated into vehicles, are not covered by the scope of this prohibition. The reason being that it would be difficult or impossible to ban them: they already exist in a large number of vehicles, and the checking of their use for the purposes of telephone conversation by law enforcers is virtually impossible.”)

Pragmatically, this is not unreasonable. There is simply no practical means at present to determine that someone is using such a system and pull them over and charge them for the offence.

Hence prohibiting these undetectable acts by law would be largely useless as a deterrent: if you want to do something, and can’t be caught doing it, why not do it?

But, whilst prevention is better than cure, deterrence is not the sole function of the law.

On February 14 2002, Tim Sanders was cycling past Guildford on the A3. He was struck by a car driven by a man who was making a hands-free call at the time. The driver failed to see Tim until he was only a few yards away, by which point the collision was inevitable.

Tim was left with locked-in syndrome: his brain was fully intact, but he could only blink. He could not move, eat or even breathe unaided. Given Tim’s condition, he would need lifelong care and a modified home for when he finally left hospital, so it was important to secure a significant civil settlement for damages.

The CPS declined to charge the driver with any offence. But, as it turned out, this decision not to prosecute was not necessarily a bad thing: the verdict would have prejudiced the civil case, meaning that had the driver been found not guilty it would have been harder to secure a satisfactory civil settlement [1]. Fortunately, Tim’s solicitors managed to win damages comprising both a lump sum and an additional annual payment. (In the end, Tim never left hospital, and he passed away in 2004.)

Of course, the flipside of this is that had the driver been found guilty, obtaining the settlement would likely have been little more than a formality.

And here we return to the matter of “unenforceable” laws.

Had the CPS decided to prosecute, the driver who hit Tim would have likely faced a charge of careless driving, or possibly dangerous driving. As will be wearily familiar to regular readers, the test for this is defined in the Road Traffic Act 1988 as follows: “A person is to be regarded as driving without due care and attention if (and only if) the way he drives falls below what would be expected of a competent and careful driver.”

The issues with this should be equally familiar: it is a difficult test, based on the inherent subjectivity in the definitions of “competent” and “careful” as well as the vagueness in “below what would be expected”. There is no discrete unit of fact, no smoking gun, which can be pointed to as incontrovertible evidence of having committed an offence. Opportunities abound for the defence to find even the smallest crack of uncertainty in the prosecution’s case and, using the jemmy bar of the jurors’ own self-justified standards of driving, lever it ever wider until the gap reaches “reasonable doubt” and their client is safe.

But were there an offence that prohibited the use of all communication devices whilst driving, then the test for guilt of this would be more straightforward: identify the time of the collision, obtain the call records, and the case is all but sealed. Hence it would follow that a related civil case should also be much simplified.

(As a side note: anyone keen to ensure that any investigation into their injury or death has good evidence would be well advised to ride with a GPS unit: see this remarkable case, which would have been a very different story had there been a verifiable record of the time of the collision.)

Consider also the cases of Sharmila Mistry and Taylor McDonnell: both involved in collisions that resulted in two fatalities, both using hands-free phones, both admitting to having failed to notice multiple aspects of their environment in the moments before the collisions (and the latter even saying, “before I could get my mind to function something hit my windscreen”, which is surely a clear sign of cognitive distraction), and both cleared of having caused death through their driving. Without hands-free phone use being legally recognised as the distraction that research shows it to be, such cases continue to suffer from a weak basis for prosecution.

Like many, the French government purports to understand that conversations with a remote party are a major cognitive distraction regardless of whether the phone is in the participant’s hand, but it stops short of outlawing them on an equivalent basis. However, the reasoning for this stifled legislation is questionable. Outlawing all such communication would not be a truly unenforceable law; it would simply be of negligible use in preventing an incident.

It is wrong to think that the sole value of law is in its ability act as a deterrent (or indeed to think that a legal deterrent is the best way of preventing something: rarely is that the case, especially for acts of this nature). Law also has value in terms of restoration and reconciliation: if incidents will happen, then it can help in easing the process of making the best of a bad situation.

Because there are no winners once a collision occurs, it is uncomfortable to talk of legal tools that cannot prevent injuries and fatalities (just as it is uncomfortable to ask whether any truly can). But we should do so, because to improve the objectivity and testability of offences is to reduce the losses of those who lose the most.

Footnotes/errata

1. Contrary to the original information I found (purportedly written by Tim’s solicitor), “an acquittal does not prejudice the success of a civil claim”. This point is thus invalid, but nonetheless there remains much to be gained from the ability to prosecute someone for an easily-proven offence relating to an activity that is known to significantly diminish their ability to drive safely.