By: 18 February 2019
Stretched judiciary lacks resources to deal with autonomous vehicles, says Kennedys

An already stretched judiciary requires in-depth guidance from the UK government if the regulation of autonomous vehicles is to be successful, law firm Kennedys has told the Law Commission’s consultation on their introduction.

In its response to the regulatory framework consultation for the safe deployment of autonomous vehicles in the UK, which closed today, Kennedys said: “Further guidance will be required for the judiciary. Court time, both in civil and criminal litigation, is very limited, as is judicial resource.”

“There is typically little or no time for a forensic examination of vehicle automated driving systems in a sub-large-loss or less serious criminal cases. As such, judges are very likely to take an ‘aerial’ view when assessing fault, which could lead to unintended consequences, including satellite litigation and unfairness.”

The Centre for Connected and Autonomous Vehicles (CCAV), a part of the Department for Transport and the Department for Business, Energy & Industrial Strategy, asked the Law Commission of England and Wales and the Scottish Law Commission to undertake a review of the legal framework for automated vehicles, and their use as part of public transport networks and on-demand.

CCAV’s request was a part of wider government plan to assess the viability of autonomous vehicle technology, which includes a process being developed to support advanced trials of automated vehicles.

In its response to the Law Commission’s consultation, Kennedys said that guidance on how and when vehicles move in to and out of autonomous mode will be crucial.

It has also highlighted the importance of insurers, engineers and accident reconstruction experts having access to rich data, not only from external vehicle sensors but also from internal sensors—in order to properly establish who or what was in control of the vehicle at material times and whether handover and/or handback was performed reasonably.

Kennedys said that legislation should be amended to place the onus on manufacturers to ensure, by design, that autonomous vehicles cannot start their journey until safety-critical software updates are uploaded or it is confirmed that such software is already up to date.

“It makes no practical real-world sense to place this onus on the user—in much the same way that many vehicles will not allow the driver to set off if their seat belt has not been put in place.”

It also said that manufacturers of autonomous vehicles will need to ensure that consumers have a clear understanding of what the vehicles and their automated features can and cannot do.

The role of the ‘user-in-charge’—the person operating the controls of the automated vehicle when not in autonomous mode—must also be made clear.

“The key issue here is being very clear as to when and at what point a human user-in-charge becomes liable from both a criminal and civil perspective for the operation of the autonomous vehicles. This will be heavily dependent on evidence as to how and when the autonomous systems took control, whether they should have taken control, and how and when the user tried to take back control.

“It is therefore imperative that motor manufacturers give court experts and insurers ready and unfettered access to event data records and sensor data from vehicles in civil and criminal litigation involving autonomous vehicles.”

The firm urged caution when assigning criminal liability to a user-in-charge: “Assessing whether the user in charge could have taken steps to avert a serious injury/accident would be highly fact sensitive and we believe the onus on the user in those circumstances would be far lower compared with the driver of a manual vehicle.”

In its response, the law firm also reminded the government about the importance of getting the public on side: “The views of a large cross-section of society in the UK need to be monitored. There is an education piece for the public which again must be government-led, but with the support of the various stakeholders—to avoid the very real possibility that the public will take a negative view of autonomous vehicle technology and inhibit rollout, public uptake and trust.”

Research carried out on behalf of Kennedys found that only 44% of adults back driverless cars on UK roads.