Who’s in control?

While autonomous cars are evolving, what are the future road traffic policing concerns asks Darren Martin

The invention of the mechanically propelled vehicle could be argued to have greatly influenced modern societies in any number of ways. When the first motor vehicles came onto our roads they were the preserve of the rich and/or the military. When first established An Garda Síochána had a very limited number of vehicles which were deployed for police purposes. Seen as an expensive luxury for a new State it would be many years until the motor vehicle became the mainstay of modern policing. In the early days of traffic policing the amount of motor vehicles on our roads was relatively small and legislative provision to police our roads and motor vehicles was relatively minor compared to today’s policing demands, policing the thousands of road users every day.

An Garda Síochána established a dedicated traffic unit in Dublin Castle partly due to the increasing volume of traffic on our roads. In time, additional traffic units were established throughout the State. The Garda Síochána Act 2005 specifically made control of traffic and road safety a primary function of An Garda Síochána. Legislative provision and regulation also requires the relevant department to consult the Garda Commissioner when introducing new road traffic legislation.

The policing of our roads, and specifically the use of motor vehicles, requires garda members to have an extensive legal and technical knowledge in an area of the law that is constantly expanding and changing. When we examine the number and variety of motor vehicles on our roads today a member is required to have extensive knowledge of these changes in order to perform their duty and keep our roads safe for users. Each new technical development brings new policing challenges for those who police it. With the reality of driverless and/or autonomous vehicles imminent, the question of policing such advances arises.

Recent technical developments by many companies have resulted in the development of vehicles which can drive themselves without the necessity for human intervention when driving. The actual use of such vehicles on our roads may still be a number of years away. In the absence of specific legal provisions to allow driverless vehicles, the law remains that the ‘driver’ of the vehicle is responsible for the vehicle and safety towards other road users when doing so. But who is driving?

Autonomous vehicles could provide greater freedom for disabled drivers or older members of the community who can no longer drive on their own. It could remove the danger of a driver driving a vehicle while under the influence of an intoxicant to drive home after a night out. Haulage businesses could use such vehicles to transport goods long distances without the need for a human driver to stop to take rest. This coupled with the increased use of electrical or hybrid vehicles could even have a positive impact on the environment with improved fuel economy.

But what of the dangers of this new technology if used for unlawful purposes? The first and most obvious risk presented is the question ‘is it safe?’ and if not, what risks to other road users are evident.

That aside, there is a possibility that consignments of smuggled goods or controlled drugs could be sent in autonomous vehicles without the risk of any person being arrested or detected. Also, the danger that human trafficking would be made easer without risk to those who organise and exploit vulnerable persons for gain. It could lead to an interesting legal argument as to the interpretation of  having ‘control’ of the illegal drugs as provided for under current legislation. Where does the legal element of ‘control’ or ‘possession’ end where a driverless vehicle is in Cork but the person who sent it on its journey is in Dublin. It is a novel legal conundrum which may stretch the interpretation of current criminal statute.

There is also the danger that an autonomous vehicle could be used to deliver an explosive device to a location to harm the population, without any risk to those who sent it on its journey. The technology could be exploited to allow autonomous vehicles to be weaponised or endanger the public. Advances in new and relatively cheap technology, for example, such as drones have seen their use being exploited to deliver drugs into prisons, which obviously was never the intended use foreseen by the developers of the technology.

An additional legal area of concern is in the area of Tort law which results from traffic accidents. How does the current legal principles of the duty of care towards others relate to a traffic collision where one vehicle is being driven by a computer programme and not a person. Can blame for negligence be assigned to the owner of an autonomous vehicle where such owner is not actually driving?

In the case Curley v Morrison 1965 IR 543, the defendants 13-year-old daughter opened the door of the vehicle causing a cyclist to be injured. O Dalaigh J. held, ‘a person in charge of a motor car must take reasonable precautions for the safety of others and this will include the duty to take reasonable care to prevent conduct on the part of passengers which are negligent.’ Walsh J also held, ‘that the owner of the vehicle owed a duty to other persons using the highway not to use or drive the car negligently, but to take reasonable precautions to ensure that the car, while under his control and supervision was not used in a negligent fashion.’ It is unlikely that the trial judges in this case had driverless vehicles in mind when delivering their judgment.

The argument may require that the programmers of the autonomous vehicles be required to be joined as third parties to an action to argue the infallibility of their vehicles when used correctly. That is to argue that only a human driver could be at fault, thereby placing current vehicles at a disadvantage in legal terms.

The issue again returns to the legal interpretation of a person having control of a vehicle which may not include driving the vehicle. In DPP v Brendan Cronin 2006 IECH 386, a drunk driving case, the defendant had argued that there was a distinction between ‘exercising’ proper control rather than ‘having’ control of the vehicle and that they were entitled to a dismissal of the charge. De Valera J. held that there was no distinction in law to the use of the two words ‘exercising’ or ‘control’ and that they were construed as having the same meaning. He dismissed the appeal and the conviction was upheld.

The Road Traffic Acts provide an important legal power to An Garda Síochána for the investigation of offences. Many investigators agree that the Road Traffic Acts provide an effective tool in the fight against crime. One only has to look at the success of conducting vehicle check points in suppressing criminal activity and reducing the capacity of criminals by curtailing their ability to move on the public roads without detection.

The current Road Traffic Acts still require An Garda Síochána to be consulted on new proposed road traffic legislation. The question of the use of autonomous or driverless vehicles on our roads does not arise at this time and remains a moot point on a hypothetical legal question. It is more likely that there will be a pan European approach to their introduction, if at all. For now, it is unlikely that our traffic enforcers will be required to summons Kitt to court for some time yet. n

Darren Martin is a D/Garda. He holds a BL, Barrister-at-Law from the Honourable Society of Kings Inns; a Master of Laws (LL.M); a Master of Science (MSc) in Police Science and Management; a Bachelor of Civil Law (BCL) and a Bachelor of Arts Hons (BA) Administration of Justice. 

For full and in-depth coverage, see the current printed edition of Garda Review.

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