Smart motorways – accidents waiting to happen?
Keoghs Partner Neena Sharma represented BL through a difficult police investigation following an incident on a smart motorway which resulted in the tragic death of BL’s grandson. BL’s car was stationary on the hard shoulder - for reasons unknown - which at the time was a live running lane.
BL's grandson was killed instantly on the M6 motorway near Birmingham after a lorry driver collided with the car driven by BL. His cousin who was also a passenger in the vehicle, sustained severe physical and psychological injuries.
At the time, BL’s car was stopped on the hard shoulder of the M6 motorway, which had been turned into an active lane by the Highway's Agency earlier in the day. BL was charged with causing death by dangerous driving and the lorry driver with causing death by careless driving.
As a result of the accident our client also sustained a serious head injury. Psychiatric evidence was obtained which consequently confirmed that BL was unfit to stand trial and unfit to give evidence at trial. The CPS agreed to discontinue the prosecution against BL.
Keoghs and the family made representations inviting the Coroner to ensure Highways England be an Interested Party to the Inquest as there were numerous questions about the safety of Smart Motorways.
After hearing the evidence, Ms Emma Brown, Coroner for Birmingham and Solihull area, issued a Regulation 28 Report to prevent future deaths, warning that further lives were at risk with the continued use of smart motorways to ease traffic congestion. She said turning the hard shoulder into an active lane can 'confuse motorists'.
Ms. Brown also highlighted that the Highway's England staff failed to spot the car, despite numerous CCTV cameras covering the route, and voiced her concern that no discussions were in place to improve monitoring of smart motorways. She also stated that despite signs saying the hard shoulder was open to traffic “there is a real risk that drivers seeing a hard shoulder bordered by solid white lines (and who may have used the road when the hard shoulder is not in use as a live lane) may become confused and forget/fail to register that the hard shoulder is operating as a live lane.”
The coroner added that Highways England has “no system of automatic alert” to spot a lone vehicle. Instead, they often have to rely on calls from the police or public to alert them that a stranded motorist is in peril and the lane needs to be closed to traffic. She also raised concern that the agency does not appear to regard the issues affecting that stretch of the M6 as an acute problem, when it should be. The court also heard that there was a 2.5 mile gap between emergency laybys where it is safe for motorists to stop.
Smart motorways were developed by Highways England - under pressure from an ever increasing number of vehicles on the roads - ‘to manage traffic in a way that minimises the environmental impact, cost and time to construct by avoiding the need to build additional lanes’.
The three types of Smart motorway are:
- Dynamic hard shoulder - where the hard shoulder is temporarily opened up to traffic
- All lane running - where the full width of the road is usable with emergency refuge areas alongside
- Controlled motorway - with three or more lanes, a hard shoulder and variable speed limits
This tragic case draws attention to the significant risks faced by drivers whilst using smart motorways particularly those with a dynamic hard shoulder in which the hard shoulder is opened up to traffic during busy times and those with all lane running which have no hard shoulder at all.
Both types simply have emergency refuge areas separated by 2.5 miles where drivers can stop in an emergency, which is clearly insufficient to ensure the safety of those drivers who have no option but to stop in a live running lane well away from one of those areas.
A survey of more than 15,000 drivers carried out by the AA has shown that only 1 in 10 drivers feel safer on all running smart motorway schemes. It was also found that 7 out of 10 believe that the all lane running schemes felt more dangerous than a motorway with a permanent hard shoulder with around half (48%) strongly believing this.
The AA has recently instructed its patrols not to attend breakdowns on smart motorways unless either the Police or a Highways England Traffic Officer is parked behind the stranded vehicle with its lights flashing.
Despite the fact that from April 2020, all new smart motorway schemes will have and emergency refuge area spaced at every mile the survey also found that only two fifths (41%) believe this to be a suitable distance.
A poll carried out by Kwikfit in September 2019 highlights that there is significant confusion among drivers, with less than a third able to correctly identify which smart motorway sign indicated an open hard shoulder and with 20% of motorists saying that they have no idea when a hard shoulder is in use as a driving lane
As in this case, drivers who find themselves confused and involved in an incident, could end up being part of a distressing police investigation and facing prosecution. In the event of a fatality, drivers would be facing serious charges of causing death by careless driving or death by dangerous driving, both of which carry a custodial sentence.
When applying the test, it could be found that even the most reasonably competent and careful driver may likely find themselves being confused, as the majority of drivers are not educated in how these ambiguous and complicated systems work.
In October 2019 the Transport Secretary Mr Grant Shapps acknowledged the concerns with the safety of smart motorways and announced that the Department of Transport would “carry out at pace an evidence stocktake to gather facts quickly and make recommendations”. We are still awaiting any outcomes.
In addition, Mr Jim O'Sullivan the chief executive of Highways England has also said that they will not build any more dynamic smart motorways, because it is clear that too many motorists do not understand them. 
In the meantime however driver safety remains at risk on those schemes already active across the country and therefore immediate steps should be taken to reduce that risk.
Sadly this is not the only case of a fatality on smart motorways, as there have also been a number of incidents around the country including several on the same stretch of the M1.
By ensuring Highways England were an interested party in this case and through the issue of the Prevention of Future Death report by the Coroner Ms Emma Brown, this case has successfully brought to the forefront the significant risks and confusion faced by drivers on smart motorways. It has also ultimately required the Government and Highways England to urgently review the safety of smart motorways to protect motorists, before any further fatalities occur.
Keoghs understands that the outcome of this review is expected imminently and will continue to monitor this important issue and notify clients of any developments.