An update on UK roads: from smart motorways to the Highway Code

In this article we consider recent developments in the revised Highway Code including clamping down on phone usage whilst driving and an update on smart motorways. In light of new rules being introduced on 29 January 2022, we consider what this means from a prosecutions perspective.

Smart motorways update

Following a series of high profile collisions on smart motorways, and indeed concerns raised by a number of coroners, pressure mounted in 2020 to review the safety of smart motorways, in particular all lane running (ALR) motorways. After an extensive review, the UK Government announced on 12 January 2022 that the rollout of new smart motorway schemes will be paused until a full 5 years’ worth of safety data is available, with the Department for Transport (DfT) investing £900 million to improve safety on existing ALR motorways.

The government will go further by ensuring current smart motorways without a permanent hard shoulder are equipped with “best-in-class technology and resources” to make them as safe as possible.

This will include investing £390 million to install more than 150 additional emergency areas and better technology giving drivers added reassurance. These measures will be independently evaluated by the Office for Rail and Road, with reports due on an annual basis.

Use of mobile phones when driving

A welcomed development sees the tightening of rules around the use of mobile phones when driving, along with an increase in the penalties (now up to 6 points and a £200 fine).

The rules already state, except in an emergency, that drivers cannot text or call using a handheld device when driving. The revised rules will take this further, with drivers prohibited from taking photographs or videos, changing music on a playlist, playing games, and scrolling on their handheld devices. This applies to drivers even when stationary.

However, drivers can still use a ‘hands-free’ device when driving, such as a sat-nav, but they must make sure they are driving responsibly.

Highway Code

On 29 January 2022 the DfT will introduce new rules, alongside revisions to existing rules, of the Highway Code (the Code).  

The Highway Code applies to England, Scotland and Wales. Essentially the rules explicitly place a higher burden of responsibility on those in charge of vehicles, particularly vehicles more likely to cause harm such as HGVs. Overall the changes seem to impress upon all road users the importance of and increased responsibility road users have, in protecting pedestrians.

The Highway Code will now include a ‘hierarchy of road users’ with pedestrians firmly at the top. Indeed, one of the most significant changes to the code affords pedestrians additional protection; rule H2 states:

At a junction [road users] should give way to pedestrians crossing or waiting to cross a road into which or from which you are turning.

Whilst stated as guidance within the Highway Code (i.e. a driver should not), this will no doubt make prosecutions even harder to defend. Unlike before, a pedestrian now essentially gets right of way when simply waiting to cross at a junction. The code does put some responsibility back with the pedestrian by stating they “should cross at a place drivers can see you”, however, this does little to shift the heavy burden the Highway Code now places upon drivers.

Some other key changes include:

  • Cyclists can now ride two abreast.
  • Cyclists do not have to use or remain within cycle routes if present on the road.
  • Cyclist are encouraged to ride in the centre of their lane on quieter streets, in slower moving traffic or approaching junctions.
  • Drivers are recommended to remain behind cyclists/horse riders/motorcyclists at junctions, even if they are waiting to turn and are close to the kerb.
  • Cyclists can stay in the left-hand lane at a roundabout, even when they intent to continue across or around it. Cyclists should signal right to show they do not intend to exit, and drivers are to take extra care they do not cut across them.

The guidance makes little reference to the use of cycle lanes which is a disappointing development, particularly given the amount of money spent by local authorities trying to separate cyclists and vehicles to prevent them coming into conflict with one another.

Interestingly, the Waiting and Parking part of the Highway Code features a new technique, commonly known as the ‘Dutch Reach’. This advises that when parked, road users should open the door of their vehicle with the hand on the opposite side to the door they are opening which naturally causes the person to twist their body making it easy to look over their shoulder and check or other road users.


Contravention of, and reliance upon, the Highway Code is used in both criminal and civil courts to establish guilt and liability. The code is a mixture of guidance (you should or should not) and legally enforceable rules (you must or must not). As is probably intended, changes to the Code will make it easier for drivers to be found responsible for accidents, increasing the number of prosecutions where the standard of driving is deemed to have fallen below that of a careful and competent driver.

Read other items in the Personal Injury Brief - March 2022

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