An offence is generally comprised of actus reus (conduct/physical element) and mens rea (fault/mental element) minus defences, though defences are not legally a constituent element of an offence. The offences under the RTA2018 will be examined in light of two elements—actus reus and mens rea, as well as defences and punishments.
The RTA2018 contains two sections, s98 and s105, in relation to transport workers’ individual liabilities for loss of third party’s life or property. Section 98 spells out that driving an MV shall be an offence on the part of its driver or its conductor or helper, if it is driven at a speed exceeding the legal limit, or in a manner which is reckless or dangerous overtaking or overloading, or losing control of the vehicle causing any accident resulting in loss of life or property. The offender shall be punishable with imprisonment for a maximum of 3 years, or with fine not exceeding three lac taka (US$3,750 approx.), or with both, and the court may order the whole or part of the fine to be paid to the victim.
Whilst the enactment of this new legislation is appreciable, the definitional provisions in s98 have various lacunas and ambiguities, which may impede its enforcement against defendants, resulting in victims’ deprivation of justice and lack of deterrence for future offenders including recidivists. These are discussed in turn below.
Ambiguities in actus reus elements
The actus reus elements are speeding, recklessness or dangerous overtaking or overloading or losing control of the vehicle. All of these acts are prevalent on the road in Bangladesh, with many drivers demonstrating a road-user culture of behaving dangerously and competitively when driving. Frequently people drive recklessly and dangerously, for example, by overtaking competing service provider vehicles in the pursuit of increased income, and/or using their mobile phones whilst driving. Such dangerous and distracted actions contribute to accidents (Saleh 2018).
Actus reus elements are not sufficiently clear. The words ‘reckless’ and ‘dangerous’ are attached to actus reus elements. However, definitions of ‘recklessness’ and ‘dangerousness’ are required, and losing control of MVs needs clarification as to whether the loss of control should be owing to driving faults or mechanical faults. This is because these two different faults should have different implications. For example, if the MV did not have a fitness certificate, had a fitness certificate which was issued unduly, or the driver and his/her assistants did not have a valid licence or had a licence issued improperly, then the liability should extend to owners and in some cases regulators as well, in addition to drivers. This is so because, the owners were negligent in appointing unqualified people as drivers and their assistants reasonably knowingly, whilst the regulator should take responsibility for issuing licence unfairly. Of great concern is that, the Bangladesh Road Transport Authority (BRTA) reported to the Supreme Court of Bangladesh in February 2019 that 33% of buses do not have fitness certificates, whilst condition of engines of 59%, speed governor seals of 56%, bodies of 46%, both indicator and signal lights of 41%, chassis of 38%, wheel arch of 36% and both wipers and brake lights of 31% buses are in a bad condition (Correspondent 2019b). An unfit MV is always dangerous for all—transport workers, passengers and pedestrians—who may be directly affected by an accident, and its owner may suffer a substantial financial loss, in the absence of a useful insurance system. Additionally, they may have to face legal actions. Notably, Bangladesh does not have a good insurance system in place that might protect claimants.
The burning question is: how do unfit MVs manage to continue to be on the road and transporting the public? Despite the prevalence of such unlawful circumstances, s98 places liability specifically on drivers, conductors and helpers only. Notably, we will shortly argue that s98 is overridden by s105 of the RTA2018, rendering it completely redundant, as far as it relates to VM. Hence, we will examine the actus reus elements further in the discussion of conduct elements of the sections which are presently enforceable against deaths on the road. The fault element ambiguities are shown below, which will also be relevant to the more critical statutory provisions (s304B of the PC1860 & s105 of the RTA2018) to be discussed in this article.
Fault elements in section 98 driving offences
Evidently, the definition of the offence provided in s98 of the RTA2018 does not mention any mens rea element as such, nor does it negate the need for such elements. Addressing an ambiguity of mens rea requirements in statutory provisions, the High Court of Australia (HCA, the nation’s highest court) in He Kaw Teh v The Queen (HKT) pronounced whilst interpreting statutory law, that if a provision of legislation is silent about the mens rea requirement, it does not necessarily mean that no mens rea is required (HKT). The HCA held that where the legislation is silent and there is no exclusion of a mens rea requirement, either expressly or by necessary implication in the section creating the offence, there is still a common law rebuttable presumption that mens rea is required. The mens rea requirement can be successfully rebutted by the prosecution, if they can prove that the lawmakers intended to avoid such a requirement of a given offence and to make the offence one of strict or absolute liability. The HCA also sets forth the ways of rebutting the mens rea presumption in which it specifies three matters to be taken into consideration in ascertaining whether the presumption has been displaced by the relevant section of the statute, and whether the legislators intended the section creating the offence to negate fault element altogether (HKT paras 5–7). These three matters are the language of the section defining the offence, the subject matter of the statute, and the efficacy of law (HKT, paras 5–7).
Firstly, with regard to language, the words of the section defining the offence should be interpreted carefully to discover whether legislators intended to add any mens rea as a constituent element of the offence (HKT, para 5). With the benefit of hindsight, it seems that the wording of s98 does not imply that the parliament intended to apply mens rea, because all critical words are directly attached to actus reus. Secondly, the subject matter of the statute in relation to mens rea of a particular offence (HKT, para 6) refers to the nature of the offence in question: whether or not it is truly criminal. The presumption is that the more serious the offence (the severity of penalties a relevant consideration), the more likely it is that a fault element was intended to be incorporated by legislators. The subject matter of the RTA2018 is indeed serious, because it addresses a grave concern of accidents resulting in harm including loss of life. However, the punishment for the consequence of even death of humans is considerably low compared to that of unintentional culpable homicide, generally known as manslaughter. Unintentional culpable homicide shall be punished with imprisonment for life, or imprisonment of either description for a term which may extend to a life-term imprisonment under s304 of the PC1860 (see also its ss299, 301). In contrast, s98 of the RTA prescribes a maximum jail term of 3 years for death, which is equivalent to the punishment for offensive driving with no consequences under s279 of the PC1860. In view of such light penalties in s98, compared to those sanctioned for unintentional culpable homicide under the core criminal legislation (PC1860), it can be argued that parliament might not have intended to add a fault element. Thirdly, the last point to pay regard to is the efficacy of law with or without mens rea elements. In this respect, the impact of the law is to be taken into account in view of whether the imposition of strict or absolute liability would have a good deterrent effect.
The creation of deterrence by any law depends on its clarity, penalties, and proper enforcement by competent authorities. Also, the benefit of a given law depends on either its voluntary compliance by its subjects, or its compulsory enforcement by competent authorities, the judiciary and the executive, in an efficient manner (Solaiman 2005). Having regard to the facts and figures of the frequency of accidents and their resultant fatalities as alluded to earlier, it can be logically argued that any fault elements as an essential component of the offences under s98 would impede its enforcement and emasculate its efficacy. Generally, it would be difficult for the prosecution to prove any subjective mens rea elements such as intention, knowledge or recklessness.
In summary, it can be inferred from the above judicial interpretation of mens rea requirement by the HCA in HKT and its corresponding references to s98 of the RTA2018 that the legislators might not intend any fault element to be attached to the actus reus elements. This is so because the maximum term of imprisonment prescribed is only 3 years for killing people on the road, as opposed to the life imprisonment for unintentional homicide under the PC1860 (see its ss299, 304), which requires mens rea. Such an inference on s98 can be further substantiated by reference to its statutory equivalent in NSW, s52A of the Crimes Act 1900 (CA1900), as follows.
The Judicial Commission of NSW identifies s52A of the CA1900 as the statutory scheme for dangerous driving (Judicial Commission of NSW 2020, https://www.judcom.nsw.gov.au/publications/benchbks/sentencing/dangerous_driving.html). Section 52A incorporates both definitions and penalties of two basic offences and their aggravated forms, depending upon the consequences of the prohibited driving and circumstances of aggravation. The consequences are occasioning death (subsections 1 and 2) or grievous bodily harm (GBH) (subsections 3 and 4, unrelated to this article), of a victim.
Section 52A(1) defines the offences occasioning death:
A person is guilty of the offence of dangerous driving occasioning death if the vehicle driven by the person is involved in an impact occasioning the death of another person and the driver was, at the time of the impact, driving the vehicle: (a) under the influence of intoxicating liquor or of a drug, or (b) at a speed dangerous to another person or persons, or (c) in a manner dangerous to another person or persons. A person convicted of an offence under this subsection is liable to imprisonment for 10 years.
The aggravated version of the offence attracts a higher penalty in s52A(2):
A person is guilty of the offence of aggravated dangerous driving occasioning death if the person commits the offence of dangerous driving occasioning death in circumstances of aggravation. A person convicted of an offence under this subsection is liable to imprisonment for 14 years.
The offences contained in s52A are regarded as the most serious driving offences in NSW. Though serious, the dangerous driving offences defined in s52A are judicially interpreted as of strict liability requiring no evidence that the accused had driven the MV knowingly, or intended to drive dangerously (see Jiminez v The Queen 1992; Anthony et al. 2013). A common law defence to such a strict liability provision is an honest and reasonable mistake of fact that it was safe to drive, with the initial or evidential burden placed on the defendant (HCA in Jiminez v The Queen 1992). To satisfy this burden, the defendant ‘must make it appear that he had reasonable grounds for believing in the existence of a state of facts, which if true, would take his act outside the operation of the enactment and that on those grounds he did so believe’ (Proudman v Dayman 1941, p. 541). Once the evidential burden is successfully discharged, the onus is shifted to the prosecution to disprove the defendant’s claim (legal burden). This defence is believed to have derived from the landmark decision in which Dixon J of the HCA pronounced that ‘As a general rule an honest and reasonable belief in a state of facts which, if they existed, would make the defendant’s act innocent affords an excuse for doing what would otherwise be an offence’ (Proudman v Dayman 1941, p. 540).
Notably, as can be seen in the above-quoted s52A, the definition of the offences includes no mens rea elements, neither regarding ‘reckless’ nor ‘negligent driving’; nonetheless, the prescribed punishments (10 and14 years) are much higher than those permitted in s98 of the RTA2018. However, s52A impliedly includes a defence of ‘honest and reasonable mistake of fact’ which is not explicitly present in s98, and whether or not this defence is inherent in s98, remains uncertain.
It should be noted that s105 of the RTA2018 duplicates the consequence of loss of life (already included in s98) and adds GBH which was not in s98 (instead, s98 included loss of property). We can now turn to s105 to examine what difference it makes, through the duplication of death as a consequence, and to consider the ramification of this reinforced proscription of dangerous driving.
Deaths duplicated in s105 and its implications for s98 of the RTA2018
Perhaps the most important consideration is that s105 of the RTA2018 definitely overrides s98, making the later unenforceable and thereby effectively redundant in practice. This is because, s105 (its title ‘Crimes Concerning Accidents’) is meant to define crimes relating to MV accidents, but it begins with an overriding proviso:
Notwithstanding anything contained in this Act, if a person is grievously injured or killed in an accident involving driving a motor vehicle, offences relating to that accident shall be deemed to be offences under the relevant provisions of the Penal Code 1860:
Provided, however, that notwithstanding anything contained in s304B of the Penal Code 1860, if a person is grievously injured or killed caused by a person’s reckless or negligent driving of a motor vehicle occasioning the accident, the latter person shall be punished with imprisonment of either description for a term which may extend to five years, or with a fine up to five lac taka [US$6,250 approx], or with both.
If, and as it must be in practice, s105 overrides s98, the significance of incorporating s98 is questionable, other than the cases causing loss of property. If it applies to property loss only, imprisonment for a term of 3 years may be too lengthy to achieve the efficacy of the law; rather the pecuniary penalty could be increased with a shorter term of imprisonment, so that the victim could receive adequate compensation and the perpetrator could get appropriate punishment proportionate to his/her wrongful conduct. This is so because the PC1860 stipulates the same term of 3 years imprisonment with an unspecified amount of fine for ‘rash or negligent’ driving causing death of any person (s304B). However, we are not in favour of the latter 3 years either, as will be argued shortly below.
Taking into account the duplication and overriding effect identified above, the legislature owes an explanation as to the applicability and usefulness of s98 in the presence of s105 which relies absolutely on the PC1860 by overriding anything that may be contained anywhere in the RTA2018. Notably, an important change that s105 of the RTA2018 brings about is increasing the punishment set forth in s304B of the PC1860 as follows.
Inadequacy of punishments despite the increase under s105 of the RTA2018
The first paragraph of s105 does nothing more than overriding other provisions on offences causing GBH or death in the RTA2018 and refers to s304B of the PC1860, for the trial of road deaths. The second paragraph increases punishments for reckless (rash) or negligent driving (as proscribed in s304B) from 3 to 5 years and permits pecuniary penalties from unspecified amount (s304B) to a maximum of five lac taka (US$6,250 approx.). The increased maximum penalties are inadequate; moreover, no minimum threshold has been prescribed, and only a pecuniary penalty may be awarded in exclusion of incarceration, which could be counterproductive in some cases as explained shortly below.
Appreciating the significance of higher penalties in road safety, the NSW Court of Appeal in R v Slattery (1996) held that increasing the penalties by amending legislation denotes the seriousness of the offences which requires giving prominence to the principle of deterrence (see also Freeman et al. 2016). The Court adds:
The action of the legislature in almost tripling the maximum sentence for a particular type of offence must be taken by the courts as reflecting community standards in relation to the seriousness of that offence, and the courts are required to give effect to the obvious intention of the legislature that the existing sentencing patterns are to move in a sharply upward manner (R v Slattery 1996, p. 524).
More recently, Wilson J of the NSW Court of Criminal Appeal iterated the significance of general deterrence and asserts that it is important ‘because of the prevalence of the activity of driving, and the terrible consequences that can flow from a failure by a driver in the management of a motor vehicle’ (R v Manok 2017). Wilson J adds ‘It is important that all drivers be deterred from driving dangerously by the sentences imposed on those who transgress’ (R v Manok 2017, para. 79].
The inadequacy of the amended punishment in Bangladesh law becomes evident when compared with s52A of the CA1900 which provides for imprisonment of 10 years, and 14 years for aggravated version of the offence as shown earlier. Section 52A deals with the consequence of GBH and death by dangerous driving, so much as s105 of the RTA2018 does. Section 52(3) of the CA1900 prescribes 7 years imprisonment for dangerous driving occasioning GBH, whilst s52A(4) sets forth 11 years of imprisonment for aggravated dangerous driving occasioning GBH (circumstances of aggravation are described in subsection 7). Hence, the penalties for causing GBH in NSW are much higher than those prescribed under s105 of the RTA2018 and 304B of the PC1860 for death in Bangladesh. Death is separately addressed in subsection 1 and 2 of s52A with even much higher punishments (10 years and 14 years). Although these prescribed terms of imprisonments in NSW are not accompanied by any pecuniary penalty, this does not soften the punishment in any way, because the amount of fine that can be added to the significantly lower term of incarceration under s304B of the PC1860 is very small, and the courts have the discretion to impose either or both of imprisonment and fine. It means the perpetrator may avoid jail term altogether at the ‘absolute’ discretion of judge in the absence of any practice of sentencing hearing in Bangladesh (Bari 2014). The exact punishment in some cases may be influenced and worsened by corruption, as allegations of bribery against the judiciary have become a common phenomenon. For example, a 2016 survey conducted by Transparency International Bangladesh (TIB) revealed that 48.2% of people pay bribes to the judiciary (Report 2016). The overall corruption in Bangladesh is alarming as it scored 26 out 100 in the 2019 Corruption Perceptions Index of Transparency International, a German-based organisation (details can be obtained from https://www.transparency.org/en/countries/bangladesh). The situation is worsening as evidenced by the new downgraded ranking of Bangladesh to 12th for 2020 (Transparency International Corruption Perceptions Index 2020—released in January 2021), two steps lower than the rank of 14th in 2019 (details can be obtained from https://www.transparency.org/en/cpi/2020/index/bgd). In response to this downgrading, the Chairman of the Anti-Corruption Commission–Bangladesh publicly opines that ‘government is not sincere in curbing graft’ and adds that ‘most of its recommendations go unheeded’ (Correspondence 2021). In response to a query about judicial corruption, the Chief Justice of Bangladesh in 2016 publicly asserted that ‘corruption prevails all over the place across the country and judiciary is nothing different’ (Desk 2016). In such a situation, the discretion of the judges needs to be constrained, and the term of imprisonment should be further increased in order to be an effective deterrent.
Overlapping coverage of the offences with different punishments generating confusion
A critical issue is that s304B is concerned with ‘rash or negligent’ driving, whilst s98 is silent about negligence, but s98 covers over-speeding, or reckless driving or dangerous overtaking or overloading, or loss of control. No judicial interpretation is found showing that s304B covers all these offences captured in s98. Then, a question may arise, who will try the cases causing death or GBH by driving offences mentioned in s98 beyond the coverage of s304B, given the overriding proviso of s105? This disparity between the three sections (ss98 & 105 of the RTA2018 and s304B of the PC1860) and the displacement of s98 by s105 need to be reconsidered and clarified.
In addition, a further question may reasonably be asked, which is: what is the reason for keeping s304B of the PC1860 unchanged where the section is exclusively dedicated to rash and negligent driving? Instead of adding the second paragraph to s105 of the RTA2018, s304B of the PC1860 could be directly amended by changing the penalties. Then, s105 could be fully avoided by adding the overriding effect to s98, if such a proviso was deemed indispensable. The coexistence of these two sections (s105 & s304B) can obviously create confusion amongst the public. This is so because s304B punishes exclusively ‘rash or negligent driving’ for maximum 3 years imprisonment and it stays as it is, on the other hand s105 increases s304B’s punishment to 5 years for the same offence, then what is the need for keeping 3 years in s304B unchanged?
Causation and persons liable under s98 and s105 of the RTA2018
Causation and culpability are two distinctive grounds of criminal liability. The concept of causation differs from the culpability of an accused in that the former relates to the consequences of behaviour, whilst the latter refers to an offender’s fault or state of mind at the time of commission of the offence. Hence, culpability corresponds to the element of mens rea (Husak 2012), and this mental element can be of four types—intent, recklessness, knowledge and negligence (Brown et al. 2020)—whereas consequence can be legally linked to both actus reus and mens rea (Brown et al. 2020). Causation is immensely important when the commission of an offence requires a certain consequence to occur that places the onus generally on the prosecution to prove a causal link between the two (causation and consequence).
Unlike s98, s105 does not specify the persons to be liable for the death or GBH of a victim. Apparently, only the driver may be held liable under s105, as s105 refers to s304B which provides that whoever causes death shall be liable.
Therefore, a critical requirement in s304B is causation. Indeed, drivers physically control the steering; however, as alluded to earlier, their associates provide signals of traffic conditions surrounding their vehicles to their drivers. Drivers generally heed these signals, as is customary in Bangladesh. Then, a question may arise as to who causes the death if the driver is misguided by his/her associates?
Presently, no one can be punished until the causal link is established. There is no guidance on how to prove this link. In a dangerous driving case, the UK Court of Appeal held on causation of the harm that the defendant’s act or omission need not be a substantial or major cause of the death, but it has to be a cause, and something more than de minimis (R v Hennigan 1971). Primarily, the driver is likely to be responsible as the MV controller. Then, both the helpers and conductors (as specifically mentioned in s98) are likely to be acquitted even though they misguided their driver contributing to the fatal accident. Notably, s99 of the RTA2018 imposes liability on others for complicity (assisting or abetting in, or conspiring for the commission of an offer under the legislation) with the same penalty as applicable to the primary actor. However, the enforcement of s99 is doubtful owing to the overriding provision of s105.
Section 52A of the CA1900 prudently avoids this complexity by prescribing liability of those driving MVs which are involved in an impact occasioning the death in question. Section 52A (5) clarifies when a vehicle is ‘involved in impact occasioning the death’. It says, generally the circumstances in which a vehicle is involved in an impact occasioning the death of, or grievous bodily harm to, a person include if the death or harm is occasioned through any of the following:
(a) the vehicle overturning or leaving a road whilst the person is being conveyed in or on that vehicle (whether as a passenger or otherwise), (b) an impact between any object and the vehicle whilst the person is being conveyed in or on that vehicle (whether as a passenger or otherwise), (c) an impact between the person and the vehicle, (d) the impact of the vehicle with another vehicle or an object in, on or near which the person is at the time of the impact, (e) an impact with anything on, or attached to, the vehicle, (f) an impact with anything that is in motion through falling from the vehicle, (g) the person falling from the vehicle, or being thrown or ejected from the vehicle, whilst being conveyed in or on the vehicle (whether as a passenger or otherwise), (h) an impact between any object (including the ground) and the person, as a consequence of the person (or any part of the person) being or protruding outside the vehicle, whilst the person is being conveyed in or on the vehicle (whether as a passenger or otherwise).
Admittedly, the context is different because unlike the practice in Bangladesh, MVs in NSW generally do not use helpers or conductors. The expression in s52A is, nonetheless, very thoughtful in that the emphasis is on the consequences, whereas the Bangladesh law highlights causation, but does not provide any guidance on the nature of causality required (for example, whether it has to be just a cause or a major cause or an operating cause or the sole cause etc.). The expression in the century old Bangladesh PC1860 should be changed in line with the NSW law (a list of convictions in NSW can be obtained from https://www.publicdefenders.nsw.gov.au/Documents/manslaughter-motor-vehicle.pdf, 2020). An appreciable change has been made in the RTA2018 (s98) by directly naming the drivers, helpers and conductors, which will make the prosecution tasks easier, but its applicability is doubtful because of overriding effect of s105.
Legal clarity facilitates enforcement of traffic law, which helps create deterrence for all involved in driving directly or indirectly (for fatality trend in NSW, https://roadsafety.transport.nsw.gov.au/statistics/fatalitytrends.html, 2020). Of course, involvement in the accident must be the central consideration at the trial. Ambiguities in law may inhibit enforcement and thereby become a disincentive for road-users who may have contributed to accidents, but will walk free.