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View profile for David Darlington
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In the first of a series of blogs, David Darlington talks about a recent piece of legislation.

Ban on Smoking in Vehicles Comes into Force in England and Wales

Successive governments have passed legislation to restrict smoking in various places in an attempt to improve the state of public health and reduce NHS spending. The latest of these is a restriction on smoking in private vehicles in the presence of children. The law took effect on 1 October 2015 across England and Wales.

Regardless of whether you agree with the policy or not it is important that all drivers, whether smokers or not, are aware of the implications of the new law, as a driver can be held responsible for the actions of a passenger.

The law applies to any private vehicle on a public road in England and Wales and makes it illegal for a cigarette to be smoked anywhere in the vehicle, or in the doorway of the vehicle when a person under the age of 18 present. The rules are rather all encompassing as it makes no difference whether the windows or sunroof to the car are open or whether the air conditioning is being used.

The only real exception applies to convertible cars where the roof has been fully retracted. If any part of the roof is still covering the car then the legislation does not allow smoking with a child present. This means that some cars, which may be seen as convertible, could arguably still fall foul of the rules. Those with a targa roof or a partially retained roof, such as the Citroen DS3 or Fiat 500 Convertibles could still be classed as partially enclosed given their design.

It is also important that users of caravans and motor caravans are aware that these rules also apply in those vehicles unless they are parked in a private place, or are parked on a public road, but only being used as living accommodation at that time.

The regulations only apply to cigarettes and not the vapour/e-cigarettes.   

There are two potential offences which can arise, both of which can carry a fine, and can be committed at the same time if the smoker is the driver:

Being a smoker in an enclosed vehicle with a child under 18 present

Being the driver of an enclosed vehicle and failing to prevent a cigarette being smoked with a child under 18 present

The penalty is a usually a fixed penalty notice of £50. However, the matter can be referred to Court.

It seems it will be difficult for the authorities to enforce the new legislation as by virtue of the age and size of children they may not be able to see the children in the car – this means they may be open to challenge. Various police forces have also stated they do not intend to prosecute in the first instance and instead would look to educate. However, there have been many occasions in the past where such a view has been expressed publicly that has not necessarily been followed, or at least not for very long.

One anomaly in the legislation is that a 17 year old driver who is in the car on their own will not break the law if they are smoking in the car by themselves. This despite being unable to buy cigarettes until aged 18. However, should another person be in the vehicle at the same time then an offence is committed as the 17 year old becomes the child subjected to smoking.

So what do you do if you do find yourself issued with a fixed penalty for one of the new offences? The first thing to do is to consider whether you have committed the offence. There is a defence to the non-smoking driver offence where it can be shown that either the driver had taken reasonable steps to try to prevent/stop the person smoking doing so or that they did not know, or could not reasonably have expected to know of the smoking. Save other exceptional circumstances, which are not quantified in the legislation the only other method of challenge at this stage would appear to be in relation to the reliability of the evidence of the police officer’s observations.

If you believe that you may have a defence you can reject the fixed penalty notice and have the matter taken to the Magistrates’ Court to have the case listed for trial. A Court hearing is also likely to follow if the fixed penalty is not paid within the set timeframe.

If found guilty of the offences at Court the financial implications would be significantly higher than a fixed penalty notice.

For the time being, at least, the offences do not come with points on your driving licence, but that could change in the future.

For more detailed advice on your particular case please contact Fieldings Porter’s Criminal Defence and Road Traffic Offences Department on 01204 540900 or 0161 8344722.

About the author: David Darlington is a Criminal Duty Solicitor in the Criminal Defence and Road Traffic Offences Department of Fieldings Porter Solicitors.

Fieldings Porter Solicitors is a multi service law firm established in 1871 offering a nationwide service from its North West base. The firm is regulated by the Solicitors Regulation Authority and holds contracts for civil, crime and family work with the Legal Aid Agency.