muckles:
Dieseldog66:
There was a court case on this back in the 80’s, as you know you can overtake on the inside when traffic is queing on the right, this traffic does not have to be stationary, the judge ruled and it was a judge, that only one vehicle constituted a que and the lorry driver was committing no offence, I have on one occasion on the M6 many years ago been waved up the inside of a coffin dodger by a police M/C cop, who then proceeded to pull him over. I don’t know if any of this would stand up in court nowdays.
From what I understand this is how a lot of law is refined and clarified, so if you were pulled and taken to court you could use this case as your defence. You just have to know what case it was though and hope there hasn’t been a subsequent judgement overturning it. 
As you rightly say, a lot of law is case law, refined and clarified in the courts. The UK legal system is based on binding precedent - cases in the senior courts bind inferior courts.
There are ways of researching case law, including which cases are still good law (i.e. they have not been overruled or brought into doubt by subsequent cases). As Wheel Nut has said, there is no specific offence of undertaking - it would come under sections 3 and 3ZA of the Road Traffic Act 1988 as amended by the Road Traffic Act 1991 and Road Safety Act 2006:
3 Careless, and inconsiderate, driving
If a person drives a mechanically propelled vehicle on a road or other public place without due care and attention, or without reasonable consideration for other persons using the road or place, he is guilty of an offence.
3ZA Meaning of careless, or inconsiderate, driving
(1) This section has effect for the purposes of sections 2B and 3 above and section 3A below.
(2) A person is to be regarded as driving without due care and attention if (and only if) the way he drives falls below what would be expected of a competent and careful driver.
(3) In determining for the purposes of subsection (2) above what would be expected of a careful and competent driver in a particular case, regard shall be had not only to the circumstances of which he could be expected to be aware but also to any circumstances shown to have been within the knowledge of the accused.
(4) A person is to be regarded as driving without reasonable consideration for other persons only if those persons are inconvenienced by his driving.
This offence would be charged either as “driving on a road without due care or attention” or “driving on a road without reasonable consideration for other motorists”. The penalty on summary conviction (i.e. before a magistrates’ court) is a fine not exceeding level 5 (currently £5000) and between 3 and 9 penalty points. The court also has the power to order disqualification.
A trial before a magistrates’ court cannot create binding precedent or persuasive authority (persuasive authority is a decision that does not bind a future court as to the result but strongly indicates the way the matter should be decided).
Only appeals following proceedings in the magistrates’ court, which are relatively rare, can set precedent. These appeals can be via one of two routes.
A defendant who pleaded not guilty but was nevertheless convicted can appeal to the Crown Court on any basis whatsoever (point of law, point of fact or against sentence only). A Crown Court case is persuasive authority for Crown Courts and magistrates’ courts only, but very few Crown Court cases attract the interest of the law reports meaning these cases are unlikely to be discovered as possible authority for a future case.
Alternatively, the prosecutor or defendant can appeal to the Queen’s Bench Division of the High Court. This appeal can directly follow the magistrates’ court case or a Crown Court appeal. Such an appeal can only be on a point of law - they proceed ‘by case stated’, with the finding of facts from the earlier trial being taken as the definitive view of the facts. No witnesses are called.
A Divisional Court appeal is rare (about 100 per year), but these appeals are the most common way that precedent in connection with summary offences is established, as Divisional Court cases bind both the Crown Court and magistrates’ courts, also they usually bind the Divisional Court itself.
With the limited number of Divisional Court appeals and the current law in this area only operating since 1 July 1992 (which does not necessarily invalidate earlier case law but means it has to be treated with caution), it is not surprising that I failed to find any binding precedent on undertaking in the case law searches I made. I don’t have access to the standard specialist reference works on road traffic law, though I did check the road traffic sections of some general legal reference sources. It appears that the best guide we have to the law is section 3ZA, which came fully into operation from 18 August 2008:
- If the undertaking falls below the standard of a “careful and competent driver” bearing in mind both those circumstances that the hypothetical careful and competent driver could have been expected to know and those circumstances the accused knew of, it’s driving without due care and attention. Merely falling short of what the Highway Code demands does not mean an offence has been committed - careless driving has to be assessed on the facts.
- If the undertaking caused inconvenience to other road users, it’s driving without reasonable consideration for other road users.
The important thing to remember is that these offences have to be established beyond reasonable doubt on the facts, which will differ in every case.
An allied consideration is that these offences cannot currently be dealt with by fixed penalty, though the Government has hinted that it may allow the police to issue endorsable fixed penalties for careless driving. A police officer may well decide it is not worth the hassle of reporting an undertaker for consideration of prosecution. If the police officer does report the alleged offence, the Crown Prosecution Service may decide that proceeding with a prosecution is not in the public interest.
Police officers are allowed a considerable amount of discretion in these matters, though the exercise of this discretion does not create any sort of precedent. You can carry out a manoeuvre once and be let off - but that does not mean you would be let off in the future in the same circumstances
Overall, I’d say it is unlikely that you would be prosecuted merely for undertaking. However, if that undertaking falls well short of the expected standard of driving, for example if it causes an accident, a prosecution is more likely. Undertaking may also be an excuse for the police to stop you, and if they find evidence of other offences (no insurance, driving otherwise than in accordance with a licence etc.), it is likely that careless driving will be amongst the list of alleged offences reported for consideration of prosecution.
If death results from an undertake, this may well be dealt with via one of the suite of more serious offences added to the Road Traffic Act 1988 by the Road Traffic Act 1991 and Road Safety Act 2006:
- s. 2B - causing death by careless or inconsiderate driving
- s. 3A - causing death by careless driving when under the influence of drink or drugs
- s. 3ZA - causing death by driving when unlicensed, disqualified or uninsured (this one does not require any carelessness)
It may also be that the driving is dangerous rather than careless, in which case the offence would be s. 1 causing death by dangerous driving. If dangerous driving is alleged (with or without death involved), the relevant careless driving charge is often charged as an alternate, allowing a finding that the driving was careless but not dangerous.
One of the few pieces of case law on overtaking to make it into the references I checked is Carryfast Ltd v Hack [1981] RTR 464, which established a driver overtaking animals should give them adequate clearance. A horse frisked when a van got close, leaving the driver with no alternative to swerve into a lane of oncoming traffic causing a collision between the van and an oncoming lorry. The court ruled that a horse frisking was a foreseeable event and that the approaching van driver should have stopped if he did not have enough room to overtake.
Should I really be encouraging Carryfast?
it’s ok just means me an a few others have “our own lane clear” 