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Drivers should be held criminally responsible for smokers when children present in cars, Law Society says

08 October 2015 | tagged News release

Drivers of cars in which someone is smoking where children are present, should be held criminally responsible along with the smoker themselves, the Law Society said today, 8 October. 

The Smoking Prohibition (Children in Motor Vehicles) (Scotland) Bill will be debated at stage 1 by MSPs later today.  The bill makes it a criminal offence to smoke in cars where children are present.   The Scottish Parliament’s Health and Sport Committee has recommended that the driver be held liable as well as the smoker. 

Alison Britton, convener of the Law Society’s health and medical law committee said:

“We are supportive of the bill’s policy intent, the harmful effects of tobacco and smoking are undisputed, as well as the effects of second hand smoke, particularly for children.    We are pleased to see the Health and Sport Committee’s recommendation that the driver be held criminally responsible, as they are the ones who have control of the car and have a duty to ensure the safety and wellbeing of their passengers.  This would also bring the bill into line with other legislation aimed at protecting children while travelling in cars, such as the duty to ensure a child under 14 is wearing a seatbelt.”

The Society also noted the Health and Sport Committee’s support for the inclusion of a statutory defence for the driver, to the effect that he or she took all reasonable steps to ensure the offence was not committed. 

Alison Britton said: “We very much welcome the recommendation that a statutory defence be included in the legislation.  We would suggest that any such defence would have to include something to the effect that the driver had taken all reasonable steps to prevent the passenger from smoking, or that they also had reasonable cause to believe that all passengers were 18 or over.”

Neither the bill, nor the Health and Sport Committee’s report, make any detailed reference to electronic cigarettes.

Alison Britton said: “Whilst we recognise that e-cigarettes are generally regarded as a safer alternative to conventional cigarettes, we would suggest that the provisions of the bill be expressly extended to prohibit the use of e-cigarettes, until such time more information becomes available as to the long term risks of them, in particular in relation to young people.”


Notes to Editors

The Law Society’s full briefing can be found on our website at /for-the-public/law-reform-consultations-and-bills/bills-201415/smoking-prohibition-(children-in-motor-vehicles)-(scotland)-bill/

MEDIA ENQUIRIES TO: Louise Docherty 0131 476 8204

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