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Undertaking - is it illegal?

  • Posted
Road traffic accidents - Do I need a solicitor?

I recently read an article which referenced how seemingly The Highway Code does not hold under-taking to be illegal.

In towns and cities overtaking on the left is allowed, as per Section 163 of The Highway Code. It's perfectly acceptable if the car in front is turning right, or pulling into a right-hand filter lane, so long as you exercise the same caution as you would if over-taking on the right.

Regarding motorway travel, Section 268 acknowledges that the outside lanes on a motorway may be travelling slower than those on the inside, and so undertaking vehicles in those slower-moving lanes is to be expected, particularly during congested times.

As the Highway Code specifically uses the words ‘MUST’ and ‘MUST NOT’ to indicate legal requirements and nowhere in The Highway Code does it say a driver 'must not' overtake using an inside lane. In fact, Section 268 states, “Do not overtake on the left or move to a lane on your left to overtake.” The use of 'do not' instead of 'must not' means it is technically legal to overtake in any lane except the hard shoulder.

Road users should avoid overtaking using the inside lane in any circumstance. The odd under-take here and there won’t attract too much negative attention from police, particularly if a situation obviously calls for it, but beyond that it could cause you problems.

You can be charged with ‘dangerous driving’, or ‘driving without due care and attention’, both of which can result in fines and up to eleven points on your licence, depending on the extent of the damage caused by your driving.

Section 264 says “You should always drive in the left-hand lane when the road ahead is clear. If you are over-taking a number of slower-moving vehicles, you should return to the left-hand lane as soon as you are safely past.”

In conclusion, it seems that it is perfectly legal to over-take in the 'wrong' lane, but not always advisable.

Considering the recent proposals to provide police with further powers to issue fixed penalty notices and points on licence for such issues as lane hogging etc I would not advocate any under-taking manoeuvre unless absolutely necessary.


    • Response to 'undertaking'Stephensons
    • Posted

    Firstly, the incident you describe would have to be reported to the police and they would have to consider the value of any evidence produced and decide if there is sufficient evidence to prosecute. Unfortunately, following you sat-nav in this way can often lead to driving errors of this type. That would not be considered to be a defence. Erratic driving of this type, and certainly undertaking, could be considered to be careless driving or driving without due care and attention. The threshold for that offence being made out is very low. It has to be considered that the standard of your driving has fallen below that of a competent and careful driver. What you describe could potentially be considered that way. A full evaluation of any evidence would be needed to give a definitive position.

    However, the second and perhaps most relevant point to consider at this early stage is a procedural one. If no accident was caused then a notice of intended prosecution (“NIP”) has to be issued within 14 days of any incident such as this. If it is not then the prosecution would be ‘statute barred’. Given that you were not stopped at the roadside, that NIP would ordinarily be issued in writing to the registered keeper of the vehicle you were driving. If you are the registered keeper then the likelihood is that if you do not receive a NIP within 14 days of this incident, no prosecution will take place.

    • undertaking Sam Glancy-Varley
    • Posted

    hello there I was on a dual carriage way yesterday I was on the right lane to begin with as sat nav said stay right but seconds after telling me to stay left after getting a bit further telling me stay in lane I was currently in .causing me to swerve into the left lane as I panicked swerved into the right lane again causing me to undertake the person behind me could I be arrested for this act .

    Thank you in advance.