posted 3 years ago

New 'Smoke- Free Driving' Law – Significant Legal Change or a Load of Smoke Without Fire?

Guest article by Motoring lawyer Alison Ashworth

From 1 October 2015 it will be illegal to smoke in a car (or other vehicles) with anyone under 18 present. Public Health Minister Jane Ellison said:

“Three million children are exposed to secondhand smoke in cars, putting their health at risk.... the regulations are an important step in protecting children from the harms of secondhand smoke”.

£50 Fine But No Points

Drivers and adult passengers will now be liable to a £50 fine if they either smoke or fail to prevent someone from smoking with a child in the car. 

The new offence is not endorseable, which means that penalty points would not be put onto a person’s licence if they commit this offence. However a person could still find themselves in Court if they chose not to accept the fixed penalty or where the enforcement officer (typically a police officer) deems the matter appropriate for the attention of the Court. 

Department of Health Awareness Video

Enforcement Issues

Significant issues arise around the enforcement of this new law, particularly with a consistently dwindling police force that is already overstretched in dealing with serious criminal matters.  Is an officer likely to stop a car where the passenger is a teenager to ask for confirmation of age? Is an officer likely to stop a car travelling at 70mph on the motorway because they spot a youngster in the back whilst the driver is smoking?  Whilst this is all possible, the practicalities of enforcement are a nightmare. 

The government’s rationale is clearly to encourage a change in behaviour so that smoking in cars is no longer deemed socially acceptable. Arguably this has been the case for many years, except that now it has government backing.  

In 2014, following a poll by YouGov, it was established that 77% of adults in Great Britain agreed that smoking should be banned in cars carrying children. 63% were smokers themselves. 

Simon Clark, director of the smokers' group Forest, said:

"The overwhelming majority of smokers know it's inconsiderate to smoke in a car with children and they don't do it. They don't need the state micro-managing their lives”

Aside from the obvious social and health issues, many motorists are well aware of the potential costs when selling their car. Vehicles free from smoke contamination are much more attractive to prospective buyers, whereas those that are clearly polluted and damaged from ash stains or burns will likely turn off some buyers. According to research by AA Cars, smoking can reduce a vehicles resale value by up to 10%.

Exceptions and Oddities

As straightforward as this new law seems to be, as usual, it throws up a few unexpected consequences. 

Take the example of a 17 year old boy. He can smoke alone in his vehicle perfectly legally, however as soon as his mother gets into the car, she, as an adult immediately commits the offence of failing to prevent smoking in a car with a person under the age of 18. If she then decides to smoke a cigarette herself, she commits both offences (smoking and failing to prevent the smoking of another) and is now liable for two separate fines. 

A person can legitimately smoke in a convertible with the roof down however smoking in a car with the sunroof and all windows open is not permitted. 

Smoking in the open doorway of an enclosed will also result in a £50 fine. 

Smoking in a campervan, motor home or caravan is no longer permitted, unless the vehicle is being used for accommodation purposes (in which case it would seem that the smoker is free to pollute their child’s lungs as much as they so chose...). 

A current exception to the new law is the smoking of e-cigarettes. It will remain legal to smoke e-cigarettes inside a car with children passengers. Again however this could create difficulties with officers potentially wasting time pulling over innocent smokers of realistic looking e-cigarettes in error. 

When Smoking a Cigarette Could Lead to Penalty Points

The act of locating a cigarette and lighting it at the wheel whilst driving could result in 3 penalty points for not being in proper control of a vehicle, or 3 – 9 penalty points for driving without due care and attention. Neither offence requires the presence of minors in the vehicle and fines can range up to £5000.00. 

Article written by Alison Ashworth; Head of Motoring Law at Forster Dean Solicitors. 

For more information or to contact Forster Dean regarding a motoring law issue call the local rate helpline on 0333 323 1830, email or visit the website at