There are loopholes, and then there are lacunas. The tragic death of Susan Whittles is the latter. She was killed by Timothy Kusemi, a Nigerian national, at a rural junction in East Yorkshire on November 24, 2023. He was a provisional licence holder, having failed his British test twice. And yet as an overseas driver, he was allowed to drive unsupervised and without ‘L’ plates. This is not simply a case of bad driving, it is the inevitable consequence of a legal absurdity so glaring it would be comical if it were not so deadly.

The system effectively told him: “You’re not good enough to pass our test, but never mind, we’ll let you carry on regardless.” And so he did. Under current UK law, a driver arriving from a “non-designated” country such as Nigeria can drive on their foreign licence for up to 12 months after becoming resident. This makes sense. It allows a period of adjustment without forcing immediate bureaucracy.

But here is where the law takes leave of its senses. During that 12-month window, that same driver can apply for a UK provisional licence, take a driving test, fail and yet still continue driving unsupervised, without ‘L’ plates no less, as if nothing had happened.

Compare this to a British learner who fails a test. The driver is immediately confined to supervised driving with ‘L’ plates firmly attached. A foreign licence holder fails the same test and simply shrugs, reverts to their original foreign licence, and carries on alone. No supervision. No warning plates. No restriction.

This is a gaping hole in the law. It is inconsistent and indefensible. The law is supposed to set standards, not undermine them. A driving test is not a box ticking exercise; it is the state’s way of saying: “You are safe to share the road.” If someone fails, the message is equally clear: “You’re not ready yet.” Except, apparently, if you arrived from abroad. Then the message becomes muddled to the point of being meaningless.

Coroner Lorraine Harris has rightly raised this issue in a Prevention of Future Deaths report. She has done what the system should have done long ago. She has highlighted this potentially lethal legal absurdity.

Her intervention is not merely welcome but well overdue. Let’s hope the Department for Transport and the Driver and Vehicle Standards Agency takes note of her serious concerns and reviews the rules. Officials must respond by May 26.

This is not a technicality. Why should a British driver be held to a stricter standard than someone who has demonstrably failed to meet that same standard? Why should the act of failing a UK driving test carry consequences for one group, but not another? There is no good answer because there is no reason. It makes absolutely no sense. This lacuna creates a two-tier system of road safety.

There is one rule for domestic drivers, and another for those who can temporarily rely on foreign licences. And it should be borne in mind that those tests are not nearly as exacting as the British driving tests. It invites confusion, encourages complacency, and, as we have seen, can have catastrophic consequences.

The fix is neither complex nor controversial. If you fail a UK driving test, you should not be permitted to continue driving unsupervised irrespective of where your original licence was issued. The moment you enter the UK testing system, you should be bound by its outcome.

Anything less is a dereliction of duty by the state. The law prides itself on logic, yet this is illogical. It prides itself on fairness – this is unfair. And most importantly, the law exists to protect the public. On that measure, it has also failed.

When the law fails so visibly, it is not just a lacuna. It is an accident waiting to happen. Or, as in the tragic case of Susan Whittles, a fatal accident that did happen.

Nick Freeman, known as Mr Loophole, is a leading lawyer best known for specialising in the defence of traffic and speeding cases as well as road safety campaigning. Find him on Instagram @Themrloophole