The Law Must Be Fixed…Mustn’t It?

September 7, 2017

In the aftermath of the high-profile trial of Charlie Alliston for causing the death of Kim Briggs, there have been calls from various quarters to create new legislation around the use of pedal cycles.

These calls, or perhaps more accurately the potential legislation to which they relate, can be placed into two categories: those which relate specifically to undesirable manners of cycling, and those which relate to all cycling. In this article I’ll be looking at the first of these categories. What changes do people seek, and what would be the result: would the changes even achieve what they purport to?

The status quo

To examine prospective changes, we first need to understand the existing offences with which people can be charged when there is a death on the public highway.

The first of these is manslaughter, which is one of the charges which Alliston faced. Other than murder, it is the only homicide offence which can be committed on a pedal cycle, or indeed from anywhere other than inside a motor vehicle.

Manslaughter has multiple forms, but the two most pertinent to road collisions are unlawful act manslaughter and gross negligence manslaughter.

It seems likely that the charge against Alliston was one of unlawful act manslaughter, in which the prosecution must show that the death was substantially caused by an unlawful and dangerous act. The case focused heavily on Alliston’s use of a bicycle with no front brake, which is unlawful under the Regulation 7(b) of the Pedal Cycles (Construction and Use) Regulations 1983 and clearly has associated danger. The offence is a good fit for the circumstances in this case (at least according to reports) but Alliston was found not guilty, which implies that the jury found insufficient evidence that the absence of the brake was sufficiently to blame.

A not actually road legal fixie.

This may on the face of it seem surprising but there are a number of potential reasons for this: for instance, it may have been considered that an initial attempt to avoid a collision by swerving would have been the more appropriate response of a reasonable pedal cyclist than to attempt an emergency stop (which is a very different matter to doing so in a car, something which may not be obvious to anyone who does not cycle) or it may be that the evidence as presented was simply of inadequate quality (a police video of two tests of braking distances, which was curiously and unusually released to the public, has been widely criticised for a number of significant flaws). If you feel surprised that Alliston was cleared, welcome to road law: it’s truly astonishing what you can get away with.

Beyond manslaughter, the charging options are limited to non-homicide offences. Alliston was charged with, and found guilty of, causing bodily harm by wanton and furious driving. This is an offence whose statutory definition, covering “wilful misconduct or wilful neglect” predates mechanically propelled vehicles, but which is still entirely applicable to vehicles of all types. Much has been made of its age—it dates from 1861—with many commentators using loaded terms such as “outdated” or “antiquated”, but age is not a measure of inadequacy.

The charge has been used successfully in other cases such as those of Darren Hall and Daryl Gittoes, and despite the two year maximum jail term of the offence, the sentences awarded to each (seven and twelve months respectively) were certainly not dissimilar to those awarded to people who kill with cars. Indeed Hall even received a 12 month driving ban, matching the minimum (and commonly applied) ban for causing death by careless or dangerous driving. His sentence was greater than those received by Tammie Morrall and Jessica Hedley, for example, who both killed people in head-on collisions whilst on the wrong side of the road.

Given this, it seems odd to suggest that this old law is unfit for purpose: it is perfectly capable of punishing people more harshly for killing with a bicycle than new laws often do those who kill with cars.

The evolution of road offences

Offences related to the use of mechanically propelled vehicles, or motor vehicles, have evolved over time. In the Road Traffic Act 1972, the definitions of reckless or dangerous driving (“[driving] a motor vehicle on a road recklessly, or at a speed or in a manner which is dangerous to the public…”) and careless or inconsiderate driving (“[driving] a motor vehicle on a road without due care and attention, or without reasonable consideration for other persons…”) were included, as were equivalently-worded definitions of reckless or dangerous cycling and careless or inconsiderate cycling. It also specified offences for driving and cycling while unfit through drink or drugs, and a single homicide offence of causing death by reckless or dangerous driving.

The Road Traffic Act 1988 overhauled these offences and defined those which have been used in almost all cases of culpable driving since.

Careless or inconsiderate driving and cycling were redefined as behaviour which “falls below what would be expected of a competent and careful driver [or cyclist]”. The concept of recklessness was dropped and the offences of dangerous driving and dangerous cycling were introduced, where the driver or cyclist’s behaviour “falls far below what would be expected of a competent and careful driver [or cyclist], and it would be obvious to a competent and careful driver [or cyclist] that driving [or cycling] in that way would be dangerous.” (The differentiation from carelessness being the vague adjective “far” in “far below” and the obviousness of danger.)

The RTA 1988 included the offence of causing death by dangerous driving (replacing that which previously included the criterion of recklessness) and introduced a new, lesser offence of causing death by careless driving. It also introduced the offence of causing serious injury by dangerous driving.

It is worth noting that any charge of dangerous driving carries an “included” charge of careless driving: a defendant cleared of the former can still be found guilty of the latter (where applicable: note that there is no offence of causing serious injury by careless driving). This also applies to charges of causing death by the same, and these additionally carry included charges of the corresponding non-homicide offences. In other words, someone charged with causing death by dangerous driving can be found guilty of any one (but only one) of four offences. In practice, the homicide charges rarely result in non-homicide convictions, but it is very common for charges of dangerous driving (homicidal or not) to result in lesser convictions for careless driving, often by the accused pleading guilty to the lesser charge and the CPS opting not to pursue the more serious one.

What changes are sought?

You may have noticed that the Road Traffic Acts introduced homicide charges pertaining to the use of motor vehicles, but not to the use of non-mechanically propelled vehicles (which includes such things as horse-drawn carts as well as pedal cycles). There is also no offence of causing serious injury by dangerous cycling, but it is worth noting that causing serious injury by dangerous driving carries the same maximum sentence (two years’ imprisonment) as causing bodily harm by wanton or furious driving, and is thus essentially equivalent. And, as has been noted, the 1861 offence appears to perform well in securing both a conviction and a sentence which is comparable to those awarded for specific homicide offences.

However, this lack of a specific cycling homicide offence is the main difference that people wish to see addressed.

But is that wise?

Manslaughter for drivers?

Calls for legislation to be “brought up to date” with regard to pedal cycles are somewhat curious to those who have followed road justice (such as it is) for some years, because there has actually been a growing dissatisfaction with the newer, more specific legislation. Roadpeace have for some time advocated charges of manslaughter which is now rarely if ever used for prosecuting drivers, and they’re not alone.

There are many examples of public dissatisfaction with careless or dangerous driving trials, and of cases where the nature of these offences prove problematic. One vivid example is a recently tried case involving a truck driver and a four year old girl.

In January 2016, Peter Williams drove his Ford Transit onto the pavement to park. He had failed to see four year old Esme Weir who was on the pavement, and “he struck Esme, knocking her off her scooter and onto the ground. His front nearside wheel travelled over her body, killing her outright.”

This seems another clear case of unlawful act manslaughter: driving on the footway is illegal, and clearly it was a critical factor in the death of Esme Weir, since Williams drove his truck over her while she was on the footway. An easy prosecution, surely?

But the Crown chose not to charge Williams with manslaughter. It chose the newer, more specific offence of causing death by dangerous driving.

Not only does this carry a lower maximum sentence, but its statutory definition is very different. Recall that dangerous driving is met when the standard of driving which “falls far below what would be expected of a competent and careful driver, and it would be obvious to a competent and careful driver that driving in that way would be dangerous.”

The problem with this statutory definition (and, indeed, that of careless driving) is cemented in law by way of the Court of Appeal, specifically in response to R v Lawrence 1982, in which Stephen Lawrence’s conviction for reckless driving (as defined in the Road Traffic Act 1972) was overturned. Lord Diplock noted the following:

“It is for the jury to decide whether the risk created by the manner in which the vehicle was being driven was both obvious and serious and, in deciding this, they may apply the standard of the ordinary prudent motorist as represented by themselves.”

Most drivers drive on the pavement to park. It is an unlawful act, but they—we—do it. And because nearly everyone considers themselves to be competent and careful, the unlawful act of driving on the pavement does not fall below the standard we expect of ourselves, let alone far below it.

No surprise, then, that Williams was cleared of causing death by dangerous driving, and of causing death by careless driving. He had, in the eyes of the law, done something quite normal and expected; but simply with unfortunate consequences.

So rather than a charge of unlawful act manslaughter, which would have seemingly had a high chance of success, the very legislation that is being held up as the contemporary gold standard provided a very predictable route to acquittal.

Note that the wording of the RTA 1988 postdates Lord Diplock’s comments: this Act of Parliament, the legislation most commonly used to prosecute bad driving, is founded on the very notion that jurors should judge others by their own arbitrary standards of conduct and not by some objective and fixed measure of competence and care. It is a mechanism by which the decline of standards is assured.

Surely, then, transposing this legislation to pedal cycles would actually reduce the likelihood of conviction?

Well, of course, things are—as always—not so simple.

A jury of peers

When it comes to the notion of “equal legislation” (or any synonymous term) there is one thing which makes it a transparent sham, at least in the context of existing statute.

And that is, of course, the ruling in the appeal of R v Lawrence, in which Lord Diplock’s remarks were pivotal.

To randomly find a jury of drivers is a facile task: the overlap between those who drive and those who are eligible for jury service is large. To randomly find a jury of pedal cyclists is not: only around 15% of adults cycle even monthly, meaning that even two regular cyclists on a jury of twelve would be a little above average.

How, then, could a jury “apply the standard of the ordinary prudent [cyclist] as represented by themselves”?

The answer is simple and indisputable: It could not.

In place of the first-person perspective on cycling will be a third-person view supplanted by the media. Alliston’s collision was a “high speed crash”, said The Times (the collision speed was between 10 and 14mph and Alliston had been approaching at around 18mph, a little over half the speed at which cars and lorries can be driven along the same road). It’s a common reflection of the received wisdom that a speed which is perfectly normal for most pedal cyclists, and which is nowhere near the motor speed limit, is somehow irresponsibly fast—despite cars being three times as wide and a hundred or more times as heavy as a bicycle.

Be careful what you wish for

There is a serious risk that various organisations, whether focused on cycling or on broader demographics of road users, will see sameness of legislation as equality. They will be tempted to concede that the use of pedal cycles is not treated in the same way, and to concede that perhaps it should be.

However, it should be obvious that sameness is not equality and that the RTA 1988, cognisant as it is of Lord Diplock’s comments, enshrines in law not just inequality but a tyrrany of the masses. Those who drive contribute to the decline in the standards to which driving defendants are held; those who do not cycle are open to influence in raising the standards to which cycling defendants are held.

Without objectivity, equality of legislation is not possible. And without comprehensively overhauling the Road Traffic Act, objectivity is not possible.

Filling apparent holes in legislation is an understandable desire, but it lacks circumspection in failing to see the problems with the new laws. It’s not necessarily true that an 1861 law can’t be improved upon, of course, but neither is it necessarily true that those from 1988 are better.

Fundamentally, the Alliston incident is one example of thousands of fatal collisions and the trial is one example of thousands of prosecutions for highway offences. The fact that in this case there was no explicit homicide conviction is perhaps unpalatable to some, but many people are viewing road justice with fresh eyes and a perspective primed by the media, overlooking the fact that people are cleared of homicide charges on a regular basis, often in far more startling circumstances than in this case.

And this priming by the media, with its lens focused tightly on this emotive but rare type of incident, leads us to the second part of the fallout from the Alliston case: the calls for legislation which will not only affect all cycling, but which will have the potential to go far further still.

Of which, more later.

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