Catapulting Boulders: Bez

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Recently on Beyond the Kerb I published a guest post about the unique challenges presented by the Notice of Intended Prosecution (NIP), as experienced when pursuing a case of bad driving recorded on video. Aside from the issues surrounding the NIP, Surrey Police’s response to the content of the video is illuminating. Specifically, it illuminates another problematic aspect of seeking prosecution; indeed, a far greater and far more complex one.

I should be absolutely clear in advance that this post is not a criticism of Surrey Police (though the points in Ralph’s post about antiquated IT policies and processes, and the notable remark that video is not considered independent evidence, remain valid). Their handling appears to be pragmatic and reasonable: In assessing any case in terms of prosecution, they must inevitably consider whether the CPS are likely to proceed with it. Their view in this instance was that they would not; and with weary cynicism, even without considering the harsh realities of ever-dwindling resources, it’s hard to disagree.

The point, though, is that this situation is incredibly frustrating. The statutory definitions of the relevant offences are already flawed, the application of those offences is being eroded, and the issues highlighted in this post add to that erosion. So let’s take a look at the video and see where these issues start to erode the likelihood of prosecution.

The video

The incident that Ralph reported occurs at 1m13s. As Ralph begins to pass a parked van, a Corsa is seen to pass extremely closely. It leaves very little room for error, is close behind another vehicle, and is passing on a hatched area approaching a traffic island which forms a pinch point. This traffic island prevents the driver from being able to overtake (it is possible to speculate that she has failed to see it because she is fairly closely following another vehicle, or it could be that she has simply misjudged the cyclist’s speed), but after having to drop back the driver sounds the horn repeatedly and then the Corsa is seen again, clearly being driven deliberately towards Ralph and slowing to stay alongside him. The driver then finally overtakes, again while approaching a traffic island, and again leaving little space.

A close pass alongside a parked van.

In the screenshot above you can clearly see the Corsa’s wing mirror in the top right of the frame. It appears to be close. Incredibly close. In the appendix below I’ve tried to show just how close.

So we have an extremely close and dangerous pass, clear misjudgment of hazards, deliberate aggression and misuse of the horn, repeated misjudgement, and another close pass. Certainly several viloations of the (non-legally binding) Highway Code, and many would argue also at least careless driving. Some would argue it constituted dangerous driving, and it is feasible that the deliberately aggressive driving could constitute assault. (The pragmatic questions are around how likely a prosecution is for each offence, and whether a prosecution for each is in the public interest.)

But enough of the evidence. Let’s take a look at three comments on the video which form a large part of the reasoning for not recommending the case to the CPS.

Close passes are bad, m’kay?

comparison-1
Police comment: “The video shows you following a blue Fiat vehicle before you then go to its offside very close and overtake it whilst that vehicle is still moving forward.”
In other words: You (a person on a 10kg vehicle with no protective structure) closely passed another driver (a person encased in a 1400kg vehicle with a steel safety structure) while they were moving. This is Something That Should Not Be Done, hence it is unlikely that we could prosecute the accused (a person in a 1600kg vehicle with a steel safety structure) for closely passing you (a person on a 10kg vehicle with no protective structure) while you were moving.

Using the hatched area is bad, m’kay?

comparison-2
Police comment: “You then travel along the road centre in a hatched area bordered by broken lines overtaking a number of vehicles. The Highway Code advises that road users should not enter such areas unless it is necessary and you can see that it is safe to do so.”
In other words: You entered the hatched area to pass other vehicles (which were stationary). This is Something That Should Not Be Done, hence it is unlikely that we could prosecute the accused, who entered the hatched area to pass you (while you were moving).

Leaving no room for error is bad, m’kay?

comparison-3
Police comment: “Later you are following a Peugeot vehicle very close to it. As such you do not appear to have a clear view of the road ahead of it. Should the vehicle have braked suddenly there was a very real chance that you would have collided with it.”
In other words: You (a person on a 10kg vehicle with no protective structure) were sufficiently close to another car (a 1200kg vehicle with a steel safety structure) that had you needed to take evasive action you may have struck it. This is Something That Should Not Be Done, hence it is unlikely that we could prosecute the accused (a person in a 1600kg vehicle with a steel safety structure) for being sufficiently close to you (a person on a 10kg vehicle with no protective structure) that had you needed to take evasive action they may have struck you.

Two wrongs do make a right

As you may have noticed from my ever-so-subtle phrasing, there’s a pattern here: If at any point in time you can be shown to have done anything which is perceived as Something That Should Not Be Done, then it’s not possible to prosecute someone else for doing it, even if they do lots of those things at the same time. (The Corsa driver did all three of these things plus more: notice the traffic island shortly after the parked van, for instance. And let’s not even start on what appears to be a deliberate swerve towards the rider.)

But, absolutely crucially (and as I have again ever-so-subtly suggested) there’s also a key differentiator.

Stones and boulders

Take the example of being close to the Peugeot. If we accept the suggestion that the rider is close enough for there to be an appreciable risk of hitting it if the driver has to brake (which I think is fair, although I would note that the lateral positioning means that it’s likely that the rider would be able to swerve to its side while braking) then we must look at the consequences of doing so.

I confess that once, in my teenage years, I unintentionally tested this: when the driver in front of me suddenly braked to allow a pedestrian to cross the road I was too close to avoid an impact. It was at reasonable speed; enough that I ended up half on the roof of the car. We were all a little surprised, but there was no damage to me or the car. Lesson learned. Such is youth.

Here’s another example of someone doing Something That Should Not Be Done.

Again, no damage to the rider or the car.

Obviously, not all such incidents are completely devoid of consequence. But the key point is this: it is all but impossible for such an incident to cause harm to anyone inside the car. (Granted, an older convertible car with no reinforcement behind the occupants’ heads may be an exception.) It may damage the car, and it may damage the person whose fault the collision was, but that is all.

The message that needs to be heard is this: There is nothing morally or logically unsound about the notion that it should be broadly acceptable for someone on foot or on a bicycle to pass close to a heavy and incredibly strong steel box whilst it also being broadly unacceptable for someone in a heavy and incredibly strong steel box to pass close to someone on foot or on a bicycle.

This is not about people in glass houses throwing stones. That idiom makes sense only if it is clearly understood that the real problem is that the people outside the glass houses are catapulting boulders.

The potential for harm, which is a matter of basic physics, is crucial. It’s why we license firearms but not water pistols. Yet it seems that if you want someone to be prosecuted for walking down the street with a sawn-off shotgun, you’d better not walk down the street with a water pistol.

One thing seems clear: To seek the prosecution of others, one must be demonstrably flawless oneself.

But is that really true?

Demonstrably flawless

Take the example of Liz Brown. Killed when struck from behind, reports indicate that it was explicitly stated in court that she was at no fault whatsoever. Riding legally and responsibly along the road, she was hit by a van, the driver of the was found to have committed no offence.

Take the example of David Irving. Killed when struck from behind, his actions were scrutinised in court but there seems to be no implication of blame (indeed it is hard to imagine what could possibly imply it). Riding legally and responsibly along the road, he was hit by a van, the driver of which was found to have committed no offence.

And so on. There are numerous cases (not least those involving low sun) where two parties collided, the victim was deemed wholly correct and blameless, and yet the other party was either found to be also blameless or not even accused of an offence.

Social norms

Blamelessness aside, it’s tempting to wonder whether analogous situations, where the potential for harm is unilateral, would be handled similarly. Would a wife who shouted abuse at her husband’s friend and was later threatened by her husband with a kitchen knife be prevented from seeking his prosecution? Would an employee who didn’t wear a dust mask as often as he was required to be prevented from seeking the prosecution of an employer whose health and safety process failings were so severe as to have the potential to cause its employees’ deaths?

It’s hard to imagine these being treated similarly, because people see the disparities in each. Yet they both offer analogies in the context of the application of law: in one, two parties commit assault with two markedly different weapons (a voice and a knife); in the other, two parties commit health and safety violations where the injured party will likely be the same in each case.

And this is where the social norms of personal transport must be: we must recognise the potential for harm of heterogeneous vehicles, and we must recognise where harm is unilateral regardless of fault. We should be far more concerned with people’s ability to cause harm to others than with their ability to cause harm to themselves; and we should­ be more concerned with either of these than with anyone’s strict adherence to the letter of the Highway Code, which has no legal status.

So, while it’s hugely frustrating to see remarks like these from the police, those remarks simply reflect the depressing reality of the court.

And it’s hard to see how that can change without changing magistrates’ and jurors’ social norms.

Appendix

To measure the gap between the Corsa and the van, we can use the Peugeot as a reference. In the frame below, I’ve traced the convergent lines of the van in pink. The lowest of these, passing the edge of the rear tyre, approximates the point on the tarmac directly below the right edge of the van. (In reality the body, which will protrude beyond the tyre, will be a little to the right of this. Thus I am erring on the side of overestimating the gap.)

The next step is to draw the two blue lines: one to measure the body width of the Peugeot and one to measure the distance from the rightmost point of the van to the edge of the dashed white line.

pass-measurements

Why am I measuring to the white line? Because this seems to represent the leftmost position of the Corsa during the period where it is passing the van. It’s possible to see the front nearside tyre edging to the left of this just as the front of the van is reached, at 1m15s, although prior to the point of the Corsa’s contact with the road is not visible. However, since both the body and the wing mirror extend to the left of the tyre, I think it can be stated with reasonable confidence that at no point is the wing mirror significantly to the right of the point I’m measuring to. I suspect it remains to the left of it at all times, but I prefer to err on the side of overestimating the gap.

Measuring the lengths of these lines as drawn in Inkscape gives values of 220.3 and 181.9 respectively. The body width of a Peugeot 1007 is 1.61m, meaning that the gap between the van and the white line is approximately 1.33m.

So, how wide is a cyclist? Ireland’s National Transport Authority gives a width of 0.75m, and the UK’s Department for Transport uses a dynamic envelope of 1.0m (being the static width plus the normal lateral moving of pedalling, and you can see the pendular motion of the bike on the video).

So that’s between 0.33m and 0.58m to spare, depending on how much the rider is moving. But that gap is shared across both sides of the rider.

The line along which Ralph’s wheels are travelling is clearly to the right of the middle of this gap. (Ralph’s camera is mounted centrally on the bike, in front of the stem.) So, again erring on the generous side, if we assume his wheels are in the centre of the gap, that leaves between 0.16m and 0.29m between Ralph and the Corsa. Were we to estimate Ralf’s position as two-thirds of the gap, that lower figure would become negative.

Given that in those figures I’ve overestimated the distance to the van body and I’ve placed Ralph further to the left than he is, I’ll let you make your own estimate.

Personally I have no doubt whatsoever that this was a dangerously close pass, about as close as they come, even without considering the proximity of the van or the approach to the traffic island, both of which add considerably to the risks and both of which should have been entirely obvious to the driver. For this to be compounded by the subsequent aggressive use of the horn, a deliberate swerve at the rider and then another close pass approaching a traffic island, and to still not warrant any action, is somewhat dispiriting.

Is it any wonder that some people turn to social media (or worse) instead of the law?

Comments (21)

  1. The only answer to all this, that I can see, is to get more people cycling, especially those involved in the police, CPS and courts.

  2. An excellent article as usual Bez.

  3. It’s enough to incite vigilantism. You do exactly what you’re meant to do and the Police and legal system fail you totally. It’s easy to understand why some resort to kicking in their lights and wing mirrors (though of course the Police take a very different approach to enforcement against criminal damage).

  4. If you expect to have the protection of the law then it’s not unreasonable to have to follow the rules. That’s some ropey cycling that the cyclist goes out his way to put himself in dangerous places. If something happened whilst squeezing through the gaps the cyclist would cry foul.
    In case you think I’m trolling I used to commute 18 miles each way by bike.
    This behaviour and the vigilante cyclist are doing more to polarise anti cyclist views than they are helping to educate.

  5. “If you expect to have the protection of the law then it’s not unreasonable to have to follow the rules.”

    There was no unlawful cycling on display here. None at all. But there is a strong argument for there having been unlawful driving.

  6. Maybe they should send them on one of those learn to drive better causes.

    I have been on one and I did learn from it.

    They charge about £100 for the course so its also bringing some cash in. You could say do course or this incident will be reviewed with a view to passing on to the CPS.

    I would like to see them all sued tbh, but is that likely to happen ?

  7. “If you expect to have the protection of the law then it’s not unreasonable to have to follow the rules”

    Ah. So if someone is speeding and driving dangerously it’s absolutely fine to kick their wing mirrors off and punch them in the face. After all “If you expect to have the protection of the law then it’s not unreasonable to have to follow the rules”

    I can’t see anything wrong with the cyclists riding at all. No danger to himself or anyone else and nothing he does is illegal.

  8. Really? Think you are more blinkered than I ever thought. Going through hatching, squeezing in the sort of gaps that lorries and buses cannot see and ends up with dead cyclists, overtaking cars in zig zags before a crossing.

    Dreadful cycling and nice to see blinkered comments from cyclists. No wonder other road users hate us.

  9. Was that response aimed at Simon or me?

  10. Oh, and one important point re “If you expect to have the protection of the law then it’s not unreasonable to have to follow the rules.”

    The law, fortunately, does not agree with you. Take once prominent example: when Tony Martin shot a burglar, he was convicted. An offence is an offence. I’m sure provocation and other directly pertinent factors would be considered in mitigation, but that is not relevant here. Even if the riding here is considered below par, and even if it violates some Highway Code rules which have no legal status, it had no imposition on the driver whose actions presented clear danger.

    If you want to criticise the riding, then go ahead, it’s almost wholly a subjective matter. But the fact is that it should not prejudice the assessment of someone else’s actions, because it is irrelevant.

  11. No, I really can’t see any issue with the riding. Good primary position. Obviously slowing as he comes up to that traffic island. Overtakes slow moving traffic (he’s on a bike – those cars are doing 15 mph at most- completely legit to overtake) on hatchings. Pulls back in front of silver Focus with a good amount of space. Sign of freewheeling (ie careful, covering brakes) as he approaches side roads.

    i cannot see anything wrong with that at all. The only way he could be more careful is to sit in primary and never overtake anything. I’m sure that would go down really well.

  12. (Traffic island=crossing) car in front slows , brake and pull right. Means you don’t have to brake do hard/can preserve momentum, increases your run out distance.

  13. Ive watched it 3 times more and I really can’t see anything to criticise.

  14. “The sort of gaps lorries and buses can’t see”. He doesn’t squeeze through any gaps. There ain’t any lorries and buses in his direction and he’s clearly visible to traffic coming towards him. Hatched white lines are fine to enter to overtake
    https://www.gov.uk/general-rules-all-drivers-riders-103-to-158/lines-and-lane-markings-on-the-road-127-to-132

    You can see caution at the side road. Good cautious riding in slow moving traffic followed by a dangerous and completely pointless overtake.

  15. Ironically the video taker did not give the cyclist he passed as much room as he seems to seek, but I’m sure you’ll gloss over that too with some reference to the fact that if you are light you can do what the hell you want, but if you are in a heavy vehicle you should be shot for any transgression.

    There’s a lack of risk mitigation by the cyclist and a lot of riding that if it was pulled off in a car would result at best from a tug from the police or a dangerous driving charge. I’ve been pulled for overtaking on broken hatchings on a clear country road and no prosecution, but they don’t look on it kindly.

    The rampant blinkered one-sided tribalism is what is really frustrating, and I don’t believe STW should be giving a soapbox to the holier-than-thou cycling brigade. It’s not helpful generally and not sure what purpose it has when your audience are already cyclists. If you are really about furthering cyclists cause then why not go any try to ration with Pistonheads & Co.

  16. “Highway Code, which has no legal status.”
    Really? Not what its says on the website:
    “Many of the rules in The Highway Code are legal requirements, and if you disobey these rules you are committing a criminal offence. You may be fined, given penalty points on your licence or be disqualified from driving. In the most serious cases you may be sent to prison.”
    “Although failure to comply with the other rules of The Highway Code will not, in itself, cause a person to be prosecuted, The Highway Code may be used in evidence in any court proceedings under the Traffic Acts (see The road user and the law to establish liability.”

  17. “The rampant blinkered one-sided tribalism is what is really frustrating, and I don’t believe STW should be giving a soapbox to the holier-than-thou cycling brigade.”

    When Ralph showed me the video I did say to him that there were a couple of bits where I winced a little. My riding would for the most part be more cautious.

    But the whole point of this post, which actually points out certain arguable flaws in the cycling, is that this shouldn’t be important. The entire of it rotates around the fact that the riding evidently *isn’t* flawless in many eyes. I’m not sure whether you’ve missed that, or whether you simply agree that all evidence should be dismissed if it was captured by someone who is not entirely beyond reproach. But the accusation that this is “holier-than-thou” is somewhat difficult to understand.

    You see, one reaction I had when I first watched the video was “I’m not sure I’d be riding like that”, but the much more acute reaction I had was “bloody hell, I hope I don’t end up on the same bit of road as that driver!”

    Like I said above: sure, criticise the riding. But if pointing out any flaws there means it’s not possible to deal with dangerous and aggressive driving then we’re all screwed. Without dealing with this there is no re-education, no reinforcement of any understanding of danger to others, and no legal protection for anyone on a bike—including those of us who ride in a manner of which you approve—from people who thing driving like this is acceptable.

    As the examples above show, if we wait for someone that can be publicly stated as demonstrably flawless to provide evidence, their evidence usually comes in the form of a coroner’s report.

  18. “Really? Not what its says on the website:”

    The Highway Code is a set of rules which fall into two categories: those which are layman’s summaries of specific pieces of statute, and those which are guidelines.

    The former have no legal status, because it is the statute itself which has legal status.

    The latter *can* be considered in the context of, say, a careless driving charge, but this is not necessary.

    The prime example usually cited in explaining this is the case of R v Petterson. The defendant struck a cyclist from behind after completely failing to see him. According to notes taken in court by a third party, the judge *explicitly* instructed the jury that they were “to ignore Highway Code [rules 93 and 237, advising drivers to] slow down or stop if dazzled [because the] Highway Code is not law”:

    https://beyondthekerb.wordpress.com/2014/02/12/futility/

  19. “I’m not sure whether you’ve missed that, or whether you simply agree that all evidence should be dismissed if it was captured by someone who is not entirely beyond reproach.”

    Ah, whoops, just twigged the name from upthread—sorry, the old brain clearly struggles to get past the default avatars—so that answers that one 🙂

    Anyway, key point is this: I do follow the rules (take my word for it, for the sake of argument) and I do expect to have the protection of the law. But I don’t, because this whole sequence of events acts to confirm to both the driver and the rest of us that this driving is fine. If I find myself on the same piece of road as her, I might be passed similarly, because she thinks it’s fine and it’s been confirmed as such, and so I’m potentially at risk. And so are you.

    The mistake is to think that these incidents are one-offs. They’re the result of inattentive or thoughtless or aggressive driving, and the fact that in this case there was no injury is down to little more than a roll of some dice.

    Personally I’d just like to see bad driving addressed before it results in someone’s injury, and it’s of no relevance whatsoever whether or not the person who provided the evidence of it happened to squeeze through a gap half a mile up the road.

  20. As Bez has already said the actions and riding of the cyclist are wholly irrelevant. Simply answer this question:

    “Was that safe driving?”

    if your answer is “yes” then god help us all, pedestrian, diver and cyclist alike

    if you answer is “no” then you’ve just hit the nail on the head. t doesn’t then become a game of saying, “ah but it’s OK because he did X Y or Z earlier”. Regardless of any possible infractions or less than perfect riding from the cyclist the actions of the driver were dangerous, and the only point at which his actions could ever become even slightly relevant to the discussion is if he had in some way antagonised the driver of the Corsa, which STILL would have little bearing as you’re not allowed to put people’s lives at risk in retaliation, but as you can clearly see from the video, the Corsa joins from a side road behind him, his prior actions had no impact on her in any way.

    And thats before you take any of the disparity in risk to others due to vehicle type/size into account, which IS important, you have a greater duty of care to vulnerable users when in charge of the more lethal vehicle.

    What we have here is another example of the terrible normalisation of dangerous driving on our roads. That driver WILL drive like that again, and it might be around you, your family, or someone you know whether you are a perfect rider or not there is no excuse or justification for putting someones life at risk like that.

    All in, very disappointing but sadly not surprising.

  21. Bez and Amadias are right on this one. And seriously, screw you to the people who think the behavior of that woman in the Corsa is ok, somehow justified because the cyclist overtook some cars over a hatched line whatever 500 meters up the road! Nice. She put him at risk of serious injury or worse, and then screamed at him as well! These type of people should not be allowed on the road, and the worse thing is so many nasty small minded idiots including the police seem to be on their side!

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