Wednesday, 18 November 2009
Such a 'free for all' would though require a hierachy of vehicles, with motorists giving way to cyclists and both giving way to pedestrians such that in a collision the driver of the larger type of vehicle would at least bear the burden of demonstrating in a civil case that the accident was not his fault. I have described this as akin to the system prevailing in some European countries. This is of course a simplification of a complex piece of comparative law which I may attempt in a future post. The burden is harder to shift in some countries and in some circumstances than in others.
Finally, I am gratified that a number of people have been kind enough to express appreciation of my last post.
Friday, 13 November 2009
[Warning:this is a long blog. A shortened version has now been published in the New Law Journal]
Last year (2008) 2,538 people were killed in the
due directly to the presence of motor vehicles on the roads. A further 229,000 a year were injured. Countless others suffer detrimental effects from the emissions, noise and even fear of road traffic. Motor vehicles are furthermore a major source of carbon emissions, whose contribution to global warming is now surely doubted only by those with a strong vested interest and the mildly deranged. A human activity which causes this level of carnage ought to be subjected to serious scrutiny and control. However the convenience of the personal automobile has led over the last century to the development of a car culture which largely exempts motoring from the strict regulation of other areas of life in which poor practice costs lives (construction sites, workplaces, product liability, aviation, infectious disease and even dangerous animals). United Kingdom
Last year (2008) 2,538 people were killed in the
The main tenets of this car culture can be summarised as follows:
1. The inevitable attrition is a price well worth paying (by unknown others) in return for individual autonomy and convenience (often now described as necessary to the way in which we live our lives).
2. Every physically competent adult has a right to drive, removable only as a punishment for serious or repeated criminal offending and, even then, only temporarily.
3. Conduct which might be regarded as dangerous in any other walk of life is, in a motorist, merely careless and that which would otherwise be careless is excusable. This tenet is coloured by a sense of ‘There but for the grace of God, go I’ in the mind of the individual scrutinising the conduct in question.
4. Road safety efforts should be focussed upon segregating the vulnerable road user from motorised traffic (at the expense of ensuring the safe sharing of road space) and upon encouraging, or even mandating, personal protection to ameliorate the consequences of the collisions which are accepted as inevitable.
5. A myopic view of the fundamental laws of physics which permits motorists to argue that their responsibilities and actions in controlling 1,000+ kgs at up to 70mph should be judged in a similar manner to those controlling less than 100kgs at up to about 20mph. It is not necessary to be an apologist for red light jumping or pavement riding cyclists to point out that the risks they pose are many orders of magnitude less than the risks to pedestrians and cyclists from poorly controlled motor vehicles
There are some signs that the car culture runs deep within our justice system, which arguably lags Parliament’s and Governments’ (central and local) efforts to restore a balance between motorised and alternative modes of personal transport. The bicycle is not only an inspired individual response to the difficulties of getting around but also a solution to the general problem of traffic congestion. The individual cyclist who leaves the car at home is freeing up road-space, reducing risk for all other road users and benefiting the environment for all. Even the cyclist who makes a trip that would not otherwise be made by car presents a negligible risk to others. The number of pedestrians killed by cyclists is similar to the number killed by golf balls; in each case too small to register on statistics, but on the few occasions per decade that it does occur accompanied by much publicity.
Cycling is not, on any rationale scale, a dangerous activity. It is, however, often perceived as dangerous because of the cyclist’s inherent vulnerability and it remains, per mile travelled, significantly more dangerous than driving, a trend that the recently released statistics for the second quarter of 2009 reveal to be moving in the wrong direction. The perception of danger is heightened by the suggestion that protective headgear is a necessity. In a collision between a bicycle and a motor vehicle the cyclist will come off worse, with the motorist virtually invulnerable (save to any subsequent legal sanction). While bearing the relative risks in mind, it is nonetheless worth reminding cyclists that in a collision with a pedestrian, the pedestrian will often come off worse (though the cyclist will still not have the invulnerability of the motorist).
It is a mark of a civilised society that the law protects the weak from unwarranted harm inflicted by the strong. It is important for cyclists to know that they share the roads with motorists who have an obligation to take care around them and that those who do not will be called properly to account. When a motor vehicle strikes a cyclist, and particularly when a fatality results, it is of the utmost importance that a thorough investigation take place, that where the facts warrant it a prosecution is pursued for the appropriate offence (without requiring a near certainty of conviction), and that following any conviction a deterrent sentence is passed. The car culture needs addressing at each of these levels.
Investigation and prosecution
In early June 2008, Marie Vesco, a 19 year old from France who had recently settled in this country, was cycling in a group of around a dozen from
London to Brighton. They were travelling on the A23 and had to negotiate a junction where the nearside lane of three became an exit slip road. To travel straight on the group had therefore to cross the nearside lane. This is what Ms Vesco was doing when she was hit first by a car taking the exit and then by another car following close behind. A short police report concluded, somewhat lamely, that Ms Vesco and the driver of the first car had either separately or jointly failed to judge each other’s intentions. There was no proper analysis of whether the car should have been attempting to overtake the cyclists in those circumstances or whether the cyclists were afforded sufficient space or whether the next car was following a safe distance behind. The CPS decided not to prosecute, a decision that was unhappily communicated to the distraught family too late for them to consider a private prosecution. The A23 is not a motorway (perhaps it should be but that is a separate matter), it is thus a road available to all traffic. However the car culture tenet of segregation suggests that the cyclists should not be anywhere near fast moving traffic, detracting from the fact that motorists should recognise that the nature of the road and junction, combined with the awful consequences of a collision at speed, called for extreme care in overtaking the cyclists.
It is worth noting that in Ms Vesco’s home country it is a requirement that traffic overtaking a cyclist allow a margin of 1.5m (5 feet), and this self evidently needs to be increased with the speed of the passing vehicle. Here the Highway Code (rule 163) requires motorists to give vulnerable road users they are overtaking ‘at least as much space as you would a car’ implying (though not without some unfortunate ambiguity) a similar, roughly 5.5 foot, margin. In no industrial or other context would a reduction in a like margin of safety be regarded as acceptable, yet on the roads it is both commonplace and excused.
One month after Ms Vesco’s tragedy, in July 2008, Anthony Maynard, a 25 year old experienced cyclist was on an evening training ride with other members of the Reading Cycling Club. By the time he reached Bix on the A4130 dual carriageway near
Henley he was with just one other club-mate. Both were struck by a van that had overtaken another vehicle and then pulled in to the nearside lane killing Mr Maynard and injuring his companion. No prosecution was brought apparently on the basis that the van driver had been dazzled by the sun and could not therefore see what was, or was not, in the road space that he was driving into at speed. Again some might be forgiven for suspecting that the car culture assumed that vulnerable road users should be out of the way and that it need not occur to a motorist that the space he is blindly driving into might contain cyclists.
In contrast one can only gape in astonishment at the series of choices made by the police, the CPS and District Judge Bruce Morgan that, in 2006, led to Daniel Cadden’s conviction for inconsiderate cycling. His offence was using the road on his commute home through
Telford where he was cycling at around 20mph. Initially the police stopped him for riding in the road position which is recommended by the cyclists’ bible ‘Cyclecraft’ and taught on bikeability cycle training courses; that is, he was cycling in a position well out from the nearside edge of the road. It was belatedly appreciated that, wherever Mr Cadden was positioned across the road, traffic could not overtake him, in accordance with rule 163 mentioned above, without crossing double white lines in the centre of the carriageway. It is partly to discourage dangerous attempts by motorists to ‘squeeze by’ that a cyclist should often take the position Mr Cadden was adopting. District Judge Morgan, who had the benefit of expert evidence from the author of ‘Cyclecraft’ John Franklin, nonetheless convicted Mr Cadden on the basis that it was inconsiderate to ride on the road at all, rather than on a separate cycle path. Interestingly, advice from the Department of Transport in its proposed Code of Conduct for Cyclists is, “As a general rule, if you want to cycle quickly, say in excess of 18 mph/30 kph, then you should be riding on the road.” Mr Morgan’s credentials as an adherent of the car culture cannot be faulted; he had earlier acquitted of speeding and dangerous driving PC Milton who was clocked driving an unmarked police vehicle at well over twice the speed limit on a motorway and other roads. Both of DJ Morgan’s decisions were overturned on appeal but there remains a striking contrast between the police, prosecution and judicial time and effort directed towards the literally harmless Mr Cadden and that directed towards motorists who have run down cyclists.
In September 2009 two appeals against sentence came before the Court of Appeal. In one, Darren Hall appealed a sentence of seven months detention in a young offenders’’ institution following his guilty plea to the offence of wanton and furious carriage driving contrary to section 35 of the Offences against the Person Act 1861 (a bicycle being deemed a carriage in Victorian legislation). He had in August 2008 been riding his bicycle on the pavement in Weymouth when, after turning a corner at speed, he collided with Mr
Ronald Turner who died some days later from a pulmonary embolism attributable to the collision. Mr Hall was young (20 at the time of the collision) and stopped to render assistance (had Mr Hall been a motorist, the sentencing guidelines relating to causing death by driving make clear that this would be treated as a mitigating factor).
His appeal against his detention was dismissed by the Court of Appeal who observed that he ought to have realised that if he collided with an elderly or infirm pedestrian it was entirely possible that serious injury might ensue. “It was the sort of cycling which, in our judgment, created at least some risk of danger. It was, therefore, not far short of dangerous cycling”. The logic of this cannot be faulted, although it is worth pondering why cyclists not infrequently ride on pavements. They should not do so, but so long as the car culture sends out the message that cyclists are not welcome, or safe, on the roads but should be separated from, and thus out of the way, of motor traffic, the unfortunate practice is likely to persist. It is rather encouraged by the strategy adopted by many Highway Authorities of providing for cyclists by painting bicycle paths on the pavement instead of ensuring that traffic is calmed appropriately for shared use of the road.
In the other case Matthew Rice appealed a sentence imposed at Peterborough Crown Court of 20 weeks imprisonment and a two year driving ban for the offence of causing death by careless driving introduced by section 20 of the Road Safety Act 2006. Mr Rice had been driving home along a narrow country lane near Fenstanton in Cambridgeshire at about 6pm on a Friday in November. He was third in a line of three vehicles headed by a car travelling at 40 to 45mph. This was not a sufficient rate of progress for either Miss Buckingham (driving the car second in line) or Mr Rice. Mr Rice pulled out to overtake both the cars ahead of him but Miss Buckingham then pulled out to overtake as well. Mr Rice could no longer see what lay ahead but nonetheless remained behind Miss Buckingham to overtake the lead car. A fit cyclist, Mark Robinson, was riding in the opposite direction. His front light was seen by the driver of the lead car and was described by another witness as ‘quite brightly lit’. Miss Buckingham saw him just in time and was able to regain her correct side of the carriageway without a collision. Mr Rice did not see Mr Robinson until it was too late. The road was not wide enough for two cars and a bicycle and there was a head on collision, at a closing speed of about 70 mph, in which Mr Robinson tragically died.
Mr Rice was driving fast on the wrong side of the road in circumstances where he could not see what was coming towards him. In any ordinary sense of the word this is dangerous. Using the words aptly applied to Mr Hall’s cycling, it was the sort of driving which created at least some risk of danger and was, therefore, not far short of dangerous driving. However the Crown had agreed with the Defence that this was not close to the border of dangerous driving but was in the middle range of careless driving. Comparisons were then made with the fate of Miss Buckingham who had been convicted of careless driving and failing to stop and received a fine of £300 with a disqualification from driving for nine months. It was thought that the levels of culpability were the same with a difference only in the consequences. This seems charitable to Mr Rice; Miss Buckingham could see where she was going and, albeit late, saw Mr Robinson in time to avoid a collision. Had it not been for Mr Rice’s actions no accident would have occurred and (as any cyclist who has tried reporting a ‘close shave’ will know) it is inconceivable that she would have faced any prosecution.
There was further concern expressed about the far lower powers of sentencing available had the accident resulted in serious injury rather than death, though the Court did acknowledge that Parliament had singled out the consequence of death as calling for particular sanction. Of course the lack of draconian sentencing power, had the consequence been serious injury, results also from the peculiar reluctance to condemn as ‘dangerous’ actions which in any context, other than driving, would be unhesitatingly so described. Charging decisions are important. Judge Peter Moss when sentencing a man (R v Robertson Guildford Crown Court 10.11.09) who had used his car to run down and seriously injure a cyclist rightly expressed his sentencing powers (2 years custody) for dangerous driving as “absurdly low and incomprehensible” given the facts of that case, but he may have been assisted by a more imaginative decision to prosecute for assault occasionally actual bodily harm which carries a maximum of 5 years. Prosecutors here might learn from the course taken by Los Angeles prosecutors in the case of Dr Christopher Thompson, who was this month convicted on seven counts including assault with a deadly weapon after a road rage incident resulting in two injured cyclists. [January 2010 - now sentenced to 5 years.]
In the event in Rice’s case, the Court of Appeal decided that it was not sufficiently clear that the Judge had considered suspending the custodial sentence and since the Court of Appeal thought that was the appropriate course, they duly suspended the sentence. This could be said to be different from Mr Hall’s treatment, though it may be that there was some good reason, which is not clear from the report, why a suspension of Mr Hall’s sentence would have been inappropriate.
The Court of Appeal then considered Mr Rice’s appeal against his two year driving ban. The Court sympathised with the predicament of a man who had chosen a life-style which made a driving ban a serious impediment to keeping his job and reduced the ban from 2 years to 12 months. This is the same period for which Mr Hall was disqualified from holding a driving licence as a consequence of his offence committed on a bicycle.
Finally it is to be noted that the sentencing guideline’s aggravating feature of failing to take extra care around vulnerable road users was not invoked against Mr Rice. True he did not know he was in the vicinity of a cyclist until it was too late but he was driving nearly literally blindly into a space which foreseeably contained a cyclist.
In May 2009, Denis Moore, received a suspended prison sentence at Durham Crown Court following his conviction of causing death by careless driving. He had struck and killed a cyclist, Mr Jorgensen, as a consequence of failing to accord him the right of way on a roundabout. As noted, the causing death by driving sentencing guidelines identify cyclists, amongst others, as vulnerable road users, and state that a driver is expected to take extra care when driving near them. Driving too near to a bicycle or horse is an aggravating factor. The guidelines go on to indicate that where the actions of the victim or a third party contributed to the commission of the offence that should be acknowledged as a mitigating factor. In passing sentence Judge Lowden referred to defence counsel’s submission that Mr Jorgensen’s lack of a helmet was a mitigating feature. It is not clear whether this is in fact what tipped the balance against an immediate custodial sentence and it would be deeply disturbing if it was. There appeared to be few other potentially mitigating features (and indeed Mr Moore had been habitually driving for years unsupervised with a provisional licence). The absence of a helmet clearly did not contribute to the commission of the careless driving, and the section 20 offence is more serious than careless driving because of the consequences, not the other circumstances, of the offence. Whether a helmet would in fact have made any difference is highly questionable and is unlikely to have been investigated at a sentencing hearing. But in any event, even if Mr Jorgensen was more vulnerable as a consequence of being helmetless, then, as Darren Hall’s case illustrates, the vulnerability of the victim is no mitigation.
Presumptions of Liability
A storm was recently provoked when it emerged that the Government advisory body, Cycling England, planned to recommend that, in civil cases, an onus of proving that the accident was not their fault be placed on motorists who collide with vulnerable road users. The details of the recommendations, still less their prospects of acceptance, remain unclear. Press reports of a strict liability, regardless of fault, are probably a distortion. More likely is a proposal to adopt a system akin to that which is widespread in other European countries; that the motorist is at fault unless proved otherwise. Variants include a general assumption that the driver of the larger vehicle is to blame, thus the presumption is against cyclists in collisions with pedestrians. Few cases in practice turn upon the burden of proof. The heavier and faster the vehicle you chose to control, the more danger you present to others. A recognition that this imposes a correspondingly greater duty and, in the event of accident, comes with a burden of proof may constitute one small step towards the shift in culture required and would be a useful precursor to any trials of innovative traffic solutions which involve the removal of traffic lights and other junction controls.
The car culture has developed over generations and will not change overnight. Rising levels of congestion, pollution, obesity and recognition of climate change have led to Government action to encourage cycling, particularly as an alternative to motoring. To an extent these efforts are succeeding and there has been a rise in the number of cyclists on the roads in recent years. Cycling remains though a minority activity and one major challenge is in enticing individuals to trade the virtual invulnerability of a motor car, where the risks are borne by others, for the vulnerability of the cyclist to the mistakes of motorists. The risks to the cyclist are not in truth as high as they are often perceived and are more than counterbalanced by the health benefits of exercise. However the perception, aided and reinforced by segregation and requirements for personal protection, feeds the reluctance of cyclists to take to the roads. Potential road cyclists as a consequence remain in the car or ride on the pavement. Mr Turner, no less than Ms Vesco, Mr Maynard, Mr Robinson and Mr Jorgensen, was a victim of the car culture.
It is crucial that when cyclists do take to the roads the risks to them posed by motorists are minimised and this requires a willingness to challenge the car culture. Police, Prosecutors and Judges, as well as legislators, have an important role to play in achieving this.