A note on the law: Manslaughter, dangerous cycling and ‘s35 Driving’

Manslaughter in English law is not a straightforward topic.  It can be broadly split into:
1. Cases where the Defendant has killed another person intending to kill or inflict serious injury but there are extenuating circumstances which meant that the one time mandatory death sentence (now mandatory life) for murder would have been somewhat harsh.  Although this could in theory be applicable where a collision is intended I give it no more consideration here.  It is often called voluntary manslaughter.
2. Cases where the Defendant has not intended death or serious injury but has either:

(a)    Caused another’s death by breaching a duty owed to another where the negligence is so gross as to amount to a serious crime (‘gross negligence manslaughter’).  All road users owe a duty to each other so gross negligence manslaughter can readily arise.

(b)   Committed an unlawful act which anyone with any sense would appreciate was dangerous in that it inflicted on the victim a risk of some injury.  This is known as ‘Constructive Manslaughter’.  Again this could apply to road traffic collisions.

Gross negligence manslaughter is sometimes, but very rarely, a charge brought against motorists.  Things used to be different and ‘motor manslaughter’ charges were more frequently brought.  In 1956 Parliament introduced a statutory offence which is the pre-cursor of our causing death by dangerous driving.  It is universally acknowledged that this was done because juries were proving reluctant to convict of ‘motor manslaughter’.  The new offence carried a different label but was to all intents and purposes the same crime.  The new offence also had a lower maximum penalty but this was irrelevant since a life sentence for manslaughter only in practice occurs in voluntary manslaughter cases.  The current maximum sentence for causing death by dangerous driving is 14 years which the Government proposes to increase to life.

Cycling offences of careless cycling and dangerous cycling do exist but no offences of causing death by careless or dangerous cycling.  Dangerous cycling is all about the way in which you ride a bicycle.  There is no equivalent to the dangerous driving definition in section 2A RTA which extends the definition to driving a motor vehicle in a dangerous state. 

A cyclist who is considered to have caused death by dangerous cycling may be charged with involuntary manslaughter.  However given the statutory definition of dangerous cycling this would have to entail riding the bicycle in an obviously and flagrantly dangerous manner.  There are probably no circumstances in which a cyclist who has committed the proposed offence of causing death by dangerous cycling has not also committed the offence of (gross negligence) manslaughter.  There is only therefore any point in introducing a statutory offence of causing death by dangerous cycling if (as was felt to be the case with motorists in the 1950s) guilty people are walking free because of a reluctance of a jury to convict.

A cyclist whose manner of riding has not caused death may still be charged with (constructive) manslaughter if he has committed some other offence, which anyone could see was dangerous and which has caused death.  The other offence could be one of a low order but if committing that offence is dangerous and causes death then you are liable to be convicted of manslaughter.  Cases of constructive manslaughter charges being brought against a motorist are very rare save possibly cases of assault where a motor vehicle was used as a weapon.  Reporters seldom distinguish between gross negligence and constructive manslaughter cases.  I can think only of one case in the constructive manslaughter category brought against a motorist.  This was an unsuccessful prosecution against a driver who opened a car door causing the death of Sam Harding, a cyclist.  I take this to have been a constructive manslaughter case as the Defendant had both blackened out his windows and opened the car door, both separate relatively minor offences.  The jury took an hour to acquit rather reinforcing that the threshold for the obviously dangerous ingredient of the offence is a very high one.  It is not sufficient that a safety related law is broken and that somebody dies in consequence.  Whether the Defendant in that case could or should have been charged with an offence under s 35 Offences against the Person Act 1861 is considered below.

The Offences against the Persons Act 1861 was a consolidating statute.  Section 35 reproduced a law originally to be found in a Georgian Statute governing Stagecoaches.  The wording is 18^th century not, as is frequently suggested, Victorian.  The offence is worth setting out in full especially as it is often misquoted (even by the author of the strap-line to my recent Guardian article!) as ‘wanton and furious driving’ or even ‘fast and furious driving’.  It is not, it is either wanton or furious or wilful misconduct or wilful neglect any of which causes bodily harm:

There is no requirement in this offence that ‘other wilful misconduct’ be dangerous.

For as long as I can recall no prosecution has been mounted against a motorist for ‘other wilful misconduct’ or ‘wilful neglect’.  Only the ‘wanton or furious’ driving has been incurred and then only when the RTA offences are not available because the alleged offence has been thought to have been committed on private land. 

The charge is fairly regularly used against cyclists, but again until now relating to the standard of ‘driving’.  Have a look at what I said ages ago about the case of Darren Hall https://thecyclingsilk.blogspot.co.uk/2009/11/cycling-against-car-culture.html  In rejecting his appeal against a custodial sentence the Court of Appeal described his riding as ‘not far short of dangerous’.  This confirms that had it been dangerous it would have been gross negligence manslaughter.

‘Dangerous’ is rather a term of art in road traffic cases.  There is much to be said for clarifying its meaning as it relates to all road users.  Currently a lot of really very dangerous driving gets categorised as careless and this could be a whole separate and lengthy blogpost.  I intend to say no more about the Alliston case than that the jury verdicts are consistent with finding that his conduct was not so self-evidently dangerous as to amount to manslaughter but that he had been a person having charge of a vehicle whose wilful misconduct had caused death.

When I (or my strap line helper) say that a motorist would not have been charged with the section 35 offence that is because I have read frequently of cases where a person having charge of a vehicle has wilfully done something like blacken out windows, open car doors, driven on the pavement, exceeded a speed limit etc. etc. but this has not against a motorist been seized upon as wilful default or neglect justifying a s 35 charge.  Although the maximum term for section 35 is two years, imprisonment is a far more likely outcome than following conviction of a triable either way offence like causing death by careless driving (maximum 5 years but usually non-custodial).

I am not suggesting that a motorist with no brakes would not be prosecuted at all.  A motorist with no brakes (or even severely impaired brakes) would of course have to deal with the fact that mass and speeds mean that the danger is totally obvious on any conceivable view of what dangerous means.  Any persons responsible who are not driving will be charged with manslaughter, as in the Bath tipper truck tragedy, and any persons driving who ought to have known charged with dangerous driving under the s 2A definition of dangerous driving.  I just do not see the levels of danger as remotely comparable and neither it seems did the jury.  Perhaps the Bath and the Sam Harding case Defendants too, along with many other motorists, ought to have faced a s35 charge in case the more obvious one failed.

The Alliston trial

A heavy handed prosecution against a cyclist for manslaughter has failed but a charge of ‘furious or wanton driving’ has succeeded.

In 2016 more than 400 pedestrians were killed on UK roads.  Each a terrible tragedy to those involved and almost all avoidable.  One of these casualties, Kim Briggs, died following a collision between herself and a teenaged cyclist, Charlie Alliston.  She was extraordinarily unfortunate.  Research indicates that 10% of pedestrians struck by a motor vehicle at 20 mph are killed.  A rider on a lightweight bike will have less than one tenth the mass and therefore kinetic energy and momentum of an average car and the speed of impact was said by the prosecution to be ‘up to 14 mph’.  Yet tragically the unsuccessful efforts of Mrs Briggs and Mr Alliston to avoid each other on 12^th February 2016 led to her death from a brain injury.  This is a very rare occurrence indeed and has received much publicity.  We are inured to the 400 or so pedestrian deaths linked to motorised traffic but not to the vanishingly rare occasions that they are linked to bicycles.

It is also no coincidence that the one death of a pedestrian involving a cyclist is also the one case where a manslaughter charge has followed.  This is reported to be a first.  It is also one of the few cases where wanton or furious driving has been charged.  These are both offences triable only in the Crown Court and were no doubt selected in preference to summary offences (triable by magistrates) due to the perceived seriousness of the offending and its consequences.  Alliston could have been charged with any one or more of the lesser summary offences of breaching the Construction and Use Regulations, of dangerous cycling or of careless cycling.  Prosecutors appear to have wished to get around the fact that Parliament has not legislated for causing death by careless or dangerous cycling offences.

The allegation against Alliston essentially related to the absence of any front brake on his bicycle.  From reports of the evidence given at trial it seems clear that Mrs Briggs stepped out onto the road into the path of Mr Alliston.    Mr Alliston has always been adamant this was so (including in some very poorly judged on-line forum comments that he made in the days following the incident when Mrs Briggs lay in hospital) and the prosecution, who had access to CCTV and witnesses, did not contend otherwise.  Instead it was alleged that with a front brake Alliston would have been able to stop before any collision took place.

The bicycle concerned was designed and built for use on the track.  Track bicycles do not have gears or a free wheel.  If the rear wheel is spinning then so are the pedals and any attached legs.  They also, for sound safety reasons on the track, do not have front brakes.  Braking on a track bicycle is achieved by resisting the spinning of the back wheel with the legs.  Fixed rear wheels (or ‘fixies) are not confined to the track, they are increasingly used on the road though the road variant differs from the track bike in having a front brake.

The requirement for a front brake is set out in The Pedal Cycle (Construction and Use) Regulations 1983.  Regulation 7(1) provides that every bicycle must be equipped with at least one braking system.  Mr Alliston’s bicycle satisfied this test.  However because his saddle was more than 635 mm from the ground Alliston was also required by Regulation 7(b) to have ‘a braking system operating on the front wheel’.    He had no such front wheel brake and could have been prosecuted for a breach of this Regulation, a summary offence resulting in a fine. 

Front brakes are important on bicycles.  In an emergency a skilled cyclist will get all their stopping force from the front brake because of the effect of the bicycle and rider decelerating.  Unlike a car, or a heavy police-issue mountain bike, the limit of effective braking on dry level ground is reached at the point where the rear wheel lifts off the ground potentially pitching the rider over the handlebars.  Studies in David Wilson’s seminal work ‘Bicycling Science’ demonstrate that a deceleration of 0.5g is the maximum that a seated rider can risk before he goes over the handlebars.  Unlike a car driver a cyclist cannot safely achieve the limit of adhesion of the tyre to the road, which in the dry is typically about 0.8g.  Braking with the rear wheel alone can achieve only 0.256g before the rear wheel locks up and skids.  Wilson also cites reliable research that in wet weather conventional block on rim braking distances are increased by a factor of four. 

Expert evidence from the police for the prosecution was that Alliston had been going at 18mph (8 m/s) and that his braking distance was 12 metres.  From experiments on other bicycles, including a police mountain bike, it was alleged that with a front brake he would have been able to stop in 3 metres.  In cross-examination it was suggested to him that with a ‘butcher’s bike’ with good brakes, he could have avoided the collision.  There is no record that Alliston had his own expert to give evidence or that the risk of tipping over the handlebars was considered.  The 3 metre braking distance is frankly absurd.  Newtonian physics using Wilson’s calculated 0.5g yields 6.5 metres with the front brake and 13 metres without it.  The difference is a factor or two, not four.  Given that the prosecution case was that Alliston was 6.53 metres away when Mrs Briggs stepped out, this difference is crucial.  The Highway Code gives a typical stopping distance of 12 metres for a car driving at 20 mph, suggesting that if Mrs Briggs had stepped into the path of a ‘slow’ moving car the driver would not have been able to avoid her.  Like a driver Alliston has to be given some reaction and thinking time.  He shouted twice and gave evidence that he moved to pass behind her when she stepped backwards.  Any cyclist will confirm that quick steering may be preferable to emergency braking when avoiding a pedestrian.

Of course Alliston should have had a front brake.  He was unaware of the legal requirement for one and thought himself reasonably safe relying on rear braking.  He was wrong and deserves punishment for that offence.  Manslaughter though requires either gross negligence or that the Defendant committed an offence that was dangerous and caused death.  Dangerous has been taken, at least in a road traffic context, restrictively.  For example motorists whose speeding or failure to give way causes a fatal collision are far more likely to face charges of causing death by careless driving than they are manslaughter charges.  The risk Alliston presented to a pedestrian stepping out in front of him was no greater than that presented by a car doing 20 mph and his braking distance remained half that of a fully equipped road bike in the wet.  Presumably nobody suggests it is dangerous to ride in wet conditions.    Alliston’s dreadful post collision comments reveal that he was far too reliant upon other road users doing the right thing and that he should have been prepared to react to pedestrians moving in any direction.  Nonetheless the evidence gives rise to a significant possibility that he was reacting as best he could ‘in the agony of the moment’ in circumstances where charges would be unlikely against a motorist.

The charge of ‘wanton or furious’ driving is also puzzling.  Although the archaic 1861 wording could encompass more, it generally relates to speed.  Reports of the prosecution’s closing speech reveal this case to be no exception with reference to a ‘machine built for speed’ (apparently said without irony given what else is on our streets).  This may have been glossed with the rather circular argument that the speed was too high for a bicycle with no front brake.  On any objective view, 18mph is a cautious speed and on a busy London Street matching the speed of other traffic, rather than going much slower, is a wise precaution.  Any suggestion that it is too fast applies a peculiar double standard and would potentially criminalise many riders.   Alliston was cross examined about his lack of a safety helmet and his penchant for certain stunt riders which were said to demonstrate some unacceptable risk taking attitude.  However, notwithstanding the proliferation of CCTV throughout London, the prosecution had found not a jot of evidence that Alliston’s riding resembled that in an ‘alley cat’ movie.  None of this has any bearing, beyond the purely prejudicial, to a young man travelling at 18 mph down a busy London road.    Some press reports were full of language (‘ploughed into’ etc.) that is seldom seen when a car driver (or as was being dealt with in a nearby Court, a speeding motorcycle rider) runs down a pedestrian.  Alliston may not have revealed himself to be a very attractive character and no one can fail to feel anguish about the terrible waste of yet another life.  However there is a lot about the bringing of charges at this level, and the conviction for furious or wanton cycling to cause substantial disquiet notwithstanding Alliston’s acquittal on the manslaughter charge.  If it is going to make any meaningful contribution to the reduction of danger on the roads, our criminal justice system needs to recalibrate away from the prejudice that motoring is innocuous and cycling dangerous and towards controlling the behaviour of those imposing greatest risk.

Legal Update Spring 2017

Contributory Negligence (1) undertaking a left turning vehicle

In McGeer v Macintosh (2017) the Court of Appeal had to consider the sadly common event of a left turning HGV colliding with a cyclist to the nearside on a city street (in this case Ellesmere Port).  The HGV had been at a set of traffic lights, indicating left, ahead of the Claimant on her bicycle.  Because of the length of his vehicle he straddled both a left/straight lane and a lane marked for turning right.  Immediately behind him was a car that obscured his rear left turn indicator.  He claimed to have looked in his left mirror before moving off when the light changed green in his favour.  The Claimant on her bicycle, travelling at no more than 16.5 mph undertook the car and then the lorry.  As she undertook the lorry its driver turned left and the collision occurred.

There was debate about whether the Claimant should have been visible in the driver’s mirror before he moved off.  There was certainty that she would have been visible after he moved off but immediately before he turned.  The Defendant disputed that he was liable at all but this was rejected.  He should have been aware of the potential for an undertaking cyclist and that his indicator may have been obscured by a following vehicle.  He should have checked his mirror before moving off and again before turning.  He was liable.

The Claimant though contributed to the collision.  She should not have made any assumption about the intended direction of the lorry.  The trial judge assessed her contribution at 30%.  The Defendant challenged this saying that the greater speed of the bicycle compared to the HGV made her responsibility the greater.   The Court of Appeal, in agreement with the trial Judge, had no difficulty rejecting this:

“I consider that whilst the judge had found that both parties were at fault in the respects identified by the judge, it was appropriate for him to take into account the causative potency of the HGV, given the likelihood of very serious injury to a cyclist in the event of a collision. Although Mr Herbert sought to discount this on the basis of the low speed of the HGV, I consider that the judge was entitled to find that it was potentially a very dangerous machine. Its size and bulk were such that in the event of collision it constituted a very serious danger to a person in the position of the claimant.”

The Court opined that this case raises no issue of law, precedent or other matters of general significance and that the result is of significance only to the parties.  However cases on the actual apportionment of liability where a cyclist has undertaken a left turning vehicle are thin on the ground and Defendants’ insurers will often seek a 50% or so reduction in such cases.  This decision reaffirms that the degree of hazard presented by the vehicle (great in the case of an HGV, very modest in the case of a bicycle) are very important factors when apportioning liability.

Contributory Negligence (2) Time trialling and failing to avoid an emergency created by another

In Rickson v Bhakar (2017) the High Court made a finding of contributory negligence of 20% against a claimant who was taking part in a time trial on the A27 dual carriageway.  The defendant driver had been travelling in the opposite direction and turned right through a gap in the central reservation into the Claimant’s path.  Although the claimant had swerved immediately before the collision it was found that he could have braked earlier.  As a consequence of his injuries the claimant was not in a position to explain what had occurred.  It was inferred that he either had his head down or was too focussed on his performance.  A tough lesson that even in the heat of competition a cyclist must be alert and ready to respond to the carelessness of other road users.

Potholes

Potholes are of particular concern to cyclists.  The divergence of judicial opinion over the extent of a Highway Authority’s duty to maintain the roads is illustrated by the Court of Appeal decision in the case of Crawley v Barnsley MPC (2017).  This case involved a jogger at the weekend.  The majority of the Court of Appeal found that a Highway Authority should have in place a workable system for dealing with dangerous defects reported to them over the weekend.

Of interest more specifically to cyclists is a Surrey Coroner’s decision to make a ‘Prevention of Future Deaths’ report directing highway authorities to have specific regard to the dangers presented to cyclists by hazards anywhere in the road, and not just on cycle lanes/paths.  I will comment further once the PFD is published.

The discount rate

A significant development on the quantum of serious personal injury cases, including those affecting cyclists, is the Lord Chancellor's determination that the ‘discount’ rate whereby damages for future loss are adjusted due to receipt in advance of expenditure, be reduced from 2.5% to -0.75%.  The rate has been 2.5% since it was first set by the then Lord Chancellor in 2001.  Prior to 2001 the discount rate had been a matter for the Courts and when I started practice was as high as 4.5%.  The effect of the change is that damages for future loss sustained some years ahead (for example compensation for care needs required in the future) will be much greater.  To some extent this may be balanced by the fact that compensation for having to sink additional capital into housing to meet the needs of a disabled person are likely to be reduced or even, arguably, eliminated.

The insurance industry has been scathing about the change.  However if they had been paying attention to what has been happening in jurisdictions which apply English law, but where the Courts continue to set the discount rate, they will have noticed that negative rates have long been a feature.  The leading case was from Guernsey and just one year ago a client of mine benefitted from the Court of Appeal in Bermuda adopting the same approach.

A negative discount rate may appear counterintuitive.  It arises because the costs of, for example personal care, will increase with wage inflation.  In contrast investment in the most secure available investments, such as index linked gilts, will increase at a rate lower than wage inflation.  It is harsh to require a severely disabled claimant to take a market risk by investing in equities since she may end up investing at a peak and will have no alternative source of income from which to take advantage of any troughs.  Nor will she be able to defer realising investments to cover the wages of her carers.

Tantalisingly though the Lord Chancellor has indicated that the whole basis of her power to set the discount rate in the Damages Act will be the subject of further review.

Finally no discussion of the discount rate would be complete without mentioning the alternative, long favoured by the National Health Service, but also now more attractive to motor insurers, of providing for future needs by regular periodical payments indexed to a suitable measure of inflation.