Cameron's Cycling Revolution - Why I am not waiting for it and why I am getting fed up

The Times campaign spearheaded by Kaya Burgess to make our Cities Fit for Cycling thankfully goes on and pulls the Government up for failing to invest more than a tiny proportion of the money required to turn cycling from a niche to a mass-participation activity.

We are currently in a vicious spiral of hopelessness.  A significant proportion of the general population believes that only the brave, the foolhardy and the weird cycle and that nothing should be done to encourage the activity.  Has-been celebrities come out of retirement to rail against the Mayor of London's vision for cycling and specifically his segregated cycle lanes (the first to be built anywhere in this country in modern times that are of sufficient quality to be worthwhile).  

Even worse, though, than this active hostility is the casual acceptance of cycling as appropriate only for the brave few.  The Metropolitan Police Commissioner, ultimately responsible for law enforcement on London's roads simply states as an acceptable fact that cycling in London is too dangerous for him (and by implication for anyone else with any sense of self-preservation).  My fellow school governors meet all efforts to increase cycling and walking to school with protestations of how dangerous (certainly the cycling) is and whether we should require pupils not in cars to wear fluorescent vests, armbands or backpacks.  My local authority councillors would rather encourage sponsorship whereby high-viz is given to children than reconsider the 40 mph limits on narrow roads where many walk (and a hardy few cycle) to school and where one pedestrian child was run down trying to cross the road this winter.

All this chimes with the tabloids (deriving some support from otherwise distinguished criminal lawyers) questioning the expenditure of maybe five to ten thousand pounds (greatly increased by Defence tactics) of public money on the reasonable and necessary costs of bringing a driver to Court in circumstances where there was really quite incontrovertible expert evidence that he passed a cyclist (happened to be me but could have been anyone) with 60-80 cms clearance (excluding wing mirrors) at 51 to 57 mph in a 30mph narrow suburban road.  What type of person is going to be willing to cycle in those conditions?  Whilst widespread casual indifference to this kind of behaviour persists, cycling will remain for the hardy few (perhaps with a few more who are fortunate enough to have their whole journey on a CSH).

This casual assumption that cycling is dangerous extends to totally misdirected law enforcement.  The Times (this time behind a pay wall) reported earlier this year the greatly increased law enforcement directed at cyclists  with the police presumably assuming that it is cyclists that are the problem.  Every piece of independent research that has gone into this indicates that they are not.  Even red-light jumping by cyclists is not in any objective sense dangerous as I tried to explain in this article  I would not mind this enforcement of the law against the essentially harmless if there were resources to spare after dealing effectively with the very harmful.  However there clearly are not.

Finally thank heaven for the irreplaceable Chris Boardman who understands that cycling must be opened up for everybody and the only way to do it is to spend public money.  Not many professional cyclists have his inclusive sense of vision.

Lessons from a Private Prosecution (1) The Criminal Justice System

I have learnt much from my private prosecution of a motorist whom I accused of dangerous driving but who was acquitted of that charge by a jury at Isleworth Crown Court on 9th March.  I will endeavor to share what I have learnt in case it is of benefit to others.

I could write a book on it but nobody would read it.  To avoid a very long blog I intend to cover aspects of the case in a series of posts.  I start with some general reflections on the criminal justice system.

The first priority of the English criminal justice process is to safeguard the rights of the accused.  This has to be correct.  It has long been said that the conviction of an innocent is many orders of magnitude worse than the acquittal of the guilty and the burden and standard of proof required of a prosecutor is commensurately very high.  It follows that a prosecutor cannot complain of unfairness.  The prosecution must reveal everything at an early stage.  A Defendant may hold his cards very close to his chest and may choose what he wishes to reveal and when.  The prosecution must prove a case so that the trier of fact is sure of guilt.  A Defendant need prove nothing.

It follows of course that an acquittal proves nothing.  An acquitted Defendant has not been 'proved innocent' and nor has a prosecutor who does not secure a conviction been proved wrong.

I am used to civil proceedings (claims for damages) where it is a stated and important objective that the parties are on an equal footing and the tribunal will determine disputed questions of fact on the balance of probabilities.  It is all very different in the criminal courts and we do not punish people because they are probably guilty.

As an adherent to the rule of law I have already indicated that I respect the jury verdict.  Nothing I say in this series of posts should be taken to detract from that.  Obviously, though, I cannot be expected to agree with it.  I remain fortunate that I was not injured.  Many many worse things could have happened to me (and indeed have happened to me) than failing to secure a conviction in this case and my disappointment is not of course remotely comparable to the angst experienced by those who have sustained serious injury or the death of loved ones as a consequence of criminally bad driving.

I therefore have no regrets.  I will consider whether there is anything I might have done differently in following posts.  However my general viewpoint is that there was sufficient evidence to place before a jury and that the public interest demands that something be done about the minority of drivers who terrorise cyclists or would be cyclists off the road.  It would have been far preferable had the Metropolitan Police chosen to take the issue more seriously but, as with all cases of this sort, they did not.  The amount of reliance placed by the Defence on the (strictly speaking inadmissible) police view is something I had not adequately anticipated.  Juries do not give reasons but I agree with other observers at the trial that this was likely to have been a major factor.

I continue to believe that there is a strong case for private prosecutions certainly where the police fail to act.  Failure of action by the CPS is less of an issue since there is an effective right of review which should be used in preference to a private prosecution.  It would make a lot of sense for victims to have an effective right of review by a CPS lawyer of a police decision to take no action but unhappily this is not something that is in place.  I do not mind attracting opprobrium in the columns of tabloid newspapers.  On the contrary even a 'failed' prosecution may have some deterrent effect.  Nobody, however convinced of their own innocence, would wish to be dragged through a 3 day Crown Court trial and driving in such a way that you cannot reasonably be accused of dangerous driving is a good way to avoid this.  One tabloid has speculated about the risk of other cyclists following my example and I hope in suitable cases that they will.  Obviously I would have preferred the greater deterrent effect of a conviction but that does not mean that the process was not worthwhile.

In subsequent posts I plan to consider:
2.  The factual evidence.  What is required?  What type of incident?
3. Was I the right complainant?
4.  Reporting to the police.
5. The difficulties presented by the requirement of a Notice of Intended Prosecution.
6. Starting a prosecution by laying an information before magistrates and deciding with what offences to charge.
7. Initial hearings prior to committal.
8. Committal for trial.
9. Bad character evidence.
10. Dealing with the safeguards that prevent unsuitable prosecutions reaching trial.
11. Expert evidence.
12. Trial.
13. Why I believe it is reasonable even in times of austerity for the state to contribute towards the costs of an unsuccessful but properly brought prosecution.

If I have missed anything out that anyone considers I might cover in addition let me know.

Lessons from Private Prosecution

The past thirteen months have provided a learning experience for me.  this acquired value is of limited use to me as I cannot foresee circumstnaces in which I

Private prosecution results in acquittal

At about 1855 on 12^th February 2015 Mr Aslan Kayardi who is, or was, a qualified driving instructor overtook me in his Audi R8 sports car on the A315 between Feltham and Staines.  I alleged against him that he drove dangerously and supported that allegation with evidence from an experienced collision investigator, Mr Paul Croft.  I thank him for the careful balanced and conspicuously fair way that he presented his evidence which to my mind was highly compelling.

I respect the rule of law and entirely accept that some of the material that I had hoped may go before a jury could not do so for legal reasons.  I also have to accept the verdict of the jury that Mr Kayardi’s driving has not been proved to fall far below the standard of a competent and careful driver.  Every Defendant is entitled to the benefit of any doubt and my assessment of his driving has to bow to that of the jury.

Aside from this case, I am a total stranger to the criminal courts.  What is clear to me is that a somewhat creaking in places criminal justice system is held together by the professionalism, dedication and skill of the criminal bar.  The prosecution was most ably and persuasively conducted by Mr Ellis Sareen and Ms Emily Albou.  Equally Mr Kayardi had the good fortune to have his Defence conducted successively by   Ms Abigail Bright and Mr Jake Taylor who quite properly worked hard and effectively to secure what was the right result for their client.  I am grateful to all four and appreciate more than ever how important it is to a fair and just society that we continue properly to value their work.

An acquittal does not imply that a prosecution was not properly brought, although there are of course a number of lessons which I shall endeavour to draw from this experience and which I hope may also benefit others.

I have been asked for my video but am hesitant to put it into the public domain.  There is clearly a risk that it will be held up as driving that has been found to be perfectly acceptable.

I am extremely grateful to the CTC and Roadpeace for their considerable moral support and to the Cyclists’ Defence Fund for both moral and financial support.  It is more than ever important that the Cyclists’ Defence Fund has the resources to continue to fight for justice for cyclists.  I will continue to do what I can to support those efforts.

Note accompanying my bad driving reports

Given the nature of some of the responses I get to my reports of bad driving I have prepared the following note to go with all future submissions which I hope will be heeded by the police and CPS who determine what action to take.

As requested a pdf link is here https://drive.google.com/file/d/0Bzho2RYpC3VuZ1BST2llVmFTRTQ/view?usp=sharing

Note on riding style and position

Primary and secondary riding positions

My default riding position is ‘primary’ which is the middle of the lane that is the nearest lane to the nearside which is suitable for my direction of travel.  However I will ride further to the left in the ‘secondary’ position in order to assist following traffic if, but only if, my own safety is not thereby impaired.  The secondary position is just to the left of the nearside wheels of the flow of four wheeled traffic.  I avoid riding ‘in the gutter’ i.e. within 0.5 metre of the edge of the road.

This riding is in accordance with my training to national bikeability standards which are approved by the Department of Transport.  Details can be found in ‘Cyclecraft’ by John Franklin (the officially approved guide to cycling in accordance with national training standards.  The concept is also explained in this DfT film sent out to all driving instructors

https://www.youtube.com/watch?v=lJHXzt7TC2k&feature=youtu.be

Overtaking queues

When encountering a queue of traffic ahead I will use my judgment as to whether to wait in the queue (in primary position) or to overtake the queue (usually on the offside if there is room).  This too is in accordance with my training and the national standards.

Using cycling specific infrastructure

I will use cycling specific infrastructure if it has an advantage in terms of safety or convenience over the main lanes.

The National Standard states this:

“In the UK no cycle facilities are compulsory for cyclists to use. Therefore the choice over whether to use any facilities provided should be on the basis of whether or not they will give the cyclist any advantage in terms of safety and/or access. This will be for the individual cyclist to decide. Staying in the normal flow of traffic rather than use a cycle facility is therefore a valid choice.”

This is also reflected in the Highway Code:

"Rule 61

Cycle Routes and Other Facilities. Use cycle routes, advanced stop lines, cycle boxes and toucan crossings unless at the time it is unsafe to do so. Use of these facilities is not compulsory and will depend on your experience and skills, but they can make your journey safer."

Motorists overtaking cyclists

The guidance in the Highway Code is clear:

"Rule 163

Overtake only when it is safe and legal to do so. You should…

·         give motorcyclists, cyclists and horse riders at least as much room as you would when overtaking a car (see Rules 211 to 215).

Remember: Mirrors – Signal – Manoeuvre

Rule 163: Give vulnerable road users at least as much space as you would a car"

Any ambiguity in ‘as much space as you would give a car’ is resolved by the clear illustration accompanying rule 163.

The DfT’s Transport Note LTN 2/08 has a section at 2.5 dealing with overtaking of cyclists by motor vehicles:

“2.5 Overtaking by motor vehicles

2.5.1 Cyclists often feel uncomfortable when cars overtake, particularly if they do so at high speed. Research from the Netherlands (CROW, 2003) shows that motorists driving at 20 mph will often pass cyclists leaving a clearance of only 0.85 metres. This distance increases to around 1.05 metres when passing at 30 mph.

2.5.2 These clearances are not necessarily sufficient for comfort and have been increased to establish the minimum suggested passing distances in Table 2.2. Even these clearances will be uncomfortable for some cyclists and should be exceeded where possible.

2.5.3 Table 2.3 sets out ideal minimum total widths (not necessarily lane widths) required for vehicles overtaking cyclists.”

The ‘dynamic envelope’ referred to in the above table is 1 metre wide:

Obviously the minimum passing distance increases further with increased speed   If the speed is well above 30 mph then the passing distance should be well over 1.5 metres outside the dynamic envelope.

It follows that unless the lane is exceptionally wide the motorist cannot safely pass within the same lane and should be using the adjacent lane (if clear) or wait behind for a better overtaking opportunity.  The correct decision is encouraged by the cyclist ‘taking the lane’ in primary position.

Oral Evidence of Police to Transport Select Committee

The first oral evidence session for the Transport Select Committee's Inquiry into Road Traffic Law Enforcement was on Monday 2nd November.  I tuned in with anticipation as I am very much in favour of Law Enforcement action particularly against those who endanger cyclists.  The Inquiry's terms of reference include the impact of road traffic law enforcement on the safety of cyclists and pedestrians.  As indicated in my previous post the Committee has received some powerful written evidence from those who feel that when they cycle they are entirely unprotected by the law.

Two police officers, an Inspector and a Superintendent, nobly traveled up from the Midlands and the West Country to assist.  Whether the Metropolitan Police or the ACPO lead for traffic policing were invited or will be attending on a later date, I do not know.  It would be good to know that someone of Commissioner or Chief Constable rank who has some responsibility for allocating resources and setting policy takes the subject matter of this Inquiry seriously.  After all there are those, like me, who assert that the police are on occasion letting down cyclists in a serious way with their lack of law enforcement against those who endanger, threaten, harm or even kill cyclists on our roads.

What particularly animated the Committee members appeared to be parking and especially the length of time roads were closed following a collision.  No doubt important topics but arguably peripheral to the terms of reference which were particularly upon enforcing the law against dangerous and careless drivers (a subject which I believe merits undiluted scrutiny).

The Chair though did bring the discussion around to cyclists in the closing minutes of the police evidence.  the evidence went as follows and I have annotated my thoughts thus:

Q39   Chair: I want to ask you about cyclists on the road. Cyclists feel that their safety is not considered sufficiently. What do you do if you think that a motorist is acting in a way that endangers a cyclist? What actions are taken?
Superintendent Keasey: They are subject to the law.
I think he means motorists that endanger cyclists are subject to the law rather than cyclists are subject to the law but both are true and neither quite answers the question.

Q40   Chair: They are subject to the law, but is the law used? Spot on!
Superintendent Keasey: Yes, where we have the evidence and where it is corroborated. The difficulty is often that it is one person’s word against another’s, just like it would be for one person driving a car against someone driving another car. There is no different standard in the way we approach it and whether we prosecute or not.
Most criminal trials will involve a Court determining whose word is credible and whose is not.  A conflict of evidence is not of itself sufficient reason to take no action.  This is what was said about bringing prosecutions for sexual offences 20 years ago but nobody in that field would suggest this today.  Some accounts are inherently credible some denials are inherently incredible.  There is no formal requirement for corroboration and this is too easy a basis to dismiss virtually all complaints of bad driving.
There should be a very different standard depending upon whether the suspect has (nearly) hit a person on a bicycle or whether that suspect has (nearly) hit a Chieftain Tank.  It is a serious aggravating feature of a bad driving offence that the suspect has endangered a vulnerable road user and the police ought to recognise that and act accordingly.  


Q41   Chair: Cyclists feel that there is not enough concern about their safety. Are you disputing that?
Superintendent Keasey: No; there is concern. If you look at cyclists and pedestrians, they are probably more likely at the moment due to their numbers to be subject to serious injury. They are quite rightly allowed to use the road, and they should be, but it is the education of drivers. If you look abroad to Holland they are very used to it. They are often cyclists and motorists so they are much more aware of the gap you need to give space between a cyclist and a car on a left-hand turn.
If there is concern what then is to be done about it ?  Rates of injury are probably not as bad as the Superintendent suggests and are in any event not the point of the question.  Perhaps we should be grateful for the expression of view that we should be allowed to use the road but (whatever prescience there might have been of a notorious forthcoming Metro article) nobody in mainstream politics thinks otherwise and it is slightly worrying that a police officer feels the need to state it.  Having ruled out banning cyclists from the roads the answer then is not prosecution but 'education of drivers'.  Education along the lines of Carlton Reid and Chris Boardman's how to overtake a cyclist film is certainly to be lauded.  However this Inquiry is about enforcement and leaving it to cyclists to educate drivers is not enough.  We have all experienced aggressive deliberately bad driving that would not have occurred in the presence of the police.  The reality is that bad drivers know they can get away with punishment passes, brake testing, tail gating, left hooking, speeding and other deliberate behaviours that endanger cyclists.


Q42   Chair: Inspector Cox, are you concerned about that?
Inspector Cox: From a rural point of view we do not have huge cycle issues. There is a corroboration issue when we get complaints from cyclists, even with cameras potentially. If there is not a corroboration factor it becomes one word against another, so the chance of prosecution is very slim. Certainly if it is detected or witnessed by a police officer, action is always taken, but it is a challenge. Although I represent a rural area, we have Bristol and Swindon in there, some fairly big urban areas, and we do not have an issue with our cyclists getting killed. Perhaps our drivers are more aware because they drive in a rural area a lot of the time, where they have to be a little bit more aware. In places like London, clearly there is a lot more pedestrian and cycle traffic meeting vehicular traffic. We do not get that quite so much in rural areas.
The answer then is 'no' he is not concerned about that at all.  A pity as cyclists are being killed and injured in his area and tragically one young man died cycling in his patch the very next day.  He added to what the Superintendent said about corroboration by saying that lack of corroboration was an issue even with evidence from cameras.  This is quite incomprehensible and proves the point that the police are exhibiting inappropriate reluctance to prosecute offenders even where there is clear evidence.
Apparently the behavior has to be 'detected or witnessed' by a police officer in which event problems with corroboration simply melt away and action is always taken.  I would welcome specific evidence of cases where such action has been taken.    I have never come across such a case and suspect they are very rare.

Evidence to the Commons Transport Select Committee on Road Traffic Law Enforcement

My evidence to the Committee can now be read here

I need to add that Surrey Police read my evidence and have dissociated themselves from, and apologised for, many of the points made to me in the letter of 14.09.15 cited in my evidence.  I am happy to acknowledge this, though the fact of course remains that a police employee who has been making decisions on prosecutions held those misguided beliefs.  There is clearly a systemic problem as well as having a few rogue decision makers.

Some (not all!) of the other evidence is well worth reading and I particularly commend the evidence of Mary Manning here.  This is compelling and accords entirely with my own experiences, and that of many others, and needs to be addressed by the police.

At the moment we have only platitudes and stuff like Policing the Roads in Partnership signed off by a senior police officer who would not commute in London due to the risks on the roads presented by risky motoring behaviour.  That was, of course, uncovered in Anna Tatton Brown's excellent film about the investigation into the death of her father, Michael Mason, which can be viewed here and which I hope the transport committee will see.