Legal Review of the Month - February 2010

Inquests have been held since at least Norman times into sudden or violent deaths in England. The inquest represents the remaining vestige of the medieval code of kingship whereby the Crown protected his subjects in exchange for their fealty. There is a vital public interest in encouraging cycling and there is no more important role for an inquest than investigating thoroughly the circumstances in which someone who has taken up this public encouragement meets a violent death.

It is true that the families of killed cyclists may pursue a responsible party in the Civil Courts. However liability is likely to be admitted and there is unlikely to be any investigation into the circumstances of the 'accident'. Before the days of the car culture, Charles Dickens in A Tale of Two Cities described the actions of the aristocrat who tossed the gold coins to the family of the child his coach had run down and killed as epitomising the immorality and corruption of the ancien regime. Today his actions would be lauded as providing the promptest possible admission of liability and generous offer of compensation. Often the prompt admission of liability and payment of compensation is not enough.

Though we are all equal before the law, it would perhaps be asking too much to expect that every inquest be as detailed as that which occurred into the relatively straightforward circumstances of a Princess who was driven by a drunk driver at high speed through a city centre without fastening her seatbelt. Nonetheless every inquest into a cyclist's death requires thorough examination. It is a pity that legal aid is (generally) not available to the bereaved families. However in a rather encouraging decision on the assessment of costs, it has been determined that part of the costs of an inquest, may be recoverable in a subsequent civil claim. It is to be hoped that many lawyers would be prepared to help families in the hope that some part of the cost may be recovered subsequently - I for one would. It would also be a useful step if cycling organisations facilitated legal representation by including it as a standard insurance benefit (as it is for motorists whose conduct comes under scrutiny at an inquest).

In February I met some of the family of Eilidh Cairns who tragically died under the front wheel of an HGV a year ago in Notting Hill Gate. The inquest, which recorded a verdict of accidental death, was clearly not as detailed as the family would have liked and may be thought to be entitled to expect. A narrative verdict is available to Coroners and there is a case for believing it should be used in this type of case. I say no more as proceedings arising from this tragedy have clearly yet to conclude.

Scotland does not have the same history of inquests but instead Fatal Accident Inquiries may be used to perform a similar function. Such an FAI has just opened into the death of Jason MacIntyre and there is hope that, at least on this occasion, a thorough investigation will take place.

The Crown Prosecution Service's determination to enforce the law against those, on the face of it, responsible for the death of cyclists remains patchy as Eilidh Cairns's case illustrates. It is interesting that they appear to have a policy of leaving it to the jury to determine whether excessive force has been used against a dead burglar, yet being often reluctant to leave the question whether adequate care has been taken by a motorist around a dead cyclist. One might have supposed that the public policy in encouraging and protecting cyclists was greater than that of encouraging and protecting burglars.

However one highlight of February has to be the successful prosecution of Katie Hart arising from the death of Major Gareth Rhys-Evans. I have already applauded the CPS for not accepting a lesser plea. I was not at the trial so do not know how hard Ms Hart was pressed on her explanation that she did not see either of the two time trialists before the collision. The explanation was accepted for the purposes of sentence. A prison term was inevitable and the driving ban of two years was the minimum permissible under the legislation.  The Judge was constrained by sentencing guidelines which in part read 'a ban which will extend for a substantial period after release is likely to be counterproductive if it is imposed on an offender who ... requires a driving licence to earn his or her living, because it may tempt the offender to drive while disqualified.'