Monday 22 October 2012

What's the difference between a footballer and a cyclist?

Knock a footballer over in a vicious unprovoked attack and you get 16 weeks in jail.  Knock a cyclist over in a vicious and unprovoked attack and get a police caution and the sympathies of a civil court that will bend over backwards to help you avoid bankruptcy or the seizure of your assets.
One consistent theme of the justice system is that if the victim is a cyclist the kid gloves go on.

Tuesday 9 October 2012

Cycling on Dual Carriageways - An Open Letter to The Times

I wrote to the Times yesterday in response to the letter from HHJ Tonking that they printed last week about banning cyclists from dual carriageways where the speed limit is more than 30, or possibly 40, mph.  There is no sign that The Times is interested in printing my response.  They used to print stuff from me but that is before I morphed from a lawyer to a cycling-nut.


In recent times cycling in this country has enjoyed massive highs with a summer of almost incredible sporting success but also tragic lows when individual cyclists (like Rob Jefferies of British Cycling and Mary Bowers of The Times) have been killed or have sustained quite devastating injury.  Like The Times’s campaign to make our cities fit for cycling, British Cycling’s campaign for justice for the victims of traffic collisions is soon to be debated at Westminster.  How telling that His Honour Judge Tonking’s (letters 03.10.12) response is a call to ban cyclists from many of Britain’s roads.  Cyclists historically were huge supporters of the construction of motorways, hoping that this would civilise the non-motorway network.  Many roads that by-pass existing provision (Baldock by-pass, Hindhead tunnel, Hammersmith Flyover to name but a few that spring to mind) are not open to cyclists.  Mr Tonking’s suggested blanket ban would cover many roads that form a cyclist’s most convenient direct and fast route from where she is to where she wishes to be.
Mr Tonking sits in the Crown Court and therefore deals with the most serious cases.  Sitting at the pinnacle of the state’s post collision response, he has the power conferred by Parliament to ban the worst drivers from our roads for substantial, even life-long, periods.  His language of ‘accidents’ and of ‘a moment’s inattention’ and his focus on cyclists using ‘dangerous trunk roads’ and to high visibility clothing typifies the exculpation of those responsible for, and the blaming of the victims of, bad driving.  It is a demonstration of how deeply the car culture is ingrained in our criminal justice system.
Cycling is both a leisure activity and a viable and responsible means of transport.  Cyclists will be attracted to roads that enable them to cover distance swiftly and efficiently without numerous stops and junctions.  Dual carriageways make passing slower vehicles easier and have sight lines which render  talk of momentary inattention, at any legal speed, wholly inappropriate.  By all means make better provision for cyclists so that they can reach their destination at the same speed on better infrastructure but let us not stifle cycling by withdrawing the existing facilities.
Happily Mr Tonking does not have the power to make the law.  He does though have the duty to enforce it and this is where his contribution to the safety of cyclists on our roads should lie.
Yours faithfully,
Martin Porter QC

Monday 1 October 2012

Legal Update - R v Fields

The Evening Gazette of Teeside reports that last week John Fields was 'spared jail' at Teesside Crown Court where he was sentenced for causing the death of Andrew Hutton by careless driving.  Mr Hutton had been riding his bicycle westbound along the A174 dual carriageway road, near Eston in Teeside.  Mr Fields was not only spared jail but also spared any driving ban beyond the one year minimum that Parliament has mandated for this offence.

The circumstances of the offence seem to demonstrate a very high degree of carelessness on the part of Mr Fields.  Andrew Hutton was there in front of Mr Fields' van for at least 11 seconds (if you do not think that is a long time count it out loud).  Instead of seeing and avoiding Mr Hutton, Mr Fields drove his van over the rumble strip at the side of the road before striking him at 60mph.  His best explanation was reported to be 'He just came out of nowhere..I just heard a loud bang'.  I do not know precisely where the collision occurred but this Googleearth picture of the A174 westbound serves to give a general impression of the layout.

Invariably when I am subjected to a close pass on this type of road the miscreant has seen me only too well and implies that I should not be on the road at all.  In short, they do not respond to my presence because they do not care sufficiently.  Perhaps it is possible to care so little that you just do not see.  Other explanations would be a matter of speculation which of course the prosecution would seldom, if ever, be able to prove against the driver who says he did not see.  This all points towards the need for some deterrence if the safety of cyclists is to be improved.  Prevention is also furthered by removing the very worst, least attentive drivers from the roads for a long time.

I have previously expressed my support for British Cycling's call for a review of sentencing guidelines.  These guidelines have very little to say about the appropriate period of disqualification saying only that the minimum should be one year or the period of custody (whichever is greater).

I am equipped only with the facts reported in the newspapers but on those facts it is very difficult to see why this driving was any less culpable than that of Katie Hart who was convicted of causing death by dangerous driving and sentenced to prison.  Why the CPS chose not to pursue a case of dangerous driving against Field is not clear from the reports.  How the standard of driving could be thought to be anything other than 'not far short of dangerous driving' (the top tier in the guidelines) puzzles me.  Certainly it was not momentary inattention (the bottom tier) but seems to have been regarded as middle tier (none of the above).  Mr Fields appears to have been very fortunate in the prosecuting decision and in the application of the existing guidelines.

The personal mitigation (ie relating to the offender rather than the offence) seems to have been powerful and swayed the Judge against the custodial sentence that the Guidelines rather suggest.

This is not unusual, after 9 months, my analysis of careless driving cases is starting to demonstrate how rare immediate custodial sentences are for motorists who kill cyclists.  Many cyclists would not take issue so much with the leniency over prison (though I rather incline to the view that some serious deterrence is required for the small minority of motorists who most endanger us).  However, if there is to be such leniency, it is a pity it is not accompanied by the simple expedient of withdrawing licences for substantial periods from drivers who have demonstrated themselves to be hopelessly incompetent.

Invariably Parliament leads and police, CPS, sentencing councils and courts struggle to keep up.  Perhaps it is time now for Parliament to mandate a minimum driving ban for causing death by careless driving of 5 years and for causing death by dangerous driving of 10 years.  Enforcement of driving bans would need to be improved but with modern technology this should be possible and could even be self financing if every car driven by a banned driver was seised and auctioned.  Some radical action is required to remove the least safe drivers from our roads.

As a footnote this is not an easy type of road to negotiate.  Sadly there is no safety in riding at the edge of the carriageway even if there is a rumble strip to protect you (for the same reason that you should always get out of a car that is broken down on a hard shoulder).  I would ride well out into the nearside lane, around 1.5m right of the rumble strip.  Not for everyone I appreciate but at least your presence is very likely to be noted and you have some room to move into to your nearside.  This is the sort of road where high quality segregated infrastructure for cyclists is badly needed.  See if you can spot the inadequacies of the provision alongside the eastbound carriageway of the same A174.