Wednesday 30 August 2017

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 18th 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  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.

1 comment:

  1. Dear Mr Porter,

    Could I invite you to comment to the DfT, about the upcoming "cycling safety review"?

    From: :

    PJ McNally [592 posts] 16 hours ago 1 like
    The Cycling Silk offers the lawyer's view of this one, and is the clearest explanation I've found of the status quo, and the arguments for and against the legal changes suggested in this proposal ("The first phase will look at whether a new offence equivalent to causing death by careless or dangerous driving should be introduced for cyclists") : (link is external)

    I hope he can be invited to comment as part of the review process - in fact perhaps he could submit his article, or even offer his expert opinion to the review? (I'm assuming, as Chris Boardman rightly suggests, there will be an evidence based approach).