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.

The Government’s Proposals on Sentencing Bad Drivers. Plenty of Retribution but No Deterrence

On 4^th December, in time for the Sunday papers, the Government issued a press release entitled ‘Killer Drivers to Face Life Sentences’.  The text below that headline proclaims that ‘Government acts to introduce life sentences for causing death by dangerous driving’.  In fact the Consultation Paper issued by the Ministry of Justice on the same day invites views on proposals which include increasing the current maximum sentence of 14 years imprisonment for causing death by dangerous driving to a maximum of life imprisonment.  It seeks views on the same increase in the maximum sentence in relation to causing death by careless driving whilst under the influence of drink or drugs.  The latter offence incidentally surely already amounts to causing death by dangerous driving but is designed to circumvent a typical jury’s peculiar reluctance, in this area, to convict.

The somewhat hyperbolic press release presumably looks ahead to the Government acting once it gets the answers it expects to its consultation exercise relating to life imprisonment for these very worst offenders.  The proposals have been welcomed by many victims’ groups who have been understandably dismayed at the operation of the criminal justice system in the worst cases.  This is though all about retribution.  Retribution is not a bad concept in itself and to the extent that the proposals go some way to lessen the anger and frustration understandably experienced by many bereaved families they are to be welcomed. 

However, nobody is going to wake up the morning after these proposed changes are implemented and resolve that they will drive better because the maximum term of imprisonment is no longer limited to 14 years.  These proposals will do nothing to reduce levels of road danger imposed by bad drivers upon others and particularly upon vulnerable road users. They are an easy fix for a Government which wishes to appear tough without doing anything to stop bad driving in its tracks before it causes tragedy.  Any solace that they may provide for bereaved families are bound to be in large part offset by the constraints upon Judges which mean that sentences of life imprisonment are never in practice going to be handed out to those who kill unintentionally.   The best that can be said is that this will align the penalties with manslaughter (which of course causing death by dangerous driving already is, though the separate offence was required because juries cannot be relied upon to convict of manslaughter even in cases where the evidence of dangerous driving leading to death is very strong).  Judges are likely to be constrained to pass sentences that will appear soft compared to the maximum penalty and further angst may arise from that.

One welcome proposal is the creation of a new offence of causing serious injury through careless driving.  That this new offence is required is demonstrated by the tragic case of Mary Bowers, the journalist who suffered catastrophic brain injuries but lived following being run down by an HGV.  The driver was acquitted of causing serious injury by dangerous driving.  Instead he was convicted of careless driving, a minor offence with no draconian sentencing option.  Having an alternative option of causing serious injury by careless driving will fill a gap and enable a Judge where the standard of driving has been close to dangerous to sentence appropriately.  However the proposed 2 or 3 year maximum penalty is one I would argue against.  This should be a summary offence with a maximum imprisonment of 6 months.  It would then only get to a jury when associated with a charge of dangerous driving.  Were it a more serious triable either way offence then large quantities of cases currently tried in the Magistrates’ Courts would be sent, at the election of the Defendant, to a Crown Court with a hope of attracting the empathy of a jury.  Some police forces and CPS regions have a policy of only prosecuting careless driving where there has been injury so the scale of this proposed change should not be underestimated.  In the interests of deterrence I suggest that we should be willing to sacrifice an element of retribution.  It is highly doubtful that many, if any, drivers who cause serious injury by careless driving will be imprisoned for terms exceeding 6 months (the power available to Magistrates).  Why then give them the option of a jury trial?  Indeed I have previously argued we should go the opposite way and downgrade dangerous driving which causes no injury to a summary offence so that the culprits are more speedily and reliably dealt with and taken off the roads.

A further proposal is minimum driving bans.  This is clearly required but not only in the worst cases.  We have far too many potentially lethal drivers allowed back onto the roads notwithstanding the existing legislation.  This is scandalous and the Consultation Paper ought to be doing away with ‘special reasons’ and ‘exceptional hardship’ pleas to avoid an otherwise mandatory disqualification.  If you can afford it you can get a specialist lawyer to press all the right buttons to ensure you get to continue to drive.  This is an industry that must be snuffed out on the basis that an offender should have thought about the consequences of losing his licence before committing the offence.

Overall retribution is fine, though the retribution may be more illusory, than real.  However this is a long promised review of driving offences and sentencing more generally.  It is a great pity there is nothing there that might provide real deterrence.  Real deterrence involves increasing the chance of being caught and punished for the poor driving behaviour that is far too widespread before, often as an outcome of pure chance, it causes devastation.

We need a real review of what is being done at the opposite end of the scale.  Increasing penalties for use of mobile devices (a separate Government proposal) is a useful start but a dramatically increased rate of detection and the unavailability of special pleading are essential concomitants.  The Government should find time and resources for real support of the initiatives of the police in the West Midlands and in Camden which focus on poor and intimidatory driving in the vicinity of the most vulnerable.  The Consultation paper observes that the numbers of those killed on the roads has been declining since the 1960s.  It does not include the sad fact that this is not true of vulnerable road users.  Much further positive action is required to address this.

Leigh Day Helli-va Ride

This Thursday evening a group of hardy young lawyers from Leigh Day are going to set out from Hoddesdon in Herts to start a clockwise arc down to Sevenoaks, Kent which will begin the trace of a giant 'H' inside a circle, a heli-pad sign, covering the area that the London Air Ambulance Service serves.

These lawyers are the ones likely to be looking after your financial interests if you are both unlucky enough to be involved in a collision and are a member of British Cycling, so it is nice to know not only that they can cycle but that they are superhuman too.  The ride is just over 300 miles and the team will be riding round the clock aiming to finish in 19 hours.  A remarkable pace given how much of the ride is in congested London.

Not being superhuman - I cannot do 300 miles and I cannot ride through the night and through the following day without being a liability to myself and others - I am planning merely to do the second half.  As dawn breaks on Friday morning I will link up with them just west of Epsom to complete the job.

I am apprehensive about doing half what they are doing.  Even 150 miles is the longest ride I have ever done.   So, as they are doing twice that, they really do deserve support.  So do not sponsor me sponsor them.

Also the cause is a hugely admirable one.  The London Ambulance Service relies upon charitable fund raising of this sort.  They will be there for you if you crash in London.  On a personal note I am extremely lucky they were there for me on 4th January 2014 when I came down very hard during the Imperial Winter Series at Hillingdon.

So do please support, the link is here:

http://londonsairambulance.co.uk/events/independent/heli-va-ride

The Criminal Justice System; How it fails us and how it needs reform

Nobody could fail to be deeply moved by hearing, as I did on Radio 4 this morning, the relatives of victims killed by dangerous drivers speaking about how they felt the killers responsible should face charges of manslaughter rather than death by dangerous driving.  The amazing charity, Roadpeace, has been calling for this for years and is now, due to recent events, at last getting somewhere with Prime Minister May indicating at today’s Prime Minister’s Questions that the Department of Justice are to review the laws relating to those who cause death by dangerous driving.

I welcome this of course.  However what appears to me to be at least as important is that the killer of Lee Martin (the cyclist whose brother was on Radio 4) was a serial offender who had been caught on 8 previous occasions texting whilst driving.  On the last such occasion just 6 weeks before he killed Lee Martin, Christopher Gard had pleaded with magistrates that he should be permitted to keep his licence to drive because otherwise he would suffer ‘special hardship’.  It is a sad sad indictment of the way in which the criminal justice system operates in relation to such relatively low level offending that his plea succeeded.

This is the worst manifestation yet of the ‘no harm done’ mentality: he was permitted to continue to drive and therefore to kill.

Gard probably thought he was a safe driver, almost every driver does.  Yes, he texted all the time as he drove but until he ran down Lee Martin no harm done and no really serious consequences to him.  Equally with drivers who close pass cyclists and/or speed excessively (I attempted unsuccessfully once to prosecute one) no harm done so why any fuss?

I heard the piece on Radio 4 just after I had written a piece for the Telegraph about the Jeremy Vine incident.  Jeremy said he reported the matter to the police because the woman involved would one day harm somebody.  He is right.  Behaviour such as that in his video and such as that exhibited by Gard leading to his previous attendances before magistrates needs to be checked BEFORE they kill.  That is why, rightly or wrongly, I expended enormous time and energy in prosecuting a man who passed me at 50-60 mph in a 30 mph zone with a clearance of 0.7 metres.  No harm done on that occasion but what about next time?

Were my life to be cut short by an offender who had transgressed before, my ghost would be haunting the people who failed to act upon the earlier minor transgressions when ‘no harm was done’ rather than those whose decisions led to nine rather than twelve years imprisonment when it was too late to save me.

I place prevention and deterrence well above retribution.  I would prefer the high likelihood of relatively minor punishment (disqualification) over the remote chance of high punishment.  It probably seemed to Gard very unlikely he would kill.  No doubt he had been texting and driving for years without serious comeback.  He would have been more likely to be deterred by meaningful punishment for minor infraction than the remote prospect of serious punishment if he killed.

This is why I believe the review should not just look at throwing the book at the worst offenders but also at making a serious effort to crack down on relatively low level offenders who have not yet killed but whose casual texting, close-passing, speeding etc. increases the risk that they will kill or seriously harm in the future.  We have made some progress in recognising that drink drivers need to be taken off the road even if ‘no harm done’.  Do let us extend this and take away the privilege of driving from those who are likely to harm.  A review of the absurd system of pleading ‘special reasons’ to keep a licence to drive notwithstanding serial offending would be a useful start.  In addition the equally absurd view adopted by many police forces that if there is no injury due to careless or dangerous driving then it is not in the public interest to prosecute must be jettisoned.

Stiffer sentencing for manslaughter / dangerous driving captures the public mood and politicians’ interest but let us not forget that the kid-glove treatment of relatively minor offending left Gard to kill Lee Martin in the first place.

I have not yet had my mind changed on jury trials

My last piece on jury trial in dangerous driving cases has sparked some lively debate.  I have enjoyed some interesting discussion with well-informed people some of whom agree some do not, as of course is their unqualified right.

It is not a piece that has gone down well with all my colleagues practising at the criminal bar.  It is perhaps worth my making the following points by way of response.

We all have a right to a fair trial.  I agree that if we are at risk of going to prison for a long stretch we should all have the right to a jury.  However it is possible to have a fair trial without a jury.  In Scotland (for example) the Defendant has no right to insist on a jury in offences triable either way like dangerous driving.  One possible solution may be to leave the Magistrates with the option of determining mode of trial and selecting summary trial where they are satisfied their powers of punishment are sufficient.  International War Crimes are not tried by juries.  Lack of jury does not equate to lack of justice.

There has been a suggestion that as I am not a Criminal Lawyer I have no right to voice my opinion on criminal law and procedure.  I refute that.  I am a personal injury lawyer who often meets the spouses, parents and children of those killed on our roads as well as other victims of bad driving.  I have sufficient perspective to appreciate that dissatisfaction with the current system is close to universal amongst the victims of such crime.  I do not pretend to be sure about what the solutions are but looking at speedy, effective and affordable ways of parting dangerous drivers from their licences seems to me a valid start.  Clearly this is no laughing matter and some of the flippancy I have encountered is deeply inappropriate.  I have never claimed to be a criminal lawyer and in an open democratic society we are all entitled to express our views on crime and the criminal process.  I do not scoff at those who express views relating to the areas of law in which I practice.

Alongside complaining of my lack of experience in criminal law is the complaint that I have recent experience of prosecuting a dangerous driving case which led to an acquittal.   Again I have never hid that and I cheerfully concede that I think that the Magistrates’ Court would have been a more appropriate place to have had a trial in that case.  It would unquestionably have been faster and much cheaper (a relevant factor perhaps since by way of distraction complaint is made about my costs of so doing).  Incidentally I have been unfailingly polite to those who wish to see their own favoured change in the current law on the recoverability of such costs and even argue (unlike me) that their proposed changes should act retrospectively.

There has been innuendo that my private prosecution should never have been brought.  That too I refute.  There are numerous safeguards to prevent private prosecutions where the evidence is not strong, or the public interest not served, from going to a jury.   Criminal lawyers understand this but one or two persist in asserting that the fact that the police did not prosecute implies that I should not have done.  The fact is that acquittals against the strength of the evidence trickle down through the system to affect decisions to charge.

It has been suggested I have no evidence to support my arguments and/or that I have singled out driving for no good reason.  There have been plenty of cases involving motorists and vulnerable road victims where the results have been disquieting and I cover very many of them in my blog.  My article expressly explains that the ‘There but for the grace of God’ empathy applies peculiarly to driving cases.  Since writing the piece I have been contacted by many people engaged in the criminal justice process in just about every way whose experiences confirm there is a problem to be addressed.

I am very open to persuasion that my views are wrong but so far have seen far more heat than light expressed by those content with the status quo.  I think I have dealt with most of their arguments as I understand them.

It is time to rethink a Defendant’s right to a jury in driving cases

It is time to rethink a Defendant’s right to a jury in driving cases

Trial by a jury of one’s peers when accused of serious crime is a bed rock of the English legal system.  Nonetheless in general you can incur a punishment of up to six months’ imprisonment following conviction by the Magistrates’ Court.  In the context of road traffic offences only the most egregious of offenders faces anything like six months in jail.  Most Defendants charged with a traffic offence like dangerous driving or causing death by careless driving which are triable ‘either way’ (that is, by magistrates or Judge and jury) will be advised, correctly, that they stand a much better chance of acquittal before a jury.  This is a massively expensive and rather slow way of determining whether or not a Defendant should lose his licence and face a non-custodial penalty.  In addition jury acquittals in the teeth of strong evidence particularly where the harm has been to a vulnerable cyclist or pedestrian do nothing to bolster confidence in the criminal justice system, let alone to improve actual and perceived safety on our roads.

In recent weeks juries have acquitted a lorry driver who ran down an elderly pedestrian couple crossing a road in a shopping centre car park (death by dangerous driving), a lorry driver who turned left at Ludgate Circus without ensuring there was no cyclist on his nearside (death by careless driving), a car driver who passed a group of cyclists colliding with one and then driving into him when he sought to remonstrate (dangerous driving and assault).  Often the juries acquit in under an hour in such cases heightening disquiet as to the result. 

Juries will of course sometimes convict particularly where a vehicle occupant is plainly endangered.  In a very recent case a jury convicted Melissa Berry of dangerous driving.  She had terrified her passengers with a sustained period of very high speed (up to 120 mph) driving in the lanes of Devon and hit a wall spinning her car onto its roof.   She was sentenced to 12 weeks’ imprisonment which was suspended and so was very comfortably indeed within the powers of a Magistrates’ Court.  There must be a serious question over whether she would have persisted with a ‘Non Guilty’ plea had she not had a jury trial.

The position has really not improved, arguably it has worsened, since the way in which the justice system dealt with the drivers who killed Rob Jefferies and destroyed the life of Mary Bowers caused such legitimate concerns to British Cycling and The Times Newspaper respectively.  Although some driving offence penalties have been increased, the vanishingly small prospect of conviction negates any real deterrent effect.

The problems with jury trial for motoring offences are as follows:

1.      1.  Motoring offences are far more likely than other serious crimes to invoke empathy and compassion from a jury.  “There but for the grace of God go I” is not a thought likely to cross many jurors’ minds in cases of murder, rape, terrorism or knife crime.  The law excludes people who have served significant prison sentences in the past 10 years from sitting on a jury.  It does not exclude the significant proportion of the population who have been (fairly or unfairly in their view) subject to minor penalties for road traffic infringements.  In addition we live in a motor centric society where the overwhelming majority of jurors can be expected to be drivers, many of whom will have been subject to lapses of concentration or worse whilst operating a motor vehicle.  Far fewer will have similar levels of empathy to a non-motoring (and particularly a cycling) victim.  Feelings of empathy with and compassion for an accused may confound justice in a hidden way that is far less likely where, as in a Magistrates’ Court, reasons for a decision are required.

2.       2. Juries have no influence over, and perhaps little understanding of, the sentence likely to be imposed if they return a guilty verdict.  They may be aware that on conviction the maximum sentence for dangerous driving is 2 years and feel that imprisonment would be disproportionate to the offence.  A disinclination to expose a person with whom they may have empathy to possible imprisonment may influence their verdict.

3.       3. The resources devoted to a jury trial for a motorist charged with dangerous driving are disproportionate.  A jury trial is expensive.  A trial that would take one day before Magistrates is likely to take three days before a jury.  This is not a wise allocation of limited state resources.

4.      4.  Delays in the Crown Court are unavoidable particularly where, as is overwhelmingly likely in driving cases, the Defendant is not remanded in custody.  Whatever the aspirations of the Criminal Procedure Rules it typically takes 6 months from the initial hearing in a Crown Court to a trial.  There is some research evidence that certainty and speed of punishment are more important factors in deterring crime than the severity of punishment.

5.       5. There are now separate offences for causing death by dangerous driving and for causing serious injury by dangerous driving.  A dangerous driving charge simpliciter will therefore only arise where there has been no death or serious injury.  Whatever the sentencing guidelines say, Judges are most unlikely to impose sentences beyond the powers of the Magistrates’ Court, following conviction on a dangerous driving charge where no death or serious injury has resulted.  There are strong arguments that the best form of punishment in such cases is a period of disqualification in respect of which the powers of the Magistrates and of the Crown Court are the same.

6.       6. There is a very considerable temptation on the part of prosecutors to undercharge cases, or even not to charge, in order to avoid a trial by jury.  This is undesirable.  The offences of careless or inconsiderate driving (for which a Defendant cannot elect jury trial) are relatively minor offences designed to deal with momentary inattention, queue barging, middle lane hogging, splashing pedestrians and the like.  Dangerous driving that fits the statutory definition of driving far below the careful standard and in a manner in which danger should be obvious, should be charged as such.  According to the Crown Prosecution Service typical examples from court cases of dangerous driving include going too fast, driving aggressively, ignoring road signs, overtaking dangerously or being avoidably and dangerously distracted.  The CPS have just dropped a dangerous driving charge against a pop star accepting a guilty plea to drink driving instead.  The perceived difficulties in securing convictions in motoring offences have a knock on effect whereby the Police, who have the ability to decide on no further action in any case and who will perhaps even overestimate these difficulties, will often fail to take any action when they should.  The Transport Select Committee has, in its recent report on Road Traffic Law Enforcement, called on the Home Office to commission research into how complaints of collisions or near misses involving cyclists are handled by the Police and how this impacts upon the proportion of people who believe it to be too dangerous to cycle.  
    It is suggested that there is a clear case for removing the right to a jury trial from those charged with dangerous driving.  This could be at the discretion of the Magistrates as proposed by Jack Straw in respect of triable either way offences in 2000.  It should be noted that in Scotland the mode of trial in either way offences is already not (solely) up to the Defendant as it is in England. 
    Many of the same arguments could apply also to causing death by careless driving where again the likely punishment if convicted falls within the competence of a Magistrates Court.  Causing serious injury by dangerous driving and causing death by dangerous driving are much more serious offences although it should be borne in mind that the most serious of these could, and perhaps should, be charged as cases of assault occasioning grievous bodily harm and manslaughter respectively.  If reforming dangerous driving proves to be successful in terms of better deterring the crime then extensions to other driving offences could well be considered.  It would, of course, be essential to take full account of the views of victims and their representatives before extending any reform to the offences which involve causing death or serious injury.
    We must certainly do something.  A whole generation of citizens is being brought up to be driven everywhere, particularly to school, on the grounds that active travel is perceived by their parents to be too dangerous.  This attitude then continues into adult life and into the jury box.  It is a small minority of bad drivers responsible for this perception and they must be tackled.

Martin Porter QC is a leading personal injury/clinical negligence lawyer practising at 2 Temple gardens, London.

Lessons from a Private Prosecution 2(b) The Evidence Required

This is possibly the hardest section to write because it could so easily descend into a re-trial of the case or a moan about the result.  That is not the intention.  It may however be helpful to indicate what evidence I had.  It is central to the considerations as to whether I could or should have acted differently.  Some have suggested I never really stood a chance and I will in a future post consider whether that should have been obvious and affected the charges.


The evidence has to be strong, very strong and then if you can stronger still.
I think in hindsight my evidence was simply strong.
My own perception at the time (unaided by the film which I only saw subsequently) was that the car was going very fast and was very close.  Sufficiently so to report it at once to a fortuitously present Surrey police officer.
Obviously I needed corroboration from the film.  In hindsight the camera is too wide angle because first impressions are hard to shift even with logical analysis.
Thirdly I had my Garmin data which gave a very accurate reading of my speed and against which a comparison of the car's speed could be made.  Strava link , this and all the underlying data was disclosed.
I had solid identification evidence from the Surrey PC, though the Defendant persistently refused to accept his evidence.
Subsequently I got expert evidence but that will be the subject of a future post.  I have mentioned it below in [ ] to put the factual evidence in context.  In the interests of costs I did not get the expert evidence until it became inevitable that a trial was needed.
I was and remain of the view that the prosecution should be strong on the factual evidence.  The expert evidence was the icing on the cake obtained after the case had passed the tests set both by the CPS and the Judge.

What's required for a charge to reach a jury?
Historically charges would be left to a jury where there was a case to answer i.e. a reasonable jury could convict on the prosecution evidence.  This is still the test applied by a Judge who must stop the case if this threshold is not met.
After the creation of the CPS in about 1986 the test applied by them was two-fold, an evidential and public interest test.  The CPS evidential test requires "that an objective, impartial and reasonable jury, properly directed and acting in accordance with the law, is more likely than not to convict the defendant of the charge".   Note this is a significantly more restrictive test than that applied by a Judge in considering whether to dismiss a charge.
For a time private prosecutions that satisfied the case to answer test could proceed to a jury even if the CPS evidential test was not met.  However this all changed with the landmark and somewhat controversial decision of the Supreme Court in Gujra v DPP in 2012 when the Court endorsed new CPS guidelines which meant that they would take over and discontinue any private prosecution that did not pass their more restrictive test.
So there is no point starting a case where your evidence is not such that an objective impartial and reasonable jury is not more likely to convict than to acquit.  The test does not, however, require you to anticipate any lack of objectively or impartiality that may be encountered.


Anything missing?
All the prosecution evidence has to be disclosed in advance before the Defendant commits himself to any account of himself.  In a public prosecution it is part of the police job to interview a suspect under caution.  He will usually give an account and this may very well be demonstrably false but, even if not, will probably rather limit what alternative accounts he can give at trial.  Even if he says nothing in interview then comments can be made about a failure to mention something later relied upon in his defence.  Of course if the police have not interviewed the private prosecutor is in a significantly weaker position.  (There had been some limited correspondence between Mr Kayardi and the Metropolitan Police but neither side was willing to reveal this to me).  Mr Kayardi said in his evidence that the police had told him "Don’t worry about it, there’s nothing there".  Strictly the opinion of the police on the matter is not admissible evidence at all but it was relied upon very heavily by the Defendant to an extent I had not foreseen.  I have noticed shades of this in other cases where the police decided against prosecution even if a public prosecution nevertheless took place thereafter.
There is a requirement now for a Defendant to file a 'Defence Statement' but in my prosecution this said absolutely nothing that 'Not Guilty' did not already say.
Furthermore nobody seems to worry too much about a Defendant not putting his case to prosecution witnesses who might be in a position to contradict what the Defendant proposes to say.
Thus having carefully ascertained (as he was entitled to do) that I had no further evidence (or film evidence in particular) the Defendant gave in his evidence an account that having spoken to the police I filtered through some cars to 'cut him up'.  He also gave an account that he was being tailgated by a queue of traffic behind and that one driver was impatiently hooting so that he felt he had to pass me for my own protection.
He then added, again for the first time, that he had straddled the centre line with half his car either side.  His car presumably jumped half a car width sideways before the first frame where his headlamps come into view and skilfully avoiding a head on crash with the oncoming traffic.
None of that mentioned before or put to me or the PC or put to the expert.
So the lesson is if you stop the camera at one point, it is quite likely to be alleged that you were doing something wrong immediately thereafter.  Alternatively if you only have a forward looking camera it is likely to be alleged that something significant was happening behind.  You as a prosecutor/witness will not get any opportunity at any stage to comment or have your witness or expert comment upon what is said.
Accordingly I now commute with a rear facing as well as forward facing camera and if reporting an offender again will keep a back up copy of a much longer stretch of my ride.  You can expect any gaps to be exploited.

The film
Taken with a Contour HD camera fixed to my handlebars.  My own analysis of this film by reference to the centre lines and to my own speed (19mph) was that the car was travelling 3 x my distance in any given number of frames (thus 57mph).  [A careful analysis in due course by an expert making every assumption in the Defendant's favour (as he should) was 51- 57 mph.]
I knew he had passed within a metre or I would not have regarded it at the time as so out of the ordinary.  However the film does not on casual inspection demonstrate how close and I initially reported to the police within a metre as the best I could do.  [Again careful analysis by the expert concluded 60 - 80 cm clearance excluding the car's mirror.  Given the consequences of being whacked by a wing mirror at 50-something miles an hour it seems reasonable to say the clearance was approximately 0.5m.].

Here it is.  Please respect my copyright, though I have no problem with links back to this site.

(c) Martin Porter

The next post will look at reporting the incident.

Lessons from a Private Prosecution (2) (a) Why this type of incident?

I dislike dangerous overtakes and I dislike the Metropolitan Police's indifference to dangerous overtakes.  An overtake is, or should be, a planned manoeuvre and passing a cyclist too fast and close is done deliberately.  Whether it is done deliberately to intimidate or just because a driver is callously indifferent to a cyclist's safety seems to me to be secondary.  Discussing this topic with a Met Police Sergeant on the Cycle Task Force back in 2010 I was told these were 'too subjective' to take action.

That though is very hard to accept.  Back in 2012 the Surrey Police charged this HGV driver with dangerous driving and the CPS then accepted a plea to careless driving (a decision keeping the case away from a jury and with which I have greater sympathy now than I did at the time).

Contrast the Metropolitan Police who declined to take any action in respect of this HGV:

I believe close passes to be particularly unnerving both for an experienced cyclist (though we have no option but to get used to them) and for the very many people who would cycle if their perception was not that it was too dangerous.

So why a close pass and not a case where I have actually been injured?  I have exchanged details with drivers on 4 occasions as a consequence of damage to myself or my bike.  Each involved momentary inattention at junctions rather than deliberate bad driving.  The two drivers inside the Met Police area suffered no consequences and the two outside (one Surrey, one Thames Valley) were both sent on courses.  I think the driving in all 4 cases could fairly be categorised as careless driving and none, in my view, justified a private prosecution.

Far more serious was the close overtake gone wrong during a club run just months before my February 2015 incident.  An elderly driver collided with the front offside rider in my group and 4 riders went down with the driver failing to stop.  He was dealt with, albeit rather leniently, by Thames Valley Police and we were told lost his licence permanently on medical grounds.  It is a reminder if any is needed that close overtakes do not all end happily.

Further relevant background is that I had just failed to make any headway at all in relation to the disgraceful decision of the Metropolitan Police not to refer the case of Michael Mason to the CPS.  Mr Mason had sustained fatal injuries when run down from behind on Regent Street and I was instructed on behalf of the family to invite the Met to reconsider.  I got nowhere beyond a confused and then retracted announcement that they would consult the CPS..

Perhaps for practical reasons a prosecution actually involving injury might have been more promising in terms of likelihood of conviction than a 'near miss'.  However I did wish to try to make the point that dangerous driving that did not result in a collision should not be ignored.  Quite fortuitously I got the driver's address, something that is not likely to happen again in any near miss case.

This was not of course the first piece of dangerous driving I have encountered but nor was the driver (as he claimed at his trial) a 'scapegoat'.  It goes without saying that had he not endangered me I would not have prosecuted him.  The fact that similar overtakes are fairly common-place makes it more important that they are tackled.  Progress is being made with the Transport Select Committee just reporting that:

I have no regrets over prosecuting a case which (to my mind) involved a classic near miss from a close pass at manifestly excessive speed.  In the right circumstances I would encourage another attempt.

The next post on this subject will look at my factual evidence, how strong it was and how it might have been stronger.

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.