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.

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.



Sir,

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

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.

My Season Ends with a Bang

Regular readers will know I have a great enthusiasm for road racing.  Certainly my enthusiasm exceeds my aptitude.  There is an element of risk of course.  However in 5 years I have never before crashed or, perhaps more importantly, caused a crash in a race.  The racing provides an impetus for the dogged miles I put in commuting which, given the hostile environment of the roads particularly in and around Hounslow, I am hard pushed to portray as an unallured pleasure.

Lat Sunday Willesden CC put on a road race on the Great Milton Circuit in Oxfordshire.  It is a course I know very well and I earmarked it some months ago as a race I could finish.  Sadly I didn't.

I cannot tell you much about the race.  I have only small 'islands' of memory from around 0945 to around 1600 last Sunday.  Reference to my Garmin tells me I crashed at 1030 on a long wide stretch of road in Chalgrove.  I have a few short snapshots of the race, one short snapshot in an ambulance, another in the ICU at John Radcliffe, Oxford, one in an MRI scanner, one in Major Injuries and finally in Minor Injuries where uninterrupted continuous memory finally returned and I waited the rest of the day to get my wounds stitched up.

The distribution of damage to my body and clothing (and the very limited damage to the bike) suggests I went down onto my head and the back of my hands (possibly still gripping the drops) then flipped onto my left shoulder and side.  Eye witness accounts inform me that for no very obvious reason, a rider fell sideways into the road in front of me.  I imagine my front wheel stopped more or less instantaneously on hitting him flipping me and the bike over.

I have considerable litigation experience of head injury cases so I know this was, thankfully, a minor traumatic brain injury.  I can only have been unconscious for moments after the impact because I am told I started making an awful fuss, though my notes suggest I did follow this up with a 7 minute period of unconsciousness in the ambulance.  The prognosis for full recovery from a minor head injury is excellent (I have a personal conviction that long term consequences from a minor head injury, as often alleged in a Court, are more likely to be psychogenic than organic, though not all neurologists would agree).  It will though take a few days, as with my other injuries, to quite get back to normal.  Unfortunately I have had to work over the last 3 days (though thankfully from home) but I will now be taking time off to accelerate the recovery process.

In the meantime I am stuck with low mood (why me??), anger, queasiness and irritability.  The best cure for a depressed mood is getting out on my bike but that is an option that realistically is not open to me for a few days yet.  I have a few months to contemplate whether I will race again.  In the past when I had thought of the crash which would inevitably come some time, I had thought of roadrash, possibly a broken collar bone, not of landing forcefully onto my head with the awful risk of serious brain or spinal damage which that entails.  I feel I was unlucky to the point when I was flying through the air but then I was lucky that it was not a lot worse.

Roadracing does involve a huge degree of trust in your fellow competitors.  I trust all the people that I have got to know racing to handle themselves and their bikes well in a bunch.  Before I started racing I spent a summer going to training sessions run weekly by Prime Coaching at Hillingdon.  I highly recommend such preparation to any one who is considering taking up racing for the first time.

I suppose I have got to mention my helmet.  It is mangled.  Did it save my life as the nurse in the minor injuries unit confidently asserted to me?  I am sceptical.  My brain injury was caused by the sudden deceleration of my head which I doubt the helmet did much to ameliorate.  Certainly it saved me lacerations and roadrash to the scalp.  As always it is wiser to seek to avoid the impact rather than to put one's faith in protective gear.

Apologies to those who you who have found normal service to my blog interrupted.   Finally thanks to the road race organisers, first aiders, marshals, passers-by, fellow racers (especially the few who stepped forward with accounts of what happened) and wife who picked up the pieces.

Postscript: the rider who fell in front of me was permitted to leave the scene and was not identified in any subsequent incident report.  Accordingly neither I, nor British Cycling officials, will ever know what caused him to fall, save that it was getting wet and his rear wheel was seen to slip outward.  I feel it is a pity that he was not asked for an explanation and, if appropriate, given advice.  All of us involved in the great sport of racing should be striving to reduce the risk of this kind of incident to the lowest level we possibly can.

The Mitchellgate Affair

I suspect an element of fault on both sides here.  Andrew Mitchell MP, Government Chief Whip, is going to have to learn that he is a member of the establishment unless and until he takes to two wheels when he becomes a mere 'cyclist'.  The notion that he would be extended the same courtesy as if he were in a chauffeur driven motor car is just unrealistic.  He should have meekly got off his bicycle wheeled it along the pavement and through the gate and remounted.  I have done this fairly regularly at the request of a policeman though I always feel like rebelling.  Threatening to arrest Mr Mitchell (if true) does itself seem to me an unnecessary escalation.

Linking this to the awful double murder in Manchester, as the Sun newspaper does, is not in my view justified.  It would be quite wrong to associate those who question police action (or inaction), however impolitely, with the unspeakable evil that resulted in two dead police officers.

Mr Mitchesll MP, I am sure, deplores the unnecessary loss of human life.  It is news to me that he cycles - good on him.  but why has he not signed up to EDM 407 which reads

That this House notes that many victims of road accidents do not feel that the criminal justice system adequately protects or supports them in the aftermath of their case; further notes that it is important that those who have suffered traumatic incidents are given effective and sympathetic support as they attempt to rebuild their lives; welcomes the work of British Cycling and other groups, including CTC, Sustrans, London Cycling Campaign, The Times, Cycling Weekly, RoadPeace and Brake to raise the profile of the issue; and calls on the Ministry of Justice to review carefully the evidence they have submitted and undertake a comprehensive review of each part of the criminal justice system, from crash investigation standards through to sentencing guidelines, to ensure that it is fairer for cyclists, pedestrians and other road users who are hurt or seriously injured on the country's roads.

[NB: if I had drafted this I would have ensured it included reference to the relatives of those killed on the roads in line with the evidence submitted to the Ministry of Justice.  Still, its general import is clear].

If you are one of his constituents, perhaps you could ask him.

The Timothy Denman Saga drags on

Back in April this year I obtained a Judgment against the thug who pushed me off my bicycle because he hates cyclists.  The Judgment is for £1,254.  To date not a penny has been paid.  Denman offered £40 a month which I considered derisory.

I know nothing about the enforcement of Judgments and have little desire to learn so I am very happy to have received the backing of the CTC to instruct lawyers to deal with this.  However Denman's offer was yesterday endorsed by the Court and he has not been ordered to pay a penny towards the costs my lawyers have incurred, which are unavoidably substantial in comparison to the Judgment sum

All avenues of enforcement are closed whilst he keeps up this derisory level of payment.  It appears that Courts ooze sympathy for private individuals who cannot pay their bills.  Whether it is helpful to anybody in the long run to make Judgments between private citizens not worth the paper they are printed on is something I would question.  But for the CTC's support my Judgment would be of negative worth after costs even once he has paid in full.  And of course interest does not run.

So much for the Thames Valley Police advice given after they had decided to caution Denman; never mind I could inflict some punishment by suing him.

Denman is laughing all the way back to one of his two motor cars, which he needs (he informed the Court and the Court appears to have accepted) because he has 2 young children.

The Channel: An unnecessary barrier to Cycling

Last weekend I took my bicycle the very short distance to Abbeville, Picardie for the Ronde Picarde, a cyclosportive of the very highest quality which makes a great late season ride.

This is a very easy journey to make in a car.  Throw the bike in the back, drive to the channel and one hour on the motorway the other side.  However this year I decided to go by bicycle.  I imagined it would be equally easy, or even easier.  Ride to the tunnel, hop on a train, ride out the other end and hop on another train.

However it turned out to be surprisingly difficult.

First if you wish to take your bicycle on the Eurotunnel, it has to go in a motor vehicle.  If you do not supply your own motor vehicle then Eurotunnel will provide one for you, picking you up and dropping you off at points remote from the tunnel itself.  So far so (just) bearable.   However this service has to be booked in advance and is provided only twice a day: once in the early morning and once in the late afternoon, both times hopeless for me.

I imagine some health and safety assessment has defined cycling to a train as dangerous; perhaps because there are loads of motor vehicles about that might run a cyclist over.  What would the consequences be if Eurotunnel were to conduct a health and safety assessment at Elephant and Castle, I wonder?  At least at their terminals, they can impose speed limits and traffic calming where necessary and let cyclists onto trains first.  There is plenty of space at the front of trains for bicycles, I have seen it.

So, the ferry it was.  However I was denied a ticket on DFDs  with half an hour to go before the advertised sailing time.  How long can it take to ride a bicycle onto a ferry?  I had to go on a later P&O ferry and pay £25 one way (which seemed to me steep given that the costs for a car is advertised at starting from £19 one way.)

At least the Port of Dover does not worry about cyclists mixing with 'real traffic'.  Getting on the ferry was easy, I was let on first with the motorcycles.  Getting off the P&O ferry in Calais was, however, far more frustrating.  Whilst the motorcyclists were let off first a grumpy man yelled at me "You!  Stay there!  They will run you down!." and with that I had to wait on a fume choked car deck fro 20 minutes while every last motor vehicle got off and I missed a train running out of Calais Ville.  Why anybody would run me down on an exit ramp from a ferry baffles me.  Impose a 20 mph speed limit if this is a real concern.

Once in France taking the bicycle on the train was easy

Very few people take a bicycle across the Channel; far more take them on the back of cars.  Now I understand why.

Still the Ronde Picarde was wonderful as always and well worth the hassle of getting there.

What a pity though that there is not a cycle track through the service tunnel of the Channel Tunnel.  It would be much faster than the ferry.  Still I expect some Health and Safety assessment would rule that idea out.