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.

Oral Evidence of Police to Transport Select Committee

The first oral evidence session for the Transport Select Committee's Inquiry into Road Traffic Law Enforcement was on Monday 2nd November.  I tuned in with anticipation as I am very much in favour of Law Enforcement action particularly against those who endanger cyclists.  The Inquiry's terms of reference include the impact of road traffic law enforcement on the safety of cyclists and pedestrians.  As indicated in my previous post the Committee has received some powerful written evidence from those who feel that when they cycle they are entirely unprotected by the law.

Two police officers, an Inspector and a Superintendent, nobly traveled up from the Midlands and the West Country to assist.  Whether the Metropolitan Police or the ACPO lead for traffic policing were invited or will be attending on a later date, I do not know.  It would be good to know that someone of Commissioner or Chief Constable rank who has some responsibility for allocating resources and setting policy takes the subject matter of this Inquiry seriously.  After all there are those, like me, who assert that the police are on occasion letting down cyclists in a serious way with their lack of law enforcement against those who endanger, threaten, harm or even kill cyclists on our roads.

What particularly animated the Committee members appeared to be parking and especially the length of time roads were closed following a collision.  No doubt important topics but arguably peripheral to the terms of reference which were particularly upon enforcing the law against dangerous and careless drivers (a subject which I believe merits undiluted scrutiny).

The Chair though did bring the discussion around to cyclists in the closing minutes of the police evidence.  the evidence went as follows and I have annotated my thoughts thus:

Q39   Chair: I want to ask you about cyclists on the road. Cyclists feel that their safety is not considered sufficiently. What do you do if you think that a motorist is acting in a way that endangers a cyclist? What actions are taken?
Superintendent Keasey: They are subject to the law.
I think he means motorists that endanger cyclists are subject to the law rather than cyclists are subject to the law but both are true and neither quite answers the question.

Q40   Chair: They are subject to the law, but is the law used? Spot on!
Superintendent Keasey: Yes, where we have the evidence and where it is corroborated. The difficulty is often that it is one person’s word against another’s, just like it would be for one person driving a car against someone driving another car. There is no different standard in the way we approach it and whether we prosecute or not.
Most criminal trials will involve a Court determining whose word is credible and whose is not.  A conflict of evidence is not of itself sufficient reason to take no action.  This is what was said about bringing prosecutions for sexual offences 20 years ago but nobody in that field would suggest this today.  Some accounts are inherently credible some denials are inherently incredible.  There is no formal requirement for corroboration and this is too easy a basis to dismiss virtually all complaints of bad driving.
There should be a very different standard depending upon whether the suspect has (nearly) hit a person on a bicycle or whether that suspect has (nearly) hit a Chieftain Tank.  It is a serious aggravating feature of a bad driving offence that the suspect has endangered a vulnerable road user and the police ought to recognise that and act accordingly.  


Q41   Chair: Cyclists feel that there is not enough concern about their safety. Are you disputing that?
Superintendent Keasey: No; there is concern. If you look at cyclists and pedestrians, they are probably more likely at the moment due to their numbers to be subject to serious injury. They are quite rightly allowed to use the road, and they should be, but it is the education of drivers. If you look abroad to Holland they are very used to it. They are often cyclists and motorists so they are much more aware of the gap you need to give space between a cyclist and a car on a left-hand turn.
If there is concern what then is to be done about it ?  Rates of injury are probably not as bad as the Superintendent suggests and are in any event not the point of the question.  Perhaps we should be grateful for the expression of view that we should be allowed to use the road but (whatever prescience there might have been of a notorious forthcoming Metro article) nobody in mainstream politics thinks otherwise and it is slightly worrying that a police officer feels the need to state it.  Having ruled out banning cyclists from the roads the answer then is not prosecution but 'education of drivers'.  Education along the lines of Carlton Reid and Chris Boardman's how to overtake a cyclist film is certainly to be lauded.  However this Inquiry is about enforcement and leaving it to cyclists to educate drivers is not enough.  We have all experienced aggressive deliberately bad driving that would not have occurred in the presence of the police.  The reality is that bad drivers know they can get away with punishment passes, brake testing, tail gating, left hooking, speeding and other deliberate behaviours that endanger cyclists.


Q42   Chair: Inspector Cox, are you concerned about that?
Inspector Cox: From a rural point of view we do not have huge cycle issues. There is a corroboration issue when we get complaints from cyclists, even with cameras potentially. If there is not a corroboration factor it becomes one word against another, so the chance of prosecution is very slim. Certainly if it is detected or witnessed by a police officer, action is always taken, but it is a challenge. Although I represent a rural area, we have Bristol and Swindon in there, some fairly big urban areas, and we do not have an issue with our cyclists getting killed. Perhaps our drivers are more aware because they drive in a rural area a lot of the time, where they have to be a little bit more aware. In places like London, clearly there is a lot more pedestrian and cycle traffic meeting vehicular traffic. We do not get that quite so much in rural areas.
The answer then is 'no' he is not concerned about that at all.  A pity as cyclists are being killed and injured in his area and tragically one young man died cycling in his patch the very next day.  He added to what the Superintendent said about corroboration by saying that lack of corroboration was an issue even with evidence from cameras.  This is quite incomprehensible and proves the point that the police are exhibiting inappropriate reluctance to prosecute offenders even where there is clear evidence.
Apparently the behavior has to be 'detected or witnessed' by a police officer in which event problems with corroboration simply melt away and action is always taken.  I would welcome specific evidence of cases where such action has been taken.    I have never come across such a case and suspect they are very rare.

Evidence to the Commons Transport Select Committee on Road Traffic Law Enforcement

My evidence to the Committee can now be read here

I need to add that Surrey Police read my evidence and have dissociated themselves from, and apologised for, many of the points made to me in the letter of 14.09.15 cited in my evidence.  I am happy to acknowledge this, though the fact of course remains that a police employee who has been making decisions on prosecutions held those misguided beliefs.  There is clearly a systemic problem as well as having a few rogue decision makers.

Some (not all!) of the other evidence is well worth reading and I particularly commend the evidence of Mary Manning here.  This is compelling and accords entirely with my own experiences, and that of many others, and needs to be addressed by the police.

At the moment we have only platitudes and stuff like Policing the Roads in Partnership signed off by a senior police officer who would not commute in London due to the risks on the roads presented by risky motoring behaviour.  That was, of course, uncovered in Anna Tatton Brown's excellent film about the investigation into the death of her father, Michael Mason, which can be viewed here and which I hope the transport committee will see.

Another case on Contributory Negligence Sinclair v Joyner

In Sinclair v Joyner [2015] EWHC 1800 Mrs Justice Cox found for the claimant cyclist in her claim for damages against the driver of a '4x4' vehicle though with a reduction of 25% to reflect the cyclist's contributory negligence.

On Sunday 3rd July 2011 Mrs Sinclair was cycling along Broadwater Forest Lane, a single carriageway lane in Kent.  Coming in the opposite direction was a Volvo XC 90 motor car driven by Mrs Joyner.  The two vehicles made contact as a consequence of which Mrs Sinclair fell sustaining a serious head injury.

Liability was disputed (indeed it was even faintly disputed with unsatisfactory expert evidence) that a collision had even occurred.

The Judge had no difficulty finding that the Defendant driver was liable and should have stopped to allow the cyclist to pass in safety.  In words that support the view which I have frequently expressed that in England and Wales we have what approximates to a de facto presumption of liability when a motorised vehicle collides with a vulnerable road user the Judge said:

1. In the section dealing with "Road users requiring extra care" the Highway Code (Revised 2007 edition) draws attention, at paragraph 204, to cyclists as among those who are to be regarded as "the most vulnerable road users." Mr Martin places particular reliance upon the advice given to motorists at paragraph 212, namely "When passing motorcyclists and cyclists, give them plenty of room." While there then follows a bracketed reference to earlier rules dealing with overtaking, as Mr Freeman observes, the advice in this paragraph is, in my judgment, not confined to cases of overtaking, set as it is in the section of the Code addressing in general terms the vulnerability of these categories of road users, and the need for extra care.


2. This advice is particularly pertinent in this case. The Defendant's carriageway was just 2.5 metres wide and the width of the Volvo was 2.1 metres. Even if she were right over to her nearside, and I accept that she was very close to it, that leaves at best 0.4 of a metre between the car and the Claimant who was, on the evidence, riding her bicycle still on her own side of the road but only just. She was very close to the centre as the Volvo approached and then passed her. The Claimant cyclist's close proximity to the centre of the road was noted by the Defendant as soon as she saw her, and in my view, for the reasonable prudent driver in those circumstances, alarm bells would have sounded instantly.


3. Motorists have to anticipate hazards in the road, particularly from vulnerable road users, and to be ready to react to them. In my judgment the Defendant cannot be relieved of that duty of care by seeking to blame the Claimant, who was obviously in difficulty, for deviating into her side of the road and colliding with the rear offside tyre, after the front of the car had gone past her. The fact that a collision occurred demonstrates that there was not sufficient room for her to pass the Claimant safely, and that the Defendant's assumption to the contrary was in error. She ought to have appreciated that her car was too close to the centre of the road for her to have passed this cyclist safely.

Contributory Negligence

It was accepted on the Claimant's behalf that she should bear some responsibility for her injuries on the basis that 'she should not have been riding her bicycle in a central position in the road'.  Mrs Sinclair's injuries did not leave her able to recall or explain her riding leading up to the accident.  The matter was dealt with briefly and by concession (with the Judge accepting the Claimant's suggested 25% deduction).  It should not, in my view, be taken as any indication that cyclists should not ride in a central position on the road.  Indeed on the contrary they often should, though perhaps not at the point where a wide vehicle is actually passing on a country lane.

Of wider application was the further example of the Court refusing to make any finding of contributory negligence in relation to a cyclist not wearing a safety helmet.  the Judge said this:

1. The Defendant also pleads, at paragraph 11 (d) of the Defence, that the Claimant was negligent in failing to wear a cycle helmet. This was not explored in the evidence and Mr Freeman made no submissions upon it in his closing arguments. As Mr Martin observed, no court has yet decided that failing to wear a helmet actually amounts to contributory negligence, although they have come close (see Smith v Finch [2009] EWHC 53 (QB)). In the present case the Claimant was an adult enjoying a bicycle ride in the countryside on a sunny day. There was no medical evidence adduced to show that failing to wear a helmet made the Claimant's injuries worse, and the subject was not addressed in submissions. I therefore reject that allegation of contributory negligence in this case.

As can be seen the Defendant had no confidence in the point although it was pleaded on her behalf.  Of interest is the Judge's comment that Mrs Sinclair 'was an adult enjoying a bicycle ride in the countryside on a sunny day'.  Since this is plainly irrelevant to causation, this is only worth mentioning in the context of fault strongly implying that Mrs Justice Cox is not convinced that a cyclist who chooses not to wear a helmet is at fault.

Regular readers of my blog will know that Mr Martin QC was not quite right in his observation that no Court has yet decided that failing to wear a helmet amounts to contributory negligence.  However Reynolds v Strutt & Parker was a wholly exceptional case for reasons I describe here

Overall an encouraging case though there are throw away comments regarding the oddity of riding central, standing on the pedals and 'proper clothing' for a cyclist that do leave a queasy suspicion that the sum of the knowledge in the Courtroom about cycling was less than it might have been and that Mrs Sinclair was in all probability a far more competent cyclist than she was given credit for.

The full Judgment can be read at http://www.bailii.org/ew/cases/EWHC/QB/2015/1800.html

Team Townend Challenge 2015

On Saturday I will be repeating the ride I have done for the past two years in memory of Christian and Niggy Townend, who were so tragically killed in December 2010 when a coach drove into them whilst they were out riding in the Lake District.

Since I last did this ride just one year ago I have been dismayed yet again at the number of occasions when appropriate charges have not been brought against those who have killed cyclists or, if brought, have not been successfully prosecuted.

Roadpeace is a brilliant charity founded by bereaved relatives which works hard for road crash victims and campaigns for justice.

I know money is tight and I have already urged many of you to donate to the Cyclist Defence Fund to right some of the more obvious wrongs.

However with the prospect of a new Parliament and some new MPs it is more than ever vital that we support the work of Roadpeace.  Politicians are, for the most part, human and will be moved by the approaches made to them on behalf of their bereaved constituents.

Just to ensure that I find the ride challenging enough to merit some support I will ride it twice, once in each direction and once for each of the two brothers we are remembering.

Putting my own money where my mouth is I shall match donations up to £300, so doubling the value of your contribution to Roadpeace.

My fundraising page is here

Criminal Prosecutions arising from Road Traffic Collisions

Yesterday the 'watchdogs' for both the CPS and the Police produced a report following their joint inspection of the investigation and prosecution of fatal road traffic incidents.  I gave a short interview to the BBC about this report which can be seen here:

Having naturally read the report before talking about it, there is more I would have wished to say had time been available.

The report is of course welcome in that it pulls no punches in demanding a better standard of decision making and communication with families following fatal road traffic collisions.  Indeed I would add that a better standard is also required in non-fatal collisions and even in non collision incidents too, but it makes sense to start at the top.  If that cannot be got right there is little hope for other cases.

Having said that I found the report disappointing in a number of respects.  There appeared to be a degree of complacency about the drop in casualty rates without a recognition first that this drop is much lower for cyclists than it is is for other classes of road user and second that the number of people seriously injured is stubbornly high.  This suggests that the recorded improvements in fatalities are due far more to high quality NHS trauma teams and less to any improvement in driver behaviour.  Given the report's acceptance that the number of fatalities  of cyclists 'has attracted much media attention', it is very disappointing that limitations in data are said to have prevented investigating the way in which the deaths of cyclists are treated compared to other road users.  This is a great shame and I hope their recommendation about improving monitoring and analysis of data is followed and permits the public and charities, as well as watchdogs, to see what differences there are.  After all we are all given every encouragement by the State to cycle and protection from the agencies of the State seems the very least we should be entitled to expect in return.

There is, however, no evidence from the report that the Inspectors felt the status of the victim as a vulnerable road user to be relevant to the way in which investigations and prosecutions should be handled.

As it was, only 2 of the 72 cases investigated in this report involved cyclists.  More (21) involved pedestrians but the Inspectors were critical of overcharging (yes, overcharging) in 4 of those cases that involved running down a pedestrian at night because prosecutors and police 'imposed an unrealistic standard of driving on the suspects in these cases'.    I do not of course know the details of these cases but the fact that the Inspectors said that of all 4 cases involving pedestrians at night leaves me very uneasy about their approach to vulnerable road users.

Further the Inspectors criticised the CPS prosecutor who oversaw the fatal cases in his area (and so seems to have been the rare example of a specialist) for encouraging the police to submit to him all road traffic cases involving a fatality where there was a surviving third party.  As I said in my interview, it seems eminently sensible to have a specialist prosecutor look at cases that the police are inclined to dismiss with 'NFA', at the very least where the victim is a vulnerable road user.   The sad case of Michael Mason epitomises what can go wrong if this does not occur.  This criticised prosecutor was in my view exhibiting good practice which the Inspectors ought to have recommended be followed elsewhere.

So there is more condemnation of over than of undercharging in the report.  Which is odd since of the number of cases investigated (72) it appears from the tables that 60 cases resulted in charges of which (it seems) 49 were taken to trial and there were 44 convictions.  These figures are not remotely consistent with overcharging.  The DPP was being given a grilling on Radio 4 this morning over the decision to pursue a FGM case.  I pass no comment on the wisdom of that decision, but she was right to point out that the test for a prosecution is not the same as a test for a conviction.  However in traffic cases (alone) it seems that guilt must be as plain as a pike-staff before a prosecution is ventured.

Ultimately it is outcomes that matter and I fear this report has lost an opportunity to stiffen the resolve of the police and CPS to ensure that dangerous and careless drivers (particularly those that drive dangerously or carelessly in the vicinity of vulnerable road users) are made to account for their conduct.

Conversely I should add that performance is patchy by area.  I have encountered traffic officers and CPS prosecutors who really are committed to doing their utmost to make the roads safer for us.  I am not sure this report gives those delivering best practice sufficient encouragement.

Finally there is perhaps an irony that this report was produced on the same day that Transport for London approved the N-S and E-W Cycle Super Highways in London.  I urge that, great though that victory is, we do not let it detract from the importance of deterring bad driving.  We have a very long way to go before we can just not use the roads if we do not like the quality of driving encountered there.