Culture clash
Date: 04 December 2009
Authors: Martin Porter
Issue: Vol 159, Issue 7396
Categories: Features, Human rights, Local government, Personal injury
Last year 2,538 people were killed in the UK, directly due to the presence of motor vehicles on the roads. A further 229,000 were injured. Others suffered detrimental effects from the emissions, noise, and even fear of traffic. Motor vehicles were a major source of carbon emissions.
The number of pedestrians killed by cyclists is similar to the number killed by golf balls; in each case too small to register on statistics, but on the few occasions per decade that it does occur it is accompanied by much publicity. The convenience of the car over the last century has led to the development of a culture which largely exempts motoring from the strict regulation of other areas of life in which poor practice costs lives.
The main tenets of this car culture can be summarised as follows:
(i) The attrition is a price worth paying in return for individual autonomy and convenience.
(ii) Every physically competent adult has a right to drive, removable only as a punishment for serious or repeated criminal offending and, even then, only temporarily.
(iii) Conduct regarded as dangerous in other walks of life is, in a motorist, merely careless, and that which would otherwise be careless is excusable.
(iv) Road safety efforts focus upon segregating the vulnerable road user from motorised traffic (at the expense of the safe sharing of road space) and upon encouraging personal protection as second line prevention.
(v) The harmful potential of a fast motor vehicle is not distinguished from that of a bicycle, notwithstanding the laws of physics.
It is a mark of a civilised society that the law protects the weak from unwarranted harm inflicted by the strong. When a motor vehicle strikes a cyclist, and particularly when a fatality results, it is of the utmost importance that a thorough investigation takes place; that where the facts warrant it, a prosecution is pursued for the appropriate offence (without requiring a near certainty of conviction); and that following any conviction a deterrent sentence is passed. The car culture needs addressing at each of these levels.
Investigation and prosecution
In June 2008, Marie Vesco, a 19-year-old from France who had recently settled in this country, was cycling in a group from London to Brighton. The cyclists reached a junction on the A23 where the nearside lane of three became an exit slip road. To travel straight on, the group had therefore to cross the nearside lane. Ms Vesco was doing this when she was hit first by a car taking the exit and then by another car following close behind. She died at the scene. A short police report concluded, somewhat lamely, that Ms Vesco and the driver of the first car had either separately or jointly failed to judge each other’s intentions. There was no proper analysis of whether the cars should have been attempting to overtake the cyclists, whether the cyclists were afforded sufficient space or whether the next car was following a safe distance behind. The Crown Prosecution Service decided not to prosecute, a decision that was communicated to the distraught family too late for them to consider a private prosecution. The car culture tenet of segregation suggests that the cyclists should not be near fast traffic, detracting from the fact that the nature of the road and junction, combined with the awful consequences of a collision at speed, called for extreme care in overtaking cyclists.
In Ms Vesco’s home country, traffic overtaking a cyclist is required to allow a margin of 1.5m (five feet) and this self evidently needs to be increased with the speed of the passing vehicle. Here the Highway Code (r 163) requires motorists to give vulnerable road users they are overtaking “at least as much space as you would a car”—implying a similar margin. In no industrial or other context would a reduction in a like margin of safety be regarded as acceptable, yet on the roads it is both commonplace and excused.
The following month, Anthony Maynard, a 25-year-old experienced cyclist was on an evening training ride with a club-mate. On a dual-carriageway near Henley, both were struck by a van that had overtaken another vehicle and then pulled in to the nearside lane killing Mr Maynard and injuring his companion. No prosecution was brought, apparently on the basis that the van driver had been dazzled by the sun and could not therefore see what was, or was not, in the road space that he was driving into at speed.
In contrast is the series of choices that led to Daniel Cadden’s conviction for inconsiderate cycling. His offence was using the road on his commute home through Telford where he was cycling at around 20mph. Initially the police stopped him for riding in the road position, recommended in “Cyclecraft” and taught on bikeability cycle training courses, well out from the nearside edge of the road. Belatedly, it was appreciated that Cadden’s road positioning could not be faulted. Nonetheless, Morgan J convicted Cadden on the basis that it was inconsiderate to ride on the road at all, rather than on a separate cycle path. The Department of Transport advises: “As a general rule, if you want to cycle quickly, say in excess of 18mph/30kph, then you should be riding on the road.” The conviction was overturned on appeal, but there remains a striking contrast between the police, prosecution and judicial time and effort directed towards the harmless Mr Cadden and that directed towards motorists who have run down cyclists.
Sentence
In September 2009, two appeals against sentence came before the Court of Appeal. In one, Darren Hall appealed a sentence of seven months’ detention following his guilty plea to the offence of wanton and furious cycling. He had in August 2008, aged 20, been riding his bicycle on the pavement in Weymouth when, after turning a corner at speed, he collided with Ronald Turner who died some days later from a pulmonary embolism attributable to the collision.
His appeal against his detention was dismissed by the Court of Appeal who observed that he ought to have realised that if he collided with an elderly or infirm pedestrian it was entirely possible that serious injury might ensue. “It was the sort of cycling which, in our judgment, created at least some risk of danger. It was, therefore, not far short of dangerous cycling.” The logic of this cannot be faulted. Cyclists should not ride on pavements, but so long as the car culture sends out the message that they are not welcome, or safe, on the roads the unfortunate practice is likely to persist.
In the other case, R v Rice [2009] EWCA Crim 1967, Matthew Rice appealed a sentence of 20 weeks’ imprisonment and a two-year driving ban for causing death by careless driving. Rice had been driving home along a narrow country lane near Fenstanton on a November evening. He was third in a line of three vehicles headed by a car travelling at 40 to 45mph. Rice pulled out to overtake both the cars ahead of him but the driver of the second car, Miss Buckingham, then also pulled out to overtake. Rice could no longer see what lay ahead but remained behind Miss Buckingham to overtake the lead car. A cyclist, Mark Robinson, was riding in the opposite direction. His “quite brightly lit” front light was seen by the driver of the lead car. Miss Buckingham saw him just in time and was able to regain her correct side of the carriageway without a collision. Rice did not see Mr Robinson until it was too late. The road was not wide enough for two cars and a bicycle and there was a head on collision, at a closing speed of about 70 mph, in which Mr Robinson was killed.
Rice was driving fast on the wrong side of the road in circumstances where he could not see what was coming towards him. Adapting the words applied to Hall’s cycling, it was the sort of driving which created at least some risk of danger and was, therefore, not far short of dangerous driving.
However the Crown had agreed with the defence that this was not close to the border of dangerous driving but was in the middle range of careless driving. Comparisons were made with the fate of Miss Buckingham who had been convicted of careless driving and failing to stop and received a fine of £300 with a disqualification from driving for nine months.
It was thought that the levels of culpability were the same with a difference only in the consequences. This seems charitable to Rice; Miss Buckingham could see where she was going and, albeit late, saw Mr Robinson in time to avoid a collision. Had it not been for Rice’s actions no accident would have occurred and it is inconceivable that she would have faced any prosecution.
A comparison was made with the lower powers of sentencing available had the accident resulted in serious injury rather than death, though the court did acknowledge that Parliament had singled out the consequence of death as calling for particular sanction. However the lack of greater sentencing powers, had the consequence been serious injury, results also from the choice of charge. There is a peculiar reluctance to condemn actions as “dangerous” or “deliberate”, which in any other context would be unhesitatingly so described. Judge Peter Moss, when sentencing a man (Robertson 10.11.09) who had run down and seriously injured a cyclist in a road rage incident, described his sentencing powers (two years’ imprisonment) for dangerous driving as “absurdly low and incomprehensible”.
On the facts in Robertson, a decision to prosecute for assault occasioning actual bodily harm (five years’ imprisonment) would have helped. In Los Angeles, Dr Christopher Thompson was recently convicted on seven counts including assault with a deadly weapon after a road rage incident injuring two cyclists. In the event, in Rice’s case (but not Hall’s), the Court of Appeal decided that it was appropriate to suspend the custodial sentence.
Considering Rice’s appeal against his two year driving ban, the Appeal Court sympathised with the predicament of a man who had chosen a lifestyle which made a driving ban a serious impediment to keeping his job and reduced the ban from 24 to 12 months. This is the same period for which Hall was disqualified from holding a driving licence as a consequence of his offence committed on a bicycle.
Challenge
When cyclists take to the roads, it is crucial that the risks posed to them by motorists are minimised. This requires a willingness to challenge the car culture. Police, prosecutors and judges, as well as legislators, have an important role to play in achieving this.
Martin Porter QC, 2 Temple Gardens
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