Well I had certainly hoped to start the New Year on a happier note but the combination of several national media stories and bicycle blogs about how the legal system doesn't deal with dangerous, or should that be murderous, driving cases and then cycling past a billboard advertising a Manchester-based law firm offering to save a drivers licence if they had been charged with driving too fast, over the alcohol limit or in a dangerous manner prompted me look a little closer into how the legal system responds to cycle related incidents.
A BBC London news article reported on 7th January 2011 that fomer British Boxing champion Gary Mason had died in a cycling collision in London. The article stated that: "Mason, 48, was on his bicycle in Sandy Lane South, Wallington, on Thursday morning when he was involved in a collision with a van. The retired fighter was pronounced dead at the scene." and that: "A man has been arrested on suspicion of causing death by
careless driving and bailed until March pending further inquiries."
Whilst the exact details of the case are not (yet) known it is interesting to note that the driver was only charged with causing death by careless driving.
Careless (or Inconsiderate) Driving is defined by the Road Traffic Act 1988 (Section 3ZA, as amended by the Road Safety Act 2006) as being driving that:
“falls below what would be expected of a competent and careful driver.” A driver is regarded as driving without reasonable consideration for other persons
“only if those persons are inconvenienced by his driving”.
Whilst Dangerous Driving is defined as driving that:
“…falls far below what would be expected of a competent and careful driver, and it would be obvious to a competent and careful driver that driving in that way would be dangerous.” …"dangerous” refers to danger either of injury to any person or of serious damage to property;” [Road Traffic Act 1988, as amended by the Road Traffic Act 1991. Section 2A.]
On 9th January, the Independent newspaper published an article highlighting the Gary Mason case as well as the experience of barrister Martin Porter who was documented his recent experiences with the police and Crown Prosecution Service (CPS) after having been assaulted by one driver and threatened with being killed by another. The details of the assault incident and the woeful response from the police and CPS are detailed on Martin Porter's blog - the Cycling Lawyer. (The details of the driver threatening to kill incident have been removed from the blog as the police have re-opened the case and are currently investigating).
In 1997, the Lord Chief Justice had observed how the the figures for Careless Driving or Dangerous Driving (CDDD):
"seem to us to show that the offence is regarded by the Courts as less serious than in fact it is: less serious than Parliament intended it to be and less serious than the public in general regard it. It is a trite observation, and I make no apologies for making it, that the motor car is a potentially lethal instrument. Any driver who fails to realise that what he is doing at the wheel is creating a risk when to any ordinary person such risk would be obvious, or, even worse, sees the risk and nevertheless takes a chance on avoiding disaster and so kills, is prima facie deserving of severe punishment. In our view such punishment should in many cases involve immediate loss of liberty."
By March 2006, Alistair Darling (then Transport Secretary) was arguing in the House of Commons that: 'It is important that the courts actually regard somebody who kills somebody using a car in the same way as if they had used any other means of killing people,''and that 'It's important that drivers realise that the minute they sit behind the wheel of a car they are potentially driving something that can cause death or serious injury.'' (
BBC News, 8 March 2006).
However, any progress appears to be slow and piecemeal and cycling & walking campaign groups, such as the CTC, continue to argue that the police and legal system do not show sufficient interest in prosecuting drivers who cause the deaths or serious injury of pedestrians or cyclists and that even where there are prosections the sentences imposed do not reflect the seriousness of the crime.
A fascinating paper by Jake Voelcker entitled "A Critical Review of the Legal Penalties for Drivers Who Kill Cyclists of Pedestrians" takes as its starting point a CTC news comment:"
“A driver has been fined just £800 for ‘careless driving’, following the death of a cyclist. The case follows an all-too-familiar pattern, where a cyclist is killed yet the driver escapes with a small fine and a driving ban for ‘careless’ driving due to serious anomalies in the legal framework of ‘bad driving’ offences.” (CTC 'Newsnet', 27th October 2006)
The review provides a fascinating and clear, if depressing, picture of how poorly the legal system responds to cases where drivers have killed, or seriously injured, cyclists.
Amongst many interesting comparisons the review highlights how the "Health and Safety regulations would not permit thousands of one-tonne steel and glass machines with exposed moving parts to repeatedly pass feet or inches away from unprotected workers on the shop floor at well over 10m/s (HSE 1998, Sect.11). Yet this is the situation in our towns and cities today. Why are drivers allowed to impose this danger on pedestrians without more strict prosecution of liability?"
The review concludes that "it must be admitted that driving is not an absolute human right, but is a privilege enjoyed only by some. In choosing to drive – despite being aware of the potential consequences – a driver has entered into a form of contract where they are be responsible for the consequences of their actions. In this light it is only fair that, whether through recklessness or simply a moment of carelessness, if the consequences of driving are death then the driver is penalised accordingly. Currently this is not the case: an £800 fine for taking an innocent life seems a ludicrously low price to pay."
CTC's SMIDSY (Sorry Mate I Didn't See You) campaign aims to highlight the need for a change in both the legislation and the way that the police and courts respond to careless and dangerous driving cases. CTC believes that:
• The framework of ‘bad driving’ offences and sentencing should be fundamentally overhauled
to reflect the unacceptability of endangering and intimidating other road users. Sentences
should reflect the potential severity (not just the actual outcomes) of such offences, but with
a much greater emphasis on long driving bans, re-testing and community-based sanctions
such as restorative justice.
and that the statutory framework of bad driving offences needs to be reviewed with two key aims in mind:
• To relate sentencing more closely to the standard of driving rather than the outcome.
• To remove the implication that driving that causes danger can be dismissed as mere
‘carelessness’. (More details here)
they are "Specialist solicitors who will fight for your driving licence."
The company website claims that:
"Our team has many years experience in the field of criminal defence work and we believe that we are the only firm in England and Wales that delivers the best results possible for clients with road traffic problems."
The car image on the billboard has clearly been involved in a crash of some form (the front of the car is badly crumpled and damaged). The advert text asks the question: Driving Offence?
Speeding?
Excess Alcohol?
Dangerous Driving?
with the strapline of "Save your licence with Driving defences.com" [which is a division of Hammond Trotter LLP].
According to the Department for Transport "Contributory factors to reported road accidents
data tables" drivers being impairedby alcohol was a contributary factor in 10% of the road crash fatalities in 2009 whilst driving in a careless, reckless manner or when in a hurry was a contributary factor in 19% of the road crash fatalities. Aggressive driving was responsible for 9% of road crash fatalities. Unfortunately, it would appear that Hammond Trotter won't be short of potential customers.
Best wishes for 2011 and may you all cycle safely.
