Sunday, 15 October 2017

The road to freedom - why cyclists need protecting not prosecuting

In blogging topicality is everything. It is a source of wonder to me the speed with which some other legal bloggers manage to publish posts in the hours or even minutes after a high profile legal development.  One of the biggest impediments to part time blogging is that the full time job often prevents swift commentary and analysis.  And for that reason I felt that I had lost the moment to comment on Charlie Alliston who tragically hit Kim Briggs with his bicycle on Old Street resulting tragically and senselessly in her death.

It was a tragedy that in its immediate aftermath and during his trial at the Old Bailey that he struggled to acknowledge let alone, it would seem, accept any responsibility for.  Kim Briggs' widower, Matthew Briggs, has been left to raise their two small children alone without the love and support of his wife.  In those circumstances Mr Briggs' call for a review of cycling laws is wholly understandable.  The desire to find agency amidst the desolation of sudden bereavement must be all consuming and the belief that a change in the law might prevent a recurrence attributes some measure of meaning to an otherwise pointless tragedy.

The government has announced a review and in due course, no doubt, we can expect a proposal that the offences of death by careless and death by dangerous cycling will be enacted with maximum sentences matching their motoring equivalents namely 5 and 14 years' imprisonment.

There seem to be two main criticisms of the legislation under which Mr Alliston was prosecuted.  First it was old and weird sounding and secondly it attracted a maximum sentence of 2 years' imprisonment.  Dealing with the first complaint, true it is that having been acquitted of manslaughter by the jury they were left to consider an alternative count indicting him with wanton and furious driving under the Offences Against the Person Act 1861.  No mention of bicycles and no mention of death.  But instead the use of an Act under which all but the most trifling of assaults have been prosecuted for the last 158 years without complaint.  Old of itself is not bad.

Turning to the next complaint: the putative inadequacy of the maximum punishment.   The Secret Barrister comprehensively surveyed this case, these proposed changes and the sentencing implications in a recent post.  To the bereaved death by gun, knife, car or bike, most deliberate or most fleetingly reckless act does not alter the fact that death is loss forever.  The harm caused is identical.  Risk and intention are of course dramatically varying.  In recent years the penalties for death on the roads have started to focus relentlessly on the harm caused over and above the risk posed and the intention revealed.

I thought the moment to comment on all of this had passed but I should have predicted that the Daily Mail would ensure that impetus for a change in the law would not dissipate.  First it reported this tragic incident from May 2016 where no prosecution ensued.  Then it sought to survey deaths in bicycle collisions generally calling for a 'crack down'.  The big statistic is that in the last 7 years 25 pedestrians have been recorded as dying as a result of a collision with a bicycle.

Here are some statistics for road accident fatalities for 2000-2013 taken from GOV.UK:
YearRoad accident fatalities% change from previous year
20003,409-0.4
20013,4501.2
20023,431-0.6
20033,5082.2
20043,221-8.2
20053,201-0.6
20063,175-0.9
20072,946-7.1
20082,538-13.8
20092,222-12.5
20101,850-16.7
20111,9012.8
20121,754-7.7
20131,713-2.3
Dealing with risk.  It is vastly more realistic to speak of the risk to cyclists than it is to speak of the risk from cyclists.  Cars are manufactured with a plethora of safety features to protect their occupants in the event of a collision.   Bicycles have zero safety features.  The biggest incentive there will ever be to a cyclist not to hit a pedestrian is the risk of harm to himself from any collision.  That is a very powerful incentive.  Far more powerful than even the longest prison sentence.

The biggest risk to cyclists is from motorised vehicles, in particular HGVs.  It is that risk that causes a number of cyclists, very regrettably, to cycle on pavements or in pedestrianised areas.  But it is relevant to acknowledge that they are doing that in almost all cases out of fear for their own safety.  

The Daily Mail and its ilk quite frankly hate cyclists.  When it is not deriding them it is calling on them in the most vigorous term to be controlled, regulated, limited, contained and ideally driven off the roads.  One only has to read the gallons of bile posted by its readers to see that this is a popular cause.  Cyclists must be licensed, they must be taxed, they must be insured, they must be number plated, they must be MOTd.

There is a simple reason why many motorists hate cyclists and that is freedom.  There is in this tiny crowded island a huge disconnect between the promise of driving and the reality.  I know because I drive and I have driven journeys that have taken me two or three times longer than it would to ride.  Was my car journey really necessary, probably not, was I harming the environment, definitely, was I wasting my money, definitely, was I getting fatter and unfitter, definitely.  And yet why did I do it? Because I am lazy, because there was no sanction or opprobrium either from the government or my friends and family, because the allure of the open road and convenience always eclipses reality.  However the risk I pose to others when I get behind the wheel is so vastly greater than that when I get on the saddle.  I believe the law should reflect that at least.

Cycling is still a weird outlying activity subject to animosity from the majority.  'Toughening up' cycling laws in a 'crack down' will do nothing to address the real threat to our safety and to our planet.  For that reason I can't support legislation that implies that the risk posed by cycling can in any way be equated with the risk posed by driving.

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