Wednesday, 29 January 2014

Regaining Focus

Today has been an interesting day in the world of cycling social media. You'd have to have been on another planet today (or not on social media!) to not notice the hulabaloo about the Advertising Standards Authority. I even managed to have my own say on the subject.

There has been a lot of anger generated.

Yes, they were stupid, yes we need to make sure that the ruling is changed, and yes it once again highlights the ignorance that anyone who uses a bike faces. However, it is very easy to loose focus when a juicy and easy target like the ASA comes along. I say this because a much more sinister news item was brought to my attention today.

Today a driver was found not guilty of killing a cyclist by dangerous driving.

Obviously we should always be careful when reporting on the facts of a case when we don't have all of the evidence before us, however, let's look at what facts we do have.

Mountbatten Way, Southampton

  • Cyclist was cycling along Mountbatten Way, a nice straight road.
  • Cyclist was wearing all the ASA approved safety gear (reflectives and helmet)
  • Cyclist also had lights on his bike (though it is not clear if they were on at the time)
  • Driver of mini-bus was driving along this road and passed the David Irving, the victim
  • Driver hear a loud bang, saw his wing mirror slam into his vehicle and thought he hit a road sign, but kept driving on.
  • Cyclist was hit by the wing mirror which smashed his helmet to pieces and was killed by the impact.
  • It was only later when the driver heard about the serious incident from elsewhere, that he contacted police.
  • Driver claimed he was driving slowly and that the sun had reduced his visibility

Now if I'm completely honest, I don't believe much of the drivers story. I suspect that many others feel the same. Driving slowly? Really? Didn't know he had hit a cyclist? Really?

I'm not going to go there, though. I'm going to assume that his story was true, which means we have a driver that was driving slowly along a straight road, slowly enough that he can stop within the distance he can see....

Distance he can see? Yes indeed, that is the way all drivers are expected to drive. Hmm. Then we hit a snag here don't we? Either one of two things actually happened here?

  1. He wasn't looking properly, i.e. he was distracted, and you have to be distracted for a long time if you hit a yclist, driving slowly on a straight road....
  2. He wasn't actually driving as slow as he thought...i.e. he was driving too fast to stop in the distance he could see.
  3. He had seen the cyclist, but thought he was too far out and thought he'd give him a close pass, which would teach the cyclist a lesson. Unfortunately he forgot about his wing mirror.

Opps. That was 3 not 2. Sorry about that, I forgot I wasn't straying from the facts that we know, although I have to admit, having cycled for a number of years on the road and having had experiences that have felt like punishment passes, 3 is a possibility.....

Anyway, if either 1 or 2 are true, then.....he was driving at a standard below which he should be expected to drive....i.e. Carelessly or Dangerously. So the fact that we also know that Mr Irvine had unfortunately died, it stands to reason that the court has to find the defendant guilty of, at the very least Death by Careless driving!

They didn't though

Running through the logic of this, that means that the jury decided that he wasn't driving, at least carelessly. Thus, he was driving at a standard expected of a normal and competent driver. Therefore......

...had any of those jurors been driving that minibus down that road at that time, they would probably have done the same.

That is a point that is really worth pondering.

The jurors have effectively admitted that they drive in a manner that could quite easily kill a cyclist, and it would just be one of those things, one of those know....something that happens that is no-one fault, just an act of God.....

Do we really believe that this was an act of God? 

I wonder if the jurors actually pondered this thought. I wonder if the judge instructed the jury to ponder this thought, the thought that, if I claim the right to use the 'there but for the grace of God go I' get out clause, then I too could be the man or woman standing there defending myself against the killing of that cyclist.

I drive in a manner that can can kill an innocent man, woman or child, on a straight road and my only excuse would be it was a bit sunny.

What is the answer then? How can we change this cultural justice?

In the past I've argued against new laws, but I do wonder if that is what is needed. Do we need a new law that makes responsibility absolutely clear and in some way protects the vulnerable cyclist better? Would additional guidance for the use of existing laws be sufficient?

I don't have the answer, but something needs to change. Until then, cyclists can almost be killed on our roads, with impunity.


  1. You mention causing death by dangerous driving and careless driving but what he was actually acquitted of was causing death by driving without due care and attention. That's right the jury couldn't even find the will to convict him of that pathetic charge!

  2. I have immediately contacted my MP on learning of the outcome of this case. Thanks for posting about it. Nothing more could demonstrate the obvious need for strict liability laws than this court outcome.

  3. Firstly, if I'm lying dead on the road I don't much care if it was an accident or a deliberate act. So rather than me being dead for no good reason then locking up someone else and throwing away the key, I'd much prefer if I wasn't run over in the first place.

    That requires decent segregated infrastructure.

    But until hell freezes over there really does have to be something done to curb the unfair dominance of cars on the road, especially those piloted by aggressive or incompetent dimwits.

    If the situation is what it seems to be from reading the news, that an in-group of motorists is consistently unwilling to convict members of that same in-group, despite the fact that the CPS or procurator fiscal consistently has enough confidence in the evidence to put the prosecutions forward in the first place, then it's obviously a big problem. Unfortunately it's something that no one outside the internet cycling community has even noticed, never mind talking about doing something about it, so I'd really like to know if there are any actual statistics gathered somewhere to back up our suspicions. (sorry I'm a scientist at heart!)

    It doesn't help much that the charges are so subjective. It seems that from the CPS to juries, and from person to person, no one can agree on what precisely constitutes "obviously" dangerous or careless driving, (even though we've all supposedly been trained to the same extent well enough to pass the same driving test).

    But get caught with too much alcohol in your blood, or going over the speed limit, then there's a clear scientific dividing line you cross where you automatically pass over the "guilty" threshold that we can all see with the naked eye, without a jury needing any special training or being asked subjective questions. That's the basis of strict liability in a criminal law sense, the not needing to prove a mens rea (guilty mind) in order to prove guilt, but only the existence of the actus reus (guilty act).

    So maybe the law should be changed to stop talking about subjective dangerous behaviour, but start simply talking about the objective dangerous outcomes. If you hit someone from behind on a straight road in broad daylight, or you hit someone head-on while on the wrong side of the road, if you close pass a cyclist, we should be able to automatically say you're a criminally negligent driver - go straight to jail, do not pass go, do not collect £200.

    From Wikipedia: “Strict liability laws were created in the 19th century to improve working and safety standards in factories. Needing to prove mens reas on the part of the factory owners was very difficult and resulted in very few prosecutions. The creation of strict liability offences meant that convictions were increased.” Just swap factories with roads and swap factory owners with car owners.

    1. The Road Share campaign for Stricter Liability which Cycle Law Scotland is promoting would only apply in Civil Law not Criminal Law. It would though hopefully make all road users more aware of their responsibilities and bring some degree of protection to the more vulnerable road users. Segregated infrastructure is of course still the ultimate solution but that cannot and will not happen overnight. A change in legislation could happen quite quickly if the Scottish Government agrees to it.

    2. I struggle to see why only civil law should change, but if it gives a way to cause enough financial hardship to get these people off the road and make others pay attention then I can accept it would be worthwhile. Is there any real support from our rulers?

  4. Further facts are:
    The driver stopped in a layby a while later.
    He called his father who lived nearby and asked him to check the scene.

    Why would anyone do that if you thought that it was a bus sign that you had hit.
    You would only do that if you knew or reasonably suspected that it was a person that you hit.
    Justice has not been served and something needs to be done. Not later with infrastructure but NOW with strict liability.

    1. The Road Share campaign for Stricter Liability which Cycle Law Scotland is promoting would only apply in Civil Law not Criminal Law. It would though hopefully make all road users more aware of their responsibilities and bring some degree of protection to the more vulnerable road users. Segregated infrastructure is of course still the ultimate solution but that cannot and will not happen overnight. A change in legislation could happen quite quickly if the Scottish Government agrees to it.

  5. Segregated infrastructure. Until we have that properly, Speed limiters, black box recording, and sensible (I.e. low) speed limits.

    Since none of this will happen, with too expensive as the excuse, a simple partial solution, cheap for our legislators. Automatic life ban an imprisonment for anyone who kills a cyclist or pedestrian with a motor vehicle. No trials, no excuses.

  6. Surely even hitting a bus stop post while you are driving along, would count as "driving without due care and attention"? I mean, its not like those things just jump into the road at you...

  7. Another sad day for cyclists in the UK :-(. I do think it's time that if you kill another road user and can offer no credible evidence then that should at the very least warrant a life time driving ban. I also read somewhere that the police came unstuck under cross examination. All in all a very sad day :-(