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Cycling law expert Mark Hambleton looks at what laws are available to the police to punish drivers who endanger the lives of cyclists

I’ve found it impossible to resist the urge to begin this blog with a caveat – typical solicitor thing to do, I know – sorry! My specialism is civil law as opposed to criminal law, but that isn’t going to put me off giving my view on the criminal charges that motorists might face for killing, injuring or intimidating cyclists.

The main two reasons why I think (and hope) many of you will be interested in this blog are: firstly, there is a lot being written at the moment about whether laws should be introduced to create the offences of causing death by dangerous or careless cycling and not enough action being taken to make cyclists feel safer; and secondly, the prospect of introducing this new offence to punish cyclists seems to have triggered a healthy rise in the number of cyclists sharing their videos and/or anger at their treatment out on the road. Often, nothing is done to punish or improve driver behaviour – even though we know that motorists are the biggest danger to road safety.

What laws are available to punish bad drivers?

The starting point has to be an examination of the charges available to the Police and Crown Prosecution Service (CPS) to deal with dangerous, reckless and careless driving on our roads.

Based on the things I have found most dangerous, frightening or intimidating when I’ve been cycling, here’s a useful summary of the criminal charges (ignoring those charges where motorists are under the influence of alcohol or drugs):

  • Manslaughter is obviously an extremely serious charge. The maximum sentence is imprisonment for life but a guilty plea may reduce the sentence by up to one third. This charge should be considered where: a) it is proved the motorist used their vehicle as a weapon (without deliberate intent to kill) or b) where the motorist’s driving caused death and fell far below the standard of a careful and competent driver, involved an obvious and serious risk of death, was a gross breach of duty of care and was so far below the minimum acceptable standard of driving as to amount to a crime.
  • Dangerous driving and causing death by dangerous driving are two separate charges and obviously depend on the outcome for the victim. The key question is, was the vehicle being driven dangerously? It is defined in the Road Traffic Act as: the way they drive falls far below what would be expected of a competent and careful driver and it would be obvious….that driving in that way would be dangerous. “Dangerous” refers to danger either of injury to any person or of serious damage to property. Motor vehicles in a poor state of repair can also be “dangerous”. In terms of the punishment for causing death by dangerous driving there is a possibility of an unlimited fine, a driving ban and up to 14 years in prison. Dangerous driving carries with it a maximum sentence of two years in prison and an unlimited fine and a minimum disqualification of one year.
  • Careless (and inconsiderate) driving and causing death by careless driving. The offence is defined in the Road Traffic Act as follows: if a person drives a mechanically propelled vehicle on a road or other public place without due care and attention, or without reasonable consideration for other persons using the road or place, he is guilty of an offence.” This charge is appropriate where the standard of driving falls below what would be expected of a reasonable and competent driver. A guilty verdict could result in a driving ban, an unlimited fine, or a prison sentence of up to five years. The maximum penalty for careless driving (also known as driving without due care and attention) is a fine and disqualification or points (3-9).
  • Serious injury by dangerous driving. This offence is committed when the standard of driving is dangerous and results in another person suffering a serious physical injury. The maximum punishment (if the case is heard in the Crown Court) is five years in prison and/or a fine and disqualification for at least two years.
  • Driving without reasonable consideration. Motorists commit this offence when their driving inconveniences other road users. The CPS website says that ‘this offence is appropriate when the driving amounts to a clear act of incompetence, selfishness, impatience or aggressiveness in addition to some other inconvenience to road users… e.g. misuse of any lane (including cycling lanes) to avoid queuing or gain some other advantage over other drivers or driving through a puddle causing pedestrians to be splashed. The penalty is the same as for driving without due care and attention.
  • Causing death by driving: unlicensed, disqualified or uninsured drivers. The offence does not require proof of any fault in the standard of driving. The onus is on proving simply that the motorist was unlicensed, disqualified or uninsured. The maximum penalty is two years imprisonment and the minimum disqualification is one year.
  • Driving without insurance. We all know about mandatory motor insurance. If you’re not insured, the minimum punishment is a fixed penalty fine of £300 and six penalty points. More serious cases (fact dependent) will be heard in court. The level of fine imposed by the court is unlimited and the uninsured driver can be disqualified.
  • Driving without a licence. The maximum fine is £1,000 and disqualification is an option.
  • Driving during a period of disqualification carries with it the potential for a six-month prison sentence, an unlimited fine and a further disqualification from driving. Driving without an MOT means a £100 ‘on the spot’ fine or up to £1,000 if it goes to court. Motorists receive three points and a £100 fine per fault if their vehicle is also unroadworthy.
  • Using a mobile phone. Motorists are prohibited from using a held-hand mobile telephone or a hand-held device while driving a motor vehicle on a road. A person may be regarded as driving whilst the engine is running and the vehicle is stationary. The penalties for using a hand-held mobile phone or device whilst driving have increased from three to six penalty points and from £100 to £200 when the driver is issued with a fixed penalty notice. In the event that the matter goes to court, a discretionary disqualification can also be imposed and the fine increased to £1,000.

Are these charges fit for purpose?

If we pause here, my feeling is that we have a solid framework of laws to punish bad drivers. If we were to start again with a blank sheet of paper, I suspect the sliding scale of charges would be similar to those we already have.

On paper, the problem does not appear to be that we have too few charges to fit the offences that we see on our roads.

It appears that, rather, there is more of a problem with motorists actually being convicted for these crimes. If the CPS doesn’t feel confident motorists will be convicted, it’s bound to affect how it proceeds with cases.

By way of a reminder, you can read my previous blog setting out the statistics as to the application of our laws; mainly, how few drivers go to prison or receive a ban despite causing a fatal collision with a cyclist. The statistics show that motorists are less likely to go to prison following fatal collisions with cyclists than following a fatal collision with another road user.

Why is the CPS not charging more motorists?

The CPS is responsible for prosecuting criminal cases. Its function is to decide whether someone has broken the law and whether they should be charged. Making this decision involves an assessment of the evidence and an assessment (based on past experiences) of whether there is a realistic prospect of a judge or jury convicting the motorist. It must be in the public interest to prosecute – you would expect this to be the case if a cyclist has died, for example. Ultimately, however, the CPS chooses the charge.

You can see that this is perhaps where things start to break down. In some cases, the CPS may charge motorists with lesser offences to avoid too many unsuccessful cases, may decide not to charge a motorist at all, or may lose confidence in the people responsible for convicting motorists applying the law in the same way as when the charge was brought.

When motorists are charged following the death of a cyclist, why aren’t judges/juries convicting motorists with more regularity? Worryingly, recent research found that only one in seven motorists will go to prison and only 33% will be disqualified.

As a comparison, there was never any doubt that the cyclist Charlie Alliston, who tragically collided with a pedestrian, was going to receive a prison sentence. There is nowhere near the same public outcry when the offender is a motorist and the victim is a cyclist – perhaps because it happens so often.

So what are the other options available to the CPS – longer driving bans? Cyclists gathering more of their own video evidence to proceed with cases where the cyclist cannot recall what happened/where there are no witnesses? In any case, it’s certainly come to something when victims’ families need to resort to crowdfunding in order to fund a prosecution.

Should sentencing be tougher?

It’s important that the punishment fits the crime, but it’s also important to create a culture of being careful around vulnerable road users, especially at a time when we’re suffering chronic health, traffic and pollution problems thanks to an over-reliance on motor vehicles. In my next blog, I’m going to review some high profile cases involving injuries and fatalities of cyclists in road traffic collisions. I hope to build on this summary of the law as it is on paper to see how it is being applied in practice. Only then will I be able to give my view on whether sentencing should be tougher.

Without spoiling the next blog, despite the (apparently) low threshold for achieving convictions for some of these offences, you will probably be disappointed (but not surprised) by the leniency with which these laws are applied. Is there some sort of sympathy among motorists (whether they be judges, jury members or the defendant in the case) that creates this understanding and leniency so that punishments are not properly handed out? If that proves to be the case, then it reinforces the message that the consequences of driving dangerously around cyclists aren’t to be feared in the same way that cyclists fear dangerous drivers.

After taking up cycling to commute between Bristol and Bath, Mark has seen all sorts of incidents and has become a keen advocate for cycling and protecting the rights of cyclists.

Mark is now lucky enough to combine his passion for cycling with his day job as a cycling solicitor at Royds Withy King.

4 comments

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the little onion [218 posts] 3 weeks ago
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Useful stuff.

 

some questions: can we define dangerous/careless driving not in terms of the subjective aspect of whether it was "obvious" that the standard is "well below""/below the standard of a competent driver", to one where "it falls below the standard of a UK driving examination", or similar? Would this law be watertight, and would it be effective in reducing road deaths? And is there an active campaign to change the law in this regard?

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alansmurphy [1947 posts] 3 weeks ago
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They need to continually charge them with the highest possible offence and continue to demonstrate the lack of convictions and/or leniency of sentence applied...

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Cugel [66 posts] 3 weeks ago
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From the blog:

" Is there some sort of sympathy among motorists (whether they be judges, jury members or the defendant in the case) that creates this understanding and leniency so that punishments are not properly handed out"?

Yes, there is - a lot. Why is this? Because most humans realise that they too are incompetant and irresponsible in a car and that they can't seem to help being so. Why is this?

Personally I feel that the fundamental problem is the car itself, along with some of the design aspects of the infrastructure that cars use to go about. Cars are designed to be fast, to accelerate hard, to be powerful. Humans will generally use all of the power they're offered, which in a car is a great deal.

Advertising for cars amplifies their nature. Cars are sold ar aggresive, thrusting things that are driven about in a macho fashion, in order to impress other humans with that macho - or similar dominant & aggresive behaviour traits that can be amplified and displayed with a car.

*****

Humans are human, with their strange and highly variegated nature. We are devils and angels mixed up together. Jekylls and Hydes. What we need, to reduce carmageddon, is not fultile attempts to change or even punish human behaviours that a lot of humans can't seem to control, but a severe reduction in the amplifiers which cause the car to be used in the current ways that they are, inclusive of large scale death and maiming.

And this doesn't consider the other large harms done by the car - their polution, their tin-littering of every street; their punishment of every family's wallet and health.

Self-driving electric cars may be something towards the answer. But even these are likely to inherit many of the traditions of current motoring, especially too  much speed, on an infrastucture too vulnerable to that speed if you are outside the car.

Personally I would be very radical about it and ban them altogether, despite (or maybe because of) the vast changes to life, work and many other current ways we live. After all, many of the ways of living today are very bad for us, so why not a much more healthy alternative?

Cugel

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TedBarnes [52 posts] 3 weeks ago
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The one that stands out to me is causing death by driving, as the maximum penalty of 2 years seems almost offensive. 

I understand that this is not an offence meant to punish poor or dangerous driving itself, and that in theory (I think), someone disqualified could be charged for this even if they were not "responsible" in the usual sense of the word. So for example, someone stepping out into the road without warning where the driver genuinely couldn't have anticipated or reacted quickly enough. Someone properly licensed & insured would face no criminal liability, even if the pedestrian died. However, an unlicensed driver is "responsible" merely because they shouldn't have been driving at all. 

Even with all of that in mind, I still think it should be higher than 2 years. Anyone getting in a car who is disqualified knows what they are doing. The criminal law should also be able to take into account that, in practice, enforcement of disqualification orders is difficult. When someone is caught, the punishment should be higher as a deterrence to others. 

 

(The exception I'd perhaps be willing to accept is driving uninsured, as you can be technically guilty of that even if you thought you were insured. A friend thought their insurance had been auto-renewed but turns out the payment was refused as their card number had changed. The insurer sent 1 letter (which didn't arrive), but made no other effort to contact via text, email, phone call or even a second letter to say the cover was no longer in place. It's not that often that a declined payment leads to a criminal offence so I think they could make a bit more of an effort.)