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Keoghs Insight

We keep you up-to-date on emerging market issues and their impact on the insurance sector, through a variety of publications, events and our leading market initiatives.

Author

Neena Sharma

Neena Sharma

Partner

T: 01204 677135

Cyclist conviction lays bare antiquated legislation

Blogs||12/09/2017

Last month saw a high profile case following a collision between a cyclist and pedestrian which saw the cyclist in the dock charged with manslaughter. The accident occurred on a busy road in London, where a pedestrian was crossing the road. Despite the cyclist shouting at the pedestrian to attract her attention and slowing to between 10 and 14 miles per hour, a collision ensued with the pedestrian sustaining severe head injuries and tragically passing away a week after the collision.  

At the time of the incident the cyclist was riding a fixed wheel bicycle, generally used by track racers, which didn’t have any front brakes, contravening the Pedal Cycles (Construction and Use) Regulations 1983.  The prosecution alleged that the cyclist would have been able to bring his bicycle to a stop had it been fitted with front brakes. The defence disputed this stating that even if the bicycle had brakes the collision would still have occurred. The court accepted that the cyclist’s speed at impact was up to 14 miles per hour.  

When analysing the prosecution’s expert evidence, it is safe to assume that, had the cyclist been travelling at 18mph prior to slowing down, his braking distance would have been 12 metres. It was alleged that if his bicycle had been fitted with a front brake he would have been able to stop in three metres which, in my extensive experience of motor prosecutions, is simply not credible.
 
Had the incident involved a motor vehicle, the Highway Code when factoring in reaction time, gives a typical stopping distance of 12 metres for a vehicle travelling at 20mph. By analogy this means that a slow moving vehicle would not have been able to avoid a collision had a pedestrian stepped out into its path at such a speed. If this is correct it is debatable as to whether a motorist would have even been charged with careless driving in a similar situation. Under the circumstances it seems odd that the cyclist in this case was charged with manslaughter. Given his speed, this would ordinarily not have crossed the threshold for dangerous driving let alone a charge of manslaughter which requires gross negligence.  

Eventually the cyclist was cleared of manslaughter but convicted of causing serious injury by wanton and furious driving, which is an offence under the Offences Against the Person Act 1861. This is unusual as it is such an old offence and it was probably not envisaged, when enacted, that it would be deployed in a case such as this.  

Section 35 of the Offences Against the Person Act 1861 states:

“Drivers of carriages injuring persons by furious driving Whosoever, having the charge of any carriage or vehicle, shall by wanton or furious driving or racing, or other wilful misconduct, or by wilful neglect, do or cause to be done any bodily harm to any person whatsoever, shall be guilty of a misdemeanor, and being convicted thereof shall be liable, at the discretion of the court, to be imprisoned for any term not exceeding two years.”

The offence was originally brought in to deal with incidents involving horse drawn carriages but is occasionally used to charge individuals who cause bodily harm with a vehicle that is not a motor vehicle and usually relates to speed.  The conviction for wanton and furious driving in this case is rather surprising as 18mph is not the type of speed which one associates as being too fast for a busy London road.     

In the last ten years, the 1861 offence, which carries a maximum penalty of two years imprisonment or a fine, has been used to prosecute only two cyclists; Darryl Gittoes in 2007 and Darren Hall in 2009.

In this case the alternative offences available to the prosecution were:

The offences listed above are clearly not as serious as a charge of manslaughter/wanton and furious driving as they carry a fine and can be heard only in the Magistrates court.  Indeed, there are no offences involving “causing death” by dangerous or careless cycling. This may explain why the prosecution took the stance they did in charging the cyclist with manslaughter, despite evidential analysis making it difficult to reconcile how the expert evidence could have deemed this manslaughter or even wanton or furious driving. It also appears the cyclist did not call any expert evidence which is unusual in a case of this nature.

Furthermore there is no legal obligation for cyclists to have compulsory insurance, which may be an area which requires review (although it could be that cyclists are insured through their motor policies under extensions and/or household insurance policies).

This case comes at a time when there is mounting pressure with regards to road safety and deaths and serious injury which occur on the UK’s roads. The government announced last week that the transport secretary will examine whether the offence of dangerous driving should be extended to cyclists whilst consideration is being given to the introduction of a new offence of causing serious injury by careless driving. The beginning of 2017 also saw the Ministry of Justice carry out a consultation on sentencing provisions relating to driving offences.

This is not the first time MPs have considered revised cycling laws. In 2012 Andrea Leadsome proposed new legislation for dangerous or reckless cycling which failed to secure the required government backing. Whilst this case clearly demonstrates the need to review and update legislation regarding cyclists involved in fatal or serious injury accidents, it must only be applied when there is an evidential basis to pass the threshold test for such a prosecution.

For more information please contact:

Neena Sharma
Head of Motor Crime
T: 01204 677135
E: nsharma@keoghs.co.uk

Rekha Sharma
Assistant Solicitor
T: 01204 672350
E: rsharma@keoghs.co.uk