Whose Objective Is It Anyway?

June is nearly upon us, and with it the end of the consultation period for the government’s “cycle safety review”.

Just enough time, then, to look back at the legal advice procured by the government in relation to that review; specifically, in relation to the proposed introduction of new cycling-specific offences.

The full document containing that advice is publicly available, and can be found on the gov.uk website. There are several points I could pick up on, but I’m going to address only one short section of it; namely paragraphs 6.7 and 6.9, which play an important part in supporting the opinion that more cycling offences should be created. Together, they are as follows:

Importantly, the tests for dangerous and careless driving/cycling are objective ones. Whilst it is primarily a question of fact as to whether the driving/cycling departed from the required standard, the only subjective element is in respect of consideration of the particular circumstances of each case, without the benefit of hindsight. An objective test [is] preferred in modern jurisprudence as it renders a defendant accountable to a readily identifiable and measurable benchmark.

These statements probably seem quite reasonable. Objectivity is indeed a good thing: both from a practical point of view and, most people would agree, from a moral one.

However, the claim of objectivity on which these statements are based is highly questionable.

The document implicitly states that “the tests for dangerous and careless driving/cycling render a defendant accountable to a readily identifiable and measurable benchmark”. But in reality no such a benchmark exists.

To remind you of the tests to which the document refers, and upon which the proposed new offences would rely, the Road Traffic Act defines the benchmark as that of “a competent and careful driver [or cyclist]”.

It is a benchmark of sorts, but it is neither “readily identifiable” nor “measurable”. What constitutes competence or carefulness? The statute book does not say.

Regular readers may recall that in the case of R v Lawrence, concerning the offence of causing death by reckless driving (the precursor to that of dangerous driving), Lord Diplock ruled the following in the Court of Appeal:

“It is for the jury to decide whether the risk created by the manner in which the vehicle was being driven was both obvious and serious and, in deciding this, they may apply the standard of the ordinary prudent motorist as represented by themselves.”

Thus is defined the benchmark for driving offences: regardless of their own abilities and attitudes, and indeed regardless of whether they drive or cycle, jurors are to use themselves as that benchmark.

Lord Diplock could scarcely have written a clearer definition of subjectivity.

And, before you raise your hand to say that actually there is an objective benchmark: the Highway Code is not significantly relevant here. There is not one piece of legislation which refers to it. There have been trials where jurors have been invited to consider the Highway Code; but equally there appear to have been others where they have been invited (by the judge, no less) to ignore it. The Highway Code has no legal status whatsoever beyond being just one factor in people’s subjectivity: it is no more and no less weighty than Alvin Stardust (although it is generally less creepy).

Oddly, at least one of the offences eschewed by the legal advice seems rather more objective.

Unlawful act manslaughter requires that the following be proven: That the defendant knowingly committed an unlawful act, and that the unlawful act was one which all sober and reasonable people would realise would subject the victim to the risk of some physical harm resulting therefrom; whether or not the defendant realised this.

Pretty objective, right? Many unlawful acts are strict offences and are easy to prove: speeding, driving in excess of the alcohol limit, using a mobile phone at the wheel, driving on the pavement, ignoring a stop sign, riding a bicycle with no brakes, and so on. In the context of unlawful act manslaughter these are benchmarks, and they are all “readily identifiable and measurable”. All that’s required is for there to be a generally understood realisation that these acts pose harm to others, and that’s all the boxes ticked.

Whereas with the offences defined in the Road Traffic Act, aided by the judgements of the Court of Appeal, the test has seemingly been boiled down to jurors asking themselves, “has this person done anything much worse than I do myself?”

To claim that a test is objective simply because a benchmark exists is highly misleading: the test cannot be truly objective unless the benchmark itself is also objective.

But then, there is one other word whose usage might also be called into question.
It’s in the government’s introduction to the document. See if you can guess what it is.

“The Department for Transport appointed Laura Thomas of Birketts LLP in line with our commitment that phase 1 of the Cycle Safety Review announced in September 2017 should be informed by independent legal expertise.”

Before you guess at the word I’m referring to, it’s worth reminding you of some context here.

Four years ago Chris Grayling (of “cyclists don’t count as road users” notoriety) promised “a full review of all driving offences and penalties”, since when the government’s delivery on that promise has been remarkably lethargic—despite the fact that in the same period around seven thousand people in the UK will have lost their lives in collisions involving motor vehicles. Yet just three days after the sentencing of Charlie Alliston, with the media still churning out fresh opinion pieces about it, the government announced an “urgent” review of cycling laws. And this time there was no lethargy: the review hit the ground running and just eight months later it’s already coming to the end of its consultation phase.

So, with that context in mind…

When the “independent” legal advice supporting the proposed new legislation is procured from Birkett’s, a member of the Road Haulage Association’s legal panel; and when it is authored by Laura Thomas, who is an ex-director of the Freight Transport Association and a deputy transport commissioner appointed by Chris Grayling, and of whom the RHA’s Peter Butler apparently said “[she] has worked as an RHA panel solicitor for a number of years [and] has always served our members very well”, one has to ask:

“Independent” of whom?

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