An Obvious Problem

23 March 2016

Earlier this month, Aslan Kayardi appeared at Isleworth Crown Court to defend a charge of dangerous driving. The prosecution was a little unusual in that it was brought privately: the Metropolitan Police had declined to prosecute; however, reportedly, the CPS refused the defendant’s request to effectively veto the case on the grounds of insufficient evidence or lack of public interest: the CPS quite clearly considered the prosecution valid and worthwhile.

The incident in question was an overtaking manoeuvre, recorded by Martin Porter on a forward-facing video camera mounted on his handlebar. I’ve watched it; the driver passes quite close and at high speed, but it is not wholly remarkable: my immediate reaction to it was, “I’ve had worse”. Someone else’s was, “that’s a normal Tuesday afternoon.”

So, if this sort of driving doesn’t seem extraordinary to experienced cyclists, why does it warrant prosecution?

The reason is simple: it warrants prosecution because it poses significant risk to others. Experienced cyclists have decided to tolerate this risk and ride anyway, but others are understandably more cautious, and driving such as this is a significant factor in many people’s decision to give up cycling or never start in the first place. It is the sort of thing that is merely alarming until the occurrence of some event which is, whilst foreseeable, rare and therefore unaccounted for by the driver, and then it can easily become catastrophic.

So, as regards the merits of prosecution, the danger is the key: the lack of being extraordinary—in principle, and we shall return to this point—doesn’t matter. The fact that many people do it is not a reason for it to be de facto legal. To risk an analogy: in the 1980s one might have expected fighting to erupt at many football matches (and, just as with cycling, parents may well have felt they were forced to keep their children away from the violence) but the prevalence of crowd violence—no matter how many people tolerated or even enjoyed it—made it neither morally acceptable nor in any way legal.

I’m fortunate enough to have access to three key documents relating to this case: the video of the incident, the investigator’s report and a comprehensive but unofficial transcription of the proceedings. Together these highlight some apparent pitfalls in prosecuting cases of this type.

(Please note that I have included certain quotations from the transcript. It was produced during the trial and takes a few grammatical shortcuts, hence in a number of cases I have made minor grammatical changes to make it understandable; but I have not altered—certainly not sought to alter—the meaning.)

The incident

The incident in question happened at this location, on the A315 in Hounslow. A short distance ahead is a bridge, where the single carriageway narrows, beyond which is a traffic light-controlled junction. The speed limit is 30mph here (something that was not obvious when I first saw the video, otherwise my initial reaction may have been different). The following warning signs are present:

  • multiple “slow” markings on the tarmac (one visible in the image below, and another rae)
  • a “road narrows” warning (again, behind the viewpoint below)
  • a “queues likely” warning (visible below)
  • a “hump-backed bridge” warning (visible below)
  • long dashes along the centre line of the carriageway

a315-hounslow

At the time of the incident it was dark but dry and clear. Oncoming traffic can be seen (and note that there is an additional oncoming vehicle obscured by the Audi in this image).

a315-video-grab

Prior to the case, an investigator’s report was produced which analysed the video evidence as well as Porter’s GPS data in order to produce estimates for the speeds of the car and the bicycle, and the positions of each. This report was of seemingly good quality, using multiple methods of calculation for each figure. It claimed that Porter’s speed was a steady 19mph and the defendant’s was 50-57mph. It placed Porter’s wheels at 1.2-1.5m from the kerb and his right side at 1.5-1.8m; it placed the left side of the Audi at 0.6-0.8m from Porter’s right side (not accounting for the wing mirror).

Note that the lowest end of the calculated speed range, 50mph, is itself at a level for which ACPO guidelines advise prosecution in court rather than a fixed penalty notice and points; in other words, a serious speeding offence if proven.

The verdict

Let’s skip straight to the verdict, which was that the jury found the defendant not guilty. Note that a charge of dangerous driving offers the opportunity to find the defendant guilty of the lesser offence of careless driving, but he was fully acquitted. It took just 24 minutes for the jury to reach their verdict.

That is their decision and people would, on seeing the evidence, understandably have differing opinions as to whether it was a fair one. It’s not a clear-cut thing. It’s also important to note that the fact that the jury reached this verdict does not necessarily constitute a statement that passing someone at this speed and this proximity is not an offence; it is a statement that the evidence presented during proceedings did not convince them beyond doubt that an offence had been committed.

However, before we get to what I think may be the critical reason why this type of driving is so hard to prosecute, it’s worthwhile picking through the proceedings to establish some other problematic factors that arose in this case.

The criteria

The CPS guidelines for the prosecution of dangerous driving state the following:

The following examples of circumstances that are likely to be characterised as dangerous driving are derived from decided cases and the SGC Definitive Guideline:

  • failing to have a proper and safe regard for vulnerable road users such as cyclists
  • speed, which is particularly inappropriate for the prevailing road or traffic conditions
  • disregard of traffic lights and other road signs, which, on an objective analysis, would appear to be deliberate
  • overtaking which could not have been carried out safely

Depending on your point of view, some or all of these probably are exhibited in this case. Taking the wording at face value, my layman’s opinion is that at least the first three are present; and it’s import to reiterate the point that the CPS approved this prosecution, which suggests that they believed at least one applied.

However, whilst these are examples of what may constitute dangerous driving, these are not the criteria against which the evidence is assessed. The offence of dangerous driving is defined in the Road Traffic Act 1988 as follows:

A person is to be regarded as driving dangerously if (and only if) the way he drives falls far below what would be expected of a competent and careful driver and it would be obvious to a competent and careful driver that driving in that way would be dangerous.

The definition of careless driving is less onerous, replacing “far below” with simply “below” and removing the clause requiring obviousness:

A person is to be regarded as driving without due care and attention if (and only if) the way he drives falls below what would be expected of a competent and careful driver.

Naturally, in both cases it is required of the prosecution to prove beyond reasonable doubt that a criminal offence has been committed; the defence is required to prove nothing.

Acceptance of evidence

An obvious requirement of the prosecution is to provide evidence of the offence, which in this case took three main forms: the video evidence gathered by Porter, the expert witness analysis of the recorded evidence, and the appearance of Porter himself in the witness box.

The jury must also consider any evidence provided by the defence. In giving his evidence, the defendant maintained that his car was centrally positioned over the centre line of the carriageway, which naturally implied a greater passing distance.

The judge is recorded as directing the jury to “form opinion about witnesses and which evidence is reliable and which evidence is not. Mr Kayardi has chosen to give evidence in this case and you must give it as much weight as other evidence.” What is arguably left unclear here is the meaning of the word “weight”. Is it synonymous with “credibility”? To give two statements equal weight would, I think, be taken by most people as meaning to consider them to be equally valid.

This interpretation seems problematic with evidence such as video recordings: to use a rather bolder example, if the prosecution evidence in a house burglary case was a CCTV recording which very clearly showed the face of the defendant stealing items from the house, and the defence evidence was an unsubstantiated verbal claim to have been at home watching TV at the time of the burglary, it would be rather odd to think that the sum of this conflicting evidence was zero and no conclusion could be drawn.

Here, the analysis of the video evidence seemingly lacked credence in court: the responses given by the expert witness lacked the conviction that was present in the document, and it is clear from the transcript that the defence leapt on this. Indeed, my impression is that the defendant was likely advised beforehand to emphasise a lack of certainty and verbally offer alternative evidence: this was a very clear line of defence when he was questioned.

Even without the arguably unclear direction as to the relative merits of evidence, I would speculate that for many people it is more natural to empathise with a person’s account of events than it is to grasp mathematical margins of error. And not even the margins of error: many find basic calculations somewhat inaccessible. During cross-examination the prosecution sought to explain the concept of dividing a known distance by a known time to derive a rate of movement—a trivial mathematical matter—but the defendant’s response is recorded as, “I never heard anything like that until I got here, to be honest.”

This all has an interesting implication beyond this case; one which should be borne in mind by anyone who supports laws already implemented in other countries that specify a minimum passing distance.

Measurement is something which sounds simple but is actually extremely complex. Accurate measurement is a fraught subject, and a video recording of moving vehicles is generally a poor foundation for accuracy. It’s certainly possible to derive figures, but the margins of error are significant.

And then you have the issue of many people’s natural distrust of maths. If you wrap the maths up in some complex electrical circuitry, wrap that up in a plastic case, and put a simple numeric display on the front of it then they’ll trust it implicitly: digital watches, satnavs, radar guns and electronic tape measures are packages which are easily understood and easily believed, despite the complex calculations that go on within. And this is one of the key reasons why a “Near-miss-o-meter” is such an interesting thing.

Be wary of distance passing laws. The impracticalities of enforcement are vast.

But I digress.

Portrayal of character

The assessment of someone’s character is an odd facet of trials for driving offences. In many crimes it is of great relevance (and indeed this includes those where a vehicle is used as a weapon). But when it comes to considering someone’s competence behind the wheel, a good nature is not the same as good driving. Most of us will have a dear friend or relative whose standard of driving we find appalling for one reason or another.

The defence made a great deal of Porter’s online presence. His Twitter history was discussed, as was his blog. There was a very clear tactic to portray him as a somewhat vexatious plaintiff: when discussing tweets, the prosecution is recorded as saying to Porter that, “in fact that is what this case is about. Not about Mr Kayardi’s driving on that night in February, Mr Kayardi is a scapegoat.” It was suggested that Porter’s decision to prosecute was a “personal campaign and calculated move”.

This is a curious inclusion in proceedings, since it wholly concerns the period after the alleged offence: there is nothing here which could have provoked the defendant into the act under scrutiny, since by then it was in the past. And there is no suggestion that Porter had incited the defendant to pass closely; the video evidence bears this out. The reasons for prosecuting should surely be moot; the question is simple: was an offence committed?

However, while Porter’s social media postings indicating his support of campaigns for reducing road danger was permitted to influence the jury and form a significant part of the defence’s case, the defendant’s social media postings were not admissible. There are sound legal reasons, discussed during the trial, why they would not be admissible in a certain context (it could not be ascertained that the material showed either the defendant or the committing of an offence) it is not quite so clear to this layman why they were seemingly inadmissible in any context, given the apparent lack of relevance of Porter’s tweets as described above. (By the way, the material is nothing sinister; merely driving related.)

Our relationship with The Highway Code

It is a simple fact that The Highway Code is not a legal document. Some of its content serves as a lay phrasing of certain laws, but it has no strict legal status whatsoever. In the context of dangerous or careless driving, it is often cited as a reference, but its application in the context of actual legal proceedings is—for better or for worse—somewhat flexible.

Proceedings in this case contained a few interesting contributions. From the defence, referring to the illustration accompanying Rule 163 in the Highway Code: “Those of you who drive and those of you who are road users, you’ll be aware of Highway Code and aware that that photo is not what it looks like when driving. How often do you get that sunny road, that marking, that opportunity? No, this is real life.”

the-highway-code-rule-163

Somehow these factors are considered reason to pass closely (and, in this case, at speed with oncoming traffic). Darkness is a factor in not being able to leave space? Perhaps it is also a factor in apparently driving at over 50mph while doing so.

The defendant offered this reasoning: “The rules say give enough room if it’s available. If not enough room, do it within fair distance, which I have.” This is, of course, a commonly held view: if there’s not enough room, do it anyway. Don’t wait until enough room is available, just do it. Anyone who cycles will be quite familiar with many people’s tendency to either pass closely or to play chicken with an oncoming road user rather than wait for even a couple of seconds for enough room. The phrase “not enough” should perhaps serve as a hint, but no.

Disturbingly, at one point even the prosecution appeared rather relaxed about safe driving, saying in the closing speech that the defendant “was, as I put it, driving for sport. All very well on the track; all very well on the road where there is visibility for hazards and room to avoid them; but as I say, on the A315 at 7:00 in the evening, here: not OK”. A very clear implication that “driving for sport” is acceptable on the highway provided the driver doesn’t think there are significant risks. When empathy for the behaviour being prosecuted leaks into even the prosecution’s closing speech, you can be sure the whole subject is askew.

But, anyway, all of these things are a little incidental. The defence will of course seek to undermine the prosecution evidence; they will of course play to human traits in empathising with different types of evidence; and they will of course take full advantage of people’s greater familiarity with being at the wheel of a car than being on a bicycle amongst motor vehicles and their drivers.

The real problem here is not something particular to this case, but to all charges of dangerous driving.

Acquittal was virtually inevitable

Having pointed out a number of points that likely contributed to the acquittal of the defendant, I think it is necessary to point out—with the benefit of hindsight, of course—why I think acquittal was virtually inevitable from the very start. (Which isn’t to say that the undertaking of this prosecution was misguided—it wasn’t, and this is justified by the fact that the CPS clearly considered the evidence sufficient to support the charge—but that its failure illuminates a fundamental issue with this type of prosecution.)

The problem lies with the charge of dangerous driving. Specifically, there are two problems.

The first problem with a dangerous driving charge

Although the jury had the option of finding the defendant guilty of careless driving, I would hypothesise that the necessary focus on dangerous driving puts jurors in a certain frame of mind. Obviously the defence hammers home the point—“What prosecution have to prove is that Mr Kayardi’s driving fell FAR below what expected. That puts that standard very high. It has to be obvious; again, very high.”—but the judge also has to guide the jury: “it’s a high threshold”. At both the beginning and the end of proceedings the jurors are instructed, quite correctly, as to the considerable threshold of the dangerous driving charge (rather, two thresholds: the burden of proof and the magnitude of the lack of care). They are on occasion reminded of this. In short, the court ensures—again, quite correctly—that they must always bear in mind these criteria.

Now, you don’t have to be Derren Brown to know that statements influence your thinking, and repeated statements more so. So, because of the perfectly correct emphasis of the court on the criteria of the more serious offence, the lesser careless driving charge is firmly relegated to the background. The jurors’ primary responsibility is to constantly consider the evidence in the context of the high threshold of dangerous driving. When you’re doing that, it’s very easy and natural to think of the evidence as not meeting that threshold, and of the defendant being not guilty. It seems quite plausible that this steers the mind to see the evidence as being insufficient generally, and thus for a careless driving conviction to be less likely than it would had the evidence been absorbed through the much coarser mental filter required for that charge.

If that is the case then it’s particularly problematic in this case, because there was almost no chance of the jury finding the defendant guilty of dangerous driving, because of the second problem.

The second problem with a dangerous driving charge

The real problem in this case is the second clause of the statutory definition of dangerous driving, which requires that

it would be obvious to a competent and careful driver that driving in that way would be dangerous.

Now, let’s consider who a careful and competent driver is. Am I? Are you? You probably think you are: most of us believe we drive carefully (indeed, around 80% of us would rate ourselves as above average, whatever “average” is). We may drive to the best of our current ability and with the benefit of what experience we have, but does that mean we are strictly careful and competent? This is a huge issue with the Road Traffic Act 1988: it sets no benchmark as to what constitutes a careful and competent driver is.

Imagine there was a law related to data security which said “The data handler is guilty of an offence if it would be obvious to a competent and careful data handler that handling in that way would be severely insecure.” As a juror, what do you do? How can you see things from the perspective of a competent and careful data handler when you are not one? I mean, we all use computers. We all use online systems, manage our own personal data, and so on. But in order to consider evidence in the context of this offence you would probably want to hear the opinion of someone who was proven to be a qualified and peer-respected data handler, otherwise your perspective is not quite the same.

Yet jurors, regardless of how well they drive themselves or even whether they drive at all, are assumed to be capable of adopting the viewpoint of a competent and careful driver in order to decide what is or is not obvious to them.

And this gives us our de facto definition of “a competent and careful driver”: it is a person chosen entirely at random.

Return to the initial reactions to the video. “I’ve had worse.” “A normal Tuesday afternoon.”

It is wholly apparent to anyone who has ridden extensively on the road that if you take a person at random, the chances are that it is not obvious to them that passing 2-2.5ft away at 50-60mph is dangerous. This is essentially the test of dangerous driving. The statutory definition of the offence makes it democratic, because we all take ourselves to be careful and competent drivers, and the court assumes us all to be able to at least adopt that perspective. The defence in this understandably used this: “Mr Kayardi would ask you: draw on your own experiences.”

To my mind, the prosecution did not really focus on divorcing the jury from their comfortable perspectives (and, indeed, I have never read notes from any trial that have suggested any such attempt). The evidence and the incident were treated as a whole, rather than being broken down into a series of smaller decisions: Do you accept the expert evidence that the defendant was driving at over 50mph? Do you accept that driving at 50mph in a 30 limit, a summonable offence in its own right, lacks either care or competence, or both? As far as I can see, anyone answering “yes” to both would, logically, have deemed the speed alone to constitute careless driving.

The lack of rigour in assessing care and competence is extremely problematic in combination with the statutory definition of dangerous driving. The clause of obviousness, in this context, is extremely obstructive: it allows any behaviour to be defined as not dangerous provided only that drivers in general are ignorant of any danger associated with it.

In case you’re sceptical as to the effect of allowing a jury to interpret the statutory definition of dangerous driving, I would ask you to note one thing: apparently the decision to escalate this case to a Crown court instead of a magistrate’s court, and thus to hand over the decision to a jury, was made by the defence.

Where do we go from here?

There are at least three ways in which matters could be improved.

One is to review the statutory definition of careless and dangerous driving.

Another is to define a benchmark of care and competence when considering a charge. For example the court could require—just as is the case in myriad other subjects around which trials revolve—a person of certain accreditation to act as an expert witness in providing the perspective of “a careful and competent driver”.

And another is to teach all drivers explicitly about a whole raft of well-known and often well-researched dangers, of which passing cyclists close and fast is just one, so that these things can be said to be obvious to them.

And that’s something I’ve been meaning to write about for some time…

Comments

  1. Richard 23 March 2016 12:28pm #

    Erudite and informed as ever, thanks for the analysis. Is it my imagination, or haven’t the government been going to investigate road crimes, the law and how it is applied for several years? I seem to recall CTC saying a few months ago that it had been shelved yet again.

  2. Eric D 23 March 2016 2:19pm #

    Great post – lots to think about!

    SGC = Sentencing Guidelines Council
    sentencingcouncil.org.uk
    sentencingcouncil.judiciary.gov.uk

    One thing not mentioned – did the judge give the Jury the option of a majority verdict – sometimes they say ‘OK – you’re not 12:0 unanimous – go away and see if you can reach a 11:1 majority’ then ‘OK – go away again and see if you can reach a 10:2 majority’. 9:3 would be exceptional – there have been many cases when a jury is dismissed, and they start again with a fresh jury !

    Tension between CPS vs. Police is interesting – some cops on Twitter say “we don’t decide whether to prosecute”
    For other crimes, the police regard them as the ‘Criminal Protection Service’ – is their bias the other way in driving cases ?

    Police use Police National Legal Database for ‘Points to prove’ – but that seems to be missing from app:
    https://www.pnld.co.uk/marketing-events-launches/introducing-our-motoring-the-law-app/

    “it sets no benchmark”
    http://www.happycyclist.org/?p=1055
    Circularity: “The standard is that you should not drive below the standard !”
    Begging the question ?
    Almost.
    Does it accidentally put the Highway Code above the Law, since the former is pretty explicit, but the latter is anything but explicit ?

    Signage obscured in August (not in Feb?) – also in 6 out of 7 Google history photos !
    https://goo.gl/maps/4wvFkty8RX42

    “defendant maintained that his car was centrally positioned” – despite the video !

    https://en.wikipedia.org/wiki/Photogrammetry
    Just use the actual camera and car to stage a reconstruction : passing at different distances ?

    Is online history (in)admissible in court like one’s love-life in rape-cases ?
    Many people will say pretty much anything online !

    “Impertinence” is an unfortunate word, having two very different meanings – irrelevant or cheeky. Maybe you even meant “pertinence”?
    That whole sentence is very unclear to me : it might even be two sentences !

    “Darkness is a factor in not being able to leave space? ”
    Harder to judge the distance and speed of oncoming traffic, certainly.
    But he didn’t rely on a ‘being surprised’ “defence” ?
    The issue here is using the uncertainty to deliberately endanger a vulnerable road user, instead of applying caution to the benefit of all.
    It is at the heart of the theory behind ‘assertive positioning’ : drivers are more likely to be cautious if they are putting themselves at risk, rather than ‘just a cyclist’ !
    (aka here as “cycling in the middle of the lane holding up cars” – irony)
    Maybe we need a ‘punishment pass’ law – or use the existing ‘assault’ charge ?
    “fair distance” – whatever that means – there are extreme views posing as reasonable:
    http://driveeastmidlands.blogspot.co.uk/2014/01/safe-clearance-to-pass-cyclists.html

    “driving for sport” – cf. “cycling for sport” ! Hmmm … that seems a bit ‘ad hominem’ !

    There may be something in the importance of using borderline, rather than ‘clear cut’, cases to test the law. Shame this was found to be the wrong side of the border.

    “three ways in which matters could be improved” – four ? – have you written about ‘minimum overtaking distance’ laws, or do measurement problems rule it out ? How are they getting on abroad ?
    Like you need something else to write about ! Could just be a total distraction ?

    • ORiordan 24 March 2016 9:29am #

      The jury reached a verdict after only 24 minutes so I don’t believe the judge would have told them that a majority verdict would be accepted.

      I’ve been on jury duty (also at Isleworth Crown Court where this case was) and for one case the judge told us that he would accept a majority verdict only after we had been deliberating for over a day.

      24 minutes for a verdict seems like indecent haste though and would have left hardly any time for discussion in the jury room.

      I wonder if this case was on a Friday afternoon, a bunch of jurors had been there for 2 weeks and not reaching a verdict would have meant they needed to come back for another week…

      • Bez 24 March 2016 9:42am #

        The judge indeed advised the jury that a majority verdict was not acceptable.

    • James metcalfe 4 April 2016 4:33pm #

      That drive East Midlands link is concerning. That anyone could argue

      1. That the example shown on the highway code is wrong.
      2. A driver is the sole arbiter of safe distance and as long as no collision occurs they are prove right.
      3. If the car is passing closely but the cyclists should deviate at all into their path (providing the driver did not cause the de iation) the driver is blameless.

      Terrifying

      • Eric D 4 April 2016 4:55pm #

        I came across this on uk.rec.cycling
        “The law is the opinion of the majority. There can be no other way. If 99 people think the speed limit should be 80 and 1 thinks it should be 70,
        then it clearly has to be set at 80. We live in a democracy. ”

        It’s a short step from “majority rule” to “oppression of minorities”.

  3. paulc 23 March 2016 3:34pm #

    the biggest problem here is the juries… too often stuffed with motorists. Always thinking ‘There but for the grace of God go I, and it was only a cyclist anyway…’

  4. Notak 23 March 2016 4:58pm #

    The defence’s suggestion that the defendant was only in court as a scapegoat, with all that implies of victimisation and that the real issue is not him personally, is interesting.

    In general though, we’ve been here before, and we know that the central problem with dangerous driving prosecutions comes down to juries; which is why your three suggested improvements deserve to be taken further. The question then becomes, how and who by?

  5. Roger Geffen, Policy Director, CTC the national cycling charity 23 March 2016 7:49pm #

    Thanks Bez, another really well-argued and thought-provoking post.

    There’s plenty here that I was tempted discuss, and even a few things I don’t entirely agree with (I’ll take these up separately with you Bez!) However, for now, I’ll limit myself to just 3 comments:

    1) THE DEFINITION OF A “COMPETENT AND CAREFUL DRIVER”.

    You note that most drivers will think of themselves as “competent and careful drivers”. Logically though, if careless driving is driving which “falls below what would be expected of a competent and careful driver”, then logically this “competent and careful driver” can’t just be a typical driver, but has to be regarded as a *notional* driver who *never drives carelessly*. If only we could get prosecutors and juries to recognise this!

    2) THE DEFINITION OF DANGEROUS DRIVING

    You are right that there are huge problems with the way the law uses the terms “below…” and “far below…” the standard of a competent and careful driver to distinguish ‘careless’ and ‘dangerous’ driving. However the definition of ‘dangerous driving’ (http://www.legislation.gov.uk/ukpga/1988/52/section/2A) also includes a sub-clause which defines the word “dangerous” (n.b. there is nothing equivalent to this in the definition of ‘careless’ driving http://www.legislation.gov.uk/ukpga/1988/52/section/3ZA):

    “‘dangerous’ refers to danger either of injury to any person or of serious damage to property.”

    In other words, the distinction between “below” and “far below” the standard of a competent and careful driver *ought* to be about whether the driving caused danger of injury or serious property damage, that would have been obvious to our notional “competent and careful driver”. (It might be better if the statute referred to “someone driving competently and carefully” – that might stop jurors from thinking of themselves as “competent and careful drivers who can nonetheless make occasional “careless” or “dangerous” errors of the kind made by the defendant).

    3. HOW TO CHANGE THE LEGAL FRAMEWORK

    Eric D has rightly noted CTC’s recent concerns that the Ministry of Justice’s review of road traffic offences and penalties, promised almost 2 years ago (www.ctc.org.uk/news/government-announces-full-review-of-driving-offences-and-penalties), was being kicked into the long grass (https://www.ctc.org.uk/press-release/2015-12-22/government-letting-unsafe-drivers-%E2%80%9C-hook%E2%80%9D). However Ministers have now indicated that they will begin consultation on this as part of a wider review of criminal sentencing, which will commence later this year (http://www.cyclistsdefencefund.org.uk/Drink-drug-drivers-face-manslaughter-charges), and that they expect to bring forward legislation in the 2017 Queen’s Speech (http://www.independent.co.uk/news/uk/home-news/drunk-or-drugged-drivers-to-face-stiffer-sentences-a6817016.html). Moreover, MPs on the Commons Transport Select Committee have recently urged their colleagues on the Justice Committee to investigate the distinction between ‘careless’ and ‘dangerous’ driving (https://www.ctc.org.uk/blog/cherry-allan/mps-back-ctc%E2%80%99s-calls-road-traffic-law-enforcement).

    CTC’s Road Justice campaign (www.roadjustice.org.uk) is looking forward to the review as a crucial opportunity to call for:
    * An end to the dismissal of driving which has caused obvious danger as mere “carelessness”; and
    * Much greater use of long driving bans for those who drive ‘dangerously’ but without any evidence of dangerous or reckless intent. Tough prison sentences would still be used for those whose driving *did* appear to indicate a reckless or dangerous mind-set, or who had breached past driving bans.

    There is a lot more detail of CTC’s proposals for reforming road traffic law and enforcement in our Road Justice related campaign briefings, downloadable from http://www.roadjustice.org.uk/information/legal.

    Roger Geffen
    Policy Director
    CTC, the national cycling charity

  6. platinum 23 March 2016 9:56pm #

    It’d be so much easier if dangerous driving was simply defined in physical, measureable terms, rather than the subjective behaviour of the driver or feelings of witnesses – eg. you drive into someone and kill or injure them, you were driving dangerously. End of. You close pass someone at speed, you were driving dangerously.

    Of course, people would then be free to defend themselves eg. he ran into my knife, officer.

    It seems to be the difference with drink-driving is that a measureable alcohol limit can be presented in court and there’s very little argument about whether the driver ‘felt’ drunk, whether witnesses thought his breath or wobbly walking was bad or merely slightly below the acceptable standard.

    • Notak 24 March 2016 10:39am #

      Another difference between drink driving and dangerous or careless driving, in addition to the measurable limit, is that drink driving has been successfully made an antisocial behaviour; something that most people don’t do and that those who do, will not admit to. That was achieved through public awareness programmes (TV ads etc) and much publicised prosecution campaigns back in the ’80s. Previous to that, even after the introduction of breathalysers in the late ’60s, drink driving was still fairly much a social norm into the ’70s. A similar campaign of anti-socialising an existing behaviour might also work in this case.

      • Roger Geffen, Policy Director, CTC the national cycling charity 24 March 2016 11:02am #

        The road crash victims’ group RoadPeace (www.roadpeace.org.uk) has made an interesting proposal about this. They suggest that dangerous driving could be defined as any failure of driving that would be serious enough to warrant an immediate failure if committed during a driving test.

        Without going into the details, the point is that driving instructors have a pretty good standardised process for determining an automatic failure. It would bring in an independent yardstick for determining whether the driving was ‘careless’ or ‘dangerous’. This would surely be far better than leaving it to juries to decide whether they thought someone’s driving fell “below” or “far below” the standard normally expected of a competent and careful driver (whatever that means).

        • Roger Geffen, Policy Director, CTC the national cycling charity 24 March 2016 2:43pm #

          P.S. The comment above was a response to Platinum’s posting. Sorry if that wasn’t clear.

          • Roger Geffen, Policy Director, CTC the national cycling charity 25 March 2016 6:00pm #

            …er, and the reference to “driving instructors” (start of 2nd para) should have said “driving test examiners”. Oops, apologies!

      • D 24 March 2016 2:59pm #

        I guess if the powers that be did try to run safety campaigns to un-normalise careless driving, the tabloids would ” ‘ave ’em for being a bl**dy nanny state “. God forbid that anyone should tell *anyone* how to behave, nowadays…

        (Not that the current government would anyway – that would be too much like being Big Government when what they want to be is No-or-Minimal Government).

  7. Edward 24 March 2016 7:15am #

    A great read as always.

    Over here in South Australia, the courts use a test for the “reasonably competent driver” that dates back to 1971. It comes from an authority called Stoeckel v Harpas. Its citation is (1971) 1 SASR 172. It says:

    “Three or four decades ago it was, speaking generally, reasonable to expect a driver to deal with the exigencies of motor and pedestrian traffic as they presented themselves from moment to moment, but he was not asked to look very far ahead and to seek out possible trouble. Today, I think that the situation has changed fundamentally. Population has increased; a high proportion of families have at least one car and not infrequently two; accidents are numerous; and death on the roads has become tragically familiar. In these circumstances, I think courts, when performing the role of a jury, are entitled, indeed bound, to require of motorists a measure of what is sometimes called defensive driving, or a look out that not only sees immediate, or immediately developing, danger, but looks well ahead and searches for potential danger. Nowadays, for example, a young child on the footpath is not just a person so many feet away, but is a human being that may suddenly present himself in your path; a green light is not just an authority to spring off the mark without further thought, but is an invitation to look to right and left before moving off in case someone is trying unsuccessfully to beat the lights; a bus is not just a stationary vehicle, but represents cover from which at any time, a pedestrian may emerge; a car with its turning flicker on may not be going to turn, but may have left his flicker on inadvertently; the car that you are following is to be kept a respectable distance in front of you because, at any moment, the driver may stop or slow down virtually without notice; a crest in the road is not just another part of the road, but is a danger point where a motorist, coming in the opposite direction, may well seek to pass on the rise. All these situations, and countless others besides, call for consideration by the reasonable driver because experience has repeatedly shown that perils on the road, as time goes by, seem to be giving less and less warning of their emergence. Of course, what I have said has its corollaries for other road users, but because of the marked increase in the power, weight and speed of today’s vehicles, as compared with those of the immediate post-war period, the implications for the drivers of motor vehicles, are in my view, stronger. The courts have, from time to time, spoken of the need to guard against human follies, but, in my opinion, there is a need for courts to emphasize that the guarding referred to includes an ever-present attempt to foresee dangers well ahead of the immediate driving situation.”

  8. D 24 March 2016 3:03pm #

    “Anyone who cycles will be quite familiar with many people’s tendency to either pass closely or to play chicken with an oncoming road user rather than wait for even a couple of seconds for enough room.” – Very true. When a cyclist who has priority when passing through a narrow road (with parked cars both sides) because they are already in that narrow section, and then a motorist comes into it anyway and – as you say – plays chicken. With the howls of “But there was plenty of room to pass, if you’d just moved over a bit!” when you stand your ground. After all, you are Only A Cyclist.

  9. Matt 23 May 2016 11:51am #

    Hi Bez,

    Your blog is excellent but this post in particular stands out. It explains clearly, with reason and evidence, how the problem with dangerous driving and police inaction starts from the top down with the wording of the law.

    I’ve linked to this post from my blog post here, which deals with a dangerous driving incident that occurred to me and my follow-up experiences dealing with the police:
    http://mountainsofmyworld.blogspot.co.uk/2016/04/dangerous-driving-and-police-attitudes.html

    My blog was originally intended to be private and not about cycling, however following my experiences I thought it would be useful to publish a thorough account of my experiences in a public format. It’s quite long but I hope you can have a read through it.

    Cheers

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