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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?

Betty

Betty was our next-door neighbour. She was the archetypal elderly spinster: she was feisty, she was fiercely independent, and she used her home as a sort of hostel for local stray cats.

One of Betty’s tools of independence was her venerable Raleigh Shopper. Despite having seen better days (and quite a lot of them) it needed only occasional attention from one of her neighbours: a spot of oil and an occasional puncture repair, and this humble contraption was as indefatigable as Betty herself.

The shops were a little over a mile away, and although Betty struggled to walk that sort of distance (let alone while carrying bags of shopping) she could pedal it just fine. The Shopper’s step-through frame meant she could mount it comfortably, and its wire basket carried enough shopping to keep her going for a few days, so it allowed Betty to go about her business not just with relative ease but also with some pleasure, keeping her active in her old age.

Betty had a car as well: a Peugeot which dated from the 1990s but somehow appeared to be competing with the Shopper in terms of apparent age. She rarely used it, though: it was there for visiting friends and relatives in the surrounding villages, not for getting around town.

But there came a tipping point, where Betty decided she could no longer cycle.

What was interesting about this change in behaviour, however, was the reasoning behind it. Betty’s decision was not made on the basis of dwindling health: she was as capable as ever.

Betty told me her reasoning explicitly. She had decided that the roads, which every year carried more and more motor traffic, had become too dangerous for her to cycle on.

And so it was that the Shopper took up permanent residency of the garage, while the Peugeot reluctantly enjoyed a renaissance of sorts as Betty’s main transport.

There was an uncomfortable irony to this decision, which was that Betty was an absolute liability behind the wheel. The Peugeot would be seen lurching haphazardly around the streets, belching out guffs of smoke while its ruddy-faced driver peered intently and constantly ahead.

Driving also seemed to ignite Betty’s feisty side: on one occasion I was the recipient of an angry blast from its horn as I drove too sedately for her liking (she later apologised, saying she only realised it was me afterwards).

Betty had, implicitly but emphatically, followed the mantra of “if you can‘t beat ‘em, join ‘em”. In reducing her perceived exposure to risk, she inadvertently increased everyone else’s: a single decision about personal transport could scarcely have been clearer in its effect.

Crucially, however, whilst that decision had a small (but nonetheless real) effect on the town’s inhabitants it also seemed to have an effect on Betty. From this point on, her health and her mobility declined. Clearly it’s rather convenient to point to a bicycle and a car and state “QED”, but the fact remained that Betty had given up her last bit of exercise and was now almost totally sedentary. Not long afterwards, she had to relocate to a flat in the town centre, where the shops and the public garden she enjoyed were literally next-door.

Some time later, Betty was no longer with us. But she wasn’t forgotten. She was very much in my mind at a recent public forum, where the matter of converting the town centre to a shared space scheme was being discussed.

The thrust of the meeting was that people wanted the town centre to offer greater freedom for pedestrians (a term I’ll return to in a moment), and for the area to be generally more pleasant and less motorised. Full pedestrianisation had been ruled out some time ago, but a shared space scheme had become a commitment, and the task at hand was to help shape what form that space would take.

All the angles came up: pollution, noise, danger, aesthetics, accessibility, the old, the young—you name it—and after discussing matters around tables for an hour (our table being pleasingly, if unexpectedly, progressive in its thinking) the floor was open for discussion.

Entirely predictably, it didn’t take long for “cyclists” to be mentioned and, equally predictably, the level of background chatter rose immediately as a result.

I waited for the speaker to finish and then firmly ensured it was my turn next.

The fundamental problem, I began, was laid bare from the outset on the sheets of paper we had been given: they referred to pedestrians, cyclists and drivers, when the conversation needed to be about walking, cycling and driving (as well as using public transport). The point is that these are all choices which, broadly speaking, are available to everyone.

The general aim of the group was to establish an environment which favoured moving about on foot, where people would be able to move freely and carelessly. However, there is a criterion which must be met in order for this to be achieved: people on foot only feel truly able to behave in this way when the rate of traffic flow is around 90 vehicles per hour or below. (Fortunately we had an experienced and well-informed highway engineer in the room who had already referred to this figure, saving me the need to cite its provenance.)

So, to achieve the desired nature of shared space it is absolutely necessary to reduce and constrain the level of motor traffic in that space. This is no simple task: people will still want and need to visit the town centre, and the shopkeepers in particular are rightly concerned that they should do so.

The task is only hindered by categorising people: few people are purely pedestrians, and none are purely cyclists or drivers. Each of us makes choices, and each of those choices is governed not just by the vehicles in which we may make our journeys but by the environment we must navigate in doing so: the time or journey takes, the risk of harm we face, the financial cost, the ease of parking, and so on.

So it is vital not to simply put up barriers to perceived categories of people, but to engineer a system which—for local journeys at least—encourages more socially benign choices. A system which, to be blunt, more often than not makes the motor car the least appealing option.

As the most socially benign option, walking is a justifiable goal. But we have to remember that, for most people, walking from the outskirts of town into the centre is not an appealing choice even with an accommodating environment: even as a fit and healthy adult it takes half an hour each way, and it’s hard to carry much. But by bicycle or tricycle it takes ten minutes and you can carry some shopping much more easily. Of course many people will still do their weekly shop by car, but that’s fine: such traffic needn’t be routed via the streets under consideration. The aim is to reduce car use, not to eliminate it.

There exists a spectrum of transport choices: from walking as the most socially benign, through cycling and other unpowered modes such as scooting, to public transport, to private motor vehicles as the most socially harmful. If our aim is to actually achieve an unpolluted, quiet and safe public space, rather than simply to produce an artist’s impression of it, then it is necessary to accept that we must gently nudge people along that spectrum: attempting to simply drag them kicking and screaming from one end of it to the other does not work.

This in turn involves the acceptance of pedal cycles (including electrically assisted ones) as a key enabler in giving people enough convenience for many trips without generating most of the harmful effects that are inherent in motorised transport.

The aim is not to transform a driver into a cyclist or a pedestrian; such a notion is absurd. The aim is to have a person choose to get in their car less often.

So we must understand that we are all capable of finding ourselves at a tipping point where, for some of our journeys, we stop choosing one mode of transport and start choosing another. If we can understand that, and the nuances of how and why those choices are made, then we can achieve the aims of even the people who start muttering when anyone mentions “cyclists”.

There were nods around the room as I spoke, and the next speaker gave their vocal support.

The message can get through. It just needs to be delivered in a rusty basket on the back of an elderly lady’s Raleigh Shopper.

Collision Course

Ipley Cross is a largely unremarkable place, an open plain where two roads cross: Beaulieu Road running north-to-south and Dibden Bottom running roughly east-to-west.

Yet it is a place of notoriety. For good reason.

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The Law Must Be Fixed… Mustn’t It?

In the aftermath of the high-profile trial of Charlie Alliston for causing the death of Kim Briggs, there have been calls from various quarters to create new legislation around the use of pedal cycles.

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The Incompetence Paradox

This is all about an incident. One that I’ve read about before, but which last week was finally legally resolved. Now, I’m working from media reports rather than court notes so—caveat emptor—there’s a risk I’m dealing with inaccurate information, but… well, given the CPS’s keenness to pursue a charge of dangerous driving in the absence of serious injury, I’m going to infer that even if there are minor inaccuracies then this was nonetheless a case of truly appalling driving.

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A Tale of Two Forces

This week at the House of Lords the Road Danger Reduction Forum presented an award to West Midlands Police—in particular Pc Mark Hodson and Pc Stephen Hudson—for their Operation Close Pass initiative, which targets drivers who pass too close to people cycling when overtaking them. I was invited along to see them receive the well-deserved award and hear more about the details of the operation, as well as about how it has been adapted for use in Camden.

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Something’s Very Seriously Wrong Here

Many people reading this will be familiar with the trial that concerned the death of Daniel Squire, who was killed when he was hit from behind by van driven by Philip Sinden. In case you’re not, I’ll give you a brief recap.

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How Close Was That?

A while ago I was asked to take a look at a video, recorded on a rear-facing camera, of a close pass by a lorry driver to see if I could estimate how close the lorry came to the bike and its rider. I’ve done this a couple of times before and I figured it might be worth writing up the process. Continue reading

The Lion’s Share

It’s hardly uncommon for a phrase to transform into a policy statement purely by virtue of being glib, but perhaps nowhere is this more so than in the road safety industry. Indeed, “road safety” is itself such a phrase: it’s more snappy than “road danger reduction”, so once in use it acquires a great deal of inertia. But the difference between the two is significant, and is exemplified by everything that I’m about to discuss in relation to one specific phrase: “share the road”.

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Let The People Decide

Today the Lincolnshire Road Safety Partnership (LRSP) tweeted a link to a survey. These sort of things are usually fertile hunting ground for some desk-headbuttingly bad content, so naturally I went and had a look. Let’s take a walk through it.

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How to Design a Death

On 21 July 2016, John Toon was struck and killed while using a cycle crossing on the Strategic Road Network, which is managed by Highways England. The precise details of events remain unknown at this stage, but a mere glance at the crossing itself is enough to make it obvious that the design of the crossing is homicidally flawed. And it’s just one of many outrageously dangerous pieces of infrastructure under Highways England’s control.

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Bugs in The Code

If you juxtapose the phrases “Highway Code” and “cyclists” and then drop them into the media, the initial reaction from the more vocal parts of the general public is going to be somewhat predictable. I could write you out a bingo card and you’ll have called “house” by the time you’ve reached the end of the comments underneath the first article.

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Passing Laws

This isn’t the first time I’ve quoted David Allen Green’s article “Should We Ban Banning Things?”

“The legalistic prose in a solemn document is not some magic spell which banishes horrors by invocation. To say there should be a law against a thing is often no more than saying there should be a spell against it. In fact, “banning” things often creates new problems.”

This précis is rarely more applicable than to Motion 14 of this year’s CTC/Cycling UK annual general meeting. CTC council opposes the motion, and—as I’m sure you might already suspect—so do I, although for largely different reasons.

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Some Blue Signs

Late last year I accidentally ended up with a new cyclocross bike; something I’ve had before in a couple of different forms but have been missing for a while. It’s ideal for mixing bridleways with rural backroads, and when I use it for the ride to work it’s a good way of dodging several parts of my normal route where drivers pose particular risk.

But it’s interesting that I need a specific bike to do this.

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The Anatomy of Excuses

I find Jeremy Vine’s cycling-related tweets sporadically rather interesting, for one simple reason: since his audience is in no small part derived from his radio talk show, they provide a way of dipping real-world cycling experiences into the world of the sort of person who listens to radio talk shows. (I suppose I could gain the same insight by listening, but—sorry, Jeremy—I can’t stand the show or any of its ilk.)
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An Obvious Problem

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.

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The Rise of The Idiots

“The idiots are self-regarding lycra renegades, oblivious to the paradox of their uniform retro-cool originality. They sculpt their facial hair to casual perfection. They wear their shorts tight round their balls. They babble into handheld dictaphones about that cool video of the bloke without facial hair going under a bus. Their cool friend made it. He’s an idiot, too. Welcome to the age of bigotry. Hail The Rise of The Idiots.”

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What’s The Difference Between a Duck?

It’s a rare day indeed that I see a video about “road safety” or road-related attitudes which imparts a good, balanced message that understands the facts that people are the same but vehicles, and the consequences of using and misusing different types of vehicles, are very different.

Today is not one of those days.

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