Driver to face trial in Sam Boulton dooring case
Sam Boulton was a young man described by the pupils he taught as an inspirational teacher. Tragically, a life full of promise was cut short last year on his 26th birthday as Sam cycled past Leicester train station.
Private hire driver Farook Yusuf Bhikhu had, according to press reports, pulled up on double yellow lines outside the station. Rather than exiting the car onto the pavement, his passenger Mandy Chapple chose to step out into London Road. As she opened the offside door she knocked Sam from his bike and into the path of a Citroen van in the outside lane.
Three months ago, Chapple pleaded guilty at Leicester Magistrates Court to the offence of opening the door of a vehicle on a road so as to injure or endanger someone. This is a strict liability offence, meaning it's not necessary to prove that anyone intended to cause danger or was negligent. If the door was opened causing injury or endangering someone it's an offence. That's because it's the door opener's responsibility to look, just forgetting is no defence and no comfort to an injured cyclist or grieving relatives.
Chapple was fined a total of £150 for the offence, which to many will sound like a derisory penalty. To be fair to the Crown Prosecution Service (CPS), car dooring was the only offence they could have charged Chapple with other than manslaughter, and the maximum penalty for dooring is merely a £1000 fine. The magistrates' hands were somewhat tied.
Permitting the door to be opened?
Although it was Chapple who opened the car door it was of course Bhikhu who decided where to stop to allow her to alight his car. Whether he "permitted" her to open the door will be determined in a trial at Loughborough Magistrates Court next Monday 5 June, Bhikhu having already pleaded not guilty to permitting his passenger to open her door so as to cause injury.
Why Bhikhu parked outside the station on double yellow lines rather than turning into the station collection and drop off area, and what if anything he said to Chapple before she opened her door are questions which Sam's family deserve an answer to.
What's predictable and avoidable isn't an accident
Where people decide to park and disembark is a common factor in car dooring cases. In May 2015 taxi driver Joseph Connelly parked his taxi on Keppochill Road in Glasgow, just after a bend in the road and in front of another private hire vehicle double-parked on the bend. When Connelly opened his door to cross the road he hit a passing cyclist, David Thomson, who died from his injuries in hospital two days later.
Fined £400 by Glasgow Sheriff's Court for a dooring offence, Connelly admitted that he should have parked further along the road from the bend, but he didn't. All too often such decisions, or the failure to look before opening a car door, are described as 'accidents', something which deeply upsets many of those affected by the consequences.
If you open a car door into the road without looking first it's predictable that a passing cyclist might be knocked off and injured. All you need to do to avoid that is look and check for cyclists and other traffic, exactly what the Highway Code states you must do. If it's predictable and avoidable, it's not an accident.
Trivialising death with minor charges
Back in September 2015, Joanne Jackson told Wirral Magistrates Court that she was very sorry, and that "it was an accident" when she opened the driver's door of her Toyota Avensis into the path of retired lecturer Robert Hamilton as he cycled along Linaker Street in Southport. Another fatality which led to a £305 fine for a dooring offence, and vociferous criticism by Robert's widow May Hamilton of the CPS's failure to prosecute for manslaughter, with May saying that she was "so disgusted with the way these sorts of deaths are trivialised with very minor charges".
It's been absolutely devastating. I am so disgusted with the way these sorts of deaths are trivialised with very minor charges
May Hamilton, Robert Hamilton's widow.
In Robert's case Claire Lindley, Chief Crown Prosecutor, confirmed that "the offence of manslaughter was very carefully considered by senior crown prosecutors", but that "a decision was taken that there was insufficient evidence to provide a realistic prospect of conviction".
That's the dilemma the CPS face: a construction and use car dooring offence punishable simply with a fine seems inadequate, but the only alternative is a manslaughter charge. The difficulty securing a conviction for manslaughter when an opened car door has led to a cyclist's death was demonstrated in 2012 when Kenan Aydogdu was cleared of manslaughter following the death of Sam Harding.
A gap in the law
Aydogdu was parked on Holloway Road, London, in a car with side windows which only allowed 17% transparency because, some time after purchasing the Audi, Aydogdu took the decision to darken the windows with plastic tinting film, something the prosecution claimed detrimentally affected his ability to look out of his window. Darkening the windows was not an accident, it was a decision Aydogdu made.
Sam Harding was cycling in the bus lane to the right of the Audi when Aydogdu made another decision, and opened the driver's door. Sam hit the door, came off his bike, and was crushed under a bus. After Aydogdu was acquitted of manslaughter, Sam's father Keith told reporters that there was "a gap in the law", adding that "the law needs to find something that is commensurate".
Sixteen dooring injury cases - one prosecution
Unless that gap is plugged it's likely that the reluctance to prosecute in car dooring cases will continue because, to be frank, it's classed as a minor offence with no significant penalty available. Earlier this year, in their submissions to the All Party Parliamentary Cycling Group (APPCG) inquiry into cycling and the justice system, the Bristol Road Justice Group (BRJG) suggested that the lack of action on car dooring had effectively decriminalised the offence in Bristol.
BRJG identified 16 cases in 2015 where cyclists had been injured in car dooring incidents in Bristol, with only one of those case leading to a prosecution. That disconnect between the number of incidents of dooring and the number of prosecutions was also highlighted by Baroness Jenny Jones (then a London Assembly Member) who pointed out following Aydogdu's acquittal that the Metropolitan Police had issued an average of seven to nine fixed penalty notices per year for car dooring in the previous seven years.
Fines less than the average weekly wage
Baroness Jones expressed her concern that despite the number of injuries to cyclists through car dooring this received little attention, adding that "The Met Police and the Mayor need to urgently launch a major awareness campaign and make clear that car dooring will be automatically prosecuted".
But this hasn't happened, and when the penalty for dooring a cyclist leading to their death is less than the average weekly wage, it might be an uphill struggle to persuade the police to take non-fatal dooring cases more seriously, and prosecute.
New offence of causing death or serious injury by dooring
The first step towards dooring being taken more seriously would be the creation of a new offence of opening a car door so as to cause death or serious injury, with increased penalties. That would allow the CPS to charge something meaningful, without the significant hurdle of convincing a jury that the car occupant's actions amounted to manslaughter.
Cycling UK put that proposal to the Ministry of Justice (MoJ) in February in our response to the MoJ's consultation on motoring offences and penalties, however the outcome of that review, which was promised under a coalition Government in May 2014, finally launched under a conservative Government in December 2015, and has been in the in-tray of three consecutive Justice Secretaries already, is now further delayed pending the general election.
Our call for a new offence and increased penalties where serious injury or death is caused reflects Keith Harding's observations that there's a gap in the law, and that the law needs to find something which is commensurate. May Hamilton made the same point in her own submissions to the recent APPCG inquiry, before moving on to the second thing which needs to change to ensure that avoidable harm is not dismissed as an accident: the training, education and information given to people about the dangers of car dooring, and how to open car doors without endangering cyclists.
Umpteen lessons and no idea
Those who cycle regularly will know why it's important to leave plenty of room when overtaking parked vehicles and watch out for doors being opened, but what about drivers who don't cycle? My 18 year old daughter is in that category and was learning to drive last year, as were many of her friends.
Umpteen lessons into that process I asked her about this. She didn't have a clue about why people on bikes tried to leave a door's width and a bit more when overtaking parked cars, the importance of looking behind before opening your door, or the possible consequences of failing to do so. None of this had arisen during any of her driving lessons.
I realise that those learning to drive are supposed to study the Highway Code, but a visual demonstration with a door and a bicycle took me about a minute and was I suspect more effective than my daughter trawling through until she got to rule 239 of the Code. Concerned that her lack of knowledge was my fault I quizzed her peers , most of whom were learning to drive or had just passed their driving tests. I was met with blank expressions.
It then dawned on me that when I learned to drive I spent a significant amount of time driving around with L plates under parental supervision, but today the cost of adding your teenage child onto your car insurance is so exorbitant that most miss out on the driving with parents experience. They learn to drive with their instructor, whose primary task is to get them through their test, so real world but simple practical lessons are not always learned.
That's why vulnerable road user safety issues, including car doors and cyclists, need to be addressed when people learn to drive (my crude survey of 18 year old's also revealed they knew little about overtaking distances when passing cyclists, and hadn't even contemplated the possibility that they might come across a horse on the road). We need to look more broadly at what people are taught when they learn to drive, and the requirements of the driving test, because it seems that basic safety issues can be overlooked.
The so-called Dutch Reach is a classic example of a simple piece of advice or best practice which, if followed, has the potential to reduce dooring incidents. Annoyingly, it is the Dutch once again who get the credit for and have given their name to a great cycling safety initiative.
In Holland people are taught to open car doors with the hand that is furthest way from the door. Applying that to the UK, and a right-hand drive vehicle, that involves a driver opening the door with their left hand, rather than their right. It's a simple technique but the process of reaching your left arm across your chest naturally makes you turn your body, making it easier not just to check your mirrors but also actually see the oncoming traffic. Because you're opening the door with your far hand, turning across your body, you tend to end up only doing so partially, rather than fully opening the door as you would if doing so with your left hand.
Cycling UK have asked the DfT to consider whether the Dutch Reach should be included within the driving test requirements, and whether they will promote this through a THINK! style driver awareness campaign, repeating the call May Hamilton made earlier this year when responding to the APPCG inquiry. The argument that teaching this simple technique can save lives is supported by the Royal Society for the Prevention of Accidents (RoSPA), and once new ministers in place following the election Cycling UK will be lobbying the Government to promote the Dutch Reach in a variety of ways.
Having written about tragic cases of car dooring, the need for a new dooring offence with increased penalties, and the dearth of education and training which could make a difference, I'll finish where I started: the loss of a life full of promise on his 26th birthday.
What if the Dutch Reach was widely known and widely publicised?
Perhaps Mandy Chapple might have looked behind before opening the door (arguably the Dutch Reach is even more important for rear passengers, as they don't have the benefit of the driver's mirror). Perhaps Bhikhu might have given more thought to what his passenger was doing or might do, and either parked somewhere else or told Chapple to alight on the pavement.
Perhaps neither would have done anything differently, but if not then it would be harder to argue that what happened was an accident which just merited a nominal financial penalty if anything.