Transport Secretary wants to lock up killer cyclists: Cycling UK's response

Transport Secretary wants to lock up killer cyclists: Cycling UK's response

Policy director Roger Geffen says the proposed new offence of 'causing death by dangerous cycling' is the wrong answer to a rare problem, when the right answer would tackle a much bigger one

Transport Secretary Grant Shapps has announced to the Daily Mail that he plans to bring in a new offence of 'causing death by dangerous cycling', as part of the Transport Bill which he is due to unveil this Autumn. He said last Saturday (6 August 2022) that the aim was to "impress on cyclists the real harm they can cause when speed is combined with lack of care”.

However there have long been calls both for new cycling offences, and for a wider review of road traffic offences and penalties. Cycling UK's view is that you cannot have the former without the latter, as I explained in an LBC interview on Saturday morning.

Calls for new cycling offences

Calls for a new offence of 'causing death by dangerous cycling' go back to the case of Charlie Alliston. He was a London cycle courier who was riding a track bike (i.e. fixed-wheel bike which was not road-legal, as it lacked a front brake) when he fatally collided with pedestrian Kim Briggs in 2016.

In the absence of the above offence, he was instead prosecuted in 2018 both for manslaughter and for the offence of 'wanton and furious riding'. This comes from the Offences Against the Person Act 1861, as do 'grievous bodily harm' and 'assault occasioning actual bodily harm' (which disproves the idea that old legislation using archaic language needs to be replaced). It is used not only for cycling or horse-riding offences, but also for serious driving offences committed off-road, where the Road Traffic Acts don't apply (see this example, there are others). Alliston was sentenced to 18 months custody, out of a possible 2-year maximum for this offence.

Following his conviction, Kim Briggs' husband Matt launched a campaign to bring in the offence of 'causing death by dangerous cycling', with a 14 year maximum sentence, equal to that for 'causing death by dangerous driving'. He persuaded his MP to press for action during Prime Minister's Questions. The then PM Theresa May indicated that the Transport Secretary would doubtless look at it.

The Transport Minister responsible for dealing with this, Jesse Norman MP, himself also a cyclist, was clearly reluctant to pursue this issue in isolation. He was readily persuaded by Cycling UK and its allies to launch a wider review of cycling and pedestrian safety. That review in turn led to the recent revisions to the Highway Code, which Cycling UK strongly supported.

Meanwhile the Government ran a more limited consultation in 2018 on whether to introduce new offences of causing death or causing serious injury by 'dangerous' cycling. At the time of writing, the Government still has not reported on the outcome of this consultation. That makes it all the more odd that Grant Shapps instead made his announcement to the Daily Mail over the weekend.

However it is not the only DfT consultation on road traffic offences that has spent many years languishing in the long grass...

 

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Calls for a wider review of road traffic offences

Cycling UK's response to the cycling offences consultation (see summary or full version) echoed what we have been saying for many years about the need for a much wider review of road traffic offences and penalties.

We made it clear that we have no objection in principle to seeking greater parity between cycling and motoring offences. But the Government's proposed solution - namely to copy-and-paste the existing offence of 'causing death by dangerous driving' to create an equivalent cycling offence - was the wrong solution to a problem that only arises a couple or so times per decade.

The right solution, by contrast, would involve tackling a much wider problem which causes terrible distress to hundreds of seriously injured or bereaved road crash victims every year.

'Dangerous' and 'careless' driving offences

Specifically, Cycling UK has long argued for new laws to clarify or revise the distinction between 'dangerous' and 'careless' road traffic offences, including their variants involving causing death, causing serious injury, driving under the influence, driving without a licence or insurance, or driving while disqualified.

This problem goes back a very long way. Prior to 1991, the key road traffic offences were 'reckless and 'careless' driving, where the difference was the state of mind of the driver. Unfortunately, it was obviously hard to provide evidence in court of a driver's 'reckless' state of mind, to the criminal standard of proof (i.e. "beyond reasonable doubt"). So driving which had caused death or serious injury was regularly dismissed by prosecutors or the courts as being merely 'careless', due to the difficulties of proving 'recklessness'.

As a result, convicted drivers would regularly receive extraordinarily lenient sentences, allowing them to get back behind the wheel within weeks or months, even when their victims had been left with the life sentence of permanent disability or death.

So in 1991, Parliament replaced 'reckless' with 'dangerous' driving. The new legal distinction was supposed have nothing to do with the driver's 'subjective' state of mind (or 'mens rea' in legal parlance). It was instead intended to be an 'objective' test, with 'dangerous' driving being defined as that which had caused 'danger' that should have been "obvious to a competent and careful driver".

Unfortunately this admirable aim was undermined by two flaws which remained in the legal framework. Firstly, Parliament also chose to distinguish 'careless' and 'dangerous' by saying that a person drove 'carelessly' if the standard of their driving fell "below what would be expected of a competent and careful driver", whereas it was 'dangerous' if it fell "far below" that standard.

Yet judges or jurors seem to have wildly inconsistent views of what can be expected of "a competent and careful driver", or whether particular acts of bad driving fell "below" or "far below" that standard - as Cycling UK showed in its report Failure to see what's there to be seen.

It doesn't help that 'careless' still sounds to most people like a state of mind - and clearly you can cause real 'danger' by driving while in a 'careless' state of mind. This is an obvious recipe for legal confusion. 

Inconsistent logic: "There but for the Grace of God go I"

I suspect that a lot of jurors find themselves thinking, "I'm a pretty competent and careful driver, but I could have made the same mistake as the driver in the dock in front of me - there but for the grace of God go I - and I don't want to convict them for 'dangerous' driving if that means they'll be sent to prison." Legally of course that is entirely wrong, though it is also very understandable.

However the upshot is that road crash victims still regularly face the double injustice of absurdly lenient sentencing - try Googling "driver spared jail", and you'll see what I mean. This is often because the driving which caused their injuries or death has been dismissed by prosecutors or the courts as being merely 'careless', despite having caused 'danger' that surely ought to have been "obvious to a competent and careful driver".

 

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The importance of driving bans

Cycling UK has always been clear though that its desire to clarify the distinction between 'careless' and dangerous' driving is NOT because we want to see more drivers locked up for causing death or serious injury - even though that is evidently what Shapps wants to happen to cyclists.

On the contrary, we have long argued for less reliance on custodial sentences, and greater use of driving bans. Most (though not all) drivers who kill or maim through 'dangerous' driving are not dangerous people, who need to be locked up for public protection. A much fairer and more effective remedy is to ban them from driving for a suitable time-period, and only allow them to resume driving once they have passed an extended re-test.

Long prison sentences, by contrast, should be reserved for those who have driven so obviously recklessly, or who have already flouted past driving bans, so that imposing (or re-imposing) a ban would NOT provide sufficient public protection.

That is also why we have repeatedly argued that offending drivers should not be able to routinely avoid driving bans by pleading that this would cause 'exceptional hardship'.

16 years of campaigning, 2 promises and still no action

Cycling UK has been making these or other points, repeatedly, since Parliament was debating the Road Safety Act 16 years ago. We said it in response to consultations by the Crown Prosecution Service in 2007 and 2012. Cycling UK launched its Road Justice campaign to raise these issues in 2013.

We felt we were making real progress when the then Justice Secretary Chris Grayling MP announced a full review of road traffic offences in 2014. Yet his successor, Liz Truss MP, opted to consult on a much more limited set of reforms in 2016-7 - see Cycling UK's response.

So we continued building parliamentary support for a wider review, e.g. in inquiry reports from Commons Transport Committee in 2016 and the All Party Parliamentary Cycling Group the following year - see also this Commons debate. Yet so far, the Government has only brought forward legislation on its limited 2016-7 proposals, as part of the Police, Crime Sentencing and Courts Act 2022.

We therefore used the parliamentary debates on that legislation to table amendments in both the Commons and the Lords, seeking the wider review of road traffic offences and penalties that Grayling had promised in 2014. Last December, ministers in the Lords finally renewed that promise, saying they were now working on the scope of the review. Yet even now, it has still not commenced.

Meanwhile, Commons Leader Mark Spencer MP was asked in June this year about the Government's plans to introduce the new offence of causing death by dangerous cycling. In response, he said that the Government was "considering bringing forward legislation to introduce new offences around dangerous cycling [...] as part of a suite of measures to improve the safety of all road and pavement users."

So it is deeply troubling that Grant Shapps is now proposing to bring forward new cycling offences as part of the forthcoming Transport Bill, before his Department has begun considering the wider issues (and particularly the distinction between 'careless' and 'dangerous' offences) as part of the review that was promised in 2014.

We are also awaiting a new Road Safety Strategic Framework (n.b. that too is overdue, given that the Government's two-year Road Safety Statement from 2019 has already lapsed). Yet Shapps seems to want to pre-empt these processes, by legislating in haste to address a very occasional problem, while ignoring a much more common and serious one.

A consultation on sentences (but not offences)

In the meantime though, we have an opportunity to take action. The Sentencing Council (SC) is currently consulting on a draft set of revised guidelines to the courts on the sentencing of motoring offences. The SC cannot create new offences or vary the maximum penalties for existing offences: that can only be done by Parliament. But the SC's guidelines do influence how the courts use their sentencing powers within the current legal framework.

So it is very disappointing that the SC's draft guidelines say nothing whatsoever about driving bans.

 

Take action

Please help us by emailing a short and sweet response to the Sentencing Council's consultation. Urge them to include the use of driving bans in their revised guidelines. You could make the following points:

  • Driving bans would be a just and effective sentence for those who have committed 'dangerous' driving offences, but who are not evidently 'dangerous' people, and who therefore do not need to be locked up for the public's protection.
  • Long prison sentences should be reserved for more obviously 'reckless' offenders, including those who have flouted previous driving bans - the case of Christopher Gard exemplifies why this is essential.
  • Using driving bans more widely could result in jurors being likely to convict for 'dangerous' driving offences in the first place, ensuring that the 'objective' definitions of 'careless' and 'dangerous' driving work as Parliament intended.when it created them in 1991.

Meanwhile we will keep you updated on whatever we discover about the Government's legislative proposals. We will not stand by if they are seriously planning just to tackle cycling offences, without addressing the bigger picture.

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