Monday, 2 December 2013

Article for The Guardian's bike blog

For those who are interested, here is an article I wrote for the Guardian bike blog on the case of Alex Paxton - a London cyclist who successfully challenged a fixed-penalty notice by the police after he had crossed a red-light for his own safety.

http://www.theguardian.com/environment/2013/dec/02/case-against-london-cyclist-dropped-crossed-red-light-safety#start-of-comments

Wednesday, 25 September 2013

Appeal rejected to extend "unduly lenient" sentence for driver who killed two cyclists


The Court of Criminal Appeal in Scotland has just handed down their judgment in the case of Gary McCourt v Her Majesty’s Advocate. You can read the judgment in full here.

In this case, Gary McCourt was driving westbound on Portobello Road, Edinburgh. Mrs Fyfe, was cycling eastwards on the same road. McCourt wanted to turn right into Craigentinney Avenue across Mrs Fyfe’s path. He ‘more or less stopped' to allow an eastbound bus to pass by and immediately turned right to go across the opposite carriageway. Mrs Fyfe had been cycling behind the bus and as McCourt turned into the side road he struck her bicycle towards the rear wheel. She lost balance and fell, striking her head. She died from her injuries two days later.

The case was heard by Sheriff Scott in the first instance and he ruled that Gary McCourt was guilty of driving without due care and attention and should be sentenced to 300 hours community service. He should also have a five-year driving ban with a compulsory extended re-test. Mrs Fyfe’s widower complained that the sentence was ‘beyond comprehension’ and the CTC wrote to the Lord Advocate to ask that the sentence be appealed.

There were a number of factors that the appeal court were asked to consider, the most important of which, for me, are the following:
  1. McCourt had been found guilty of causing death by reckless driving of another cyclist in 1986. This should have been an aggravating factor in determining the sentence. 
  2. Sheriff Scott said in his judgment that Mrs Fyfe not wearing a cycle helmet contributed significantly to her death. This should not have been a mitigating factor.
  3. The accident involved more than “momentary inattention”, which is what the initial court had found.
       The court was also asked to rule as to whether the driver’s remorse should have been a mitigating factor – particularly as he had maintained a plea of not guilty and fought the case to trial. McCourt had said "that he decided to go to trial not to prove that he was innocent but to ensure that the victim's family knew the truth of what had happened" which is hard to believe. However, it would have been very hard for the appeal court to overturn the judge’s subjective finding (which they did not do) and I will not dwell on that point here.

      1. EARLIER CONVICTION

McCourt had already been sentenced to 1 year in custody and was banned from driving for 10 years after having been found guilty of causing death by reckless driving in 1986. The prosecution argued that this should have been a powerful aggravating factor in determining the sentence handed down to the driver. 

The trial judge was of the view that the current case involved a low level of carelessness and as the previous case was 27 years before it should not be given a great deal of weight. However, when he killed Mrs Fyfe he had only been driving again for 8 years since regaining his licence. The judge added that if the driving had been at the more serious end of the range of carelessness he would have been able to infer that the driver had not learned his lesson and punished him more severely. The appeal court upheld his view on this.

      2. CYCLE HELMET 

Sheriff Scott was of the view that it is a matter within ‘judicial knowledge’ that in low impact, low speed collisions between vehicles and cycles, a helmet is likely to be effective in preventing serious or fatal head injury to a cyclist. He cited rule 59 of the Highway Code, which says “you should wear a cycle helmet which conforms to current regulations, is the correct size and securely fastened.”

The prosecution argued that not wearing a cycling helmet was similar to not wearing a seatbelt when in a car, which courts had already found should not be a mitigatory factor. In my view, the prosecutors ought not, without strong qualification, have compared the failure to wear seat belts with not wearing a helmet as there are many differences – not least that only one of them is enforced by the law. 

The prosecution referred to three studies / presentations as evidence that the value of cycle helmets was a matter of dispute. They also argued that there was no evidence, medical or otherwise, that the absence of a cycle helmet contributed to the death and the sheriff was wrong in mitigating the respondent's sentence on that account.

The appeal court agreed and found that the sheriff erred in treating this as a matter of judicial knowledge, which are matters which can be “immediately ascertained from sources of indisputable accuracy, or which are so notorious as to be indisputable.” The appeal judges stated that:

“there is a degree of controversy as to the efficacy of cycle helmets in preventing death. We consider that the sheriff was wrong to regard this as a matter of judicial knowledge. The view which he reached was based not on evidence but on speculation, and in this respect he fell into error. He should not have treated the fact that Mrs Fyfe was not wearing a cycle helmet at the time of the collision as a mitigatory factor.”

It is a crumb of comfort in an otherwise unfavourable judgment that the court found this in the prosecution’s favour although, frankly, it would have been a disaster if they had not. Incidentally, I would also urge any solicitors acting for injured cyclists to refer this passage to the court when arguing that cyclists should not have their damages reduced for failing to wear a cycle helmet.

3. MOMENTARY INATTENTION

The driver accepted that if he had looked he would have seen Mrs Fyfe and her death would have been avoided. There was also a red coloured cycle lane to draw people’s attention to the presence of cyclists. The prosecution argued that it was obvious that McCourt should have looked to his right after the bus had passed the junction before he began turning. As a result of these factors, I agree with the prosecution that this was not “momentary inattention” but amounted to a basic failure of driving.

I would argue that momentary inattention should refer to an error occurring when in a passive state, such as when a driver goes into the back of the vehicle in front. The driver in this case, however, was nearly stationary and was taking a positive action of turning into a side road. In taking this action he failed to check for the presence of other road users and drove into Mrs Fyfe’s bicycle.

However, the appeal court said “we cannot disagree with the sheriff's categorisation of this as a momentary inattention...the sheriff carried out a careful and detailed assessment of culpability as recommended in the Definitive Guideline, and we can detect no error in the way in which he went about this delicate task.”

As a result of the court’s findings they did not uphold the appeal and the driver’s sentence will stand. Mrs Fyfe’s widower said that “despite this bitterly disappointing outcome, at least we tried to do something about it and convince the judges that the sentence was far too lenient considering the circumstances of his past history." I commend Mrs Fyfe’s family for doing so, and they have at least ensured the court’s clarification that Sheriff Scott was incorrect finding that Mrs Fyfe not wearing a cycle helmet at the time of the collision was a mitigating factor.

In my view, there is one key factor that should have determined a higher sentence for the driver – namely that the accident was not simply caused by momentary inattention. The seriousness of the offence should then have been categorised as falling towards the higher end of the middle category. A period of 36 weeks of custody would then have been the minimum finding. Taking into consideration the previous conviction, McCourt should then have been given a permanent ban from driving, which is the only just consequence in this case.

As I discussed in my article for Lexis Nexis (see previous blog post) the Sentencing Council is shortly to undertake a review of the sentencing guidelines for prosecutors in cases of death by dangerous and careless driving. The All-Party Parliamentary Cycling Group (APPCG) inquiry in their “Get Britain Cycling” report suggested that the prosecution guidelines needed to properly distinguish between careless and dangerous driving. Their particular concern was that driving which has caused an “obvious danger” is often dealt with under the lesser offence of careless driving. I would argue that this case is a good example of this occurring, and I hope that sentencing policy will be changed to encourage the courts to give stronger sentences to better protect cyclists and other road users.

Wednesday, 4 September 2013

Strict Liability article


I recently wrote an article for Cycling Weekly on strict liability, looking at why it may not be the change that cyclists are looking for. 

Here is a longer version of that article, which may be of interest. Since it was published, the Department for Transport has announced that it will be holding a review of the sentencing guidelines for death by dangerous driving and death by careless driving.



The Liberal Democrat policy paper Green Growth and Green Jobs has recommended the introduction of strict liability in cycling cases, bringing this subject back into the public eye. The concept of strict liability is not a new one. In 1982, the great judge Lord Denning said that cars (“this dangerous instrument") deal in death and destruction and drivers should be liable to compensate anyone who they kill or injure. Spiderman's uncle put this view across more simply when he said, “with great power comes great responsibility”. It is hard to disagree with that. 

Currently, the person who causes a collision is liable to pay the victim damages for their injuries and financial losses. However, the victim must first show that the other party is to blame. With strict liability, the person in the more powerful vehicle is automatically presumed to be at fault and the duty is on them to prove that they are not liable for the accident. In practical terms it would mean that, following a collision between a car and bike, the driver would have to prove that the cyclist was to blame in order to avoid paying them damages. 

Supporters of strict liability argue that putting the onus on the more powerful vehicle will create a change in attitude and drivers will be more considerate and safety conscious around cyclists. However, it is unrealistic to think that this will come about by strict liability alone. If anything it may increase the divisions between cyclists and motorists as it gives fuel to the anti-cyclist mantra 'one rule for them, another for us'.

The effectiveness of strict liability at protecting the safety of cyclists and encouraging cycling may not be as clear cut as common sense would suggest. For instance, long after it was introduced in Ontario, Canada there are still a low number of cyclists and a high risk of injury. This indicates that strict liability does not necessarily lead to a culture of cycling. Conversely, strict liability came into force in Holland in 1992, long after a cycling culture was firmly established, demonstrating that cycling can flourish without it.

The movement for strict liability has already generated bad press in the Sun and the Daily Mail; it is easy to put a negative spin on the story. At the moment, a full campaign would be deeply unpopular and would further polarise cyclists and motorists. Our political capital would be better spent on promoting wide reaching changes that are really worth the fight and will actually reduce the number of accidents.

Strict liability is often misrepresented as having an impact on criminal law, whereas it actually only deals with cases for damages. It will not make motorists more likely to get points on their licence or receive a conviction. This is the main weakness of strict liability as, in my experience, cyclists are most concerned by motorists getting away with injuring cyclists and whether they can recover compensation is often a secondary issue.

It is demoralising when drivers receive a paltry sentence after having been found guilty of killing a cyclist. Causing death by careless driving has a minimum disqualification period of one year, which is painfully low and reinforces the dangerous message that driving is a human right that should not be taken away. If criminal laws were better enforced, and with more stringent punishments, the roads would be less threatening and the number of cyclists would grow. Cycling groups are already calling for this, such as by British Cycling, RoadPeace and the CTC. In my view, it is here that cyclists should concentrate our efforts.

Friday, 7 June 2013

The legal position where a cyclist is injured whilst filtering

An issue that often arises for cyclists is when to filter to the side of a row of stationary or slow-moving traffic. This can be safe but cars may not expect a cyclist to be in this position, which can lead to accidents. For instance, a car in the row of traffic may want to turn right or make a u-turn and could hit a filtering cyclist:


Alternatively, a car may be waiting to turn right from a junction on the left and could turn into the cyclist:


It is worth noting that rule 211 of the Highway Code states that "it is often difficult to see motorcyclists and cyclists, especially when they are filtering through traffic.” It goes on to say that drivers should “look out for cyclists or motorcyclists on the inside of the traffic” when turning right across a line of slow-moving traffic. This seems to put the responsibility on drivers. However, rule 167 the Highway Code also states that road users "Do not overtake where you might come into conflict with other road users. For example, approaching or at a road junction on either side of the road."

The position in the civil courts is that filtering is potentially hazardous and cyclists are expected to filter cautiously and they should to be prepared to stop to avoid vehicles turning into their path. Currently no civil cases have gone to court involving a cyclist who was injured whilst filtering. However, in similar cases involving motorcyclists, the rider is often found to have a portion of blame for the accident. For instance, in the case of Hillman -v- Tompkins (1995) a motorcyclist was overtaking slow moving traffic on the approach to temporary traffic lights.  A car driver reached a junction and indicated her intention to turn right. She hadn’t seen the approaching motorcyclist from her rear and she turned right, causing a collision. At trial, the Judge agreed that motorists should anticipate motorcyclists filtering to the right. Equally the motorcyclist was overtaking on the approach to a junction, so should have been wary of the driver turning right. The Judge found that each party was 50% liable for the accident.

In the case of Pell -v- Moseley (2003) a motorcyclist knew that there was a motocross event in the field on the right hand side of the road on which he was riding. A driver he was passing wanted to turn into the field and, in doing so, collided with the motorcyclist. The Judge found that the motorcyclist should have known that a vehicle might have intended to make a right turn into the field. So, for the motorcyclist to have overtaken in such circumstances was potentially dangerous and  the Judge also found there to be a 50/50 split on liability.

Where a court finds there to be a 50/50 split on liability, as in the above cases, the driver would be liable to pay 50% of the injured cyclist’s damages, plus legal fees. However, the driver could also claim damages (e.g. for the costs of repairing the car). In this case,  the cyclist would be liable to pay 50% of the driver's damages plus their legal costs. This could potentially leave a cyclist out of pocket.

In the light of the conflicting views in the Highway Code, and the way in which the courts have interpreted the rules, cyclists would do well to be cautious when filtering otherwise they may not have the full protection of the court if they are involved in an accident.

Thursday, 7 March 2013

A new age for cycling, or a false dawn?

Later today Boris Johnson will be announcing "The Mayor's Vision for Cycling in London". Exactly what this will involve is not clear, but the key points seem to be:

  • A Crossrail for bikes from Canary Wharf to White City
  • A grid of “safe” cycle routes in central London
  • A re-think of TFL’s policy on dangerous junctions
  • A series of mini-Hollands in some outer London boroughs
  • A network of Quietways, to upgrade existing cycle routes

So far so good but, as with so much in life, the devil is in the detail. One thing that immediately springs to mind is how they are going to deal safely with junctions on the new safe cycling routes. Critics of segregated cycle lanes rightly cite this as a major issue and if this is not tackled head on it could create significant problems between cars crossing the cycle paths. You only need to look at the horrible cycle ways in Bloomsbury to see how segregated cycle lanes can be dangerous and undesirable.

Another consideration is that infrastructure and safety must be improved on all roads – not just the designated cycle safe routes. Some drivers are sure to feel that cyclist have “their routes” and all other roads are meant for cars. If we are to normalise cycling, as the Mayor has indicated he would like, then cycling must be integrated rather than segregated.

So, amongst the hope, there is also a lot of questions that need to be addressed. Andrew Gilligan, appointed by Boris Johnson as the cycling commissioner for London, acknowledged that the changes will not turn London into Amsterdam any time soon, and there is still a long way to go. I remain cautiously optimistic, but cycling has seen many false dawns in this country and I hope this is not another.
  
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You will be able to read full details of the Mayor's vision for London on Andrew Gilligan’s blog shortly:

 

Monday, 4 March 2013

Injured cyclists should act now

As I have mentioned before, the Legal Aid, Sentencing and Punishment of Offenders Act 2012 has introduced a seismic shift in the way that cases are funded. As a result, injured cyclists are going to be left in a worse financial position than in the current system. The changes are coming in on 1st April 2013 and I would urge any cyclist (or otherwise injured person, for that matter) who intends on bringing a case to get legal advice now.

At the moment, injured cyclists who want to bring a case would usually enter into a conditional fee agreement with their solicitor. The solicitor is entitled to charge a success fee if they win to reflect that they would earn nothing if the case lost. The success fee would then be paid by the driver's insurance company and nothing would be deducted from the cyclist's damages. 

The biggest change coming is that (as of 1st April 2013) success fees are not going to be recoverable from the driver's insurers. Instead a success fee to cover the risk of losing will need to be paid by the cyclist, meaning a deduction of up to 25% of their damages.

The only people to win out of the changes are going to be insurance companies who (as of September 2011) had donated £4.9m to the Conservative party since David Cameron became leader in December 2005. The Association of Personal Injury Lawyers (APIL) has campaigned tirelessly against these changes but the government have not listened. Instead they have placed more importance on the profits of insurance companies than the rights of injured people.

Monday, 11 February 2013

Injured cyclists must use their rights

Here is an article on cycling I wrote for The Independent, which you can find here:
  
The funeral of a married couple who were killed when they were knocked off their tandem bicycle in Bristol, and the recent vigil held by RoadPeace in memory of cyclists who have died in lorry accidents, have once more placed the issue of cyclist safety firmly in the spotlight. They also serve as a reminder of how important it is that cyclists understand and use their rights.

Cyclists are injured in fewer accidents than people think but when it comes to protecting their rights this is not always a straightforward matter. Being struck by several tonnes of metal travelling at speed is an intimidating experience to say the least and a cyclist’s first instinct is often to hobble away, if they are able. As a result, many bicycle accidents go unreported.

There is also a culture of stoicism amongst cyclists on the road which means they are reluctant to make the most of their rights after an accident. They may also feel unsure about who is to blame for an accident – particularly as other cyclists can often be quick to point out how someone should have been cycling when they were hit by a car. However, it is important that cyclists act in the same way as any other road user when involved in an accident and they deserve the same support.

From a financial point of view, cyclists need to get the driver’s details if they don’t want to be left out-of-pocket. A motorist wouldn’t think twice about claiming back costs if someone rear-ended them in a car, yet it is so easy for a cyclist to do just that if they get knocked off their bike. In a case I acted on recently, the victim cycled off after an accident without taking the driver’s details only to find a few hundred yards down the road that they had fractured their collar bone. Whilst this may be an extreme example it demonstrates the dust-yourself-off attitude many cyclists adopt when in a road accident. In some ways, this attitude is no bad thing. However, it is vital that cyclists involved in accidents get the registration number of the offending car in order to trace the driver. They should also contact the police if they suspect they have been injured or if the driver refuses to provide their details.

To ensure cyclists can prove what happened in an accident it is important to preserve any evidence, paying special attention to getting the details of any witnesses. Some cyclists now use helmet-mounted cameras to record their commutes. Proving negligent driving may not have been their original purpose but the practical benefits of having footage of your accident is unquestionable. Despite the proliferation of CCTV cameras, particularly around London, it is surprising how often they are not there when you need them or that footage has been deleted. If so, it could be important for the cyclist to have a record of events from their perspective.

After an accident, cyclists frequently complain that the police take little interest in prosecuting the driver. Sadly, this can be the case even where there is strong evidence of bad driving, as was discussed recently by the witnesses at the second session of the All Party Parliamentary Cycling Group’s inquiry into ‘Get Britain Cycling’.

This coincided with the government’s announcement that they are making a timely £62 million investment into road infrastructure to help improve safety for cyclists. If spent wisely, this can go some way to reducing the dangers on the roads thereby encouraging more people to cycle. However, a shift in attitude within the criminal justice system is also needed. Driving is currently seen as a right not to be curtailed at any cost – even where that cost may be the loss of life. For the good of all road users, public pressure needs to be put on the criminal courts to keep dangerous drivers off the roads.

Cyclists tend not to have the same sense of entitlement as other road users and often treat themselves as second class citizens of the road, even though the law affords us the same rights and protections. If cyclists want to be treated as legitimate road users then they need to lead the way by reporting accidents to the police, pushing for the most severe punishments for dangerous motorists and by making drivers accountable when they cause injury by bringing claims for damages.

Oliver Jeffcott is a senior solicitor at Bolt Burdon Kemp and a keen cyclist. He blogs as thecyclingsolicitor.com

Wednesday, 30 January 2013

Why “Get Britain Cycling” is trending on Twitter...


As you will guess from the title, “Get Britain Cycling” is currently trending on Twitter. In short, this is because it is the name of the All Party Parliamentary Cycling Group inquiry into how best to promote cycling in this country, and the fact that it is trending on Twitter is amazing. The witnesses being heard today include members of campaigning organisations including the CTC, British Cycling, RoadPeace and the Parliamentary Advisory Council on Transport Safety.

Cyclists are usually pretty vocal on the future of cycling, and it is a pretty exciting time to be a cyclist. It is hopefully not too far away when it will attain the mass popularity enjoyed in such places as Amsterdam and Copenhagen, where cycling is the default mode of transport. In the UK, although cycling is popular, fashionable and (theoretically) encouraged by the government, it still manages to be seen as an outsider activity. The “summer of cycling” has brought cycling to the front page and to properly establish cycling as the main mode of transport in England, the full support of the Government is needed.

The biggest thing holding cycling back is the perception that it is dangerous. A survey my firm undertook with the road safety charity, BRAKE, indicated that a third of commuters would switch to cycling for their commute to work if the route was less dangerous. Also, 46% of those asked would be persuaded to make other local journeys by bike given safer roads. However, the Get Britain Cycling inquiry today heard that the risk of fatal danger for young car drivers is 10 times higher than for young cyclists.

The Government has today announced a £62 million pound investment in cycling. If the “Get Britain Cycling” inquiry listens to the formidable speakers before them the money should be spent properly: educating drivers how to deal with cyclists; ensuring justice for dangerous drivers; reducing speed limits and teaching the population about the benefits of cycling. I will be eagerly awaiting the recommendations of the inquiry and hoping for a better future for cycling.

Tuesday, 22 January 2013

Proper Protection for Cyclists

The focus on cycling in the media continues but the police and criminal courts still show little appetite to stand behind cyclists. Last week a driver in Solihull was given three penalty points and a £35 fine after he was found guilty of driving without due care and attention after killing a cyclist. That he received no ban from driving is simply astonishing:


Britain’s attitude to is seen as a right that should not be curtailed or impeded at any cost – even when the cost is the loss of life. Sadly, parallels can be drawn in this regard with America’s attitude to guns. This protectiveness towards driving can approach hysteria and safety measures that restrict drivers are seen as mounting evidence of the ‘war on motorists’.

The motor insurance lobby has managed to taint the victims of injury as fraudsters and they have encouraged the government to reduce the victim's rights through the rushed and poorly thought out Legal Aid, Sentencing and Punishment of Offenders Act 2012.  From 1st April 2013 this act will have the effect of putting cyclists in a worse position than they were in before the accident, financially, as up to 25% of their damages will be used to pay their legal fees which had previously been paid by the driver's insurers.

Tomorrow the All Party Parliamentary Cycling Group (APPCG) will start taking evidence for an inquiry entitled 'Get Britain Cycling'. I hope that this will draw attention to genuine improvements that can be made to properly protect the rights of cyclists.