Dangerous and reckless cycling – do we need the new law?
Last month the new Dangerous and Reckless Cycling (Offences) Bill passed its first reading in the House of Commons. The Bill is intended to create new offences of causing death or serious injury by dangerous or reckless cycling. Proposing it, Andrea Leadsom MP said:
“I am a keen cyclist and I heartily support the many people who leave their cars at home and cycle to work and school. Over the last few years, there has been an upsurge in cycling, which is a great way to keep fit and healthy and a green initiative that I fully welcome. [...]
[I]n the vast majority of cases, it is the cyclists themselves who are the victims on our roads when they are killed or injured by motorists who simply fail to spot them. The penalties for dangerous or careless driving for motorists are as they should be – very strict. Occasionally, however, it is the cyclist who injures or kills while riding their bike, and this is the area I want to address today. At the moment, the punishment for cyclists falls far short of the crime, and I believe we need to update the law so that all road users are equally protected and take equal responsibility for their actions.”
Ms Leadsom wants cyclists to be “charged with similar offences and given similar punishments to those that motorists currently face”. She has since written an article for the Guardian’s bike blog justifying her proposals.
The Bill has been prompted by the death of Rhiannon Bennett after she was knocked down by a speeding cyclist. There appears to have been conflicting evidence as to whether the cyclist was on the pavement at the time of the impact; some reports, as well as Ms Leadsom’s account to Parliament, suggest that he was. The cyclist was charged with dangerous cycling, convicted and fined £2,200 (the maximum penalty would have been £2,500). Ms Leadsom says that the problem in Rhiannon Bennett’s case was that there was “no charge which is appropriate to the crime”, and apparently the Crown Prosecution Service has also blamed the lack of an offence of causing death by dangerous cycling.
The new Bill will have its second reading in November – the delay may be due to the fact that its detailed provisions don’t seem to have been written yet. There is a real possibility that it could become law. But do we need the new offences?
The law at present
A motorist who commits the offence of causing death by dangerous driving faces a maximum of 14 years imprisonment. If they kill someone by driving in a way which was not dangerous but was careless, they can be charged with causing death by careless or inconsiderate driving and face a maximum of 5 years in prison. (RTA ss. 1, 2B; RTOA Sch 2)
But if a motorist causes injury (hurts someone but they don’t die) there is no specific offence. Instead the motorist can be charged with one of the following:
- Dangerous driving (maximum 2 years’ imprisonment – RTA s.2)
- Careless driving (maximum penalty a fine of £5,000 – RTA s.3)
- Causing bodily harm by wanton or furious driving (maximum 2 years imprisonment – OAPA s.35)
By contrast, if a cyclist causes either death or injury, the following charges are possible:
- Dangerous cycling (maximum penalty a fine of £2,500 – RTA s.28)
- Careless cycling (max fine £1,000 – RTA s.29)
- Causing bodily harm by wanton or furious cycling (maximum 2 years’ imprisonment – OAPA s.35)
Alternatively, both cyclists and motorists can be charged with general offences – such as manslaughter, or causing grievous bodily harm. But it can be difficult to show that they had the necessary intention to cause harm to fulfil the requirements of the general offences.
When Ms Leadsom says there is no specific offence for causing death by dangerous or reckless cycling, she is right. She’s also right that the position is different for motorists, where there are specific offences of causing death by dangerous or careless driving.
So the proposed offences of causing death by dangerous or reckless cycling would fill a gap in the current law. The new Bill as it currently stands would not make the law on causing death the same for cyclists and motorists, because recklessness is likely to be a stricter standard than carelessness – so your riding would probably have to be worse to cause death by reckless cycling (the proposed new offence) than a driver’s driving would have to be to cause death by careless driving. But the laws would at least be similar.
Ms Leadsom has also said that cyclists should be given “similar punishments” to motorists. It may be that she means that the maximum sentences for causing death by dangerous/reckless cycling should be the same as the maximum sentences for causing death by dangerous/careless driving. If so, that would be a big change in the approach which the law takes to sentencing.
For example, at the moment dangerous driving carries a maximum of 2 years in prison, while the maximum penalty for dangerous cycling is a fine of £2,500.
The current approach to sentences reflects the vastly different levels of risk which cycling and driving pose to others. The number of pedestrian casualties brought about by cyclists each year is tiny, whereas the risk posed by cars is (statistically) much greater. In other words, a bicycle being ridden dangerously isn’t very likely to hurt anyone other than the rider; a car being driven dangerously is, comparatively, a death machine. So much greater deterrents are needed for motorists – it’s much more important for everyone’s safety that motorists are made to think twice before driving dangerously or carelessly.
So if the new offences of causing death by dangerous/reckless cycling are created, the penalties should not be the same for cyclists as they are for motorists, because the risks which the two activities pose to others are vastly different – as the current law recognises.
Ms Leadsom has also said that a new offences of causing injury by dangerous or reckless cycling are necessary to bring cycling laws in line with motoring laws. This is misleading: in fact the law is the same at the moment. The current wanton/furious driving offence comes from the same section of the same Act as the wanton/furious cycling offence, and is the only specific offence of causing injury for both motorists and cyclists. (OAPA s. 35)
So a new offence of causing serious injury by dangerous or reckless cycling wouldn’t make the law the same for cyclists as it is for motorists. Instead it would create a new offence for cyclists which doesn’t exist for motorists, with the potential to make the law harsher for cyclists than it is for motorists.
The existing offence of causing bodily harm by wanton/furious cycling comes from a statute made in 1861, so I’ll call it “the old law”. Ms Leadsom has criticised the old law.
First, Ms Leadsom has said that the old law is “little used”, and that it is “unlikely to be successfully upheld in cases such as the Rhiannon Bennett case”. In fact there have been at least two successful prosecutions for causing injury by wanton/furious cycling since 2008. Interestingly, both cases involved cyclists riding on the pavement and knocking over a pedestrian, who later died. It’s not clear why the cyclist in Rhiannon Bennett’s case wasn’t charged with this offence – it may be because the evidence conflicted as to whether he was on the pavement at the time he collided with her. If he wasn’t, then the prosecution might have felt it would be hard to establish that his cycling was wanton or furious – for example, as I’ve said before, the simple fact that he was riding fast along the road might not be enough to amount to wanton or furious cycling.
But there’s no legal reason why the old law should only be applied when the cyclist is on the pavement. And, anyway, the old law also allows two further charges – causing bodily harm by wilful misconduct or wilful neglect. If the cyclist in Rhiannon Bennett’s case wasn’t on the pavement, it may well have been possible for the prosecution to seek convictions based on charges of wilful misconduct or wilful neglect instead. It’s not clear why they didn’t.
Second, Ms Leadsom has said that the old law is “completely out of date”. This seems to be a criticism of the language used in the statute. She’s right that wantonness, furiousness, wilful misconduct and wilful neglect are terms which are no longer commonly used in the law. By contrast, the terms dangerousness and recklessness (which are the basis for the new suggested offences) are used elsewhere, so there are more recent cases to serve as a guide for the courts.
It may well be right that using the more modern language could make prosecutions for causing injury easier. But remember that the old law is the only specific causing injury offence for motorists too – so if the old law needs to be changed for this reason, then it needs to be changed for both motorists and cyclists. This would require general road traffic legislation – not the Bill which is currently before Parliament.
At present the wanton/furious driving offence doesn’t appear to be used much against motorists. The maximum penalty is the same as the maximum penalty for dangerous driving – 2 years in prison. So when a motorist causes injury, prosecutors can just charge dangerous driving and there won’t necessarily be any reason for them to seek a conviction for the (more difficult) wanton/furious driving offence. Looked at in another way, this means that in legal terms causing injury by dangerous driving isn’t necessarily treated as any worse than the act of dangerous driving itself. As far as I’m concerned, if anything needs reform, it’s that.
Third, it might be said that the maximum penalty for the old offence – 2 years in prison – isn’t high enough for a cyclist who injures someone. But 2 years is also the current maximum for a motorist who injures someone and is convicted of wanton/furious driving or of dangerous driving. And the penalties for cyclists should be lower than the penalties for motorists, because of the different risks involved.
It’s no doubt true that some motorists who cause injury are prosecuted under the general offences – such as causing grievous bodily harm – and receive higher sentences. But, as I’ve said, the general offences can be used for cyclists too. It might be more difficult to convict a cyclist for GBH, because their vehicle isn’t so obviously a dangerous weapon – but if that’s the reason for a different treatment of motorists, then the different treatment is entirely justified.
So there is a fair argument in favour of the new offences of causing death by dangerous/reckless cycling. But it would not be right to make the sentences the same for cyclists as for motorists who cause death by dangerous/careless driving, and it would not be consistent with the approach which the law presently takes to maximum sentences.
However the proposed offences of causing injury by dangerous/reckless cycling are very questionable indeed. Contrary to what Ms Leadsom has said, the law on causing injury is the same at the moment for motorists and cyclists – it comes from the same section in the 1861 Act. It may need to be changed, but if so, it needs to be changed for both cyclists and motorists, and the new Bill does not do this. Making the proposed changes in the Bill, which affect cyclists only, would be harsher on cyclists than motorists.
More generally, it’s sad that an MP who professes to be a cyclist should take up the rare time that Parliament spends talking about cycling for this Bill, when no-one in recent memory has put forward any kind of positive cycling legislation. As Ms Leadsom admitted in her speech, “in the vast majority” of accidents involving cyclists, the cyclist is the victim. Why not do something about the vast majority of accidents instead? What about a presumption of liability which works in favour of the weaker road user? Or a law allowing cyclists to ride on any pavement which is beside a dual carriageway?
Photo by movingtargetzine from here: http://www.flickr.com/photos/movingtarget/138631132/