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Mary Bowers and Sam Harding – what do their cases tell us about the law?

21 December 2012
by blondwig

Last Friday juries acquitted the two motorists accused of, respectively, the manslaughter of Sam Harding and dangerous driving in the collision which left Mary Bowers in a coma.

Both Sam and Mary were cycling at the time they were hit.

The two acquittals have caused a lot of anger amongst cyclists. They raise the question whether the laws which exist to protect cyclists and other vulnerable road users are sufficient.

Mary Bowers’ case

Mary Bowers was hit by an HGV turning left, after she had stopped in an ASZ in front of the HGV at traffic lights. The driver, Petre Beiu, was on the telephone at the time (using a hands-free device, which is not itself unlawful), and was accused of checking insufficiently for cyclists before turning.

Because Mary survived, the driver could not be charged with manslaughter or causing death by dangerous driving. This meant that (at the time) the only available charges were dangerous driving (maximum penalty 2 years in prison) or careless driving (maximum penalty a fine of £5,000), which are the same offences that apply if no-one is hurt. (RTA ss. 23; RTOA Sch. 2)

To commit the offence of dangerous driving, a motorist must have been driving dangerously, which means (loosely) in a way which falls far below what would be expected of a competent and careful driver, and obviously poses a danger of injury or property damage. (RTA s. 2A(1), (3))

To amount to the lesser offence of careless driving, the motorist must have been driving in a way which fell below expected standards, but not necessarily far below expected standards. (RTA s. 3ZA(2))

In a trial in the crown court, it is for the jury to decide whether the driving met those requirements. It’s not clear from the press reports why the jury acquitted Petre Beiu of dangerous driving (and juries don’t give reasons for their decisions, so it might not have been clear even in court), but there is a good chance that they concluded that the driving wasn’t bad enough – that it didn’t fall far below expected standards.

Instead, Beiu was convicted of the lesser offence of careless driving, and sentenced to a fine of £2,700 (plus a driving ban). The press reports suggest that he may have admitted that he acted carelessly, but it’s not clear whether he pleaded guilty to this charge. If he was convicted by the jury (on a plea of not guilty), that would suggest that they concluded that his driving fell below expected standards (but not far below expected standards, which would have amounted to the offence of dangerous driving).

Sam Harding’s case

Sam Harding was riding in a bus lane, when a motorist opened the door of a parked car. It seems that the facts were disputed, but the allegation was that Sam hit the door, was thrown onto the ground, then killed by a bus which was travelling behind him.

The motorist, Kenan Aydogdu, was charged with manslaughter.

In the road traffic context, the offence of manslaughter can be committed in two ways: where someone causes death by committing an unlawful act, or when someone causes death by gross negligence. The maximum penalty is prison for life.

The judge in Aydogdu’s trial is reported to have ruled that the charge of manslaughter by an unlawful act could not be put to the jury. That decision could perhaps be questioned, since opening a car door in a way which injures or endangers another person is an offence (and therefore unlawful). But the law on what kind of unlawful act is sufficient for a charge of manslaughter is complex (and too detailed to go into here).

The judge’s ruling meant that the only question for the jury was whether Aydogdu had committed manslaughter by gross negligence. For this purpose, the jury had to decide whether, taking into account the risk of death involved, his conduct was so negligent as to be criminal. (R v Adomako [1995] 1 AC 171, 187)

Again, it’s not clear why the jury acquitted Aydogdu, but there’s a good chance that they concluded that his conduct wasn’t negligent enough to satisfy this test.

In Aydogdu’s case the prosecution could, as an alternative, have sought a conviction for causing death by dangerous driving. However it seems that this option wasn’t pursued. Again, it’s not clear why, but the prosecution might have taken the view that what Aydogdu was doing didn’t amount to ‘driving’ for the purposes of that offence. (RTOA s. 24(A1), (A2))

Previous decisions of the courts suggest that for a motorist to be ‘driving’, the car must generally be in motion. But a motorist might still be ‘driving’ if he or she stops at traffic lights while waiting for them to change. Similarly the courts have held that

there will always be a brief interval of time after the vehicle has been brought to rest and before the motorist has completed those operations necessarily connected with driving, such as applying the handbrake, switching off the ignition and securing [the] vehicle, during which [he or she] must still be considered to be driving.

(Edkins v Knowles [1973] 1 QB 748, 756; R v MacDonagh [1974] RTR 372, 374; Burgoyne v Phillips [1983] RTR 49, 51)

It’s not clear whether stopping, turning off the engine, then opening the car’s door might still count as ‘driving’ (and it’s also not clear whether this is what Aydogdu did). If the prosecution had sought a conviction for causing death by dangerous driving in Aydogdu’s case, an appeal on this point would presumably have been very likely. It’s possible that the prosecution decided that their case against him wouldn’t be strong enough to justify the expense of defending an appeal.

That this charge wasn’t pursued is a shame. As the London Cycling Campaign have said, dooring poses a significant risk to cyclists. It would be useful to obtain clarity from the courts as to whether behaviour such as opening the driver’s door to get into or out of a car, which is arguably an operation necessarily connected with driving, can count as ‘driving’ for the purposes of the offences of causing death by dangerous (or careless) driving.

So are there problems with the law?

The acquittals in both cases resulted from decisions made by juries. In both cases it seems likely that the jury took the view that the driver’s failings weren’t bad enough to amount to the serious offences (carrying significant jail terms) which were charged.

For so long as cars are the principal way of using the roads, there is a risk that juries will have sympathy with motorists, and will be reluctant to convict a motorist of a serious offence (resulting in a prison sentence) based on what may have been a relatively common driver error.

The result is that the convictions which are obtained (and the sentences that follow) often seem trivial in cases like those of Sam Harding and Mary Bowers, and it seems that the available laws aren’t adequately enforced, so that vulnerable road users aren’t adequately protected.

What can be done about this?

One solution would be to increase the maximum sentences for the lesser offences (such as careless driving), so that judges can impose longer sentences even where juries acquit the driver of more serious offences. This approach has some merit, although it is possible that juries might respond by being reluctant to convict even of the lesser offences.

Another solution could be to introduce new offences.

If Mary Bowers’ case happened now, the motorist could be charged with the new offence of causing serious injury by dangerous driving (for which the maximum penalty is 5 years in prison). Again, though, the question would be whether the driving was dangerous, which is the same question the jury answered in the negative. (LASPO s. 143; RTA s. 1A; SI 2012/2770 art 2(b))

As I’ve said, it seems that the jury did convict Beiu of careless driving, but that offence carries only a fine. At present, there is no offence of causing serious injury by careless driving. One way of strengthening the law in cases like Mary’s might be to introduce an offence in those terms (with a penalty which could include a prison sentence).

Interestingly, last year Andrea Leadsom MP proposed a new offence of causing serious injury by reckless cycling, which would have been similar, but was aimed only at cyclists. I’m not aware of any serious proposal along these lines having been put forward to target motorists.

Alternatively, Parliament could create a new catch-all offence of causing death or serious injury by the use of a motor vehicle. To obtain a conviction for this offence, the prosecution would simply need to show that a motor vehicle had been used, and that death or serious injury had resulted. This ought to capture cases where death or injury resulted from dooring, without the need to prove that the car had been driven. It would also not require any consideration of how bad the motorist’s conduct had been, removing the possibility for the jury to be overly lenient.

The new catch-all offence would apply to a very wide range of situations, including both Mary Bowers’ and Sam Harding’s cases. It could be accompanied with a wide sentencing discretion for judges (guided by sentencing guidelines), to ensure that the punishment could be shaped to fit different circumstances (including significant prison terms in appropriate cases).

A new offence in these terms would be an offence of ‘strict liability’, in the sense that a driver could commit the offence without any fault (intention, recklessness or negligence) on his or her part. (cf James v Smee [1955] 1 QB 78, 90-91)

I’ve written before that, in the context of criminal offences, presumptions of fault are likely to infringe human rights safeguards – in particular the innocent until proven guilty guarantee in article 6(2) of the European Convention on Human Rights. This means that it isn’t possible to legislate to create a presumption that the motorist drove dangerously or carelessly for the purposes of the existing offences. (R v Lambert [2002] 2 AC 545 at paragraphs 17, 34-41, 154)

But creating a new strict liability offence (which is defined in terms which do not require fault) is a different approach, and there is a reasonable argument that it would be consistent with human rights laws. (Salabiaku v France [1991] 13 EHRR 379, paragraph 27; Sheldrake v DPP [2005] 1 AC 264, paragraphs 12, 21, 41)

However the courts will presume that legislation creating a criminal offence does require fault (particularly where significant prison sentences are possible), unless the contrary clearly follows from the wording. So the new offence would have to be drafted in very clear terms, and there would be uncertainty as to how the courts would react to it. It would probably generate expensive appeals, as well as political controversy. (B v DPP [2000] 2 AC 428, 460-1, 463-6, 470-2, 478-9; R v G [2004] 1 AC 1034, paragraph 32)

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Photo by Nick Harris1 from here: http://www.flickr.com/photos/nickharris1/6269988162/

This article is for information only and is not intended as legal advice. UK Cycle Rules material is made available subject to terms which you can read here.

10 Comments leave one →
  1. Ben permalink
    21 December 2012 14:01

    I presume that the reason a driver opening their door isn’t charged with dangerous driving, is that it could lead to the odd situation where a driver who doored someone could be charged with dangerous driving, but a passenger that did precisely the same thing could not.

    • blondwig permalink*
      21 December 2012 15:45

      true, although I’m not sure that that result would necessarily be that much of a problem!

  2. 21 December 2012 14:25

    If laws on ‘strict liability’ breach the European Convention on Human Rights, how come the majority of countries have such laws? Yet, all of these countries are signatories to the European Convention on Human Rights. Surely there is a need to better understand how laws on ‘strict liability’ work in other countries. Also we need to find better ways for the law to protect the vulnerable here, as it is clearly failing to do so.

    • Mike Chalkley permalink
      24 December 2012 10:18

      Kim, the european ‘strict liability’ laws (actually should be called presumed liability) are for the civil issues around accidents. They presume the motorist’s insurance will be liable for cyclist/pedestrian compensation unless it can be proven the cyclist/pedestrian was at fault. It means the vulnerable, uninsured road users can expect to be able to claim when it’s not their fault. If there is a case for overturning it, the insured will have their insurance company backing them in any dispute. It levels things somewhat and means small claims will be settled quickly and easily.
      Criminal charging is not covered by this law.

  3. Stephan Matthiesen permalink
    21 December 2012 14:30

    I wonder if the decisions are actually more lenient than they would have been if it hadn’t been a motorist. Imagine a situation where somebody carries a long ladder on a busy pavement and then turns around suddenly without looking, pushing another pedestrian off the pavement onto the road where he gets seriously injured. This is similar to Sam Harding’s case, only that it’s a pedestrian using a ladder rather than a motorist using a door. What would be the outcome in that case? I’m not familiar enough with UK law, but I would imagine that most people would find a harsh sentence for the ladder-bearer quite fair. Can you perhaps explain what the law would say in this hypothetical ladder case?

    I get the impression that motorists get a bit of preferential treatment here: dooring (as well as other types of dangerous behaviour) are not seen as “below standard” because they are so common.

  4. 21 December 2012 14:48

    For comparison: The German Road Law (Strassenverkehrsordnung) explicitly says (my translation):

    Paragraph 14: Duty of care when leaving/entering a vehicle
    (1) A person who leaves or enters a vehicle has to behave in a way to rule out any danger to other traffic participants. (http://www.das-kfz-portal.de/strassenverkehrsordnung-stvo/par14.html)

    So in the Sam Harding case, this rule would explicitly make the motorist responsible for the accident, because he has not broken this rule.

    • 21 December 2012 14:50

      … correction: “has not followed the rule” (instead of “not broken”)

    • blondwig permalink*
      21 December 2012 15:48

      Hi Stephan

      Thanks for the link. Afraid I don’t really know enough about how that duty is enforced in German law to comment.

      • 23 December 2012 10:52

        Thanks. I still wonder if you don’t have a general legal framework for cases when somebody creates an unexpected risk to others, independent of motoring laws (see my first post with the ladder example).

  5. ivan permalink
    7 January 2013 11:21

    For the last few years, we have had a strict liability offence of Causing Death While Driving Uninsured. A case which went to appeal found that a driver was guilty of this offence, even though witnesses agreed that the victim had stepped in front of a vehicle being driven carefully, and the driver had no chance to avoid the collision.

    It seems to me that cases like this illustrate clearly what is wrong with a strict liability offence such as “Causing death by use of a motor vehicle”. I think that there has to be an essential element of operating a vehicle in a way that fell below acceptable standards of use, for this to be an acceptable offence. And it is no use saying that the police/prosecutors will not charge when a conviction would be perverse: the police/prosecutors charge people with breaches of the law as they see it written, as the above case makes clear.

    The principal problem we have is that juries are unwilling to find people guilty of dangerous driving, etc, when they hit people because they just didn’t see them: of course one has some excuse for failing to see an unlit cyclist in the dark, but these cases are cases of being unsighted due to an interference, such as sun in your eyes, or looking and not seeing. No juries do so because they drive cars themselves and put themselves into the position of the driver rather than the victim. It needs to be clearly written into law that such is dangerous driving, so that juries do not have this option. This Dooring case is special, because it is unclear in law whether driving offences apply.

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