Futility

Some days, things seem futile.

Extremism

On occasion, I’m accused of being anti-driver with the arguments I make on here. I’m not anti-driver (I drive a lot, for a start), I’m just in favour of people not driving objects into other people and killing or seriously injuring them. It’s like arguing against people getting stabbed with knives and then being accused of being anti-cooking.

But much of the time, it feels like the view that it’s simply not acceptable to kill people in completely avoidable collisions and then say “Well, it happens” is some form of extremism, and that the rest of society stands around blankly and says, “What are you on about? Of course it’s acceptable. You expect me to actually not drive into people?

And today is, more than any other, one of those days. Today, any argument that people should control lethal vehicles seems futile.

Reporting

Today, Southampton Cycling Campaign published a set of reports from a recent trial. Now, I appreciate this is secondhand information, but the reports – which I would heartily encourage you to read in full – seem sufficiently thorough and matter-of-fact to draw some inferences.

What these reports give us is a picture of what a trial looks at when someone is struck from behind by a motor vehicle.

Questions

If someone drives a vehicle into you from behind and you fall to your death, the court will ask the following questions: Whether you should have chosen a different route (despite being fully entitled to have chosen the one you did); Whether a route that you didn’t take is a convenient one (relevant how?); Whether you were experienced (as if you are somehow more to blame if you’re not); Whether you were wearing high-visibility clothing (despite multiple research studies and a collision investigator from the same police force having demonstrated its ineffectiveness); Whether you were in a certain position within your lane (despite being entitled to move around hazards such as potholes); Whether you had turned your head immediately prior to impact (I genuinely have no idea); Whether you were at a slight angle to the van due to road camber (again, I’m lost).

If you drive a vehicle into someone from behind and they fall to their death, the court will ask the following questions: Whether the wet road would have increased your stopping distance (the implication being that it’s not your fault if you didn’t account for it); Whether the position of the sun would have affected your visibility (the implication being that it’s not your fault if you didn’t account for it); Whether it would be reasonable to expect laterally-moving traffic ahead to indicate another road user being passed (as if this is some great leap of enlightenment); Whether traffic queuing at lights is a distraction (as if dealing such an extraordinary eventuality is beyond the reasonable expectation of a driver); Whether you were not yet an “advanced driver” and would thus not be expected to possess the “advanced driver skill” of forward anticipation (the implication, again, being that it’s not your fault if you don’t think ahead).

You see the pattern? When it comes to the deceased victim who cannot respond, they are scrutinised in depth and given every opportunity to be in the wrong; when it comes to the one controlling the vehicle headlong into the victim, the questions appear to mainly seek justifications for them not having seen the person whom they hit.

For the most stark illustration of this, look no further than the way the trial investigates whether the victim is an experienced rider and whether the defendant is an “advanced driver”. It would seem that in the case of the former, lack of aptitude implies greater blame; whilst in the case of the latter, lack of aptitude implies lower expectations. An astonishing reversal of attitude.

But that is far from all.

Discrimination

The truly jaw-dropping moment in this case comes at the end, when the judge allegedly states that the jury “will be directed to ignore Highway Code [rules 93 and 237, advising drivers to] slow down or stop if dazzled [because the] Highway Code is not law” and that the defendant’s failure to adhere to such rules “could be used as evidence of without due care and attention, or could be ignored“.

After all the detailed analysis of the victim’s movements and behaviour (including numerous aspects which are perfectly within the rights of the victim, others whose practical relevance is totally unclear, and still others whose practical relevance has been entirely disproven by multiple research studies) the single aspect of basic safe driving behaviour that underpins the entire case is – according to this account – explicitly dismissed by the judge.

Remember, crucially, that although the Highway Code is indeed not itself law, the specific charge applied here is based on the expected behaviour of “a careful and competent driver”. One might expect such a driver to – at the very least – broadly adhere to the advice in the Highway Code.

But the judge’s direction appears to be that the Highway Code does not have any value in that context: in other words, that one need not pay the slightest attention to the Highway Code in order to be legally considered a careful and competent driver.

It seems impossible to read through this case without feeling that the law is outrageously partisan. This would be no bad thing were it partisan in order to counteract the physics: to better protect people when they have less physical protection and to better control people when they present greater physical danger. But it is quite the opposite: Those with the kinetic energy get the excuses for not seeing; those without the steel safety cells get the scrutiny of inconsequential minutiae.

Simplicity

If only we were able to ask the simple question, “Did someone drive a vehicle into a person who was perfectly entitled to be where they were?” and to compare the answer with a simple piece of statute that says “If you drive a vehicle, you must not drive it into a person.”

But instead we construct unnecessarily complex and hopelessly vague statute that basically asks jurors: “This thing that happened here, is it quite significantly worse than however you drive yourself?”

Instead of simply deciding that driving into the back of someone is not acceptable, excuse after excuse is available and we will pick and choose when and to whom the Highway Code applies. If you’re not fully compliant with the Highway Code when you’re killed, you’ll be used as an excuse. If you can’t be used as an excuse yourself, we’ll claim the Highway Code didn’t matter anyway.

Abandonment

Not for the first time, the law appears to indicate that if you ride a bicycle you have no right to stay alive on the road.

The law says, simply: Do not be in the way of a motor vehicle. If you are, the physics will kill you, the law will scrutinise you, and then the public and the media will spit on you.

To conform to the law or to the Highway Code, whether you’re controlling a motor vehicle or hit by one, seems futile.

And right now, with the law stacked against vulnerable road users to this extent, to even argue for change seems futile.

Today, a lot of things seem futile.

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26 thoughts on “Futility”

  1. Any law that has subjective standards is almost certain to lead a race to the bottom. I fear that we are not even near the bottom when it comes to Road Traffic Act 1988. This case and other cases have basically started setting the precedent of effectively removing the legal “right to ride” from roads where there are nearby (not necessarily adjacent or convenient or indeed safe) cycle lanes.

  2. And after all this you still aren’t anti-driving? Surely the point is thst driving a car well enough to guarantee never hitting anyone is hard, too hard for most people to guarantee doing it every time they go out. Since most people do, in fact, drive, in order to avoid the possibility of being punished they construct elaborate alternative explanations, essentially boiling down to “this case was not the fault of the driver, but rather of the victim, or the weather, or the Flying Spaghetti Monster”.

    I’ll happily admit to being anti car. I don’t drive, and believe the costs imposed by cars are higher than their benefits. But if we must keep private vehicles, separated infrastructure is the only sensible alternative.

    1. Ian, while I am sympathetic to your views and get very angry with many drivers, I think it’s just too simplistic to be “anti-driving”.
      Motor vehicles are an essential part of our lives, many people depend on them for their own transport because they may be disabled or have to make journeys that cannot be made any other way, we all depend on delivery vehicles etc etc.
      But we can all agree that the great majority of motorists are irresponsible and that it in great part because out culture allows and even encourages it. People will conform to good behaviour if society makes it clear they must, look at the almost universal acceptance of seatbelts in cars or not smoking in public, both things which were once seen as infringements on rights.
      So every motorist, me included, needs to sharpen up, and far too many journeys are made by car, but we shouldn’t blame the vehicle for its irresponsible use.

  3. Ian, I do drive and I don’t think “driving so that you don’t hit anyone” is very difficult at all.

    It requires a conscious decision to drive safely and a continuous assessment of conditions and hazards, and constant adjustments to suit. I think most people are capable of this but most people, frankly, can’t be arsed.

    1. I drive a lot, and love it. I used to be a professional, driving cars and buses. I ride my bike a lot, and love it. I’ve always loved it.

      What would happen if we got everyone to spend a good few hours riding bikes, driving cars and driving heavy vehicles? It wouldn’t happen, because of cost and crashes, and the private tracks and buckets of time that would be required, but the average punter would get a good idea of just how big and bad-handling and surprisingly precise a bus is, just how wandery cars are, how surprisingly hard it is to see out of cars, and how hard it is to keep a bike out of the way of the traffic and how scary it can be.

      I love it all, even so.

  4. so it’s OK for the ASA to throw the highway code in our faces when it comes to helmets and high-viz but the Judge can completely ignore it when it comes to a case of driving without due care and attention (which this should have been a slam dunk case)…

    GRRRRR :(

  5. Bill
    It requires the skills and attention you list, to be applied all the time you’re driving. So no losing concentration; no driving while angry, or sick, or tired; no hurrying because you’re late; slowing or stopping if the weather conditions change. Good, you can do it – I’m happy for you. I know I couldn’t, all the time, which is why I stopped. I’m convinced many of the drivers I see around me can’t, which is why I think they should stop.

    1. I hope I didn’t come across as someone claiming to be a driving god! I suppose it’s a different type of difficulty. It’s not brain surgery which, even under perfect conditions, very few people could do successfully. Driving ‘properly’ is hard because the alternative is easier and has no consequences oIn the vast majority of cases. (That’s cases of inattentive/poor driving which don’t cause a collision, not the tiny minority that end up in court). So why choose the hard way when the end result is no different to the easy way?

      Pressing the brake pedal when you can’t see what’s in front of you is an easy thing to do. But it means slowing down and most drivers don’t like slowing down, even if it means driving blind. But expecting someone to slow down when they can’t see where they’re going shouldn’t be reserved for “advanced drivers”. Anyone who can drive is able to do it. They can see and they can press a pedal so they can slow down when their view I’d obstructed. Assessing multiple hazards at very high speed might be beyond a normal driver, but that’s why police pursuit drivers are assessed so strongly. And it’s why motorways are such controlled environments (and therefore relatively safe despite the high speed).

  6. Thank you for the link to the Southampton Cycling Campaign’s report of the trial. I can’t believe the jury were able to excuse the driver from responsibility for his actions. Truly chilling.

    My thoughts go out to David Irving’s family who had to suffer the tragedy of his death and then that travesty of justice.

  7. There need only be one law, ‘failing to operate a vehicle safely’ this would make conviction more likely, though we would then rely on the judge to choose an appropriate sentence.

  8. Ganbare! On the other hand, I’ve been trying to work out why your view might be unnecessarily pessimisitc for future cycling, but it’s not proving easy. I’d like to hear an experienced lawyer’s view on the judge’s Highway Code instruction. I was under the impression that when juries are in the jury room in the UK they don’t need to consider any law or advice or instruction at all. It is assumed that they are good people and they can return whatever verdict they like, based on any principles or standards they like. The fact that any statement is or is not law is irrelevant. So you put a jury with their knowledge and experience in a room, roll the die and see what they come out with. That to me is unbiased* justice, UK-style. When a judge tells a jury to “ignore the HIghway Code” itself, which for most people is the de facto standard fror what is considered driving with due care and attention (a subjective notion – nod to Parimal Kumar’s point here) rather than something like “it is not against the law to ignore the HIghway Code” then I think the die might well be being loaded.

    * yes I know juries are likely to be all motorists in cases like this and so biased. One of the other “Surrey posse” cyclists has suggested the excellent idea that any driver with points on their license should not be allowed to be in a jury on traffic cases. Personally, I look forward to the day when a jury in case like this turns out to be all cyclists.

    1. As far as I’m aware the role of the jury is to establish guilt or innocence based very precisely on the law and very much not on their own personal values. If the reverse was true, the law would be a lottery.

      The real issue here is that the law, most pertinently the wording of the RTA 1988 in terms of “careless” and “dangerous” driving, is completely inadequate: There is, basically, no law against driving straight into the back of someone.

      I have no issue with the idea that non-legally-binding advice should not in and of itself be legally binding. I have very great issue with the idea that the definition of “a careful and competent driver” (which is legally critical here) is, in this trial, explicitly divorced from the advice which is generally recognised as the gold standard in this country for what constitutes such a driver.

      Essentially, what this tells us is that to ignore the Highway Code with fatal consequences is neither dangerous nor careless.

      1. “As far as I’m aware the role of the jury is to establish guilt or innocence based very precisely on the law and very much not on their own personal values. If the reverse was true, the law would be a lottery.”

        there is the right of all Juries of Jury Nullification. Where the Jury can completely ignore the Judge and vote their own way. The legal system however does not like this and will always dismiss any juor they suspect knows about it.

        If the Jury believe the law is wrong, they can find not guilty, if the jury believe the law as it stands is an ass and the guy is clearly guilty, they can vote guilty.

        http://www.ukcolumn.org/article/jury-nullification-power-people

  9. I’ll just repeat what I said on mangatom’s blog post about this case:

    It doesn’t help much that the charges are so subjective. It seems that from the CPS to juries, and from person to person, no one can agree on what precisely constitutes “obviously” dangerous or careless driving, (even though we’ve all supposedly been trained to the same extent well enough to pass the same driving test).

    But get caught with too much alcohol in your blood, or going over the speed limit, then there’s a clear scientific dividing line you cross where you automatically pass over the “guilty” threshold that we can all see with the naked eye, without a jury needing any special training or being asked subjective questions. That’s the basis of strict liability in a *criminal law* sense, the not needing to prove a mens rea (guilty mind) in order to prove guilt, but only the existence of the actus reus (guilty act).

    So maybe the law should be changed to stop talking about subjective dangerous behaviour, but start simply talking about the objective dangerous outcomes. If you hit someone from behind on a straight road in broad daylight, or you hit someone head-on while on the wrong side of the road, if you close pass a cyclist, we should be able to automatically say you’re a criminally negligent driver – go straight to jail, do not pass go, do not collect £200.

    1. If you’ve also noted DB’s recent tweet I reckon that you’d align with the idea that we have to dump the special tariff motoring offences and simply call a spade a spade – kill someone by running into them on a bicycle and its manslaughter – so make the same charge apply if you do it in a car, cut out all the dithering between CPS/PFS, Police and Defence about dangerous/careless and successful prosecutions, and if there is mens rea chuck the book at the offender with a charge of murder.

      Whilst we are at it, noting that around 30% of KSI on the road involve someone driving for an employer, there is a clear ‘Duty of Care’ issue, which again, had any other cause of death been involved, would land that employer in court under Section 3 of HSAW Act 1974 for failing to demonstrate that duty of care to a non-employee, through failing to manage the action of an employee using dangerous equipment or processes. HSE reckon that around 10% of KSI at work incidents involve use of the road as a workplace and it is the one area where they do not have the control that works to keep construction sites and factories safer. Whack a few section 3 prosecutions and rack up the fines and employers might think a bit more carefully about pressurising their drivers to drive to insane schedules for the driving conditions.

      To close, taking that last paragraph, and the maxim that there is no smoke without fire (nil combustimus pro fumo – to use a 1960’s joke), take a look at http://saferoxfordstreet.blogspot.co.uk/ and pick through the obvious anger of the main blog host (which reflects back in the reaction to his blog from TfL’s post holders in mutual ‘dislike’) and look to the underlying issues and major effort required to gain objective and impartial information. Buses – check the stats – are the most dangerous vehicles on the road especially when it comes to bashing pedestrians around – no great surprise of course as a typical bus is on the road 18 hours per day – 10 times as long as the average private car, and in places where pedestrians are in great numbers – after all that’s where the bus customers are most numerous……

  10. Not entirely futile.

    As long as people like you (and Southampton Cycling Campaign) are properly reporting these outrages, at least we are not seeing the prospect of a civilised society go down the plughole without some kind of resistance.

    I have to say – as an old git who has been complaining like you about this sort of thing for 30 years – that we never used to get the kind of justified outrage that we are getting now from people like you.

    It’s this internet thingy, methinks.

    So well done and keep up the good work,

    Regards,

    Dr Robert Davis, Chair Road Danger Reduction Forum

    1. I’m not sure if it’s genuine, a troll or a joke (of sorts). Whatever it is, it’s pretty distasteful of the Echo to publish it so shortly after the conclusion of the case.

  11. I’m no lawyer but it reads to me like the judge has wrongly directed the jury. The Highway Code, since even where it is not law is intended to inform roads users on safe conduct, should assist juries in determining whether or not driving, in the specific circumstances they are being asked to consider, is below the standard that might be expected of a careful and competent driver.

    Does the CPS have scope to appeal?

    1. I see where you’re coming from, but whilst I’ve very much in favour of safe, separated infrastructure that’s not really the point here.

      It’s true to say that with shared roads we may never fully eliminate collisions, but the point here is that the law fails to seize any opportunity to address them when they do occur. We have normalized unsafe driving behaviours to an alarming extent. The wording of statute is absolutely integral to that, and reports such as these demonstrate that in-court activities are integral to that as well.

      Besides, this is not just about people cycling on the roads. Look up the death of Ray Elsmore and you’ll see that this is a much wider problem. Look up the Sheppey bridge pile-up and you’ll see that this is a much wider problem.

      The incredible double standards in the scrutiny of the individuals and vehicles involved is an aspect which is perhaps particular to a motor vehicle-on-bicycle collision, but much of this is about very generic problems that affect all road users and the manner in which we understand – or, rather, totally ignore – the basic physics inherent in propelling a vehicle of any given nature.

      Besides, even in the Netherlands there are shared roads. There will always be a place for the law to provide protection to those who need more than is afforded to them by the physics of the situation, and currently it does quite the reverse.

      1. Yes and No.

        This isnt about infrastructure, it’s about how poor the UK justice system and our peers are at dealing with errant drivers, and how some drivers have absolutely no respect for cyclists.

        Imagine if we had the exact same infrastructure as the Netherlands and at certain junctions cars would have to give way to cyclists. What if a car were to fail to yeild and killed someone, does anyone really think that a UK court would handle this situation with any more diligence than this case or previous one, just because of infrastructure.

        In a UK court it would descend into the exact same farce:
        – The sun-was-in-my-eyes
        – The cyclist wasnt wearing hi-viz
        – The cyclist was travelling too fast to anticipate
        – It was a moementary laspe of concentration
        – The signage was confusing
        – My foot slipped.
        – The satnav didnt tell me I had to give way to cyclists…
        – Defence would argue that the junction is dangerous and that it should be the cyclists that should give way…

        Infrastructure is only one piece of the jigsaw, albeit a rather large piece. I welcome NL infrastructure, and in this case it would have meant not having to cycle on a fast dual-carriageway. But given the reports do you really think this particularly, lazy, feckless, driver would be carefully looking out for cyclists at NL style intersections and properly giveway, I fear not. Worse I fear the courts would still fail us in clear cut cases despite infrastructure.

  12. Riding home last night I kept getting crosswinds, pushing me at an angle and further into the carriageway (main road with a 50 mph speed limit). It was tipping it down with rain, and *very* windy. Did even a single motor vehicle appear to give me more space, holding back or passing wider than usual, given the awful conditions and the possibility of me being blown over or into them? What do you think??? I had to pull over and catch my breath (and my racing heart) a couple of times after catching particularly bad gusts, as I was painfully aware that if I *had* blown over then a car behind me would have bumped over me before they even realised that I’d fallen. So much for adjusting your speed and driving style to the conditions – what a joke!

    (and don’t even get me started on that letter the Echo saw fit to publish: freedom of speech, but…)

    1. https://www.gov.uk/driving-adverse-weather-conditions-226-to-237/windy-weather-232-to-233

      “232

      High-sided vehicles are most affected by windy weather, but strong gusts can also blow a car, cyclist, motorcyclist or horse rider off course. This can happen on open stretches of road exposed to strong crosswinds, or when passing bridges or gaps in hedges.”

      the paragraph is there in the Highway Code informing all readers that cars, cyclists, motorcyclists, horseriders can all be blown off course…

      Personally I think everybody with a driving test should have to repass the theory test every so many years so that they remain reasonably current with the contents of the Highway Code.

      I’m convinced the vast majority of drivers out there have not read it since the day they passed their test.

      It’s all available on line for free… no excuse.

      1. One of my colleagues is currently revising to take her theory test. About 10 of us decided to try one of the practice tests with her. Depressingly I, the only non-driver, was the only one to get all the questions right. Three would have failed, all of them drivers for at least 15 years. To be honest, I thought it was pretty trivial, and really ought to be supplemented by psychological testing, at least.

  13. Initial thoughts on reading the court notes (after wanting to go and break something):

    The implication that we should now carry date-stamped photos showing that we have the requisite number of lights and reflectors fitted, cos if we get squashed then the lights get squashed too and the Powers That Be have no idea whether we had any and will assume that we didn’t.

    The implication that if we do not follow the council recommended bike route then its our own fault what happens to us (imagine if the cars all had to stick to *recommended routes* to get from A to B).

    Also, what is the point of the question of whether the deceased was riding a “hybrid”?

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