Suggested Legislative Changes for Road Safety

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In my previous post I highlighted a few of the failings I see in the British judicial system as it pertains to traffic offences.

At the foot of it, I expressed a desire for change.

It seems only fair, then, that I should also express the nature of change that I feel is necessary. And so, having given it a couple of days’ thought (and correspondingly little research, for which I hope you’ll forgive me), here are the six points I personally believe would represent a vast step forward in protecting all responsible road users. This is not simply about protecting cyclists, despite the recent sentences that have provoked this post: this is about everyone.

1. Realignment of “careless” and “dangerous” offences

As someone else said: “Careless is losing your car keys. Dangerous is being on the phone on an HGV and running someone over.”

The phrase “careless driving” is a motif for the fundamental problem with road safety, a fact that has been proven time and time again. Most recently it was proven in the Mary Bowers case: a driver can fail to see road markings, fail to see a cyclist who is in plain view through their windscreen, operate a phone illegally whilst driving, fail to stop their vehicle properly after running the cyclist over, and then lie to the police, and this is considered “careless” and not “dangerous”.

My complaint here isn’t necessarily about the statutory differences between the various careless and dangerous charges, it’s a complaint about semantics. But the semantics are, in this case, absolutely crucial. (In other words, I appreciate that technicalities inevitably prevent certain charges succeeding; the problem, other than the insultingly feeble sentencing, is the naming of the lesser offence.)

The heart of the problem is that describing such behaviour as “careless” excuses it. Anyone can be careless: anyone can lose their keys. Someone who can drive their car into someone else is dangerous. To disagree with this is surely to disagree with basic Newtonian physics. If you cannot adequately control a vehicle, you are dangerous, and the larger and more powerful your vehicle the more dangerous you are for any given level of “carelessness”.

Juries frequently acquit people of “dangerous” charges for one key reason: The jurors know that they could make the same mistake, and they are scared. They know that it could be them in the dock, because they too are careless. They operate vehicles with the same absence of care: they speed, they underutilise their mirrors, they fiddle with the stereo, they continue unabated into low sunlight… and so on.

This is precisely the thing that has to change: It must not be considered acceptable to drive without the high level of attention that safe driving demands. People wilfully believe that incomptent driving is entirely adequate: in his recommendation of a motoring lawyer who successfully defended him after he drove into a cyclist, one driver says “I felt that I had done nothing wrong“. People can drive into other road users and actually believe they have done nothing wrong. It’s utterly beyond comprehension, yet it’s a common view.

For this reason, deeming patently dangerous activities as “careless” propagates the acceptance of poor standards and dooms us to a downward spiral of safety.

There is no justifiable reason for any charge of inattentive driving to be deemed simply “careless”.

2. Abolition of the “exceptional hardship” plea

Imagine for a moment that you are a pilot of small charter aircraft. Your job is to fly people from A to B safely. Your job, your reputation and your long-term welfare – as well as that of your family – depends on you being able to operate your vehicle in a safe and responsible manner.

If you are an aircraft pilot and you turn up to work drunk, fly well outside the permitted flight paths, come in to land and end up bouncing off the runway and crashing into some stationary aircraft, you are basically screwed. You will not work in the air industry again. But pilots know this. It’s one of the many good reasons why they don’t do it.

Yet time and again (just google “exceptional hardship”, you’ll find footballers and businessmen aplenty dancing smugly out of court), people behave similarly in cars and they have an almost perfectly literal “get out of jail free” card.

My employment and my family’s welfare depends not one iota on me having a car, yet somehow I seem to have managed to muster the diligence to have driven 300,000 or so miles without having my collar felt. It is incomprehensible that anyone whose welfare does depend on it should be incapable of achieving the same.

People who drive for a living, and all people whose welfare is dependent on driving, and who still cannot drive safely, are self-evidently incapable of the degree of attention and judgment which befits a driver.

The exceptional hardship plea does one thing: It allows the court to take pity on the most persistently and/or severely dangerous drivers on the road and force every other road user to accept the greater risk of sharing the road with them.

The acceptance of this plea is manifestly socially perverse, allowing risk to be foisted onto the vulnerable by the irresponsible, and this absurd loophole has no reason to remain.

3. An increase in the use of bans for driving offences

This is something for which I have previously argued.

The main danger on the road is not from malice, but from incompetence (repeat: not simply “carelessness”). The problem is that the law fails to address this issue before the consequences become severe.

Fines are not effective. The driver in the Mary Bowers incident, which is a harrowing example of extreme ineptitude, was fined £2700. For some people this may have some impact (though I’ll refrain from commenting on the comparison to the impact on the lives of those who are injured or killed or who lose friends and relatives), but for many more it is simply not a big deal: it’s the price of a big TV or a cheap secondhand hatchback.

Points are not effective. Until you hit 12 there is, as far as I’m aware, only the effect on insurance premiums to consider. Most of us have probably known people who openly talk about their points and who are equally open about it not affecting their conduct until they reach 9. It’s socially acceptable; in fact, more than that, for some people it almost seems to become bragging rights.

What will affect incompetent drivers is preventing them driving. Even a short ban will be sorely felt. Get the train for a week, or walk – hell, even cycle – this is real pain to most drivers. They’d notice it.

I appreciate that some people continue to drive whilst disqualified, and so an increase in effectiveness of enforcement is important. But there are myriad conceivable solutions to this: it is hardly beyond the wit of man.

And if you’ll forgive me a slight aside, it may even transpire that people who’ve felt there is no alternative to the car may actually find that other forms of transport are more often than not actually quite enjoyable, cheaper, more healthy, less stressful, even quicker.

4. Highly punitive sentencing for persistent offenders

You don’t have to look far to find evidence of how the law ignores persistently dangerous drivers. Browse some road lawyers’ websites and you’ll find some startling things.

This rather eye-opening lawyer’s testimonial page contains a multitude of quite terrifying examples of how easily a severe offence will often go unpunished or barely punished (one drink driver, for example, says “it is quite remarkable that I have retained my entitlement to drive at the end of the case“). It is, however, this quote that more than any paints a damning picture of the legal system’s view of poor driving:

I was facing my third driving whilst disqualified, heading for a possible fourth ban in 10 years … I received minimum sentencing of points and a fine

Now, I am by no means a lawyer, but from that statement I infer the following. Firstly, that the driver has committed at least three (possibly more) offences for which they received a ban. Secondly, that on three occasions (presumable once per ban, but perhaps not) they have ignored the ruling. Thirdly, that the rate of offending – rather, the rate of being caught and successfully prosecuted for it – at this severe level is around once every 30 months. Fourthly, that they were found guilty of some offence on this occasion. And fifthly, the point which I am really making here, the judicial system was either unwilling or unable to recognise that this is clearly a persistently dangerous driver who disregards the law, and gave him only a derisory minimum sentence.

The degree to which the law tolerates people who operate vehicles in a manifestly dangerous manner, and who cannot adjust their behaviour, is nothing short of dumbfounding.

There are times when you simply have to say, “you are not fit to drive a vehicle”. Driving is an earned privilege afforded to those who have means and – supposedly – demonstrable competence. It is not a human right.

5. Statutory corporate responsibility

Referring back to the Mary Bowers case, Petre Beiu (the driver) was engaged in a telephone call to another driver from the same haulage firm at the time of the incident. At the very least, there is another driver who should be convicted for using a phone whilst driving, and if he was aware of Beiu being on the phone at the time he should be considered accessory to Beiu’s offence.

However, one wonders if this was standard practice. I have seen no mention of an investigation into how the firm enforced driving standards, but if it was accepted behaviour – whether explicitly or implicilty – then surely there is some degree of corporate culpability.

Anecdotally, I observe the standards of professional drivers to be lower than those of private drivers. And I am far from alone. Many professional drivers also have greater levels of distraction in the car: taxi drivers, for instance, regularly use phones and radios.

Without a level of research for which I regrettably lack the time, it is difficult to say exactly how legislation should be used to enforce greater driving standards amongst professional drivers; especially as there is a significant cultural factor. But I would think that a requirement to consider corporate manslaughter whenever a driver of a company vehicle causes a death would at least be a start.

Fundamentally, companies can and should serve a pivotal role in terms of encouraging and enforcing acceptable standards. Where any corporately approved or tolerated practice is found to be a factor in any incident on the roads, the company should accordingly be held wholly or partly responsible.

6. Introduction of presumed liability

Cyclists have called for presumed liability for years. Presumed liability says that in the case of a collision between a motor vehicle and a non-motorised road user (equaestrian, cyclist, pedestrian), the driver is presumed to be at fault unless the more vulnerable can be proven to be so.

This is in no way about seeking to give cyclists, nor anyone else, some sort of immunity on the road. If they can shown to be partly or fully responsible – for example, not using lights in the dark – then they shall be held accordingly. (Presumably witness reports of incompetent cycling such as jumping a red light would also be valid – though bearing in mind that the jurors in the Sam Harding case had to be explicitly instructed not to bear prejudice against cyclists and the key reason for the Crown’s inability to prosecute the driver who killed Tim Sanders was a witness who hated cyclists, I accept this with a slight sense of foreboding.)

What this is all about is two things: Firstly, recognition that the overwhelming majority incidents of this type are actually the fault of the driver, yet in many of the cases no successful prosecution is brought. Secondly and, in my view, more importantly, it is recognition of the relative vulnerability (and kinetic energy) of road users. It is not really difficult for drivers to leave plenty of space when passing, or to look twice before pulling out of a junction, but this adjustment of the law would provide a potent real-time reminder for road users to carry out their responsibilities.

Summary

These are, in my opinion, changes which would vastly improve all responsible road users’ sense of safety on the road, not just cyclists. Moreover, there is nothing in here that would be in any way detrimental to any responsible road user.

This is all about dealing with incompetency on the road, from the seemingly minor to the persistent and severe, any of which can become fatal with a roll of the dice. This is all about dealing with the attitude that’s it’s ok to be “a little” incompetent on the road; about preventing jurors from projecting the fear of being punished for their own shortcomings; about preventing people wriggling out of entirely appropriate punishments designed to ensure others’ safety, when those others have no say in the matter.

This is essentially all about the recognition of the fact that controlling a ton or more of metal at significant speed is something that requires skill and attention, and that when those attributes are absent it is nothing less than dangerous.

This is, simply, about common sense.

Comments

Jake says:

Re: presumed liability

As a I cyclist (and, sadly, a lawyer), I applaud proposals for a rebuttable presumption of liability on the part of a car driver, as happens in (I think) Holland. We should also adopt the corollary of that presumption, however, that cyclists involved in incidents with pedestrians should also bear the same presumed liability in the absence of evidence to rebut it.

Stewart Pratt says:

Jake, yes, in principle I fully agree that this should be generalised: more mechanically advantaged road users should have a duty of care over less advantaged and more vulnerable road users.

I guess the potential devil is in the detail. Considering somewhere like central London, I guess the implication might be that cyclists would have to stay well away from the pavement in order to avoid anyone straying onto the road. Might be workable, might not. Or it might be that that case is treated as might be a cyclist failing to observe a ‘give way’ marking when turning onto a amin road, ie their fault.

Good point, though. If it’s workable then I certainly agree with it.