Environmental Law Centre Scotland Ltd

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National Active Travel Conference - 2009 Whose
Side Is the Law On the enforcement issue
Frances McCartney, Solicitor Director

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What is the Environmental Law Centre Scotland Ltd

• not for profit law centre specialising in
  environmental law. It assists community groups,
  individuals and the voluntary sector to protect
  improve the environment by providing advice,
  advocacy, training, updates and research.

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Road traffic law the basics

• Criminal law
• Prosecutions of offenders
• Law of evidence beyond reasonable doubt and
  corroboration
• Some aspects of road traffic law been influenced
  by Human Rights Act 1998

• Civil law
• Where claim for compensation or injury
• Driven by insurance companies
• Law of evidence on balance of probabilities and
  no need for corroboration
• Need to show breach of a duty of care
• Can be proved through criminal case, but often
  arises without a criminal prosecution

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Road traffic law the basics

• Criminal law - arises mainly from statutes,
  directions and regulations means technical, can
  be difficult to access, questions of statutory
  interpretation and compatibility with human
  rights
• Civil law - mainly common law (case law) arising
  from the concept of delict
• Civil law usually involves duties of care and
  showing breaches of such duties of care, and
  thereafter showing loss arising directly from
  that breach of duty of care

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Road traffic law the practicalities

• Criminal cases - decision to prosecution is for
  Procurator Fiscal alone on the test of the public
  interest
• Rules of evidence mean some cases will not come
  to court, and if do, use of informal plea
  bargaining
• If case does proceed to trial, no decision to
  read as such - just whether the charges were
  proved

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Road traffic law the practicalities

• Civil law in this area is driven by insurance
  companies - different considerations
• Insurance companies are repeat litigators
• Majority of personal injury claims settle before
  court
• Unless actual injury or loss (e.g. wages)
  difficult to bring a claim for compensation
• Only cases that proceed to full hearing are
  usually reported
• Result - few reported cases on duties of road
  users to cyclists and pedestrians

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Highway Code where does it fit in?

• Highway Code status in law is that it does not
  create offences as such, but contains a serious
  of directions for the guidance of persons using
  roads Wheatley Road Traffic Law page 193
• Not automatically guilty of an offence if you
  fail to follow Highway Code, but section 38 of
  the Road Traffic Act 1988
• any such failure may in any proceedings (whether
  civil or criminal) be relied upon by any party
  to the proceedings as tending to establish or
  negative any liability which is in question in
  those proceedings

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Status of cyclists in law

• Defined by s 192 of the Road Traffic Act 1988 as
• a bicycle, tricycle or cycle having four or more
  wheels, no being in any case a motor vehicle
• Can be specific offences made relating to
  cyclists under s 81 of RTA 1988
• Police officers have power to stop cyclists on
  the road (s 163 of RTA 1988)

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Status of cyclists in law

• Highway Code has guidance on cyclists
• Cyclists duties Emphasis on responsibility of
  cyclists to take care, care of bike, parking bike
• Drivers duties e.g. rules 163 overtaking, 167
  left hand turns, 170 junctions, 211 junctions,
  rules 211 to 213 on cyclists and motorcyclists

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Status of cyclists in law

• Overall Highway Code does treat cyclists as
  vulnerable on the roads and demands special care
  from drivers
• However, also emphasis on cyclists duties can be
  unrealistic e.g. Rule 67 look well ahead for
  obstructions in the road, such as drains,
  pot-holes and parked vehicles so you do not have
  to swerve suddenly to avoid them
• No general presumption that the car driver at
  fault
• Cyclists can have common law duties of care in a
  civil context

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Status of pedestrians in law

• Very little of criminal law is directed to
  pedestrians (duty to follow police officers
  directions, s 37 of RTA 1988)
• Highway Code directions to pedestrians re
  crossing road safety, visibility (realistic?)
• Section in Highway Code directed to car drivers
  re vulnerability of pedestrians including
  children and older persons (Rules 206 - 210)
• Civil law - pedestrian can make a claim against
  drivers (and cyclists!)

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Civil case law attitude of courts?

• Smith v Finch 2009 All ER (D) 158 (Jan)
• Accident happened on a summers evening. Cyclist
  turning right, hit by motorcyclist at speed who
  was trying to overtake on offside, judge rejected
  motorcyclist's contention that the bike had come
  out of a side road. Smith suffered serious brain
  injury
• Case centred round issue of helmet. Finch
  argued lack of helmet made Smith at fault and
  partly responsible for his own injuries.
• Finch failed as didnt show causation (that
  wearing the helmet would have made a difference),
  but the judge expressed sympathy with the fault
  part of Finchs submissions.
• Arises from an earlier case Froom v Butcher
  1976 1 QB 286 where Lord Denning said such a
  failure to wear a helmet would not be a
  sensible thing to do and so, subject to the
  issues of causation, any injury sustained may be
  the cyclists own fault and he only has himself
  to thank for the consequences

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Civil case law attitude of insurers?

• Evidence that an almost automatic 20 reduction
  in compensation expected where no helmet, despite
  failed attempts to introduce legislation through
  Parliament.
• Ashley case (1999) contributory negligence claims
  of failure to wear conspicuous clothing and re
  lack of a helmet were abandoned 2 days and
  minutes before the trial began - pressure on
  plaintiff
• Darren Coombs case (2001) - insurers argued
  contributory negligence re lack of helmet and
  lack of supervision (Darren was 8 at time of
  accident). Court concluded There was no degree
  of contributory negligence to attach to the young
  cyclist.
• Millett case (2002) insurance company backed down
  on claim of contributory negligence when faced
  with campaign by Cyclists Touring Club
• Cases do not appear to rest on causation between
  lack of helmet and the difference it would make -
  clear that to settle without discount often
  involves long exhausting process Harrison case
  2003

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Criminal case law attitude of the courts

• Daniel Cadden prosecution for inconsiderate
  cycling and supported the successful appeal of
  his conviction for the offence. Cadden was
  prosecuted for holding up traffic after he chose
  to cycle in the road rather than cross a 50mph
  road twice to reach an off-carriageway cycle
  track
• Supported by Cyclists Defence Fund appealed and
  won a re-trial
• Daniel Cadden was cycling fast downhill on
  a single-lane carriageway when he was stopped by
  police who believed that his position, about 1m
  from the road edge, was forcing cars to cross the
  central solid white line illegally in order to
  overtake. But rather than stop the cars, the
  officers charged Daniel with inconsiderate
  cycling. At the retrial, the judge and two
  magistrates accepted the arguments from Daniels
  barrister that there were contradictions in the
  police's evidence, that there was no legal
  obligation for cyclists to use cycle tracks and
  that causing only a short delay to drivers did
  not constitute inconsiderate cycling.

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Criminal case law attitude of the courts

• Little research and evidence in Scotland on rates
  of prosecution
• FOI request to Crown office - no details of
  reports made or of prosecutions where death or
  injury to cyclists or pedestrians
• Difficult to say if police not investigating,
  reporting to the PF or PF not taking up issues
• Could be issues re corroboration, or attitudes?

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Case law attitude of courts?

• Assumption that helmets do make a difference -
  controversial
• Is it that cycling is a dangerous activity or
  that merely cyclists are more vulnerable to
  mistakes of motorists?
• Cycle Aid - hundreds of cases reported involved
  car accidents with cyclists but few prosecutions
• Cadden case - why were motorists not prosecuted?

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Comparative perspective

• Netherlands - traffic regulations create
  presumptions for pedestrians and cyclists
• Presumptions favour other road users even when
  element of illegal cycling or walking
• Minor violations - treated seriously e.g. failing
  to stop at pedestrian crossing even if the
  pedestrian is still on the pavement

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Comparative perspective

• Germany - strict regulation of traffic regulation
  
• Pedestrians can be given fines for crossing
  against the light, cyclists for failing to stop
  at red light, in wrong direction etc
• However, also strict enforcement against car
  drivers

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Conclusions

• Is the solution to use law to withdraw vulnerable
  users from the threat (e.g. Cadden case, helmets,
  clothing)? But is this based on scientific
  evidence and will it confuse travel messages?
• Or is the better solution to withdraw the threat
  from those who are most vulnerable?
• Second course would be to change the nature of
  who owns the road creation of presumptions,
  changes in enforcement, realise that cycling
  isnt dangerous, cyclists are vunerable Hillman