Introduction

Yesterday, many of us will have woken up to the news that “killer cyclists” are to be jailed if they kill or injure pedestrians by riding dangerously, carelessly or inconsiderately. The inflammatory headline, so often affixed to cycling-related issues in the media, did little to quell the unreserved fury that was about to erupt on radio and television shows up and down the country.

Media Reactions and Public Discourse

Sadly, the conversations descended to the usual cyclist-bashing nonsense that is so often trudged up again and again when it comes to any change in the law affecting road safety and cycling. The usual stories of red-light jumpers, speeding cyclists, and Deliveroo riders, who hunt in packs looking for the next pedestrian to knock down, were all wheeled out in the name of “debate”.

Lack of Genuine Debate

But there was no debate, no cutting through the noise, no discussion of what the law changes seek to achieve and whether these changes are the best way to go about it.

The New Offences

The new offences of causing death or serious injury by dangerous, careless, or inconsiderate cycling have come into force via an amendment of the Road Traffic Act 1988. Within that Act, the offences of careless and dangerous cycling already exist. These new offences simply seek to bring the law into line with similar driving offences. The idea behind the amendment is to achieve equal accountability for just as drivers are held accountable for dangerous driving that results in death, cyclists should face similar consequences for reckless behaviour that leads to fatalities.

The Necessity and Impact of the Amendment

Whilst I am not against the new amendment in principle, the question must be asked, what is this all for? In Scotland, there has never been a case involving a cyclist and pedestrian that resulted in a death. In any case, prosecuting authorities in Scotland have always been able to prosecute “bad” cycling resulting in a death or fatality through the common law offences of culpable homicide and culpable and reckless conduct. In Scotland, there is not the immediate need for reform that exists in England and Wales. In Scotland, the question is, does the law need modernising?

A Broader Perspective on Road Safety

However, the problem with these new offences is that they are being done in such isolation of anything else; a small part of the criminal law. And, the criminal law is only a small part of the larger picture.

The Case for Presumed Liability

We need a change in the law that will really drive behavioural change for all and protect the most vulnerable road users from the top down. We need a change to the Civil Law and that change is presumed liability. Presumed liability is an element of the civil law where, in crashes involving vulnerable road users, it finds the more powerful road user liable by default, unless it can be clearly proven that the vulnerable road user was at fault. This applies to all types of collisions.

How Presumed Liability Works

The introduction of presumed liability would mean that following a collision, a motorist (in practice, the motor insurer) would be presumed liable to compensate an injured cyclist or pedestrian unless it can be proved otherwise. Likewise, a cyclist involved in a collision with a pedestrian would be presumed liable to compensate the more vulnerable party.

Enforcement and the Highway Code

Often when new laws are introduced, the question of enforcement comes up. But with presumed liability, these laws would be self-enforcing as they are, in effect, giving the hierarchical system in the highway code, real legal meaning. Presumed liability enforces the new highway code provisions by its very operation.

The Goal of Cycle Safety

The issue with cycle safety is that all too often, during inflamed debate, we lose sight of what it is that we are actually trying to achieve. We want safer roads for all road users, we want a system that protects the most vulnerable and places duties on the most powerful, we want a system that can have a real impact leading to positive behavioural change. The answer to all of this is presumed liability.

Comprehensive Road Safety Legislation

Presumed Liability is a natural component part of the overall review of road safety legislation. We need a considered package of reforms across both Civil and Criminal Law, rather than a piecemeal reaction to specific events which is what these new cyclist offences are.

A Call for Government Action

It is time the government stood up and took real action on road safety instead of political point scoring in a desperate appeal to “the motorist”. All road users can rub along together in harmony, but it takes real change to the Civil law to achieve this. Only once we have presumed liability in place will we see attitudes between road user groups to each other change for the better and I for one, will keep campaigning for that to be a reality.

Thomas Mitchell – Partner

Visit our Facebook page to listen to Thomas on BBC Radio Scotland Drivetime and watch him on ‘The Nine’.

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