I should declare my various interests. I am a car driver. I am a criminal lawyer who has prosecuted and defended cases involving driving that has led to death of one or more victim. I have been on both sides in cases where the deceased were cyclists. I used to be an avid cyclist. I even worked for a long time in a bike shop. When cycling I have been knocked off my bike.
It would appear necessary to declare such interests before commenting on the Guardian article by Martin Porter QC. My fellow legal blogger, The Secret Barrister, has already commented on the sense of what is suggested in the article. I must confess I agree with SB rather than MP QC. I admire much of what MP QC does to promote the safety of cyclists, however this special pleading for a change in the procedure is wholly misconceived.
I note that MP QC Tweeted that he was pleased that his piece had caused debate but I am afraid it is the sort of debate provoked by Marie Antoinette’s declaration “let them eat cake”. Well intentioned but wrong.
This blog is not intended to repeat the criticisms made by the Secret Barrister. There was one part of the piece that particularly hit upon one of my legal journalism bugbears. It both serves to illustrate a problem with the press and the problem with the MP QC piece itself.
MP QC quotes a statistic that comes from a BBC story. That statistic is used by MP QC to write “a BBC investigation two years ago found that fewer than half of drivers convicted of killing a cyclist – not just hitting, but killing – were given any kind of jail sentence at all.” This declaration took my breath away. As I said above, I have some experience of dealing with such cases. For a driver to be convicted of killing a cyclist the offence charged would be from a selection of death by dangerous driving, death by careless driving, causing death whilst uninsured/disqualified/unlicensed or causing death by careless whilst under the influence. I suppose we could also add murder and manslaughter in rare cases.
I was aghast that there existed statistical proof that fewer than half of such offenders would be sent to jail. This jarred with my experience where I would say a small proportion of such convictions lead to non-custodial terms. So I looked at the original article itself, which you can too.
And there it was. The first sentence of the story declares “44% of UK drivers convicted for killing cyclists go to jail” leaving the very obvious conclusion that 56% do not. So, it would appear, I was very wrong.
Reading the next sentence, however, I began to question the statistic. “Figures from all 45 police forces in the UK show that more than a quarter of those found guilty over cyclist deaths did not receive driving bans.” The use of the word “over” began to ring alarm bells. There was a clue in the absence of driving bans too.
The article continues “the figures show that in the last 7 years 148 people were charged with killing a cyclist. Of those found guilty, only 44% went to prison.” My alarm bells were incorrect. Here was the figure again, in black and white.
If you read on you get to the real numbers at the end of the article. Now this is very, very important. It tells us the figures come from 2007 to 2014. This is important as there was a very significant change in the law in 2008 which created the offence of death by careless driving. This renders any figure from before the commencement date of that offence as being irrelevant to the current position. In a stroke the declaration that less than half of those convicted of killing a cyclist go to prison is demonstrated as being wholly incorrect. Before 2008, had the standard of driving fallen below that expected but not far below, then the only charge open to the CPS was careless driving and that did not carry the possibility of a prison sentence.
As we read on we see how flawed the proposition is. You will note that only 74% received a driving ban. This means 28 of the convicted drivers did not receive a disqualification which is mandatory upon conviction for any of the “death by driving” offences.
How could that be? Yet more evidence of a lax and biased approach by the judicial system? I am afraid not. The final piece falls into place when you read that the figures are based upon 276 incidents where a cyclist was killed leading to 148 cases where the driver of the vehicle was “charged with an offence”. Not “charged with an offence of being responsible for the death” but just charged with an offence.
As any lawyer knows there is a significant thing called causation. So you can have the tragic circumstances where, let’s say, a cyclist comes round a blind bend on the wrong side of the road and is killed in a collision with an oncoming car. The resulting investigation reveals that driver could not have avoided the cyclist and was blameless. The same investigation also reveals that the car was not taxed or had a defective stop light. The driver is duly summonsed and fined for the road traffic offence. That driver would find himself, seemingly, included in these stats. He finds himself sentenced for an offence.
Unless the statistics quoted deal with offences where causation between the manner of the driving of the circumstances of the driving has been established they really are meaningless. A look at theses statistics with a little bit of knowledge, experience and critical analysis suggests they do not bear out the headline “less than half of those convicted of killing a cyclist get any sort of prison sentence.” Not in any meaningful way. The language used, the absence of driving bans and the simple implausibility of the statistic being correct should cause anyone to hesitate before making the bold assertion Mr Porter includes in his recent piece.
Why am I in the least bit concerned?
As I said above, this is my bugbear; the application by the press of “statistics” gained from Freedom of Information requests that do not correlate to the headline. And I am afraid to say that when this is repeated by a QC this can feed into the public misunderstanding and mistrusting the criminal justice system.
The shadow it casts over the article is that the statistic is being deployed to prove a point, but is deployed because it suits the point being made and not because it passes the sort of scrutiny lawyers apply to the evidence every day of the week. So whilst MP QC’s cause is undoubtedly a just one, this is a proposal borne out of good intention but informed by a perception of bias and little evidence. In my experience this does not make for a sound basis for altering the right to trial in England and Wales.