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Simon Maskrey QC speaks at CTC debate on sentencing photo by Selim KoryckiAt the CTC’s debate on sentencing in road cases, Simeon Maskrey Q.C.,  a Deputy High Court Judge and Recorder of the Crown Court, called for the burden of proof to be changed in road crime cases.   Where it has been established in court beyond reasonable doubt the driving at the time of the offence was dangerous or reckless, the defence should have to prove to the satisfaction of the judge or magistrate passing sentence that the driving wasn’t deliberately dangerous, unlike at the moment where the prosecution is forced to prove intent.

In conversation with me after the event, he also called for more innovatory options to be made available to judges & magistrates for sentencing in road crime cases. An example he gave was the option of banning someone until such time that they had undertaken a 2 week road danger course, which the offender would have to pay for themselves, in which they would have undertake study and training in road danger reduction.  I like the idea, even if the practicalities are a little fuzzy.  Maybe a component could be doing the CTUK trainers’ course, which lasts 4 days, and costs £400.

The debate was well-attended, with representatives of the Crown Prosecution Service & the Ministry of Justice present (at one point the CPS rep got up to try to directly refute Martin ‘Cycling Silk’ Porter’s accusation that the CPS routinely opt for charging drivers with careless driving instead of dangerous driving as the easier option).

The panel was impressive, including 2 senior legal academics, 2 Q.C.s and chaired by Kaya Burgess of The Times.   The debate was a little dry, with great focus on strictly legal issues which were slightly beyond the knowledge of this correspondent.  Cynthia Barlow M.B.E. of Roadpeace afterwards expressed some frustration that the voice of the victims of road crime was not adequately heard.

I was struck that the person on the panel with the most radical ideas was a senior member of the legal profession, Mr Maskrey. He came across as one very angry man, even if his proposals and propositions appeared to me to be soundly rooted in legal principle and not easily dismissed as merely the intemperate rantings of a pissed-off cyclist.  I think most people would agree with his statement, made early in on the debate, that if you have used a motor vehicle as a weapon, either with the intent to deliberately harm or else to intimidate another road user, you should not be allowed to retain the privilege of operating a motor vehicle on the public highway. (I have paraphrased his words, but this is essentially what he said.)

He also spoke of the importance of prosecuting for ‘minor’ driving offences, such as infringing into bike lanes, which, in his view, will inform the driving public that deterring such offences, whilst those offences may appear trivial, are part of society’s efforts to create a safe & welcoming environment for all road users.  He also stressed that, in his view, habitual dangerous behaviour by drivers, (overtaking on a blind corners was the example that he gave – but it could equally be applied speeding in residential areas) which may not always result in a collision whose outcome is catastrophic, should be treated by prosecuting and sentencing authorities as dangerous and criminal whether not the outcome is injury or death.

CTC has published their much more extensive synopsis of the debate, entitled “Sentencing Debate sparks call to email Justice Minister

The CTC's Road Justice site has updated their post on the death of Julian Evans, who was killed in October 2012 whilst riding a bike in Suffolk, with details of the sentencing of Deborah Lumley-Holmes, who was found guilty of causing Mr Evans death by careless driving. Lumley-Holmes was found to have to have hit Mr Evans on a straight road in daylight.

Lumley-Holmes received a 6 month prison sentence, suspended for 12 months, 200 hours community service and was banned from driving for 12 months. As I said at the time when the offence of causing death by careless driving was put on the books, I have no interest in seeing drivers that have caused death in jail. However, I am very concerned that Lumley-Holmes has received only the statutory minimum driving ban allowable under the sentencing guidelines for causing death by careless driving.

And, by the way, without seeing more than the barest details of the incident, I am astonished that Lumley-Holmes' driving was NOT considered far below what would be expected of a careful and competent driver in the view of the prosecutors, and therefore was not charged with causing death by dangerous driving. Failing to see another human being in daylight & inadvertently striking them with enough force to kill them is surely not the action of a careful & competent driver.

The sentence of Lumley-Holmes and comments by the judge in his sentencing, are remarkably similar to the case of Lee Cahill, who caused the death of Rob Jeffries, an outstanding man, coach, community leader and personal friend, who was hit from behind in daylight on a straight road by a car driven by Lee Cahill. Same expressions of remorse, same suggestions that the crash was caused by a momentary lapse and a slightly longer driving ban of 18 months.

Such incredibly, well, incredible to me, short driving bans outrage me, because of the implicit message contained. My interpretation is that not being able to drive is such an impediment that even after having completely failed in the most basic duty, that of respecting the safety of other people that are sharing a public space to the fullest extent possible, i.e. by negligence having caused the death of another person, that the offenders should nontheless continue to be permitted the right to operate heavy machinery in close proximity to other people. The message is that driving a motor vehicle is an absolute right, rather than a privilege available only to those people with enough money to be able to afford it.

 

This was Jorge Luis Borges analogy of the Falklands War.  It sprang to mind when I read a blog post on As Easy As Riding A Bike, entitled ‘No surrender’ – the damaging, enduring legacy of the 1930s in British cycle campaigning.  The writer, who normally offers well-informed, if somewhat over-lengthy, critique of current UK cycling policy, takes aim at the so-called ‘vehicular cyclists’, and seeks to apportion some considerable part of blame for the current pitiful state of cycling provision in this country on the CTC.  The thrust is more or less that the CTC has incompetent policy formulation written into its DNA, and draws on CTC policy documents from the 1930s to make a case.  The post flirts with the reductio ad Hitlerum logical fallacy popular with many amateur debaters,  saying: the Cyclists’ Touring Club was strongly in favour of motorway building; they sent a member on a delegation to Hitler’s Germany to look at autobahns.


It is a several thousand word treatise on what is wrong with the CTC, and how the CTC’s tactics, historically and currently, are undermining the efforts to get more people cycling.  

The proposition that because the CTC once espoused ‘bad’ policies, that the CTC is irrecoverably ‘broken’ as an organisation long after the main characters responsible for the policy (or policies) are dead is not really sustainable.  For instance, some years ago the London Cycling Campaign endorsed what many people, including myself, thought was a poorly conceived and executed campaign by TfL called ‘Share the Road’.  I was so disillusioned by the campaign that I resigned my membership and wrote a couple of vituperative blogs (which, I am sure, made no impact on the LCC!) about the campaign.  Afterwards I got involved in a disagreement with an LCC employee over their lack of public campaigning or even mention of HGV deaths that ended with the LCC employee using foul and abusive language in an email to me.

However, I have since rejoined the LCC because their campaigning on the HGV issue, piloted by Charlie Lloyd, is excellent and high-profile, and their other campaigns seem to be a lot less apologetic than they were 6 or 7 years ago, when they appeared to be very much the creature of TfL. Which shows that an organisation can change course quite dramatically.

A response by As Easy As Riding A Bike in the comments section of the post, replying to a suggestion that there might be other ways as well as segregation to get people cycling, citing Hackney, really got my goat.  The author dismissed Hackney as not all that significant because the 7% modal share (7% of all journeys by bike) is rather less than the author would expect, given Hackney’s demographics, i.e. lots of poor people and hipsters live in Hackney.  Oh yeah?  It’s still more than 3 times the average for London, so why so quick to dismiss?

At this point, I have to confess to being a ‘vehicular cyclist’.  A ‘vehicular cyclist’, according to the cant, is a cyclist who uses the existing road networks, and is against ‘segregation’, i.e. bike paths that are separated from the main road-way.  I sort of fit into this category, as I was a bicycle messenger for a number of years, and will ride in almost any prevailing road conditions.  I am against rubbish bike lanes , and view the majority of London’s cycling ‘facilities’ with disfavour.  I wrote an article for the Guardian’s bike blog about the bike lane on Clerkenwell Road saying that I thought it had made cycling on Clerkenwell Road more, not less, dangerous, and this on a road which has seen several cyclists killed in the last 20 years.

1992 flier promoting Moving TargetBut let me be clear – I am not against ‘segregation’.  I don’t enjoy sharing the road with motor vehicles.  I would much rather there were a lot less motor vehicles in London, as they are noisy, smelly, dangerous and are always getting in my way, which is why I distributed this poster (younger readers can think of it as a paper meme), calling for ‘universal discarmament’ in 1992.

My residence overlooks the canal in Hackney.  As well as being able to enjoy the antics of the water fowl, I can also observe how popular the tow-path is with cyclists.  Even on a snowy morning, such as many this winter, there are still people riding along it.  The reasons for the tow-path’s popularity are not hard to work out.  The tow-path doesn’t have cars on it, is direct and doesn’t have inconvenient give-ways or traffic lights.

Would I like to see cycling facilities that are like the tow-path, that is, direct & safe?  Yes, of course I would.  Do I want to see more cycling facilities like the one on the right, i.e. non-direct, not safe and not convenient?  No, especially not if they cost money, and allow whichever municipal body to trumpet their commitment to ‘making London a world-class cycling city’.  Do I think we are worse off with cycling facilities like these?  Yes, I do.  Is it fair to blame cycling facilities like this on the CTC’s Hiearchy of Provision, as AEARAB does? I think it’s a little perverse, and probably falls under Jack Thurston’s favourite aphorism ‘everyone hates cyclists – even other cyclists hate cyclists’.

Attacking cycle campaigning organisations is something that Freewheeler, the writer of Crap Cycling & Walking in Waltham Forest blog, also goes in for.  Freewheeler goes even further and on various different occasions accuses people like Roger Geffen of fiddling around the margins, and not being confrontational enough in challenging the car culture, and even betraying the cause.

I am not suggesting arson as the route to mass cycling but I do think that cyclists need to consider challenging the status quo in other ways than tea and biscuits at the Town Hall…  Non-violent direct action stunts are long overdue in British cycle campaigning.

That cycle campaigners have been too polite hitherto to be taken seriously is a quite laughable assertion when applied to Roger Geffen.  When I first met Roger, he was still at the London Cycling Campaign.  I had some dealings with him in the aftermath of the death of London cycle courier Edward Newstead.  Edward was killed in March 1992 by a left-turning lorry on the junction of Oxford Street and Holles Street.  He was the 5th bicycle messenger known to have died whilst working in London, but the first whose passing was marked in a meaningful way.

A flier (that’s a hand-bill for my north American readers) was passed amongst the courier community, announcing that a memorial ride would start from Marble Arch and go to the spot where Edward had been killed, i.e. we would all ride down Oxford Street.  The LCC heard of the ride and got in touch.  They wanted to help.

I met with Mark Paul Gasson, then the chair, and Roger Geffen, then the campaigns leader, and discussed what we should do.  I had to push back a little because I felt that a memorial ride wasn’t the correct back-drop for an overtly political campaign stunt, which is what Roger originally conceived of doing – banners, slogans etc.

Memorial ride for Edward Newstead, Oxford Street, 1992The memorial itself was not intended to be confrontational; we did, however, block Oxford Street completely for several minutes when we stopped and fixed a bouquet and sign near the spot where Edward was killed.  This prompted a bus driver, stationary and frustrated, to utter the memorable line: “you don’t know the grief you’re causing”.  As I wrote in this post, the action had little impact beyond those who were there, or read about it in Moving Target and the Daily Cyclist, but it felt important, significant, that we hadn’t just let Edward’s death pass unmarked.  Edward’s family afterwards expressed their thanks for our efforts.

At the time I saw it as an overtly political action, and said so.  The action didn’t need banners or slogans.  It was pretty clear to all on-lookers what was going on – cyclists staging a bike-in, because we were pissed off with the status quo.

Later on in the decade I came across Roger again at the M11 protests.  He had moved on from the LCC to real, proper Non Violent Direct Action.  The NVDAs in and around Wanstead, Leyton and Leytonstone were serious.  People got hurt.  At the time, I wasn’t totally au fait with the political philosophy behind NVDA, but it was very obvious that even very small scale NVDAs, routine stuff such as trying to stop lorries delivering supplies or removing spoil, almost always resulted in violent outcomes.

I saw one man, who had crawled underneath a big lorry to try and stop it, get crushed by a wheel.  Another had his arm held against a very hot exhaust manifold by security people to get him to release his grip on the underside of the lorry. Nearly everyone, including me, despite my fairly timid efforts, ended up covered in mud and the thick, cloying grease that covers all heavy machinery, and there was a lot of angry shouting, and considerable physical jeopardy for the protestors.  And this was at a relatively insignificant action, as nothing compared to what happened later at Claremont Road.

It was scary stuff, and, when I saw him, Roger was right at the heart of the action, utterly committed and fearless.  At the time, I remember thinking that Roger was a total head-banger, albeit in a hi-viz  jacket, wearing glasses and a mucky-looking pair of cords.  So I think I can be excused if I find the suggestion, implicit in the phrase tea and biscuits at the Town Hall, that Roger Geffen is a lap-dog who loves nothing better than cuddling up to the petrol-heads in charge of Britain’s roads totally wrong-headed and somewhat risible.  It’s even more laughable when considering that the M11 campaign took place entirely within Freewheeler’s patch, Waltham Forest.

I’m not accusing As Easy As Riding A Bike of being as polemical as Freewheeler, but I wonder why, at a time when the Mayor of London won’t even devote as much as 2% of his transport budget to cycling (surely not too much to expect, given a cycling modal share of 2% in London), and has recently appointed a journalist crony who happens to cycle, Andrew Gilligan, to the very well-paid post of Cycling Commissioner, bloggers are using up thousands of words on denigrating Roger Geffen and the CTC?   I’m not the most prolific blogger in the world, and a thousand words probably takes me a lot longer than Freewheeler and AEARAB, but this is surely hours spent on trashing CTC.

Which brings me back to the title.  I’m not all that familiar with the cycling politics or the politics of cycling in other countries – I guess it is human nature to feud – but for as long as there have been cycling organisations,  there have been feuds, whether we’re talking about the Clarion Clubs and the CTC, the NCU and the BLRC, hell, even the British Cycling Federation (precursor of British Cycling) was in a dreadful state 25 years ago, suffering regular allegations of corruption and incompetence.

But given the still pitiful state of cycling provision in this country, these arguments do make me think of two bald men fighting over a comb.