Jodi Gordon: Updates on cycling needed in criminal and civil law

IN August, the Department for Transport published a consultation looking at whether new offences equivalent to causing death by careless or dangerous driving and causing serious injury by careless or dangerous driving should be introduced for cyclists. Hugh Olson, Advocate, was separately commissioned to produce a supplementary report which considered the relevancy for Scotland under Scots Law.

Jodi Gordon is an Associate with Road Traffic Accident Law (Scotland) LLP

The report concluded that there are indeed significant differences between the law in England and Wales and the law in Scotland relating to the prosecution of ‘bad’ cycling resulting in death or serious injury. In Scotland, culpable homicide and culpable and reckless conduct can be used to prosecute behaviour that would be covered by offences of causing death by dangerous cycling or causing serious injury by dangerous cycling. However, there is currently no Scottish crime or offence that can be used to prosecute behaviour that would be covered by offences of causing death by careless cycling or causing serious injury by careless cycling.

The report suggests there may be a place for modernising the law by creating a new offence of causing death by dangerous cycling and reserving culpable homicide for the most serious cases. Consideration could also be given to the creation of a new offence of causing serious injury by dangerous cycling and reserving culpable and reckless conduct for the most serious cases.

However, these policy questions about modernising the law in Scotland (as Olson poses) are purely in relation to Scots Criminal Law which is devolved to the Scottish Parliament. I can see the force of the argument for modernising the law but not in the isolated way that Westminster has approached the issue; considering only Criminal Law. The Criminal Law is only one part of a larger picture.

I believe that to protect all vulnerable road users whilst at the same time encouraging active travel and road sharing, there is the need to change Civil Law too. In particular, I believe that a regime of Presumed Liability should be introduced that would protect pedestrians from both cyclists and motorised vehicles; just as it would protect cyclists from motorised vehicles. If the law is to be truly modernised, the whole picture should be considered and radical changes introduced in Civil Law to sit alongside and complement any changes in the Criminal Law.

We all have responsibility for our safety and the safety of others on the road. Respect of all road users is vital, yet our current fault-based system requires the cyclist or pedestrian seeking compensation after an incident to prove someone else was to blame and, as such, is weighted against the injured.

I support the campaign for the introduction of Presumed Liability in Scotland and believe it should be introduced UK-wide. The change would bring the UK into line with the vast majority of European nations who for decades have had empathetic civil road traffic liability legislation for their vulnerable road users.

Presumed Liability would not entitle dangerous or careless cyclists to automatically receive compensation and thus encourage poor road behaviour. Nor would it prevent the government introducing legislation to criminalise reckless cycling, but it would go some way to addressing the current imbalance between the most vulnerable and those that statistically are most likely to harm them.

In my view, Presumed Liability is a progressive response from a mature, socially conscious nation seeking to encourage a greater number of cyclists whilst also addressing the unacceptable level of cycling casualties. The UK and Scottish Governments suggest there should be ambitious increases in cycling yet there is no evidence of any country achieving the levels of growth sought without a comprehensive package of measures which includes Presumed Liability legislation.

There will be those who would seek to portray the introduction of Presumed Liability as a major step biased in favour of the cyclist, yet all it seeks to do is bring us into step with our European neighbours. Presumed Liability is a natural component part of the overall review of road safety legislation that we suggest is needed – a considered package of reforms across both Criminal and Civil Law, rather than a piecemeal reaction to specific events.

Jodi Gordon is an Associate 
with Road Traffic Accident Law (Scotland) LLP