Earlier this year, an independent legal expert undertook the second phase of that review and, in short, the advice provided to the Department for Transport was that there was a persuasive case for legislative change which needed to tackle the issue of dangerous and careless cycling that cause serious injury or death. The report can be found here.
As it stands, a cyclist who causes death or serious injury is likely to be charged with manslaughter, inflicting grievous bodily harm, and/or causing bodily harm by wanton and furious driving.
Causing bodily harm by wanton and furious driving was originally drafted to deal with reckless handling of horses and derives from the Offences against the Person Act 1861; a Victorian piece of legislation. This offence only carries a maximum custodial sentence of two years as opposed to the maximum life sentence that can be attached to a manslaughter conviction. Inflicting grievous bodily harm is difficult to prove in the context of cycling as intent has to be established so it is rarely pursued.
As you will see, there is a huge gap in the maximum custodial sentence between the likely offences. It is this gap and subsequent lack of sentencing powers that a judge has available to him which forms the basis for the suggested legislative change.
This gap was highlighted most recently in the high profile case of R v Alliston . Charlie Alliston was tried for unlawful act manslaughter, as well as wanton and furious driving, after causing the death of a pedestrian, Mrs Briggs. Mr Alliston was found to be without a front brake on his bicycle which is a criminal offence itself and the unlawful act referred to within the charge. In his own account he formed the view that Mrs Briggs "should have got out of the way" and gave evidence to the effect of "I was entitled to go on". Mr Alliston also provided that he didn’t even try to slow or stop after his initial swerve. Despite all of this, he was acquitted of manslaughter but convicted by a jury, after trial, of wanton and furious driving. He was sentenced to just 18 months detention in a Young Offender's Institution.
A consultation was published on 12 August 2018 which, amongst other things, seeks views on the potential new offences of causing death or serious injury when cycling, and on the associated penalties.
The main proposals and questions under consultation are:
- There should be an offence of causing death by dangerous cycling.
- There should be an offence of causing serious injury by dangerous cycling.
- The offences should apply to public places as well as roads.
- Should there be an offence of causing death by careless or inconsiderate cycling?
- If a new offence of causing death/serious injury by dangerous cycling was introduced, should the sentences match that of causing death/serious injury by dangerous driving?
As you can imagine, there are differing views on the consultation. Matthew Briggs, widower to Kim Briggs in the R v Alliston  above, welcomes the consultation following his campaign to change the "arcane laws" whereas barristers who were consulted in the report referred to above suggested there "…was a risk of cyclists ending up in prison for a momentary lapse of concentration" and that "you shouldn't criminalise accidents"
From a legal perspective, a new offence would allow consistency in the Crown's approach to charging and sentencing. The abundance of case law on causing death/serious injury by dangerous would also assist in the early defences of such and negate the need for a bedding-in process for the offence.
On the other hand, however, through lack of personal experience, a jury may not be able to adequately assess the standard of a reasonable and competent cyclist; this would be the relevant test a jury would have to consider should the new offences be given royal assent. Ultimately though, the arguments for and against the proposals above barely scratch the surface of what is causing a nationwide debate on the topic.