Some thoughts on Charlie Alliston and death on the roads

I have been asked by several people what my views are on the tragic case of Charlie Alliston, the 20-year old cyclist who was this week sentenced to 18 months’ detention in a Young Offender Institution for causing the death of a pedestrian, Kim Briggs.

And to be honest, I’m not sure what I think. Or at least, I think a number of things, not all necessarily consistent and not all easily reducible to a pithy, logically argued conclusion. I recognise that this is far from ideal for a blog which pretends to self-righteous polemic and strident self-assurance as its hallmarks. But difficult criminal cases often fall between the cracks in our neatly-defined worldview, pinching our assumptions and stretching out our contemplations on our understanding of criminal justice.

And plainly this is a difficult case. A brief flick through the media coverage of this case, or, if you can bear, a hashtag search for “Alliston” on Twitter, offers but a snapshot of the ferociously contested issues arising out of his trial and sentence.

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There has been much said about the perceived “gap in the law” that meant that Alliston, as a cyclist, could not be prosecuted under the legislation covering causing death by careless or dangerous driving – such statutes requiring the use of a “mechanically-propelled vehicle”, which a bicycle is plainly not – and instead faced a rarely-used charge of doing bodily harm by “wanton or furious driving or racing, or other wilful misconduct, or by wilful neglect”. This offence is set out in s.35 of the Offences Against the Person Act 1861, a Victorian statute presented by the media as hilariously rare and antiquated, notwithstanding that every offence of violence causing injury (short of death) is still prosecuted under it. Section 35, which admittedly is seldom used, requires only that a person be in charge of a “carriage or vehicle”, broad enough to include cyclists. In practical terms, this meant that Alliston faced a much lower maximum sentence – two years’ imprisonment – than that available for a motorist convicted of causing death by dangerous driving (14 years) or careless driving (5 years).

A further apparent anomaly is that the offence of dangerous cycling (without causing death or injury) covers only the manner of the cycling, whereas the offence of dangerous driving covers both the manner of the driving and the roadworthiness of the vehicle. In other words, if you drive a vehicle that is dangerously defective, that is caught by dangerous driving. In Alliston, much focus of the prosecution case was on the fact that his bicycle had a fixed rear hub but no front-wheel brake; it was a bike designed for the racing track rather than the road. The absence of a front-wheel brake was unlawful, but would not, under the current law, have of itself amounted to “dangerous cycling”.

It is worth remembering that Alliston did however face an alternative, more serious charge of which he was acquitted by the jury – manslaughter, which carries up to life imprisonment. Without digressing into legal complexity, it can be said that manslaughter is a difficult offence to prove in relation to road traffic collisions; hence the standard practice of charging causing death by dangerous or careless driving in most cases involving a fatality arising out of bad driving, with manslaughter reserved by the Crown Prosecution Service largely for cases where a vehicle is used as a weapon. We are in some difficulty in analysing the jury verdict given the lack of clear and accurate legal reporting on this trial, and in particular how the jury were directed to approach manslaughter (which can be charged in different ways), but some help might be gleaned from the assessment of Martin Porter QC, a campaigning cyclist who did not attend the trial but has offered his own summary of the applicable law here. Mr Porter’s conclusion is that the jury’s verdicts – not guilty of manslaughter but guilty of the lesser offence of furious or wanton etc – suggest that “[Alliston’s] conduct was not so self-evidently dangerous as to amount to manslaughter but that he had been a person having charge of a vehicle whose wilful misconduct had caused death”. The average non-lawyer may find this margin so fine as to be barely discernible, but it is by such fine borders that much criminal law is delineated. [As a point of disclosure, it should be noted that Mr Porter (about whom I have written before) has campaigned for more vigorous prosecutions of motorists, for the removal of juries from motoring cases to facilitate a higher conviction rate, and has offered a sympathetic treatment of Charlie Alliston often absent from his proclamations over motorists involved in fatalities, and so his commentary, while helpful, may perhaps not be entirely disinterested.]

Putting this all together, is a new law required? Possibly. It is right to say that Alliston’s is a rare case, hence the media excitement, and the truism that hard cases make bad law is no less true for its triteness. We should be careful not to reflexively legislate in response to high profile cases. But sometimes gaps are exposed – as I argued recently in relation to upskirting – and the law requires adjusting to move with the times. I do not know the ubiquity or otherwise of the Youtube phenomenon of “alley-catting” – driving fixed-wheel bicycles through city streets, contravening red lights and weaving in and out of traffic and pedestrians – which was found by the judge to have inspired Alliston. But no bespoke offence exists to prosecute the death or serious injury caused by bad cycling, and the introduction of corresponding offences that exist for vehicles – causing death or serious injury by dangerous driving – may be appropriate to ensure that such offences are fairly labelled and prosecuted.

As for the question of whether Alliston’s sentence – 18 months’ detention (detention being the equivalent to imprisonment for defendants aged between 18 and 20) – was too long or too short (a question I dislike for reasons I’ll come to) I suppose it depends on your viewpoint. The sentencing remarks, in which HHJ Wendy Joseph QC considers the few Court of Appeal authorities dealing with similar offending, appear comprehensive and well-reasoned. As a matter of law, based on the available information there appears little “wrong” with the sentence.

The remarks are also worth reading in full as a rebuttal to misinformation that abounds online about exactly what the evidence showed that Alliston did. There is something unedifying about the way in which Alliston has been adopted as a cause celebre by certain cycling campaigners, who have presented his case as an example of prosecutorial persecution betraying a disparity in treatment between this and cases where cyclists fall victim to drivers of motor vehicles.

For the avoidance of doubt, as Alliston was told by the judge: “It was not merely the absence of a front brake but your whole manner of riding that caused this accident”. He was not a conscientious cyclist afflicted by a momentary lapse of concentration or judgment. This was, in the judge’s words, a course of cycling amounting to “callous disregard for the safety of others”.

Alliston, a cycling enthusiast who had watched a number of “alley cat” videos on Youtube, had since 2014 deliberately chosen to ride a bicycle without a front-wheel brake, which increased the stopping distance by four times. Alliston knew the dangers, as he admitted in evidence that he would fit a front-wheel brake when weather conditions made him conscious of his own safety. He chose to ride without “for the thrill”. In January 2016, he upgraded to a bike that didn’t even have the facility to fit a front-wheel brake. He had no bell to warn other road users. He was, in the judge’s words, “an accident waiting to happen”.

When he came across Mrs Briggs on 12 February 2016, she having stepped out into the road as he travelled at 18 mph, he had no means of stopping. He shouted at her twice to “get out of the fucking way” and slowed to 14mph, but kept going, of the view that she should move. Other traffic meant that she could not. He struck her, she hit the ground and she suffered catastrophic, fatal brain injury.  A husband lost his wife. Two children lost their mother. Had Alliston’s bike been legal, he would have been able to stop.

His response was to post messages on line falsely claiming that Mrs Briggs was using her mobile phone at the time. He continued to criticise her decision to cross the road in front of him.

Transposing similar circumstances onto an offence of causing death by dangerous driving – an imperfect exercise, granted – it is possible to arrive at the conclusion that Alliston was fortunate that no equivalent offence and sentencing regime exist for cycling.

The (then) Sentencing Guidelines Council (now Sentencing Council) published Guidelines in 2008 for offences of causing death by driving. The very lowest category, into which this conduct arguably falls, provides a starting point sentence of 3 years’ imprisonment.

And this no doubt lends support to the argument for reform. It is arbitrary that if you are dangerously driving or riding a vehicle which has the capacity to and does cause death, your sentence depends on the precise vehicle being driven. To reach for a clumsy analogy, if you beat someone over the head with a weapon causing injury, your maximum sentence isn’t affected depending on whether you use a metal bar or a cricket bat.

But, finally, what this case evokes, and what it is perhaps easy to forget, is how blunt a tool the criminal law is in dealing with so many cases of deaths on the road. Alliston is, in this narrow respect at least, an easy case. His culpability was high. He was a deliberately bad road user. He may not have meant to kill, but his overall conduct is blameworthy and deserving of criminal sanction.

But many road users involved in accidents are not. Even those involved in serious, life-changing, life-ending collisions. Feeding back into the complaint of cyclists, this is the most common reason for a lack of criminal charges. Causing death alone is not enough to found a prosecution. There has to be culpability – for motorists, they have to be either careless – driving below the standard of a competent and careful driver – or dangerous – driving far below the standard of a competent and careful driver.

Almost always, causing death by dangerous driving will lead to prison. But devastation caused by careless driving – which often arises during momentary lapses in concentration or judgment behind the wheel – presents the hardest cases. The harm caused can be the greatest in the criminal spectrum. But culpability can be among the very lowest; barely criminal. A sharp intake of there but for grace of God breath.

In such cases, what do we do? For many of us, the default, culturally-ingrained response is to call for prison. But if we pause and ask what we are trying to achieve by so doing, we may get back an echo rather than an answer. Often in these awful cases, the standard ‘purposes’ of criminal sentencing won’t apply. The guilty driver may not need rehabilitation; or at least certainly not that which is available behind the prison gates. Deterrence, even if prison sentences were shown to achieve this, is difficult to impose on momentary lapses in concentration. There is little meaningful restitution that can be realistically made to the victim or their family. Public safety rarely demands the individual’s immediate incarceration.

Which leaves us only with retribution. And how on earth do you quantify it in such cases, where culpability is so low, and harm is so high, and we are often dancing on the margins?

Presently the law tries to accommodate this by compromising. And the essence of a good compromise, to channel Larry David, is that both parties are left unhappy. Short prison sentences or community orders – the usual sentence for causing death by careless driving – must sometimes feel to the bereaved almost worse than no sentence at all. But there is no way of even beginning to reflect the harm caused where life is lost without disproportionately punishing the culpability.

Nevertheless, in cases where minor culpability leads to devastating harm, it can feel as if this is all the system is trying to do; bluntly punish, in the hope that in some, intangible way it will satisfy our collective need for something to mark the pain.

As I said at the outset, I can’t offer any solution. I doubt many can. Perhaps that is the unsatisfactory pseudo-conclusion for which I grasp as I close; that any claim to draw easy fixes in the wake of difficult cases should be regarded with a measure of suspicion. There are rarely easy answers in criminal justice; no more so than in tragedies where we are desperate to find someone to blame.

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