Police Cyclists targeting “too close” drivers heralds a return to the days of Stephen House?

It used to be I could not visit a news site without been reading about police crackdowns on motorists disguised as “raising awareness”. In the dark days of Stephen House, these were not really about raising awareness or “keeping people safe” (Police Scotland’s strap line). They were, in my opinion, little more than cynical revenue-generating exercises for the police. Lately these campaigns have been less prevalent but this article on the BBC website this week suggests the storm clouds are gathering again.

The thrust of the campaign is that plain clothes officers will cycle up and down our busy roads waiting for cars to pass them. If the car gets too close, the officer will radio to colleagues further up the road – and no doubt tucked out of sight – to pull over the offender for a good talking to. If the naughty so and so is deemed not to be taking things seriously (i.e. he fails to show due deference and politeness to the police officer threatening him with 100 lines) he will find himself charged with careless driving. One hopes that said police cyclists will be riding at a regular pace and not at 7mph in the hope of enticing frustrated overtakes but the cynic in me is sceptical.

Now because we have a little thing called corroboration in Scots law, one may wonder how the word of a solitary cyclist will be enough to prosecute the motorist. Is this going to be a case of police officers looking sweet on bicycles made for two? Unfortunately not. There is to be no expense spared here. Each bike will be equipped with rear facing and forward facing cameras. And, as the courts have made clear in the case of Shuttleton v PF Glasgow, the footage alone – although technically just one source – can be sufficient evidence of careless driving. If you are so inclined you can read the entire judgement here. However the gist of it is that video footage is “real evidence”. Once the provenance of the footage is established, the footage itself is enough to establish the offence. As the Lord Justice Clerk put it:

“It is the provenance of the real evidence, not its substance, which must be proved by corroborated evidence; the finding of the fingerprint; or of DNA; or in the case of CCTV footage, proof that th footage is a recording of the event which gives rise to the charge. It is in my view misleading to talk of corroboration in the conventional sense when referring to real evidence”

LadY dorriAn, Shuttleton V pf glasgow

So that’s that? Easy-peasy for the police and the prosecution? Well not quite. But before I talk about why not, I want to make clear that the aim of this campaign is a worthy one. It comes off the back of a survey carried out by YouGov and commissioned by Cycling Scotland. Chief executive Keith Irving stated:

“People who cycle regularly are likely to experience a very scary close pass incident every couple of days…… Every week in Scotland at least three people cycling suffer serious potentially life threatening injuries, usually from a collision with a vehicle”

If that is the case, and I have no evidence to the contrary, then clearly there is an issue to address. That said, I do wonder how many times the cyclist is blameless in these accidents. I don’t have figures for how many times I have seen cyclists ignore red lights, fail to stop at give ways, ignore cycling lanes or weave all over the road. But it happens. A lot. And can lead to accidents. Will the police issue similar crackdowns on these cyclists? I’m not holding my breath based on a case of mine which I discuss below. But there is no doubt that cyclists do get injured as a result of inconsiderate – or just plain selfish – driving.

To be clear, failing to leave a cyclist sufficient space can amount to careless driving (aka driving without due care and attention or reasonable consideration for other road users) contrary to section 3 of the Road Traffic Act 1988. The Highway Code makes clear that a cyclist should be given a wide berth of around 1.5 metres.

And section 38(7) of the Road Traffic Act 1988, as any good prosecutor knows, means that a breach of the Highway Code can be taken into account in determining whether an offence has been committed.

But…but…but that isn’t the whole story. The section also states that a breach of the Code “shall not in itself render that person liable to criminal proceedings of any kind”. In short, the law does not demand perfection of our drivers and therefore not every error should be elevated to the level of criminality. Is it really criminal, for example, to only give a cyclist one metre of space on a tight road with a 30mph limit? And how exacting does the evidence of distance need to be?

I remember defending a driver accused of such an overtaking manoeuvre not so long ago. The cyclist had a camera on his helmet and there was little doubt that my client failed to give him 1.5 metres of space. And, boy oh boy, did the cyclist let him know. Claiming he had been “nearly killed” he gesticulated, shouted and swore. He had, in his words, “almost been knocked into the ditch”. Quite how he managed to take one of his hands off the handlebars to give my client ‘the finger’ in those circumstances and still keep his bike under control will have to remain a mystery. But the best bit was when the cyclist then set off in pursuit of my client. He pulled alongside him at a red light (at least he stopped I suppose), hit his window with his bicycle pump and proceeded to shout, swear and threaten my client (who, by the way, was a gentleman in his 70s) in a pretty aggressive manner. Action taken again the cyclist for his deplorable behaviour – zilch. Action taken against my client for a minor error – prosecuted for careless driving.

Fortunately in this case, the footage for obvious reasons was helpful to my client and the prosecutor had the decency to look suitably embarrassed by the whole thing. After all, what had really happened? Answer – a car had overtaken a bike a wee bit too closely but essentially nothing had happened. Apart from some quite unacceptable abuse on the part of the cyclist that is. I argued the point above – yes there was a driver error but not every error is criminal – and the client was found Not Guilty.

So while I’m concerned that we are going to start seeing another glut of police “crackdowns” (remember they are definitely not money-making exercises), I am actually delighted that the police are using cameras for this one. Because we will be able to see what actually happens, not just the police version of what happened. Not that the police would exaggerate or (whisper it) lie, of course. But what if I had a pound for every time I have seen footage which bears little resemblance to the police account? Well, I would still need to work but I might finally be able to replace the old BMX with one of those fancy mountain bike things.

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