Crime and Punishment redux : that fixie case

Where to even start. So, let’s start with the usual caveats. When commentating on any case, be that civil or criminal, in the absence of sitting there during the trial, we’re reduced to piecing together what we know, or think we know, from various scattered pieces of reporting. Reporting of trials is a little sketchy to say the least. Much depends on what dog you have in the fight. I try, if I can, to avoid the Mail and Express for these purposes for quite obvious reasons. The broadsheets are a little better but, most of the time, the local reporting has a little more detail than the others and it’s there that we get some of the better detail. And, I try, as hard as I can to be impartial. That doesn’t mean I don’t think it’s us and them, it really is. But I look quite hard at whether there’s any justification for the things that happen. That, judged against the backdrop of what’s going on out there on the roads, how bloody unsafe it feels, might render going after cyclists unpopular with cyclists, is not a point I’m all that interested in. Neither am I a holier than thou cyclist who seeks to elevate myself above others just to demonstrate some evidence of independent thought. No, this is straight down the middle, just the facts maam.

So, what do we know. Charlie Alliston, riding a bike with ‘no brakes’ (we’ll come back to this) collided with a pedestrian, Kim Briggs, when she stepped out onto Old Road in east London. They banged heads, she suffered multiple skull fractures and sadly died.  I’ve omitted any ages or occupations, they’re broadly irrelevant and only muddy the waters. I’ve omitted any detail relating to what Charlie Alliston said on the internet afterwards but, essentially, he was pretty unwise in writing anything at all. Suffice to say, following the verdict, the Judge has indicated her dislike of his behaviour.

Anyhow, Fixies. If you’re unaware of the mechanism a fixie is a bike with a fixed rear hub. When you slow there is no freewheel to take the pressure off your legs. You brake by offering resistance to it. Naturally, it takes longer to brake. So, with that in mind, the Pedal Cycle Construction and Use Regulations 1983 require you to have a front brake in addition to your rear fixed wheel if you’re to be road legal. Quite how many illegal fixies are out there is anyone’s guess. But I’d suggest it’s not isolated particularly in the urban centres where hipsters hang out. That said, riding fixed is perfectly legal and many fixie riders have two brakes in addition to the fixed wheel.

That’s what we know. I’ll try and weave in other matters that we can safely assume or know as we go through.

What’s perfectly clear is that a decision was made to charge Alliston with two offences. The first is that of ‘furious cycling’ under section 35 of the Offences against the Person Act 1861 and the second, manslaughter. It’s that second one that has aroused all of the interest in this case. One down from murder and unprecedented in its use against a cyclist. The charges merit further consideration.

Section 35 of the OAP 1861 is not actually directly about furious cycling. It’s actually about furious driving. And it’s not just the act of driving in a crappy way. It requires bodily harm to arise from that incident. Here’s the full text:

“Whosoever, having the charge of any carriage or vehicle, shall by wanton or furious driving or racing, or other wilful misconduct, or by wilful neglect, do or cause to be done any bodily harm to any person whatsoever, shall be guilty of a misdemeanor, and being convicted thereof shall be liable, at the discretion of the court, to be imprisoned for any term not exceeding two years.”

And there are a few things to deal with there. The first is driving, does it matter that cyclists generally cycle and drivers drive? No. The crucial aspect here is that the term ‘carriage’ operates (since the case of Taylor v Goodwin 1879) as a term defining any vehicle and including bicycles. That’s the key point. There’s no question that actual harm occurred. So the question before the Jury was whether they could convict on the basis of furious driving, wilful misconduct or wilful neglect AND that such actions were causative of the harm. Causation is important. There has to be a link. So, the prosecution has to show that one or more of three ‘bad things’ happened and that one or more of them caused that harm. Then there’s the potential sentence, two years. That’s way below what would be the potential sentence in a death by dangerous driving case, which has a maximum sentence of 14 years. I’ve not compared a death by careless driving case here because, it seems to me, the very essence of section 35 is dangerous behaviour.

There is actually a problem with equivalence here. If section 35 were the only law that existed to prosecute cyclists that would actually discriminate, if I can use that word, against motorists. If the behaviour is similar and the harm the same (i.e death) why should a cyclist not face a similar sentence to a motorist? But that’s the law. In the absence of a get out, that’s unfair and there are many unfair laws. I’ve seen it written that a motorist would not have landed a charge under this section. That may be true, but it’s hard to be really supportive of that. In what circumstances? Specifically, a motorist with deliberately defective equipment should be charged with a careless or dangerous driving offence whose potential sentence is greater than section 35. Section 35 is an outdated law, left on the statute book when other better laws are available. That motorists would or should be charged differently is no reason to cry foul that cyclists may fall prey to it and, if you run that argument, it tends to invite law change because, quite clearly, the better law here would be to create an offence of causing death by dangerous cycling.

So, the sentence for section 35 is limited to 2 years but the CPS have an alternative that they can pull which is to charge the Defendant with manslaughter. To do so, and I’d refer you back to Crime and Punishment 1, certain tests have to be met. The CPS has to be reasonably certain of a) securing a conviction on the basis of the evidence available and b) that the prosecution is in the public’s interest. I’ll ignore a) here for now. That’s for the CPS. In relation to b) this case raises some valid points. That there is an argument that ‘motorists get away with stuff like this all the time’ is not a defence to that public interest argument. So, yes, I’ve no real issue with the charge being brought because there is no present alternative. Social justice may demand that until motorists are routinely charged for this sort of thing that cyclists should be left alone. I suspect the family of Kim Briggs would disagree, and so do I. There’s a danger in going down the route of two wrongs. There are problems with getting cases against motorists brought. Equally there are issues with getting a conviction in cases where it appears clear that there has been some pretty poor behaviour.

But if the motorist could be said to be discriminated against because of an inequality in sentencing under section 35 then the reverse is true here. The maximum sentence for manslaughter is life. That’s considerably in excess of 14 years for causing death by dangerous driving and that’s potentially a huge problem. But in the absence of an alternative, what choice does the CPS have? Suck up a maximum 2 years for section 35 and lament the law? Or go for it? And, consider this, a maximum is a maximum. In the very worst cases of dangerous driving we rarely see 14 years. Is there any reason to believe that Alliston, if convicted, would get life? Or would judicial safeguards, proportionality and basic fairness apply? I believe the latter. While the Judge is not bound by sentencing precedent, and while there are no manslaughter sentencing guidelines, there is a common sense approach to sentencing.

But it gets even more complicated. Manslaughter isn’t one offence. It’s several. This isn’t voluntary manslaughter, where there was some intent to do harm. This is involuntary, where there was no intent, but, for simplicity’s sake, where harm was obvious. And it’s even more complicated than that, there are two potential charges, unlawful act manslaughter and gross negligence manslaughter. Before I explain them, guess which one Alliston was charged with. Because you’d be wrong. A layman might expect this, cycling without a brake, to be negligent. A lawyer might too. But, no, he wasn’t charged with that, he was charged with unlawful act. That surprised me. It surprised my colleagues, one of who is a former CPS chief prosecutor. But, there we are. It surprised me because, to some extent, a gross negligence conviction could be said to be easier. It requires a duty owed to the victim, a breach of that duty and harm arising. Slam dunk on all three there. Finally, it requires the breach to be gross in nature and, therefore, a crime. That’s for the jury, properly directed, to consider. Alliston was not charged with this. The point is, arguably, moot.

Instead he was charged with unlawful act. That requires the existence of an unlawful act and that it creates a risk which all sober and reasonable people would realise would subject the victim to the risk of some physical harm resulting there from, albeit not serious harm. Judged by what yardstick? Simply that sober and reasonable man and not what the Defendant believed though, of course, the two may overlap. Alliston’s claim that he did not know he needed a brake is irrelevant. The sober and reasonable man has that knowledge and, in any event, it’s a matter of common sense. It actually sounds fairly straightforward, if you put it like that.

Alliston was convicted of the section 35 but acquitted of the manslaughter charge. The jury decision required a majority direction. What appears to be clear is this, there was a unanimous verdict on the section 35, all jurors agreed. With that clear, and given that a majority direction was issued, we can assume that 1 or 2 jurors were prepared to convict him of manslaughter and that 10 or 11 were not.

And that’s interesting. Because, evidentially, the same facts are operating for both offences. Alliston can be convicted of both, if the jury so agree. If convicted of both he’s likely to be sentenced concurrently (running at the same time) because of the totality principle. But the jury were, seemingly, convinced on one and not on the other.

Let’s return to what we know. Alliston was cycling lawfully along a road in East London. His bike was missing a front brake, it was illegal. The victim stepped out onto the road without, it seems, looking or appreciating the risk. There was a pedestrian crossing nearby which was not used. Alliston’s speed is all over the place according to the media. That is to say, it’s impossible to get an accurate steer on what speed it’s accepted he was doing. It certainly wasn’t 20mph. It may have been 18mph, it could be less, according to some reports. What appears to be the evidence presented was that the impact was up to 14mph and that the distance in which Alliston would have had to stop his bike would have been around 6.6 metres. It’s here that the case goes a bit, well, bonkers and a disparity with motorised traffic begins to creep in. Without proper examination it’s hard to know whether cars stop more quickly than bikes and whether that applies to all. It seems clear that a bike without a brake is less likely to be able to stop quickly.

Then there was the expert evidence. And, my view is that there are more than a few facepalm moments here. The Met Police video, in a carefully controlled staged environment, with cones to demonstrate where to stop, shows that a proper bike would stop in around 3m and the ‘defective’ bike in, well, as much as to be insignificant, i.e. well beyond being capable of stopping. My initial facepalm is, where was the defendant’s evidence or argument here? A good expert would have dealt with the flaws in this evidence. The second? Well, that evidence. First, it takes no account of thinking distance, second, it’s entirely arbitrary to the point of being of little evidential value. Without trespassing into Newtonian physics, the thinking distance at 20 mph is 6m which would put a cyclist, travelling well below the speed limit, almost upon Mrs Briggs before having any opportunity to brake. Such tables are hopelessly out of date, of course, apply to cars, take little account of individual statistics and, it seems, he was travelling at 18 mph. But to suggest a stopping distance of 3m even so, is bizarre and appears unchallenged. There’s evidence too, that some commentators consider stopping distance thinking times too short. But, there we are. Indeed, it’s hard to get any clear steer on what the evidence was, at all. It’s hard to know definitively what speeds we are talking about. There has been criticism on forums of the Met expert using a mountain bike to compare braking. Clearly, if the above video is that evidence, that too is untrue. There may be an explanation though. It’s implied in some reports that the 6.6m is the distance away when Alliston saw Briggs and that, if correct, takes thinking time out of the equation and, it seems, any other rider would have stopped.

Crucially, we know Alliston saw her. He says as much. He tried to manoeuvre, it appears she went one way, stepped back, just as he tried to evade again. He doesn’t slow down by much, if at all, and the collision occurs. There are then three operative decisions being made, whether to brake, the manner of that braking and the tactics of avoidance. Only the manner of braking is related to the lack of a brake. There is little to suggest that, in the presence of a brake, such actions would have amounted to either charge. So, it seems, the absence of that brake must be at the heart of the case. But, from the reports of summing up and the prosecution’s commentary, that’s not obviously true. Sure, there are references to it, a video has been produced, but it’s not the only consideration. The case is being taken as a whole.

Other commentators have suggested that there’s nothing untoward about 18mph even in central London. And I’d have to agree. It’s driving at below the speed limit (which is not a target of course). Whether such speeds were suitable for the occasion is a matter of evidence. Absent a line of stationary traffic I’d be surprised if Alliston weren’t being overtaken by other cars at his chosen speed, but, this is London.

So, perhaps, a conviction for one offence and not the other is surprising because, in my view, there’s little factual difference between them. If the unlawful act is the absence of the brake and it’s accepted that any other cyclist would have stopped then, manifest social justice unfairness aside, that charge appears to be made out. The section 35 becomes a side show. And if the jury decides, as they have, that the section 35 is made out, then on what basis? Because if that’s on the basis of the wilful misconduct then what reason is there for dismissing the manslaughter charge? Perhaps they took section 35 as a whole, a bit of poor cycling, a bit of not having a brake whereas doing 18mph is not an unlawful act for the purpose of the manslaughter charge. Of course, we will never know on what basis they made their decision……but, I wonder.

Much has been written about that manifest social injustice here. A poor cyclist being charged in circumstances where a motorist would not be. I don’t really accept that. The various death/injury by dangerous/careless driving are legislative creations which arose because motorists weren’t getting convicted of manslaughter. It was too high a bar. It’s easier now, commonly used. That this cyclist faces something rarely used is not, of itself, unfair. Just different. That other motorists seems to escape being charged, escape being convicted, are sentenced to lightly is a whole other set of issues. And that ignores that this case wasn’t about a cyclist, it was about one who was cycling with no brakes. It’s very hard to say, yes but motorists, when faced with that.

Much of the potential unfairness here was in relation to that potential that cyclists as an outgroup are misunderstood. Motoring is normalised, juries, in my view, tend to sympathise with things which could happen to them. Riding a fixie without brakes is not normal behaviour and there was a risk here that an example would be made because ‘it could never happen to me.’ But, I wonder. I wonder if the jury here looked at that word, manslaughter, and concluded that for this admittedly foolish 20 year old that was too much. Yes, the Judge told them what it meant but it has connotations that, perhaps, they weren’t ready to impose on Alliston.

The internet has got a little shouty after this. Alliston has been cleared or convicted, depending on your point of view or media relationship. Twitter users have demanded compulsory cycle training, for no motorists who have been the subject of quite so much extensive training have ever erred. Legislative reform is demanded, despite there being, quite clearly, two existing offences which are capable of dealing with matters such as this. Reform is suggested because a case has been lost with little analysis of the harm which risks being perpetuated. It is, in truth, a tragedy which should not have made the front pages. It’s not different to what happens on our roads day in and day out. Just unique. Perhaps it’s good that it did get there. Perhaps it serves as a wake up call to remind the media that, you know, this is happening day in and day out, on our roads and it affects all of us.

If we are to reflect properly, and if change is indeed needed, then why not a death by dangerous/careless cycling charge? If the law does require changing to ensure there’s no disparity and inequality then that, surely, is the way. Law is reactive to need, of course. There’s little to suggest that this sort of thing is an issue. Two convictions in 10 years, no evidence of societal need other than some perceived annoyance at all cyclists. But, as cyclists, if we shout too loudly about this case, in which a jury determined that the manslaughter charge was wrong, then the natural result may be that we get what we ask for, equality in potential charges. And, if we do, then we can properly look at the decisions to bring charges, or not, against all road users.

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11 thoughts on “Crime and Punishment redux : that fixie case

  1. You’ve done a lot of digging. It’s a number of years since I defended and prosecuted (as agent of the CPS) and my mind isn’t so active, but it would appear to me that, if properly directed, it would have been , evidentially, easier to secure a manslaughter conviction based on an “unlawful act”, that is, riding a bike without a brake rather than having the burden of proving gross negligence. Ignorance of the law is no excuse to the Defendant. Riding a bike without a brake is “objectively dangerous to a sober and reasonable person – R v Larkin”, even a “fixie”.
    Unlawful act manslaughter is a common law offence and occurs where the killing is the result of the defendant’s unlawful and dangerous act where the unlawful act is one which all sober and reasonable people would realize would subject the victim to the risk of some physical harm resulting therefrom, albeit not serious harm – R. v. Church (1966) 1 QB 59.
    And there was a direct causal link from riding a bike without a brake (the “unlawful act” per se) to the death. It is not correct to say, as you did that the defendant was lawfully riding on the road. He wasn’t.
    Getting a conviction from a jury, even properly directed, is another , entirely different, matter particularly as it seems that the prosecution has sown some confusion (or even were confused themselves) when they adduced “expert evidence”. It is not clear whether the expert evidence was put forward for both offence or merely Section 35. It would have been extremely difficult for a jury to distinguish the evidence necessary to prove manslaughter from evidence necessary to prove an offence under section 35.

    Sadly , from my time in the legal profession, the CPS, today, seems to equate public opinion, more readily with “Public Policy” than it ever did, but in this case they were between a rock and a hard place when seeking to apply the law to death caused by a riding a bike.

    Liked by 1 person

    1. Thanks Geoff. I agree. In relation to the lawful riding point, that’s immediately covered in the next sentence, i.e. that without the brake it’s illegal. It was deliberate to categorise what was, absent brake aside, otherwise entirely normal and legal behaviour. Indeed, he was well within the speed limit. Nothing really matters without brakes, of course. I’d prefer to commentate from an actual transcript. But, that’s often expensive and, without sufficient locus, often hard to come by.

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  2. Further thoughts:
    1 From the defence side:
    1.1.1. Worst result would be conviction on both charges
    1.1. 2 Almost as bad – a conviction on manslaughter charge alon
    1.1.3 Least worst – acquittal on manslaughter, conviction on S 35
    1.1.4 Best result- aquittal on both

    1.2 Prosecution Evidence
    1.2.1 Witness statements (unknown)
    1.2.2 Defendant’s interview/statement (unknown)
    1.2.3 Defendant’s internet comments, post bail
    1.2.4 Medical – injuries, cause of death
    1. 2.5 Expert evidence – manner of riding, most likely targetted at securing S 35 conviction (see my comment above about unlawful act manslaughter)

    1.3 Defence Strategy/ tactics/advice/thinking
    1.3.1 Probable/ likely that a jury will convict on one charge due to death occuring through riding a bike without any brake
    1.3.2 Therefore, concentrate on securing acquittal on manslaughter
    1.3.2.1 As the law relating to unlawful act manslaughter seems to be quite clearly applicable, weigh up whether to contest the expert evidence as in reality it may muddy the prosecution manslaughter waters, with the jury. It may be possible to comment on it in mitigation should there be a section 35 conviction.
    1.3.2.2 Juries are unpredictable, but are unlikely to convict on manslaughter, notwithstanding the evidence (no brakes) and reasonably clear law/precedent for the charge. Whose shoes will they put themselves in? When death was caused by riding a bike (even without brakes) and it seems that the deceased had some contribution, through inattention..

    But there are so many known unknowns here, without a full transcript or law report. It is likely to form case-law precedent, particularly if, as suggested, there is an appeal.

    There seems to be too big a gap between manslaughter and S35 to be filled by common law case law.

    Liked by 1 person

    1. Very much so. A point, I think, about the defence’s lack of any expert evidence. Perhaps they did actually secure some and chose not to use it, as is their right of course. The absence of that might be quite telling too. I think it’s often forgotten that juries are working to the criminal standard of proof and, without having heard all the evidence, it’s still quite hard to be sure of the causation issues here. What it has done is lit the touch paper of righteous indignation and the convenient anti cycling lobby forgets that, over this weekend alone, trained drivers have been responsible for so many deaths……….

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  3. Without delving into jurisprudence, it is easy to overlook what is foundational in all this, which the title of your article emphasises: what is the purpose of criminal law and the efficacy of punishment?
    At the risk of being simplistic, is easy to forget that a crime is an act against the state, which the state (that is, in the UK the Crown, Parliament, the Executive and Judiciary – let’s leave out the EU for now) decides is against the common good and order of its subjects, against society.
    In the multitude of road traffic laws (and Code of practice and regulations) the state seeks to regulate the manner of the use of the “road” for the benefit of all users, and minimise the risk of harm. It used to establish a hierarchy of vulnerability, pedestrians the most vulnerable, horses, cycling, motorcycling, cars etc. It could be said that, in a broader sense, the criminal law is seeking to achieve the outworking of how to be a “good neighbour” fellow traveller, road user, and looks to criminalise what would otherwise be a private matter for civil proceedings by A against B, where the “neighbour principle” in the tort of negiligence would come into play.
    As someone who, walks, cycles and drives, I am only too aware of how vulnerable I am as a walker against cyclists, sharing a mixed use route and as a cyclist on a road. I don’t get my identity from walking, cycling or driving. I am the same person, whatever the activity. Division and hostility between categories of road users is founded on the human heart, human nature, what it means to be human. What are our “drivers”.? Superiority, arrogance, me first, at all times, in all places, or neighbour first?
    The internet is a mirror that holds up a glaringly shameless answer.

    .

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  4. In light of this, what can we do as cyclists to help repair the divisions that the press are pushing even further?
    We’ve decided we’re going to identify fix gear bikes on our site and add a note on each page that they are only to be ridden on with a front brake.
    Anyone else for going into you LBS and asking them to fit front brakes to all their fixes that they know are going to be ridden on the road?
    Personally I’d go further and add a rear brake to a fixie, at the end of a very long day with tired legs I’m not sure I can lock up the back as quickly as a brake lever can.

    Liked by 1 person

    1. It’s wise but, ultimately, this case isn’t a precedent. It’s simply a tale of many things being wrong in tandem. A bit of this, a bit of that, a bit of enough. The furore will die down. Give it time.

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