I have thought for a while about writing something about this issue, but time never seems to be on my side. However, I have had a number of experiences and encounters this week that have prompted me to set something down. Some of these were incidents that occurred on the road in what seems to have been a particularly bad week, and two were meetings with officers from the Greater Manchester Police. I will not mention any names here as I don’t think this is particularly about individuals, but rather about norms that have emerged from the socialization process that shapes attitudes within any community of practice such as a police force.
The Bolton Cycle Forum last Wednesday was attended by the PCSO in charge of Operation Grimaldi, as well as another officer and a representative of Transport for Greater Manchester, who are both also involved in the same operation. We discussed a whole range of issues that were related to Operation Grimaldi itself, including concerns about police priorities, which get many cyclist quite agitated about the operation. However the thing that really struck me during that discussion of priorities was the attitude towards the police’s handling of complaints by cyclists about dangerously bad and aggressive driving. When I mentioned examples such as very close passes and tailgating, the response of the PCSO included a comment to the effect that people who do this have not committed any offence, so can’t be dealt with by the police. He actually asked me: “so what offence have they committed?”, to which I replied: “driving without due care and attention, or possible even dangerous driving”. He dismissed my reply saying that that these were specific offences, and I should read the legislation regarding them. Well, I am already quite familiar with the relevant legislation, but more about that later.
Another comment that struck me was from another member of the Cycle Forum who said, in order to “put this into perspective”, that such driving is not just an issue with cyclists, but that it happens between motor vehicles as well, as if that makes it OK. Unfortunately I did not have the presence of mind to jump on that point at the time, but it does resonate with something that happened today in another encounter with the Police. Before going into that, I will give a little background.
I said earlier that this has been a particularly bad week for encounters with bad drivers. Sometimes I can go a month or more without anything worth posting on YouTube, which is great, then, like the proverbial buses, a whole bunch of them come at once. In the case of this week, however, it followed hot on the heels of a Twitter discussion with cyclists organized by GM Police on the 24th of January under the hashtag: #askgmp. During that discussion, I had the following exchange with the officers responding through the @GMPolice twitter account:
Taking these officers at their word, I rang 101 on Tuesday to report two incidents that happened on Monday; then this morning, I went to the police station to be interviewed about the incidents. I will focus on just one of those incidents in order to illustrate the point of this article. It involves a van, belonging to a mobile disco operator, whose driver appeared to be extremely angry that I had delayed him by probably two or three seconds as I overtook a bus and went through a narrow part of the road, and as a result drove in what I consider to be a very dangerous manner involving tailgating and a very close pass. These images are stills take from my rear video camera:
and the following still was taken from the front camera as the van overtook me:
The full video may be found on YouTube here.
Now, I think it is true that the way the law works in this country means that the question of whether some behaviour is unacceptable tends to be a matter of opinion. I also think that opinion is largely defined through the process of socialization that I referred to in the first paragraph above. Unfortunately, the socialization process can lead to normalization, within one group, of behaviour that would be clearly unacceptable to another group. I personally am left in no doubt that this incident was a case of road rage leading to unacceptably dangerous behaviour on the part of the van driver, and should constitute at least an offence under Section 59 of the Police Reform Act 2002, and possibly a breach under Section 3 of the Road Traffic Act 1988 (driving without due care and attention). However, I was surprised this morning to find that the officers I spoke to were of a different opinion. Not only did they not believe an offence had been committed under the Road Traffic Act, but they were even of the opinion that this did not constitute grounds to issue a warning under section 59 of the Police Reform Act. Of course, I expressed my surprise, disappointment and concern regarding this and asked whether they would be prepared to discuss the case, along with the video evidence, to someone from the traffic division, which they have agreed to do. It is still worth exploring some of the things that were said, though, and relating them to the discussion at the Cycle Forum meeting I described above.
The first comment that struck me from one of the officers was an assertion that, as this incident would not be grounds for action if it had been between two motor vehicles, then it should not be of any greater concern here, even though it involves a vulnerable road user. The officer stated that they “had to treat all road users according to the same road traffic regulations” which, apart from containing a number of logical errors and non-sequiturs, seems to reflect the same attitude that was apparent in the comment I mentioned earlier from one of the members of the cycle forum regarding these problems not being confined to cyclists. The belief seems to be that behaviour that risks the life and limb of a vulnerable road user is no more serious a matter than the same actions when they risk damaging the paintwork of some motor vehicle. I have to admit that I was staggered to hear this view from a police officer, and was rather lost for words, but I went back to the relevant legislation to see whether that really is a valid interpretation.
First, let’s look at the relevant section of the Road Traffic Act. Section 3 of that act states:
3 Careless, and inconsiderate, driving.
If a person drives a mechanically propelled vehicle on a road or other public place without due care and attention, or without reasonable consideration for other persons using the road or place, he is guilty of an offence.
This is further clarified in section 3ZA Meaning of careless, or inconsiderate, driving, which states, among other things, that:
(2) A person is to be regarded as driving without due care and attention if (and only if) the way he drives falls below what would be expected of a competent and careful driver.
We will come back to that point shortly, but section 3ZA also states:
(3) In determining for the purposes of subsection (2) above what would be expected of a careful and competent driver in a particular case, regard shall be had not only to the circumstances of which he could be expected to be aware but also to any circumstances shown to have been within the knowledge of the accused.
It seems that the specific circumstances under which the actions of the driver occurred do indeed have a bearing on whether the behaviour constitutes committing the offence. The circumstance in which the paintwork on someone’s car is at risk bears no comparison to the circumstance in which someone’s life and limb are put at risk, any careful and competent driver should be expected to be aware of that, and it is certainly within the knowledge of the driver concerned. So, contrary to what the officers in the interview said, the fact that the complainant is a vulnerable road user whose personal safety was put at risk is not only relevant, but crucial to the decision over whether to take action. The highway code also supports this view, as we will see later.
Returning now to subsection (2) mentioned above, one of the officers in the interview took a very similar line to that expressed by the PCSO in the Cycle Forum meeting, stating that, although the driving was somewhat below par, they felt it did not constitute driving without due care and attention. Of course, the question of whether a particular piece of driving falls below what would be expected of a competent and careful driver could be said to be a matter of opinion, and therefore subject to norms that are set through experience and through that socialization process I mentioned earlier, but we are not without normative references against which to make such a judgement. I am sure the best reference we have regarding what should be expected of a careful and competent driver is the Highway Code, so let’s have a look at what that has to say about the driving that was displayed by our mobile disco driver.
Regarding what I referred to above as tailgating, the highway code advises that a driver should leave at least 2 seconds gap between his/her own vehicle and the vehicle in front. I would estimate that, at the closest point, the van driver was no more than 0.5 seconds behind, possibly less. This is extremely dangerous, as I explained in my earlier article on tailgating, and it is very difficult to imagine how an argument could be constructed to refute that this driving falls below what would be expected of a competent and careful driver.
Next, regarding the closeness of the overtake. The highway code says clearly, in Rule 163, that an overtaking driver should give motorcyclists, cyclists and horse riders at least as much room as [they] would when overtaking a car (see Rules 211 to 213 and 214 to 215). When I pointed this out to the PCSO at the cycle forum meeting, he made the same error of interpretation that many drivers make by assuming that the word room meant clearance rather than space in which to manoeuvre. The highway code, though, makes it very clear that such an interpretation is invalid by providing a clear illustration of what is meant:
Again, it is reasonable to assume that this shows what ought to be expected of a careful and competent driver. I took the liberty of altering this image to show varying degrees of behaviour that then falls below that standard. The first, I would call a close pass, which really is not acceptable, but which I would probably not bother to report unless it was at a high speed:
The second is what I would refer to as a near miss; something that many cyclists would refer to as a “brown trouser moment” unless it happened at a very low speed.
If you look at the difference between this picture and the one shown with rule 163 in the highway code, it is very difficult to see how this does not constitute driving that falls below what would be expected of a competent and careful driver.
The final one shows something that is rare, but nevertheless does happen to cyclists more frequently than it should:
In cases such as the above, even if the cyclist manages to stay on the bike, it is difficult to see how this does not constitute dangerous driving, let alone careless driving.
In the case of our mobile disco driver, I would assert that this was very similar to the version I labelled as “near miss”. In fact, the pass was worse than it appeared because I did swerve into the kerb in order to avoid being hit, and the space between the inside of the van and the kerb was very similar to that shown in the “near miss” picture above:
Given the clear difference between the Rule 163 picture and the ones illustrated here, it is very difficult to imagine how an argument could be constructed to refute that this driving falls below what would be expected of a competent and careful driver.
Furthermore, if we look at the references that were included in Highway code rule 163: “(see Rules 211 to 213 and 214 to 215)”, we see again the expectation that a careful and competent driver should be expected to take greater care around vulnerable road users. These rules all appear in a section entitled “Road users requiring extra care”, and rules 211 to 213 raise this specifically in relation to cyclists, with rules 212 and 213 being about the space that should be left:
212 When passing motorcyclists and cyclists, give them plenty of room (see Rules 162 to 167). If they look over their shoulder it could mean that they intend to pull out, turn right or change direction. Give them time and space to do so.
213 Motorcyclists and cyclists may suddenly need to avoid uneven road surfaces and obstacles such as drain covers or oily, wet or icy patches on the road. Give them plenty of room and pay particular attention to any sudden change of direction they may have to make.
Failure to pay attention to these rules clearly constitutes driving that falls below what would be expected of a competent and careful driver.
Next, let’s look at Section 59 of the Police Reform Act, linked above. The relevant part of that section states:
(1) Where a constable in uniform has reasonable grounds for believing that a motor vehicle is being used on any occasion in a manner which—
(a) contravenes section 3 or 34 of the Road Traffic Act 1988 (c. 52) (careless and inconsiderate driving and prohibition of off-road driving), and
(b) is causing, or is likely to cause, alarm, distress or annoyance to members of the public, he shall have the powers set out in subsection (3).
(2)A constable in uniform shall also have the powers set out in subsection (3) where he has reasonable grounds for believing that a motor vehicle has been used on any occasion in a manner falling within subsection (1).
This piece of legislation was introduced to give the police powers to deal with anti-social driving in cases where it is not felt to be worth pursuing a case through the courts. It is difficult to see how anyone could conclude that the behaviour of our mobile disco driver did not cause me, a member of the public to suffer alarm, distress or annoyance. Even the look of absolute rage on the driver’s face as he passed me is enough to cause alarm or distress.
This is just one example of many in which the attitude of the police is, at the very least, shocking to anyone who has experience of riding a bicycle in traffic, so I think you can guess what my own answer would be to the question posed in the title of this article.
Footnote: I found it very revealing in relation to the police attitude towards cyclists generally that, in his talk on Operation Grimaldi, the PCSO I mentioned recalled that in one of the incidents recorded, “a cyclist rode across the town hall square and stole the handbag of a pedestrian who was walking there”. This kind of language says a lot about attitudes. In fact this was a thief who happened to be riding a (probably stolen) bicycle. Can you imagine an officer recounting a case of a ram-raid on a bank stating that “a motorist robbed the bank”?
Update 7th February 2014: I have just received a call from the officer dealing with the disco van case. The officer has spoken with the sergeant in charge, who agrees with her that the evidence provided by my report and the video does not show that any offence has been committed. Again, I find this quite shocking; it seems that this driver will be allowed to continue behaving in this way with no consequences until such time as he actually hits someone with his van. And this case is just one among many.