Deterrent sentencing for pavement cycling?

[Bicycler]

Gaz, my point was that, unlike your other examples where the legal extent of the works relies upon what is specified in a properly made order, the creation of a pavement and its conversion to a cycle track merely depends upon what is actually 'constructed' on the ground; there is no separate legal designation to botch. If the relevant highway authority builds a footway it is a footway. If they later install signs and paint it is a cycle track. If they paint a line and install signs with pedestrian and cycle symbols on different sides it is a segregated cycle track and footway.

For the duck test, I go back to the signs and markings. If there is a stop sign and solid line at a road junction you may be prosecuted for not stopping. The highway authority's original intention behind the sign many moons ago and the fact that the similar junction next along is merely a "give way" are completely irrelevant. Similarly, If you cycle on a pavement other than where explicitly permitted by and in accordance with signs and markings you may be prosecuted.

Obviously the issue of whether an individual cyclist should be prosecuted depend on his individual circumstances and that takes us back to the OP.

[gaz]

I don't buy into the suggestion that putting some paint on the path and a few blue signs up equates to evidence that the Highway Authority has exercised it's powers under the Highways Act 1980 to create a cycletrack. There should be some form of audit trail to indicate that those powers have been used.

[Bicycler]

Well, we'll have to disagree on that one Gaz. The statute does not require a record, merely an action. Whilst I understand how the an audit trail may potentially be useful, to me the act of marking out a cycle track is in itself conclusive evidence of exercising their powers under the HA 1980 to do so. They have no other means to legally permit cycling on pavements. The alternative would be that they had decided that rather than exercise their power to create a cycle track they would illegally encourage illegal cycling on a footway. I don't buy that. There must be a presumption of regularity.

Just out of interest do you feel the same way about the other powers councils can exercise under Part VI (s.62-105) of the HA 1980? Does every minor road improvement need a paper trail in a filing cabinet before it can be said to have been legitimate? Or are we treating this power differently? If so, why? Can't we reasonably say that when a council does something it has the power to do that it is exercising its power to do so?

[thirdcrank]

According to the CTC/CDF press release which prompted me to start this thread, this case was due to he heard today. Nothing I can find from the CTC/CDF so perhaps not a brilliant result for cyclists. Nothing I can find in the media so perhaps he's not been sentenced to seven years transportation. In other words, does anybody know what happened?

Edit to add

I see today (6 Feb) that the CDF website has been updated to report that the CPS discontinued the case very late in the day on the grounds that a prosecution was not in the public interest.

http://www.cyclistsdefencefund.org.uk/p ... st-dropped

[gaz]

Thanks TC.

Here's a link to the CTC edition of that article. I only include it as there are a number of pdfs listed as a footnote that may make an interesting read, which will be the next thing that I do.

[TonyR]

Thanks TC.

Here's a link to the CTC edition of that article. I only include it as there are a number of pdfs listed as a footnote that may make an interesting read, which will be the next thing that I do.

The second pdf linked at the end of the article is worth reading to see what a dogs breakfast the Council has made of installing the cyclepath. Too narrow, wrong place, poor surface, confusing and inconsistent signing and marking, obstructed and all leading onto a crossing that is not designed for cyclists.

[Penfolds11]

The second pdf linked at the end of the article is worth reading to see what a dogs breakfast the Council has made of installing the cyclepath. Too narrow, wrong place, poor surface, confusing and inconsistent signing and marking, obstructed and all leading onto a crossing that is not designed for cyclists.

Which begs the question of whether the Council will take steps to correct the inconsistencies on the cycle path; and if PCSOs will continue to stand at the end of the path giving fixed penalty notices to cyclists who may not know the ruling in this particular case.

[gaz]

There has been no ruling. The case has been dropped.

The CPS have decided that the prosecution of this case is not in the public interest. I do not believe that the CPS have given any indication as to why they feel it is not in the public interest to prosecute.

It certainly isn't carte blanche to ride on the pavement on New Kent Road or anywhere else.

[thirdcrank]

Had this been a rider who had copped for a ticket and come on here for advice, we'd now be pleased that they had got off, no matter what the reason, but this case is different. This was publicised as something of a test case on behalf of riders more generally, even though the media interest after the press release which prompted me to start this thread was nil, if google hits are the measure. The rider was to get his "crowd-funded day in court" etc, but he didn't.

It's now said that the case was dropped because a prosecution was not in the public interest. The implication, therefore, is that the CPS considered that there was a good prospect of a conviction on the evidence but dropped the case (the public interest test is not applicable until the sufficient evidence test has been passed.) AFAIK, the CPS doesn't normally explain its reasons for a decision like this which leaves everybody to reach their own conclusions from "they can't touch you for it" to "they couldn't prosecute their way out of a wet paper bag" with some in between assuming that the CPS thinks that the police should have something better to do with their time. In reality, I fancy that the CPS wasn't prepared to put up a lawyer with the ability to conduct a prosecution.

It's disgraceful that the defendant was only informed of the decision so late in the day. For many defendants that would mean unnecessary worry and the possibility of incurring unnecessary costs in instructing lawyers.

IMO, it's but one of the reasons so many police officers stopped bothering with traffic offences years ago.

(I agree with the gist of what Penfolds11 posted, but gaz is right about "no ruling" etc.)

[Penfolds11]

There has been no ruling. The case has been dropped.

The CPS have decided that the prosecution of this case is not in the public interest. I do not believe that the CPS have given any indication as to why they feel it is not in the public interest to prosecute.

It certainly isn't carte blanche to ride on the pavement on New Kent Road or anywhere else.

Yes, very good point that I had missed. As TC says, the gist of what I say stands which is: will the police continue to try and nab cyclists for that same "offence" and hope that such cyclists are unaware of Krystian Gregory' case, or will they decide not to run the risk of another well-informed CTC member being caught and raising some unwelcome publicity? Who knows and only time will tell.

I agree that it does not give carte blanche to ride on the pavement, cyclists who do that form one of my pet hates, but in theory this does suggest that following the same line on that particular cycle path that Krystian did is acceptable by precedent (given that no court ruling has been made). If any of us were caught riding the same line on the same cycle path surely we'd just use the CDF defence for ourselves and expect the same outcome?

[gaz]

With around 67,000 CTC members in a population where 3,000,000 cycle three times a week or more, the odds of ticketing a well informed CTC member for the same "offence" at the same location may not be much of a risk.

I would hope that the Met Police would not repeat such "over-zealous" enforcement at this or any similar location. It seems from the CTC letter to the CPS that they had given such assurances some time before the prosecution was dropped.

That gives scope for enforcement to continue "zealously", just not "overly" so .

Upthread TC linked this thread regarding a FPN for pavement cycling. That ended up with the ticket being "knocked", ostensibly due to the poor signage. That decision in 2012 didn't stop Kristian Gregory receiving his ticket in 2014, it didn't stop the CPS feeling that his case passed the evidential test and it didn't stop them setting a court date for trial.

The case was dropped. I find the "defence" put together by CTC for the CDF convincing, others may not. Either way it remains untested.

I'd hope for the same outcome, I wouldn't go so far as to expect it.

[thirdcrank]

Penfolds11

Not everybody wants to have a game of Call my Bluff.

A fixed penalty for a criminal offence is an opportunity for an alleged offender to pay up and avoid a lot of hassle. It also saves the prosecution a lot of hassle and expense. The system, like the pleading-guilty-by-post which preceded it only works because most people just want it all over asap. Under the old system, the protections, for Joe Public from an over-zealous or poorly-trained police officer were that a relatively senior officer (superintendent or chief inspector) would take the decision on whether to prosecute and even then a summons could only be properly issued for an appropriate offence. With a ticket, there are few checks between the issue of the ticket and a summons if the alleged offender request a hearing. Anybody who gets a ticket can ask for a hearing and then write to the CPS saying a prosecution is not in the public interest and who knows what might happen? Go to a solicitor who specialises in procedural manoeuvring and you may be cleared, but it's not cheap and for many people the worry and the hassle is all too much. Crowd-funding is said to have financed the defence here, but that's unlikely to be available to everybody who gets a ticket for this. Get to court after declining a fixed penalty and some benches take a "we'll teach 'em" line, especially with an unrepresented defendant..

The outcome here may lull some into a false sense of security which is what I was getting at with my "can't touch you for it" comment. They can and probably will. The CPS has just left all options open for the future, no matter what anybody thinks.

What is to be done? I really don't know. I'd need a blue emoticon (as in blue in the face) to go over all I've written in the past about this, but a combination of extending the FPT system to cover this offence and making it one of the few powers available to PCSO's has made so-called "net widening" inevitable. (Net widening is what tends to happen when procedures are simplified and people are dealt with who would never have been before. A good example was when official cautions, especially "instant" cautions were introduced for juvenile offenders.) People can kid themselves by a certain interpretation of the weasel-words of politicians, especially when they have been embroidered, but the way this was introduced was only ever going to lead to one outcome. It's ancient legislation and needs replacement with something more appropriate for the 21C rather than the 19C but nobody in authority sees any reason to act.

[Valbrona]

I am disappointed the CPS backed down on this prosecution. There is something pathetic about a grown man riding his bike on a pavement that is meant for pedestrians.

I thought that pavement cycling was dealt with by fixed penalty notices and I thought it only ended up before a Magistrate if someone said they were not guilty.

[iviehoff]

I am disappointed the CPS backed down on this prosecution. There is something pathetic about a grown man riding his bike on a pavement that is meant for pedestrians.

Did you actually read the article? There's something pathetic about the police prosecuting someone who reasonably believed he was cycling just where he was supposed to cycle.

[iviehoff]

It's now said that the case was dropped because a prosecution was not in the public interest. The implication, therefore, is that the CPS considered that there was a good prospect of a conviction on the evidence but dropped the case (the public interest test is not applicable until the sufficient evidence test has been passed.) AFAIK, the CPS doesn't normally explain its reasons for a decision like this which leaves everybody to reach their own conclusions from "they can't touch you for it" to "they couldn't prosecute their way out of a wet paper bag" with some in between assuming that the CPS thinks that the police should have something better to do with their time. In reality, I fancy that the CPS wasn't prepared to put up a lawyer with the ability to conduct a prosecution.

I'd like to think that once in a while prosecutions were dropped as being "not in the public interest" because, although technically an offence was committed that is against the law as written:

- it isn't actually what the law aims to prevent, it is an unintended effect of the wording, or

- the law was broadly drafted and common sense is intended to be used only to prosecute things that actually matter to anyone, or

- the offence is de minimis, and de minimis non curat lex, or

- the offender acted in good faith, and a reasonable man would consider it a reasonable thing to have done in the circumstances,

I think all of the above could apply to this.