Michael Mason and his daughter Anna Tatton-Brown (Ross Lydall)
We have written about this case before in the context of law enforcement in London and our aims in the Traffic Justice Alliance. Unfortunately, we can’t report strides forward – yet – with the Traffic Justice Alliance, and have to report on developments in this case which should upset anybody who wants to see a civilised approach to danger on the roads. That may sound extreme, but recent developments reveal what we think is a national scandal and disgrace. This is not just a London matter, or just of concern to cyclists. It is about how crucial elements of the “road safety” culture we live under – including the beliefs and behaviour of those entrusted with law enforcement – are part of the problem of danger on the road.
Since our last post on this case:
On 13th March 2015 Michael Mason’s family held a vigil near the place where he was killed, with a protest and “die-in”. Brenda Puech, Dr Robert Davis and Councillor Caroline Russell from the RDRF Committee attended this event, with Caroline speaking as a pedestrian and cyclist activist. 
Speakers: Caroline Russell, Cynthia Barlow (RoadPeace), Nicola Branch (Stop Killing Cyclists), Anna Tatton-Brown (daughter of Michael Mason). Roger Geffen for Cyclists’ Defence Fund also spoke.
It was an emotional gathering with palpable relief at the news – broken that day – that the file on the case had been passed by MPS to the Crown Prosecution Service.
Since then the news has been that some kind of mistake was made, and that in fact the MPS has not passed the file through, deciding against supporting a prosecution of the driver. For an account of this, and how horrified people have been at the treatment of Michael Mason’s family, see this.
However, our main concern is with the justification for the police not proceeding. This means analysing the Investigating Officer’s Report, which you can find here.
What’s wrong with the Investigating Officer’s Report?
(You can read a similar set of arguments in an excellent article here )
Four justifications are given for the MPS failing to proceed in the manner which we should expect of them. These excuses are:
- ◾that Mason was (as was his legal right) wearing dark clothing
I have written at length on the problems of advocating hi-viz or bright clothing for pedestrians and cyclists. Part of our concern is a lack of evidence for such clothing actually making a difference to the chances of not being hit – luckily (so far) the Department for Transport has not come out with any convincing evidence.
But a larger part of our concern is that this focus shifts responsibility yet again away from those who endanger others (the motorised) on to those they endanger (pedestrians and cyclists). If drivers choose not to look where they are going, and simply watch out for very bright objects, they may well not “see” people outside their cars. Our problem is that this feeds into and colludes with the “SMIDSY” (Sorry Mate I Didn’t See You) excuse of drivers who refuse to look where they are going. They break the first rule of safe driving: Never drive in such a way that you cannot stop within the distance you can see to be clear.
Just in case anybody thinks we are being too extreme here, I should remind you of the experience of Tom Kearney, knocked down by a “bendy bus” mirror when walking on the footway on Oxford Street, not far from where Michael Mason was killed. When questioned by the police after the incident (or rather when he came out of the coma he was in after the incident), Tom was asked if he had been wearing dark clothing. When walking. On the pavement.
We think this is all victim-blaming nonsense that facilitates the endangering of others. It is related to the next excuse:
2.◾that a witness’s opinion was that “it would be difficult for a driver to pick out anything” in the visual noise of Regent’s Street
Ever since the CTC warned of the implications of getting other road users to be lit up for motorists’ benefit before the Second World War, there has been concern that street and vehicle lighting could dazzle. Glare became an issue. The message to anyone with any sanity would be that there is too much reliance on lighting.
There are two issues here: Are we seriously supposed to accept that a driver cannot see a cyclist or pedestrian who is not wearing bright clothing in Regent Street. Go there on a March rush hour evening and see what you think. The other issue is: if you can’t see a pedestrian or cyclist without hi-viz clothing then you are not driving properly, and are responsible for any crash occurring because you have not seen the person outside your car.
(There is also the issue of why “a witness” is an authority here, and not some sort of forensic expert)
3. ◾that the driver maintained her course
This excuse is not separate from the ones above – indeed it is essentially the same. The point about “not seeing” is not that is about images not falling on the retina. It is about whether the driver is watching, looking out and willing and able to process the images – and to do so in the correct manner. People see what they want to see, and similarly don’t see if they aren’t prepared to watch out in the manner required of them. It is very easy to drive on the basis that anything without lights is no threat and can therefore be ignored. It is also wrong, as anyone who has crashed into a deer realises.
In this case, as Bez says: “Of course, maintaining one’s course is often an effective means of driving straight into things: if there is someone in front of you, it hardly seems a reason not to prosecute.”
The final excuse is one that has concerned us for some time:
4. that Mason was (as was his legal right) not wearing a helmet
Now, we can argue that there is a lack of evidence on the benefits of helmet wearing across cycling populations, whether because of a lack of effect or relevance in cyclist collisions. We can argue that compensatory behaviour by helmeted cyclists and/or other road users absorbs any safety benefit. Or that it would make more sense to wear such helmets in cars. (See www.cyclehelmets.org for evidence). But probably the biggest concern about helmet advocacy is the red herring effect – one which we see here to grotesque effect.
The simple fact is that what Mason may, or may not, have been wearing on his head is irrelevant to whether a driver who drove into him had broken the law – in this case driving without due care and attention. The idea that if Mason had been wearing helmet there would have been no case to answer is beyond preposterous. It is simply preposterous to assume that if Mason had been wearing a helmet there would have been:
- no change in his or others behaviour (risk compensation).
- no other significant injury other than a head injury
- Total prevention of any head injury
- no significant inconvenience or discomfort to Mason
That’s the simply preposterous part – what takes it further is that driver carelessness is exonerated even if the consequences of it might not be that bad. Would we reduce the sentence of – or not even prosecute – someone who shot a policeman, because the policeman was wearing a bullet-proof vest?
How the Investigating Officer’s Report reasoning is part of the problem…
This is the fundamental issue. “Road safety” ideology for decades has assumed that drivers are unwilling or unable to drive properly, and that driver carelessness is just part of the territory. The “can’t see” excuse has been accommodated by lighting and longer sight lines. The generally careless driver has been accommodated by more crashworthy vehicles (roll bars, crumple zones, seat belts, air bags, collapsible steering wheels etc.) The incompetent or rule-breaking driver has been colluded with through highway engineering (crash barriers, felling roadside trees, antiskid surfacing etc.)
Such idiot-proofing has often demonstrably exacerbated or generated idiot driving . Even where there is little evidence that it has, the long term effect is, as the MPS have done in this case, to confuse common dangerous behaviour with acceptable behaviour.: . Of course, we have also had the complete failure of the official “road safety” organisations to get involved in cases such as this, and a general failure of the police to address the issues of careless and dangerous driving. But underlying it all is that the idea that bad driving is an inevitable feature of the cyclist’s or pedestrian’s surroundings.
…and what to do about it.
So where does this take us? My view is that cycling in London is not anything like as hazardous as is made out. I also think driver behaviour can be changed through measures such as guard rail removal, and that there is a Safety in Numbers effect from more cycling. But in a sense, that doesn’t matter when it comes to cases like this.
If the police, and other organisations with a brief for safety on the road, feel that driving is so antagonistic to other road users, there needs to be forthright commitment towards reducing that danger. That can be achieved by – well , any means necessary. It can be done by proper road policing addressing the danger at source. The highway can be engineered to reduce danger to cyclists and pedestrians, as can vehicles (with cyclist/pedestrian-activated braking, or at least “black box” type collision recorders).
And if “road safety professionals” are so keen to point out the threats posed by mass motoring, then there is yet more of an argument to bring in driver liability legislation (at the least in civil law). But whatever the means used, the basic issue will be one of seeing inappropriate driving as wrong and the basic problem, whether it has resulted in someone being hurt or killed or not, and whether or not ‘everyone does it’.
Consider the case of collisions where nobody is reported as hurt or killed – in fact the vast majority of collisions involving motor vehicles. Measures of road danger could include actual collisions. The vast majority of car crashes, particularly at the lower speeds of urban areas, are not recorded in casualty statistics, because no injury is reported. Indeed, without (reported) injury, these results of careless/dangerous/rule-breaking/criminally negligent or whatever driving just don’t exist for the road safety professional.
Is that not what the excuses brought up by the MPS are all about? If they can claim that a reported injury occurred because of the victim’s own actions, then the world of bad driving can continue to be tolerated.
But it shouldn’t be.
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UPDATE 24th March 2015:
Letter from Jenny Jones MLA to Commissioner of the Metroplitan Police
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For the moment, what you can do is:
Give: To help the family of Michael Mason you can make an online donation to the Cyclists’ Defence Fund to support its work on cycling and the law – such as challenging unduly lenient law-enforcement of dangerous drivers, unjust prosecutions of cyclists, and highway and planning decisions which disregard cyclists’ needs. Or see information on other ways to donate to CDF here.
Road Danger Reduction Forum 
Following the watershed on safety for rail that took place with a series of crashes, topped by Ladbroke Grove, one crash in which 31 perished, Lord Cullen concluded that enough was enough. No longer would an annual passenger (and staff) fatalities running in double figures be accepted as ‘it happens’ – 30 years ago 30-40 lives per year were lost through incidents with the old slam door trains, now we have not see a passenger death in a train crash since 2007.
Cullen saw the creation of the independent Rail Accident Investigation Branch, delivering objective and impartial investigation of incidents, and published results that list learning points available to all with the aim of removing the hazards (like elimination of slam doors) where possible, and managing the risks (fitting centralised remote door locking on remaining slam door trains) where possible.
Rail benefits here by having a powerful regulatory system, which decrees that operators and infrastructure providers act, with enforcement where required, to make the necessary changes.
We lack a coherent regime of roads regulation. The law as it stands leaves the infrastructure providers to regulate themselves, with countless examples of roads built with inherent danger by design. There is minimal regulation of users, and even that is piecemeal and under-resourced. Even working to the principle that we should have regulation of any person or organisation making a commercial, or otherwise significantly beneficial gain from using a vehicle on the public road would address some of the key sources of danger – placing the imperative of benefit over safety in the way that person or organisation operates their vehicle(s).
We do have the Traffic Commissioners controlling the licencing of operators and drivers of large commercial vehicles, with the primary mission “To prevent harm” from these activities. Taxis are also regulated but in a largely parochial manner with wide variation in the standards, and relationships between the local taxi trade, and the licensing body. Particularly worrying is the burgeoning growth in internet shopping and home delivery, reflected in bouyant sales of small vans, and a volatile nature of the work available with tight margins.
Also escaping are the drivers, effectively operating as a taxi/private hire service with Uber, and for that matter pedicabs, and cycle-based logistics operations. Pedicab operations especially face issues where the currently local licensing issues may be severely influenced by a powerful taxi trade lobby. Far better to level the playing field and regulate all through an independent national network of regulators, ensuring that all ‘operators’ are of good repute, and satisfy key requirements of record keeping, and fiscal propriety.
I’ll close with a detail used by the Traffic Commissioners and their enforcing support – the DVSA – to make best use of their limited resources. There is an Operator Compliance Risk Score, compiled for every operator. It rates various markers of performance, annual MOT test failures, prohibitions issued for faulty vehicles, drivers’ hours and other traffic offences reported. Naturally an operator ranked as red will more likely be on the ‘watch list’ than one ranked as ‘green’, and potentially be invited to ‘Tea & Biscuits’ with their Regional Traffic Commissioner to discuss mending their ways.
I’d like to propose a universal Driver Risk Score system, perhaps sponsored by the motor insurance industry. It would record reports and YouTube evidence of vehicles driven badly, it might provide a repository for all verbal warnings given by Police Officers, where they believe this a more appropriate use of resources than taking every offending driver to Court, but this would be in the knowledge that UK-wide across over 40 Police forces, that score keeps racking up. Insurers would gain a clear picture of the vehicles (and generally the drivers) that present the greatest risk of a costly claim.
Education can be targetted, closely followed by enforcement, with the added bonus that the resource of the Police and Courts would be channelled to deal with the worst drivers as the first priority, and based on the 80:20 rule we might deal with around 80% of the road use likely to cause death and serious injury by tackling the 20% most likely to be responsible for it
Thank you for your report and explaining the issues of the case. I’m struck, are Officers now changing how they weigh up their recommendation to prosecute between the legal strength of the evidence of the offence, and, how a jury may likely consider a reasonable judgment as they consider what is appropriate for a competent and careful driver?
We are getting more precedents that indicate you are (legally) better protected if you wear a helmet as a cyclist. Insurer companies have established this working practice in pay awards. I have received higher awards in cycle accident claims because I was wearing a helmet. Have Officers or CPS absorbed such type of thinking when judging if a conviction is in the public interest to take forward? Does this follow on, that pedestrians are now (legally) better protected, if they wear reflective clothing when dark and crossing informally on well lit London streets?
The Highway Code notes that cyclists “should“ wear a cycle helmet and wear light-coloured or fluorescent clothing which helps other road users to see you in daylight and poor light… and reflective clothing and/or accessories (belt, arm or ankle bands) in the dark. https://www.gov.uk/rules-for-cyclists-59-to-82/overview-59-to-71
For pedestrians, they are told to wear or carry something light-coloured, bright or fluorescent in poor daylight conditions. When it is dark, use reflective materials… https://www.gov.uk/rules-pedestrians-1-to-35/general-guidance-1-to-6 . (Note, for pedestrians they not guided that they “should” wear these materials).
So, is the inverse relevant, and how well the road was actually illuminated considered? Are small children on cycles now proportionally less protected than tall big cyclists as they wear proportionally significantly less fluorescent clothing to alert drivers of the cycle hazard ahead? “Should” recumbent bikes now less legally protected as their cycle ankle bands are harder to see from the rear?
Where cyclist behaviour and their road position in the location is reasonable for the conditions, why is a further burden of neglect (or implied presumption) now placed on the cyclist not the driver? Why is a vehicle driver’s inattentiveness (or interest in reading their satnav in a built up urban area) somehow offset by what a cyclist wears or the cycle shape? Why is prosecution for drivers, and especially HGV drivers, becoming weaker in retributive justice as their vehicle size (and its inherent road danger to others) gets substantially bigger?
Overall, I would welcome help in understanding where changes in the legal system are needed. In this case, is the law an ass? Is the Officer thinking an ass? Or is the risk of a likely failed jury conviction the problem in the current legal system?
I guess understanding where changes in the legal system are needed is exactly what we want. My suggestion is that there are problems with the law, certainly problems with the individual officers’ decisions in this case, and also problems with prejudice from juries – although that here is also the issue of prejudice from magistrate, where jury prejudice is not an issue and where magistrates should have been well informed.