For many cyclists, this is a familiar experience. A few weeks ago at about 9:30 a.m. on my regular morning commute down the Gloucester Road into Bristol, it happened to me, captured in full in the footage above (footage of my full commute is at the bottom of this blog post, if you really want to watch it). Keeping wide in the lane to avoid the door zone of a line of parked cars and holding the driest line, I suddenly heard the aggressive blaring of a horn behind me just after one oncoming car had passed us. I was then subjected to an appallingly close overtake with a second car oncoming whose driver also sounded his horn to signal his displeasure at the incident. The numberplate of the car, a BMW X5, is Y448AKK. He kept the horn jammed on throughout the overtake for 4 or 5 seconds.
Upset and angered what had just happened, I cursed and gestured before continuing on my journey. I'm neither proud nor ashamed of this, and I have nothing to apologise for. However, this will become important further down the line. When I inevitably re-passed the driver a few minutes later while he was stationary at traffic lights, I considered tapping on his window and confronting him directly about his driving. However I was still upset and fuelled with adrenaline and, worried about the possibility of an escalation, instead I just rolled on by.
I'm not going to pontificate about the incident itself, since I've managed to emotionally divest myself. It was deliberate, aggressive, unprovoked and extremely dangerous; that much is clear from the footage. Viewing the footage for the first time in my office, I noticed it actually appeared worse than I had originally thought (often it's the other way round, what at first appears close is actually fairly benign). As the overtake progressed, I deviated off my original line slightly to the left and a fraction of a second later, the front wheels of the X5 had moved across onto this line as the driver avoided the oncoming vehicle.
This isn't the first dangerous moment I've had on the roads, and it certainly won't be the last. I've let many less serious incidents go since I decided it was down to a misjudgement by the driver, and I've had a handful of more dangerous or deliberate encounters before I starting recording my journeys. On this occasion, the maliciousness that was directed towards me made it clear that I had a duty to report the incident to the police. I was angry, but my primary motivation was in getting this driver off the road so he couldn't endanger anybody else in future. Apart from the driver's face not being visible, I thought I had indisputable evidence of dangerous driving.
A trip to the police station
I went down to the police station that afternoon, but after waiting 10 minutes was told that I might be better off trying again the next day. The lady at the desk was polite and helpful, but asked if I'd been hurt and seemed surprised when I informed her that there hadn't actually been a collision. (This became a recurring theme, and I feel is worth mentioning.) I came back the next day and handed over the full video on a memory stick, along with a written statement detailing the order of events. After waiting for about 25 minutes alone in an interview room, the officer returned and told me that no further action would be taken and no prosecution would be sought.
I had been half expecting that this would be the outcome. I'm well aware from reading various other blog posts of the difficulties in prosecuting dangerous drivers due to the wording of law and how juries are asked to interpret this. The lack of footage of the drivers face might also be considered. On the other hand I felt that the use of the horn would be perceived as deliberately threatening and aggressive, and that getting a driver who would be likely to re-offend off the road would be ample motivation. Furthermore, the footage was crystal clear and my riding was correct, there was no provocation and no previous altercation.
The reasons I was given were far more disappointing. Firstly, by swearing I had committed a section 5 public order offence, and a defence lawyer would seek a counter prosecution against me. I tried to counter that I was more than happy to defend myself in such a situation, and that no sensible judge or jury could ever seriously find me at fault given the context of my "offence". Let's be clear, I shouldn't have sworn, and now know to better control my feelings in future. However, there is clearly no comparison between an unprovoked, aggressive and life-threatening incident and a brief retaliatory curse. Anyone attempting to bring such a case against me would, in my view, be attempting to divert the course of justice.
The other reason given was that a defence might seek to pin blame for the incident on my road positioning at the time, and specifically that later in the video I declined to use a cycle lane that other cyclists were using, "proving" that it was safe and fit for purpose. Again I tried to counter, pointing out that I was using the correct primary position at the point of the incident, that cycle lanes are not mandatory to use and that my actions later in the video could not possibly be any sort of defence.
These protests fell on deaf ears. The officer told me she had reviewed the footage with another officer and they had reached this conclusion. It seemed clear to me that she was not particularly knowledgeable about road law or safety, and was simply sticking to a script. I don't mean this as a criticism, I don't expect every police officer to have a complete understanding of every area of law. However it was disappointing that I couldn't talk to someone with expertise in traffic incidents. At this stage, I also want to avoid inferring anything about the views of the force or individual officers - it could be the case that they were sympathetic, but that this was genuinely how the case would play out in court, with no positive result. I was told that the incident would be logged and therefore it wasn't as if the police were doing nothing, which struck me as a good way of doing nothing while pretending otherwise.
I find the point about my road positioning and cycle lanes particularly disturbing. My road positioning at the point of the overtake was correct beyond any doubt. I was holding the driest line, keeping out of the door zone of parked cars and attempting to discourage overtakes in a compromising location. I roughly calculated that I was averaging between 20 and 25mph - the speed limit for motorised traffic was 20mph at this point so I couldn't have been holding anyone up, and the driver was almost certainly speeding. I'm not sure why I should have to show that my riding was whiter than white in such a serious incident, but regardless, I was clearly not at fault in any way.
The National Standard for Cycle Training has this to say about the use of cycle lanes:
It would be disappointing under any circumstances to be told by a police officer that I should have been using the cycle lane. To be told that my decision not to use one several minutes after the incident is somehow a mitigating factor for a driver whose deliberate actions could have left me seriously injured or even killed in slightly different circumstances almost defies belief. There's a strong undercurrent of victim blaming in this line of argument: that since I was on the road, moving with the flow of traffic and positioning myself in front of motor vehicles, therefore drivers can't be held responsible for their actions around or toward me.In the UK no cycle facilities are compulsory for cyclists to use. Therefore the choice over whether to use any facilities provided should be on the basis of whether or not they will give the cyclist any advantage in terms of safety and/or access. This will be for the individual cyclist to decide. Staying in the normal flow of traffic rather than use a cycle facility is therefore a valid choice. Cycle facilities are of varying quality. The choice of whether to use facilities should always lie with the cyclist.
A few more trips to the police station
Having returned to my office and given myself time to calm down and think things through, I decided that this was simply not good enough. At this point I did two things. Firstly, I contacted the CTC (now Cycling UK) to find out if I might be able to receive any legal advice or assistance from them. Secondly I contacted the police on their non-emergency number, informing them that I intended to take the matter further, did not wish for the case to be closed and expected to be given clear and sensible reasoning for the case not being pursued. I was given the names and collar numbers of the officers who had looked at my footage, but I made it clear that I was not making an official complaint.
The following day, I received a lengthy email reply from a legal expert with the Cyclist's Defence Fund (CDF). The main thrust of this was that although there were several possible routes I could go down, the priority was to get a Notice of Intended Prosecution (NIP) served against the driver, without which no prosecution could be brought. The problems here were twofold: firstly, since I didn't have the driver's name and address, only his numberplate, the police would have to cooperate with me, even if I intended to serve it myself. Secondly, there is a 14 day deadline in which to do this in, so I would have to act fast to convince the police to take me seriously. It was to the legal expert's credit that he replied at all, since at this stage I'd been unable to supply him the footage so he took my word for it. It goes without saying that at this point, I hadn't made the footage public at all.
The following day therefore, I again presented myself to the police station to try and force the issue. I received my log number, and the lady at the desk left a note to either of the officers to contact me. This began a few days of further phone calls and station visits, being passed from one operator to another and generally running in circles. Bizarrely on one evening I was phoned a few minutes before midnight, simply to be told that I would be contacted on the morrow! Things were becoming almost slightly Kafkaesque. Up until this point, I had been polite, patient and friendly in all my interactions with the police (except for the late night phone call where I was a bit blunt, but not rude). In return they were also polite and helpful, if somewhat disorganised. Most seemed to sympathise with my situation when I explained it, although as mentioned above they also appeared surprised that I had contacted the police to report a non-collision. I wasted a lot of my own time, and was stressed and frustrated. No doubt some will see it as pestering the police, but they had failed in their duty to properly investigate a very serious incident.
If you're still reading - well done! I'm getting to the crux. I finally received a phone call, from the officer who had originally reviewed the footage (but whom I hadn't met). Unfortunately the tone of this phone call became very unfriendly indeed. I voluntarily went to the police in good faith, with evidence of someone who is a danger to other road users. The way I was spoken to was completely unacceptable so I'll go into more detail.
The officer started by telling me that he'd been through the footage again with another officer who was a cyclist himself. (Good, I'm thinking to myself, no more sad attempts to invoke cycle lanes and my decision to avoid them.) Having looked again (with an open mind presumably), he had come to exactly the same decision as before for exactly the same reasons.
He once again cited my failure to use a cycle lane when other cyclists did. I checked whether he was aware that use of cycle lanes are not mandatory. He understood, but according to his logic, they were put there for our safety and since other cyclists used it, that proved it was safe. Therefore I was simply cycling inconsiderately by not using it. The facts that I was overtaking those other cyclists, that I'm best placed to make my own decisions for my own safety, that I was travelling at or faster than the flow of traffic and that this cycle lane was several miles down the road from where the incident occurred, didn't appear to be of great importance.
Then we come to the issue of my language and gesturing... As he put it, only one of us actually committed an offence, and that was me. In the eyes of the law, there's apparently nothing wrong with displaying deliberate aggression towards vulnerable road users while operating a vehicle in close proximity to them. On this occasion, fortunately the police don't think it's in the public interest to prosecute me for my offence (actual phrase). Naturally I'm incredibly grateful for their leniency.
It seemed to me that language was being used systematically against me. The motorist's driving was "inappropriate" (I couldn't get the officer to admit it had been dangerous). Meanwhile my riding was labelled as "inconsiderate" (heedless of my attempts to point out that I was moving at the same speed as the traffic). And so what was a clear violation of my space and rights became, in the official police account, a 50/50 disagreement between two road users. The officer referred regularly to the "manner of my riding", attempting to paint a picture of me as someone riding round with no regard for anyone else. Every time I got too argumentative, he reminded me of my "offence". I felt like he was attempting to incite me into saying something that might have gotten me into trouble. And underlying the whole conversation there seemed to be a hidden threat, that if I should continue to be difficult the police might decide it was in fact in the public interest to press charges against me. For swearing under extreme duress...
Another phrase which was mentioned a lot was that the officer considered that he had a duty to "consider all the evidence provided in it's entirety". Presumably this is supposed to leave the impression that he was even-handed, open-minded and thorough in his investigation. The problem with this argument is that it makes absolutely no sense. Why does all the evidence matter? How can someone's aggressive or violent conduct be excused by events which occur in the future at which they aren't present? The absurdity is quite clear.
If my cycling that day had been whiter-than-white (by his own exacting yet completely inconsistent standards) would he then have seized my hard-drive, demanding to see all the footage I have saved of my rides, to check that I had never put a toe out of line? When it transpired that I do in fact delete most of my footage, would that be regarded as an admission of guilt? Is it now police policy to view motorists as judge, jury and executioner for cyclists who they feel may be about to commit some minor infraction of traffic law, or indeed simply who have ideas above their station? Or, from a different perspective, would they refuse to deal with a case of a stolen vehicle simply because it had been inconsiderately parked?
The other problem with this approach is that the officer appears to have missed other vital bits of information. The points at which I did show courtesy to other road users, and the fact that I was mostly travelling with or faster than the speed limit or the flow of traffic, are simply ignored in his analysis. Amusingly, he also failed to pick up on the couple of occasions where I do make genuine minor mistakes (but then safely correct these). It's hard to escape the conclusion that the officer was in fact cherry picking the footage for excuses not to take things any further. When I had the temerity to argue back he had to get a little more forceful to keep me in check.
I was tossed one bone in all of this. The driver would be sent an advisory letter, explaining that he had been recorded and reported to the police who considered his driving to be inappropriate. Realising that this was the best I was going to get, and that the longer this call went on, the more likely I was to commit some further public order offences, I left it there. [As of 27/04/2016 no record of this letter being sent exists against the log, although this doesn't necessarily indicate it wasn't sent. I should be updated shortly. Update - I was informed on 11/05/2016 that this letter was sent. This in no way vindicates the officer, it's less than a slap on the wrist. Perhaps the letter will have some positive effect. On the other hand it seems equally likely to me that the affronted driver will simply take it out on the next cyclist he sees.]
I didn't sleep much that night. Counter-arguments and witticisms chased each other through my head. The truth of course is that there was nothing I could have said that would have changed his mind or the outcome. Reason and evidence didn't work simply because he wasn't interested in those things, only in batting me off. In many ways it's not his fault, he was just a pawn used by the force to keep my evidence at arms length and avoid a fuss. To a point I even feel sorry for the officer. It must be pretty embarrassing for an experienced police officer to have to explain to a member of the public who approached them voluntarily that they were lucky they weren't getting into trouble for a bit of colourful language and a gesture in the heat of the moment.
If this sounds like a rant against the police, I'm far from alone in reaching these conclusions. The recently published report from the House of Commons Transport Committee identifies this issue:
Local campaigns and individual cyclists submitted evidence that claimed police were unwilling or unable to pursue accusations of unlawful driving where a cyclist was involved. The following is representative of these views:
“The police frequently decline to take action in instances of deliberate, dangerous, aggressive behaviour towards cyclists by drivers of motor vehicles.”
“People know they will not be caught. There is no effective policing. Even when camera footage evidence is submitted to them, in my experience, the police are more likely to present excuses for the offending driver than to take the matter further.”
A “near miss” involving a cyclist can be close to a fatal accident, and “near miss” reports involving cyclists should be considered in that light. It is clear that there is a problem with the actual and subjective safety of the roads for cyclists, as well as the perception of the likely result of reporting offences to the police. The level to which cyclists feel unsafe on the roads due to a perceived failure to enforce traffic law is at odds with the Government’s aim to promote cycling, and must be addressed.So why do the police turn such a blind eye to dangerous driving around cyclists? The answer, I believe and hope, is not due to an inherent anti-cyclist bias, but rather due to an understanding of the difficulty of securing a prosecution for dangerous or careless driving, even in cases where a collision occurred or it appears to have been deliberate. This excellent blog post, and this one, explain the issues with the wording of the law and its interpretation by the members of a jury. Jurors are regarded as experts in the standards expected of a careful and competent driver, yet most don't meet those standards (this link contains some eye opening statistics). Defence lawyers seem to have a manifold of possible lines of argument available to pursue, including character assassination of the victim. Prosecutors have an uphill struggle, even where the evidence is strong.
So giving them the benefit of the doubt, we must assume that the police are unwilling to take up these cases because they recognise the futility in doing so. Until the wording of the law is changed however, this means they are failing all road users and allowing violent, nasty bullies to get away with everything bar murder. It seems to me that the wording of the law should be sufficient motivation to press all possible cases with sufficient evidence onto the CPS in the hopes of getting a conviction and setting a new legal precedent. This isn't the easy path, but it is the right one.
The follow up
Having been failed by the police, there was still the option of pursuing a private prosecution open to me. To render this a possibility, I still needed to get an NIP served against the driver, and since the police weren't interested in helping I would need to do this myself. I now had only a week left to convince the police to release the driver's details to me, and to draft the actual notice. Having discussed the issue with the CDF legal expert, I agreed to drop this possibility. Even if I managed to get the NIP served on time, the chances of success in a court were slim and would be highly stressful and time consuming.
This blog post deals with the requirement to get an NIP served within a time limit, although it should be noted that some of the points are specific to the particular police force. Even if the reporting cyclist understands the NIP requirement, stalling and poor organisation confound the cyclist, rendering it highly unlikely to be served on time. If I were being cynical, I might be tempted to conclude that the NIP is a tool the police deliberately reserve in their arsenal to allow them to ignore cases of dangerous driving with minimal effort.
I'm at pains to stress here that my motivations in pursuing this case were positive. I was angry certainly, but I was less interested in revenge against the driver than I was in getting an obviously dangerous driver off the road. Understanding the difficulty in the courts, I feel it is right to pursue every similar case in the hopes of setting a new precedent.
With this in mind, there is a further option open to me, which is to pursue a complaint against the officer directly through the IPCC. Once again this would not simply be an act of retribution but it could help to shape police policy in future cases. Even if the complaint were not upheld, the possibility of further complaints might weigh in to the decision on how seriously to treat future cases. As mentioned above, I don't wholly blame the officer and indeed I feel some level of pity for him, but given the tone of the phone call my sympathy is limited. I have done him a favour by refusing to identify him here, and even if a complaint against him is upheld it would be unlikely to result in any major disciplinary action. Therefore I am strongly considering pursuing an IPCC complaint.
So what have I learnt from all this? In truth not a lot, but a few lessons come out of this. In future I will attempt not to swear or make any display of my emotions, not because it's wrong, but because it's easy ammunition for any officer trying to find excuses. It is probably worth making slightly more effort to directly identify the driver for the video footage, something which I had the opportunity to do in this case but declined.
My riding style will not change, because I know what is safest for me, and the CDF legal expert has confirmed that my cycling is at a safe standard. My cycling isn't perfect in the footage, and indeed this is part of the reason I record my rides, to see if I failed to anticipate anything or could have approached any situation better. Perfect behaviour should never be a pre-requisite for a case against anyone else to be valid. Nor indeed should it be a pre-requisite for your human rights to be respected.
I cycle because it is the cheapest, fastest and most environmentally friendly way around a city. It's great exercise, causes no congestion, and poses far less harm to the public than other forms of transportation. More to the point, it's great fun. I'm not asking for much, only roads that are safe to cycle on and a police force that treats dangerous driving as the serious crime that it plainly is. In a country where 50,000 people a year are dying prematurely due to air pollution and there is increasing pressure on the NHS due to inactivity, the incentives to promote cycling as a mode of transport have surely never been greater.
As an amusing aside, a couple of weeks after uploading the footage to YouTube, I was surprised to come across this thread discussing my footage. It's reassuring that condemnation of the driver was almost unanimous. I've responded to the reasonable criticisms of my cycling. It's a powerful reminder of the power of social media, and I wonder if the driver is aware that a small corner of the internet is dedicated to denouncing him. If he had been driving a commercial vehicle adorned with contact details, no doubt his employer would already have received a barrage of emails. My mind is still split over the usefulness and indeed ethics of this sort of approach to policing road safety; however when the police so obviously fail in their duty to promote road safety, they are indirectly encouraging this sort of keyboard vigilantism.
And finally, in case you were desperate to see me recklessly ignoring cycle lanes and holding the primary position, here's the full footage of my ride as submitted to the police (slightly cut short to hit the 15 minute time limit).