According to section 1 of the Road Traffic Act 1988:

A person who causes the death of another person by driving a mechanically propelled vehicle dangerously on a road or other public place is guilty of an offence.

This definition ultimately meant that Charlie Alliston avoided a more serious sentence after he collided with a pedestrian while riding his bicycle in central London. That pedestrian, Kim Briggs, later died of her injuries but that was not enough to convince a jury that Alliston should be convicted of manslaughter. Instead he was convicted on a lesser charge of “wanton and furious driving” for which he will be sentenced next month but the maximum sentence available is two years.

This has provoked a debate, led by Briggs’ widower, about whether there should be a change in the law to include an offence of death by dangerous cycling but how would this look and work?

In the first instance there would presumably not be a new law as such but rather an amendment to the Road Traffic Act 1988 to incorporate cycling or at least remove the requirement for a vehicle to be mechanically propelled.

Breaking down the actus reus would also not be too difficult and could very much follow the current law in relation to driving. Causing death is self-explanatory but perhaps the definition of ‘dangerous’ might throw up some issues. Presently driving is measured against the standard of a competent and careful driver and this objective test can be looked at with reference to the highway code and the associated legislation. The truth is that there is much less guidance for cyclists and furthermore what is considered to be competent and careful can vary based on the circumstances; cycling at full speed through a green light may appear to be fair enough but is that best practice in London where pedestrians are liable to walk out into the road because they are not paying attention?

Even the alternative definition for dangerous in this context may prove to not be fully suitable. When it comes to cars it may be obvious for a careful and competent driver that a vehicle in a give state is or is not dangerous but can the same be said about bicycles? Returning briefly to the case at hand Alliston admitted at the trial that he did not realise the fixed-gear bicycle he was riding with no front brake was illegal and before this news story broke many other cyclists who do ride around safely may also not have realised this. Indeed it is reported that many couriers use exactly this type of bike when travelling around the capital. The actual law on the subject is hidden away in the Pedal Cycle (Construction and Use) Regulations 1983 but is clearly not policed with the same level of rigour that is given to cars.

Once there are doubts about how objective an objective test can really be then it adds a level of doubt to the law and how it is to be applied by juries. This is not to say that there should not be a law of death by dangerous cycling but only that it cannot exist in isolation if a true objective standard is to be achieved.

The mens rea of any new offence of death by dangerous cycling would also introduce an interesting question for lawmakers. In many countries such as Australia, Canada and Ireland there is quite simply no mens rea at all and the offence is strict liability. This approach makes a lot of sense given how difficult it is to prove any intent outside of the attaining circumstances of the incident. If, however, we are to continue to directly replicate the current offence of death by dangerous driving then there would be a mens rea requirement. Previously this was based on a requirement for recklessness but because a subjective element was too onerous on the prosecution this was reduced to negligence and this is measured to an objective standard as well. There is a good argument for removing the mens rea element altogether as this is not uncommon amongst road offences (think about speeding) and it would be good to see this become part of any wider discussion.

Overall the prospect of a new offence is interesting and raises some serious questions about the state of the current law generally. A single change to the Road Traffic Act 1988 will not be enough and there needs to be stronger regulation of cycling more generally if the aim is to prevent future deaths. It is illegal, for example, to ride a bicycle on the pavement but this is rarely enforced and presents a real danger to pedestrians.