'Is this really manslaughter? Really?'

“Is this really manslaughter? Really?”, asked defence counsel in the trial of Charlie Alliston last week (23 August). After three days of deliberations, a majority of the jury found Alliston not guilty of the manslaughter of Kim Briggs, with whom he collided while riding his fixed-wheel track bike in Shoreditch, East London. Alliston was found guilty of the lesser charge of causing injury by wanton and furious driving. Mark Wyeth QC’s question is not simply a flair of advocate’s rhetoric, it needed to be asked.

The prosecution of Alliston highlights the significantly different legal regimes applicable to cyclists and motorists involved in fatal and/or catastrophically injurious incidents. In recent years, similar cases have not resulted in a prosecution for manslaughter, but rather the lesser charge of wanton and furious driving under section 35 of the Offences Against the Person Act 1861 (OAPA).

For example, in 2014 Darryl Gittoes killed a 73-year old pedestrian while cycling in a pedestrianised area on a brake-less fixed-wheel bike. In 2008, Darren Hall killed an 84-year old pedestrian cycling recklessly on a downhill pavement. And again in 2007, Robert Lambert struck and killed an 84-year old woman who was waiting to board an approaching bus.

In each of these three cases, the cyclist was charged with – and pleaded guilty to – section 35 OAPA. The maximum prison sentence for the offence is just two years. The prison sentences ranged from seven to 12 months, each of which was upheld on appeal. Despite the apparent similarity of Gittoes, Hall, and Lambert, Charlie Alliston faced a manslaughter charge in addition to the section 35 offence. So, what is different this time?

To convict a defendant of unlawful act manslaughter, the prosecution must prove that:

1. An illegal act was committed; and

2. That act was dangerous; and

3. The act caused the death of the victim.

The prosecution focused on the illegal act that the defendant’s bike did not have a front brake installed as required by law. Subsequently, the prosecution had to prove that the collision would not have occurred had Alliston had a front brake installed.

Section 35 is used predominantly in such cases because there is no equivalent legislation for cyclists to section 1 or section 2A of the Road Traffic Act 1988 (RTA) – causing death by dangerous driving and causing death by careless driving, respectively. Remarkably, between 2011 and 2015, there were 445 collisions between cyclists and pedestrians annually, almost 22 per cent of which led to the death or serious injury of the pedestrian.

The unprecedented charging decision therefore appears to have served two purposes. First, it sent a firm message that cyclists are not above the law. Second, the charge of manslaughter provided the sentencing judge with a significantly wider discretion as to the appropriate sentence to hand down in the event of a conviction.

In Lambert, Hall, and Gittoes, the sentencing judge deemed it necessary to start the sentencing exercise at the upper end of the two-year limit, with mitigation and credit for early pleas duly reducing the sentence to be served.

While it is not to be said that manslaughter should never be a charging option for a prosecutor against a cyclist, there are more elegant solutions to achieve a just outcome in future cases. Alliston’s case should provide legislators with the impetus to consider greater parity between motorists and cyclists involved in road offences. Two leading options are available to this end:

• Sentences for section 35 OAPA could be brought in line with those for causing serious injury by dangerous driving; or

• New offences could be introduced to apply to cyclists mirroring those in the RTA.

These options could provide prosecutors with less reason to push for a manslaughter charge in cases where a cyclist causes the death of another road user, something the RTA has already achieved for drivers.

Charlie Alliston may serve as a cautionary tale to cyclists of the need for utmost care on the roads, in particular vis-à-vis other vulnerable road users. But ultimately, the jury’s finding of ‘not guilty’ of manslaughter in this case should serve as a reminder to prosecutors of the value of asking themselves the question: “Is this really manslaughter? Really?”

Peter Bowles is a paralegal at Corker Binning