Cycling prosecutions unlikely under common law, Faculty suggests

 

CYCLISTS in Scotland who cause death or serious injury to others could in theory be prosecuted under common law, but it is unlikely, the Faculty has suggested in a submission to the Department for Transport.

The Department is proposing new cycling offences, such as causing death or serious injury by dangerous cycling, and causing death or serious injury by careless or inconsiderate cycling.

In response to a consultation on the proposals, the Faculty stressed that whether there should be such offences was ultimately a matter of policy, and it did not wish to comment on policy issues.

The Department has been advised that there is a gap in the law in England and Wales, and the Faculty restricted its comments to a question on how existing laws applied in Scotland. 

“We agree that it may be possible to use, in certain circumstances, the common law offences of culpable homicide or culpable and reckless conduct to prosecute cyclists who cause death or serious injury to others,” the Faculty stated.

“We note, however, that this applies equally to drivers of motor vehicles. It is the experience of Faculty that, in relation to driving offences (whether involving a fatal incident or not), the Crown invariably choose to libel charges under the Road Traffic Act 1988 rather than at common law. It may be that this is a result of difficulties faced by the Crown in proving the necessary mens rea on the part of the accused to bring home a conviction of either of the common law offences.

“We consider that these difficulties would also apply in relation to the prosecution of cyclists for either culpable homicide or culpable and reckless conduct. It seems likely that, were proposed cycling offences drafted in a similar manner to those currently provided for under the Road Traffic Act 1988, the Crown would choose to libel charges under the statutory provisions.”