Petition Change the law to protect all vulnerable road users - Introduce Freddie’s Law

Our 14yr old son Freddie was left for dead following an horrific hit and run cycle collision. The driver drove on and later used a little known loophole in the law to evade justice.

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This is just one example of a long history of road traffic collisions where, under the current Jersey law, the vulnerable road user has had little to no protection which often allows perpetrators to avoid any accountability and continue to drive carefree on our island roads. This loophole also undermines the abilities of the Police to conduct proper investigations. The States Assembly should urgently commission a review of the Laws governing the rights and protections of all vulnerable road users with a view to making it safer to cycle, walk and horse ride on Jersey’s roads.

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Ministers responded

This response was given on 10 February 2021

The built environment, legislation, education and publicity all contribute to improving road safety. The STP will include consideration for how new liability laws could encourage change .

It is always traumatic when someone is injured on our roads, and my thoughts are with Freddie and his family.

The purpose of the petition is to seek to initiate a review of the Jersey’s laws “governing the rights and protections of all vulnerable road users with a view to making it safer to cycle, walk and horse ride on Jersey’s roads”.

There is already work underway to try to make the roads safer for all users, including
• road improvements to create space for cyclists
• the ensure consistency in speed limits
• the promotion of consideration for other road users and the prioritisation of road users who are not in cars
• work to encourage people to use active travel instead of cars .

I have set out this below, yet this work will hopefully make it safer for cyclists, walkers and horse riders, and it may reduce the number and severity of collisions, but it will not stop them.

The law serves a number of functions in helping to make road use safer for everyone, and the applicable laws in this case fall into two categories: criminal and civil. The purpose of these two categories are distinct and it is important to be clear on the differences before discussing what I interpret as the loophole mentioned in the petition.

Criminal law and civil law:
Criminal law deals with crime and criminal offences. It aims to deter and punish conduct which is perceived as threatening, harmful or endangering to the public, its property or moral welfare.

Jersey’s Attorney-General is the prosecuting authority for criminal cases. The criminal justice system acts with dual focus:
- criminal laws are used to control society’s actions
- they are in place to help citizens understand the effects of their actions by way of the punishment, deterrent and rehabilitation of offenders.

In criminal law, the prosecution must prove guilt beyond a reasonable doubt and the outcome of a completed criminal trial process will be a guilty or not guilty verdict.

Civil law deals with disputes between individuals or organisations, and are therefore brought by private parties.

Where a claim is brought by one person against another, the principle that applies is ‘he who asserts must prove’. For example, where one person brings a claim in negligence, that person must prove (1) that a duty of care is owed by the other party (2) that there has been a breach of the duty owed by that other party, and (3) that the damage suffered by that person was as a result of the breach of the duty of care.

Civil courts assess claims against the balance of probability standard, meaning that the court determines whether it is satisfied, on the evidence, the occurrence of the event was more likely than not. It is therefore a much lower bar than the beyond reasonable doubt of criminal law.

The results of the civil court process is a finding of liability or a finding of no liability. The remedy in most successful civil claims will be financial damages.

The situation under criminal law – Road Traffic Law (Jersey) 1956:
While not explicit in the petition, there have been statements made surrounding the petition in local media that one route to achieve this would be through the adoption of presumed liability legislation.

This Ministerial response considers these matters in the round and sets out the work that the Government of Jersey is undertaking in this area.

The Road Traffic Law (Jersey) 1956, sets out criminal offences, including what is commonly referred to as failing to stop.

In response to a question in the States Chamber on the 19 January 2020, the Solicitor General said that to incorporate presumed liability into criminal law would run contrary to the fundamental principle of criminal justice that a defendant is presumed innocent until proven guilty. This centuries-old principle is enshrined and confirmed in the European Convention on Human Rights, which is given effect in Jersey by virtue of the Human Rights (Jersey) Law 2000.

While the UK and Jersey road traffic laws are worded differently, they place the same duties on drivers and in effect, provide for the same offences and defences.

Given the requirement to adhere to the ECHR, there is no reason to believe that Jersey’s current legislation is deficient. However, when the law is next revised I will ask for consideration to be given to amending the wording to more closely reflect the UK’s. This would not alter the principles of the offences or defences.

The situation under civil law:
In some jurisdictions (but not Jersey), presumed liability means that, where a more vulnerable road user suffers injury or loss of life in a road accident, the less vulnerable road user is presumed to be to blame, unless they can prove otherwise.

The concept of presumed liability is not used in criminal cases.

Presumed liability for road traffic collisions is not part of Jersey or UK law, and any injured party seeking damages would have to prove that the other party was to blame.

What we want to do to make roads safer:

The Sustainable Transport Policy (STP) seeks to promote walking and cycling in order to reduce the Island’s carbon footprint and to support public health by encouraging active lifestyles.

The STP uses a wide range of initiatives, including changing the built environment and legislation, as well as education and publicity, to encourage people to change their modes of transport. Among the barriers that people have to change are the concerns that people have for their and their family’s safety when cycling on roads.

The success of the policy will depend on addressing this and other concerns. It means that we are committed to reviewing the law, and consulting the public, in order to make the strategic choices needed encourage changes in behaviour.

The STP will include consideration for how new liability laws could encourage change. That will be as part of a balanced package of measures to ensure that increasing active travel is matched by improved safety and protection for vulnerable roads users, such as cyclists.

It should be remembered that cycling is relatively safe. There is inherent risk with all transport, including cycling, but it also has undisputed health benefits. I hope that Freddie makes a full recovery and that the package of measures I have set out make road use safer for everyone.
(lhttps://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/757756/Cycling_and_walking_for_individual_and_population_health_benefits.pdf ).

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