"Presuming cyclists' innocence is not compatible with Jersey law"

Wednesday 20 January 2021

Jersey's Solicitor General has said that changing the law to presume that drivers who hit cyclists would be liable unless proven otherwise is incompatible with existing legal convention.

In the light of one family’s campaign to introduce ‘Freddie’s Law’ in Jersey – a mission to close a perceived loophole in the law named after their 14-year-old son, who was knocked off his bicycle last March – there have also been calls for the concept of ‘presumed liability’ to be introduced in the island.

In most European countries, there is a scale of vulnerability on roads, so if a pedestrian is hit by a bike, a bike by a car, a car by a lorry etc, the driver of the larger vehicle is immediately thought to be at liable and must prove they weren’t at fault.

However, the Solicitor General rejected this approach in the States Assembly on Tuesday, when asked if presumed liability featured in Jersey law.     

Pictured: Solicitor General Matthew Jowitt.

Matthew Jowitt said: “The short answer is that presumed liability is not part of Jersey law. It is a civil law concept that exists in some jurisdictions, which provides that where a more vulnerable road user suffers injury or loss of life in a road accident, then the less vulnerable road user is presumed to be to blame, unless he can prove otherwise.

“It is a civil law concept; not a criminal law concept – that means it is something that is intended to make it easier for a person injured in a road accident to sue the other person for damages.

“It is not a concept used in criminal cases to make it easier for the police to investigate offences or to make it easier to convict people of offences.

“Presumed liability is not part of the civil law of Jersey; if I am a pedestrian, for example, injured by a motorist and I sue the motorist for damages, it’s for me to prove that he was to blame."

Pictured: In Holland, there is a presumption that cyclists are the innocent party if they are hit by anything larger, such as a motorbike or car.

He continued: “It is not part of Jersey criminal law either; the statue which governs the manner of people’s driving is the Road Traffic Law 1956. 

“That law creates a range of road traffic offences, among them failing to stop following an accident. For all of those offences, the burden of proving they were innocent rests with the prosecution alone to the criminal standard, which is ‘sure beyond all reasonable doubt’. 

“There is no concept with criminal offences of presumed liability, which would amount to saying to the defendant you are presumed to be guilty unless you can prove you are innocent. 

“That concept, if it was imported into our criminal law, would not only run contrary to hundreds of years of the approach that it is for the prosecution to prove a charge, but it is likely that is would be wholly incompatible with Article 6 of the Convention on Human Rights, which is the fair trial right that mandates that 'everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law'."

Pictured: Freddie Dentskevich had to have multiple operations after being knocked off his bike in St Martin last March.

Freddie’s mother, Joanna Dentskevich, said that, if presumed liability couldn’t work in Jersey, then an alternative needed to be found to make the Island’s roads safer.

“I think a full review of law needs to take place in order it can be updated to ensure road users , especially the more vulnerable, are appropriately protected. 

“There are many examples from different countries so it would be beneficial to ensure if any change were to occur that it is right for Jersey. If it is not thought presumed liability would work here, it would be interesting to know what the Attorney General thinks would work.”

Since Mrs Dentskevich went public with her story – after hearing that the driver who badly injured her son would not face prosecution because it had been deemed “an unfortunate accident” – she said that the family had been overwhelmed by the support received.

An online petition calling for a review of the law to better protect vulnerable road users has been signed by more than 3,300 people. If it reaches 5,000 signatures, it will be considered for debate in the States Assembly.

“So many people have come forward to say they have had a similar experience of the law failing to protect them after they were knocked down,” she said. “Freddie’s dreadful experience seems to have given them a voice. 

“The law is deficient and, at the very least, we need to close the loophole that if someone can prove that they had no intention to evade prosecution then they cannot be prosecuted, even if they failed to stop after hitting someone.”

After Freddie’s investigation was dropped, after two reviews, Mrs Dentskevich was told that the driver’s failure to stop itself did not constitute a crime and she could not be charged with dangerous driving because no one had witnessed the actual crash.

In a statement, the Law Officers’ Department said: “After careful consideration, we deemed this to be an unfortunate accident and we don’t believe it would be appropriate, necessary, in the spirit of the law, or proportionate to prosecute either party in this case.”