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Quirky 1835 law means bicycles can’t be ridden on pavements but police tend not to nab cars which park on pavements

It’s ironic, but the law that states cyclists shouldn’t ride on pavements is the same law that could be used to prevent motorists from parking on pavements. Which is the greater social ill? If you believe vitriolic letters in local and national newspapers you would think it’s the former. Parking on infrastructure meant for pedestrians, two wheels or more over the kerb, is now so endemic it’s perceived to be perfectly normal and therefore correct.

Those who rant at cyclists for pavement riding tend not to rant at motorists committing the exact some offence. The offence was introduced in 1835. While all other parts of the 1835 Highway Act have been either amended or repealed, clause 72 remains in force. It’s a juicy one:

“If any person shall wilfully ride upon any footpath or causeway by the side of any road made or set apart for the use or accommodation of foot passengers; or shall wilfully lead or drive any horse, ass, sheep, mule, swine, or cattle or carriage of any description, or any truck or sledge, upon any such footpath or causeway; or shall tether any horse, ass, mule, swine, or cattle, on any highway, so as to suffer or permit the tethered animal to be thereon.”

The key phrase is “carriage of any description”. That is a cover-all that is still in force. Motor cars were classed as carriages in the 1903 Motor Car Act; bicycles were so classified in 1888. The operators of bicycles and cars have the same road rights, that is, being able to pass and repass over the public highway. Stopping for any length of time is a grey area, with a mishmash of laws, and parking of a carriage is also caught up in a swirl of conflicting legislation.

However, clause 72 of the 1835 Highway Act is clear: carriages must not “ride upon any footpath or causeway by the side of any road.”

The 1835 act didn’t mention bicycles (pedal propelled bikes weren’t developed until the late 1860s) and so, at first, bicycles had no legal status, no legal right to be on either roads or footpaths. Since its foundation in 1878, the Cyclists’ Touring Club has fought tooth and nail to secure highway rights for cyclists.

The CTC was founded to:

“secure a fair and equitable administration of Justice as regards the right of bicyclists to the public roads. To watch the course of any legislative proposals in Parliament or elsewhere affecting the interests of the bicycling public, and to make such representations on the subject as the occasion may demand.”

The council of the CTC wanted cyclists to be seen as responsible citizens and it invoked the “golden rule”, the do-unto-others prescription:

“[We] specially urge on every individual rider the desirability of extending to all that courtesy which be would have shown to himself. The present prejudice against bicycling has been partly caused (and cannot but be fostered and increased) by a disregard to the feelings of other passengers on the road; and although the right of the bicyclist to the free use of the public highway should be at all times maintained, any needless altercation should be studiously avoided.”

Cyclists were the newest user of the public highway and could easily be banned, nationally as well as locally.

In 1878, the year when the CTC was founded, the case of Taylor v. Goodwin was pivotal. Mr. Justice Mellor and Mr. Justice Lush, sitting in banco in the Queen’s Bench Division, held that bicyclists were liable to the pains and penalties imposed by the 1835 Highway Act.

The case had been brought against a Mr Taylor who had been charged for “riding furiously” down Muswell Hill in London, knocking down a pedestrian in the process. His defence argued that as a bicycle wasn’t defined as a carriage in the 1835 Act there was no case to answer. The plea was disregarded and Taylor was fined. The case was appealed and justices Mellor and Lush ruled that bicycles were henceforth to be considered carriages under the law.

This was bad for Taylor, good for cyclists in general. It meant bicycles, for the first time, had a legal status. Described as carriages, they had full legal rights to pass and repass along highways (and highways are not just ‘roads’, they’re carriageways, footpaths, bridleways, everything).

The legal definition of bicycles as legitimate highway users was further strengthened in 1888. The Local Government Bill of this year created County Councils. The Cyclists’ Touring Club formed a committee to oversee the progress of this bill through Parliament. It was feared that if County Councils were given powers to create their own bye-laws such bye-laws would be used to prohibit bicycles. The CTC had political clout: it asked one of its members – who just so happened to be an MP – to lodge an amendment to the Bill. Sir John Donnington “won a brilliant victory for the Club,” wrote James Lightwood, the author of a 1928 history of the CTC.

When the Act – with the critical amendment – was duly passed, a writer in the Law Journal said the Local Government Act of 1888 was the “Magna Carta de Bicyclis.”

Lightwood said:

“As a result there disappeared…every enactment which gave to Courts of Sessions, Municipal Corporations and similar bodies in England and Wales power to resist and hamper the movements of cyclists as they might think fit. The new order of things established once and for all the status of the cycle.”

The status of a bicycle as a “carriage” is an important legal one but the terminology did not follow through to popular use, as shown by the words of Henry Dacre’s music hall song Daisy Bell which emphasises that carriages and bicycles are two different things:

It won’t be a stylish marriage,
I can’t afford a carriage,
But you’ll look sweet upon the seat
Of a bicycle made for two.

Nevertheless, the legal definition of bicycles as carriages allowed cycling to prosper. Without a clearly defined and nationwide legal status, it would have been easier for localities to ban the use of bicycles.

Section 72 Highways Act 1835 is used in the current Highway Code. Rule 145 states:

“You MUST NOT drive on or over a pavement, footpath or bridleway except to gain lawful access to property, or in the case of an emergency.”

Since January 1999 a fixed penalty notice can be issued with the offender given a ticket with fine and points attached unless they appeal in which case it goes to court.

This regulation tends not to be used, especially if a police officer doesn’t see the driver actually driving on to the pavement. A police officer may have “reasonable grounds” to believe the motorist drove on the pavement – it would be up to the courts to decide whether a driver was telling the truth should he claim his car was placed on the pavement with the use of a crane. However, unlike for a speeding offence a police officer has no power, in relation to driving on the pavement, to insist that the keeper of a vehicle tells of who was driving at any particular time. This particular quirk of the law could be remedied by politicians in an instant, but MPs – despite many promises – have over the years repeatedly failed to give the police this simple expedient. For this and other reasons the police generally don’t enforce this particular law and tend to refer complainants to local authority parking enforcement officers, who have few mechanisms in which to tackle the problem.

Now, back to that crane. If there was one knocking around the police officer should use it to lift cars off the pavement, ship them off to the pound and charge motorists for the process. Then perhaps our pavements could be freed of private property obstructing the public highway. But don’t stand still: highways, such as pavements, are there for passage, to be used to pass and repass, and obstruction of the highway is an offence. An offence only ever rarely enforced, of course, which is why motorists feel free to dump their motor vehicles on the carriageway.

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