Wednesday, 15 April 2015

Team Townend Challenge 2015

On Saturday I will be repeating the ride I have done for the past two years in memory of Christian and Niggy Townend, who were so tragically killed in December 2010 when a coach drove into them whilst they were out riding in the Lake District.
Since I last did this ride just one year ago I have been dismayed yet again at the number of occasions when appropriate charges have not been brought against those who have killed cyclists or, if brought, have not been successfully prosecuted.
Roadpeace is a brilliant charity founded by bereaved relatives which works hard for road crash victims and campaigns for justice.
I know money is tight and I have already urged many of you to donate to the Cyclist Defence Fund to right some of the more obvious wrongs.
However with the prospect of a new Parliament and some new MPs it is more than ever vital that we support the work of Roadpeace.  Politicians are, for the most part, human and will be moved by the approaches made to them on behalf of their bereaved constituents.
Just to ensure that I find the ride challenging enough to merit some support I will ride it twice, once in each direction and once for each of the two brothers we are remembering.
Putting my own money where my mouth is I shall match donations up to £300, so doubling the value of your contribution to Roadpeace.
My fundraising page is here

Thursday, 5 February 2015

Criminal Prosecutions arising from Road Traffic Collisions

Yesterday the 'watchdogs' for both the CPS and the Police produced a report following their joint inspection of the investigation and prosecution of fatal road traffic incidents.  I gave a short interview to the BBC about this report which can be seen here:



Having naturally read the report before talking about it, there is more I would have wished to say had time been available.

The report is of course welcome in that it pulls no punches in demanding a better standard of decision making and communication with families following fatal road traffic collisions.  Indeed I would add that a better standard is also required in non-fatal collisions and even in non collision incidents too, but it makes sense to start at the top.  If that cannot be got right there is little hope for other cases.

Having said that I found the report disappointing in a number of respects.  There appeared to be a degree of complacency about the drop in casualty rates without a recognition first that this drop is much lower for cyclists than it is is for other classes of road user and second that the number of people seriously injured is stubbornly high.  This suggests that the recorded improvements in fatalities are due far more to high quality NHS trauma teams and less to any improvement in driver behaviour.  Given the report's acceptance that the number of fatalities  of cyclists 'has attracted much media attention', it is very disappointing that limitations in data are said to have prevented investigating the way in which the deaths of cyclists are treated compared to other road users.  This is a great shame and I hope their recommendation about improving monitoring and analysis of data is followed and permits the public and charities, as well as watchdogs, to see what differences there are.  After all we are all given every encouragement by the State to cycle and protection from the agencies of the State seems the very least we should be entitled to expect in return.

There is, however, no evidence from the report that the Inspectors felt the status of the victim as a vulnerable road user to be relevant to the way in which investigations and prosecutions should be handled.

As it was, only 2 of the 72 cases investigated in this report involved cyclists.  More (21) involved pedestrians but the Inspectors were critical of overcharging (yes, overcharging) in 4 of those cases that involved running down a pedestrian at night because prosecutors and police 'imposed an unrealistic standard of driving on the suspects in these cases'.    I do not of course know the details of these cases but the fact that the Inspectors said that of all 4 cases involving pedestrians at night leaves me very uneasy about their approach to vulnerable road users.

Further the Inspectors criticised the CPS prosecutor who oversaw the fatal cases in his area (and so seems to have been the rare example of a specialist) for encouraging the police to submit to him all road traffic cases involving a fatality where there was a surviving third party.  As I said in my interview, it seems eminently sensible to have a specialist prosecutor look at cases that the police are inclined to dismiss with 'NFA', at the very least where the victim is a vulnerable road user.   The sad case of Michael Mason epitomises what can go wrong if this does not occur.  This criticised prosecutor was in my view exhibiting good practice which the Inspectors ought to have recommended be followed elsewhere.

So there is more condemnation of over than of undercharging in the report.  Which is odd since of the number of cases investigated (72) it appears from the tables that 60 cases resulted in charges of which (it seems) 49 were taken to trial and there were 44 convictions.  These figures are not remotely consistent with overcharging.  The DPP was being given a grilling on Radio 4 this morning over the decision to pursue a FGM case.  I pass no comment on the wisdom of that decision, but she was right to point out that the test for a prosecution is not the same as a test for a conviction.  However in traffic cases (alone) it seems that guilt must be as plain as a pike-staff before a prosecution is ventured.

Ultimately it is outcomes that matter and I fear this report has lost an opportunity to stiffen the resolve of the police and CPS to ensure that dangerous and careless drivers (particularly those that drive dangerously or carelessly in the vicinity of vulnerable road users) are made to account for their conduct.

Conversely I should add that performance is patchy by area.  I have encountered traffic officers and CPS prosecutors who really are committed to doing their utmost to make the roads safer for us.  I am not sure this report gives those delivering best practice sufficient encouragement.

Finally there is perhaps an irony that this report was produced on the same day that Transport for London approved the N-S and E-W Cycle Super Highways in London.  I urge that, great though that victory is, we do not let it detract from the importance of deterring bad driving.  We have a very long way to go before we can just not use the roads if we do not like the quality of driving encountered there.

Thursday, 11 December 2014

Inquest into death of Michael Mason

I do not normally comment upon cases in which I am involved but this one is exceptional and I shall confine myself to (relatively) neutral observation upon evidence given in a Court open to the public.

Mr Mason was run down from behind by a Nissan car as he rode his bike North up Regent Street, \north of \Oxford Circus and near its junction (on the other side of the road) with Little Portland Street.  The collision occurred at around 6.20 pm on 25th February.  Sadly Mr Mason died of his injuries on 14th March.

At the outset the Coroner (to his considerable credit) asked his officer to read out a moving tribute to Michael Mason written by his daughter Anna Tatton-Brown.  The tribute is set out here on Ross Lydall's blog

The Coroner then asked Mr Mason's daughter to give some evidence about his long experience riding bicycles.

Witness evidence and CCTV evidence was less than entirely clear but left no doubt that no witness aside from the Nissan driver failed to see Mr Mason on his bicycle.  The evidence was quite clear that he had the required lights including a brightly flashing rear light fixed above a red reflector which would reflect back light from car headlights.  The evidence was also clear that the area (as one might expect) was well lit by street lights.  The CCTV footage did not cover the immediate location of the collision.

The scene in daylight and in different traffic conditions is shown on google thus



The fatal collision occurred just south and west of the traffic island in the photograph.  you are looking North and you have to imagine the yellow line is not there.  The bus stop has apparently moved as it was further North alongside the pedestrian island at the time of the collision.

Although some witnesses queried and offered explanations as to why Mr Mason was riding towards the centre of the road, the police investigator had no difficulty in agreeing that Mr Mason had every right to be there for any number of reasons and there is no possible criticism of his position in the road.

The collision investigator also gave evidence that the physical evidence on the car and the bicycle made it clear that this was a 'linear' collision with the bicycle and the car pointing in the same direction at the moment of impact. This ruled out any swerving immediately before the collision.Further the rear tyre left a mark and dent mid way between the centre line of the car and its offside.  That is to say right in front of the position where the driver was seated.

The driver was commuting home in Hertfordshire from her work at a hairdresser's salon in central London.  She was driving a 'motability' car owned by a disabled friend.  She gave evidence consistent with her accounts to the police that she did not see Mr Mason or his bicycle at any time before the collision.  She was travelling at somewhere between 20 and 30 mph and did not brake before impact.  She carried on and parked 30 metres up the road before returning to the realisation she had hit a cyclist.  In answer to a question which she was warned that she need not answer she accepted that if the cyclist was there (which from the physical evidence he unquestionably was) she should have seen him.

The driver was asked questions about her eye-sight.  She passed the police's vision test (reading a numberplate) at the scene at night using her distance vision spectacles.  She kept about her person a further pair of spectacles for reading and was adamant that at the time of the collision she was wearing the distance vision spectacles used to demonstrate acceptable vision to the police.

A detective from the Serious Collisions Investigation Unit confirmed to the Coroner that there were no criminal proceedings taken against the driver and that decision had been taken by the Metropolitan Police without reference to the CPS.

The Coroner returned a finding of accidental death and declined an invitation to consider a Prevention of Future Death Report relating to a default 20 mph speed limit.  He observed that when the Met Police collision investigator was invited to consider whether a 20 mph speed limit would save lives he regarded such a notion as speculative.  He commented that Mr Mason had not been wearing hi-viz or a helmet but did not go so far as to suggest that either would have made any difference.  (Indeed he could not have suggested any causal relevance as there was absolutely no evidence of such).

I have only included reference to that which came out in Court and have not covered everything but this should be sufficient to give a reasonable impression of the evidence and the decisions taken.

Friday, 19 September 2014

Suspension of my twitter account

To let you all know my twitter account has been suspended at the request of @dragonducatis.
I have asked twitter to reinstate it.

Wednesday, 10 September 2014

When is a law not a law? When no-one troubles to bring it into force.

In July 2006, Kelly Woodward, died when the car in which she was travelling as a rear seat passenger was driven into a tree.  The driver, Andrew Burrell, was convicted of causing her death by dangerous driving and of driving over the alcohol limit.  He was sentenced so leniently that the Court of Appeal intervened imposing a 4 1/2 year prison sentence and a 5 year driving ban.
Kelly's family were nonetheless dismayed to discover that much of the ban would pass whilst Burrell was behind bars and they campaigned tirelessly for a change in the law so that a driving ban would start when an offender was released from any prison sentence imposed in respect of the same offence.  She handed in a petition to Downing Street (then occupied by Tony Blair) and enlisted the support of Jack Straw (then Lord Chancellor/Justice Secretary).
I understand that Kelly's family were invited to the House of Commons Gallery to watch the passage through Parliament of the Coroners and Justice Act 2009 which received royal assent on 12th November 2009.
Section 137 of that Act provides that Schedule 16 makes provision about the extension of disqualification from driving in certain circumstances.  Schedule 16 in turn amends The Road Traffic Offenders Act 1988 by introducing a new "s35A Extension of disqualification where custodial sentence also imposed" which in rather convoluted language provides for the period of disqualification to be increased by (broadly) half the prison term which I take to be the period of imprisonment that the offender could be anticipated to actually serve in prison.  (Quite why it does not provide more simply for the period of disqualification to commence on the day of release I do not know but I am not a parliamentary draughtsman, nor even a criminal lawyer).
HOWEVER section 182 of the same Act provides that certain sections come into force when the Act is passed; that certain other provisions come into force 2 months after the passing of the Act; that more other provisions come into force on 1st January 2010; that yet further provisions come into force on such day that the Lord Chancellor may by order appoint and the remaining provisions (including section 137 as it has not been specified elsewhere) come into force on such day as the Secretary of State may by order appoint.
A general election intervened in May 2010 when the Secretary of State had still not appointed a date bringing section 137 into force.
Incidentally the term 'the Secretary of State' under the Interpretation Act 1978 means any one of 'Her Majesty's Principal Secretaries of State' so in practical terms means the Government.
Now five years on, it seems fairly clear that the Government is not going to appoint a date for the coming into force of section 137.  This is not self-evidently a party political matter.  More likely it is simply a personality matter.  Jack Straw backed this law but his influence with government ended in May 2010 and he perhaps had other things on his mind in the dying weeks of the Brown administration.
It does though appear at best unfortunate that a change in the law, hard fought for by Kelly's family, has come to nothing for the want of a Secretary of State's signature on a commencement order.

Tuesday, 2 September 2014

Further Court Update: R v Robert Palmer

Facts

Yesterday, just days after the Wojcicki case, came the sentencing of Robert Palmer, a lorry driver who had earlier pleaded guilty to causing the deaths by dangerous driving of Andrew McMenigall and Toby Wallace, cyclists who were just 40 miles into their Lands End to John O'Groats ride in support of charity.  Palmer ran into them on the A30 near Newquay in Cornwall on 2nd July 2013.  Palmer was also sentenced for dangerous driving on a separate occasion when he was on bail for the fatal offences and drove into the back of another HGV.

There are similarities and differences with the Wojcicki case (which formed the subject of my last blog post).

Palmer had the advantage of representation from a barrister of some 40 years experience.  He (Palmer) realistically appreciated he had no Defence and pleaded Guilty to all 3 charges.  He did not seek to blame Mr McMenigall or Mr Wallace who were (like Owain James) completely blameless.  Palmer expressed, through his barrister, remorse at what he had done.

However the mitigation essentially ended there.  Palmer had a cynical disregard of road traffic law.  He was driving an HGV without the required rest periods and had only had 3 hours rest the previous night.  Furthermore he was such a prolific texter at the wheel that “The prosecution observes simply the absence of the phone activity in the period immediately up to the collision as an indication of his fatigue because prior to this collision his phone activity was very persistent.”  It is likely he fell asleep at the wheel.

The scene is similar.  This picture from Google earth appears to be fairly representative of the A30 road at the scene of the impact:
There is a rumble strip set around a metre or so from the grass on the nearside and an eye witness indicated that “the lorry had not moved out of the inside lane at all and stuck very close to the rumble strips."

Result

The sentence was 7 1/2 years on each fatal charge to be served concurrently and a further year on the non-fatal charge to be served consecutively.  Palmer was banned from driving for 10 years.

Once again the sentence is significantly greater, particularly the driving ban, than sentences we have seen in the past and once again the prosecution were not deflected from bringing the correct (dangerous driving) charge.

Observation 1: rumble strip

It occurred to me as I typed this that I am yet again describing a scene where impact occurred in the vicinity of a rumble strip.  I do wonder at the thought process that goes through a Highway designer's mind to the effect that inattentive dozy drivers require assistance to remain on the road and that a rumble strip is sufficient to deal with that hazard.  Plainly it is not if a cyclist is present.

Observation 2: prevention

With such a spectacular disdain for the law it seems a very great tragedy that Palmer's repeated offending was not caught and dealt with before he ended the lives of two good and blameless people.

Observation 3: driving bans

Prompted by a tweet, I have discovered to my surprise that the provision in the Coroners and Justice Act 2009 providing that a driving ban starts to take effect on release from any prison sentence (rather than on the day of sentence) has still not been brought into force.  I will look further into that when I return from holiday and draw it to the attention to the All Party Parliamentary Group on Road Justice.  That provision would and should have applied to both Wojcicki and Palmer.

Families' Statement

Finally I think the dignified statement of both families issued yesterday merits repetition and dissemination:


“There are no words to describe the devastation and loss that we, and both families, feel following the deaths of our husbands. They were exceptional and giant men in every sense of the word,” they said.

“It is a tragedy that so many other families are also mourning loved ones who have been killed on Britain’s roads, particularly when many of these deaths were completely avoidable.

“So many of these families do not ever see a sentence brought against the person who has killed their husband, their child, their brother, their father.

“UK transport laws are lenient, charges are difficult and onerous to attain, and less and less resource is being dedicated to road traffic collisions.

“Toby and Andrew loved cycling. We believe that the rise in the popularity of the sport must be met by those with the responsibility to improve our transport infrastructure and improve education for drivers.

“We would like to thank everyone who has supported us and been involved in getting us this far.”



Read more: http://www.westerndailypress.co.uk/Lorry-driver-Robert-Palmer-jailed-killing/story-22859295-detail/story.html#ixzz3CA3Ytksr
Read more at http://www.westerndailypress.co.uk/Lorry-driver-Robert-Palmer-jailed-killing/story-22859295-detail/story.html#Rr2VuvWsyijcO0B0.99

Friday, 29 August 2014

Case Update: R v Wojcicki. Turning a corner?

The evidence (taken from the reports of WalesOnline who have covered this story in detail)
At around 8pm Mr Wojcicki drove his 3 ton minibus into the rear of Owain James, who was on his bicycle, causing him fatal injuries.
The collision occurred on the west bound carriageway of the A472, a dual carriageway road subject to the national speed limit (70 mph for a light vehicle, 60 mph for a mini-bus), near Newbridge in South Wales.  So far as I can tell this is fairly representative of the location. 


Google earth suggests that each lane is around 3.75 metres wide.  The width of Wojcicki’s Mercedes minibus is 2.25 metres wide.  That debris strewn strip by the grass looks to be about 1 metre wide.
The prosecution opened the case on the basis that Mr James was riding inside the white rumble strip. 
One independent witness driving a Landrover in the same direction gave evidence that “The minibus did not alter its course at all and no brake lights came on.  The minibus ploughed into the cyclist”.  Another independent witness also travelling West said he saw a cyclist in the area between the grass verge and the rumble strip and thought the driver of the mini-bus “must have been distracted by something because the minibus was drifting from the lane to the rumble strip back and forth.”
Wojcicki did not stop his minibus for a distance of 125 metres.  When he did get out of his van he was seen taking photographs of Mr James with his ‘phone.  Whether because of this or (as one would like to think) they would have done it anyway the police examined Wojcicki’s ‘phone and found that a short while earlier he had taken photographs of a vintage car at a set of traffic lights.  The last traffic lights passed by Wojcicki were a couple of miles back on the opposite (North) side of Newbridge and I surmise it was here that the photographs were taken.
Wojcicki’s accounts following the collision were contradictory.  He told witnesses at the scene that he had not seen Mr James prior to the impact.  The following day interviewed by police he claimed that he saw Mr James from a distance of 20-30 metres away [My note: the forensic evidence if any has not been reported but lines of sight were obviously far better than that and no explanation appears to have been given as to why he saw him so late –at a closing speed of approximately 35 mph this would have given less than 2 seconds to react].  He claimed he had been happy with his driving and comfortable to stay in his lane where he was doing 55 mph.  He added “I did not cross the white line” [My note: I cannot tell if he means the rumble strip or the line dividing the westbound lanes – the evidence of the first independent witness that he did not alter course at all suggests perhaps he did not cross either but the second independent witness gave evidence of drifting to the rumble strip].  He then claimed that Mr James swerved into his path.
When giving evidence Wojcicki accepted that he had taken a photograph when stopped at traffic lights and maintained that he had seen Mr James on ‘the hard shoulder’ but ‘I could see no hazard and was happy to stay in my lane and overtake’.  He apparently mentioned that in Poland it is considered acceptable to overtake a cyclist with 1 metre’s clearance.  He accepted that he was constantly adjusting his position on the road because his van had a tendency to move to the right ‘but I did not get close to the white line’ [meaning I think the rumble strip].

The result
The charge was causing death by dangerous driving.  The prosecution case was that Wojcicki was looking at his recently taken photographs and therefore did not see Mr James and that explained why he did not avoid him and why it took so long for him to stop after the collision.  The jury convicted.  The Judge made clear when sentencing that he was sure the prosecution case was right.  On the evidence I have seen reported I might, as a juror, have felt unpersuaded to the criminal standard (beyond a reasonable doubt) that Wojcicki was looking at his photographs immediately before impact.  However I would have convicted nonetheless because, for whatever reason, he cannot have been paying attention to the road ahead if he did not see Mr James until he was 20 to 30 metres away and worse because of the appalling dangerous complacency that led him not to trouble to move out before passing a cyclist.  At the very best, and on Wojcicki’s own evidence this was a close pass gone tragically wrong.  I can think of sinister explanations other than looking at photographs to explain taking a while, before deciding to stop.
The positive things are that, unlike other recent cases there is no record of distraction over whether or not the cyclist had traversed the rumble strip or whether the cyclist should have been on that road at all.  The rumble strip is intended to mark the limit of the useable carriageway and anybody who is ‘comfortable’ passing a cyclist close to the rumble strip is driving dangerously (contrast R v Dove).  Equally Mr James had every right to cycle on that road (contrast the discussions about alternative routes in R v Petterson) and the concomitant right to expect other roadusers to exercise care when passing him.


Perhaps even more encouragingly there was no reported debate about high-vis or helmets.  Maybe this is because it was so obvious that a helmet would have made no difference and because the final defence decided upon was that he DID see him albeit very late rather than the more conventional ‘didn’t see’ Defence.

It is also refreshing that the charge brought was the appropriate dangerous driving charge not careless contrast these recent cases



Sentence
Wojcicki is now beginning a 5 year sentence of imprisonment.  Unusually in such cases, he has been disqualified for a long period, 10 years.  It would be good to think that the tide in these cases is turning.   CTC’s Road Justice campaign has been energetically targeting this area.  Likewise a valuable report last month from the Transport Select Committee highlighted the need to encourage motorists to share the roads responsibly with bicycles and calling for an amendment to the Highway Code which would emphasise the rights of cyclists to share the roads with drivers.  The mainstream body of people who cycle will I am sure, want to get behind that call.
I only hope that if this case gets before the Court of Appeal they back the Judge on the sentence and particularly on the 10 year driving ban; contrast these cases.

Postscript
I have followed this case with particular interest because the close pass (often from a white van on a dual carriageway) is for me the most terrifying aspect of my commute.  I have on occasions been literally inches from sharing the fate of Mr James.  I am sure it must put a lot of people off cycling altogether.  Whilst statistically most collisions happen at junctions, it is usually somewhat easier to guard against the idiocy of the road user failing to accord you your right of way than it is to deal with the peculiarly unnerving conduct of a vehicle that comes up fast and close from behind.  Always allow yourself plenty of room to your nearside to swerve into if you need it.

A further postscript
I did not mention above the controversy that arose between Judge and Defendant solicitor described here.  This was raised by the Judge only after the trial had concluded for the very sound and proper reason that it should not be permitted to prejudice the trial.  I do not think anybody doubts Alan Blacker's entitlement to represent clients in the Crown Court, presumably how he dresses is regulated by the Law Society.  Equally I would very much like to believe that the nationality of the Defendant had no bearing on the jury's decision.  A conviction in not wholly dissimilar circumstances was secured against Ms Katie Hart an English woman in the hands of an English jury.  What I suspect is more likely to have made a difference is that the involvement of a mobile telephone probably removed the ever present risk of under charging (with careless rather than dangerous driving).  For the reasons I have set out I consider that the charge and the verdict in this case were both plainly right and I trust that neither the nationality of the Defendant nor the identity of his lawyer made a scrap of difference.