Thursday, 31 March 2016

Lessons from a Private Prosecution 2(b) The Evidence Required

This is possibly the hardest section to write because it could so easily descend into a re-trial of the case or a moan about the result.  That is not the intention.  It may however be helpful to indicate what evidence I had.  It is central to the considerations as to whether I could or should have acted differently.  Some have suggested I never really stood a chance and I will in a future post consider whether that should have been obvious and affected the charges.

The evidence has to be strong, very strong and then if you can stronger still.
I think in hindsight my evidence was simply strong.
My own perception at the time (unaided by the film which I only saw subsequently) was that the car was going very fast and was very close.  Sufficiently so to report it at once to a fortuitously present Surrey police officer.
Obviously I needed corroboration from the film.  In hindsight the camera is too wide angle because first impressions are hard to shift even with logical analysis.
Thirdly I had my Garmin data which gave a very accurate reading of my speed and against which a comparison of the car's speed could be made.  Strava link , this and all the underlying data was disclosed.
I had solid identification evidence from the Surrey PC, though the Defendant persistently refused to accept his evidence.
Subsequently I got expert evidence but that will be the subject of a future post.  I have mentioned it below in [ ] to put the factual evidence in context.  In the interests of costs I did not get the expert evidence until it became inevitable that a trial was needed.
I was and remain of the view that the prosecution should be strong on the factual evidence.  The expert evidence was the icing on the cake obtained after the case had passed the tests set both by the CPS and the Judge.

What's required for a charge to reach a jury?
Historically charges would be left to a jury where there was a case to answer i.e. a reasonable jury could convict on the prosecution evidence.  This is still the test applied by a Judge who must stop the case if this threshold is not met.
After the creation of the CPS in about 1986 the test applied by them was two-fold, an evidential and public interest test.  The CPS evidential test requires "that an objective, impartial and reasonable jury, properly directed and acting in accordance with the law, is more likely than not to convict the defendant of the charge".   Note this is a significantly more restrictive test than that applied by a Judge in considering whether to dismiss a charge.
For a time private prosecutions that satisfied the case to answer test could proceed to a jury even if the CPS evidential test was not met.  However this all changed with the landmark and somewhat controversial decision of the Supreme Court in Gujra v DPP in 2012 when the Court endorsed new CPS guidelines which meant that they would take over and discontinue any private prosecution that did not pass their more restrictive test.
So there is no point starting a case where your evidence is not such that an objective impartial and reasonable jury is not more likely to convict than to acquit.  The test does not, however, require you to anticipate any lack of objectively or impartiality that may be encountered.

Anything missing?
All the prosecution evidence has to be disclosed in advance before the Defendant commits himself to any account of himself.  In a public prosecution it is part of the police job to interview a suspect under caution.  He will usually give an account and this may very well be demonstrably false but, even if not, will probably rather limit what alternative accounts he can give at trial.  Even if he says nothing in interview then comments can be made about a failure to mention something later relied upon in his defence.  Of course if the police have not interviewed the private prosecutor is in a significantly weaker position.  (There had been some limited correspondence between Mr Kayardi and the Metropolitan Police but neither side was willing to reveal this to me).  Mr Kayardi said in his evidence that the police had told him "Don’t worry about it, there’s nothing there".  Strictly the opinion of the police on the matter is not admissible evidence at all but it was relied upon very heavily by the Defendant to an extent I had not foreseen.  I have noticed shades of this in other cases where the police decided against prosecution even if a public prosecution nevertheless took place thereafter.
There is a requirement now for a Defendant to file a 'Defence Statement' but in my prosecution this said absolutely nothing that 'Not Guilty' did not already say.
Furthermore nobody seems to worry too much about a Defendant not putting his case to prosecution witnesses who might be in a position to contradict what the Defendant proposes to say.
Thus having carefully ascertained (as he was entitled to do) that I had no further evidence (or film evidence in particular) the Defendant gave in his evidence an account that having spoken to the police I filtered through some cars to 'cut him up'.  He also gave an account that he was being tailgated by a queue of traffic behind and that one driver was impatiently hooting so that he felt he had to pass me for my own protection.
He then added, again for the first time, that he had straddled the centre line with half his car either side.  His car presumably jumped half a car width sideways before the first frame where his headlamps come into view and skilfully avoiding a head on crash with the oncoming traffic.
None of that mentioned before or put to me or the PC or put to the expert.
So the lesson is if you stop the camera at one point, it is quite likely to be alleged that you were doing something wrong immediately thereafter.  Alternatively if you only have a forward looking camera it is likely to be alleged that something significant was happening behind.  You as a prosecutor/witness will not get any opportunity at any stage to comment or have your witness or expert comment upon what is said.
Accordingly I now commute with a rear facing as well as forward facing camera and if reporting an offender again will keep a back up copy of a much longer stretch of my ride.  You can expect any gaps to be exploited.

The film
Taken with a Contour HD camera fixed to my handlebars.  My own analysis of this film by reference to the centre lines and to my own speed (19mph) was that the car was travelling 3 x my distance in any given number of frames (thus 57mph).  [A careful analysis in due course by an expert making every assumption in the Defendant's favour (as he should) was 51- 57 mph.]
I knew he had passed within a metre or I would not have regarded it at the time as so out of the ordinary.  However the film does not on casual inspection demonstrate how close and I initially reported to the police within a metre as the best I could do.  [Again careful analysis by the expert concluded 60 - 80 cm clearance excluding the car's mirror.  Given the consequences of being whacked by a wing mirror at 50-something miles an hour it seems reasonable to say the clearance was approximately 0.5m.].

Here it is.  Please respect my copyright, though I have no problem with links back to this site.
(c) Martin Porter

The next post will look at reporting the incident.

Tuesday, 29 March 2016

Lessons from a Private Prosecution (2) (a) Why this type of incident?

I dislike dangerous overtakes and I dislike the Metropolitan Police's indifference to dangerous overtakes.  An overtake is, or should be, a planned manoeuvre and passing a cyclist too fast and close is done deliberately.  Whether it is done deliberately to intimidate or just because a driver is callously indifferent to a cyclist's safety seems to me to be secondary.  Discussing this topic with a Met Police Sergeant on the Cycle Task Force back in 2010 I was told these were 'too subjective' to take action.

That though is very hard to accept.  Back in 2012 the Surrey Police charged this HGV driver with dangerous driving and the CPS then accepted a plea to careless driving (a decision keeping the case away from a jury and with which I have greater sympathy now than I did at the time).

Contrast the Metropolitan Police who declined to take any action in respect of this HGV:
I believe close passes to be particularly unnerving both for an experienced cyclist (though we have no option but to get used to them) and for the very many people who would cycle if their perception was not that it was too dangerous.

So why a close pass and not a case where I have actually been injured?  I have exchanged details with drivers on 4 occasions as a consequence of damage to myself or my bike.  Each involved momentary inattention at junctions rather than deliberate bad driving.  The two drivers inside the Met Police area suffered no consequences and the two outside (one Surrey, one Thames Valley) were both sent on courses.  I think the driving in all 4 cases could fairly be categorised as careless driving and none, in my view, justified a private prosecution.

Far more serious was the close overtake gone wrong during a club run just months before my February 2015 incident.  An elderly driver collided with the front offside rider in my group and 4 riders went down with the driver failing to stop.  He was dealt with, albeit rather leniently, by Thames Valley Police and we were told lost his licence permanently on medical grounds.  It is a reminder if any is needed that close overtakes do not all end happily.

Further relevant background is that I had just failed to make any headway at all in relation to the disgraceful decision of the Metropolitan Police not to refer the case of Michael Mason to the CPS.  Mr Mason had sustained fatal injuries when run down from behind on Regent Street and I was instructed on behalf of the family to invite the Met to reconsider.  I got nowhere beyond a confused and then retracted announcement that they would consult the CPS..

Perhaps for practical reasons a prosecution actually involving injury might have been more promising in terms of likelihood of conviction than a 'near miss'.  However I did wish to try to make the point that dangerous driving that did not result in a collision should not be ignored.  Quite fortuitously I got the driver's address, something that is not likely to happen again in any near miss case.

This was not of course the first piece of dangerous driving I have encountered but nor was the driver (as he claimed at his trial) a 'scapegoat'.  It goes without saying that had he not endangered me I would not have prosecuted him.  The fact that similar overtakes are fairly common-place makes it more important that they are tackled.  Progress is being made with the Transport Select Committee just reporting that:

I have no regrets over prosecuting a case which (to my mind) involved a classic near miss from a close pass at manifestly excessive speed.  In the right circumstances I would encourage another attempt.

The next post on this subject will look at my factual evidence, how strong it was and how it might have been stronger.

Saturday, 26 March 2016

Cameron's Cycling Revolution - Why I am not waiting for it and why I am getting fed up

The Times campaign spearheaded by Kaya Burgess to make our Cities Fit for Cycling thankfully goes on and pulls the Government up for failing to invest more than a tiny proportion of the money required to turn cycling from a niche to a mass-participation activity.

We are currently in a vicious spiral of hopelessness.  A significant proportion of the general population believes that only the brave, the foolhardy and the weird cycle and that nothing should be done to encourage the activity.  Has-been celebrities come out of retirement to rail against the Mayor of London's vision for cycling and specifically his segregated cycle lanes (the first to be built anywhere in this country in modern times that are of sufficient quality to be worthwhile).  

Even worse, though, than this active hostility is the casual acceptance of cycling as appropriate only for the brave few.  The Metropolitan Police Commissioner, ultimately responsible for law enforcement on London's roads simply states as an acceptable fact that cycling in London is too dangerous for him (and by implication for anyone else with any sense of self-preservation).  My fellow school governors meet all efforts to increase cycling and walking to school with protestations of how dangerous (certainly the cycling) is and whether we should require pupils not in cars to wear fluorescent vests, armbands or backpacks.  My local authority councillors would rather encourage sponsorship whereby high-viz is given to children than reconsider the 40 mph limits on narrow roads where many walk (and a hardy few cycle) to school and where one pedestrian child was run down trying to cross the road this winter.

All this chimes with the tabloids (deriving some support from otherwise distinguished criminal lawyers) questioning the expenditure of maybe five to ten thousand pounds (greatly increased by Defence tactics) of public money on the reasonable and necessary costs of bringing a driver to Court in circumstances where there was really quite incontrovertible expert evidence that he passed a cyclist (happened to be me but could have been anyone) with 60-80 cms clearance (excluding wing mirrors) at 51 to 57 mph in a 30mph narrow suburban road.  What type of person is going to be willing to cycle in those conditions?  Whilst widespread casual indifference to this kind of behaviour persists, cycling will remain for the hardy few (perhaps with a few more who are fortunate enough to have their whole journey on a CSH).

This casual assumption that cycling is dangerous extends to totally misdirected law enforcement.  The Times (this time behind a pay wall) reported earlier this year the greatly increased law enforcement directed at cyclists  with the police presumably assuming that it is cyclists that are the problem.  Every piece of independent research that has gone into this indicates that they are not.  Even red-light jumping by cyclists is not in any objective sense dangerous as I tried to explain in this article  I would not mind this enforcement of the law against the essentially harmless if there were resources to spare after dealing effectively with the very harmful.  However there clearly are not.

Finally thank heaven for the irreplaceable Chris Boardman who understands that cycling must be opened up for everybody and the only way to do it is to spend public money.  Not many professional cyclists have his inclusive sense of vision.

Thursday, 24 March 2016

Lessons from a Private Prosecution (1) The Criminal Justice System

I have learnt much from my private prosecution of a motorist whom I accused of dangerous driving but who was acquitted of that charge by a jury at Isleworth Crown Court on 9th March.  I will endeavor to share what I have learnt in case it is of benefit to others.

I could write a book on it but nobody would read it.  To avoid a very long blog I intend to cover aspects of the case in a series of posts.  I start with some general reflections on the criminal justice system.

The first priority of the English criminal justice process is to safeguard the rights of the accused.  This has to be correct.  It has long been said that the conviction of an innocent is many orders of magnitude worse than the acquittal of the guilty and the burden and standard of proof required of a prosecutor is commensurately very high.  It follows that a prosecutor cannot complain of unfairness.  The prosecution must reveal everything at an early stage.  A Defendant may hold his cards very close to his chest and may choose what he wishes to reveal and when.  The prosecution must prove a case so that the trier of fact is sure of guilt.  A Defendant need prove nothing.

It follows of course that an acquittal proves nothing.  An acquitted Defendant has not been 'proved innocent' and nor has a prosecutor who does not secure a conviction been proved wrong.

I am used to civil proceedings (claims for damages) where it is a stated and important objective that the parties are on an equal footing and the tribunal will determine disputed questions of fact on the balance of probabilities.  It is all very different in the criminal courts and we do not punish people because they are probably guilty.

As an adherent to the rule of law I have already indicated that I respect the jury verdict.  Nothing I say in this series of posts should be taken to detract from that.  Obviously, though, I cannot be expected to agree with it.  I remain fortunate that I was not injured.  Many many worse things could have happened to me (and indeed have happened to me) than failing to secure a conviction in this case and my disappointment is not of course remotely comparable to the angst experienced by those who have sustained serious injury or the death of loved ones as a consequence of criminally bad driving.

I therefore have no regrets.  I will consider whether there is anything I might have done differently in following posts.  However my general viewpoint is that there was sufficient evidence to place before a jury and that the public interest demands that something be done about the minority of drivers who terrorise cyclists or would be cyclists off the road.  It would have been far preferable had the Metropolitan Police chosen to take the issue more seriously but, as with all cases of this sort, they did not.  The amount of reliance placed by the Defence on the (strictly speaking inadmissible) police view is something I had not adequately anticipated.  Juries do not give reasons but I agree with other observers at the trial that this was likely to have been a major factor.

I continue to believe that there is a strong case for private prosecutions certainly where the police fail to act.  Failure of action by the CPS is less of an issue since there is an effective right of review which should be used in preference to a private prosecution.  It would make a lot of sense for victims to have an effective right of review by a CPS lawyer of a police decision to take no action but unhappily this is not something that is in place.  I do not mind attracting opprobrium in the columns of tabloid newspapers.  On the contrary even a 'failed' prosecution may have some deterrent effect.  Nobody, however convinced of their own innocence, would wish to be dragged through a 3 day Crown Court trial and driving in such a way that you cannot reasonably be accused of dangerous driving is a good way to avoid this.  One tabloid has speculated about the risk of other cyclists following my example and I hope in suitable cases that they will.  Obviously I would have preferred the greater deterrent effect of a conviction but that does not mean that the process was not worthwhile.

In subsequent posts I plan to consider:
2.  The factual evidence.  What is required?  What type of incident?
3. Was I the right complainant?
4.  Reporting to the police.
5. The difficulties presented by the requirement of a Notice of Intended Prosecution.
6. Starting a prosecution by laying an information before magistrates and deciding with what offences to charge.
7. Initial hearings prior to committal.
8. Committal for trial.
9. Bad character evidence.
10. Dealing with the safeguards that prevent unsuitable prosecutions reaching trial.
11. Expert evidence.
12. Trial.
13. Why I believe it is reasonable even in times of austerity for the state to contribute towards the costs of an unsuccessful but properly brought prosecution.

If I have missed anything out that anyone considers I might cover in addition let me know.

Saturday, 12 March 2016

Lessons from Private Prosecution

The past thirteen months have provided a learning experience for me.  this acquired value is of limited use to me as I cannot foresee circumstnaces in which I

Wednesday, 9 March 2016

Private prosecution results in acquittal

At about 1855 on 12th February 2015 Mr Aslan Kayardi who is, or was, a qualified driving instructor overtook me in his Audi R8 sports car on the A315 between Feltham and Staines.  I alleged against him that he drove dangerously and supported that allegation with evidence from an experienced collision investigator, Mr Paul Croft.  I thank him for the careful balanced and conspicuously fair way that he presented his evidence which to my mind was highly compelling.
I respect the rule of law and entirely accept that some of the material that I had hoped may go before a jury could not do so for legal reasons.  I also have to accept the verdict of the jury that Mr Kayardi’s driving has not been proved to fall far below the standard of a competent and careful driver.  Every Defendant is entitled to the benefit of any doubt and my assessment of his driving has to bow to that of the jury.
Aside from this case, I am a total stranger to the criminal courts.  What is clear to me is that a somewhat creaking in places criminal justice system is held together by the professionalism, dedication and skill of the criminal bar.  The prosecution was most ably and persuasively conducted by Mr Ellis Sareen and Ms Emily Albou.  Equally Mr Kayardi had the good fortune to have his Defence conducted successively by   Ms Abigail Bright and Mr Jake Taylor who quite properly worked hard and effectively to secure what was the right result for their client.  I am grateful to all four and appreciate more than ever how important it is to a fair and just society that we continue properly to value their work.
An acquittal does not imply that a prosecution was not properly brought, although there are of course a number of lessons which I shall endeavour to draw from this experience and which I hope may also benefit others.
I have been asked for my video but am hesitant to put it into the public domain.  There is clearly a risk that it will be held up as driving that has been found to be perfectly acceptable.

I am extremely grateful to the CTC and Roadpeace for their considerable moral support and to the Cyclists’ Defence Fund for both moral and financial support.  It is more than ever important that the Cyclists’ Defence Fund has the resources to continue to fight for justice for cyclists.  I will continue to do what I can to support those efforts.