tag:blogger.com,1999:blog-76515979811515701472024-03-15T07:44:55.678+00:00The Cycling LawyerThoughts from a 3rd cat and vet racing and commuting cyclist
Martin Porterhttp://www.blogger.com/profile/07802050121734667593noreply@blogger.comBlogger283125tag:blogger.com,1999:blog-7651597981151570147.post-35713318617743287232017-08-30T16:37:00.002+01:002017-08-30T19:00:14.218+01:00A note on the law: Manslaughter, dangerous cycling and ‘s35 Driving’<br />
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Manslaughter in English law is not a straightforward
topic. It can be broadly split into:<br />
<span style="text-indent: -18pt;">1. Cases where the Defendant has killed another
person intending to kill or inflict serious injury but there are extenuating circumstances
which meant that the one time mandatory death sentence (now mandatory life)
for murder would have been somewhat harsh.
Although this could in theory be applicable where a collision is
intended I give it no more consideration here.
It is often called voluntary manslaughter.</span><br />
<span style="text-indent: -18pt;">2. Cases where the Defendant has not intended death
or serious injury but has either:</span></div>
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<o:p></o:p></div>
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<!--[if !supportLists]-->(a)<span style="font-size: 7pt; font-stretch: normal; font-variant-numeric: normal; line-height: normal;">
</span><!--[endif]-->Caused another’s death by breaching a duty owed
to another where the negligence is so gross as to amount to a serious crime (‘gross
negligence manslaughter’). All road
users owe a duty to each other so gross negligence manslaughter can readily
arise.<o:p></o:p></div>
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<!--[if !supportLists]-->(b)<span style="font-size: 7pt; font-stretch: normal; font-variant-numeric: normal; line-height: normal;">
</span><!--[endif]-->Committed an unlawful act which anyone with any
sense would appreciate was dangerous in that it inflicted on the victim a risk
of some injury. This is known as ‘Constructive
Manslaughter’. Again this could apply to
road traffic collisions.<o:p></o:p></div>
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Gross negligence manslaughter is sometimes, but very rarely,
a charge brought against motorists.
Things used to be different and ‘motor manslaughter’ charges were more frequently
brought. In 1956 Parliament introduced a
statutory offence which is the pre-cursor of our causing death by dangerous
driving. It is universally acknowledged
that this was done because juries were proving reluctant to convict of ‘motor
manslaughter’. The new offence carried a
different label but was to all intents and purposes the same crime. The new offence also had a lower maximum
penalty but this was irrelevant since a life sentence for manslaughter only in practice
occurs in voluntary manslaughter cases. The
current maximum sentence for causing death by dangerous driving is 14 years
which the Government proposes to increase to life.<o:p></o:p></div>
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Cycling offences of careless cycling and dangerous cycling
do exist but no offences of causing death by careless or dangerous
cycling. Dangerous cycling is all about
the way in which you ride a bicycle.
There is no equivalent to the dangerous driving definition in section 2A
RTA which extends the definition to driving a motor vehicle in a dangerous
state. <o:p></o:p></div>
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A cyclist who is considered to have caused death by dangerous
cycling may be charged with involuntary manslaughter. However given the statutory definition of
dangerous cycling this would have to entail riding the bicycle in an obviously
and flagrantly dangerous manner. There
are probably no circumstances in which a cyclist who has committed the proposed offence
of causing death by dangerous cycling has not also committed the offence of (gross
negligence) manslaughter. There is only
therefore any point in introducing a statutory offence of causing death by
dangerous cycling if (as was felt to be the case with motorists in the 1950s)
guilty people are walking free because of a reluctance of a jury to convict.<o:p></o:p></div>
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A cyclist whose manner of riding has not caused death may
still be charged with (constructive) manslaughter if he has committed some
other offence, which anyone could see was dangerous and which has caused
death. The other offence could be one of a low
order but if committing that offence is dangerous and causes death then you are
liable to be convicted of manslaughter. Cases of
constructive manslaughter charges being brought against a motorist are very
rare save possibly cases of assault where a motor vehicle was used as a weapon. Reporters seldom distinguish between gross negligence
and constructive manslaughter cases. I
can think only of one case in the constructive manslaughter category brought
against a motorist. This was an unsuccessful
prosecution against a driver who opened a car door causing the death of Sam
Harding, a cyclist. I take this to have
been a constructive manslaughter case as the Defendant had both blackened out
his windows and opened the car door, both separate relatively minor
offences. The jury took an hour to
acquit rather reinforcing that the threshold for the obviously dangerous
ingredient of the offence is a very high one.
It is not sufficient that a safety related law is broken and that
somebody dies in consequence. Whether
the Defendant in that case could or should have been charged with an offence
under s 35 Offences against the Person Act 1861 is considered below.<o:p></o:p></div>
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The Offences against the Persons Act 1861 was a
consolidating statute. Section 35 reproduced
a law originally to be found in a Georgian Statute governing Stagecoaches. The wording is 18<sup>th</sup> century not,
as is frequently suggested, Victorian.
The offence is worth setting out in full especially as it is often
misquoted (even by the author of the strap-line to my recent Guardian article!)
as ‘wanton and furious driving’ or even ‘fast and furious driving’. It is not, it is either wanton or furious or
wilful misconduct or wilful neglect any of which causes bodily harm:<o:p></o:p></div>
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There is no requirement in this offence that ‘other wilful
misconduct’ be dangerous.<o:p></o:p></div>
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For as long as I can recall no prosecution has been mounted
against a motorist for ‘other wilful misconduct’ or ‘wilful neglect’. Only the ‘wanton or furious’ driving has been
incurred and then only when the RTA offences are not available because the alleged
offence has been thought to have been committed on private land. <o:p></o:p></div>
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The charge is fairly regularly used against cyclists, but
again until now relating to the standard of ‘driving’. Have a look at what I said ages ago about the
case of Darren Hall <a href="https://thecyclingsilk.blogspot.co.uk/2009/11/cycling-against-car-culture.html">https://thecyclingsilk.blogspot.co.uk/2009/11/cycling-against-car-culture.html</a> In rejecting his appeal against a custodial
sentence the Court of Appeal described his riding as ‘not far short of
dangerous’. This confirms that had it
been dangerous it would have been gross negligence manslaughter.<o:p></o:p></div>
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‘Dangerous’ is rather a term of art in road traffic
cases. There is much to be said for
clarifying its meaning as it relates to all road users. Currently a lot of really very dangerous
driving gets categorised as careless and this could be a whole separate and
lengthy blogpost. I intend to say no
more about the Alliston case than that the jury verdicts are consistent with
finding that his conduct was not so self-evidently dangerous as to amount to
manslaughter but that he had been a person having charge of a vehicle whose
wilful misconduct had caused death.<o:p></o:p></div>
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When I (or my strap line helper) say that a motorist would
not have been charged with the section 35 offence that is because I have read
frequently of cases where a person having charge of a vehicle has wilfully done
something like blacken out windows, open car doors, driven on the pavement,
exceeded a speed limit etc. etc. but this has not against a motorist been seized
upon as wilful default or neglect justifying a s 35 charge. Although the maximum term for section 35 is
two years, imprisonment is a far more likely outcome than following conviction
of a triable either way offence like causing death by careless driving (maximum
5 years but usually non-custodial).<o:p></o:p></div>
<br />
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I am not suggesting that a motorist with no brakes would not
be prosecuted at all. A motorist with no
brakes (or even severely impaired brakes) would of course have to deal with the
fact that mass and speeds mean that the danger is totally obvious on any conceivable
view of what dangerous means. Any
persons responsible who are not driving will be charged with manslaughter, as
in the Bath tipper truck tragedy, and any persons driving who ought to have
known charged with dangerous driving under the s 2A definition of dangerous
driving. I just do not see the levels of
danger as remotely comparable and neither it seems did the jury. Perhaps the Bath and the Sam Harding case Defendants too, along with many other
motorists, ought to have faced a s35 charge in case the more obvious one failed.<o:p></o:p></div>
Martin Porterhttp://www.blogger.com/profile/07802050121734667593noreply@blogger.com1tag:blogger.com,1999:blog-7651597981151570147.post-76478201106621122822017-08-23T15:59:00.000+01:002017-08-23T15:59:24.984+01:00The Alliston trial<div class="MsoNormal">
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<b><u>A heavy handed prosecution
against a cyclist for manslaughter has failed but a charge of ‘furious or
wanton driving’ has succeeded.<o:p></o:p></u></b></div>
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In 2016 more than 400 pedestrians were killed on UK
roads. Each a terrible tragedy to those
involved and almost all avoidable. One
of these casualties, Kim Briggs, died following a collision between herself and
a teenaged cyclist, Charlie Alliston.
She was extraordinarily unfortunate.
Research indicates that 10% of pedestrians struck by a motor vehicle at
20 mph are killed. A rider on a
lightweight bike will have less than one tenth the mass and therefore kinetic
energy and momentum of an average car and the speed of impact was said by the
prosecution to be ‘up to 14 mph’. Yet
tragically the unsuccessful efforts of Mrs Briggs and Mr Alliston to avoid each
other on 12<sup>th</sup> February 2016 led to her death from a brain
injury. This is a very rare occurrence
indeed and has received much publicity.
We are inured to the 400 or so pedestrian deaths linked to motorised
traffic but not to the vanishingly rare occasions that they are linked to
bicycles.<o:p></o:p></div>
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It is also no coincidence that the one death of a pedestrian
involving a cyclist is also the one case where a manslaughter charge has followed. This is reported to be a first. It is also one of the few cases where wanton or
furious driving has been charged. These
are both offences triable only in the Crown Court and were no doubt selected in
preference to summary offences (triable by magistrates) due to the perceived
seriousness of the offending and its consequences. Alliston could have been charged with any one
or more of the lesser summary offences of breaching the Construction and Use
Regulations, of dangerous cycling or of careless cycling. Prosecutors appear to have wished to get around
the fact that Parliament has not legislated for causing death by careless or
dangerous cycling offences.<o:p></o:p></div>
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The allegation against Alliston essentially related to the
absence of any front brake on his bicycle.
From reports of the evidence given at trial it seems clear that Mrs
Briggs stepped out onto the road into the path of Mr Alliston. Mr Alliston has always been adamant this
was so (including in some very poorly judged on-line forum comments that he
made in the days following the incident when Mrs Briggs lay in hospital) and
the prosecution, who had access to CCTV and witnesses, did not contend
otherwise. Instead it was alleged that
with a front brake Alliston would have been able to stop before any collision
took place.<o:p></o:p></div>
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The bicycle concerned was designed and built for use on the
track. Track bicycles do not have gears
or a free wheel. If the rear wheel is
spinning then so are the pedals and any attached legs. They also, for sound safety reasons on the
track, do not have front brakes. Braking
on a track bicycle is achieved by resisting the spinning of the back wheel with
the legs. Fixed rear wheels (or ‘fixies)
are not confined to the track, they are increasingly used on the road though
the road variant differs from the track bike in having a front brake. <o:p></o:p></div>
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The requirement for a front brake is set out in The Pedal
Cycle (Construction and Use) Regulations 1983.
Regulation 7(1) provides that every bicycle must be equipped with at
least one braking system. Mr Alliston’s
bicycle satisfied this test. However
because his saddle was more than 635 mm from the ground Alliston was also
required by Regulation 7(b) to have ‘a braking system operating on the front
wheel’. He had no such front wheel
brake and could have been prosecuted for a breach of this Regulation, a summary
offence resulting in a fine. <o:p></o:p></div>
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Front brakes are important on bicycles. In an emergency a skilled cyclist will get
all their stopping force from the front brake because of the effect of the
bicycle and rider decelerating. Unlike a
car, or a heavy police-issue mountain bike, the limit of effective braking on
dry level ground is reached at the point where the rear wheel lifts off the
ground potentially pitching the rider over the handlebars. Studies in David Wilson’s seminal work
‘Bicycling Science’ demonstrate that a deceleration of 0.5g is the maximum that
a seated rider can risk before he goes over the handlebars. Unlike a car driver a cyclist cannot safely
achieve the limit of adhesion of the tyre to the road, which in the dry is
typically about 0.8g. Braking with the
rear wheel alone can achieve only 0.256g before the rear wheel locks up and
skids. Wilson also cites reliable
research that in wet weather conventional block on rim braking distances are
increased by a factor of four. <o:p></o:p></div>
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Expert evidence from the police for the prosecution was that
Alliston had been going at 18mph (8 m/s) and that his braking distance was 12
metres. From experiments on other
bicycles, including a police mountain bike, it was alleged that with a front
brake he would have been able to stop in 3 metres. In cross-examination it was suggested to him
that with a ‘butcher’s bike’ with good brakes, he could have avoided the
collision. There is no record that
Alliston had his own expert to give evidence or that the risk of tipping over
the handlebars was considered. The 3
metre braking distance is frankly absurd.
Newtonian physics using Wilson’s calculated 0.5g yields 6.5 metres with
the front brake and 13 metres without it.
The difference is a factor or two, not four. Given that the prosecution case was that
Alliston was 6.53 metres away when Mrs Briggs stepped out, this difference is
crucial. The Highway Code gives a
typical stopping distance of 12 metres for a car driving at 20 mph, suggesting
that if Mrs Briggs had stepped into the path of a ‘slow’ moving car the driver
would not have been able to avoid her.
Like a driver Alliston has to be given some reaction and thinking
time. He shouted twice and gave evidence
that he moved to pass behind her when she stepped backwards. Any cyclist will confirm that quick steering
may be preferable to emergency braking when avoiding a pedestrian.<o:p></o:p></div>
<div class="MsoNormal">
Of course Alliston should have had a front brake. He was unaware of the legal requirement for
one and thought himself reasonably safe relying on rear braking. He was wrong and deserves punishment for that
offence. Manslaughter though requires either
gross negligence or that the Defendant committed an offence that was dangerous
and caused death. Dangerous has been
taken, at least in a road traffic context, restrictively. For example motorists whose speeding or
failure to give way causes a fatal collision are far more likely to face
charges of causing death by careless driving than they are manslaughter
charges. The risk Alliston presented to
a pedestrian stepping out in front of him was no greater than that presented by
a car doing 20 mph and his braking distance remained half that of a fully
equipped road bike in the wet.
Presumably nobody suggests it is dangerous to ride in wet
conditions. Alliston’s dreadful post collision comments
reveal that he was far too reliant upon other road users doing the right thing
and that he should have been prepared to react to pedestrians moving in any
direction. Nonetheless the evidence
gives rise to a significant possibility that he was reacting as best he could ‘in
the agony of the moment’ in circumstances where charges would be unlikely
against a motorist.<o:p></o:p></div>
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The charge of ‘wanton or furious’ driving is also
puzzling. Although the archaic 1861
wording could encompass more, it generally relates to speed. Reports of the prosecution’s closing speech
reveal this case to be no exception with reference to a ‘machine built for
speed’ (apparently said without irony given what else is on our streets). This may have been glossed with the rather
circular argument that the speed was too high for a bicycle with no front
brake. On any objective view, 18mph is a
cautious speed and on a busy London Street matching the speed of other traffic,
rather than going much slower, is a wise precaution. Any suggestion that it is too fast applies a
peculiar double standard and would potentially criminalise many riders. Alliston
was cross examined about his lack of a safety helmet and his penchant for
certain stunt riders which were said to demonstrate some unacceptable risk
taking attitude. However, notwithstanding
the proliferation of CCTV throughout London, the prosecution had found not a
jot of evidence that Alliston’s riding resembled that in an ‘alley cat’
movie. None of this has any bearing,
beyond the purely prejudicial, to a young man travelling at 18 mph down a busy
London road. Some press reports were full of language (‘ploughed
into’ etc.) that is seldom seen when a car driver (or as was being dealt with
in a nearby Court, a speeding motorcycle rider) runs down a pedestrian. Alliston may not have revealed himself to be
a very attractive character and no one can fail to feel anguish about the
terrible waste of yet another life.
However there is a lot about the bringing of charges at this level, and
the conviction for furious or wanton cycling to cause substantial disquiet
notwithstanding Alliston’s acquittal on the manslaughter charge. If it is going to make any meaningful
contribution to the reduction of danger on the roads, our criminal justice
system needs to recalibrate away from the prejudice that motoring is innocuous
and cycling dangerous and towards controlling the behaviour of those imposing
greatest risk.<o:p></o:p></div>
</div>
</div>
Martin Porterhttp://www.blogger.com/profile/07802050121734667593noreply@blogger.com211tag:blogger.com,1999:blog-7651597981151570147.post-15094033894009156092017-03-20T12:11:00.002+00:002017-03-20T12:21:41.117+00:00Legal Update Spring 2017<div class="MsoNormal">
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<b><u>Contributory Negligence
(1) undertaking a left turning vehicle<o:p></o:p></u></b></div>
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In <i>McGeer v Macintosh</i>
(2017) the Court of Appeal had to consider the sadly common event of a left
turning HGV colliding with a cyclist to the nearside on a city street (in this
case Ellesmere Port). The HGV had been
at a set of traffic lights, indicating left, ahead of the Claimant on her
bicycle. Because of the length of his
vehicle he straddled both a left/straight lane and a lane marked for turning
right. Immediately behind him was a car
that obscured his rear left turn indicator.
He claimed to have looked in his left mirror before moving off when the
light changed green in his favour. The
Claimant on her bicycle, travelling at no more than 16.5 mph undertook the car
and then the lorry. As she undertook the
lorry its driver turned left and the collision occurred.<o:p></o:p></div>
<div class="MsoNormal">
There was debate about whether the Claimant should have been
visible in the driver’s mirror before he moved off. There was certainty that she would have been
visible after he moved off but immediately before he turned. The Defendant disputed that he was liable at
all but this was rejected. He should
have been aware of the potential for an undertaking cyclist and that his
indicator may have been obscured by a following vehicle. He should have checked his mirror before
moving off and again before turning. He was
liable.<o:p></o:p></div>
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The Claimant though contributed to the collision. She should not have made any assumption about
the intended direction of the lorry. The
trial judge assessed her contribution at 30%.
The Defendant challenged this saying that the greater speed of the
bicycle compared to the HGV made her responsibility the greater. The
Court of Appeal, in agreement with the trial Judge, had no difficulty rejecting
this:<o:p></o:p></div>
<div class="MsoNormal">
<i>“I consider that
whilst the judge had found that both parties were at fault in the respects identified
by the judge, it was appropriate for him to take into account the causative
potency of the HGV, given the likelihood of very serious injury to a cyclist in
the event of a collision. Although Mr Herbert sought to discount this on the
basis of the low speed of the HGV, I consider that the judge was entitled to
find that it was potentially a very dangerous machine. Its size and bulk were
such that in the event of collision it constituted a very serious danger to a
person in the position of the claimant.”</i><o:p></o:p></div>
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The Court opined that this case raises no issue of law,
precedent or other matters of general significance and that the result is of
significance only to the parties.
However cases on the actual apportionment of liability where a cyclist
has undertaken a left turning vehicle are thin on the ground and Defendants’
insurers will often seek a 50% or so reduction in such cases. This decision reaffirms that the degree of
hazard presented by the vehicle (great in the case of an HGV, very modest in
the case of a bicycle) are very important factors when apportioning liability.<o:p></o:p><br />
<br /></div>
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<b><u>Contributory
Negligence (2) Time trialling and failing to avoid an emergency created by
another<o:p></o:p></u></b></div>
<div class="MsoNormal">
In <i>Rickson v Bhakar</i>
(2017) the High Court made a finding of contributory negligence of 20% against a
claimant who was taking part in a time trial on the A27 dual carriageway. The defendant driver had been travelling in
the opposite direction and turned right through a gap in the central reservation
into the Claimant’s path. Although the claimant
had swerved immediately before the collision it was found that he could have
braked earlier. As a consequence of his
injuries the claimant was not in a position to explain what had occurred. It was inferred that he either had his head
down or was too focussed on his performance.
A tough lesson that even in the heat of competition a cyclist must be
alert and ready to respond to the carelessness of other road users.<o:p></o:p></div>
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<br /></div>
<div class="MsoNormal">
<b><u>Potholes</u></b><o:p></o:p></div>
<div class="MsoNormal">
Potholes are of particular concern to cyclists. The divergence of judicial opinion over the
extent of a Highway Authority’s duty to maintain the roads is illustrated by
the Court of Appeal decision in the case of <i>Crawley
v Barnsley MPC</i> (2017). This case
involved a jogger at the weekend. The
majority of the Court of Appeal found that a Highway Authority should have in
place a workable system for dealing with dangerous defects reported to them
over the weekend.<o:p></o:p></div>
<div class="MsoNormal">
Of interest more specifically to cyclists is a Surrey
Coroner’s decision to make a ‘Prevention of Future Deaths’ report directing
highway authorities to have specific regard to the dangers presented to
cyclists by hazards anywhere in the road, and not just on cycle
lanes/paths. I will comment further once
the PFD is published.<o:p></o:p></div>
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<br /></div>
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<b><u>The discount rate<o:p></o:p></u></b></div>
<div class="MsoNormal">
A significant development on the quantum of serious personal
injury cases, including those affecting cyclists, is the Lord Chancellor's
determination that the ‘discount’ rate whereby damages for future loss are
adjusted due to receipt in advance of expenditure, be reduced from 2.5% to
-0.75%. The rate has been 2.5% since it
was first set by the then Lord Chancellor in 2001.
Prior to 2001 the discount rate had been a matter for the Courts and
when I started practice was as high as 4.5%.
The effect of the change is that damages for future loss sustained some
years ahead (for example compensation for care needs required in the future)
will be much greater. To some extent
this may be balanced by the fact that compensation for having to sink
additional capital into housing to meet the needs of a disabled person are
likely to be reduced or even, arguably, eliminated.<o:p></o:p></div>
<div class="MsoNormal">
The insurance industry has been scathing about the change. However if they had been paying attention to
what has been happening in jurisdictions which apply English law, but where the
Courts continue to set the discount rate, they will have noticed that negative
rates have long been a feature. The leading
case was from Guernsey and just one year ago a client of mine benefitted from
the Court of Appeal in Bermuda adopting the same approach.<o:p></o:p></div>
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A negative discount rate may appear counterintuitive. It arises because the costs of, for example
personal care, will increase with wage inflation. In contrast investment in the most secure
available investments, such as index linked gilts, will increase at a rate
lower than wage inflation. It is harsh
to require a severely disabled claimant to take a market risk by investing in
equities since she may end up investing at a peak and will have no alternative source of income from
which to take advantage of any troughs. Nor
will she be able to defer realising investments to cover the wages of her
carers.<o:p></o:p></div>
<div class="MsoNormal">
Tantalisingly though the Lord Chancellor has indicated that
the whole basis of her power to set the discount rate in the Damages Act will
be the subject of further review.<o:p></o:p></div>
<br />
<div class="MsoNormal">
Finally no discussion of the discount rate would be complete
without mentioning the alternative, long favoured by the National Health
Service, but also now more attractive to motor insurers, of providing for
future needs by regular periodical payments indexed to a suitable measure of
inflation.<o:p></o:p></div>
Martin Porterhttp://www.blogger.com/profile/07802050121734667593noreply@blogger.com2tag:blogger.com,1999:blog-7651597981151570147.post-74448306950198666712016-12-07T16:33:00.001+00:002017-08-24T07:12:03.892+01:00The Government’s Proposals on Sentencing Bad Drivers. Plenty of Retribution but No Deterrence<div align="center" class="MsoNormal" style="text-align: center;">
<br /></div>
<div class="MsoNormal">
On 4<sup>th</sup> December, in time for the Sunday papers,
the Government issued a press release entitled ‘Killer Drivers to Face Life
Sentences’. The text below that headline
proclaims that ‘Government acts to introduce life sentences for causing death
by dangerous driving’. In fact the
Consultation Paper issued by the Ministry of Justice on the same day invites
views on proposals which include increasing the current maximum sentence of 14
years imprisonment for causing death by dangerous driving to a maximum of life
imprisonment. It seeks views on the same
increase in the maximum sentence in relation to causing death by careless
driving whilst under the influence of drink or drugs. The latter offence incidentally surely
already amounts to causing death by dangerous driving but is designed to
circumvent a typical jury’s peculiar reluctance, in this area, to convict.<o:p></o:p></div>
<div class="MsoNormal">
The somewhat hyperbolic press release presumably looks ahead
to the Government acting once it gets the answers it expects to its consultation
exercise relating to life imprisonment for these very worst offenders. The proposals have been welcomed by many
victims’ groups who have been understandably dismayed at the operation of the
criminal justice system in the worst cases.
This is though all about retribution.
Retribution is not a bad concept in itself and to the extent that the proposals
go some way to lessen the anger and frustration understandably experienced by many
bereaved families they are to be welcomed.
<o:p></o:p></div>
<div class="MsoNormal">
However, nobody is going to wake up the morning after these
proposed changes are implemented and resolve that they will drive better
because the maximum term of imprisonment is no longer limited to 14 years. These proposals will do nothing to reduce
levels of road danger imposed by bad drivers upon others and particularly upon
vulnerable road users. They are an easy fix for a Government which wishes to
appear tough without doing anything to stop bad driving in its tracks before it
causes tragedy. Any solace that they may
provide for bereaved families are bound to be in large part offset by the
constraints upon Judges which mean that sentences of life imprisonment are
never in practice going to be handed out to those who kill unintentionally. The best
that can be said is that this will align the penalties with manslaughter (which
of course causing death by dangerous driving already is, though the separate offence
was required because juries cannot be relied upon to convict of manslaughter
even in cases where the evidence of dangerous driving leading to death is very
strong). Judges are likely to be constrained
to pass sentences that will appear soft compared to the maximum penalty and
further angst may arise from that.<o:p></o:p></div>
<div class="MsoNormal">
One welcome proposal is the creation of a new offence of
causing serious injury through careless driving. That this new offence is required is demonstrated
by the tragic case of Mary Bowers, the journalist who suffered catastrophic
brain injuries but lived following being run down by an HGV. The driver was acquitted of causing serious injury
by dangerous driving. Instead he was
convicted of careless driving, a minor offence with no draconian sentencing option. Having an alternative option of causing
serious injury by careless driving will fill a gap and enable a Judge where the
standard of driving has been close to dangerous to sentence appropriately. However the proposed 2 or 3 year maximum
penalty is one I would argue against.
This should be a summary offence with a maximum imprisonment of 6
months. It would then only get to a jury
when associated with a charge of dangerous driving. Were it a more serious triable either way
offence then large quantities of cases currently tried in the Magistrates’
Courts would be sent, at the election of the Defendant, to a Crown Court with a
hope of attracting the empathy of a jury.
Some police forces and CPS regions have a policy of only prosecuting
careless driving where there has been injury so the scale of this proposed change
should not be underestimated. In the
interests of deterrence I suggest that we should be willing to sacrifice an
element of retribution. It is highly
doubtful that many, if any, drivers who cause serious injury by careless
driving will be imprisoned for terms exceeding 6 months (the power available to
Magistrates). Why then give them the
option of a jury trial? Indeed I have
previously argued we should go the opposite way and downgrade dangerous driving
which causes no injury to a summary offence so that the culprits are more
speedily and reliably dealt with and taken off the roads.<o:p></o:p></div>
<div class="MsoNormal">
A further proposal is minimum driving bans. This is clearly required but not only in the
worst cases. We have far too many
potentially lethal drivers allowed back onto the roads notwithstanding the existing
legislation. This is scandalous and the
Consultation Paper ought to be doing away with ‘special reasons’ and ‘exceptional
hardship’ pleas to avoid an otherwise mandatory disqualification. If you can afford it you can get a specialist
lawyer to press all the right buttons to ensure you get to continue to drive. This is an industry that must be snuffed out
on the basis that an offender should have thought about the consequences of
losing his licence before committing the offence.<o:p></o:p></div>
<div class="MsoNormal">
Overall retribution is fine, though the retribution may be
more illusory, than real. However this
is a long promised review of driving offences and sentencing more
generally. It is a great pity there is
nothing there that might provide real deterrence. Real deterrence involves increasing the
chance of being caught and punished for the poor driving behaviour that is far
too widespread before, often as an outcome of pure chance, it causes devastation.<o:p></o:p></div>
<br />
<div class="MsoNormal">
We need a real review of what is being done at the opposite
end of the scale. Increasing penalties
for use of mobile devices (a separate Government proposal) is a useful start
but a dramatically increased rate of detection and the unavailability of special
pleading are essential concomitants. The
Government should find time and resources for real support of the initiatives
of the police in the West Midlands and in Camden which focus on poor and intimidatory
driving in the vicinity of the most vulnerable.
The Consultation paper observes that the numbers of those killed on the
roads has been declining since the 1960s.
It does not include the sad fact that this is not true of vulnerable
road users. Much further positive action
is required to address this.<o:p></o:p></div>
Martin Porterhttp://www.blogger.com/profile/07802050121734667593noreply@blogger.com10tag:blogger.com,1999:blog-7651597981151570147.post-59090225327346723072016-09-19T16:09:00.000+01:002016-09-19T16:09:19.078+01:00Leigh Day Helli-va Ride<div class="separator" style="clear: both; text-align: center;">
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This Thursday evening a group of hardy young lawyers from Leigh Day are going to set out from Hoddesdon in Herts to start a clockwise arc down to Sevenoaks, Kent which will begin the trace of a giant 'H' inside a circle, a heli-pad sign, covering the area that the London Air Ambulance Service serves.</div>
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<a href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEgQjpUD1ThEfRa35AZXLPdn5wFRahqN17ZfIsuSUzd25iijNzLasw2D50oFXpwFspTV2tPUxSgZMJg2XthJscDXNAlLHTLHmR2engZN6-OQLleG0gIzwOdY2H7ugR3p36h_5YkHr-3aZ-0/s1600/helivaride.jpg" imageanchor="1" style="margin-left: 1em; margin-right: 1em;"><img border="0" height="331" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEgQjpUD1ThEfRa35AZXLPdn5wFRahqN17ZfIsuSUzd25iijNzLasw2D50oFXpwFspTV2tPUxSgZMJg2XthJscDXNAlLHTLHmR2engZN6-OQLleG0gIzwOdY2H7ugR3p36h_5YkHr-3aZ-0/s400/helivaride.jpg" width="400" /></a></div>
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These lawyers are the ones likely to be looking after your financial interests if you are both unlucky enough to be involved in a collision and are a member of British Cycling, so it is nice to know not only that they can cycle but that they are superhuman too. The ride is just over 300 miles and the team will be riding round the clock aiming to finish in 19 hours. A remarkable pace given how much of the ride is in congested London.</div>
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Not being superhuman - I cannot do 300 miles and I cannot ride through the night and through the following day without being a liability to myself and others - I am planning merely to do the second half. As dawn breaks on Friday morning I will link up with them just west of Epsom to complete the job.</div>
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I am apprehensive about doing <u style="font-weight: bold;">half</u> what they are doing. Even 150 miles is the longest ride I have ever done. So, as they are doing twice that, they really do deserve support. So do not sponsor me sponsor them.</div>
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Also the cause is a hugely admirable one. The London Ambulance Service relies upon charitable fund raising of this sort. They will be there for you if you crash in London. On a personal note I am extremely lucky they were there for me on 4th January 2014 when I came down very hard during the Imperial Winter Series at Hillingdon.</div>
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<a href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEiZpt_4F2zBlEoWN3CSFHpNyw-uMVoaXpaSs0J5Ma_P5fRt12aSMx0gwQoJKWUd4NMaEFNjsCqQlV5wGdnClDF9bXHKeVwANi8pQAij9Jm2xO6-dlkod2UQF-GU1nTKpwbsXQ214rueYNw/s1600/heli.jpg" imageanchor="1" style="margin-left: 1em; margin-right: 1em;"><img border="0" height="361" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEiZpt_4F2zBlEoWN3CSFHpNyw-uMVoaXpaSs0J5Ma_P5fRt12aSMx0gwQoJKWUd4NMaEFNjsCqQlV5wGdnClDF9bXHKeVwANi8pQAij9Jm2xO6-dlkod2UQF-GU1nTKpwbsXQ214rueYNw/s640/heli.jpg" width="640" /></a></div>
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So do please support, the link is here:<br />
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http://londonsairambulance.co.uk/events/independent/heli-va-ride<br />
<br />Martin Porterhttp://www.blogger.com/profile/07802050121734667593noreply@blogger.com2tag:blogger.com,1999:blog-7651597981151570147.post-54872156712022413622016-09-07T21:20:00.001+01:002016-09-07T21:24:19.261+01:00The Criminal Justice System; How it fails us and how it needs reform<div class="MsoNormal">
Nobody could fail to be deeply moved by hearing, as I did on
Radio 4 this morning, the relatives of victims killed by dangerous drivers
speaking about how they felt the killers responsible should face charges of
manslaughter rather than death by dangerous driving. The amazing charity, Roadpeace, has been
calling for this for years and is now, due to recent events, at last getting
somewhere with Prime Minister May indicating at today’s Prime Minister’s
Questions that the Department of Justice are to review the laws relating to
those who cause death by dangerous driving.</div>
<div class="MsoNormal">
<o:p></o:p></div>
<div class="MsoNormal">
I welcome this of course.
However what appears to me to be at least as important is that the
killer of Lee Martin (the cyclist whose brother was on Radio 4) was a serial
offender who had been caught on 8 previous occasions texting whilst
driving. On the last such occasion just
6 weeks before he killed Lee Martin, Christopher Gard had pleaded with
magistrates that he should be permitted to keep his licence to drive because
otherwise he would suffer ‘special hardship’.
It is a sad sad indictment of the way in which the criminal justice
system operates in relation to such relatively low level offending that his
plea succeeded.<o:p></o:p></div>
<div class="MsoNormal">
This is the worst manifestation yet of the ‘no harm done’
mentality: he was permitted to continue to drive and therefore to kill.<o:p></o:p></div>
<div class="MsoNormal">
Gard probably thought he was a safe driver, almost every
driver does. Yes, he texted all the time
as he drove but until he ran down Lee Martin no harm done and no really serious
consequences to him. Equally with drivers
who close pass cyclists and/or speed excessively (I attempted unsuccessfully
once to prosecute one) no harm done so why any fuss?<o:p></o:p></div>
<div class="MsoNormal">
I heard the piece on Radio 4 just after I had written a
piece for the Telegraph about the Jeremy Vine incident. Jeremy said he reported the matter to the police
because the woman involved would one day harm somebody. He is right.
Behaviour such as that in his video and such as that exhibited by Gard
leading to his previous attendances before magistrates needs to be checked
BEFORE they kill. That is why, rightly
or wrongly, I expended enormous time and energy in prosecuting a man who passed
me at 50-60 mph in a 30 mph zone with a clearance of 0.7 metres. No harm done on that occasion but what about
next time?<o:p></o:p></div>
<div class="MsoNormal">
Were my life to be cut short by an offender who had
transgressed before, my ghost would be haunting the people who failed to act
upon the earlier minor transgressions when ‘no harm was done’ rather than those
whose decisions led to nine rather than twelve years imprisonment when it was
too late to save me.<o:p></o:p></div>
<div class="MsoNormal">
I place prevention and deterrence well above
retribution. I would prefer the high likelihood
of relatively minor punishment (disqualification) over the remote chance of
high punishment. It probably seemed to
Gard very unlikely he would kill. No
doubt he had been texting and driving for years without serious comeback. He would have been more likely to be deterred
by meaningful punishment for minor infraction than the remote prospect of serious
punishment if he killed.<o:p></o:p></div>
<div class="MsoNormal">
This is why I believe the review should not just look at
throwing the book at the worst offenders but also at making a serious effort to
crack down on relatively low level offenders who have not yet killed but whose casual
texting, close-passing, speeding etc. increases the risk that they will kill or
seriously harm in the future. We have
made some progress in recognising that drink drivers need to be taken off the
road even if ‘no harm done’. Do let us extend
this and take away the privilege of driving from those who are likely to
harm. A review of the absurd system of
pleading ‘special reasons’ to keep a licence to drive notwithstanding serial
offending would be a useful start. In
addition the equally absurd view adopted by many police forces that if there is
no injury due to careless or dangerous driving then it is not in the public
interest to prosecute must be jettisoned.<o:p></o:p></div>
<br />
<div class="MsoNormal">
Stiffer sentencing for manslaughter / dangerous driving
captures the public mood and politicians’ interest but let us not forget that
the kid-glove treatment of relatively minor offending left Gard to kill Lee
Martin in the first place.<o:p></o:p></div>
Martin Porterhttp://www.blogger.com/profile/07802050121734667593noreply@blogger.com7tag:blogger.com,1999:blog-7651597981151570147.post-65998749462786313072016-04-09T12:37:00.001+01:002016-06-08T16:44:42.982+01:00I have not yet had my mind changed on jury trials<div class="MsoNormal">
My last piece on jury trial in dangerous driving cases has
sparked some lively debate. I have enjoyed
some interesting discussion with well-informed people some of whom agree some do
not, as of course is their unqualified right.<o:p></o:p></div>
<div class="MsoNormal">
It is not a piece that has gone down well with all my
colleagues practising at the criminal bar.
It is perhaps worth my making the following points by way of response.<o:p></o:p></div>
<div class="MsoNormal">
We all have a right to a fair trial. I agree that if we are at risk of going to
prison for a long stretch we should all have the right to a jury. However it is possible to have a fair trial
without a jury. In Scotland (for
example) the Defendant has no right to insist on a jury in offences triable
either way like dangerous driving. One possible
solution may be to leave the Magistrates with the option of determining mode of
trial and selecting summary trial where they are satisfied their powers of
punishment are sufficient. International
War Crimes are not tried by juries. Lack
of jury does not equate to lack of justice.<o:p></o:p></div>
<div class="MsoNormal">
There has been a suggestion that as I am not a Criminal
Lawyer I have no right to voice my opinion on criminal law and procedure. I refute that. I am a personal injury lawyer who often meets
the spouses, parents and children of those killed on our roads as well as other
victims of bad driving. I have sufficient
perspective to appreciate that dissatisfaction with the current system is close
to universal amongst the victims of such crime.
I do not pretend to be sure about what the solutions are but looking at
speedy, effective and affordable ways of parting dangerous drivers from their licences
seems to me a valid start. Clearly this
is no laughing matter and some of the flippancy I have encountered is deeply
inappropriate. I have never claimed to
be a criminal lawyer and in an open democratic society we are all entitled to
express our views on crime and the criminal process. I do not scoff at those who express views
relating to the areas of law in which I practice.<o:p></o:p></div>
<div class="MsoNormal">
Alongside complaining of my lack of experience in criminal
law is the complaint that I have recent experience of prosecuting a dangerous driving
case which led to an acquittal. Again I
have never hid that and I cheerfully concede that I think that the Magistrates’
Court would have been a more appropriate place to have had a trial in that case. It would unquestionably have been faster and
much cheaper (a relevant factor perhaps since by way of distraction complaint
is made about my costs of so doing). Incidentally
I have been unfailingly polite to those who wish to see their own favoured
change in the current law on the recoverability of such costs and even argue
(unlike me) that their proposed changes should act retrospectively.<o:p></o:p></div>
<div class="MsoNormal">
There has been innuendo that my private prosecution should never
have been brought. That too I
refute. There are numerous safeguards to
prevent private prosecutions where the evidence is not strong, or the public
interest not served, from going to a jury.
Criminal lawyers understand this
but one or two persist in asserting that the fact that the police did not
prosecute implies that I should not have done.
The fact is that acquittals against the strength of the evidence trickle
down through the system to affect decisions to charge.<o:p></o:p></div>
<div class="MsoNormal">
It has been suggested I have no evidence to support my
arguments and/or that I have singled out driving for no good reason. There have been plenty of cases involving
motorists and vulnerable road victims where the results have been disquieting
and I cover very many of them in my blog.
My article expressly explains that the ‘There but for the grace of God’
empathy applies peculiarly to driving cases.
Since writing the piece I have been contacted by many people engaged in
the criminal justice process in just about every way whose experiences confirm there
is a problem to be addressed.<o:p></o:p></div>
<br />
<div class="MsoNormal">
I am very open to persuasion that my views are wrong but so
far have seen far more heat than light expressed by those content with the
status quo. I think I have dealt with
most of their arguments as I understand them.<o:p></o:p></div>
Martin Porterhttp://www.blogger.com/profile/07802050121734667593noreply@blogger.com5tag:blogger.com,1999:blog-7651597981151570147.post-75161234358261330082016-04-08T09:15:00.001+01:002016-06-08T16:44:42.985+01:00It is time to rethink a Defendant’s right to a jury in driving cases<div class="MsoNormal">
<b><span style="font-size: large;">It is time to rethink
a Defendant’s right to a jury in driving cases<o:p></o:p></span></b></div>
<div class="MsoNormal">
<span style="font-size: large;">Trial by a jury of one’s peers when accused of serious crime
is a bed rock of the English legal system.
Nonetheless in general you can incur a punishment of up to six months’ imprisonment
following conviction by the Magistrates’ Court.
In the context of road traffic offences only the most egregious of
offenders faces anything like six months in jail. Most Defendants charged with a traffic
offence like dangerous driving or causing death by careless driving which are
triable ‘either way’ (that is, by magistrates or Judge and jury) will be
advised, correctly, that they stand a much better chance of acquittal before a
jury. This is a massively expensive and
rather slow way of determining whether or not a Defendant should lose his
licence and face a non-custodial penalty.
In addition jury acquittals in the teeth of strong evidence particularly
where the harm has been to a vulnerable cyclist or pedestrian do nothing to
bolster confidence in the criminal justice system, let alone to improve actual
and perceived safety on our roads.<o:p></o:p></span></div>
<div class="MsoNormal">
<span style="font-size: large;">In recent weeks juries have acquitted a lorry driver who ran
down an elderly pedestrian couple crossing a road in a shopping centre car park
(death by dangerous driving), a lorry driver who turned left at Ludgate Circus without
ensuring there was no cyclist on his nearside (death by careless driving), a
car driver who passed a group of cyclists colliding with one and then driving
into him when he sought to remonstrate (dangerous driving and assault). Often the juries acquit in under an hour in
such cases heightening disquiet as to the result. <o:p></o:p></span></div>
<div class="MsoNormal">
<span style="font-size: large;">Juries will of course sometimes convict particularly where a
vehicle occupant is plainly endangered. In
a very recent case a jury convicted Melissa Berry of dangerous driving. She had terrified her passengers with a
sustained period of very high speed (up to 120 mph) driving in the lanes of
Devon and hit a wall spinning her car onto its roof. She
was sentenced to 12 weeks’ imprisonment which was suspended and so was very
comfortably indeed within the powers of a Magistrates’ Court. There must be a serious question over whether
she would have persisted with a ‘Non Guilty’ plea had she not had a jury trial.<o:p></o:p></span></div>
<div class="MsoNormal">
<span style="font-size: large;">The position has really not improved, arguably it has
worsened, since the way in which the justice system dealt with the drivers who
killed Rob Jefferies and destroyed the life of Mary Bowers caused such
legitimate concerns to British Cycling and The Times Newspaper
respectively. Although some driving
offence penalties have been increased, the vanishingly small prospect of
conviction negates any real deterrent effect.<o:p></o:p></span></div>
<div class="MsoNormal">
<span style="font-size: large;">The problems with jury trial for motoring offences are as
follows:<o:p></o:p></span></div>
<div class="MsoListParagraphCxSpFirst" style="mso-list: l0 level1 lfo1; text-indent: -18.0pt;">
<!--[if !supportLists]--><span style="font-size: large;">1.<span style="font-stretch: normal;"> </span><span style="font-stretch: normal;">1. </span><span style="font-stretch: normal;"> </span><!--[endif]-->Motoring offences are far more likely than other
serious crimes to invoke empathy and compassion from a jury. “There but for the grace of God go I” is not
a thought likely to cross many jurors’ minds in cases of murder, rape,
terrorism or knife crime. The law
excludes people who have served significant prison sentences in the past 10
years from sitting on a jury. It does
not exclude the significant proportion of the population who have been (fairly
or unfairly in their view) subject to minor penalties for road traffic
infringements. In addition we live in a
motor centric society where the overwhelming majority of jurors can be expected
to be drivers, many of whom will have been subject to lapses of concentration
or worse whilst operating a motor vehicle.
Far fewer will have similar levels of empathy to a non-motoring (and
particularly a cycling) victim. Feelings
of empathy with and compassion for an accused may confound justice in a hidden
way that is far less likely where, as in a Magistrates’ Court, reasons for a
decision are required.<o:p></o:p></span></div>
<div class="MsoListParagraphCxSpMiddle" style="mso-list: l0 level1 lfo1; text-indent: -18.0pt;">
<!--[if !supportLists]--><span style="font-size: large;">2.<span style="font-stretch: normal;"> </span><span style="font-stretch: normal;">2. </span>Juries have no influence over, and perhaps
little understanding of, the sentence likely to be imposed if they return a
guilty verdict. They may be aware that
on conviction the maximum sentence for dangerous driving is 2 years and feel
that imprisonment would be disproportionate to the offence. A disinclination to expose a person with whom
they may have empathy to possible imprisonment may influence their verdict.<o:p></o:p></span></div>
<div class="MsoListParagraphCxSpMiddle" style="mso-list: l0 level1 lfo1; text-indent: -18.0pt;">
<!--[if !supportLists]--><span style="font-size: large;">3.<span style="font-stretch: normal;"> </span><span style="font-stretch: normal;">3. </span><!--[endif]-->The resources devoted to a jury trial for a
motorist charged with dangerous driving are disproportionate. A jury trial is expensive. A trial that would take one day before
Magistrates is likely to take three days before a jury. This is not a wise allocation of limited
state resources.<o:p></o:p></span></div>
<div class="MsoListParagraphCxSpMiddle" style="mso-list: l0 level1 lfo1; text-indent: -18.0pt;">
<!--[if !supportLists]--><span style="font-size: large;">4.<span style="font-stretch: normal;"> </span><span style="font-stretch: normal;">4. </span><span style="font-stretch: normal;"> </span><!--[endif]-->Delays in the Crown Court are unavoidable
particularly where, as is overwhelmingly likely in driving cases, the Defendant
is not remanded in custody. Whatever the
aspirations of the Criminal Procedure Rules it typically takes 6 months from
the initial hearing in a Crown Court to a trial. There is some research evidence that
certainty and speed of punishment are more important factors in deterring crime
than the severity of punishment.<o:p></o:p></span></div>
<div class="MsoListParagraphCxSpMiddle" style="mso-list: l0 level1 lfo1; text-indent: -18.0pt;">
<!--[if !supportLists]--><span style="font-size: large;">5.<span style="font-stretch: normal;"> 5.</span><span style="font-stretch: normal;"> </span><!--[endif]-->There are now separate offences for causing
death by dangerous driving and for causing serious injury by dangerous
driving. A dangerous driving charge <i>simpliciter</i> will therefore only arise
where there has been no death or serious injury. Whatever the sentencing guidelines say,
Judges are most unlikely to impose sentences beyond the powers of the Magistrates’
Court, following conviction on a dangerous driving charge where no death or
serious injury has resulted. There are
strong arguments that the best form of punishment in such cases is a period of
disqualification in respect of which the powers of the Magistrates and of the
Crown Court are the same.<o:p></o:p></span></div>
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<!--[if !supportLists]--><span style="font-size: large;">6.<span style="font-stretch: normal;"> 6</span><span style="font-stretch: normal;">. </span><!--[endif]-->There is a very considerable temptation on the
part of prosecutors to undercharge cases, or even not to charge, in order to
avoid a trial by jury. This is
undesirable. The offences of careless or
inconsiderate driving (for which a Defendant cannot elect jury trial) are
relatively minor offences designed to deal with momentary inattention, queue
barging, middle lane hogging, splashing pedestrians and the like. Dangerous driving that fits the statutory
definition of driving far below the careful standard and in a manner in which
danger should be obvious, should be charged as such. According to the Crown Prosecution Service
typical examples from court cases of dangerous driving include going too fast,
driving aggressively, ignoring road signs, overtaking dangerously or being
avoidably and dangerously distracted. The
CPS have just dropped a dangerous driving charge against a pop star accepting a
guilty plea to drink driving instead. The
perceived difficulties in securing convictions in motoring offences have a
knock on effect whereby the Police, who have the ability to decide on no
further action in any case and who will perhaps even overestimate these
difficulties, will often fail to take any action when they should. The Transport Select Committee has, in its
recent report on Road Traffic Law Enforcement, called on the Home Office to
commission research into how complaints of collisions or near misses involving
cyclists are handled by the Police and how this impacts upon the proportion of
people who believe it to be too dangerous to cycle. </span><br />
<span style="font-size: large;"> It is suggested that there is a
clear case for removing the right to a jury trial from those charged with
dangerous driving. This could be at the discretion of the Magistrates as proposed by Jack Straw in respect of triable either way offences in 2000. It should be noted that in Scotland the mode of trial in either way offences is already not (solely) up to the Defendant as it is in England. </span><br />
<span style="font-size: large;"> Many of the same
arguments could apply also to causing death by careless driving where again the
likely punishment if convicted falls within the competence of a Magistrates
Court. Causing serious injury by
dangerous driving and causing death by dangerous driving are much more serious
offences although it should be borne in mind that the most serious of these
could, and perhaps should, be charged as cases of assault occasioning grievous
bodily harm and manslaughter respectively.
If reforming dangerous driving proves to be successful in terms of
better deterring the crime then extensions to other driving offences could well
be considered. It would, of course, be
essential to take full account of the views of victims and their
representatives before extending any reform to the offences which involve
causing death or serious injury.</span><br />
<span style="font-size: large;"> We must certainly do
something. A whole generation of
citizens is being brought up to be driven everywhere, particularly to school,
on the grounds that active travel is perceived by their parents to be too
dangerous. This attitude then continues
into adult life and into the jury box. It
is a small minority of bad drivers responsible for this perception and they
must be tackled.</span></div>
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<span style="font-size: large;"><br /></span>
<br />
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<i><span style="font-size: large;">Martin Porter QC is a leading personal injury/clinical negligence
lawyer practising at 2 Temple gardens, London.</span><o:p></o:p></i></div>
Martin Porterhttp://www.blogger.com/profile/07802050121734667593noreply@blogger.com5tag:blogger.com,1999:blog-7651597981151570147.post-78645512396127705582016-03-31T18:07:00.000+01:002016-06-08T16:44:42.987+01:00Lessons from a Private Prosecution 2(b) The Evidence RequiredThis 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.<br />
<br />
<br />
The evidence has to be strong, very strong and then if you can stronger still.<br />
I think in hindsight my evidence was simply strong.<br />
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.<br />
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.<br />
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. <a href="https://www.strava.com/activities/254079242" target="_blank">Strava link</a> , this and all the underlying data was disclosed.<br />
I had solid identification evidence from the Surrey PC, though the Defendant persistently refused to accept his evidence.<br />
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.<br />
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.<br />
<br />
<i>What's required for a charge to reach a jury?</i><br />
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.<br />
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 <i>"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"</i>. Note this is a significantly more restrictive test than that applied by a Judge in considering whether to dismiss a charge.<br />
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 <i>Gujra v DPP </i>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.<br />
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.<br />
<br />
<br />
<i>Anything missing?</i><br />
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 "D<span style="font-family: "times new roman" , serif; font-size: 12pt;">on’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.</span><br />
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.<br />
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.<br />
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.<br />
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.<br />
None of that mentioned before or put to me or the PC or put to the expert.<br />
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.<br />
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.<br />
<br />
<i>The film</i><br />
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.]<br />
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.].<br />
<br />
Here it is. Please respect my copyright, though I have no problem with links back to this site.<br />
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(c) Martin Porter</div>
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<i>The next post will look at reporting the incident.</i><br />
<br />Martin Porterhttp://www.blogger.com/profile/07802050121734667593noreply@blogger.com2tag:blogger.com,1999:blog-7651597981151570147.post-59373757247808597132016-03-29T17:21:00.001+01:002016-06-08T16:44:42.980+01:00Lessons 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.<br />
<br />
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).<br />
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Contrast the Metropolitan Police who declined to take any action in respect of this HGV:<br />
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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.<br />
<br />
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.<br />
<br />
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.<br />
<br />
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..<br />
<br />
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.<br />
<br />
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:<br />
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<br />
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.<br />
<br />
<i>The next post on this subject will look at my factual evidence, how strong it was and how it might have been stronger.</i>Martin Porterhttp://www.blogger.com/profile/07802050121734667593noreply@blogger.com5tag:blogger.com,1999:blog-7651597981151570147.post-19790613818682735872016-03-26T12:08:00.001+00:002016-06-08T16:44:42.973+01:00Cameron's Cycling Revolution - Why I am not waiting for it and why I am getting fed up<a href="http://www.thetimes.co.uk/tto/public/cyclesafety/article4722048.ece" target="_blank">The Times</a> 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.<br />
<br />
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). <br />
<br />
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.<br />
<br />
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).<br />
<br />
This casual assumption that cycling is dangerous extends to totally misdirected law enforcement. <a href="http://www.thetimes.co.uk/tto/news/politics/article4654664.ece" target="_blank">The Times (this time behind a pay wall)</a> 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 <a href="https://drive.google.com/file/d/0Bzho2RYpC3VuNEpPbTdnbmRrc28/view" target="_blank">this article</a> 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.<br />
<br />
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.Martin Porterhttp://www.blogger.com/profile/07802050121734667593noreply@blogger.com4tag:blogger.com,1999:blog-7651597981151570147.post-37159406805679918852016-03-24T17:07:00.001+00:002016-06-08T16:44:42.978+01:00Lessons from a Private Prosecution (1) The Criminal Justice SystemI 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.<br />
<br />
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.<br />
<br />
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.<br />
<br />
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.<br />
<br />
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.<br />
<br />
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.<br />
<br />
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.<br />
<br />
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.<br />
<br />
In subsequent posts I plan to consider:<br />
2. The factual evidence. What is required? What type of incident?<br />
3. Was I the right complainant?<br />
4. Reporting to the police.<br />
5. The difficulties presented by the requirement of a Notice of Intended Prosecution.<br />
6. Starting a prosecution by laying an information before magistrates and deciding with what offences to charge.<br />
7. Initial hearings prior to committal.<br />
8. Committal for trial.<br />
9. Bad character evidence.<br />
10. Dealing with the safeguards that prevent unsuitable prosecutions reaching trial.<br />
11. Expert evidence.<br />
12. Trial.<br />
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.<br />
<br />
If I have missed anything out that anyone considers I might cover in addition let me know.Martin Porterhttp://www.blogger.com/profile/07802050121734667593noreply@blogger.com5tag:blogger.com,1999:blog-7651597981151570147.post-83531467601537842262016-03-12T11:45:00.001+00:002016-06-08T16:44:42.990+01:00Lessons from Private ProsecutionThe 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 IMartin Porterhttp://www.blogger.com/profile/07802050121734667593noreply@blogger.com0tag:blogger.com,1999:blog-7651597981151570147.post-24009053124710783462016-03-09T14:42:00.000+00:002016-06-08T16:44:42.976+01:00Private prosecution results in acquittal<div class="MsoNormal">
At about 1855 on 12<sup>th</sup> 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.<o:p></o:p></div>
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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.<o:p></o:p></div>
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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.<o:p></o:p></div>
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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.<o:p></o:p></div>
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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.<o:p></o:p></div>
<br />
<div class="MsoNormal">
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.<o:p></o:p></div>
Martin Porterhttp://www.blogger.com/profile/07802050121734667593noreply@blogger.com53tag:blogger.com,1999:blog-7651597981151570147.post-5049884624669095342015-12-12T16:49:00.002+00:002015-12-14T10:36:44.786+00:00Note accompanying my bad driving reports<div class="MsoNormal" style="margin: 0cm 0cm 8pt; text-align: left;">
<b><span style="font-family: "calibri" , sans-serif;"><span style="font-size: 11pt; line-height: 15.6933px;">Given the nature of some of the responses I get to my reports of bad driving I have prepared the following note to go with all future submissions </span><span style="font-size: 14.6667px; line-height: 15.6933px;">which</span><span style="font-size: 11pt; line-height: 15.6933px;"> I hope will be heeded by the police and CPS who determine what action to take.</span></span></b><br />
<b><span style="font-family: "calibri" , sans-serif;"><span style="font-size: 11pt; line-height: 15.6933px;"><br /></span></span></b>
<b><span style="font-family: "calibri" , sans-serif;"><span style="font-size: 11pt; line-height: 15.6933px;">As requested a pdf link is here </span></span></b><span style="font-family: calibri, sans-serif;"><span style="font-size: 14.6667px; line-height: 15.6933px;"><b>https://drive.google.com/file/d/0Bzho2RYpC3VuZ1BST2llVmFTRTQ/view?usp=sharing</b></span></span></div>
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<b><u>Note on riding style and position<o:p></o:p></u></b></div>
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<i>Primary and secondary riding positions<o:p></o:p></i></div>
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My default riding position is ‘primary’ which is the middle of the lane that is the nearest lane to the nearside which is suitable for my direction of travel. However I will ride further to the left in the ‘secondary’ position in order to assist following traffic if, but only if, my own safety is not thereby impaired. The secondary position is just to the left of the nearside wheels of the flow of four wheeled traffic. I avoid riding ‘in the gutter’ i.e. within 0.5 metre of the edge of the road.</div>
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This riding is in accordance with my training to national <span class="SpellE">bikeability</span> standards which are approved by the Department of Transport. Details can be found in ‘<span class="SpellE">Cyclecraft</span>’ by John Franklin (the officially approved guide to cycling in accordance with national training standards. The concept is also explained in this <span class="SpellE">DfT</span> film sent out to all driving instructors</div>
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<a href="https://www.youtube.com/watch?v=lJHXzt7TC2k&feature=youtu.be" style="color: #954f72;">https://www.youtube.com/watch?v=lJHXzt7TC2k&feature=youtu.be</a></div>
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<i>Overtaking</i> <i>queues<o:p></o:p></i></div>
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When encountering a queue of traffic ahead I will use my judgment as to whether to wait in the queue (in primary position) or to overtake the queue (usually on the offside if there is room). This too is in accordance with my training and the national standards.</div>
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<i>Using cycling specific infrastructure<o:p></o:p></i></div>
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I will use cycling specific infrastructure if it has an advantage in terms of safety or convenience over the main lanes.</div>
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The National Standard states this:</div>
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“In the UK no cycle facilities are compulsory for cyclists to use. Therefore the choice over whether to use any facilities provided should be on the basis of whether or not they will give the cyclist any advantage in terms of safety and/or access. This will be for the individual cyclist to decide. Staying in the normal flow of traffic rather than use a cycle facility is therefore a valid choice.”</div>
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This is also reflected in the Highway Code:</div>
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<b><span style="color: #0b0c0c; font-family: "arial" , sans-serif;">"Rule 61<o:p></o:p></span></b></div>
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<b><span style="color: #0b0c0c; font-family: inherit , serif;">Cycle Routes and Other Facilities.</span></b><span style="color: #0b0c0c; font-family: "arial" , sans-serif;"> Use cycle routes, advanced stop lines, cycle boxes and toucan crossings unless at the time it is unsafe to do so. Use of these facilities is not compulsory and will depend on your experience and skills, but they can make your journey safer."<o:p></o:p></span></div>
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<i>Motorists overtaking cyclists</i></div>
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The guidance in the Highway Code is clear:</div>
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<b><span style="color: #0b0c0c; font-family: "arial" , sans-serif;">"Rule 163<o:p></o:p></span></b></div>
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<b><span style="color: #0b0c0c; font-family: inherit , serif;">Overtake only</span></b><span style="color: #0b0c0c; font-family: "arial" , sans-serif;"> when it is safe and legal to do so. You should…<o:p></o:p></span></div>
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<span style="color: #0b0c0c; font-family: "symbol"; font-size: 10pt;">·<span style="font-family: "times new roman"; font-size: 7pt; font-stretch: normal;"> </span></span><span class="GramE"><span style="color: #0b0c0c; font-family: "arial" , sans-serif;">give</span></span><span style="color: #0b0c0c; font-family: "arial" , sans-serif;"> motorcyclists, cyclists and horse riders at least as much room as you would when overtaking a car (see <a href="https://www.gov.uk/guidance/the-highway-code/road-users-requiring-extra-care-204-to-225#motorcyclists-and-cyclists-rules-211-to-213" style="color: #954f72;"><span style="color: #4c2c92;">Rules 211 to 215</span></a>).<o:p></o:p></span></div>
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<b><span style="color: #0b0c0c; font-family: inherit , serif;">Remember: Mirrors – Signal – Manoeuvre</span></b></div>
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<span style="font-family: "times new roman" , serif; font-size: 12pt; line-height: 17.12px;">Rule 163: Give vulnerable road users at least as much space as you would a car"</span></div>
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Any ambiguity in ‘as much space as you would give a car’ is resolved by the clear illustration accompanying rule 163.</div>
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The <span class="SpellE">DfT’s</span> Transport Note LTN 2/08 has a section at 2.5 dealing with overtaking of cyclists by motor vehicles:</div>
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“2.5 Overtaking by motor vehicles</div>
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2.5.1 Cyclists often feel uncomfortable when cars overtake, particularly if they do so at high speed. Research from the Netherlands (CROW, 2003) shows that motorists driving at 20 mph will often pass cyclists leaving a clearance of only 0.85 metres. This distance increases to around 1.05 metres when passing at 30 mph.</div>
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2.5.2 These clearances are not necessarily sufficient for comfort and have been increased to establish the minimum suggested passing distances in Table 2.2. Even these clearances will be uncomfortable for some cyclists and should be exceeded where possible.</div>
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2.5.3 Table 2.3 sets out ideal minimum total widths (not necessarily lane widths) required for vehicles overtaking cyclists.”</div>
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The ‘dynamic envelope’ referred to in the above table is 1 metre wide:</div>
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Obviously the minimum passing distance increases further with increased speed If the speed is well above 30 mph then the passing distance should be well over 1.5 metres outside the dynamic envelope.</div>
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It follows that unless the lane is exceptionally wide the motorist cannot safely pass within the same lane and should be using the adjacent lane (if clear) or wait behind for a better overtaking opportunity. The correct decision is encouraged by the cyclist ‘taking the lane’ in primary <span class="SpellE">position</span>.</div>
Martin Porterhttp://www.blogger.com/profile/07802050121734667593noreply@blogger.com6tag:blogger.com,1999:blog-7651597981151570147.post-80041441370229875752015-11-06T19:34:00.000+00:002015-11-06T19:34:14.465+00:00Oral Evidence of Police to Transport Select Committee<div class="separator" style="clear: both; text-align: center;">
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The first oral evidence session for the Transport Select Committee's Inquiry into Road Traffic Law Enforcement was on Monday 2nd November. I tuned in with anticipation as I am very much in favour of Law Enforcement action particularly against those who endanger cyclists. The Inquiry's terms of reference include the impact of road traffic law enforcement on the safety of cyclists and pedestrians. As indicated in my previous post the Committee has received some powerful written evidence from those who feel that when they cycle they are entirely unprotected by the law.<br />
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Two police officers, an Inspector and a Superintendent, nobly traveled up from the Midlands and the West Country to assist. Whether the Metropolitan Police or the ACPO lead for traffic policing were invited or will be attending on a later date, I do not know. It would be good to know that someone of Commissioner or Chief Constable rank who has some responsibility for allocating resources and setting policy takes the subject matter of this Inquiry seriously. After all there are those, like me, who assert that the police are on occasion letting down cyclists in a serious way with their lack of law enforcement against those who endanger, threaten, harm or even kill cyclists on our roads.<br />
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What particularly animated the Committee members appeared to be parking and especially the length of time roads were closed following a collision. No doubt important topics but arguably peripheral to the terms of reference which were particularly upon enforcing the law against dangerous and careless drivers (a subject which I believe merits undiluted scrutiny). <br />
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The Chair though did bring the discussion around to cyclists in the closing minutes of the police evidence. the evidence went as follows and I have annotated my thoughts <span style="color: red;">thus</span>:<br />
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<span style="color: blue;">Q39 Chair: I want to ask you about cyclists on the road. Cyclists feel that their safety is not considered sufficiently. What do you do if you think that a motorist is acting in a way that endangers a cyclist? What actions are taken?</span><br />
<span style="color: blue;">Superintendent Keasey: They are subject to the law.</span><br />
<span style="color: red;">I think he means motorists that endanger cyclists are subject to the law rather than cyclists are subject to the law but both are true and neither quite answers the question.</span><br />
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<span style="background-color: white;"><span style="color: blue;">Q40 Chair: They are subject to the law, but is the law used? </span><span style="color: red;">Spot on!</span></span><br />
<span style="background-color: white;"><span style="color: blue;">Superintendent Keasey: Yes, where we have the evidence and where it is corroborated. The difficulty is often that it is one person’s word against another’s, just like it would be for one person driving a car against someone driving another car. There is no different standard in the way we approach it and whether we prosecute or not.</span></span><br />
<span style="color: red;">Most criminal trials will involve a Court determining whose word is credible and whose is not. A conflict of evidence is not of itself sufficient reason to take no action. This is what was said about bringing prosecutions for sexual offences 20 years ago but nobody in that field would suggest this today. Some accounts are inherently credible some denials are inherently incredible. There is no formal requirement for corroboration and this is too easy a basis to dismiss virtually all complaints of bad driving.</span><br />
<span style="color: red;">There should be a very different standard depending upon whether the suspect has (nearly) hit a person on a bicycle or whether that suspect has (nearly) hit a Chieftain Tank. It is a serious aggravating feature of a bad driving offence that the suspect has endangered a vulnerable road user and the police ought to recognise that and act accordingly. </span><br />
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<span style="color: blue;">Q41 Chair: Cyclists feel that there is not enough concern about their safety. Are you disputing that?</span><br />
<span style="color: blue;">Superintendent Keasey: No; there is concern. If you look at cyclists and pedestrians, they are probably more likely at the moment due to their numbers to be subject to serious injury. They are quite rightly allowed to use the road, and they should be, but it is the education of drivers. If you look abroad to Holland they are very used to it. They are often cyclists and motorists so they are much more aware of the gap you need to give space between a cyclist and a car on a left-hand turn.</span><br />
<span style="color: red;">If there is concern what </span><span style="color: red;">then </span><span style="color: red;">is to be done about it ? Rates of injury are probably not as bad as the Superintendent suggests and are in any event not the point of the question. Perhaps we should be grateful for the expression of view that we should be allowed to use the road but (whatever prescience there might have been of a notorious forthcoming Metro article) nobody in mainstream politics thinks otherwise and it is slightly worrying that a police officer feels the need to state it. Having ruled out banning cyclists from the roads the answer then is not prosecution but 'education of drivers'. Education along the lines of Carlton Reid and Chris Boardman's how to overtake a cyclist film is certainly to be lauded. However this Inquiry is about enforcement and leaving it to cyclists to educate drivers is not enough. We have all experienced aggressive deliberately bad driving that would not have occurred in the presence of the police. The reality is that bad drivers know they can get away with punishment passes, brake testing, tail gating, left hooking, speeding and other deliberate behaviours that endanger cyclists.</span><br />
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<span style="color: blue;">Q42 Chair: Inspector Cox, are you concerned about that?</span><br />
<span style="color: blue;">Inspector Cox: From a rural point of view we do not have huge cycle issues. There is a corroboration issue when we get complaints from cyclists, even with cameras potentially. If there is not a corroboration factor it becomes one word against another, so the chance of prosecution is very slim. Certainly if it is detected or witnessed by a police officer, action is always taken, but it is a challenge. Although I represent a rural area, we have Bristol and Swindon in there, some fairly big urban areas, and we do not have an issue with our cyclists getting killed. Perhaps our drivers are more aware because they drive in a rural area a lot of the time, where they have to be a little bit more aware. In places like London, clearly there is a lot more pedestrian and cycle traffic meeting vehicular traffic. We do not get that quite so much in rural areas.</span><br />
<span style="color: red;">The answer then is 'no' he is not concerned about that at all. A pity as cyclists are being killed and injured in his area and tragically one young man died cycling in his patch the very next day. He added to what the Superintendent said about corroboration by saying that lack of corroboration was an issue even with evidence from cameras. This is quite incomprehensible and proves the point that the police are exhibiting inappropriate reluctance to prosecute offenders even where there is clear evidence.</span><br />
<span style="color: red;">Apparently the behavior has to be 'detected or witnessed' by a police officer in which event problems with corroboration simply melt away and action is always taken. I would welcome specific evidence of cases where such action has been taken. I have never come across such a case and suspect they are very rare.</span><br />
<br />Martin Porterhttp://www.blogger.com/profile/07802050121734667593noreply@blogger.com2tag:blogger.com,1999:blog-7651597981151570147.post-11622854317234888342015-10-16T11:22:00.000+01:002015-10-28T12:30:12.084+00:00Evidence to the Commons Transport Select Committee on Road Traffic Law Enforcement<span style="font-family: Times, Times New Roman, serif; font-size: large;">My evidence to the Committee can now be read <a href="http://data.parliament.uk/writtenevidence/committeeevidence.svc/evidencedocument/transport-committee/road-traffic-law-enforcement/written/22193.pdf" target="_blank">here</a></span><br />
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<span style="font-family: Times, Times New Roman, serif; font-size: large;">I need to add that Surrey Police read my evidence and have dissociated themselves from, and apologised for, many of the points made to me in the letter of 14.09.15 cited in my evidence. I am happy to acknowledge this, though the fact of course remains that a police employee who has been making decisions on prosecutions held those misguided beliefs. There is clearly a systemic problem as well as having a few rogue decision makers.</span><br />
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<span style="font-family: Times, Times New Roman, serif; font-size: large;">Some (not all!) of the other evidence is well worth reading and I particularly commend the evidence of Mary Manning <a href="http://data.parliament.uk/writtenevidence/committeeevidence.svc/evidencedocument/transport-committee/road-traffic-law-enforcement/written/22835.pdf" target="_blank">here</a>. This is compelling and accords entirely with my own experiences, and that of many others, and needs to be addressed by the police.</span></div>
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<span style="font-family: Times, Times New Roman, serif; font-size: large;">At the moment we have only platitudes and stuff like <a href="http://library.college.police.uk/docs/NPCC/Policing_the_Roads_in_Partnership_2015.pdf" target="_blank">Policing the Roads in Partnership</a> signed off by a senior police officer who would not commute in London due to the risks on the roads presented by risky motoring behaviour. That was, of course, uncovered in Anna Tatton Brown's excellent film about the investigation into the death of her father, Michael Mason, which can be viewed <a href="http://www.bbc.co.uk/programmes/p0367t9p" target="_blank">here</a> and which I hope the transport committee will see.</span></div>
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Martin Porterhttp://www.blogger.com/profile/07802050121734667593noreply@blogger.com12tag:blogger.com,1999:blog-7651597981151570147.post-25981501462588838082015-06-24T12:48:00.001+01:002015-06-24T12:53:28.162+01:00Another case on Contributory Negligence Sinclair v JoynerIn <b><i>Sinclair v Joyner</i></b> [2015] EWHC 1800 Mrs Justice Cox found for the claimant cyclist in her claim for damages against the driver of a '4x4' vehicle though with a reduction of 25% to reflect the cyclist's contributory negligence.<br />
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On Sunday 3rd July 2011 Mrs Sinclair was cycling along Broadwater Forest Lane, a single carriageway lane in Kent. Coming in the opposite direction was a Volvo XC 90 motor car driven by Mrs Joyner. The two vehicles made contact as a consequence of which Mrs Sinclair fell sustaining a serious head injury.<br />
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Liability was disputed (indeed it was even faintly disputed with unsatisfactory expert evidence) that a collision had even occurred.<br />
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The Judge had no difficulty finding that the Defendant driver was liable and should have stopped to allow the cyclist to pass in safety. In words that support the view which I have frequently expressed that in England and Wales we have what approximates to a <i>de facto</i> presumption of liability when a motorised vehicle collides with a vulnerable road user the Judge said:<br />
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<li value="58."><a href="https://www.blogger.com/null" name="para58">In the section dealing with "Road users requiring extra care" the Highway Code (Revised 2007 edition) draws attention, at paragraph 204, to cyclists as among those who are to be regarded as "the most vulnerable road users." Mr Martin places particular reliance upon the advice given to motorists at paragraph 212, namely <i>"When passing motorcyclists and cyclists, give them plenty of room." </i>While there then follows a bracketed reference to earlier rules dealing with overtaking, as Mr Freeman observes, the advice in this paragraph is, in my judgment, not confined to cases of overtaking, set as it is in the section of the Code addressing in general terms the vulnerability of these categories of road users, and the need for extra care.</a></li>
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<li value="59."><a href="https://www.blogger.com/null" name="para59">This advice is particularly pertinent in this case. The Defendant's carriageway was just 2.5 metres wide and the width of the Volvo was 2.1 metres. Even if she were right over to her nearside, and I accept that she was very close to it, that leaves at best 0.4 of a metre between the car and the Claimant who was, on the evidence, riding her bicycle still on her own side of the road but only just. She was very close to the centre as the Volvo approached and then passed her. The Claimant cyclist's close proximity to the centre of the road was noted by the Defendant as soon as she saw her, and in my view, for the reasonable prudent driver in those circumstances, alarm bells would have sounded instantly.</a></li>
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<li value="65."><a href="https://www.blogger.com/null" name="para65">Motorists have to anticipate hazards in the road, particularly from vulnerable road users, and to be ready to react to them. In my judgment the Defendant cannot be relieved of that duty of care by seeking to blame the Claimant, who was obviously in difficulty, for deviating into her side of the road and colliding with the rear offside tyre, after the front of the car had gone past her. The fact that a collision occurred demonstrates that there was not sufficient room for her to pass the Claimant safely, and that the Defendant's assumption to the contrary was in error. She ought to have appreciated that her car was too close to the centre of the road for her to have passed this cyclist safely.</a></li>
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<b><i>Contributory Negligence</i></b></div>
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It was accepted on the Claimant's behalf that she should bear some responsibility for her injuries on the basis that 'she should not have been riding her bicycle in a central position in the road'. Mrs Sinclair's injuries did not leave her able to recall or explain her riding leading up to the accident. The matter was dealt with briefly and by concession (with the Judge accepting the Claimant's suggested 25% deduction). It should not, in my view, be taken as any indication that cyclists should not ride in a central position on the road. Indeed on the contrary they often should, though perhaps not at the point where a wide vehicle is actually passing on a country lane.</div>
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Of wider application was the further example of the Court refusing to make any finding of contributory negligence in relation to a cyclist not wearing a safety helmet. the Judge said this:</div>
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<ol><br />
<li value="71."><a href="https://www.blogger.com/null" name="para71">The Defendant also pleads, at paragraph 11 (d) of the Defence, that the Claimant was negligent in failing to wear a cycle helmet. This was not explored in the evidence and Mr Freeman made no submissions upon it in his closing arguments. As Mr Martin observed, no court has yet decided that failing to wear a helmet actually amounts to contributory negligence, although they have come close (see <b><i>Smith v Finch</i></b> [2009] EWHC 53 (QB)). In the present case the Claimant was an adult enjoying a bicycle ride in the countryside on a sunny day. There was no medical evidence adduced to show that failing to wear a helmet made the Claimant's injuries worse, and the subject was not addressed in submissions. I therefore reject that allegation of contributory negligence in this case.</a></li>
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As can be seen the Defendant had no confidence in the point although it was pleaded on her behalf. Of interest is the Judge's comment that Mrs Sinclair 'was an adult enjoying a bicycle ride in the countryside on a sunny day'. Since this is plainly irrelevant to causation, this is only worth mentioning in the context of <i style="font-weight: bold;">fault </i>strongly implying that Mrs Justice Cox is not convinced that a cyclist who chooses not to wear a helmet is at fault.</div>
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Regular readers of my blog will know that Mr Martin QC was not quite right in his observation that no Court has yet decided that failing to wear a helmet amounts to contributory negligence. However <i>Reynolds v Strutt & Parker </i>was a wholly exceptional case for reasons I describe <a href="http://thecyclingsilk.blogspot.co.uk/2011/09/legal-update-autumn-2011.html" target="_blank">here</a></div>
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Overall an encouraging case though there are throw away comments regarding the oddity of riding central, standing on the pedals and 'proper clothing' for a cyclist that do leave a queasy suspicion that the sum of the knowledge in the Courtroom about cycling was less than it might have been and that Mrs Sinclair was in all probability a far more competent cyclist than she was given credit for.<br />
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The full Judgment can be read at <a href="http://www.bailii.org/ew/cases/EWHC/QB/2015/1800.html">http://www.bailii.org/ew/cases/EWHC/QB/2015/1800.html</a></div>
Martin Porterhttp://www.blogger.com/profile/07802050121734667593noreply@blogger.com3tag:blogger.com,1999:blog-7651597981151570147.post-77956070951415641552015-04-15T20:07:00.001+01:002015-04-15T20:07:04.255+01:00Team Townend Challenge 2015<div class="separator" style="clear: both; text-align: center;">
<a href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEhH4kcVUnxjgNUV1SeaKkmYFKtp_QVngpsK6uH4ZfBp5EqGtIX6QjiO8LqZ1OY86Vqr3IxNk3vqEJBy-VUiBDqKuDtwfZIyVW8wGlVqotqVFJjBMMOfPZNmB3W7RRNv4wpEl6UeEiTJG6Q/s1600/IMG_0322%5B1%5D.JPG" imageanchor="1" style="margin-left: 1em; margin-right: 1em;"><img border="0" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEhH4kcVUnxjgNUV1SeaKkmYFKtp_QVngpsK6uH4ZfBp5EqGtIX6QjiO8LqZ1OY86Vqr3IxNk3vqEJBy-VUiBDqKuDtwfZIyVW8wGlVqotqVFJjBMMOfPZNmB3W7RRNv4wpEl6UeEiTJG6Q/s1600/IMG_0322%5B1%5D.JPG" height="240" width="320" /></a></div>
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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.</div>
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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.</div>
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Roadpeace is a brilliant charity founded by bereaved relatives which works hard for road crash victims and campaigns for justice.</div>
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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.</div>
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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.</div>
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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.</div>
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Putting my own money where my mouth is I shall match donations up to £300, so doubling the value of your contribution to Roadpeace.</div>
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My fundraising page is <a href="https://www.justgiving.com/Martin-Porter6" target="_blank">here</a></div>
Martin Porterhttp://www.blogger.com/profile/07802050121734667593noreply@blogger.com2tag:blogger.com,1999:blog-7651597981151570147.post-35620945353409830842015-02-05T17:00:00.000+00:002015-02-05T17:07:19.121+00:00Criminal Prosecutions arising from Road Traffic CollisionsYesterday the 'watchdogs' for both the CPS and the Police produced a report following their joint inspection of the <a href="http://www.justiceinspectorates.gov.uk/cjji/wp-content/uploads/sites/2/2015/02/CJJI_FRTI_Feb15_rpt.pdf" target="_blank">investigation and prosecution of fatal road traffic incidents</a>. I gave a short interview to the BBC about this report which can be seen here:<br />
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Having naturally read the report before talking about it, there is more I would have wished to say had time been available.<br />
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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.<br />
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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.<br />
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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.<br />
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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, <i style="font-weight: bold;">over</i>charging) 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.<br />
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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.<br />
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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.<br />
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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.<br />
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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.<br />
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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.Martin Porterhttp://www.blogger.com/profile/07802050121734667593noreply@blogger.com1tag:blogger.com,1999:blog-7651597981151570147.post-68438036608607336112014-12-11T17:19:00.001+00:002014-12-13T10:51:44.233+00:00Inquest into death of Michael MasonI 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.<br />
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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.<br />
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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 <a href="https://rosslydall.wordpress.com/2014/12/09/still-waters-run-deep-daughters-tribute-to-father-killed-cycling-in-london/">here on Ross Lydall's blog</a><br />
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The Coroner then asked Mr Mason's daughter to give some evidence about his long experience riding bicycles.<br />
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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.<br />
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The scene in daylight and in different traffic conditions is shown on google thus<br />
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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.<br />
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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.<br />
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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.<br />
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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.<br />
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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.<br />
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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.<br />
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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).<br />
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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.Martin Porterhttp://www.blogger.com/profile/07802050121734667593noreply@blogger.com58tag:blogger.com,1999:blog-7651597981151570147.post-91499544240134028712014-09-19T10:55:00.002+01:002014-09-19T10:55:46.222+01:00Suspension of my twitter accountTo let you all know my twitter account has been suspended at the request of @dragonducatis.<br />
I have asked twitter to reinstate it.Martin Porterhttp://www.blogger.com/profile/07802050121734667593noreply@blogger.com5tag:blogger.com,1999:blog-7651597981151570147.post-21280746094990668652014-09-10T10:47:00.001+01:002015-11-06T14:59:48.401+00:00When is a law not a law? When no-one troubles to bring it into force.Note: I am happy to report that the Coalition Government finally listened to concerns expressed by me and many others over this and section 137 came into force in March 2015 as one of that Government's final actions.<br />
<a href="http://www.legislation.gov.uk/uksi/2015/819/pdfs/uksi_20150819_en.pdf">http://www.legislation.gov.uk/uksi/2015/819/pdfs/uksi_20150819_en.pdf</a><br />
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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.<br />
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).<br />
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.<br />
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).<br />
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.<br />
A general election intervened in May 2010 when the Secretary of State had still not appointed a date bringing section 137 into force.<br />
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.<br />
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.<br />
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.Martin Porterhttp://www.blogger.com/profile/07802050121734667593noreply@blogger.com3tag:blogger.com,1999:blog-7651597981151570147.post-46700666971597611102014-09-02T13:37:00.003+01:002014-09-02T13:37:48.003+01:00Further Court Update: R v Robert Palmer<b><i>Facts</i></b><br />
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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.<br />
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There are similarities and differences with the Wojcicki case (which formed the subject of my last blog post).<br />
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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.<br />
<br />
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.<br />
<br />
The scene is similar. This picture from Google earth appears to be fairly representative of the A30 road at the scene of the impact:<br />
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<a href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEjqX7CZ0xssnmmzMjyTx97XPpb4QeOoATAoRRXECxuaTrz1nLRJ5rIn-ffCJmZJFjWKhkhFMDoUWMdiaBZwPKw6fyjHdXLa6eJTvcpqOGT1HpRkaflIX6vM1dSBdbtloZyow1eTxeRdBpY/s1600/A30.jpg" imageanchor="1" style="margin-left: 1em; margin-right: 1em;"><img border="0" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEjqX7CZ0xssnmmzMjyTx97XPpb4QeOoATAoRRXECxuaTrz1nLRJ5rIn-ffCJmZJFjWKhkhFMDoUWMdiaBZwPKw6fyjHdXLa6eJTvcpqOGT1HpRkaflIX6vM1dSBdbtloZyow1eTxeRdBpY/s1600/A30.jpg" height="198" width="320" /></a></div>
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."<br />
<br />
<b><i>Result</i></b><br />
<br />
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.<br />
<br />
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.<br />
<br />
<i><b>Observation 1: rumble strip</b></i><br />
<i><b><br /></b></i>
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.<br />
<br />
<b><i>Observation 2: prevention</i></b><br />
<b><i><br /></i></b>
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.<br />
<br />
<b><i>Observation 3: driving bans</i></b><br />
<b><i><br /></i></b>
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.<br />
<br />
<b><i>Families' Statement</i></b><br />
<b><i><br /></i></b>
Finally I think the dignified statement of both families issued yesterday merits repetition and dissemination:<br />
<br />
<br />
<i>“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.</i><br />
<i><br /></i>
<i>“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.</i><br />
<i><br /></i>
<i>“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.</i><br />
<i><br /></i>
<i>“UK transport laws are lenient, charges are difficult and onerous to attain, and less and less resource is being dedicated to road traffic collisions.</i><br />
<i><br /></i>
<i>“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.</i><br />
<i><br /></i>
<i>“We would like to thank everyone who has supported us and been involved in getting us this far.”</i><br />
<i><br /></i>
<br />
<br />
Read more: http://www.westerndailypress.co.uk/Lorry-driver-Robert-Palmer-jailed-killing/story-22859295-detail/story.html#ixzz3CA3Ytksr<br />
Read more at http://www.westerndailypress.co.uk/Lorry-driver-Robert-Palmer-jailed-killing/story-22859295-detail/story.html#Rr2VuvWsyijcO0B0.99<br />
<br />Martin Porterhttp://www.blogger.com/profile/07802050121734667593noreply@blogger.com2tag:blogger.com,1999:blog-7651597981151570147.post-91315281465331512252014-08-29T13:41:00.001+01:002014-09-02T13:05:09.284+01:00Case Update: R v Wojcicki. Turning a corner?<div class="MsoNormal">
<b><i>The evidence </i></b>(taken from the reports of WalesOnline who have
covered this story in detail)<o:p></o:p></div>
<div class="MsoNormal">
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.<o:p></o:p></div>
<div class="MsoNormal">
<a href="https://www.blogger.com/blogger.g?blogID=7651597981151570147" imageanchor="1" style="clear: right; float: right; margin-bottom: 1em; margin-left: 1em;"></a>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. <o:p></o:p></div>
<div class="MsoNormal">
<br /></div>
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<a href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEgSWTJUzTQDckkZrEbXrWZz0HTPuC3mI4J0YOO6HqtA-Konkh2V42HFbM0Alrh3-H6u0GKCOpvqTFInamGs_UWx4IRDfoB7fBvWTC03-nTnUyD1F5ClWQqLuS8WUyG7NxL2zyQ6juZuIK4/s1600/A372.jpg" imageanchor="1" style="margin-left: 1em; margin-right: 1em;"><img border="0" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEgSWTJUzTQDckkZrEbXrWZz0HTPuC3mI4J0YOO6HqtA-Konkh2V42HFbM0Alrh3-H6u0GKCOpvqTFInamGs_UWx4IRDfoB7fBvWTC03-nTnUyD1F5ClWQqLuS8WUyG7NxL2zyQ6juZuIK4/s1600/A372.jpg" height="246" width="400" /></a></div>
<br /></div>
<div class="MsoNormal">
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.<o:p></o:p></div>
<div class="MsoNormal">
The prosecution opened the case on the basis that Mr James
was riding inside the white rumble strip.
<o:p></o:p></div>
<div class="MsoNormal">
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.” <o:p></o:p></div>
<div class="MsoNormal">
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.<o:p></o:p></div>
<div class="MsoNormal">
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.<o:p></o:p></div>
<div class="MsoNormal">
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].<o:p></o:p><br />
<br /></div>
<div class="MsoNormal">
<i>The result<o:p></o:p></i></div>
<div class="MsoNormal">
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.<o:p></o:p></div>
<div class="MsoNormal">
The positive things are that, unlike other <a href="http://thecyclingsilk.blogspot.co.uk/2014/04/recent-cases.html">recent cases</a>
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 <i>R v Dove</i>). Equally Mr James had every right to cycle on
that road (contrast the discussions about alternative routes in <i>R v Petterson</i>) and the concomitant right
to expect other roadusers to exercise care when passing him.</div>
<div class="MsoNormal">
<br />
<br />
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. <br />
<br /></div>
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<div class="MsoNormal">
It is also refreshing that the charge brought was the
appropriate dangerous driving charge not careless contrast <a href="http://thecyclingsilk.blogspot.co.uk/2012/10/legal-update-r-v-fields.html">these recent cases</a><o:p></o:p></div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal">
<i><br /></i>
<i><br /></i>
<i>Sentence</i><br />
<o:p></o:p></div>
<div class="MsoNormal">
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.<o:p></o:p></div>
<div class="MsoNormal">
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 <a href="http://thecyclingsilk.blogspot.co.uk/2014/06/disqualifications-for-bad-driving.html">these cases.</a><o:p></o:p><br />
<br /></div>
<div class="MsoNormal">
<i>Postscript</i><o:p></o:p></div>
<div class="MsoNormal">
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.<o:p></o:p><br />
<br />
<i>A further postscript</i><br />
I did not mention above the controversy that arose between Judge and Defendant solicitor described <a href="http://www.walesonline.co.uk/news/wales-news/defence-counsel-reprimanded-dressing-like-7686847">here</a>. 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 <a href="http://thecyclingsilk.blogspot.co.uk/2010/01/car-culture-step-in-right-direction.html">Ms Katie Hart</a> 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.</div>
Martin Porterhttp://www.blogger.com/profile/07802050121734667593noreply@blogger.com16