Updates from the Crown Court; R v McQuinn; R v Shapland

The Wirral Globe reports that today Mr McQuinn was cleared by a jury in Liverpool Crown Court of causing the death of David Noble by careless driving in Spital at 0950 on 20th October 2010.  Mr Noble was riding a bicycle at the time of the collision.  There was no suggestion that Mr Noble was in any way riding improperly when he was run down by a car driven by Mr McQuinn.  Mr McQuinn explained that the accident was unavoidable because the sun was in his eyes.  The jury took 17 minutes to return a not guilty verdict.

Last week the South Wales Evening Post reported that Mr Shapland was cleared by a jury in Swansea Crown Court of causing the death by careless driving of Olin Poulson after a collision on the A40 near Carmathen on 3rd September 2010.  A tachograph and telephone records revealed that Mr Shapland had been driving his articulated lorry at 52 mph (speed limit for lorries 40 mph) and had been on his hands free 'phone at the time of the collision.  He explained that Mr Poulson had turned right across his path as he was overtaking.

I am not privy to all the evidence in either case.  Clearly, in my view, each driver had a case to answer and it was only right that the prosecutions were brought.  The jury verdicts do not affect that and no prosecuting authority should expect a 100% success rate in the Crown Court.  It is an improvement over some cases in the past where prosecutions have not been brought and the drivers have never been called to explain their actions to a Court.

One Cyclist sues another; Brown v Brent & British Cycling

On the last weekend in August 2007 the Surrey Cycle Racing League with the assistance of the Army CU organised a three day stage race comprising four stages for 2^nd and 3^rd cat racers.  Proceedings kicked off with a short time trial up Boxhill on Friday evening and this was followed on Saturday afternoon with a 70 mile road race.  4^th up Boxhill, but not so hot on the road race was George Brent, a 2^nd cat rider with Addiscombe CC.  On Sunday, Stage 3 in the morning was an 11.5 mile time trial and the final stage on Sunday afternoon was a 60 mile road race on the Ewhurst Circuit with a final climb up Leith Hill.

The Ewhurst Circuit takes the riders down Ockley Road into Ewhurst where there is a sharp left at a mini-roundabout outside the Bull’s Head Pub.  At this point in the race (it may have been the 4^th lap but this is not entirely clear), there was a breakaway group of 5 or 6 riders being chased by George Brent who was attempting to bridge the gap between the bunch and the lead group.  Given those circumstances it is not really surprising that he was going at speed and that he needed to take a racing line around the left hand turn, taking advantage of being a sole rider at this point.

Unhappily for both men another cyclist, Carlton Brown, came down Shere Road (from the right in the above Google earth shot) and turned into Ockley Road, apparently oblivious to the fact that a road race was in progress coming straight towards him.  The two cyclists collided close to the mini roundabout.  Any initial uncertainty as to which side of the central dotted white line the collision occurred was dispersed by the existence of video camera footage.  This demonstrated that the cyclists came together somewhere to the right of the white dotted centre line (as the picture and George Brent saw it.)

Mr Brown sued both Mr Brent and the British Cycling Federation who were ultimately responsible for the running of the race.  The report that I have seen indicates nothing about the extent of the injuries of either man but I see no indication that Mr Brent counterclaimed (as he might have done) against Mr Brown.

Mr Brown claimed that Mr Brent should not have crossed the white line in the middle of the road into his path and that he was riding too fast.  The Judge, His Honour Judge Atkins, sitting in the Croydon County Court accepted these allegations.  The fact that Mr Brent was competing in a road race did not exempt him from the obligation to comply with the Highway Code.  As the Judge put it:

            “as has been accepted, and I think rightly accepted, this was a race which was taking place on a public road and the fact that it was a race does not mean   that people can ride or drive in a different way.  They have to be aware that members of the public can use the road and they are governed by the same rules as anybody else.”

The Highway Code (rule 160) requires traffic to keep to the left of the centre line unless overtaking or turning right.  This is a rule that is breached frequently by cyclists (and I daresay motorcyclists) taking a line around a bend but I think the moral is that if you are going to do it, do it only in circumstances where you are quite sure nothing is coming the other way and that means not doing it on or near a junction.

Mr Brown also brought a claim essentially against the race organisers.  His most interesting allegation was that the organisers ought to have ensured that the road was closed to members of the public.  The judge gave that short shrift:

            “the position about that is that it is possible to ask the highway authority to close the roads.  It is obviously an extreme step to take.  I simply say that in the circumstances of this case I do not think it was a proportionate or appropriate step for the organisers to take.  I think that they under an        obligation to take all reasonable steps to ensure the safety of road users whether participating in the race or otherwise, and I think they did take all such steps.”

I hope the police forces who are most wary of races on the open roads will heed those words.  It is not proportionate or appropriate to close the roads for an amateur road race.

Mr Brown also criticised the organisers for their control of the race.   He said he should have been warned but the Judge found there were appropriate warning signs and marshals that Mr Brown did not see or hear.  A marshal had done his best to communicate to Mr Brown but, perhaps because Mr Brown was wearing ear-phones, had not got through (the Judge observed that Mr Brown was wearing head-phones but found both that that was not negligent and that it had not caused the accident).  Whether the lollipop signs that are now being trialled, and which will enable a marshal to compel a road-user to stop, would have prevented this unfortunate accident must be conjecture but certainly they should help.  He also said the organisers should have prevented Mr Brent crossing the white dotted line but the usual Commisssaire’s briefing (‘obey the highway Code’) had been given and there was no more that the organisers could reasonably have done.

Finally the Judge examined Mr Brown’s own responsibility for the accident.  He found that he should have heeded the warnings and was in the circumstances travelling too fast.  The finding that he was not negligent in wearing headphones is of potential interest.  The law (and the Highway Code) do not prohibit it but the DirectGov ‘Cycling Safely’ website advises “Stay alert! Don't listen to music or use a mobile phone while cycling – distractions cause accidents”.

 

Ultimately the Judge found Mr Brent two-thirds to blame for the collision and Mr Brown one-third to blame.  He acquitted the race organisers of any blame at all.

 

Although this is a County Court case (and strictly not citable to any future Court) it is illustrative of the duties that race competitors owe to members of the public who are not involved in the race.  Road races in this country are almost invariably very well organised and this is the first case of which I am aware where a competitor has been successfully sued.

 

Though not involved in the race I should declare an interest as a member of both the Surrey League and British Cycling.  I hope both cyclists have recovered.

Legal update: R (on application of Kate Cairns) v Deputy Coroner of Inner West London

Today sitting in the Adminsitrative Court, Silber J has rejected the claim brought by Kate Cairns for a Judicial Review of the Inquest into the death of her sister Eilidh Cairns, who was fatally struck by an HGV in Notting Hill on 5th February 2009.  There were complaints about case management which appear to relate specifically to the way in which that particular Inquest was conducted.

Of broader public interest was the Deputy Coroner's decision not to make any recommendation pursuant to her powers under rule 43 of the Coroners Rules 1984.  This rule provides that:

"Prevention of future deaths

43.—(1) Where—

(a) a coroner is holding an inquest into a person's death;

(b) the evidence gives rise to a concern that circumstances creating a risk of other deaths will occur, or will continue to exist, in the future; and

(c) in the coroner's opinion, action should be taken to prevent the occurrence or continuation of such circumstances, or to eliminate or reduce the risk of death created by such circumstances,

the coroner may report the circumstances to a person who the coroner believes may have power to take such action."

As pointed out by Silber J, this rule provides the Coroner with a considerable degree of discretion, so that even if (a), (b) and (c) are all satisfied (which they surely are in all cases where cyclists are run down by HGVs), the Coroner may (not must or should) report the circumstances to a person who it is believed may have power to take such action.

What fortified the Judge in his conviction that the Coroner had not exercised her discretion in such a way that no reasonable Coroner could have done was that "PC Clark of the Collision Investigation [Branch of the Metropolitan Police] explained that he was unaware of anything which could be done to prevent accidents of the kind in which Miss Cairns was tragically killed".

The really worrying thing is that this counsel of despair from the police is both voiced and is so readily accepted.  A Collision Investigator ought to start from the premise that this type of collision is preventable - a clue is in his title, in that the Metropolitan Police (and most Coroners) have, unlike the Administrative Court, abandoned the term 'road traffic accident' for 'road traffic collision'.  The reason for the change in terminology is because of the potential to confuse 'accident' with 'unavoidable event'.  A Police Sergeant in the Metropolitan Police's Cycle Task Force reminded me of this change last week.  It does not take more than a moment's reflection to come up with the ideas of better (or any) mirrors, sensors, training and enforcement as areas for action that may eliminate or reduce the risk of a repeat of the circumstances that led to Eilidh Cairns's untimely death.   My reading of the rule is that it is concerned not so much with a specific action that would have necessarily prevented the death inquired into (sadly the facts seem to have remained obscure in Eilidh's case) but action that would reduce the risk of future deaths in the same circumstances.

All of us who cycle on London's streets know that the quality of lorry driver is highly variable.  Near misses from lorries are not pursued by the Metropolitan Police because (I learnt last week) a safe passing distance is thought to be too subjective.  The quality of response from employers of drivers who have passed much too close varies from the highly responsible to the shockingly irresponsible (I have had one example of each in the last few days).  It does not take many miles of cycling experience to recognize that action is required to reduce the number of HGV/cyclist collisions which so frequently result in death.  A 'nothing can be done' attitude would be unthinkable if considering deaths in an industrial, disease, terrorism or virtually any other unnatural premature death outside the context of road traffic collisions (maybe even especially in the context of pedestrians and cyclists - I will wait with interest to learn, for example, whether a report is made in relation to the recent M5 tragedy).

Action by whom, the police officer or Coroner may ask?  Happily the rule requires only that the recipient of a Coroner's recommendation may have power to take action.  I suggest the (new) Secretary of State for Transport, the (new) Metropolitan Police Commissioner and the Mayor of London as my candidates for persons who may have such power.

My morning with the Metropolitan Police Cycling Taskforce

Last month I referred in a blog to the Metropolitan Police Task Force in connection with my response to the latest public consultation by the Metropolitan Police Authority to set police priorities.  This resulted in an invitation from the Inspector in charge of the Cycle Task Force to see the work that they did.  I accepted and as a consequence I pedalled down to Chelsea football stadium yesterday morning to meet one of their officers.

I was a little early and was surrounded by some special constables so keen to security mark my bicycle that I felt it would be impolite to decline.  That done, I had the PC, Michael, pointed out to me.  He was a little way down Fulham Road, standing beside his bicycle staring intently at some pedestrian lights.  The plan was to stop the cyclists who jumped the lights and invite them to enter the cab of a lorry to see what it was like ‘Exchanging Places’.  I had just missed him forcing one reluctant cyclist to a stop by interlocking arms which had resulted in the cyclist falling from his bike and muttering about a possible complaint.  The first lesson is clear enough; if a uniformed police officer requires you to stop, do so voluntarily.  It is less hazardous than the other way.

Part 1 – Exchanging Places

Introductions made, I stepped up into the driver’s seat of a Keltbray lorry.  In the passenger seat was another police officer who had experience (as it transpires, does Michael) of driving HGVs.  Another officer pushed my own bicycle into various positions around the nearside and front of the lorry.

My first impression (possibly contrary to the one intended) was just how good the driver’s visibility was from the cab using the ‘standard’ side mirrors and an angled mirror at the front of the windscreen, revealing what was immediately in front, and a further angled mirror on the offside just above the passenger side window.  I asked whether these were the standard required mirrors and was told that they were on new vehicles but there is no requirement for the retro-fitting of older vehicles.  Without those two ‘additional’ mirrors there were huge blind spots both to the front and to the nearside of the cab.  The officer explained that it would be unacceptable to require retrofitting because of the cost.  I have to say that I disagree with that viewpoint.  [I am also fairly sure that the position is quite a lot more complicated than that and retrofitting of at least some mirrors on at least some lorries is required.  Furthermore Sir Alan Beith’s bill is reaching a critical stage and this merits a whole different post] 

In any event, having seen how the simple expedient of carrying two additional mirrors so dramatically improves the ability of the driver to see areas which include the ones that he is directly driving into, if going either straight ahead or turning to the left, I am even more firmly behind the See me, Save me campaign set up in memory of Eilidh Cairns.  Responsible companies will install these mirrors (and sensors because as the officer explained to me there will always be drivers who do not look in their mirrors, however good) but it is the less responsible ones about which we should be most concerned and who should certainly be denied any competitive advantage over their more responsible competitors.  It is hard to see why having adequate mirrors/sensors should be thought of as anything other than essential equipment to lessen the risk an industry imposes upon other people.  With or without mirrors or sensors, I will be continuing my policy of never trusting an HGV unless and until you have eye-balled the driver.  (I was one of a tiny disappointing minority who would not be changing their behaviour as a result of the experience).

It was striking that from a lorry cab at the first stop line, anything in the cyclists’ advanced stop box is invisible without the additional mirror at the front.  The police officer and I did agree that if you have a lorry behind, you get into a position where you can eyeball the driver even if that takes you over the second stop line.  Perhaps advanced stop boxes should be deeper but I was told that was unacceptable because it would interfere with road capacity and therefore traffic flow!  Perhaps careful lorry drivers should stop short of the stop line so that they could see the box ahead?  No that was not practical either I was told (though the Sergeant I saw later said better trained drivers did do this)..

The officer in the cab was friendly and charming and I am sure police relations with the cycling public features largely on the agenda.  He did not though appear to be an experienced cyclist (at one point I was shown how difficult it was to see the officer on the ground wheeling my bike ‘and that is with him standing up, never mind when he is sitting down on his bike’) and any suggested action on the part of lorry drivers and their employers to reduce risk seemed to be excused away with a rapid refocus on the actions of the cyclist.

I am sure this exercise is useful (feedback forms including my own confirm this) but it should not be thought to be tackling bad driving.  ‘Exchanging Places’ is really a misnomer, I saw no lorry drivers invited to take the place of cyclists.  I remain unconvinced that many of tragic cases we have of lorries running down cyclists are caused by the cyclist’s ignorance of a driver’s blind spots.  As I mentioned in the cab, I saw bad driving by lorries around cyclists on a daily basis and had on my way to Chelsea witnessed (but sadly not filmed) a trailer lorry overtake a group of cyclists before turning left forcing them all to a stop.  I was going to be interested to learn what action was taken to counter this sort of behaviour. Collision avoidance, it seems to me, requires not just a warning to cyclists about how they pass lorries but also to lorries about how they pass cyclists.  The former is perhaps the easier to address.

Part 2 – The Patrol

I next followed Michael through the crowded streets of west London up to High Holborn then across the infamous Blackfriars Bridge to the Taskforce’s HQ at Palestra.  We had only gone a few hundred metres before at a red light, Michael took the opportunity to warn a cyclist who had stopped way past the stop line.  I waited in the advance stop box alongside a police motorcyclist (I really do not know the state of the lights when he got into that box; it was stop/go traffic) to whom the sight of a colleague on a bicycle seemed to be quite a novelty ‘Whatever next?’

Further on Michael stopped, said he was turning round and headed back towards a skip lorry.  I was beginning to learn that Michael had extraordinarily keen vision.  I see a lot of mobile ‘phone use by drivers; what I see must be the tip of an iceberg because Michael spotted many examples all of which I missed.  This was the first.  The lorry driver was instantly apologetic with a sob story so convincing it could almost have been rehearsed.  Michael is kind hearted almost, in my view, to a fault.  He warned the driver in relation to his use of a hand held mobile ‘phone and for failure to wear a seat belt.  Once the driver had gone on his way promising never to do it again, I queried how an officer decides whether or not to issue a penalty notice.  In this case the driver had picked up his ‘phone only for a moment before seeing Michael.  Of course I had not seen it at all, but still the concept of a lorry driver in crowded Chelsea streets looking at his phone screen and deciding to take the call scares me.  Michael did not, it seems, have any option of ‘encouraging’ him to attend a course in exchange for such leniency (I would happily help devise one which would probably involve lorry drivers on bicycles riding up and down the A30 from East Bedfont to Staines; though there would probably be some health and safety objection on the grounds that there were too many lorries about!)

We carried on up to Hyde Park Corner and to Piccadilly, where Michael again spotted a driver creeping forward and looking down at his mobile ‘phone either texting or dialling.  He was pulled over and the intent was to issue the driver with a paperless ticket.  This involved Michael using his own hand held electronic device during the course of which the system hung so it remained a matter of conjecture as to whether the Fixed Penalty had gone through or not.  It is to Michael’s credit that he and the driver left on evidently friendly terms.

A little further on, a courier on a fixed wheel emerged from a side street through a red light without so much as a glance in our direction as we went through our light on green.   Michael put on a burst of speed and forced the cyclist against the kerb to stop him.  This one was definitely going to get a ticket but it was reduced in amount if the cyclist logged onto the Taskforce’s cycling safety website for some online training within the next couple of weeks.

We carried on up to Holborn.  I had let a girl on a Boris Bike through a tight gap in traffic ahead of me and so she passed Michael as he waited for me to catch up.  She therefore knew a police officer was right behind her but that did not stop her from going through the next red light (slowly it has to be said and without any sign of a pedestrian nearby, so rather different in quality from the courier’s offence).  Michael had no difficulty stopping her and with, I thought, impeccable judgment, did not issue a fixed penalty.  Instead he took the bike number of her Boris bike, as requested by TfL, so that they could write to her and ask her kindly to obey the law whilst riding one of their bikes.

It was then a first for me going over Blackfriars Bridge on a bicycle.  I would have liked to have been there to protest but have never quite managed and my sense was that Michael shared my puzzlement that the speed limit on that bridge has just been raised (‘to ease traffic flow’).

Finally after we had parked up our bikes and were walking over to the Palestra entrance, Michael again spotted a white van driver on a handheld mobile.  He indicated to him to put it down.

Part 3 – In Palestra with the Police Sergeant

Michael escorted me to the desk of his Sergeant, Simon, who was off his bike as a consequence of a nasty motorcycle accident.  He had been asked by his Inspector to discuss tactics and performance with me and to answer my questions.

I was interested in the lorry side of ‘Exchanging Places’ and Simon did assure me that they ran some very successful courses for lorry drivers.  It was stressed that a lorry driver’s time is money (rather like mine is, I thought) and they (or their employers) were incentivised to attend by receiving necessary continuing training points.  When Simon told me that they terrify some of them, I at first thought he meant by putting them on bicycles in traffic, but it transpired what he meant was by stressing the consequences to them (financial, loss of liberty and psychological) of being involved in a collision.

On police discretion, he was very sure that we were far better policed by officers than by automatons and he had no time for ‘zero tolerance’.  I moved on to ‘total tolerance’ which is how I see enforcement of advanced stop lines.  The statistics on Simon’s computer did not break down how may traffic light offences were advanced stop line (only) but he did agree that the figure would be ‘zero or close to zero’.  He felt that since this was an endorseable offence the penalty was disproportionate to the ‘inconvenience’ caused.  I felt that these boxes potentially were there not just for convenience but for safety and were being ignored as a matter of routine by many drivers who knew there was no risk of enforcement action.   Simon did think it was rather unpleasant for a motorist to have an officer give him a warning in the presence of other ‘intimidating’ cyclists.  His knockout point was to ask me how I would feel if I was given a ticket for entering such a box on my bicycle other than through the designated feeder lane.  I said that were that to happen I looked forward to challenging the penalty in the Magistrates’ Court (the hard part would be deciding whether to defend the case on the grounds of necessity or to plead guilty and ask for an absolute discharge but either way to ask for my costs).  Apparently enforcement of advanced stop lines might happen in the future, particularly if it became a separate non-endorseable offence.

I wanted to raise the question of the reporting of driving offences, which in my view is a great deal more difficult than it ought to be, and about which I have blogged in the past.  Simon indicated that in the event of a collision the requirement of the Road Traffic Act to report it to the police required the formality of attending a police station.  We each tried to remind the other and ourselves of the precise reporting requirements of the Act and agreed that it did not apply to a report made by a cyclist.  Simon’s point then was that clearly it would not be right to have cyclists in some privileged position compared to, say, motorcyclists.  However what is clear to some is not to others, and I cannot see any principled objection to making cyclists’ lives easier than motorists; we are after all as a state or society trying to encourage cycling at the expense of motoring for an embarrassment of good reasons.  Of course, Simon is not in a position to do anything to affect this (nor probably is his Inspector whom I did not meet).  It is something that I think the Police Authority could look at when determining their priorities.  During my waits in queues in Charing Cross Police Station I have had plenty of time to study the lists of dedicated numbers for the reporting of offences such as domestic violence or homophobic abuse to which some priority has plainly (and rightly) been given.

Looking at the feedback forms from ‘Exchanging Places’ the question of cycle training came up and I took the opportunity to ask Simon about what he thought of bikeability training and whether his officers were bikeability trained.  Simon indicated he was enthusiastic about bikeability and his officers were trained to the same principles.  He well understood the primary riding position and why cyclists took it.  I mentioned that my own (limited) observations of officers riding was that they were not a shining beacon to enlighten the motoring public that occupation of a lane by a bicycle was acceptable and not provocative behaviour.  Further I had heard second hand that some of the letters written by Roadsafe were said to have reinforced the perception that cyclists should be at the edge of the road.  I am certainly not going to attempt to teach experienced police officers how they should ride but I nonetheless wonder whether an experienced outside bikeability instructor might be able to give them some insights.

My perception of the patrol was that is a very useful way of dealing with mobile phone users and traffic light offences.  However nobody is going to act aggressively or close pass a uniformed police officer and I wondered if they ever went out undercover.  The problem with that is that unless unformed they cannot require someone to stop.  They have very good HD cameras on their helmets and so could usefully be gathering evidence but I suppose, on reflection, they have a steadily rising group of people doing that for them for free.  This moved us on to the Roadsafe initiative (which is separate from Simon’s group).  Simon thought prosecuting close passing motor vehicles was not sensible because it was all very subjective.  I disagree, in many cases a vehicle is much too close in clear contravention of the Highway Code and driving at the very least without due consideration.  It further represents a powerful disincentive to cycling (if it make me think twice it must make countless others never take to their bikes again).  We discussed the effectiveness of writing letters and were able to agree that it was better than nothing.  I mentioned that the Surrey Police had taken the view that one of my shots of a close pass was sufficient for a prosecution and I will let Simon know the outcome of that in due course.

Finally I slightly abused my invitation by raising my own personal disappointment that a motorist who attacked me had been given a police caution, and how I thought that violence against cyclists was a pernicious evil that ought to excite a determined response.  I had just read about yet another case of a motorist taking the trouble to stop and get out of his vehicle to assault a cyclist, this time in Cambridge.  Simon had heard of the Bexley case but had not heard the suggestion that the police had required a bit of encouragement to track down and pursue that yob.  Simon’s take was that the caution in my case had nothing to do with the victim being a cyclist and illustrated a more general problem.

Overall

It would certainly not be fair to suggest that the police are doing nothing to counter poor driving on our roads (and I make clear I have never suggested this).  It was amply demonstrated to me that the Cycling Taskforce is in a very good position to spot and deal with mobile phone and traffic light offences.  The statistics Simon showed me demonstrate they do even more with, for example, a handful of drunk drivers apprehended (they do have breathalysers in their substantial panniers).  I mentioned that I felt some greater emphasis of this part of their work on their website could be useful.  Certainly I do not see it as my role to promulgate this information for them.  The observational powers of Michael were truly impressive and this is unquestionably a good use of hard pressed police funds.  Indeed out of patrol cars and off motorbikes and onto bicycles is a good way to go in Central London.

As I mentioned to Simon on the lift downward, I am more likely to be harmed by a bad driver than by a terrorist and the status and resources of traffic officers ought to reflect that.  I maintain the view, which I have represented to the Police Authority, that greater priority could be given to the easy reporting and serious enforcement action, against those whose poor driving endangers vulnerable road users.