Van driver who ran down Elizabeth Brown cleared of causing death by careless driving

Evening Chronicle reports that Daniel Mackay who drove a van straight into the back of Elizabeth Brown as she was cycling on the A189 near Cramlington, Northumberland, on 13th April 2011, was today cleared of causing her death by careless driving.  A jury at Newcastle Crown Court appear to have accepted Mackay's explanation that as a vehicle ahead of him swerved suddenly to avoid Miss Brown leaving him with no opportunity to avoid running into her.
Some might think an object lesson in why not to tailgate the vehicle ahead.

Press release from Kate Cairns

Further to my last post, this press release from Eilidh Cairn's sister, Kate, merits the widest possible distribution:

BEGINS

‘Jail is not the justice we want’

On 5th February 2009 lorry driver Joao Lopes ran over and killed fit, strong and experienced cyclist, Eilidh Cairns as she rode ahead of him on her daily 10 mile commute through Notting Hill Gate.  

Just days after what would had been her 32nd birthday in June 2011 he again ran over bright and active holocaust survivor 97 year old Nora Guttman at a pedestrian crossing. This week at Isleworth Crown Court Joao Lopes pleaded guilty to causing the death of Ms Guttman by dangerous driving and also to falsifying data on his tachograph.

Whilst Lopes is remanded in custody there are others who may be feeling uncomfortable at the avoidable heartbreak of three broken families.

At Eilidh’s death the police failed to check Lopes’ eyesight, and did so only at the family’s request and then three months after the crash. His eyesight was so bad that it did not meet the standard to drive a car let alone an HGV. The police failed to find witnesses as they turned away vehicles without taking details. Eilidh’s sister Kate, after a personal public appeal, found two witnesses who gave key evidence at the inquest clarifying that Eilidh had been in front of lorry and not coming up alongside as assumed by the police. 

Coroner, Dr Shirely Radcliffe, failed to use her powers under Rule 43 to make recommendations to prevent further similar deaths and concluded that it was just an ‘tragic accident’. Kate challenged her and won permission to apply for judicial review. But at High Court, Judge Silber accepted Radcliffe’s argument that there were ‘no practicable preventative measures’ which could be applied to prevent further similar deaths.

The police eventually acknowledging that the original investigation report was inadequate have only in recent weeks finished a complete review of the investigation into Eilidh’s death. But the CPS this month rejected any proposed charge and will be taking no further action. Following Eilidh’s death Lopes was charged with driving with uncorrected defective vision and given three points and a £200 fine. He did not have his licence revoked.

Kate Cairns said:

For three years I have battled the whole way through an inadequate system which assumes the guilt of the cyclist, and which is rife with incompetence and complacency and which has failed us all on so many levels. There was no interest in carrying out a proper investigation nor in finding witnesses. The police report was riddled with assumptions, omissions and conclusions contrary to evidence, obvious even to a layperson but there was no interest from the CPS in questioning it. Only after the death of someone else, three years later, have the police acknowledge the report was inadequate and reviewed the case of Eilidh’s death. 

Then there is an absolute failure of the coronial process to be meaningful in anyway when the coroner refuses to put her mind to ways to avoid similar deaths. 

Nora Gutman did not have to die, Lopes did not have to loose his freedom, if the  professionals had done their jobs.

 All I wanted was the truth so that other deaths could be avoided and other families did not have to suffer. We have not had justice today, clearly there are many more drivers like Lopes on our streets. Their employers need to take responsibility and train them and incentive them, and comply with legislation and provide the tools and equipment to protect everyone from their business activities. These trucks are lethal killers, not designed for our urban streets. Those presenting the most risk must manage that risk. Whilst they profit, innocent people die. 

The President of the Institution of Highways Engineers yesterday called for a ban on HGVs on motorways on Sundays. The Institution of Mechanical Engineers last month called for a ban of HGVs in urban areas until they are made safe (Intelligent Transport Intelligent Society). The BMJ called for a ban on HGVs in 1992 following the deaths of vulnerable road users. A report ten years later also called for a ban on HGVs until the risk they posed could be reduced.

ENDS

Joao Lopes guilty of causing death by dangerous driving

Mr Lopes was the driver behind the wheel of the lorry that cut tragically short the life of Eilidh Cairns on 5th February 2009 as she rode her bicycle through Notting Hill Gate.  The sole charge pursued against Mr Lopes arising from Eilidh's death was that of driving with defective vision for which he was fined £200.  It was Eilidh's family who pressed the police to test Lopes's eyesight and her sister Kate Cairns has been campaigning tirelessly for safer lorries.

It transpires that in June 2011 Mr Lopes was driving a lorry that struck and killed a 97 year old woman pedestrian, Nora Gutmann, a holocaust survivor.  For some months many of us (though not Private Eye) have been keeping quiet about this connection for fear that it might prejudice a jury at a future trial.

However no trial is now required.  Lopes has pleaded guilty at Isleworth Crown Court to causing the death of Nora Gutmann by dangerous driving and also to falsifying the data on his tachograph.

The investigation into the death of Eilidh Cairns did not, on any view, go as it should have done.  I know that I have the benefit of hindsight but it is nonetheless surely right to point out that those who choose to, or not to, prosecute drivers following fatal crashes involving vulnerable road users have a heavy burden of responsibility to ensure that dangerous drivers are removed from our roads.

Lopes has been remanded in custody where he awaits sentence due to be passed on 1st August.

Helmets: a Dutchman goes to Canada

Hans Voerknecht has been to a Velo-City conference in Vancover to explain why mandatory helmet laws are not such a great idea.  One of his statistics is that In the Netherlands, where cycling is ubiquitous, 13.3 per cent of the cyclists admitted to hospitals with injuries wore helmets — even though just 0.5 per cent cent of Dutch cyclists wear helmets.  Maybe tourists from Anglo Saxon nations wearing helmets are disproportionately represented in the hospital statistics.  Maybe also those with helmets are perceived by motorists or perceive themselves to be less vulnerable.  The debate will go on.

Meanwhile I am reminded that earlier this year a Metropolitan Police Officer stated to me, during the course of the same conversation in which he explained that his officers were under a high workload so it was difficult to deal with law breaking motorists,  that he would like to see helmet compulsion here.  He did not seem to think there would be any problem with the Metropolitan Police finding the resources to enforce any such law and I bet he would be right.  Where there is a will, there is a way.

Still racing?

Time to get away with my disillusionment with commuting and the criminal justice system and turn to more pleasant thoughts.  Whilst my commuting mileage is down I am upping my mileage riding to and then racing.  Unlike last year these are almost exclusively at racing circuits.  Although I love racing on the open road I am realistic enough to recognise that I will almost always be dropped (most probably on a descent) and, since road race fields are invariably full,  I am preventing somebody from having a proper race.  Overall I am a bit heavier and a bit slower than last year.  I am also a far more nervous rider on the downhill as a consequence of, not one but, two front tyre blow outs when descending this spring.
I am though, I think, marginally faster in the sprint.  Last year I was usually crossing the line 100 metres behind the peloton.  This year I am managing to cross the line with other riders all around me.  This helped me to a 9th place last week which, though hardly stunning, is my best result for two years and earned me 2 BC points.
When I started this blog 3 years ago I was a 4th cat and managed the 10 BC points required to become a 3rd cat.  Now half way through this season I have 2 points so, to answer my reader who kindly enquired whether I would ever make 2nd cat,  'no' I am afraid not; 40 points are required and short of EPO and blood transfusions, 2nd cat status is for me an impossibility.  About as likely, I would say, as being appointed Lord Chief Justice.

On a slightly different note, I will be doing the etape in the Pyrenees in a few weeks time.

Coach driver acquitted of charges relating to the deaths of Christian and Niggy Townend

The News and Star reports that a Carlisle jury has acquitted coach driver Robert Wightman of all charges relating to the deaths of the Townend brothers who were cycling on a main road in the Lake District on 5th December 2010 when they were struck and killed by a coach driven by Wightman.  Wightman did not see the cyclists before running them down and appears to have implicated the sun.  he appears to have acknowledged that he was driving too fast to be able to stop in the distance that he could see to be clear.
We can never know what went on in the jury room.  Personally I believe it to be an odd outcome.
I do not know all the evidence.  However the Judge of course did and it is important to note his comment that there could be no criticism of the CPS for bringing the charges (which included causing death by dangerous driving).
It would only compound the tragedy in this case were that jury verdict to be used as a justification for not bringing the appropriate charges in future similar cases.

'Insufficient Evidence' again and why the Met Police Roadsafe is a waste of time

I have now received the closest thing I am going to get to a response to the points raised in my letter to the Metropolitan Police Commissioner.
After explaining that Roadsafe is for intelligence gathering rather than investigating or prosecuting (a point also made to me by Jenny Jones MP MLA), the letter from the officer responsible for Roadsafe goes on:

The John Lewis incident is this one:

(By-the-by I sent a copy of the video to John Lewis 7 months ago but have never received a word of regret or apology from what I previously considered a highly moral organisation).  Roadsafe clearly considered that there was sufficient evidence to prosecute as it is one of the rare cases they forwarded to the 'TCJU'.  They might as well not have bothered because the TCJU viewed the footage and decided there was insufficient evidence.  A decision which cuts down on their workload and need not be justified to anybody.

However Roadsafe were responsible for deciding there was insufficient evidence in this case:

The suggestion that there is 'insufficient evidence' because the number plate is dictated by me contemporaneously to camera rather than captured on the video is frankly laughable and I have emailed DI Hands to tell her.  Assuming Global Eyes have a vehicle with that registration the idea of a defence that the lorry was elsewhere and I got the registration wrong when coincidently it was another of their lorries is self evidently feeble.

If you wanted to set up a unit to give noisy irksome vulnerable road users the impression you were doing something, when you in fact lack the resources or will to do anything, it would be hard to design something more fit for that purpose than roadsafe.  Call it intelligence gathering (so as to see whether there is a problem with bad driving and vulnerable road users!?); apply an absurdly high threshold as to sufficiency of evidence; where the sufficiency of evidence is obvious, refer to the black hole known as TCJU and if anybody complains tell them they should be standing in line at a police station to have their complaints ignored there.  Tell vulnerable road users that you have written to drivers or warned them, or whatever it takes, but do not lift a finger to prosecute.  If they complain most of them will not know what sufficient evidence is so use that. If all else fails pray in aid the public interest.

I have tried to make constructive suggestions and criticisms and just been fobbed off by police and politicians alike.

Sad to say I have all but given up commuting into London now.  It can hardly be described as a pleasant experience and there is no meaningful support from the police.

Inquest into the death of Daniel Cox

Yesterday the inquest took place into the death of Daniel Cox, the promising young artist killed as a consequence of being run down on his bicycle by a left turning lorry at Dalston Junction on 02.02.11.  Ross Lydall of the Evening Standard was there and reports the verdict of 'accidental death'.  Apparently the concern of the Coroner was directed not so much at lorries with avoidable blind spots running down cyclists, or the totally unenforced contravention of red traffic lights when motorised vehicles cross the line into space before the Advanced Stop Line reserved for cycles, but instead on the paradoxical situation that ASLs might be placing cyclists in danger.
So, there we have it, the inquest into the 'accidental' death of Daniel Cox reveals as the most disturbing feature of his death that the ASL might have placed him in danger.  Since it was the ASL apparently that killed Daniel, we can now see why the CPS dropped all charges against the driver.
I very much hope that the Coroner appropriately grilled that driver over his decision to encroach into the advanced stop area in order (so he apparently claimed) to get a better view of the junction and over the fact that he did not apparently have the benefit of a legal nearside mirror.
I ought to stress that I was not there and do not have access to the evidence but what I have read suggests that the lorry driver goes through the first stop line (contravening the red light) indicating right and eventually stops at the Advance Stop Line.  A cyclist coming from behind (in all probability knowing the lights had just turned to red), would not see either a left indication or that the lorry had blocked the ASL.  Cyclist perfectly sensibly moves ahead to the second line where he ought to be well ahead of the lorry but, as he finds when he gets there, is alongside (or maybe only slightly ahead of the lorry - I cannot know) because the lorry is further ahead than it should be.  Lorry driver sees nothing of the cyclist either because of the inadequacy of his observation or the inadequacy of his mirrors (or both).  Cyclist cannot go further forward without jumping a red light.  Lorry driver indicates left and runs down cyclist.
So how is it that it is ASLs, rather than (say) defective lorries or bad driving that is putting us in danger?  I can only imagine it is that the very existence of ASLs lulls us into a false sense of security that there will be a space for us ahead of the traffic that we should use.  Whereas in reality of course there is no such space because so many motorists, and all those paid to enforce the law,  do not give the slightest attention to an ASL, to the extent that it is quite unremarkable for a lorry driver to say that he encroached onto a space reserved for cyclists to get a better view.
To that extent perhaps the Coroner has some sort of perverse point: either enforce ASLs or do away with them.  However the blind eye being turned to planks whilst identifying this mote is astounding.

Subsequent thought: the CPS do seem to be a lot more willing to prosecute in cases involving the death of a pedestrian than cases involving the death of a cyclist.

British Cycling calls on the Lord Chancellor to review the role of the Criminal Justice System in protecting vulnerable road users

British Cycling's letter to the Lord Chancellor can be read here.  Item (b) concerns the role of the Crown Prosecution Service in deciding the appropriate (if any) charge where a death has been caused.  I have vented my frustration on these pages at Police/CPS decisions that there is either 'insufficient evidence' or it is 'not in the public interest' to prosecute each time, thus far, that I have submitted evidence of bad driving.  These are of course petty irritations when compared to the far more serious circumstances of a death or serious injury.


Ross Lydall of the Evening Standard reported yesterday that the driver of the left turning lorry, which crushed Daniel Cox in Dalston in February 2011, will not be charged.  I do not have access to the evidence.  However, Ross reports a CPS spokesperson as saying,  “We concluded that we could no longer prove that Simon Weatherley did not use his indicators to show his intention to turn left, an essential element in proving that he was driving without due care."


It seems that the prosecution was brought on the basis that the lorry driver had not indicated left and that when evidence emerged that he might have indicated left, a prosecution was regarded as untenable.  I find this disturbing.  Every case will turn on its own facts and it is surely a jury question as to whether it is enough to have indicated.  Every lorry driver ought to be aware of the possibility that there is a cyclist to his nearside.  It is hardly relevant that an experienced cyclist would do anything to avoid being there.  By definition if cycling is expanding not every cyclist will be experienced.  Furthermore Highway Authorities, many motorists and some cyclists have an expectation that cyclists should be on the nearside margins of the road.  It is not therefore sufficient for a left turning lorry driver simply to indicate and lack of an indication is not therefore 'an essential element' in proving an offence.  A careful and considerate lorry driver does not turn to his left unless he is sure, by the use of mirrors, detectors or otherwise, that there is no cyclist on his nearside.  If the driver does not have adequate mirrors he must take that handicap into account when deciding whether it is safe to turn left or indeed to drive at all.


I cannot say whether the decision not to prosecute this driver was the right one but I can say that I find the reasons given for the decision  disturbing.


There is an inconsistency between that decision and the contrary decision to prosecute the tanker driver who seriously injured the journalist, James Moore.  As Ross Lydall's report of that case reveals, there was CCTV footage showing that the tanker driver was indicating whilst waiting at traffic lights before taking the turn.  That driver was acquitted by a jury.


The evidential test should be considered satisfied if there are reasonable prospects of a conviction.  That means, if the test is applied appropriately, the prosecution can expect to win some and lose some.  Merely because it has lost one case where a lorry driver was indicating left does not mean that indicating left should henceforth be treated as a literal 'get out of jail' card.  It is emphatically not 'an essential element' to a charge of causing death by careless or inconsiderate driving that the driver can be proved not to have been indicating.

More on sentencing: R v Zeeshan - a turning point?

On May 30th Anjum Zeeshan was sentenced at Guildford Crown Court to 9 months imprisonment and a two year driving ban following his conviction by a jury of causing death by careless driving.  Zeeshan's victim was John Austin who was cycling in the same direction on his bicycle.  Zeeshan ran into the cyclist from behind in broad daylight.  He claimed not to have seen Mr Austin before colliding with him, blaming the sunlight and even suggesting (without a shred of evidence) that Mr Austin had come off the pavement.  In fact, as the Judge pointed out, Zeeshan obscured his own vision by travelling much too close to the car in front.

It is fair to say that with an immediate custodial sentence, Zeeshan was not treated with the degree of leniency that had become all too common-place.  (Look under 'Sentence' here and you will note that he was treated more like the cyclist Darren Hall, than like the motorist Matthew Rice).  Should Zeeshan appeal against his sentence, any such appeal would form a useful opportunity for the Court of Appeal to repair the damage done in Rice.  Of course, the ban could usefully be longer but this case is at least a step towards that which British Cycling with the backing of The Times are seeking to achieve, namely justice for the victims of bad driving.

One might think that Zeeshan did not have much of a defence.  Oddly at his first trial in February, a jury had failed to reach a verdict which resulted in the need for a re-trial.  Those responsible for selecting charges and bringing prosecutions should note that if they select the right charge and have the right evidence, juries will almost invariably (in the end) bring in a just verdict.