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.
Saturday, 9 June 2012
British Cycling calls on the Lord Chancellor to review the role of the Criminal Justice System in protecting vulnerable road users
Posted by Martin Porter at 12:19
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Since when has the " Public Good " been subject to the whims of "Chance "?ReplyDelete
All legal cases are subject to the way evidence is presented and if Prosecutors are going to duck cases that lowers their " Win " ratio , it is time for them to seek other employment !
Maybe working as a cycle courier !
Plainly the CPS's comments do not make sense as a generality, but apparently they think the particular case they could assemble against that driver was badly holed without that point. It is really hard to judge without knowing what their case was. After all, it can apparently be hard to assemble a good case against someone even with the most damning circumstantial evidence. See http://en.wikipedia.org/wiki/Church_of_St_Helen,_TreetonReplyDelete
But I do think that as a generality, "lack of due care" is a standard that must fall well short of being "careful and considerate".
I would have thought my post was clear enough that I was criticising the reasons for the decision.ReplyDelete
One bad decision not to charge cannot justify further bad decisions.
I do not know where you get the 'well short' idea from. 'Far below what would be expected of a competent and careful driver' gives you dangerous driving; 'below what would be expected of a competent and careful driver' gives you driving without due care; due consideration is not defined but requires that somebody is inconvenienced. As a matter of sensible language you are driving either with or without due care and/or consideration; driving with due care and consideration is synonymous in my usage with being careful and considerate.
You wrote this: "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." You are therefore interpreting the CPS's "essential element" wording as a general argument, ie, an essential element of any case. But I think it at least possible that they only meant it is essential in relation to the specific case against this driver, not in general. You may be right, but I don't see anything to contradict my way of reading it.ReplyDelete
The other point is semantic, I admit. But I would only call, in non-lawyerly fashion, someone's driving "careful" and/or "considerate" if it was conspicuously so, not the ordinary or due level necessary to keep you alive (mostly) and out of the slammer (mostly). And judges sometimes seem to have even lower expectations of the words "due care" than me: a driver drives off the road into a ditch, with no external reason for doing so, other than the fact that it was dark and the road narrow and unlit. To me that outcome is in itself evidence of lack of due care, but in a case in Wales a judge didn't think so even though the passengers in the car died. The driver says he simply didn't see the bend.
Thanks for your comments. I was sufficiently startled by your reference to the Welsh case to seek it out. Craig Ramshaw was acquitted by a jury of dangerous driving. I do not think anybody suggested that he was not guilty of driving without due care.Delete
Keep up the good work Martin. I always read your blog and appreciate the voice of reason, when my blood is boiling when I hear of one more poor unfortunate being crushed to death by an indifferent and careless driver. I would like much more stringent sentences. There is no consolation at all at present for the families of these cyclists.ReplyDelete
Thank you for this article. I apologise for leaving an anonymous comment but I'm very upset and it seems the best thing to do right now.ReplyDelete
I knew Dan and cannot understand why the CPS didn't proceed with the case. I cannot express how devastating it is to lose someone in this way and for there to be no sense of responsibility for the act. Even if the driver of the HGV were acquitted it would feel better to have had the case heard by an independent Judge and Jury. (There are some appalling blame-the-cyclist comments on the Evening Standard article). It just seems decent and just (to a lay person) for the case to be heard. It feels like the system has failed.
I thought that the crucial element was that the HGV was missing a legally required mirror on the left hand side? Why isn't this enough to bring the case to court?
Hi Martin. Just discovered your site.ReplyDelete
I've been following this story and trying to work out where the breakdown in process is.
I've had a recent experience with the CPS around similar circumstances and understand they will only prosecute if they think they have pretty strong grounds for getting a conviction. Eg, pressing for Careless rather than Dangerous driving despite outcome of the incident.
In my reading it appears that a lack of evidence caused the CPS to pull the charges in Dan's case.
This speaks to me that the problem is the failure to collect all relevant evidence from the scene, thus leaving the CPS with nothing to support its charges. Or is that just a part of the issue?
I find it bizarre that the presence or absence of indicators can make or break a case like this. Surely if we take rule 103 of the highway code, "indicating does not give you priority" into account, I can't see how this can be used as justification to drop the case given that it seems there might be other evidence as mentioned above.ReplyDelete
Ross Ldyall (who really is doing his fellow-cyclists a great service with his coverage of these cases) has just posted another article about the inquest in this case: http://www.standard.co.uk/news/london/i-am-sorry-but-i-couldnt-see-him-trucker-tells-dead-cyclists-mother-7843934.htmlReplyDelete
The case seems to me far more blameworthy even than when I first read this post about it. The lorry driver was blocking the advance stop box. From personal experience, it's possible to try to get to an advance stop box, realise too late that it's blocked and get stuck in a bad position. Yet the coroner suggests that it's somehow the advance stop box's fault that the danger was created (rather than blaming the driver who misused it). There's also a comment from the police saying it was a mitigating factor that the driver had a blind spot. Everyone has a blind spot. One's meant to compensate.
I agree, your comment crossed with my next post which raises the same points as you do.Delete
Very impressed with you tracking down the Ramshaw case on such a vague explanation, and apologies for my faulty memory of the details.ReplyDelete