Causing Death by Careless Driving - Some recent sentencing cases

The past three months have seen a run of cases in which motorists responsible for causing the death of cyclists by careless driving have come before the Courts for sentence.  Here is a summary of the 5 cases that have come to my attention and the results.

Offender	Victim	Date of sentence	Plea	Prison	Disq’n	Community Order
Cahill	Rob Jefferies	12.01.12	Guilty	No	18 months	200 hours
Jenkinson	Alastair Pratt	16.03.12	Guilty	No	18 months	150 hours
Luker	Tomas Barrett	26.03.12	Not Guilty	No	12 months	100 hours
Roberts	Thomas Stone	30.03.12	Guilty	12 months	36 months
Mylrea	Pat Kenny	02.04.12	Not guilty	No	12 months	150 hours

One of these cases stands out as attracting a strikingly different penalty from the others.  Nadia Roberts, aged 21, had no driver’s licence and no insurance when she had an informal driving lesson from her boyfriend, Mark Headley, aged 37, in an Essex car park where Thomas Stone, age 13, was riding his bicycle with some friends.  Roberts apparently confused the accelerator and brake pedals and collided with Thomas at walking pace.  So far as the driving was concerned I would suggest that it was clearly less reprehensible than any of that involved in the other 4 cases.  What really sets this case apart was that it involved ‘real’ criminality, namely driving with no licence and with no insurance (yes, required not only on the highway but also in a car park to which the public have access, and ignorance of the law is of course no excuse).  The sentence related not merely to causing death by careless driving, but also causing death by driving whilst uninsured and whilst unlicensed.  Headley, the boyfriend was also imprisoned (8 months) and disqualified for aiding and abetting causing death whilst driving with no licence and no insurance.  The investigating police officer is reported to have commented,

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“Our sympathies remain with the family of Thomas Stone,  we hope that the sentences imposed by His Honour Judge King act as a deterrent to other drivers who think they are above the law by driving without a licence or insurance.”

The other cases all involved drivers who were licensed and insured but all claimed not to have seen the cyclist prior to the collision.  Cahill and Luker both used the ‘sun in my eyes’ defence which (as previously mentioned in my blog) worked so successfully for the killer of Anthony Maynard.  On the positive side the days when this kind of excuse would result in no prosecution are hopefully now behind us.  Cahill at least had the good sense (or good advice) to appreciate that he should have modified his driving so as not to drive blind into a space occupied by Mr Jefferies, and therefore pleaded guilty.  Luker, who killed Tomas Barrett on the A40 outside the Northolt Airforce base where the cyclist worked, defended the standard of his driving at a trial before a jury.  Inevitably the jury convicted.  Cahill’s sentence has attracted some understandable criticism from British Cycling, for whom Rob Jefferies was a valued volunteer.  Luker’s sentence, however, was even more lenient notwithstanding the fact that Luker had refused to acknowledge his guilt.

This blinding by the sun effect is something that puzzles me.  I have substantial driving, as well as cycling experience, but I have never been in a situation where I cannot see what I am driving into.  It is not a rare event, even in this country, for the sun to appear, and at predictable times of the day to appear low, in the sky.  It is an even less infrequent occurrence in many countries yet most motorists appear to avoid crashing into things at sunrise and sunset.  I was contemplating this when time-trialling into the setting sun last week.  Whenever I looked anxiously behind to check there was some sign that an approaching motorist had seen me I observed a long dark shadow behind me.  Luker’s account to the jury was reportedly that he had never seen the sun so low and had tried all sorts of measures involving his sun visor and caps to no avail.

Both Luker and Mylrea, who killed the veteran long distance cyclist Pat Kenny, implied that they had not expected to see a cyclist on the A40 and the A38 respectively.  Both roads have cycle tracks alongside them (though these cycle tracks have all the disadvantages that most such facilities have including not going in a direct ‘give way’ free route to the cyclist’s destination).  Luker had pulled into the nearside lane (of three) because cars behind had flashed him; Mylrea had pulled onto the slip road to exit the A38.  As already noted, Luker had the sun in his eyes but Mylrea lacked even such a fragile explanation for failing to see Pat Kenny.  That, however, did not deter him from contesting the charge.  The prosecution needed to emphasize in both cases that the cyclist victims were doing nothing wrong in cycling where they were.  Both motorists, once convicted, were given the very minimum sentence available to the Court.

Obviously Judges are not free to pass any sentence they wish.  They are constrained firstly by Parliament and second by sentencing guidelines whether set down by the appellate courts in similar cases or by the Sentencing Council.   The obligation to take account of the Sentencing Council’s guidelines is itself imposed by Parliament in the Criminal Justice Act.  The Judge also has no power over the charge and all the above cases came before the Courts as causing death by careless driving (I will not elongate this post by discussing whether some of them could or should have been charged as dangerous).

Parliament has said that the maximum sentence for causing death by careless driving is 5 year’s imprisonment and the minimum is 12 month’s disqualification from driving.  The Sentencing Council Guidelines split the circumstances three ways into

Nature of offence	Starting Point	Sentencing range
Careless or inconsiderate driving falling not far short of dangerous driving	15 months custody	36 weeks–3 years custody
Other cases of careless or inconsiderate driving	36 weeks custody	Community order (HIGH)–2 years custody
Careless or inconsiderate driving arising from momentary inattention with no aggravating factors	Community order (MEDIUM)	Community order (LOW)–Community

As the recent cases above highlight there is a real tendency on the part of the Courts to slot the careless driving into ‘momentary inattention with no aggravating factors’ in preference to ‘falling not far short of dangerous’.  The words of the Court of Appeal in R v Hall, the cyclist who knocked over and killed a pedestrian on the pavement, that “It was the sort of cycling which, in our judgment, created at least some risk of danger.  It was, therefore, not far short of dangerous cycling” are never applied to motorists who do not see cyclists in the roadspace ahead of them which they are about to occupy.  Instead it is assumed that they are driving attentively (which must surely, on all roads that cyclists are entitled to use, include scanning ahead for cyclists) until the moment when momentary inattention and the presence of a cyclist combine with fatal consequences.  The Guidelines point out that,

“Cyclists, motorbike riders, horse riders, pedestrians and those working in the road are vulnerable road users and a driver is expected to take extra care when driving near them.”

This extra care must, if it is to mean anything substantial, include extra care to notice whether the offender is driving near a vulnerable user or not.

The Guidelines indicate the sentences to be applied following a trial (that is to say they do not include the discount for a guilty plea).  The effective maximum under the Guidelines is therefore substantially less than the maximum that Parliament has set down.  The real problem, however, is not that motorists are getting three year’s imprisonment rather than five; it is that they are almost invariably categorised as third category (momentary inattention) cases. 

My suggestion is that it would be appropriate to alter these guidelines so as to make clear that failing to see a vulnerable road user through no fault of that vulnerable road user is not something that should be placed into category 3.  Category 3 should be reserved for those cases which do not in fact lead to a charge (but should) such as failing to respond with reasonable care to an emergency created by somebody else (whether the deceased or another).

It may help to explain why the sentences in all four of the cases, which resulted from the death of a cyclist using the roads, are unacceptable to almost all cyclists.  It is not that cyclists are vindictive or vengeful, many I speak to are not and some are not in favour of prison sentences for any but the worst cases.  It is because there must be some serious deterrent to bad driving.  Drivers are virtually entirely insulated from the risks around them by a substantial metal cage with increasingly effective safety aids.  It is not hard to exercise appropriate care around cyclists.  My experience and conviction is that every driver who cycles has no difficulty whatever with this.  All these deaths, and many other similar ones, were easily avoidable.  We need to ensure that cycling is not regarded as a risky activity in which we have to accept the chances of these little lapses and accidents, just as a mountaineer or ice-climber must accept some risks inherent in a sport.  This is not an attitude that will encourage cyclists onto our roads.  Motorists must have brought home to them that the consequences of failing to drive carefully around a vulnerable road user could be very severe for them, as well as to the person they endanger.  They should at least have the privilege of a driver’s licence withdrawn for a serious amount of time.  Mylrea is not even required to take a retest before regaining his licence in 12 month’s time (the minimum period that Parliament permits).

British Cycling is right to launch a campaign.  They have written to the Lord Chief Justice and the Sentencing Council.  This is an important area that The Times campaign has overlooked.

Phethean-Hubble v Coles. The Court of Appeal and a potentially revolutionary approach to causation

A year ago I commented upon the decision of HHJ Wilcox in Phethean-Hubble v Coles.  The Court of Appeal have now handed down their Judgment on Sam Coles's appeal against the finding that he was two thirds to blame for the collision which resulted in serious injury to Tobias Phethean-Hubble.

I set out the facts in my earlier commentary on HHJ Wilcox's Judgment.  In brief summary the facts and findings of the trial judge were as follows:
1.  Tobias (age 16) had been riding his bicycle at night without lights, and without helmet,  along the pavement of a long straight road with street lights, with one carriageway in each direction and with a speed limit of 30mph.
2.  Sam (age 17) was driving his mother's car in the same direction at a speed of 35mph.
3. Tobias left the pavement at an angle in order to cross to the pavement on the other side of the road.  He rode into the path of the car and a collision occurred about 1.5 metres from the kerb.
4. At the speed at which Sam was travelling there was no chance of avoiding the collision.
5. Sam had seen Tobias on the pavement and should have anticipated that he might move into the road and should have moderated his speed to 3 or 4 mph below the speed limit.
6. That reduced speed would have resulted in a greater likelihood of avoiding the collision or reducing the severity of Tobias's injuries.
7. The non-use of bicycle lights or a cycle helmet made no difference to the collision or its consequences.

In the Court of Appeal, both sides appealed the Judge's findings as to Sam's speed (though the Claimant's argument that the finding should have been of faster speed was more muted than the Defendant's that the finding should have been slower).  Sam had originally told the police that his speed was 'about 35mph'  [My comment: an odd thing to say to a police officer about your speed in a 30 mph area if, as subsequently claimed he was in fact travelling at 30 mph, unless there is some cultural norm among motorists that a few miles an hour over a speed limit is really quite acceptable].  Perhaps therefore it is not surprising that (whatever the problems with trying to cross check this with the physical evidence) this finding was upheld.

Next, the Defendant attacked the Judge's finding that a safe speed in the circumstances was 26/27 mph.  Again, though with 'considerable anxiety' the Court of Appeal upheld this finding.  [My comment:  it would have been an easier finding had the Judge been more, rather than less, ambitious.  In the context of his finding that Sam should have anticipated that Tobias might ride into the road, slowing to 20mph might have made some meaningful difference.  The Court's anxiety appears to have related to this fine tuning of a figure so close to the speed limit.  But this perhaps endows the speed limit with too much importance.  The determination of a safe speed depends upon the circumstances; it will very often be slower than the limit (and even according to some of the older cases higher than the speed limit).  At all event the Judge's finding was that Sam should have been going some 20% slower than he was].

The next point was the one of greatest danger for Tobias; that was, would the slower speed have made any difference.  The Judge had, at best, expressed himself unsatisfactorily when talking about 'likelihoods'  when our law of causation requires these matters to be determined on the balance of probabilities.  The finding more happily expressed would be that it is more likely than not that had Sam been travelling at 26/27 mph, the collision would not have happened.  The Court of Appeal accepted that that is what the Judge meant and upheld his decision that Sam's excessive speed had caused Tobias's injuries.  Perhaps the most important observation to be derived from this case is that the burden of proving that Tobias's injuries would have been of similar severity even had Sam been travelling at a safe speed rested on the Defendant.  Once the Claimant had established that the Defendant was in breach of his duty of care and that the Claimant had sustained an injury of the kind likely to be caused by that breach then it is incumbent upon the Defendant to disprove causation.  That is potentially a significant development of the law which may be of real assistance to cyclists (and other injured Claimants).

Finally the Defendant appealed the Judge's finding that the level of contributory negligence should be one-third.  The Judge had said that the degree of contributory negligence would have been one half but that it was just and equitable to reduce it because of Tobias's age.  The Court of Appeal agreed with the Defendant that there was no reason to treat Tobias as if he were anything other than an adult in this respect and allowed the appeal to the extent of increasing the contributory negligence from one third to one half.

Metropolitan Police Consultation - The results

I raised the Metropolitan Police Consultation exercise last October.  I have now received an email thanking me for my contribution and enclosing a Newsletter.  This indicates the Metropolitan Police's priorities and what they are doing about them.  Disappointingly, unless you can count running down cyclists as 'anti social behaviour' (top of the list) then there is not a mention anywhere of tackling the danger imposed by some motorists.
On the other hand 'anti social behaviour' probably can be interpreted as including such matters as riding a bicyle on the pavement or banging the side of a vehicle that has just put you in danger.  The newsletter endows ASB with its own acronym but does not really indicate what it is.  Some clues are I suppose to be found here.
It is disappointing that bad and aggressive driving does not feature anywhere.

A30 Egham Hill

I was deeply saddened to learn that a young student attending Royal Holloway College near Egham was killed on the A30 Egham Hill earlier this month.  She was a pedestrian and was struck by a car.  It is a road I know well with multiple central reservations and pavements often busy with young students making their way to and from Egham.  I know, and say, nothing of the circumstances of the accident but I have an opinion that traffic often passes along this road too fast.  The road is subject to a 40 mph limit which is often exceeded with apparent impunity.  For the duration of the Olympics this road will be subject to a 30 mph limit.  Assuming that the 30 mph limit is imposed and enforced this summer, I very much hope that consideration will be given to maintaining and enforcing it on a permanent basis.  After all the life of any one of us is equally valuable whether we are an Olympic athlete or official or an ordinary citizen.
It seems to me that this a classic example of where effective measures to protect vulnerable road users must include regulating motor traffic and not merely providing cycling infrastructure.  The 'cycling infrastructure' in this case is an invitation to share the pavement with the many pedestrians who use this road.  It is not easy for a cyclist to take the lane past the traffic islands because it is a pretty steady climb and the speed differential between the cyclist and the approaching motorist is correspondingly high.  We need safer speed limits more rigorously enforced.
Thankfully, once the clocks go forward later this month I will be using the alternative route through Windsor Park.  Unhappily Her Majesty does not allow me through there after dusk.
Here are a couple of my recent expereinces on this stretch of road:

Cycle Helmets

I have updated my paper on cycle helmets for a talk presented to the Association of Personal Injury Lawyers last Tuesday.  It can be downloaded here  It may be quoted from or otherwise used provided that my authorship is acknowledged.

The Leveson Inquiry and the Police

Former Deputy Assistant Commissioner Peter Clarke told the Leveson Inquiry last week that one reason the Metropolitan Police had failed to act upon the evidence they had of telephone hacking in 2006 was that fighting terrorism was being given higher priority.

"..the minutiae of whether there was circumstantial evidence against journalist A, B or C is a minor consideration in comparison with the consideration of what poses a threat to the lives of the British public.  Invasions of privacy are odious, obviously.  They can be extraordinarily distressing and at times they can be illegal, but, to put it bluntly, they don't kill you."

That might well be right but one thought for the Metropolitan Police (and other forces) is that as a cycling member of the British public my life is threatened far more by bad, inconsiderate aggressive and hostile driving than it is by terrorists.  Quite rightly, we do not make excuses for terrorists; I am at a loss to understand why I have had so many communications with the police in which they appear willing to make excuses for motorists who threaten and endanger the lives of the British public.

Finchley RT Magic homes Crits

Probably about 40 of us older guys showed up for the Masters Race at Hillingdon this afternoon. Haven't raced for 3 weeks; what a change 3 weeks makes. Temp 13 deg rather than 0 deg; racing clockwise, finish line hut gone; signs of something being constructed by the apron; daffodils out. Lovely sunshine but with a brisk southwesterly. Seemed fast to me (I left the Garmin at home so no stats today). Nobody there much more than 10 years younger than me but they could of course be any cat. and were no slouches. A very attacking race. Initially I tried to get involved but it did not take long to realise I did not have the legs for it and was just being left in no man's land. Things speeded up anyway and I was soon sat at the back with my usual friends. Hung on in there for an hour. A group of about 8 got away so our sprint was a bit muted and I stuck in the bunch.