Thursday, 5 June 2014

Disqualifications for bad driving



Last night I was invited by Roadpeace to the inaugural meeting of the All Party Parliamentary Group for Justice on our Roads chaired by Baroness (Jenny) Jones.  With the Queen's Speech being debated elsewhere, there were perhaps rival demands on many parliamentarians but a select few MPs and Lords (spiritual and temporal) attended to set up the group and to hear the moving evidence of 3 bereaved families whose husband, son and daughter (all I think pedestrians) had been killed by bad motoring and had all been dismayed at the sentences imposed on those responsible for the collisions which took their loved ones away.
Next week, in my capacity as an 'ambassador' for CTC I will be attending a debate on the same topic - sentencing.  Sentencing comes at the very end of a process where the police, prosecution, jury (if applicable) and whole machinery of criminal justice has combined effectively to ensure the guilty party is convicted of at least some offence.


One concern raised both last night and by CTC is over the length of disqualifications from driving that the Courts are handing down.  It is now nearly 5 years since I commented by reference to the Court of Appeal cases of Rice and of Hall that you are likely to get the same period of disqualification from driving if you killed somebody with your bicycle as with your car.  Very often minimum periods of disqualification as prescribed by Parliament were given on the basis that the offender would otherwise have difficulty working and rehabilitating.


The sentencing guidelines, set in 2008, do not give guidance as to the length of disqualification so this is very much down to the Court of Appeal.  It is striking how frequently the Court of Appeal reduces the periods of disqualification set by Judges.


In a pre-guidelines case, R v Cully (2005) which is still referred to and followed by the Court of Appeal, the Court said this when reducing the Defendant's disqualification from 5 years to 2:
“We consider that the purpose of a disqualification from driving is so far as possible to protect the public. Often it may be that drivers come before the sentencing court with an appalling driving record. In such cases an extended period of disqualification may be appropriate since the offence indicates the risk to the public in the individual continuing to drive. Where circumstances do not suggest that there is any such risk, a period of disqualification, though inevitable as it is in a case of dangerous driving, can, and should in our view, be kept to the minimum.”

There seems, to me, to be a rather unfortunate assumption that, appalling driving records aside, there is no real risk to the public and Judges should keep disqualifications to the statutory minimum.

In R v Crew (2010) the Court of Appeal dealt with a man who had flown over from San Francisco, got into a hire car and fallen asleep killing a motorist travelling in the opposite direction.  He was convicted of causing death by careless driving.  The Court of Appeal said this when acknowledging that the driving bordered on dangerous but reducing the disqualification from 5 years to 2 :
"We are however persuaded that the period of disqualification is manifestly excessive. The Definitive Guideline provides no guidance as to the length of disqualification and so it is important to bear in mind, first, the risk represented by the offender is reflected by the level of culpability which attaches to his driving, and secondly, the main purpose of disqualification is forward looking and preventive rather than backward looking. In that regard the applicant's previous unblemished driving record is clearly an important factor as is the absence of aggravating factors such as speed.

“As to the extended driving test, the court's powers to make such a direction are discretionary. But having regard to the extent of the applicant's culpability and to the fact that this offence bordered on an offence of causing death by dangerous driving, we are of the view that such a direction was entirely appropriate.
“We give leave to appeal the order of disqualification. We treat the hearing of the application as the hearing of the appeal. We quash the order of disqualification of 5 years and we substitute for it an order of disqualification for 2 years."

The approaches in R v Cully and in R v Crew have been followed many times since.  Essentially if you have not been caught driving badly on other occasions there is an assumption that whatever bad driving brought you before the Court was a one-off and that you do not pose a risk to the public.  There is a touching, but wholly misguided, faith that motorists are caught and convicted whenever they endanger anyone and not simply once they have killed or, at best, injured.  It does not take much time cycling around our cities to appreciate this assumption is completely unwarranted.  The lorry driver who never faced substantive justice after killing Eilidh Cairns went on to kill again and I find it hard to accept that those who have killed once (or have driven in such a way that it is is only a matter of good chance they did not kill) are not more likely to do so again.

A few more recent examples clearly indicate that the Court of Appeal is just not willing to back the few Judges who hand down sentences of disqualification significantly in excess of the minimum.


In R v Farwell (2013) it seems not even the prosecution felt like defending the Judge's imposition of a 2 year ban following the Defendant's conviction of causing death by careless driving:
“In R v Cully the court identified the purpose of disqualification as being the protection of the public. Extended periods of disqualification could be justified where there was an identified risk to the public. In the Crown's response to this appeal it is stated that given the appellant's previous good driving record, a two year disqualification could only be justified if the facts of the offence disclosed a risk to the public from the appellant being permitted to drive. In our view, no such facts are disclosed. Further, an inability to drive directly impacts upon the ability of the appellant to carry out his work. In the particular circumstances of this case any period of disqualification will have a punitive effect.  Accordingly, we quash the period of 24 months' disqualification and substitute for it a period of 12 months' disqualification.”


Similarly R v Bishop (2013) reducing the disqualification following conviction of causing death by careless driving from 7 years to 4:
"In view of the appellant's youth and the need for rehabilitation after release, we are of the view that the period of disqualification was too long in the circumstances; as was said by this court I R v Crew [2010] 2 Cr App R (S) 23, disqualification addresses two considerations: punishment reflecting culpability and the need to look to the period after release.

"We therefore propose to vary the sentence to one of disqualification for a period of 4 years.“
Note that it appears this was a case where it could not be said or at least was not said, even by the Court of Appeal, that the Defendant posed no risk to the public.

And finally in a case not involving death but nonetheless one of the worst pieces of dangerous driving the Court of Appeal had seen, R v Charvill (2013):
“ [Counsel] has referred us to a number of authorities on the appropriate length of disqualification in such cases, including R v Cully [2005] EWCA Crim 3483, R v Cook [2010] EWCA Crim 121 and R v O'Connor [2012] EWCA 785, which illustrate two principles applicable to such disqualification: first, that the purpose of the disqualification is so far as possible to protect the public against the risk posed by the offender continuing to drive; and secondly, that the disqualification should not normally be imposed for such a period as might have the effect of impeding rehabilitation after serving a sentence of imprisonment.In our judgment, this was one of the worst pieces of driving this court has seen .  The Recorder was entitled to pass a severe sentence to deter others from driving in this way. In our judgment, the sentence of 9 months' detention was neither wrong in principle nor manifestly excessive.However, as the applicant had no history of driving offences and appeared usually to have been a careful and competent driver, we are prepared to treat the driving on this occasion as a piece of impulsive stupidity and not that of someone who represents a continuing risk to the public. We also accept that it would assist him in getting or retaining employment on his release to be able to drive.” 


The CTC and Roadpeace are right to call for Sentencing Guidelines to be reviewed.  This is apparently awaiting possible changes to substantive law being considered by the Government.  In relation to disqualification, driving needs to be seen as a privilege not a right.  Those who cannot or will not drive carefully will have to get to work on the bus, train or bicycle like the thousands of other people who through an uninvited medical condition or through choice do not drive.

One concern raised last night was over drivers who simply ignore bans.  For these miscreants the law has to come down hard just as it does for conspiracy to pervert the course of justice or taking part in a riot.  Imprisonment has to be the norm for those who drive whilst disqualified with release perhaps conditional on wearing tracking or other devices to make it much harder for them to flout the law.

Tuesday, 27 May 2014

Tour of Wessex 25th May 2014


My first really challenging ride since my crash.  I find to my consternation that this is the 8th time in 9 years that I have done a day of the Tour of Wessex.  I am a full hour slower than at my peak in 2009 but actually not all that much slower than last year.  The real difference is that in earlier years I would have chatted to my riding companions in a relatively relaxed manner whereas this year I was hanging on for all my worth and only doing turns at the front (though quite long turns on occasion) when going up hill.  Strava can be a cruel tool as it shows my reduced form over virtually every segment.  Psychologically as well as physically I am struggling to ride in the wheels; I was either hanging off the back or in the front; my trust of fellow riders has taken a knock which will take some time to restore.  I think my performance indicates that for the etape this year I will at least survive and stay ahead of the broom wagon though without doing anything spectacular.

It is a fantastic ride through absolutely stunning countryside.  Every year there are more and more participants.  It is a truly great day out whether you are in top form or not.  Again I am in awe of those who do all three days.

116 miles in 6h41m with 7,054 feet of climbing.

Sunday, 11 May 2014

Thames Velo 30th Anniversary Top Results

FULL RESULTS NOW HERE:



E/1/2/3

1 Tom Neale
2 Danny Axford
3 Benjamin Luckwell
4 Steve Golla
5 James Notley
6 James Fox
7 Roy Chamberlain
8 Lee Smith
9 Martin Ford
10 Grant Bayton
11 Billy Osmond
12 Justin Belcher


3/4 Race
1 James Waters
2 Michael Burke
3 Philip Pearson
4 Sean Dines
5 James Leach
6 Adam Moore
7 James Archibald
8 Richard Stanton
9 Tim Butt
10 David Kingsbury

Sunday, 27 April 2014

Team Townend Challenge - My report




Yesterday I took part for the second year running in the Team Townend Challenge held in Cumbria to commemorate the lives of the two brothers, Christian and Niggy Townend who were so tragically killed in December 2010 when they were run down from behind by a coach driver who successfully claimed the winter sun as a defence at his subsequent trial.

The event is fantastically organised by the family and friends of Christian and Niggy with all proceeds going to Roadpeace, a charity which supports victims of road traffic collisions and campaigns for much needed improvements in our criminal justice system.

Far too many further recent examples exist of failures to prosecute and of unsatisfactorily run court cases and inquests.  Much needs to be done.

My ride: sponsorship welcomed:


Strava Details.  10,000 ft climbing.

Unlike many sportives a leisurely start is possible which is just as well as the morning was wet and the afternoon glorious sunshine.  I rolled off from Loweswater Village Hall just after 1000 into a light drizzle and headed to the first pass, Whinlatter, a reasonably gentle climb but today into a easterly headwind.  Over the other side at Braithwaite I started the anticlockwise loop up Newlands Pass, still in the rain.  This pass starts gently (by Cumbria standards!) but steepens at the top.  During my final lunge for the summit my rear wheel spun round uselessly with my right foot going down so fast my first thought was that I had snapped the chain.  I was stationery for an instant whilst I sat down and forced the left foot down weaving to the top precariously from the saddle.  The previous day my new rear wheel (to replace my crash damaged one) had arrived but I had not had time to sort it out and found an old training wheel with a much needed 29 sprocket but with a rather cheap tyre.  Fortunately I still had my good front wheel with a good tyre on it so at least I had good grip going down the other side.  I paid for that good grip later though (see below).

Next up Honister pass from west to east into that headwind, even steeper at the top but luckily it had stopped raining and the sun had come out by the time I got there.  I found it hard (potential sponsors please note - I was seriously challenged).  With the roads still wet I was worried, though I was able to do it out of the saddle with only minor slippage.  With my speed dipping below 4 mph I felt seriously unstable and my lung and shoulder decided to remind me they had been traumatised a few months ago.  It was a massive relief to get to the top.  then there was a good 'easy' section along the west shore of Derwentwater and back over Whinlatter this time with a welcome tailwind back to Loweswater.

Tea sandwiches and cakes were all laid on by hard working volunteers and I partook greedily before setting off to do it again but this time taking the Honister/Newlands loop in the opposite anticlockwise direction.  The sun was shining and the roads were drying so I wanted to get a full day's ride in - besides one circuit for each of the brothers seemed appropriate.  So back over Whinlatter, then the left turn to the west shore of Derwentwater via small roads strewn with flints.  I soon learnt that good grip = poor puncture resistance as my front wheel got its first flat of the day.  After replacing the tube I managed an act of cycling stupidity surely worthy of the back page of Cycling Weekly when I failed to zip up the saddle bag.  When I punctured again within a few miles I realised my tyre levers had fallen out and I had to retrace my steps regular reinflating the wheel until I found them strewn across the road.  Now with no spare tube left I pressed on thinking the roads would improve and if worst came to worst I had a little pack of self-adhesive patches.  This time up Honister I had a tailwind but I really struggled to make it up the lower steep section of the climb even though the now dry roads left me with no friction problems.  Equally the last part of Newlands (back into a headwind) seemed very touch and go.  After that though it was relatively plain sailing back past the now quiet Loweswater Village Hall to my B&B.

Supper was in the Kirkstile Inn.  After rehydrating on a few pints of Loweswater Gold Ale, I decided to cycle the 2 miles back to my accommodation.  I was somewhat conscious of the fact that had any motorist charged around a blind bend on the narrow road into me then any subsequent inquiry and inquest would almost certainly not be interested in going beyond recording that I was 'over the limit' and not wearing a helmet or high-viz.  Fortunately though my luck held out and the worst that happened was puncture number 3 of the day just as I was reaching my destination.

Much work is needed and Roadpeace are working hard on our behalf.  You can sponsor me below.  If you do I will match your contribution.

JustGiving - Sponsor me now!

Thanks

Wednesday, 9 April 2014

Coroners and Cyclists - do they mix?

I have had cause on these pages to comment upon a number of Inquests investigating the death of cyclists in Road Traffic Collisions and have also appeared in, but not commented directly upon, Inquests at which I have held a brief for a bereaved family.  More often than not the inquest is an unhappy experience for the families involved.  The question needs to be asked as to whether it is a useful process and whether it can be further improved.

The strength of the Inquest system is that it may be the only investigation into a death.  If a police investigation reveals insufficient evidence to justify a prosecution of any individual for causing the death, and if too there is no civil claim for compensation, then the Inquest may represent the only opportunity to hear evidence of what has happened.  Further the prospect of an impending inquest may help incentivise those responsible for investigating the death (in RTC cases the police) to ensure they have done a thorough job which will stand up to public scrutiny.  Finally, and importantly, the Coroner has the power to issue a PFD (Prevention of Future Deaths) Report to any person whom she believes has the power to take action to prevent future deaths.

The foremost weakness of the current system is that its scope is somewhat limited.  Historically the Coroner's Court used to have the power to point the finger and, indeed, commit a named person to the Criminal Court to stand trial.  However this was thought to lead to problems and has been changed.  In particular the Coroner's Court is circumscribed by The Coroners and Criminal Justice Act 2009 which provides that:

"5 Matters to be ascertained

(1)The purpose of an investigation under this Part into a person's death is to ascertain—
(a)who the deceased was;
(b)how, when and where the deceased came by his or her death;
(c)the particulars (if any) required by the 1953 Act to be registered concerning the death.
...
(3)Neither the senior coroner conducting an investigation under this Part into a person's death nor the jury (if there is one) may express any opinion on any matter other than—
(a)the questions mentioned in subsection (1)(a) and (b)..;
(b)the particulars mentioned in subsection (1)(c).This is subject to paragraph 7 of Schedule 5 [which deals with PFD Reports]."

Most of this is rather mundane.  It cannot possibly be supposed that the panoply of a Court system is required to record who the deceased was or when and where the deceased came by his death.  The real question is 'how' which is a question that may be interpreted as widely, or narrowly, as the Coroner thinks fit.  The prohibition on the expression of opinion on other matters provides a broad limitation of the scope of the Inquiry and furthermore the Act goes on to provide that:

"10 Determinations and findings to be made

(1)After hearing the evidence at an inquest into a death, the senior coroner (if there is no jury) or the jury (if there is one) must—
(a)make a determination as to the questions mentioned in section 5(1)(a) and (b) .., and
(b)if particulars are required by the 1953 Act to be registered concerning the death, make a finding as to those particulars.
(2)A determination under subsection (1)(a) may not be framed in such a way as to appear to determine any question of—
(a)criminal liability on the part of a named person, or
(b)civil liability."

The trouble then is that following a RTC the Coroner will inevitably rely very heavily on the evidence of the police (who have investigated a collision with a view to finding if there is evidence of a criminal offence).  A report will be admitted which may well conclude (say) that the collision occurred as a consequence of the deceased running a red light and no fault has been disclosed on the part of any other person.  The Coroner then, mindful of section 5 and 10, will say something like "I find the deceased died as a consequence of running a red traffic light but I must stress that I am not attributing any kind of blame to him".  Which is, of course, doublespeak.

Further trouble arises if the deceased's family want to test the evidence of the police investigator that the deceased went through a red traffic light.  Maybe there is good reason to doubt the veracity of an account given to the police by a motorist, who ran down the deceased from a conflicting direction, that he (the motorist) went through a green light.  Maybe parts of the motorist's account are demonstrably wrong but the police had not picked that up.  Maybe the motorist claims always to comply with traffic lights but CCTV shows him going through a red light two minutes earlier.  There might even be real grounds to question whether the motorist is a witness of truth.  If he is not challenged at the Inquest he will probably never be challenged and quite often, if not usually, the Coroner will come to the end of his questioning of the witness without making an effective challenge himself.

Usually the family will not have a lawyer (another weakness of the system because the motorist will invariably have a lawyer funded by his insurers).  If they do have a lawyer, then (certainly if a barrister) she will have a duty fearlessly to protect her client's interests and strive to displace the conclusion that the deceased was solely to blame.  She may then be metaphorically kicked around the Court by the Coroner who says nothing may be asked implying that the motorist is to blame and who sabotages the line of questioning.  This is not a problem for the lawyer but it is a terrible spectacle to inflict upon the family.

It is open to a Coroner to interpret the scope of his Inquiry widely or narrowly.  If narrowly then there is no legitimate purpose to the calling of the police investigator and the finding will simply be death at a certain time and location due to a road traffic collision.  This though is something of a lost opportunity - cyclists should not be dying on our streets due to road traffic collisions and the cause of the collision should be investigated, as too should the quality of the police investigation.  An impartial investigation does not involve solely dwelling on the responsibility of the deceased but receiving evidence and allowing questions that go to the responsibility of others.  The law does not prevent this (as demonstrated at numerous high profile Inquests) what it requires is that the Coroner takes care in the framing of his determination and findings.

I speak generally and nothing should be taken to relate to any particular case or Coroner.

Friday, 4 April 2014

Recent cases

I have been a little quiet about the law on here recently.  Not just because something has to give whilst I regain full health/fitness but also because my increasing professional engagement in cases involving cyclists sometimes limits what I may properly say.
However, I am not a criminal lawyer, and can express my bewilderment at the jury decisions in the cases of R v Petterson and R v Dove.  Both were charged with causing death by careless driving.
Petterson drove his van into David Irving on Mountbatten Way, a dual carriageway near Southampton.  Details of the evidence given at his trial are available as a consequence of the work of the Southampton Cycling Campaign who took detailed notes.  From these it becomes reasonably clear why an apparently open and shut case of a motorist driving into the rear of a cyclist fell apart.
First on day 2, the prosecution expert witness, Mr Smith, suggested to the jury, in response to a question from the prosecution, that Mr Irving should not have been there and the Defence not surprisingly latched onto it:
"Prosecution: What road should Mr Irving have used?
Witness: the designated route would be Millbrook Rd East - Central Station Bridge – Southern Rd – West Quay Rd
Defence: the approved cycle route would take him directly to his place of work."

Then, on day 4, the Police expert collision investigator was called and crumpled in cross-examination by the Defence with:

"Defence: What was effect of sun? 
Witness:would have made cyclist virtually impossible to see."

Finally on Day 6, the Judge instructed the jury that:

"Highway Code guidance regarding sun glare (not law but could be used as evidence of without due care and attention, or could be ignored)"

So we are left with a prosecution case that a cyclist was where he should not be, was virtually impossible to see, and that advice in the Highway Code "If you are dazzled by bright sunlight, slow down and if necessary, stop." could be ignored.  Instead of wondering at how there could possibly be an acquittal you are left wondering why the prosecution was even brought.  Sadly the lack of understanding of cycling exhibited by police, experts and lawyers probably explains not only the failure of this prosecution but also why some prosecutions do not even happen.

Surely if those present understood cycling at all the trial would have run more as follows:
Day 2
"Prosecution: What roads could Mr Irving have used?
Witness: He was perfectly entitled to use Mountbatten Way.  There was also a designated cycle route  Millbrook Rd East - Central Station Bridge – Southern Rd – West Quay Rd.  Mountbatten Way was the fastest and most direct route to his destination.
Defence: the approved cycle route would take him directly to his place of work."

Day 4
"Defence: What was the effect of sun? Witness:The sun can make it harder to see but every driver should always be able to stop in the distance that they can see to be clear and should slow down or even stop if necessary.  No other driver failed to see Mr Irving and his long shadow.  Either the Defendant saw Mr Irving and gave insufficient room or he drove into a space without knowing what was there."

Day 6

"The Highway Code specifically recommends that if you are dazzled by strong sunlight you slow down and if necessary stop.  Failure to comply with this guidance is not, of itself, an offence but the Highway Code is essential reading for every road user and the law is clear that the guidance may be used as evidence of driving without due care and attention.  It is not determinative and you should weigh it with the other evidence in finding whether or not  the prosecution has proved its case".

Dove drove an HGV into the back of Christopher Griffiths on the A19, a dual carriageway near Billingham in Teeside.  He was defended by a QC at two trials at which juries twice failed to arrive at a verdict.  It seems reasonably clear from the reports that the Defence skillfully got everybody else involved to believe that the issue was whether Mr Griffiths was cycling to the left or right of a rumble strip at the side of the road.  Surely that was of no relevance, he should have not been run down even (maybe especially) if he was in the lane in front of the HGV (which is where I would have been incidentally).

In the past I have been baffled by perverse jury verdicts.  However the more information there is about the way these cases are run in Court, the clearer it becomes that it is not the juries' fault.  Nor of course is it the fault of Defence lawyers who are perfectly right, and indeed bound, to capitalise on the weaknesses of the prosecution.  It seems to me a pity that the prosecution do not engage the services of an expert in cycling to at least rectify some of the worst misconceptions.  Bikeability as part of the National Curriculum or at least part of the driving test would eventually mean that almost all lawyers, experts and even jurors would know something about the subject.



Maidenhead DCC 10 mile Time Trial 3rd April 2014: Etape prep.

My first competitive event of any description post-crash and my first time trial for 2 years.  I always used to do a 27:xx (I was never a good time triallist) and last night managed a 29:xx.  Two minutes may not seem very much but it represents only about two-thirds the power.  Interestingly my heart rate was just as high and the effort hurt at least as much.  My road to recovery and to reinvent myself has a long way to go!
It was a great night for Thames Velo though with a good turnout and 4 riders placing in the top 8, with some cracking times on 'ordinary' bikes.

Yesterday also saw SNCF taking train bookings for the summer.  I have tickets from Paris to Lyons for the Marmotte and the sleeper down to Pau for the etape all booked up for July at quite remarkable value.  Unfortunately Eurostar's policy towards the carriage of bicycles makes me feel compelled as last year to fly to Paris.  An absurd state of affairs that it is so much easier (and cheaper) to carry a bike on a plane than on a train.  I assuage my sense of guilt with the thought that I am at least limiting the distance that I fly.  As with cycling generally, it really ought to be made so much easier for people to do the right thing.