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.

Wednesday, 29 January 2014

My last race

I have been out of action lately and many have been kind enough to enquire after me.  It seems simplest to post an update here.
I was racing in the E/1/2/3 Imperial Winter Series event at Hillingdon on 4th January.  Something happened in the early laps and my next recollection is being in St Mary's Hospital, Paddington with a kindly Consultant Anaesthetist seeking my consent for the insertion of a spinal epidural.  It was necessary as I had a flail chest (multiple rib fractures including a few ribs fractured twice) so without good pain relief there would have been a risk of shallow breathing leading to chest infection.  My left lung was punctured and collapsed.  Against that the grade III separated shoulder, mangled elbow, battered hip and extensive road rash barely mattered.
The bang to the left side of the head, possibly coupled with copious quantities of morphine, leave me with no real clue what happened but mercifully no head injury.  I must have hit the tarmac hard and/or had my chest rode over when on the ground.  Apparently an air ambulance was called out but not used.
I got the greatest possible care, all on the NHS, in the Major Trauma Ward at St Mary's from an impressive range of consultants and nurses but I must have made a difficult patient for a week, frustrated at being tethered by numerous tubes and lines whilst the blood was being drained from my chest cavity.
On 11th I was finally out of hospital and immediately celebrated by taking the dog for a slow wheezy walk.
The following weekend I took my daughters for a slow wheezy bike ride in the park.
Yesterday (28th) I took myself for a solo spin in the park.
Tomorrow I start physiotherapy on my shoulder.
I have been back working full time for the past week or so.
My hospital review, by which time I very much hope to be pain free and back properly on the bike, is mid February.  I will be in Spain for a week at the end of February with clubmates to kick start getting back into riding.
Obviously I have had to recalibrate my plans.  I had hoped to get into a state to compete seriously in the Masters 50+ road race in the summer.  I now plan to get myself into a fit state for the Marmotte and the Etape du Tour in July.  I have taken the (for me very sad, for others hugely welcome) decision not to race again.  I enjoyed it but was not terribly good at it.  After many years of incident free racing I have now crashed twice in 15 months and cannot rule out slowing reactions or an increasing inability to bounce off tarmac as affecting my odds.  (After my last crash I decided to avoid 4th cats and bunch sprints but that did not suffice).  The decision as to whether or not to accept the risks of racing has to be a personal one and I would hate my experience to put anyone else off.  On balance and with ordinary luck racing is a good thing.  I may get into time-trialling both individual and team.
For the cyclists among you I had better add that my severely damaged bike is at Condor awaiting replacement frame, forks, bars, pedals, rear wheel, saddle and seatpost.  Helmet, clothing (save club kit which seems to be hardest) , chest strap and glasses all now replaced.  Really though none of that material stuff matters any thing like as much as good health.
To try and take a positive from it I have a heightened appreciation of many things in life and unlike so many passing through that hospital ward, I will be making a full recovery.
I will keep you posted on my preparations for the sportives.

Friday, 15 November 2013

My letter to Standard re CSH and the Mayor's victim blaming

This is the version of my letter I approved this morning:

THE angle the Mayor took on the radio yesterday, talking about cyclist risk-taking in relation to the recent terrible incidents is very unfortunate.  Either he has inside information before it is released to the public or as his own spokeswoman said it is too early to say. It is highly improbable that all the victims were being reckless for their own safety, and highway engineers can and should allow for human error.
Cycle superhighways are designed by people who have not been required to undergo cycle training and do not understand the importance of cyclists positioning themselves where they can best survive mistakes by others.  The paint encourages both cyclists and motorists to believe that cyclists should be alongside the kerb. I avoid the superhighways and would recommend other cyclists do the same.

Martin Porter QC

I am told that an editor has used the term 'accidents' and that by the time I was informed of this the print deadline had passed.  I very much regret the understandable distress this will cause (and indeed the perplexity amongst my followers.)

Wednesday, 23 October 2013

Cycle Super Highways - My personal views

I write this in  a purely personal capacity as a London bike commuter, though naturally I could not fail to be profoundly moved by my experience in representing the family of Brian Dorling who died so tragically and unnecessarily at the Bow Roundabout shortly after the blue paint of CSH 2 was laid in 2011 and furthermore, in following the recent inquest into the death of Philippine De Gerin-Ricard at Aldgate last July.

I agree with the Mayor that Cycle Super Highways have a future.  However this is with the important proviso that their designers have a good understanding of how cyclists safely integrate with traffic where segregation is not achievable (or rather not achieved).  Current design, typified by a 1.5 m strip of paint of no legal significance, encourages cyclists towards an unsafe position too far to the left.  This both conflicts with the ‘Bikeability’ training that TfL itself rightly seeks to encourage and reinforces the mistaken views held by some motorists as to where cyclists should be.

It is telling, and confirms what I have long suspected, that cycle infrastructure designers, and even those at the top at TfL pushing cycle training for others, do not see the need for Bikeability training for themselves.  Their designs demonstrate that they do not understand, for example, that approaching a roundabout to go straight ahead the cyclist is best advised to position herself well to the right of the leftmost lane (especially of course if there is a high volume of left turning traffic). When given advice by a very knowledgeable police officer who understands safe cycle positioning, it is all too easy for the untrained designer to consider this is a matter on which their opinion is as good as anybody else's.

Personally I do not buy the argument that putting down paint is a useful indication to motor traffic that cyclists may be present.  Any driver, especially in London but also elsewhere, is criminally negligent if he does not  consider the likely presence of cyclists on any highway.  Are we implying that where there is no blue paint drivers are not obliged to consider the likely presence of cyclists?

For the encouragement of the broadest possible mix of people the focus has to be on (optional) segregated routes of the highest quality, as recognised in the Mayor’s ‘Vision for Cycling’ published in March.  Using paint to lead cyclists directly towards segregated areas without regard to how they integrate most safely with traffic on their way there must be avoided.  Indeed there is a very great deal to be said for not marking the road at all where cyclists need to integrate with motorists.  Many (indeed the majority) of cyclists crossing the Bow junction do so on the elevated flyover where there is no cycle infrastructure, recognising that it is not only faster but safer than the provision below.  It is so easy to make matters worse and the Mayor needs to be held to his word to do cycling infrastructure properly or not at all.

I do not doubt the Mayor and TfL’s sincerity in wishing to make London safer and more attractive for cycling.  I applaud them for some good progress towards HGV safety (sadly too often neglected by others).  I trust that by the end of the Mayor’s second term we will be able to look back and see that he really did take valid criticisms of his project to heart.

Tuesday, 1 October 2013

Why am I hopeful?

I am hopeful because the risk, in absolute terms, of my getting killed or seriously injured on my bicycle is low (705 KSI per billion km or once every 1.4 million km).  At my current mileage I can reasonably expect to get to 85 without serious incident.
I am hopeful because my chances of getting to 85 without stroke, heart attack, diabetes and other ailments connected to inactivity are substantially increased by my riding.
I am hopeful because a Judge recently said when sentencing a man for dangerous driving,  "If he [cyclist] could bang on the side of your van, you were too close".
I am hopeful because the ACPO lead officer for traffic policing rides a bicycle and has bowed to pressure to change police guidelines relating to the enforcement of 20 mph speed limits.
I am hopeful because for the past nearly two years, an influential national newspaper that previously could not have cared much less has been interested in cyclists' safety.
I am hopeful because CTC (of which I am proud to be a member and 'ambassador') together with British Cycling (which I am proud to be a member of and an informal legal adviser to) are working tirelessly on campaigns to improve the safety of cyclists.
I am hopeful because Chris Boardman, Rebecca Romero and Chris Hoy (among other sporting heroes) say such sensible things in support of the safety of cyclists.
I am hopeful because there are many more charities and organisations with a positive view of cycling (I can single out Roadpeace, See Me Save Me, RDRF, CDF)  than there are those with negative views.
I am hopeful because there are Parliamentarians across all major political parties with real enthusiasm for cycling.  I would be very happy to have Julian Huppert, Ian Austin, Sarah Wollaston, Ben Bradshaw or Steve Brine among others as my constituency MP or, even better, in government.  Last month's debate indicated that the proportion of MPs interested in cycling is higher than that of the general population which elects them.
I am hopeful because the Mayor of London has said of cycling infrastructure that it will be done properly or not at all.
I am hopeful because the level of interest in my cycling club has risen steadily in recent years which I take to be a good leading indicator of the growing popularity of cycling.
I am hopeful because many youngsters are taught Cyclecraft at school before they learn how to drive.
I am hopeful that I can continue to do my bit through my profession to assist both individual cyclists and the interests of cyclists collectively.
Above all, I hope to continue to enjoy riding my bicycle for many years to come