Monday, 9 April 2012

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,
. 
“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.

15 comments:

  1. Useful and interesting, as always.

    You say: "Both cyclists, once convicted, were given the very minimum sentence available to the Court."

    I think you mean, "Both drivers ..."

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  2. I do indeed. Thank you very much for pointing that out. Now corrected.

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  3. It seems perverse that drivers and motor-vehicles are somehow seen as 'safe' and bicycles and their riders are seen as 'dangerous'. This would seem to have more in common with 'Alice in Wonderland' than real world justice.

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  4. There does seem to still be a prevalent attitude that it can still be a surprise that a bicycle is in the road at all. Drivers being 'surprised' by bicycles simply aren't looking for them and in many cases simply couldn't care less.

    It's not that drivers want to kill or injure cyclists, and I'm sure it's quite a thing to live with, but it seems that the majority of drivers need a judicial threat not to do something rather than deciding to do it themselves.

    I wonder how many deaths have been due to the common occurrence of the 'punishment pass' but then drivers have subsequently will use a defence of not seeing the cyclist.

    Drivers will continue to not give cyclists due care until there is a serious penalty for situations that could have been prevented by taking due care.

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  5. Thank you for this post. It's interesting and educational and should be seen by a wider audience.

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  6. I have no desire at all to defend the sentencing, but I would like to point out that, given the nature of vision, the SMIDSY (sorry mate I didn't see you) defence is not completely unreasonable.

    Although we think that we see everything within our visual field a large part of our perceived environment is created by the brain. Our eyes jump about focusing with the small area that has high resolution and updating parts of the picture, often in response to movements perceived in less sensitive parts of the visual field. Large parts of the visual field do not get updated very often and are just "filled in" by the brain.

    The eye can easily saccade (jump) past an object the size of a bicycle, especially when seen from behind, with no update made to the picture as seen by the brain. If the driver were stationary, the movement of the cyclist would attract the focus of the eye. But in a car moving at not inconsiderable speed, everything in the environment, except other cars which are effectively stationary or much faster, is moving at approximately the same speed relative to the driver, so does not draw the attention. Our visual system has not evolved to operate well in moving cars.

    In view of how poor our visual system is, it is not surprising that cyclists and pedestrians are not always seen. And, by consequence, it may take no lapse of concentration at all to miss seeing a cyclist or pedestrian. I am not saying that lapses of concentration do not occur or that they do not contribute to people being killed and injured. I am saying that even without such lapses, it is not surprising that such events occur.

    This is not an argument to say that such accidents are inevitable so should be accepted. It is clear under what conditions these accidents are likely to happen; when the speed differential between cars and bicycles is large and other distracting factors cause less accurate updating of the visual environment. This is going to happen on large roads, and be made worse at dawn and twilight. Where it is not likely to happen is when cars are moving slowly and continuously (junctions are a different question) and there are lots of moving objects in the visual field, so that the entire field is updated regularly.

    In my opinion harsher sentencing will not help this problem. A few dangerous drivers will be kept off of the road. But those few drivers would have been unlikely to have been the cause of a second serious accident (although there have been some notable cases of exactly this recently). There will always be enough other drivers such that the toll on cyclists will not noticeably diminish.

    The solution is to keep cyclists and cars apart in the situations where these accidents are likely to occur. This does not mean putting in segregated cycling lanes everywhere. But much could be done to reduce such casualties by implementing decent segregated cycle lanes in situations where there are large amounts of fast moving traffic on routes that cyclists have to use. This would mean principally on large urban routes. Obviously, the cycle paths would have to be of a quality that makes them the route of choice for all cyclists.

    Making sentences for killing and injuring cyclists more in line with similar offences is just, but would not help reduce such accidents, which should be the main goal.

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    1. I would point you to this comment in the article..."My experience and conviction is that every driver who cycles has no difficulty whatever with this." An experience I would agree with. It would be very interesting to know how genuine this opinion is by knowing what ratio of cyclists are KSI by motorists who are also frequent cyclists.

      I bet that when they are driving people who cycle have no trouble spotting cyclists or leaving them enough room.

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    2. "(sorry mate I didn't see you) defence is not completely unreasonable."

      Yes it is completely unreasonable, if you can't look where you're going in a vehicle then get the hell out of it and stop driving.

      Seriously, how can you even say such a stupid thing.

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    3. If there are lapses in vision as "medium spiny" suggests that's an argument for slowing drivers right down or removing them altogether from public spaces such as streets where children and others should not be subject to such potential driving errors. People are everywhere and the roads should belong to them. Yes, segregation on busier roads may be a good solution, but what about everywhere else?

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  7. A splendid article, especially so as it has brought out such thoughtful responses. Mediumspiny, especially, offers a valuable counter to some of the understandable unhapinees expressed in the normal run of commentary by cyclists like me.

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  8. We all know that careless drivers are as dangerous as drunk ones. Unfortunately pedestrians and cyclists are defenseless in frond of these drivers because they don't have a metal box with airbags defending them....
    All drivers should be more careful because innocent people can be injured or even die.
    I was accused of careless driving Toronto once and since that moment I'm very careful especially when I see cyclists in front of me.

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  9. Hi im new on here and found that an interesting read... I am currently on bail awaiting sentance for causing death by having no insurance. Now before you start calling me names i did have an insurance policy but didnt disclose 3 points on my licence in 2009 (it genuinly sliped my mind i just forgot) so ive been pulled for a technicality therefore my insurance is deemed void! Now to the accident itself I was driving home late one night in december up a dark road near my home and as i took a sharp left hand bend there was a cyclist on my side of the road with no lights, no high vis and no helmet. I do not know what the cyclist was doing there but we collided head on, unfortunatly the cyclist died, i was uninjured. i have my own business, house, wife and 2 children aged 10 and 4 and ive been told im looking at 18 months in prison! do you think this is fair? opinions please thankyou

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    1. I know nothing about the individual facts and circumstances other than what you have said and I think it would be dangerous of me to comment on the individual case on that basis. I am not entirely convinced that the account of being convicted when you had an insurance policy (albeit voidable for misrepresentation) quite stacks up.
      I regard driving without insurance as an essentially economic crime which makes it less heinous to my mind, but more heinous to many courts, than unsafe driving. Nonetheless uninsured drivers are a menace: they are not paying the even modest price that society expects of them for the risks they impose upon others. This is true of the individual who does not bother to insure at all but also of the bad driver who 'forgets' to reveal his bad driving record to insurers and so pays the premium of a careful driver. It is also true of a parent who pretends to be the principal user of his/her offspring's car.
      If you have strictly accurately represented that you were in no sense at fault in the happening of the collision I, for one, would be slightly surprised if you received an immediate custodial sentence.

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  10. Hi Martin - I am a long time CTC member, and was directed to this site by a friend. (incidentally, I knew of Pat Kenny above, as did many CTC and long distance cyclists, a wonderful man)and probably rode in events with him.
    I have just had a foi answered,[I won't go into why I asked it here, which has certain unusual aspects to it and in any case sentencing wasn't covered in the press,hence my foi] concerning a motorcyclist's death, but it could easily have been a cyclist.
    A guilty plea was entered for:

    Causing death by careless driving
    Causing death whilst uninsured
    Fraud by false representation.


    The sentence was
    "200 hours unpaid work, 12months disqualification with extended re-test & £200 costs.

    It was decided by the coroner that there was no need to hold an inquest."


    The tarriff seems standard for the first offence, but when the other two aspects are introduced, the sentence seems somewhat mild, pace Nadia Roberts. Do you agree?

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  11. "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."

    This is not logically possible! Extra care means more care than normal. Until the vulnerable road user is detected, this extra care can't kick in.

    What really matters is that a normal level of care is high enough to detect vulnerable road users at an early enough stage. The vulnerable need to - and in most cases do - help themselves in this regard by being visible by attire, lighting and road position.

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