British Cycling's letter to the Lord Chancellor can be read here. Item (b) concerns the role of the Crown Prosecution Service in deciding the appropriate (if any) charge where a death has been caused. I have vented my frustration on these pages at Police/CPS decisions that there is either 'insufficient evidence' or it is 'not in the public interest' to prosecute each time, thus far, that I have submitted evidence of bad driving. These are of course petty irritations when compared to the far more serious circumstances of a death or serious injury.
Ross Lydall of the Evening Standard reported yesterday that the driver of the left turning lorry, which crushed Daniel Cox in Dalston in February 2011, will not be charged. I do not have access to the evidence. However, Ross reports a CPS spokesperson as saying, “We concluded that we could no longer prove that Simon Weatherley did not use his indicators to show his intention to turn left, an essential element in proving that he was driving without due care."
It seems that the prosecution was brought on the basis that the lorry driver had not indicated left and that when evidence emerged that he might have indicated left, a prosecution was regarded as untenable. I find this disturbing. Every case will turn on its own facts and it is surely a jury question as to whether it is enough to have indicated. Every lorry driver ought to be aware of the possibility that there is a cyclist to his nearside. It is hardly relevant that an experienced cyclist would do anything to avoid being there. By definition if cycling is expanding not every cyclist will be experienced. Furthermore Highway Authorities, many motorists and some cyclists have an expectation that cyclists should be on the nearside margins of the road. It is not therefore sufficient for a left turning lorry driver simply to indicate and lack of an indication is not therefore 'an essential element' in proving an offence. A careful and considerate lorry driver does not turn to his left unless he is sure, by the use of mirrors, detectors or otherwise, that there is no cyclist on his nearside. If the driver does not have adequate mirrors he must take that handicap into account when deciding whether it is safe to turn left or indeed to drive at all.
I cannot say whether the decision not to prosecute this driver was the right one but I can say that I find the reasons given for the decision disturbing.
There is an inconsistency between that decision and the contrary decision to prosecute the tanker driver who seriously injured the journalist, James Moore. As Ross Lydall's report of that case reveals, there was CCTV footage showing that the tanker driver was indicating whilst waiting at traffic lights before taking the turn. That driver was acquitted by a jury.
The evidential test should be considered satisfied if there are reasonable prospects of a conviction. That means, if the test is applied appropriately, the prosecution can expect to win some and lose some. Merely because it has lost one case where a lorry driver was indicating left does not mean that indicating left should henceforth be treated as a literal 'get out of jail' card. It is emphatically not 'an essential element' to a charge of causing death by careless or inconsiderate driving that the driver can be proved not to have been indicating.