Monday, 30 April 2012

Addison Lee

It is, I trust obvious what I think of the Addison Lee boss and his suggestion that cyclists are to blame for their own injuries by launching themselves onto our roads protected only by a foam hat.  I need not elaborate as this has been covered very well by Dr Robert Davies the Chair of Road Danger Reduction Forum.  As usual, I agree with all Dr Davis has to say and have no need to repeat it.

There are two small respects in which Addison Lee's Mr Griffin may have a point.  First in his derision of the protection afforded by cycle helmets in any kind of serious collision (though he draws the polar opposite conclusion from this than the one that he should).  Second in his complaint that Black Cabs are able to use bus lanes.  I have mentioned before that my experience of black cabs in London has not always been a happy one. (There must be some honourable exceptions to the stereotype; not least as somebody regularly turns up to race at Hillingdon in his Black Cab.)  I agree that black cabs with one or two passengers or those looking for any passenger have no business being privileged with the use of bus lanes.  If there is spare capacity (which I also question as there is no point in a bus lane unless it is largely empty) then let in vehicles with 4 or more occupants (whether black cabs, Addison Lee vehicles or private motorists).  This ought to be capable of being policed.  I am not advocating the promotion of the use of any private motorised vehicle in London.  However to treat Black Cabs as public transport and to favour them above those who have at least taken the trouble to car share, seems to me completely illogical.

Saturday, 28 April 2012

Josie is right, Jon, it's the motorists

Over the past few days I have been following with increasing incredultiy the trial of David Grogan, a lorry driver who killed cyclist, Tim Andrew, near Hull in October 2010.  There have been daily reports of the trial in 'This is Hull'.  The witness evidence is clear that Mr Andrew was brightly lit and conspicuous on this dark early morning.  An eyewitness said "He was cycling towards the edge of the grass verge and we saw this lorry come up behind him and we heard a bang."  [Please, please do not ever ride at the margins of the road].  A police officer was on the scene minutes later and spoke to Grogan,  "He said words to the effect of, 'I didn't see him until it was too late'. He was quite shaken and in shock. The road is quite hazardous for cyclists, whether it is illuminated or not."  [Is it the road, officer, or some of the drivers on that road?].
The driver's explanation, provided through tears, was reported here.  "I caught something in the corner of my eye in front of me.  I caught a glimpse of what looked like a small red light just in the corner of the screen.  As I looked across I could just make out the silhouette of a person cycling along.  He was four to five feet away, maybe less. I saw his arm holding on to the bike and his helmet. I only had a second.  I remember seeing the light and the cyclist and straight away I thought 'Oh Christ', and just 'bang'.  A minibus was going by and I couldn't swerve.  The cyclist was there and I thought if I swerve I will hit the bus. I knew straight away I had hit something or someone."  The report goes on "When his barrister asked if he was driving carelessly, Mr Grogan said: "No, I was not using a mobile phone, messing around with any controls on the vehicle."
My incredulity is over his plea of Not Guilty.  How could this driver possibly think he had a defence?  He was not of course able to claim that at 0640 on a mid October morning the sun was in his eyes.  Instead he claimed, making matters rather worse for himself, that his view was obscured by a smudged windscreen caused by defective wipers.  I can only imagine that Grogan, and motorists like him, imagine that motorists on a jury may not convict.  Happily our jury system is better than that.
Following his conviction yesterday the Judge is reported to have said "This was not in my view momentary inattention, it was a decision to press on regardless of being disadvantaged through his visibility.  If you press on at excessive speed with poor visibility, you are creating a substantial, significant risk."
Not much mitigation in relation to the circumstances of the offence or the plea then,  I will update my table when I learn the sentence[Subsequent note:  apparently some mitigation was found in that the cyclist's rear light was not as bright as it might have been and Grogan avoided an immeidate custodial sentence].

This brings to mind the evidence given to the Transport Select Committee last Tuesday video here.  The President and a Vice-President of CTC, Jon Snow and Josie Dew were there together with the Times Editor, James Harding.   Josie was marvelous.  She is a storyteller and a writer and had a story to illustrate every point she made about poor driving and the inadequacies of law enforcement.  Ministers, though, were on their way and the Committee got off to a late start so they only heard one of Josie's stories (the trip with small child to school and the conversion of the selfish 4 x4 driver who used to get up late and make up for lost time by overtaking Josie and her child on a blind bend).  I would have liked to hear all Josie's stories but she was consistently cut off by the Committee Chair who preferred the soundbites from the other two.  Jon was stressing the dangers of cycling and how, whilst Josie rides her child to school, he dissuades his children from cycling because of the danger.  the solution he hatched up with James Harding was 20 mph limits in residential areas but only where there was no segregated cycle track.  Even the Committee Chairman checked whether they were sure they were asking for that.  Yes, they were, it is how to get motorists on board to press for cycle tracks so that they can go faster where they are provided.  As a road cyclist I am appalled at the implications of this.  One good idea from Jon, though, turn traffic lights to flashing give way signs at off peak hours.

Of course what the session will remain infamous for are the later remarks of Mike Penning, the Minister with responsibility for Road Safety, that the Dutch could learn a lot from us on road safety for cyclists as the cycling casualties per head of population are greater in The Netherlands than the UK.  Perhaps Mr Penning's plan is that we, like he, will leave our bicycles in our garages so as to improve upon this non-target (this Government doesn't do targets - just as well with it's Minister's grasp of statistics).  I would very much like to see some statistical analysis as to whether we have many time the KSI for cyclists per billion kilometres traveled because the Dutch have more segregated lanes or because the Dutch have more considerate drivers.  After all a large proportion of drivers in the Netherlands must also be cyclists.

I now place politicians on the Pickles-Huppert axis to prove the remarkable correlation between enthusiasm for cycling and good health.  Julian Huppert is at 1 and Eric Pickles at 99, with the Chancellor and Prime Minister at about 25.  I am afraid our Minister for Road Safety is up in the 80s, though his colleague the Brompton riding Norman Baker might score a 50.  Just to prove there is no political bias here, the LibDem Mr Huppert is joined at the correct end of the scale by Ben Bradshaw (Lab) and Alec Shelbrooke (Con).

My CTC membership is up for renewal.  I admire the work that CTC staff do and will renew in honour of Josie Dew.

Monday, 16 April 2012

Porter v Denman

Regular readers may recall that some 16 months ago I was assaulted by Timothy Denman.  My application for a summary judgement was heard this morning and granted.  Denman was there but did not have much to say for himself apart from fabricating an account that I had sworn at him.  He now has to pay a Judgment sum in the total of £1,254.
Some of what he said indicated that his aggression stemmed from a total inability to recognise the right of cyclists to use the road.  He said his way had been blocked by 6 cyclists riding together and he felt this was intolerable because he paid tax!  I had not been aware of this - it must have occurred some minutes before the encounter which led to an assault on me.  He did not seem to recognise that there was something wrong with his driving if he was moving closely enough to my colleague for him to slap the side of his car 'not close enough to knock him off'.
Interestingly he said he had been arrested 'but nothing came of it.  I was just given a caution' which gives the lie to the Thames Valley Police attitude that he had received some significant sanction.
This was my first ever appearance in Court representing myself and I have to commend the Slough County Court.  The case was called on shortly after the appointed hour and dealt with efficiently and courteously..  The Judge had done more preparation than had I, and we were out well within an hour.
Denman was of course disgruntled ('stitched up' he claimed) and the next challenge will be to enforce the Judgment against him.

Friday, 13 April 2012

Another sentence for causing death by careless driving

Within a few days of my last post there has been another case.  Putting a table into my post is beyond me, so click here for a table of recent cases.  Karl Austin was killed whilst time trialing on the A 50 dual carriageway in Derbyshire on 30th June last year.  He was struck by a lorry driven carelessly by Michael Bray.  Bray claimed not to have seen Mr Austin on a clear straight dual carriageway notwithstanding a strong flashing rear light.
Bray was sentenced to 24 weeks imprisonment though this sentence was suspended.  He was disqualified from driving for 2 years.  This, as my table demonstrates, is a relatively severe punishment for causing death by careless driving.
The facts of this case bear a striking similarity to those in the Katie Hart case.  One difference though is that Katie Hart was driving a small car.  Bray was in charge of a 26 tonne lorry.  It is not at all clear why the CPS in Derbyshire did not follow the lead of the CPS in Cambridgeshire in the Hart case and charge with causing death by dangerous driving.
The Austin family have in my view good cause to be dissatisfied with the way this case has been handled.   They had to fight heard to ensure it was heard in the Crown Court.  Bray's only 'explanation' for running down Mr Austin was that he did not see him.  There was a muted suggestion that perhaps the sun was responsible (this has worked well in other cases) or that he was driving a lorry notwithstanding some visual defect.
Katie Hart may well feel disgruntled.  She got what she deserved but is almost alone in that.

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.

Date of sentence
Community Order

Rob Jefferies
18 months
200 hours
Alastair Pratt
18 months
150 hours
Tomas Barrett
Not Guilty
12 months
100 hours
Thomas Stone
12 months
36 months

Pat Kenny
Not guilty
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.