Thursday, 17 January 2013

Update from Court: CPS v Bhamra

An odd and disturbing case was decided in Solihull Magistrates' Court this week.  The Solihull news today reports that Ichhapal Bhamra was sentenced to a fine of just £35 and unspecified court costs and 3 penalty points after his conviction of driving without due care.
The bad driving occurred on 27th June 2012 and involved a collision with a cyclist, Tom Ridgway, who tragically died from the injuries sustained in consequence of the collision..
It appears that Bhamra pleaded guilty to the charge of driving without due care.  The fact that he was not charged with causing death by careless driving and the extremely light sentence suggests that his plea must have been given (and accepted by the CPS) on the basis that his bad driving had not caused Mr Ridgway's death, or indeed any significant harm.  It is very similar to the sentence (£37 plus victim surcharge of £15 plus costs of £85 and 3 penalty points) given to Levi Rayner, after I insisted that he was prosecuted for careless driving after a very close pass in Hounslow that I filmed last year.  The victim surcharge will have been mandatory in Bhamra's case and the costs are likely to have been of a similar order to Rayner's, so the overall financial burden will have substantially exceeded the headline £35 that was reported.  Still well short of harsh but roughly in line with other cases where the careless driving caused no injury/damage.
The real question is not then the leniency of the bench but how it is that the prosecution accepted a plea on the basis that Bhamra's careless driving had caused no significant harm.  Apparently the CPS took the view that they could not prove that Bhamra's carelessness had caused the original impact but merely that continuing on for a distance of 90 metres with Mr Ridgway on his bonnet, colliding with signs and eventually a tree was careless driving.  They also decided that they could not prove that this 'proveable' carelessness, as distinct from the original collision, had caused Mr Ridgway's death.
Making every allowance for the fact that the details of the original collision did not come out in court and were not therefore reported upon, with the consequence that very little is in the public domain, the CPS charging decision does seem lame.  In the absence of any striking explanation, a passing car should not collide with a cyclist.  This is on the face of it indicative of a lack of due care.  Had the original collision been due to Bhamra's lack of due care, then it could hardly be disputed that that collision caused Mr Ridgway's death.  Even if a conviction of causing death by careless driving was not a certainty it seems to me unfortunate that the facts were not brought before a Court to determine.
Hopefully there will be a rigorously conducted Inquest to explore how the original collision occurred.

COMMENT FROM TOM'S FAMILY
Tom's aunt has been in contact and comments as follows:


"I could not agree more with your assessment.   I am Tom Ridgway’s aunt, I attended the trial and – as I told the prosecuting solicitor – it felt to me as though a back-room deal had been done.  All events leading up to the collision were dismissed without discussion.   The prosecutor replied that he was new to the case that morning and he could not argue the charge, which had already been agreed.  He added that we should complain if we wished to the CPS.
The family is not seeking further punishment for Mr Bhamra, who has lost his job and is depressed and suffering.  He has paid his £150 penalty including costs and, like most reasonable people, understands that he was responsible for the death of a young man who was merely cycling ahead of him on the road.  (Tom, a student, was on his way to Solihull to deliver his CV to New Look in the hope of getting a holiday job.)  It is the law which has failed to us, by bizarrely dividing the event into Before and After Impact.
Although it cannot be proven that the taxi driver was driving carelessly before the accident, the fact that he hit and killed Tom is surely evidence enough that he was driving without due care and attention WHEN he hit him.  The shattered windscreen, the subsequent panic, the death, are all part of a sequence of behaviours which killed my sister’s beloved son.
Many people, including the newspapers, are jumping to the conclusion that sentencing in this case was too light.  But given the charge before them and the fact that Mr Bhamra was not proved to be drunk, drugged or speeding, the magistrates were directed to give the lightest level of fine.  Indeed, the fact of Tom’s body being on the windscreen became a mitigating factor as the driver could not see where he was going, panicked and put his foot on the accelerator instead of the brake.
The point is not that hitting Tom caused Mr Bhamra’s erratic driving, but that Mr Bhamra’s erratic driving killed Tom.  A distinction that would have been made in court if his case had been charged and prosecuted with proper respect for human life."   

33 comments:

  1. Without further detail its hard to understand. Perhaps Mr Bhamra was going to argue that the cyclist was at fault (e.g. pulling out in front of him) and as there were no witnesses it was impossible to disprove. Unlikely I realise, as most people's sense of self preservation would prevent such an act, but if it can't be proven otherwise...?

    Taxis can be a bit of a menace, certainly in Reading in my experience, and its at least a small consolation that he won't be driving one again soon.

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  2. Martin

    In law who is entitled to appeal such decisions?

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    1. There would be no chance of appealing the Court's sentence given the charge. The CPS have a broad discretion and it would be difficult to challenge their decision not to charge with causing death by careless driving. A fresh prosecution would now be very difficult as it could be regarded as an abuse of process. The CPS really have to get it right first time.

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  3. OK If there is no chance of an appeal is there some way that the public are able to show the CPS that we feel they are treating us the public the people they are meant to protect and how pay there wages that they are failing us in actions such as this. If I failed in my job I'd lose it. Do they think any conviction is better than perhaps losing one. I really feel that if the young man who died had been the son, brother or husband of a CPS lawyer there would have been a different out come. This make me sick. I was proud to be British and I was pround of our legal system. Not any longer.

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    1. "I was proud to be British and I was pround of our legal system. Not any longer."

      I agree entirely... and having moved the US about a decade ago, I can see the point of private litigation. How can the CPS treat citizens like this? How can it be so arbitrary?

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  4. I'm utterly shocked and confused by what has gone on here.
    The CPS appear to have failed this young man, his family and the driver, who will never be able to feel that he has "paid his debt".
    Hopefully someone will take up the cause and this decision will be questioned.

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  5. I agrree with anonymous above. Whoever was responsible for this should be held to account. The wrong charge was brought.

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  6. I too agree and that is a major reason for writing this blog. It is not the first time sadly. Google Anthony Maynard, Marie Vesco, Eilidh Cairns, William Honour for other examples and/or google my article 'Cycling against the Car Culture'.

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  7. Are ther any pressure groups I could add my support to? I'm tired of reading about such cases. I signed a petition yesterday about another similar case, it it seems to me that all those who have suffered this kind of injustice, or their families and those who feel s.hocked by it should be joining forces and applying pressure

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    1. Yes. The ones I support are CTC, British Cycling and Roadpeace.

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    2. Thank you, Martin. I have emailed my MP this morning including a link (among others) to your article.

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  8. There is a Parliamentary Committee about to start. Do what I have done and write to your MP. There are two possible problems if you believe that this is the wrong conclusion to arrive at: 1) That the law is wrong and needs amending. 2) That the CPS have failed to support the judicial process and brought it into disrepute.

    I would add that the magistrates have sentencing *guidelines* and would have been advised to take account of the aggravating factors they could have taken into account, and also used their reasonable discretion. A significant number of points would not have been unduly onerous: if you end up with a headline sentence that is less than for driving at 34mph with no consequences, there is a problem. The magistrates also have a duty to uphold the reputation of the courts.

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  9. Sara,
    I would try RoadPeace(details on lonk in Martin's blog),

    Dr. Robert Davis, Chair RDRF

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  10. "But given the charge before them and the fact that Mr Bhamra was not proved to be drunk, drugged or speeding, the magistrates were directed to give the lightest level of fine."

    I hope I am not insensitive for querying this. The sentencing guidelines might deem this to start as the lowest level, but then aggravating factors of injury and damage to property are to be taken into account and ultimately the guidance is only that and as long as the sentence can be shown to be reasonable, then magistrates have discretion to chose an appropriate sentence within the available scale.

    It may be a misunderstanding in phrasing, but nobody should be directing the magistrates as to what sentence they must give - they have a legal advisor who offers them guidance, but the magistrates are the final arbiters of the decision and all they need to show is that they have acted reasonably taking account of the guidance.

    I understand that some legal advisors do tend to act more forcefully and seek to tell magistrates what they must do but as I understand it this is inappropriate.

    I am not a lawyer and I'd be interested in a lawyer's comments!

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  11. Interesting to contrast this case - http://www.bbc.co.uk/news/uk-wales-north-west-wales-21087633 where someone had driven a 4x4 up Snowdon (twice)

    No-one was actually hurt so I'm all the more intrigued that the charge was 'dangerous driving' and he was convicted when it seems so hard to get that charge to stick when a cyclist has been killed.

    I suspect it's back to the 'could have been me' on the part of the jurors. Running down a cyclist whilst distracted by the radio/mobile phone/"low winter sun" the jury think "there but for the grace of god go I" and acquit but they can't imagine driving their car up Snowdon even though the danger to anyone else would be no worse than someone legally driving on a BOAT.

    I've come across enough 4x4s and lots of trailbikes off road over the years on steeper, more technical, trails that are legal for them to travel on (and lots on trails that they're not)

    Ignore for a moment the damage (which should have been criminal damage) or the trespass (? driving where not allowed to) and this seems a very strange charge to have brought. No more danger to the public here than on trails legal for 4x4's and far far more danger to the public from some idiot doing 50 in a residential area.

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  12. I read this on Road cc today. In the same Solihul court,

    "In comparison, Donna Lloyd, 27, hit a parked car in a multi-storey car park and drove away. She was fined £110, asked to pay £80 costs and £15 victim surcharge, and give seven points on her licence - four more than Bhamra."

    The sentencing of Bhamra cannot be descibed as justice for Tom and his family.

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  13. As Tom's mother I would like to explain for the record how we, his close family, feel that justice has been done for us and for Tom in the only meaningful way it could be. I have been misrepresented and misquoted in the national press who were sent the story by The Solihull TImes without my consent or knowledge. I only agreed to speak to the local paper because I was told they wanted to write a piece about Tom's life. I refused to comment on the sentence and said I didn't want the article to be about that. It was naive of me, but I thought a local paper would show sensitivity to it's readership, a lot of whom knew Tom personally. The article was not at all what I was told, and it put the most upsetting, shocking headlines on the front with our precious photo of Tom.. all so big that the story had to go inside. The Birmingham Mail phoned me to ask if I thought the £35 fine was insulting, and if I thought it was saying that that was what he was worth. I naturally broke down in tears (it was also the first time I'd been told the amount) and yet I still said 'the most important thing is that the taxi driver was affected by it and cares, and he handed back his taxi licence early on'. The Daily Mail further headlined me as 'hitting out at the insulting fine, saying 'it has ruined our lives''. Absolutely no fine or sentence could ruin our lives.. losing Tom has devastated our lives, full stop.
    To answer the question of justice for Tom and his family. The facts are that the driver apparently reacted out of panic and put his foot on the accelerator instead of the brake. All we need to know is it was quick for Tom. It is far too painful for me to write any more about that. The fact that the driver has not been able to drive since and has issued a statement of remorse to the family is all the justice we need to try to put this horrible aspect behind us, and for friends and family to continue in our private grief for our precious Tom. If others wish to continue to push for a change in legal processes, that is for them to do and is fine. But our loss is not helped at all by persuing a higher fine or penalty. I am deeply sorry for any hurt caused by the media coverage to Tom's friends and family, all of whom have been the most wonderful support to us.

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    1. Thank you very much for your comment. You have my very deepest sympathy for your loss. I am also sorry that all the publicity surrounding the sentence is prolonging the hurt.

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  14. Please accept my sincerest condolences.

    I've friends who've found themselves in the grip of media interest, I appreciate how difficult it can be.

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  15. Thank you both for those really supportive words. It is so nice to feel the human touch in this.
    Liz (Tom's Mum)

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    wrongful death lawyer

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  17. "In the absence of any striking explanation, a passing car should not collide with a cyclist. This is on the face of it indicative of a lack of due care." I should like that statement to be true, but many would consider one rather ordinary possibility that it was the cyclist who was lacking in care that resulted in the accident.

    Let us suppose it is, in reality, a case of inattention by the car driver and consider what might happen when the driver is interviewed. He might say that all he knows is that a cyclist suddenly and unexpectedly arrived on his front windscreen, but he cannot say why, it was as if he came from nowhere. The driver further says he is not aware of being inattentive or distracted by anything immediately prior to the incident, and there is no useful evidence on this point. Thus the suggestion that the cyclist suddenly pulled across the road seems to the driver as plausible as any other explanation.

    Would it not be difficult for the CPS to build a case given such a bland explanation by the driver? In the case that is immediately prior to this in your blog, there were witnesses driving behind the accused, who affirmed the cyclist was proceeding normally and visibly, and thus demonstrating the inattention of the convicted driver.

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    1. Ivan, it would never be the case that the only evidence is the testimony of the driver.

      There are lots of things that can be established - road layout and so on to come up with a general picture. Then it is likely that other elements can be established to understand the likely point of two road users colliding, whether that is a pedestrian or cyclist or car. A reliable picture of the circumstances can then be built and the testimony of the driver can be tested against that picture.

      For example (nothing related to this case, by the way), if a car collides with a bike where both are approaching a bollard which is 3 metres from the side of the road, then we can say fairly conclusively that a car should not have been attempting to pass, regardless of where the cyclist was in the road; if the cyclist was appropriately equipped we can say that a reasonable driver should have been able to see them where ever they were on a roundabout unless they can be shown to have been travelling the wrong way round the roundabout (or the driver could demonstrate some substandard aspect on the part of the road design); if the low sun was a factor, then we can say that the driver was not compensating properly for the reduction in visibility. Any number of facts can be gathered to come to a conclusion for which there is no other *reasonable* explanation.

      The underlying question often seems to be "Was it too much to expect a driver to cope with a cyclist on the road in these circumstances?" At the moment, it seems to be a suggestion that cyclists can be too difficult for the average motorist to be expected to cope with in circumstances where the cyclist is behaving responsibly and in accordance with the normal standards of cycling behaviour.

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  18. Ian, I very much agree with your final paragraph. But it only applies when we can be say that the cyclist was in fact proceeding normally along the road. Positive evidence of that can often be lacking. It is probably lacking when the victim is transported 90m on a car bonnet away from the original impact site. Maybe the court should simply assume it in the absence of evidence, but such a "burden of proof" law in cyclist collisions does not exist in England, in contrast to Germany, etc. I would suggest that the English court's present apparent need for such clear evidence that the cyclist was proceeding normally is likely a key part of why drivers so get often get away so lightly with SMIDSY collisions, in addition to the concerns you mention.

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    1. Perhaps sometimes we are too pessimistic about UK law, sometimes all it needs is a judge with a deft touch to nudge things in the right direction.

      I think what is perturbing is that I suspect that if a pedestrian was run over in the road, the feeling would be that the system would assume that the motorist was at fault unless it could be shown that the pedestrian could be shown to be acting foolishly (running out from behind a bus across a dual carriageway with free running traffic being a simple example).

      In part, this is because the highway code has evolved over the years to highlight that pedestrians are vulnerable and when in the road have right of way in a number of circumstances, such as crossing at a junction where a driver is expected to give way. There is clear direction that drivers are expected to be wary of the possibility of pedestrians being in the road and it is the driver's responsibility to cope with this.

      I don't think it needs a massive change in legislation. We just need to support the judicial system by giving them a clear set of guidelines of what is and is not an acceptable standard of road usage by cyclists and drivers. Such guidance barely exists at the moment.

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  19. Ian, I can't give any hard research evidence to show this, but I would disagree with you over your suspicion that: "if a pedestrian was run over in the road, the feeling would be that the system would assume that the motorist was at fault unless it could be shown that the pedestrian could be shown to be acting foolishly".

    I'm afraid that pedestrians fare as badly as cyclists.

    Dr. Robert Davis, Chair, Road Danger Reduction Forum

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    1. In your view, where does the system fail them? Is it the police failing to investigate (I'm under the impression they take accident investigation seriously); the CPS (target driven so only go for sure fire wins; level of competence); the legislation (application or the letter of the law?); or the courts (who in this case never were allowed near the important part of the incident).

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  20. Cylce Cummuter23 January 2013 14:02

    I'd also like to pass on Best wishes and sympathy to Tom's family and friends. I hope you are coping as best you can, it is very sad to read about Toms death.

    Thank You to Tom's Mother and Aunt for sharing your thoughts and providing some more background.

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  21. Part of the problem here is that justice has not been seen to be done. The facts of the case were not brought out in open court, leaving the public unable to understand the apparent leniency. Coming on top of the widespread feeling that the justice system is unduly lenient to drivers who cause injury and death, this was a huge own goal by CPS.

    If the greater charge had been brought as well and tested in court, the circumstances would be known. The question is whether it would have been right to subject a distressed driver to a trial on a charge on which there was no hope of conviction. There does not seem to be a way of holding CPS accountable for the decisions taken behind closed doors.

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  22. Where and when is the transcript for this case available?

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    1. Transcripts aren't produced for Magistrates' Court trials.

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    2. Thanks Ian,
      So does that mean that even a FOI request would be unfruitful.

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  23. The thought strikes me : having explicitly excluded all consideration of events before (and including) the impact, that might facilitate a second prosecution just for that timespan.

    However, as the relatives say, it would achieve little in practice, and it could be offensive to try to capitalise on a tragedy.

    What can be done to improve the handling of cases in future ?
    More pro-cyclist anti-motorist policing.
    Self-recording video cameras, certainly.
    Lobby abi.org.uk to reduce premiums for dash-cams, like Russia ? Given the widespread 'denial' even motorists' own evidence will help us. ("I was nowhere near you when you slapped the side of my car - I had gone clear past you with plenty of room")
    If it is so perceived by the victim, it is aggravated as a 'hate crime' - Motorism.

    What can be done to reduce the likelihood of future incidents ?
    Educating motorists to tolerate 'taking the lane', and how to overtake safely - both in training and at test.
    A culture of responsibility for ones actions and their effects on others, rather than 'accidents happen'.
    Widening the notion of safety to include others, not just self.
    'What I should do', not 'What can I get away with' ! Better 'Hazard Pereption'.

    The cost of speed. Ability to stop well within the distance you can see to be clear. Slowing/stopping when blinded by low sun or headlamps. Polarised headlamps + glasses to remove glare.

    Clarifying the Highway Code - remove the 'kerb' reference. Primary + secondary positions. Acceptance of riding 2-abreast except where BOTH busy AND narrow (same rules as taking the lane). Use the other lane, not just a minimal 3 foot or car-space. Why not ?

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