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.



7 comments:

  1. And Bikeability, as part of the training of traffic support officers who adjudicate on cycle camera videos, would help to ensure that they are qualified to make a decision.

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  2. What about the judge - shouldn't he or she be pointing out things that you have picked up on?

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  3. Thanks for the insight into these appalling goings-on. Thanks also to Southampton Cycling Campaign.

    We have two problems. First, it seems to me that so long as we rely on these so-called 'experts' we are not going to get anywhere even with a sympathetic jury. Second, the judge in Petterson could well have got the law wrong. I'm struggling to see a solution. Stronger codification for (1) and severe criticism by the Court of Appeal for (2)? Both seem a distant dream.

    What are your thoughts, Martin?

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  4. It's not the judges job to fill in the gaps in a poor prosecution case surely ? I've no idea how a highly trained barrister can't secure a conviction in a case where the only two scenarios are "I could see the cyclist but killed him" or "I couldn't see but carried on driving anyway and killed him". I'm sure a prosecutor who understood cycling etc would do a better job, but stil, how is it possible to be so inept ? Would an incompetent gas fitter be able to use a defence of "the sun blinded me so I didn't tighten a pipe properly" ?

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  5. Nice to see you back

    cheers

    Adrian

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  6. "Witness: the designated route would be Millbrook Rd East - Central Station Bridge – Southern Rd – West Quay Rd"

    Designated route!!!! Sorry, does not compute, it could have been someone else on that bit of road at that time of day...

    The entire concept of designated routes is nuts. What was the driver's designated route for the journey he was making then? Was he on it?

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  7. Hi, thanks for writing this blog, I'm not sure if you have discussed this with SCC, and its not really central to your point about witness selection and briefing, but the state of the designated cyclepath the witness talked about leaves a lot to be desired. In fact last year I stopped for an ex-policeman who had fallen over on this cyclepath, going the other way from Southampton. The cyclepath comes from two different roads, the road into Totton and the Totton Bypass. The path from Totton starts about 100m before roads join, goes under an underpass which is dark and where the path is often strewn with glass, and as I remember has no kerb-free access; coming from the Totton Bypass there are the same issues of path quality and a steep drop with numerous potholes and a metal barrier at the end. When you get over the Test after the roads amalgamate first you have a half-dropped kerb by a car dealership, then you have a blind bend with room only for one bicycle (on a shared use path), then you have Mountbatten Road West which is a concrete road used mainly by Small-and-Heavy-Goods Vehicles, often HGV drivers taking a rest break leaving only room for one vehicle to pass and, after the Shell garage 100m in, no dedicated cycle furniture. In short, as driving is about the management of hazards, it is reasonable as a cyclist to judge that there is less real or potential exposure to hazard by taking the main road than by following the designated cycle route, if such a thing exists.

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