Friday, 29 August 2014

Case Update: R v Wojcicki. Turning a corner?

The evidence (taken from the reports of WalesOnline who have covered this story in detail)
At around 8pm Mr Wojcicki drove his 3 ton minibus into the rear of Owain James, who was on his bicycle, causing him fatal injuries.
The collision occurred on the west bound carriageway of the A472, a dual carriageway road subject to the national speed limit (70 mph for a light vehicle, 60 mph for a mini-bus), near Newbridge in South Wales.  So far as I can tell this is fairly representative of the location. 


Google earth suggests that each lane is around 3.75 metres wide.  The width of Wojcicki’s Mercedes minibus is 2.25 metres wide.  That debris strewn strip by the grass looks to be about 1 metre wide.
The prosecution opened the case on the basis that Mr James was riding inside the white rumble strip. 
One independent witness driving a Landrover in the same direction gave evidence that “The minibus did not alter its course at all and no brake lights came on.  The minibus ploughed into the cyclist”.  Another independent witness also travelling West said he saw a cyclist in the area between the grass verge and the rumble strip and thought the driver of the mini-bus “must have been distracted by something because the minibus was drifting from the lane to the rumble strip back and forth.”
Wojcicki did not stop his minibus for a distance of 125 metres.  When he did get out of his van he was seen taking photographs of Mr James with his ‘phone.  Whether because of this or (as one would like to think) they would have done it anyway the police examined Wojcicki’s ‘phone and found that a short while earlier he had taken photographs of a vintage car at a set of traffic lights.  The last traffic lights passed by Wojcicki were a couple of miles back on the opposite (North) side of Newbridge and I surmise it was here that the photographs were taken.
Wojcicki’s accounts following the collision were contradictory.  He told witnesses at the scene that he had not seen Mr James prior to the impact.  The following day interviewed by police he claimed that he saw Mr James from a distance of 20-30 metres away [My note: the forensic evidence if any has not been reported but lines of sight were obviously far better than that and no explanation appears to have been given as to why he saw him so late –at a closing speed of approximately 35 mph this would have given less than 2 seconds to react].  He claimed he had been happy with his driving and comfortable to stay in his lane where he was doing 55 mph.  He added “I did not cross the white line” [My note: I cannot tell if he means the rumble strip or the line dividing the westbound lanes – the evidence of the first independent witness that he did not alter course at all suggests perhaps he did not cross either but the second independent witness gave evidence of drifting to the rumble strip].  He then claimed that Mr James swerved into his path.
When giving evidence Wojcicki accepted that he had taken a photograph when stopped at traffic lights and maintained that he had seen Mr James on ‘the hard shoulder’ but ‘I could see no hazard and was happy to stay in my lane and overtake’.  He apparently mentioned that in Poland it is considered acceptable to overtake a cyclist with 1 metre’s clearance.  He accepted that he was constantly adjusting his position on the road because his van had a tendency to move to the right ‘but I did not get close to the white line’ [meaning I think the rumble strip].

The result
The charge was causing death by dangerous driving.  The prosecution case was that Wojcicki was looking at his recently taken photographs and therefore did not see Mr James and that explained why he did not avoid him and why it took so long for him to stop after the collision.  The jury convicted.  The Judge made clear when sentencing that he was sure the prosecution case was right.  On the evidence I have seen reported I might, as a juror, have felt unpersuaded to the criminal standard (beyond a reasonable doubt) that Wojcicki was looking at his photographs immediately before impact.  However I would have convicted nonetheless because, for whatever reason, he cannot have been paying attention to the road ahead if he did not see Mr James until he was 20 to 30 metres away and worse because of the appalling dangerous complacency that led him not to trouble to move out before passing a cyclist.  At the very best, and on Wojcicki’s own evidence this was a close pass gone tragically wrong.  I can think of sinister explanations other than looking at photographs to explain taking a while, before deciding to stop.
The positive things are that, unlike other recent cases there is no record of distraction over whether or not the cyclist had traversed the rumble strip or whether the cyclist should have been on that road at all.  The rumble strip is intended to mark the limit of the useable carriageway and anybody who is ‘comfortable’ passing a cyclist close to the rumble strip is driving dangerously (contrast R v Dove).  Equally Mr James had every right to cycle on that road (contrast the discussions about alternative routes in R v Petterson) and the concomitant right to expect other roadusers to exercise care when passing him.


Perhaps even more encouragingly there was no reported debate about high-vis or helmets.  Maybe this is because it was so obvious that a helmet would have made no difference and because the final defence decided upon was that he DID see him albeit very late rather than the more conventional ‘didn’t see’ Defence.

It is also refreshing that the charge brought was the appropriate dangerous driving charge not careless contrast these recent cases



Sentence
Wojcicki is now beginning a 5 year sentence of imprisonment.  Unusually in such cases, he has been disqualified for a long period, 10 years.  It would be good to think that the tide in these cases is turning.   CTC’s Road Justice campaign has been energetically targeting this area.  Likewise a valuable report last month from the Transport Select Committee highlighted the need to encourage motorists to share the roads responsibly with bicycles and calling for an amendment to the Highway Code which would emphasise the rights of cyclists to share the roads with drivers.  The mainstream body of people who cycle will I am sure, want to get behind that call.
I only hope that if this case gets before the Court of Appeal they back the Judge on the sentence and particularly on the 10 year driving ban; contrast these cases.

Postscript
I have followed this case with particular interest because the close pass (often from a white van on a dual carriageway) is for me the most terrifying aspect of my commute.  I have on occasions been literally inches from sharing the fate of Mr James.  I am sure it must put a lot of people off cycling altogether.  Whilst statistically most collisions happen at junctions, it is usually somewhat easier to guard against the idiocy of the road user failing to accord you your right of way than it is to deal with the peculiarly unnerving conduct of a vehicle that comes up fast and close from behind.  Always allow yourself plenty of room to your nearside to swerve into if you need it.

A further postscript
I did not mention above the controversy that arose between Judge and Defendant solicitor described here.  This was raised by the Judge only after the trial had concluded for the very sound and proper reason that it should not be permitted to prejudice the trial.  I do not think anybody doubts Alan Blacker's entitlement to represent clients in the Crown Court, presumably how he dresses is regulated by the Law Society.  Equally I would very much like to believe that the nationality of the Defendant had no bearing on the jury's decision.  A conviction in not wholly dissimilar circumstances was secured against Ms Katie Hart an English woman in the hands of an English jury.  What I suspect is more likely to have made a difference is that the involvement of a mobile telephone probably removed the ever present risk of under charging (with careless rather than dangerous driving).  For the reasons I have set out I consider that the charge and the verdict in this case were both plainly right and I trust that neither the nationality of the Defendant nor the identity of his lawyer made a scrap of difference.

19 comments:

  1. It's high time that people who kill and injure cyclists in these ways receive a stiffer sentence and, more particularly, a lengthy ban from driving; followed perhaps by the need to retake the driving test.

    I couldn't agree more with your Postscript. I live in rural East Anglia, and the problem of narrow overtaking (usually following a period of the motorist driving inches from my rear wheel) occurs frequently on the narrow roads - rural and urban - hereabouts.

    I always ride well out from the rubbish- and glass-strewn gutters, which are also full of grass growing through lack of maintenance, because they are impossible to ride, and also to obtain a margin of safety as you describe.

    This invariably results in yet more irritable "tailgating" from the vehicle behind, but my response nowadays is "Sod 'em".

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  2. A just verdict, but one swallow does not make a summer sadly.

    The truck driver that hit and killed a cyclist on the A68 near Darlington has just been convicted of just careless with just a 4 month suspended sentence and a ban of about 3 yrs. This is despite the fact that the cyclist was wearing bright clothing and lights, and would have been visible for at least 5 seconds.

    http://www.roadjustice.org.uk/case-study/lorry-driver-arrested-over-fatal-a68-crash-090114

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  3. Were the Jurors swayed by the fact he was "from Poland" would the decision have been any different had he been "Welsh"? I very sadly think it might have been...

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  4. I experience more close passes from "Transit-style" vans than from most other road users. Could it be that the line of sight from the driver's position gives a distorted perspective of the vehicle's near side? ie. could this be a design problem I with this type of vehicle?

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  5. The use of a minibus with more than 8 seats is something regulated by a number of details, if the driver does not hold a PSV licence (Class D). Additionally such vehicles can be operated by organisations which do not hold an O (Operators) Licence.

    This would appear to have been the case in this incident. In order to legally drive the minibus the driver has to take and pass a MIDAS course. There is no mention of this in the reporting, and presumably the MIDAS certification is revoked when the driving licence is revoked. However it is not clear whether a longer, or lifetime ban on driving passenger carrying vehicles has been given.

    The minibus was operated by the Church - the Kingdom Hall in Cardiff according to reports. This would probably have been under a Section 19 permit, for carrying church members only to and from appropriate events, and not for any hire or reward to do so. Section 19 (and Section 22) permits are issued for Community Bus services by the Traffic Commissioner but with a by-pass option that certain Designated Bodies can also issue permits to themselves and member groups of their Designated Body - those Designated Bodies include churches.

    There is no mention in the reporting of any formal note, or record for the Church noting the fatal crash of the vehicle for which they have an operating permit, by a driver who would presumably be authorised by them to drive this vehicle. If the permit was issued by the Traffic Commissioner I would expect that he (in this case) would be inviting the person named as responsible for the permit to come in for what is colloquially known as tea & biscuits, but is normally a far from cordial interview. I was a bit shocked on checking to find the alternative method of what effectively is self certification to drive a large passenger carrying vehicle though.

    Does anyone know more of the wider story on this? I particularly note that the minibus was left-hand drive, perhaps indicating that it was either purchased from mainland Europe, or used on regular trips to countries where left hand drive would be an advantage.

    In 10 years time will Wojcicki simply be able to resume driving large and deadly minibuses, or will there be strong controls to prevent him readily regaining a MIDAS ticket, or any other vocational driving licence.

    Section 19 and 22 permits substantially relax some of the requirements for operating vehicles that can carry more than 8 people, and it was very telling to learn that restricted HGV O Licences (which also permit relaxed controls for vehicle used solely for the owner's business) feature in 75% of the visits to the Traffic Commissioners for 'tea & biscuits'.

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    1. > In order to legally drive the minibus the driver has to take and pass a MIDAS course. There is no mention of this in the reporting…

      Presumably there is no mention of MIDAS in the reporting because there is no mention of MIDAS being a legal requirement in the DVLA publication “INF28 Driving a Minibus”.

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  6. PS Yet another case also of the driver travelling well beyond the distance required to make an emergency stop. In one report I saw a note that one witness drove after the minibus to stop it, as there were clearly others attending to the victim.

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  7. Excellent comments as ever Martin.

    A quick point though in response to the remark in your 2nd postcript. You said:
    > I do not think anybody doubts Alan Blacker's entitlement to represent clients in the Crown Court.

    Well, there are a lot of comments under the following article, which are indeed questionning his entitlement:
    http://www.legalcheek.com/2014/08/solicitor-advocate-who-judge-slammed-for-dressing-like-something-out-of-harry-potter-expresses-shock-at-unwarranted-attack/

    One of the comments even suggests that a retrial may inevitably be necessary.

    I am not in a position to second-guess the validity of these comments. I can only observe that there are a lot of them - which gives a distinct impression of "no smoke without fire".

    All I'd say is that if a retrial were to become necessary, that would be truly awful for the cyclists' bereaved family. All the more so if it were to result in a different outcome.

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  8. Excellent comments as ever Martin.

    A quick point though in response to the remark in your 2nd postcript. You said:
    > I do not think anybody doubts Alan Blacker's entitlement to represent clients in the Crown Court.

    Well, there are a lot of comments under the following article, which are indeed questionning his entitlement:
    http://www.legalcheek.com/2014/08/solicitor-advocate-who-judge-slammed-for-dressing-like-something-out-of-harry-potter-expresses-shock-at-unwarranted-attack/

    One of the comments even suggests that a retrial may inevitably be necessary.

    I am not in a position to second-guess the validity of these comments. I can only observe that there are a lot of them - which gives a distinct impression of "no smoke without fire".

    All I'd say is that if a retrial were to become necessary, that would be truly awful for the cyclists' bereaved family. All the more so if it were to result in a different outcome.

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  9. P.S. More doubts about Alan Blacker are raised here:
    http://www.walesonline.co.uk/news/wales-news/st-john-says-harry-potter-7692905

    All very messy. It would appear that the defendent driver whose story was full of contraditions, found himself in the hands of an advocate whose story is every bit as riddled with doubtful claims.

    As before, I can only hope this doesn't effect the outcome of the trial, not least for the sake of the bereaved family.

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    1. Thanks Roger. An appeal based upon the allegedly questionable claims of his lawyer should not get far. I can think of 2 high profile barristers currently behind bars for fraud or perverting the course of justice. It would be absurd to reopen all the trials they have participated in. The Defendant can hardly claim to have selected his lawyer because he believed him to be an hereditary peer or a knight of St John and the fact remains that Blacker is held out by the law society as a qualified solicitor with rights of audience in the Crown Court. Whether he should be is a matter for the Law Society / SRA. Wojciki had his case, such as it was, put by a qualified advocate of his own choosing. Blacker had worked for him successfully before. You cannot choose a duff lawyer then complain on conviction that you had a duff lawyer, unless of course he was not a lawyer at all (but he was) or the trial process was unfair (which it was not).
      Usually a motorist's insurers will pay for legal representation and one can infer that Wojciki particularly wished to be represented by Blacker.
      They might be thought to deserve each other.

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    2. Dear Martin,

      Please, however, refer to the defendant, Mr Wojcicki, as 'Mr Wojcicki' or just 'Wojcicki' rather than (sic) 'Wojciki' (as indeed happened twice in just a single post!). I would like to trust in your spelling ability just as well as I would like to trust that you do not exude any characteristics of a racist person (or perhaps just someone who is ignorant) - albeit I note that, quite correctly, throughtout the note you have used the correct version of the convict's surname. I also believe that it would be, in any event, unprofessional to continue addressing a party to a case by using the form 'Wojciki' - regardless of the fact whether the defendant was a wrongdoer in the case.

      As for the other issue: I quite agree that it is not very likely that a re-trial might be the order of the day in the case concerned. As regards the two barristers you have referred to above (link 1: http://www.dailymail.co.uk/news/article-2450806/Top-city-lawyer-lied-Oxford-Harvard-degrees-quits.html + link 2: http://www.legalcheek.com/2014/02/barrister-who-fabricated-harvard-degrees-is-struck-off/), their 'career' was spanning over a considerable period, and yes, it would be most unreasonable to order any re-trial on all the cases the pair have ever participated.

      There is yet another story of a now convicted 'wannabe' barrister, which can be found here: http://www.manchestereveningnews.co.uk/news/greater-manchester-news/amir-saleem-who-claimed-barrister-6900457, and makes for an interesting read. As for Dr (...) Blacker, there is quite a number of claims and representations he has made, however, and indeed some bodies have already firmly denied having any connection with him or his accomplishments (more on the story here: http://www.walesonline.co.uk/news/local-news/harry-potter-lawyer-alan-blacker-7728670).

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    3. Part 2:

      All in all, the emerging trend is quite worrying - here we are not merely dealing with fraudsters (non-lawyers) holding themselves out to be lawyers, but with quasi-lawyers who had been accepted by the professional bodies to practice law merely on account of their fake titles, documents, diplomas and qualifications, and indeed in some cases this has been going on for a number of years before they all have been found out. Importantly, all of the cases I have referred to above are fairly recent, and it would not surprise me at all if there was a far greater amount of public mistrust towards the legal profession as a whole from now on... Who knows who else is out there who does not conform to the (educational, professional, etc.) standard required of a lawyer but is somehow able to practise law? How many more dishonest or otherwise unsuitable and illegitimate lawyers might be out there? Open questions, of course - perhaps worthy of being the subject of a separate note?

      One final bit, though: there is a painfully long discussion in the thread here: http://www.legalcheek.com/2014/09/9-reasons-why-lord-harley-of-counsel-has-the-best-linkedin-cv-of-any-lawyer-ever/, where people have exposed Mr (...) Blacker's representations on one level or another (although, naturally, the last word will be to the SRA and, possibly, other authorities dealing with this bizarre case). In the comments section, one contributor has suggested that Wojcicki may have been initially advised by another solicitor to plead guilt, only later to be approached by Blacker who persuaded him otherwise. Surely if Blacker is, in terms of qualifications and skills, a completely inadequate member of his profession and had he not convinced Wojcicki to take on his case, this would have led to a different outcome (i.e. a reduced sentence at the very least)? Perhaps there is some hope for the man who has just been sentenced as a re-trial may have been justified on those grounds? In addition, in Blacker's closing speech, there were apparently some outright ridiculous claims such as: a claim that “falling asleep at the wheel is an innocent mistake” and that the death of the cyclist was “irrelevant for the purposes of this trial”. Now I have no knowledge if these statements are true or not, but if they are true (and I believe heir validity can be verified), then surely such outrageous statements coming from the defendant's counsel may have had an impact on both the jury and the judge insofar as the verdict on guilt and on the punishment were concerned? I certainly do not believe that this matter is quite over yet - let us wait for further developments on the issue.

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    4. Those with an interest in the claims made by Alan Blacker may wish to go to http://lawbytes.boards.net/board/1/general-board for more information. Blacker has said that an appeal has been lodged on Wojcicki's behalf, but it is not known on what grounds or who will represent him.

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  10. Hmm. Comment seems to have been lost.

    What does the yellow line on the dual carriageway mean? I haven't seen one of those before.

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    1. Just an artefact from google street view - ignore the yellow line

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  11. As the sister of the deceased cyclist Mr Owain James, the trial was upsetting & extremely hard going on the family. The defendant ( so sorry can't bring myself to say his name) quite clearly didn't see Owain as he was otherwise distracted, not only that it took him 128 metres to stop. Then ran back to take pictures of my brothers body.( http://www.southwalesargus.co.uk/news/gwentnews/11419476.Blackwood_driver_took_photo_of_fatally_injured_cyclist_after_crash__court_hears/?ref=var_0 ) This person is sick, showed no remorse & is totally immune to any emotion. He continually lied & changed his account of that night to suit. I only wish he had a harsher sentence. My family have been given a life sentence & we can do nothing about it. Owain was a kind, loving man who had a very bright future ahead of him.

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    1. I am so very sorry for your loss and thank you for commenting here.

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  12. Incidentally, a note on your comments on lane widths.

    If the dual carriageway follows the standards (and they are mandatory), then there will be a certain amount of width on the verge for services, then 1m from the kerb to the white line, then likely (depending on the type of dc) lanes of 3.65 or 3.7m.

    The document for larger roads is here:

    "DESIGN MANUAL FOR ROADS AND BRIDGES"
    http://www.dft.gov.uk/ha/standards/dmrb/vol6/section1/td2705.pdf

    and I think you want chapter 4.

    Using the document for smaller roads, the way they seem to do lane widths on (say) B roads in towns with pedestrian refuges, is that your lane width is either narrow enough to discourage cyclists and traffic together, in which case you have a cycle path or combined wide cycle/ped path, or you make the lane significantly wider to allow space for traffic to pass cyclists.

    They don't want lane widths which are narrow enough to allow a "squeeze",so there is a not-allowed grey area of width.

    That is sensible, and was my experience in a recent development with a road junction.

    The people across the road were not happy to lose the designated highway land, which they had thought was part of their front gardens.

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