56% of drivers convicted of killing cyclists avoid prison

[OTBC]

It's getting worse;

CTC, the national cycling charity, has analysed data showing that only 80% of motorists convicted of killing another road user have their licence taken away, compared to 94% ten years ago.

http://www.ctc.org.uk/news/1-5-motorists-banned-ca...

A driving ban given when a fatality was caused has plummeted from 42 months in 2003 to 21 months in 2013.

[Snowboy]

I've read all 6 pages of that.

As far as I can see there's no mention of the cyclist being at fault for being on the dual carriageway or not raking a different route.
The only thing that comes close us a mention of "is there an expectation that their wouldn't be a cyclist on Mountbatten way?"
And that's just s response to an argument from the defence lawyer, it's not the crux of the case.

The case seems to pivot on the driver coming over a brow of a hill and getting blinded by the sun at the same moment he reaches the cyclist.

It's not that he was blinded by the sun but pulled out anyway.
It's that when blinded by the sun he held his lane for a few moments.

I'm glad I wasn't on the jury.
It seems to me it was just a tragic set of circumstances.
The driver was not being dangerous or careless.

The case has been given high profile because of an odd argument by the defence and the cycling blogs interpretation if it.

[WinstonWolf]

If you are blinded you need to slow down, not carry on and hope...

[Snowboy]

WinstonWolf said:

If you are blinded you need to slow down, not carry on and hope...

You should perhaps read the link if you want to comment on the case.
That way you'll understand my comments in context.

[WinstonWolf]

Drive at a speed that will allow you to stop well within the distance you can see to be clear.

Them's the rules, break them at your peril...

[heebeegeetee]

Snowboy said:

I've read all 6 pages of that.

1. As far as I can see there's no mention of the cyclist being at fault for being on the dual carriageway or not raking a different route.
The only thing that comes close us a mention of "is there an expectation that their wouldn't be a cyclist on Mountbatten way?"
And that's just s response to an argument from the defence lawyer, it's not the crux of the case.

2. The case seems to pivot on the driver coming over a brow of a hill and getting blinded by the sun at the same moment he reaches the cyclist.

It's not that he was blinded by the sun but pulled out anyway.
It's that when blinded by the sun he held his lane for a few moments.

3. I'm glad I wasn't on the jury.
It seems to me it was just a tragic set of circumstances.
The driver was not being dangerous or careless.

The case has been given high profile because of an odd argument by the defence and the cycling blogs interpretation if it.

1. The alternative route the cyclist could have taken was discussed and addressed separately on the website that contains the notes. Its a simple case of one vehicle running back into the other, so what possible relevance does the route the cyclist took have on the driving of the minibus?

Fact is that the route was put to the jury as a method of pointing out that the cyclist could have avoided the accident, and thus by not avoiding the accident he is partly to blame.

2. I believe that was disputed because the minibus driver saw vehicles in front moving out to pass the cyclist. This was obfuscated by the defence imo.

3. I'd have been absolutely astonished to find I'm being instructed to ignoore the very advice in the HC which might have saved a life.

Have you read the cycling lawyers comments?:

"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."

It's down towards the bottom of the page: http://thecyclingsilk.blogspot.co.uk/

[Snowboy]

Yes, I read the whole thing. The cycling lawyers are taking one small element of the case and taking it way out of context.
At no point did a lawyer suggest the cyclist should not have been there.
They just ask whether a driver should expect to encounter a cyclist on that road.
It's not arguing fir blaming the cyclist, it's trying to be mitigating for the driver.

If I'm wrong, and the defence lawyer did suggest the cyclist was to blame 'for being there' could you tell me which page that is on and I'll re-read.
Note - one if the case lawyers please; not the commentary by a separate lawyer.

Even if you completely ignore that section of discussion it's still not an obvious case.
A hill crest, a slight bend, a low sun all meant that the driver was momentarily blinded just as he came upon the cyclist

Yes, the driver is to blame.
But is he criminally guilty of driving without due care and attention.
The jury said No.

[anonymous-user]

Snowboy said:

Yes, I read the whole thing. The cycling lawyers are taking one small element of the case and taking it way out of context.
At no point did a lawyer suggest the cyclist should not have been there.
They just ask whether a driver should expect to encounter a cyclist on that road.
It's not arguing fir blaming the cyclist, it's trying to be mitigating for the driver.

If I'm wrong, and the defence lawyer did suggest the cyclist was to blame 'for being there' could you tell me which page that is on and I'll re-read.
Note - one if the case lawyers please; not the commentary by a separate lawyer.

Even if you completely ignore that section of discussion it's still not an obvious case.
A hill crest, a slight bend, a low sun all meant that the driver was momentarily blinded just as he came upon the cyclist

Yes, the driver is to blame.
But is he criminally guilty of driving without due care and attention.
The jury said No.

Blog also says;

"Then, on day 4, the Police expert collision investigator (Ed Wilson - my add) 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."

Perhaps that admission by the Senior Investigating Officer (prosecution witness) may have been more pertinent to the jury's decision.

[tenpenceshort]

djstevec said:

Blog also says;

"Then, on day 4, the Police expert collision investigator (Ed Wilson - my add) 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."

Perhaps that admission by the Senior Investigating Officer (prosecution witness) may have been more pertinent to the jury's decision.

And there, ladies and gentlemen, is the crux of the point in that particular case.

The Jury are entitled to take the evidence and make their own decision as to whether the defendant is guilty or not.

Are we now to be told that juries aren't suitable to hear cycling cases and that only cyclists should be allowed on juries involving deaths of cyclists?

Notwithstanding that, arguing about a decision made by a jury, takes us no further at all in the debate over the judiciary's sentencing of convicted death by drivers.

[OTBC]

Snowboy said:

Yes, I read the whole thing. The cycling lawyers are taking one small element of the case and taking it way out of context.
At no point did a lawyer suggest the cyclist should not have been there.

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."

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.

http://thecyclingsilk.blogspot.co.uk/2014_04_01_ar...

Please don't comment on links you haven't bothered to read.

[heebeegeetee]

tenpenceshort said:

And there, ladies and gentlemen, is the crux of the point in that particular case.

The Jury are entitled to take the evidence and make their own decision as to whether the defendant is guilty or not.

Are we now to be told that juries aren't suitable to hear cycling cases and that only cyclists should be allowed on juries involving deaths of cyclists?

Notwithstanding that, arguing about a decision made by a jury, takes us no further at all in the debate over the judiciary's sentencing of convicted death by drivers.

I'll have to re-read to find the relevant parts, 'cos what troubled me was that the expert witness wasn't there on the morning. IIRC none of the witnesses who were there used anything like the same language. I seemed to recall that they all said visibility was good.

However, the HC gives specific advice about what to do when it is impossible to see. Common sense tells you to slow down or stop when it is impossible to see, but how many of the drivers we see out there would do that?

I think the majority would continue to drive and then describe any subsequent collision as an accident.

[SK425]

will_ said:

SK425 said:

will_ said:

I see what you are saying and in a way that is true, but by way of consequence rather than culpability. You're not punishing the motorist because they've hit a vulnerable road user, you're punishing them for an error that, as it happens, has killed someone.

Whilst I understand the principle, personally I am not overly comfortable with the "as it happens" part of that. I'm not sure that someone guilty of a similar error that, as it happens, has not killed someone should be given a particularly more lenient sentence.

Well the actual consequence must be reflected in the penalty in my opinion. "As it happens" is sometimes down to luck, but that goes both ways - bad luck to the victim, who dies, bad luck to the offender, who is (or should be) sentenced to reflect the consequences of his actions (provided there has not been a novus actus interveniens i.e. break in the chain of causation).

That's what happens now, of course, and it's difficult to see how else the punishment could be determined - do you ignore the consequence completely and thereby punish on only the top or bottom of the scale?

I know the outcome is, in fact, part of what determines the punishment and I don't imagine that will change any time soon, but when it comes to determining the sentence it is much more obvious to me what place the offender's actions and intent have in that than luck. If you and I both do the same stupid thing and, as it happens, through nothing but luck, I kill someone and you don't, I am not persuaded that that makes me a worse person than you, and I am not sure how much factors beyond how bad a person we each are should determine our relative sentences. I don't know what the purpose is supposed to be of determining sentences with reference to other factors than that.

I'm not sure about your last sentence. If you were to ignore outcome and determine punishment based on actions and intent only, the result would not be to punish everybody the same at either the top or bottom of the scale. You would look at how careless they had been - on a scale from the minimum error that could be considered an offence at all through to as careless as you can be without it being dangerous driving - and set the punishment accordingly. Which, as I understand it, is broadly how your actions are currently used to influence your sentence.

will_ said:

SK425 said:

will_ said:

Perhaps a better way of looking at it is - if you make an error, irrespective of what it is, should it matter that that error kills a motorist or a cyclist? Just because a cyclist is easier to kill doesn't mean the motorist shouldn't be as equally punished - the end result is the same, and you take your victim as you find them.

I don't agree with that. Back in the beginning of the thread tenpenceshort described a spectrum of carelessness...

tenpenceshort said:

...from almost wilfull incompetence bordering on Dangerous Driving, to a small and momentary error of judgement.

Generally speaking, it takes a level of carelessness further up that scale to kill someone who is inside another car than to kill someone who is on a bicycle. That's just a fact (albeit a generalisation). I don't think it's appropriate that someone who gets it badly enough wrong to kill another motorist only gets the same sentence as someone whose carelessness is further down the scale. That would be letting them off too lightly.

Indeed there is a range of errors, the penalties for which differ. The point is, the fact that the victim is a cyclist should be irrelevant. If you make a basic error that kills someone, that should attract a severe penalty to reflect the consequence (it's reasonably foreseeable that there will be cyclists on the road). The fact that such an error wouldn't have killed the cyclist if they'd been in a car is irrelevant.

I agree that the fact that the victim is a cyclist should be irrelevant but it's only irrelevant in this scheme of ignoring outcomes that I am hypothesising. All that would be relevant in that scheme is how far up the scale of carelessness the driver's actions were. If they were very high up the scale, the punishment would be very high up the scale, whether the victim was a cyclist who died or another motorist who survived. When outcomes influence sentencing, the victim's chosen mode of transport ceases to be irrelevant because the same level of carelessness could attract a different sentence depending on whether the victim happened to be on on a bicycle or in a car.

There is a danger here of blurring two issues which I think it is very important to keep separate. The first, and what I'm discussing, is a relative question: on what basis should one offence be deemed more or less severe than another? The question that should be kept separate is an absolute one: how severe should the sentence be for a certain severity of offence?

Saying that if you make a basic error that kills someone you should receive a severe penalty (the implication being that someone who makes a comparable error and doesn't kill someone should be allowed a less severe penalty), seems in effect to be trying to drive the answer to the first question by what you want to see for the answer to the second. That's a muddling of the two questions that I am not at all comfortable with.

Edited by SK425 on Friday 25th July 13:07

[heebeegeetee]

heebeegeetee said:

I'll have to re-read to find the relevant parts, 'cos what troubled me was that the expert witness wasn't there on the morning. IIRC none of the witnesses who were there used anything like the same language. I seemed to recall that they all said visibility was good.

However, the HC gives specific advice about what to do when it is impossible to see. Common sense tells you to slow down or stop when it is impossible to see, but how many of the drivers we see out there would do that?

I think the majority would continue to drive and then describe any subsequent collision as an accident.

Yep, page 2 has witness statements that visibility was fine. Nobody other than of defendant and expert witness says it was bad IIRC. Also witnesses say it was common to see cyclists on that route but defence try to show that it was foolhardy to choose that route.

[singlecoil]

SK425 said:

Saying that if you make a basic error that kills someone you should receive a severe penalty (the implication being that someone who makes a comparable error and doesn't kill someone should be allowed a less severe penalty), seems in effect to be trying to drive the answer to the first question by what you want to see for the answer to the second. That's a muddling of the two questions that I am not at all comfortable with.

That's very well put.

[Snowboy]

Apologies - somehow I had managed to completely miss page 2.
There is an argument about the cyclist on the road there, but it's to do with whether the driver should be looking out for cyclists or not.
It's a pretty crap argument though.
Drivers should be aware of cyclists on any road.

But, I don't think it was especially relevant in any of the final comments or the jury decision.
Certainly not to the extent that some people are implying the court blamed the cyclist for being there, but instead arguing that the driver wasn't expecting to see a cyclist.

It's just a defence lawyer doing his job.

Just like the prosecution lawyer dragged up an old case from the driver and suggested he was tired and not paying attention or didn't clear his windscreen.

As I understand these 'transcrips' were written by volunteers in the courtroom and aren't entirely that well written in terms of being court notes.


Ultimately the case just came down to the simple situation if a driver in heavy slow moving traffic being momentarily blinded at a terrible moment.
Does that warrant a guilty conviction for careless driving?

[tenpenceshort]

heebeegeetee said:

I'll have to re-read to find the relevant parts, 'cos what troubled me was that the expert witness wasn't there on the morning. IIRC none of the witnesses who were there used anything like the same language. I seemed to recall that they all said visibility was good.

However, the HC gives specific advice about what to do when it is impossible to see. Common sense tells you to slow down or stop when it is impossible to see, but how many of the drivers we see out there would do that?

I think the majority would continue to drive and then describe any subsequent collision as an accident.

Without wishing to derail the thread any further, the relevant advice in the Highway Code is not a legal requirement. It will depend entirely on the circumstances whether the driver should have stopped or not due to the sun. I would expect an occasion where all drivers heading towards the sun would be expected to come to a standstill would be exceptional. I would also expect that, unless safe to do so, stopping on the carriageway because of bright sun would be in itself careless, as it would render a collision from behind as very likely.

A jury is going to find it hard to accept that the driving was careless purely because the driver didn't feel it necessary or safe to stop on the carriageway. The test is based upon what a careful and competent driver would do? Did the defendant's driving fall below or far below that standard?

If the advice in that section applies as common sense to drivers, it should also be common sense to other road users, including cyclists. If it is obvious that forward vision is so restricted as to require careful and competent driver to stop on the carriageway, it stands to reason you are at severe risk of being hit and you might be expected to take action to avoid yourself being so vulnerable. The cyclist doesn't remain immune to responsibility for his own safety.

And that is the crux of it, to me.

[OTBC]

Petterson didn't even call the emergency services straight away. He called his father because he thought he had hit a bus stop. There are no bus stops on that road.

[heebeegeetee]

tenpenceshort said:

Without wishing to derail the thread any further, the relevant advice in the Highway Code is not a legal requirement. It will depend entirely on the circumstances whether the driver should have stopped or not due to the sun. I would expect an occasion where all drivers heading towards the sun would be expected to come to a standstill would be exceptional. I would also expect that, unless safe to do so, stopping on the carriageway because of bright sun would be in itself careless, as it would render a collision from behind as very likely.

A jury is going to find it hard to accept that the driving was careless purely because the driver didn't feel it necessary or safe to stop on the carriageway. The test is based upon what a careful and competent driver would do? Did the defendant's driving fall below or far below that standard?

If the advice in that section applies as common sense to drivers, it should also be common sense to other road users, including cyclists. If it is obvious that forward vision is so restricted as to require careful and competent driver to stop on the carriageway, it stands to reason you are at severe risk of being hit and you might be expected to take action to avoid yourself being so vulnerable. The cyclist doesn't remain immune to responsibility for his own safety.

And that is the crux of it, to me.

The problem for me is that the low sun excuse is trotted out all too frequently. In this case other drivers had no problem seeing the cyclist and didn't think visibility was a problem.

Whilst googling about on this subject I've found another case where a bus driver admitted his visibility was 20-30 yards (due to sun and frozen washers) yet he knew he couldn't stop ij that distance. He was let off; another case where the defendant blamed low sun and that the cyclist had rode off the pavement in front (in other words he couldn't see the cyclist but did see him). In that case the jury believed a witness who said none of that had happened and the defendant was imprisoned.

I remain very surprised that you can claim not guilty to careless driving when you couldn't see clearly in front nor could stop in the distance you can see to be clear.

I don't think this situation will remain the same, I think as time passes and road safety evolves this will be one of the many aspects that we look back on in amazement, similar to not wearing seat belts or no law of drink driving etc.

[tenpenceshort]

heebeegeetee said:

The problem for me is that the low sun excuse is trotted out all too frequently. In this case other drivers had no problem seeing the cyclist and didn't think visibility was a problem.

Whilst googling about on this subject I've found another case where a bus driver admitted his visibility was 20-30 yards (due to sun and frozen washers) yet he knew he couldn't stop ij that distance. He was let off; another case where the defendant blamed low sun and that the cyclist had rode off the pavement in front (in other words he couldn't see the cyclist but did see him). In that case the jury believed a witness who said none of that had happened and the defendant was imprisoned.

I remain very surprised that you can claim not guilty to careless driving when you couldn't see clearly in front nor could stop in the distance you can see to be clear.

I don't think this situation will remain the same, I think as time passes and road safety evolves this will be one of the many aspects that we look back on in amazement, similar to not wearing seat belts or no law of drink driving etc.

When was the last time you came to halt on a live carriageway purely because you were dazzled by the sun?

[OTBC]

tenpenceshort said:

When was the last time you came to halt on a live carriageway purely because you were dazzled by the sun?

I've done so while cycling. Had I decided to continue and smashed into your mother crossing the road, splitting her head open and killing her, you presumably wouldn't quibble if I offered as an excuse a blinding sun?