Monday, 20 March 2017

Legal Update Spring 2017

Contributory Negligence (1) undertaking a left turning vehicle
In McGeer v Macintosh (2017) the Court of Appeal had to consider the sadly common event of a left turning HGV colliding with a cyclist to the nearside on a city street (in this case Ellesmere Port).  The HGV had been at a set of traffic lights, indicating left, ahead of the Claimant on her bicycle.  Because of the length of his vehicle he straddled both a left/straight lane and a lane marked for turning right.  Immediately behind him was a car that obscured his rear left turn indicator.  He claimed to have looked in his left mirror before moving off when the light changed green in his favour.  The Claimant on her bicycle, travelling at no more than 16.5 mph undertook the car and then the lorry.  As she undertook the lorry its driver turned left and the collision occurred.
There was debate about whether the Claimant should have been visible in the driver’s mirror before he moved off.  There was certainty that she would have been visible after he moved off but immediately before he turned.  The Defendant disputed that he was liable at all but this was rejected.  He should have been aware of the potential for an undertaking cyclist and that his indicator may have been obscured by a following vehicle.  He should have checked his mirror before moving off and again before turning.  He was liable.
The Claimant though contributed to the collision.  She should not have made any assumption about the intended direction of the lorry.  The trial judge assessed her contribution at 30%.  The Defendant challenged this saying that the greater speed of the bicycle compared to the HGV made her responsibility the greater.   The Court of Appeal, in agreement with the trial Judge, had no difficulty rejecting this:
“I consider that whilst the judge had found that both parties were at fault in the respects identified by the judge, it was appropriate for him to take into account the causative potency of the HGV, given the likelihood of very serious injury to a cyclist in the event of a collision. Although Mr Herbert sought to discount this on the basis of the low speed of the HGV, I consider that the judge was entitled to find that it was potentially a very dangerous machine. Its size and bulk were such that in the event of collision it constituted a very serious danger to a person in the position of the claimant.”
The Court opined that this case raises no issue of law, precedent or other matters of general significance and that the result is of significance only to the parties.  However cases on the actual apportionment of liability where a cyclist has undertaken a left turning vehicle are thin on the ground and Defendants’ insurers will often seek a 50% or so reduction in such cases.  This decision reaffirms that the degree of hazard presented by the vehicle (great in the case of an HGV, very modest in the case of a bicycle) are very important factors when apportioning liability.

Contributory Negligence (2) Time trialling and failing to avoid an emergency created by another
In Rickson v Bhakar (2017) the High Court made a finding of contributory negligence of 20% against a claimant who was taking part in a time trial on the A27 dual carriageway.  The defendant driver had been travelling in the opposite direction and turned right through a gap in the central reservation into the Claimant’s path.  Although the claimant had swerved immediately before the collision it was found that he could have braked earlier.  As a consequence of his injuries the claimant was not in a position to explain what had occurred.  It was inferred that he either had his head down or was too focussed on his performance.  A tough lesson that even in the heat of competition a cyclist must be alert and ready to respond to the carelessness of other road users.

Potholes are of particular concern to cyclists.  The divergence of judicial opinion over the extent of a Highway Authority’s duty to maintain the roads is illustrated by the Court of Appeal decision in the case of Crawley v Barnsley MPC (2017).  This case involved a jogger at the weekend.  The majority of the Court of Appeal found that a Highway Authority should have in place a workable system for dealing with dangerous defects reported to them over the weekend.
Of interest more specifically to cyclists is a Surrey Coroner’s decision to make a ‘Prevention of Future Deaths’ report directing highway authorities to have specific regard to the dangers presented to cyclists by hazards anywhere in the road, and not just on cycle lanes/paths.  I will comment further once the PFD is published.

The discount rate
A significant development on the quantum of serious personal injury cases, including those affecting cyclists, is the Lord Chancellor's determination that the ‘discount’ rate whereby damages for future loss are adjusted due to receipt in advance of expenditure, be reduced from 2.5% to -0.75%.  The rate has been 2.5% since it was first set by the then Lord Chancellor in 2001.  Prior to 2001 the discount rate had been a matter for the Courts and when I started practice was as high as 4.5%.  The effect of the change is that damages for future loss sustained some years ahead (for example compensation for care needs required in the future) will be much greater.  To some extent this may be balanced by the fact that compensation for having to sink additional capital into housing to meet the needs of a disabled person are likely to be reduced or even, arguably, eliminated.
The insurance industry has been scathing about the change.  However if they had been paying attention to what has been happening in jurisdictions which apply English law, but where the Courts continue to set the discount rate, they will have noticed that negative rates have long been a feature.  The leading case was from Guernsey and just one year ago a client of mine benefitted from the Court of Appeal in Bermuda adopting the same approach.
A negative discount rate may appear counterintuitive.  It arises because the costs of, for example personal care, will increase with wage inflation.  In contrast investment in the most secure available investments, such as index linked gilts, will increase at a rate lower than wage inflation.  It is harsh to require a severely disabled claimant to take a market risk by investing in equities since she may end up investing at a peak and will have no alternative source of income from which to take advantage of any troughs.  Nor will she be able to defer realising investments to cover the wages of her carers.
Tantalisingly though the Lord Chancellor has indicated that the whole basis of her power to set the discount rate in the Damages Act will be the subject of further review.

Finally no discussion of the discount rate would be complete without mentioning the alternative, long favoured by the National Health Service, but also now more attractive to motor insurers, of providing for future needs by regular periodical payments indexed to a suitable measure of inflation.

Wednesday, 7 December 2016

The Government’s Proposals on Sentencing Bad Drivers. Plenty of Retribution but No Deterrence

On 4th December, in time for the Sunday papers, the Government issued a press release entitled ‘Killer Drivers to Face Life Sentences’.  The text below that headline proclaims that ‘Government acts to introduce life sentences for causing death by dangerous driving’.  In fact the Consultation Paper issued by the Ministry of Justice on the same day invites views on proposals which include increasing the current maximum sentence of 14 years imprisonment for causing death by dangerous driving to a maximum of life imprisonment.  It seeks views on the same increase in the maximum sentence in relation to causing death by careless driving whilst under the influence of drink or drugs.  The latter offence incidentally surely already amounts to causing death by dangerous driving but is designed to circumvent a typical jury’s peculiar reluctance, in this area, to convict.
The somewhat hyperbolic press release presumably looks ahead to the Government acting once it gets the answers it expects to its consultation exercise relating to life imprisonment for these very worst offenders.  The proposals have been welcomed by many victims’ groups who have been understandably dismayed at the operation of the criminal justice system in the worst cases.  This is though all about retribution.  Retribution is not a bad concept in itself and to the extent that the proposals go some way to lessen the anger and frustration understandably experienced by many bereaved families they are to be welcomed. 
However, nobody is going to wake up the morning after these proposed changes are implemented and resolve that they will drive better because the maximum term of imprisonment is no longer limited to 14 years.  These proposals will do nothing to reduce levels of road danger imposed by bad drivers upon others and particularly upon vulnerable road users. They are an easy fix for a Government which wishes to appear tough without doing anything to stop bad driving in its tracks before it causes tragedy.  Any solace that they may provide for bereaved families are bound to be in large part offset by the constraints upon Judges which mean that sentences of life imprisonment are never in practice going to be handed out to those who kill unintentionally.   The best that can be said is that this will align the penalties with manslaughter (which of course causing death by dangerous driving already is, though the separate offence was required because juries cannot be relied upon to convict of manslaughter even in cases where the evidence of dangerous driving leading to death is very strong).  Judges are likely to be constrained to pass sentences that will appear soft compared to the maximum penalty and further angst may arise from that.
One welcome proposal is the creation of a new offence of causing serious injury through careless driving.  That this new offence is required is demonstrated by the tragic case of May Bowers, the journalist who suffered catastrophic brain injuries but lived following being run down by an HGV.  The driver was acquitted of causing serious injury by dangerous driving.  Instead he was convicted of careless driving, a minor offence with no draconian sentencing option.  Having an alternative option of causing serious injury by careless driving will fill a gap and enable a Judge where the standard of driving has been close to dangerous to sentence appropriately.  However the proposed 2 or 3 year maximum penalty is one I would argue against.  This should be a summary offence with a maximum imprisonment of 6 months.  It would then only get to a jury when associated with a charge of dangerous driving.  Were it a more serious triable either way offence then large quantities of cases currently tried in the Magistrates’ Courts would be sent, at the election of the Defendant, to a Crown Court with a hope of attracting the empathy of a jury.  Some police forces and CPS regions have a policy of only prosecuting careless driving where there has been injury so the scale of this proposed change should not be underestimated.  In the interests of deterrence I suggest that we should be willing to sacrifice an element of retribution.  It is highly doubtful that many, if any, drivers who cause serious injury by careless driving will be imprisoned for terms exceeding 6 months (the power available to Magistrates).  Why then give them the option of a jury trial?  Indeed I have previously argued we should go the opposite way and downgrade dangerous driving which causes no injury to a summary offence so that the culprits are more speedily and reliably dealt with and taken off the roads.
A further proposal is minimum driving bans.  This is clearly required but not only in the worst cases.  We have far too many potentially lethal drivers allowed back onto the roads notwithstanding the existing legislation.  This is scandalous and the Consultation Paper ought to be doing away with ‘special reasons’ and ‘exceptional hardship’ pleas to avoid an otherwise mandatory disqualification.  If you can afford it you can get a specialist lawyer to press all the right buttons to ensure you get to continue to drive.  This is an industry that must be snuffed out on the basis that an offender should have thought about the consequences of losing his licence before committing the offence.
Overall retribution is fine, though the retribution may be more illusory, than real.  However this is a long promised review of driving offences and sentencing more generally.  It is a great pity there is nothing there that might provide real deterrence.  Real deterrence involves increasing the chance of being caught and punished for the poor driving behaviour that is far too widespread before, often as an outcome of pure chance, it causes devastation.

We need a real review of what is being done at the opposite end of the scale.  Increasing penalties for use of mobile devices (a separate Government proposal) is a useful start but a dramatically increased rate of detection and the unavailability of special pleading are essential concomitants.  The Government should find time and resources for real support of the initiatives of the police in the West Midlands and in Camden which focus on poor and intimidatory driving in the vicinity of the most vulnerable.  The Consultation paper observes that the numbers of those killed on the roads has been declining since the 1960s.  It does not include the sad fact that this is not true of vulnerable road users.  Much further positive action is required to address this.

Monday, 19 September 2016

Leigh Day Helli-va Ride

This Thursday evening a group of hardy young lawyers from Leigh Day are going to set out from Hoddesdon in Herts to start a clockwise arc down to Sevenoaks, Kent which will begin the trace of a giant 'H' inside a circle, a heli-pad sign, covering the area that the London Air Ambulance Service serves.

These lawyers are the ones likely to be looking after your financial interests if you are both unlucky enough to be involved in a collision and are a member of British Cycling, so it is nice to know not only that they can cycle but that they are superhuman too.  The ride is just over 300 miles and the team will be riding round the clock aiming to finish in 19 hours.  A remarkable pace given how much of the ride is in congested London.

Not being superhuman - I cannot do 300 miles and I cannot ride through the night and through the following day without being a liability to myself and others - I am planning merely to do the second half.  As dawn breaks on Friday morning I will link up with them just west of Epsom to complete the job.

I am apprehensive about doing half what they are doing.  Even 150 miles is the longest ride I have ever done.   So, as they are doing twice that, they really do deserve support.  So do not sponsor me sponsor them.

Also the cause is a hugely admirable one.  The London Ambulance Service relies upon charitable fund raising of this sort.  They will be there for you if you crash in London.  On a personal note I am extremely lucky they were there for me on 4th January 2014 when I came down very hard during the Imperial Winter Series at Hillingdon.

So do please support, the link is here:

Wednesday, 7 September 2016

The Criminal Justice System; How it fails us and how it needs reform

Nobody could fail to be deeply moved by hearing, as I did on Radio 4 this morning, the relatives of victims killed by dangerous drivers speaking about how they felt the killers responsible should face charges of manslaughter rather than death by dangerous driving.  The amazing charity, Roadpeace, has been calling for this for years and is now, due to recent events, at last getting somewhere with Prime Minister May indicating at today’s Prime Minister’s Questions that the Department of Justice are to review the laws relating to those who cause death by dangerous driving.
I welcome this of course.  However what appears to me to be at least as important is that the killer of Lee Martin (the cyclist whose brother was on Radio 4) was a serial offender who had been caught on 8 previous occasions texting whilst driving.  On the last such occasion just 6 weeks before he killed Lee Martin, Christopher Gard had pleaded with magistrates that he should be permitted to keep his licence to drive because otherwise he would suffer ‘special hardship’.  It is a sad sad indictment of the way in which the criminal justice system operates in relation to such relatively low level offending that his plea succeeded.
This is the worst manifestation yet of the ‘no harm done’ mentality: he was permitted to continue to drive and therefore to kill.
Gard probably thought he was a safe driver, almost every driver does.  Yes, he texted all the time as he drove but until he ran down Lee Martin no harm done and no really serious consequences to him.  Equally with drivers who close pass cyclists and/or speed excessively (I attempted unsuccessfully once to prosecute one) no harm done so why any fuss?
I heard the piece on Radio 4 just after I had written a piece for the Telegraph about the Jeremy Vine incident.  Jeremy said he reported the matter to the police because the woman involved would one day harm somebody.  He is right.  Behaviour such as that in his video and such as that exhibited by Gard leading to his previous attendances before magistrates needs to be checked BEFORE they kill.  That is why, rightly or wrongly, I expended enormous time and energy in prosecuting a man who passed me at 50-60 mph in a 30 mph zone with a clearance of 0.7 metres.  No harm done on that occasion but what about next time?
Were my life to be cut short by an offender who had transgressed before, my ghost would be haunting the people who failed to act upon the earlier minor transgressions when ‘no harm was done’ rather than those whose decisions led to nine rather than twelve years imprisonment when it was too late to save me.
I place prevention and deterrence well above retribution.  I would prefer the high likelihood of relatively minor punishment (disqualification) over the remote chance of high punishment.  It probably seemed to Gard very unlikely he would kill.  No doubt he had been texting and driving for years without serious comeback.  He would have been more likely to be deterred by meaningful punishment for minor infraction than the remote prospect of serious punishment if he killed.
This is why I believe the review should not just look at throwing the book at the worst offenders but also at making a serious effort to crack down on relatively low level offenders who have not yet killed but whose casual texting, close-passing, speeding etc. increases the risk that they will kill or seriously harm in the future.  We have made some progress in recognising that drink drivers need to be taken off the road even if ‘no harm done’.  Do let us extend this and take away the privilege of driving from those who are likely to harm.  A review of the absurd system of pleading ‘special reasons’ to keep a licence to drive notwithstanding serial offending would be a useful start.  In addition the equally absurd view adopted by many police forces that if there is no injury due to careless or dangerous driving then it is not in the public interest to prosecute must be jettisoned.

Stiffer sentencing for manslaughter / dangerous driving captures the public mood and politicians’ interest but let us not forget that the kid-glove treatment of relatively minor offending left Gard to kill Lee Martin in the first place.

Saturday, 9 April 2016

I have not yet had my mind changed on jury trials

My last piece on jury trial in dangerous driving cases has sparked some lively debate.  I have enjoyed some interesting discussion with well-informed people some of whom agree some do not, as of course is their unqualified right.
It is not a piece that has gone down well with all my colleagues practising at the criminal bar.  It is perhaps worth my making the following points by way of response.
We all have a right to a fair trial.  I agree that if we are at risk of going to prison for a long stretch we should all have the right to a jury.  However it is possible to have a fair trial without a jury.  In Scotland (for example) the Defendant has no right to insist on a jury in offences triable either way like dangerous driving.  One possible solution may be to leave the Magistrates with the option of determining mode of trial and selecting summary trial where they are satisfied their powers of punishment are sufficient.  International War Crimes are not tried by juries.  Lack of jury does not equate to lack of justice.
There has been a suggestion that as I am not a Criminal Lawyer I have no right to voice my opinion on criminal law and procedure.  I refute that.  I am a personal injury lawyer who often meets the spouses, parents and children of those killed on our roads as well as other victims of bad driving.  I have sufficient perspective to appreciate that dissatisfaction with the current system is close to universal amongst the victims of such crime.  I do not pretend to be sure about what the solutions are but looking at speedy, effective and affordable ways of parting dangerous drivers from their licences seems to me a valid start.  Clearly this is no laughing matter and some of the flippancy I have encountered is deeply inappropriate.  I have never claimed to be a criminal lawyer and in an open democratic society we are all entitled to express our views on crime and the criminal process.  I do not scoff at those who express views relating to the areas of law in which I practice.
Alongside complaining of my lack of experience in criminal law is the complaint that I have recent experience of prosecuting a dangerous driving case which led to an acquittal.   Again I have never hid that and I cheerfully concede that I think that the Magistrates’ Court would have been a more appropriate place to have had a trial in that case.  It would unquestionably have been faster and much cheaper (a relevant factor perhaps since by way of distraction complaint is made about my costs of so doing).  Incidentally I have been unfailingly polite to those who wish to see their own favoured change in the current law on the recoverability of such costs and even argue (unlike me) that their proposed changes should act retrospectively.
There has been innuendo that my private prosecution should never have been brought.  That too I refute.  There are numerous safeguards to prevent private prosecutions where the evidence is not strong, or the public interest not served, from going to a jury.   Criminal lawyers understand this but one or two persist in asserting that the fact that the police did not prosecute implies that I should not have done.  The fact is that acquittals against the strength of the evidence trickle down through the system to affect decisions to charge.
It has been suggested I have no evidence to support my arguments and/or that I have singled out driving for no good reason.  There have been plenty of cases involving motorists and vulnerable road victims where the results have been disquieting and I cover very many of them in my blog.  My article expressly explains that the ‘There but for the grace of God’ empathy applies peculiarly to driving cases.  Since writing the piece I have been contacted by many people engaged in the criminal justice process in just about every way whose experiences confirm there is a problem to be addressed.

I am very open to persuasion that my views are wrong but so far have seen far more heat than light expressed by those content with the status quo.  I think I have dealt with most of their arguments as I understand them.

Friday, 8 April 2016

It is time to rethink a Defendant’s right to a jury in driving cases

It is time to rethink a Defendant’s right to a jury in driving cases
Trial by a jury of one’s peers when accused of serious crime is a bed rock of the English legal system.  Nonetheless in general you can incur a punishment of up to six months’ imprisonment following conviction by the Magistrates’ Court.  In the context of road traffic offences only the most egregious of offenders faces anything like six months in jail.  Most Defendants charged with a traffic offence like dangerous driving or causing death by careless driving which are triable ‘either way’ (that is, by magistrates or Judge and jury) will be advised, correctly, that they stand a much better chance of acquittal before a jury.  This is a massively expensive and rather slow way of determining whether or not a Defendant should lose his licence and face a non-custodial penalty.  In addition jury acquittals in the teeth of strong evidence particularly where the harm has been to a vulnerable cyclist or pedestrian do nothing to bolster confidence in the criminal justice system, let alone to improve actual and perceived safety on our roads.
In recent weeks juries have acquitted a lorry driver who ran down an elderly pedestrian couple crossing a road in a shopping centre car park (death by dangerous driving), a lorry driver who turned left at Ludgate Circus without ensuring there was no cyclist on his nearside (death by careless driving), a car driver who passed a group of cyclists colliding with one and then driving into him when he sought to remonstrate (dangerous driving and assault).  Often the juries acquit in under an hour in such cases heightening disquiet as to the result. 
Juries will of course sometimes convict particularly where a vehicle occupant is plainly endangered.  In a very recent case a jury convicted Melissa Berry of dangerous driving.  She had terrified her passengers with a sustained period of very high speed (up to 120 mph) driving in the lanes of Devon and hit a wall spinning her car onto its roof.   She was sentenced to 12 weeks’ imprisonment which was suspended and so was very comfortably indeed within the powers of a Magistrates’ Court.  There must be a serious question over whether she would have persisted with a ‘Non Guilty’ plea had she not had a jury trial.
The position has really not improved, arguably it has worsened, since the way in which the justice system dealt with the drivers who killed Rob Jefferies and destroyed the life of Mary Bowers caused such legitimate concerns to British Cycling and The Times Newspaper respectively.  Although some driving offence penalties have been increased, the vanishingly small prospect of conviction negates any real deterrent effect.
The problems with jury trial for motoring offences are as follows:
1.      1.  Motoring offences are far more likely than other serious crimes to invoke empathy and compassion from a jury.  “There but for the grace of God go I” is not a thought likely to cross many jurors’ minds in cases of murder, rape, terrorism or knife crime.  The law excludes people who have served significant prison sentences in the past 10 years from sitting on a jury.  It does not exclude the significant proportion of the population who have been (fairly or unfairly in their view) subject to minor penalties for road traffic infringements.  In addition we live in a motor centric society where the overwhelming majority of jurors can be expected to be drivers, many of whom will have been subject to lapses of concentration or worse whilst operating a motor vehicle.  Far fewer will have similar levels of empathy to a non-motoring (and particularly a cycling) victim.  Feelings of empathy with and compassion for an accused may confound justice in a hidden way that is far less likely where, as in a Magistrates’ Court, reasons for a decision are required.
2.       2. Juries have no influence over, and perhaps little understanding of, the sentence likely to be imposed if they return a guilty verdict.  They may be aware that on conviction the maximum sentence for dangerous driving is 2 years and feel that imprisonment would be disproportionate to the offence.  A disinclination to expose a person with whom they may have empathy to possible imprisonment may influence their verdict.
3.       3. The resources devoted to a jury trial for a motorist charged with dangerous driving are disproportionate.  A jury trial is expensive.  A trial that would take one day before Magistrates is likely to take three days before a jury.  This is not a wise allocation of limited state resources.
4.      4.  Delays in the Crown Court are unavoidable particularly where, as is overwhelmingly likely in driving cases, the Defendant is not remanded in custody.  Whatever the aspirations of the Criminal Procedure Rules it typically takes 6 months from the initial hearing in a Crown Court to a trial.  There is some research evidence that certainty and speed of punishment are more important factors in deterring crime than the severity of punishment.
5.       5. There are now separate offences for causing death by dangerous driving and for causing serious injury by dangerous driving.  A dangerous driving charge simpliciter will therefore only arise where there has been no death or serious injury.  Whatever the sentencing guidelines say, Judges are most unlikely to impose sentences beyond the powers of the Magistrates’ Court, following conviction on a dangerous driving charge where no death or serious injury has resulted.  There are strong arguments that the best form of punishment in such cases is a period of disqualification in respect of which the powers of the Magistrates and of the Crown Court are the same.
6.       6There is a very considerable temptation on the part of prosecutors to undercharge cases, or even not to charge, in order to avoid a trial by jury.  This is undesirable.  The offences of careless or inconsiderate driving (for which a Defendant cannot elect jury trial) are relatively minor offences designed to deal with momentary inattention, queue barging, middle lane hogging, splashing pedestrians and the like.  Dangerous driving that fits the statutory definition of driving far below the careful standard and in a manner in which danger should be obvious, should be charged as such.  According to the Crown Prosecution Service typical examples from court cases of dangerous driving include going too fast, driving aggressively, ignoring road signs, overtaking dangerously or being avoidably and dangerously distracted.  The CPS have just dropped a dangerous driving charge against a pop star accepting a guilty plea to drink driving instead.  The perceived difficulties in securing convictions in motoring offences have a knock on effect whereby the Police, who have the ability to decide on no further action in any case and who will perhaps even overestimate these difficulties, will often fail to take any action when they should.  The Transport Select Committee has, in its recent report on Road Traffic Law Enforcement, called on the Home Office to commission research into how complaints of collisions or near misses involving cyclists are handled by the Police and how this impacts upon the proportion of people who believe it to be too dangerous to cycle.  
    It is suggested that there is a clear case for removing the right to a jury trial from those charged with dangerous driving.  This could be at the discretion of the Magistrates as proposed by Jack Straw in respect of triable either way offences in 2000.  It should be noted that in Scotland the mode of trial in either way offences is already not (solely) up to the Defendant as it is in England. 
    Many of the same arguments could apply also to causing death by careless driving where again the likely punishment if convicted falls within the competence of a Magistrates Court.  Causing serious injury by dangerous driving and causing death by dangerous driving are much more serious offences although it should be borne in mind that the most serious of these could, and perhaps should, be charged as cases of assault occasioning grievous bodily harm and manslaughter respectively.  If reforming dangerous driving proves to be successful in terms of better deterring the crime then extensions to other driving offences could well be considered.  It would, of course, be essential to take full account of the views of victims and their representatives before extending any reform to the offences which involve causing death or serious injury.
    We must certainly do something.  A whole generation of citizens is being brought up to be driven everywhere, particularly to school, on the grounds that active travel is perceived by their parents to be too dangerous.  This attitude then continues into adult life and into the jury box.  It is a small minority of bad drivers responsible for this perception and they must be tackled.

Martin Porter QC is a leading personal injury/clinical negligence lawyer practising at 2 Temple gardens, London.

Thursday, 31 March 2016

Lessons from a Private Prosecution 2(b) The Evidence Required

This is possibly the hardest section to write because it could so easily descend into a re-trial of the case or a moan about the result.  That is not the intention.  It may however be helpful to indicate what evidence I had.  It is central to the considerations as to whether I could or should have acted differently.  Some have suggested I never really stood a chance and I will in a future post consider whether that should have been obvious and affected the charges.

The evidence has to be strong, very strong and then if you can stronger still.
I think in hindsight my evidence was simply strong.
My own perception at the time (unaided by the film which I only saw subsequently) was that the car was going very fast and was very close.  Sufficiently so to report it at once to a fortuitously present Surrey police officer.
Obviously I needed corroboration from the film.  In hindsight the camera is too wide angle because first impressions are hard to shift even with logical analysis.
Thirdly I had my Garmin data which gave a very accurate reading of my speed and against which a comparison of the car's speed could be made.  Strava link , this and all the underlying data was disclosed.
I had solid identification evidence from the Surrey PC, though the Defendant persistently refused to accept his evidence.
Subsequently I got expert evidence but that will be the subject of a future post.  I have mentioned it below in [ ] to put the factual evidence in context.  In the interests of costs I did not get the expert evidence until it became inevitable that a trial was needed.
I was and remain of the view that the prosecution should be strong on the factual evidence.  The expert evidence was the icing on the cake obtained after the case had passed the tests set both by the CPS and the Judge.

What's required for a charge to reach a jury?
Historically charges would be left to a jury where there was a case to answer i.e. a reasonable jury could convict on the prosecution evidence.  This is still the test applied by a Judge who must stop the case if this threshold is not met.
After the creation of the CPS in about 1986 the test applied by them was two-fold, an evidential and public interest test.  The CPS evidential test requires "that an objective, impartial and reasonable jury, properly directed and acting in accordance with the law, is more likely than not to convict the defendant of the charge".   Note this is a significantly more restrictive test than that applied by a Judge in considering whether to dismiss a charge.
For a time private prosecutions that satisfied the case to answer test could proceed to a jury even if the CPS evidential test was not met.  However this all changed with the landmark and somewhat controversial decision of the Supreme Court in Gujra v DPP in 2012 when the Court endorsed new CPS guidelines which meant that they would take over and discontinue any private prosecution that did not pass their more restrictive test.
So there is no point starting a case where your evidence is not such that an objective impartial and reasonable jury is not more likely to convict than to acquit.  The test does not, however, require you to anticipate any lack of objectively or impartiality that may be encountered.

Anything missing?
All the prosecution evidence has to be disclosed in advance before the Defendant commits himself to any account of himself.  In a public prosecution it is part of the police job to interview a suspect under caution.  He will usually give an account and this may very well be demonstrably false but, even if not, will probably rather limit what alternative accounts he can give at trial.  Even if he says nothing in interview then comments can be made about a failure to mention something later relied upon in his defence.  Of course if the police have not interviewed the private prosecutor is in a significantly weaker position.  (There had been some limited correspondence between Mr Kayardi and the Metropolitan Police but neither side was willing to reveal this to me).  Mr Kayardi said in his evidence that the police had told him "Don’t worry about it, there’s nothing there".  Strictly the opinion of the police on the matter is not admissible evidence at all but it was relied upon very heavily by the Defendant to an extent I had not foreseen.  I have noticed shades of this in other cases where the police decided against prosecution even if a public prosecution nevertheless took place thereafter.
There is a requirement now for a Defendant to file a 'Defence Statement' but in my prosecution this said absolutely nothing that 'Not Guilty' did not already say.
Furthermore nobody seems to worry too much about a Defendant not putting his case to prosecution witnesses who might be in a position to contradict what the Defendant proposes to say.
Thus having carefully ascertained (as he was entitled to do) that I had no further evidence (or film evidence in particular) the Defendant gave in his evidence an account that having spoken to the police I filtered through some cars to 'cut him up'.  He also gave an account that he was being tailgated by a queue of traffic behind and that one driver was impatiently hooting so that he felt he had to pass me for my own protection.
He then added, again for the first time, that he had straddled the centre line with half his car either side.  His car presumably jumped half a car width sideways before the first frame where his headlamps come into view and skilfully avoiding a head on crash with the oncoming traffic.
None of that mentioned before or put to me or the PC or put to the expert.
So the lesson is if you stop the camera at one point, it is quite likely to be alleged that you were doing something wrong immediately thereafter.  Alternatively if you only have a forward looking camera it is likely to be alleged that something significant was happening behind.  You as a prosecutor/witness will not get any opportunity at any stage to comment or have your witness or expert comment upon what is said.
Accordingly I now commute with a rear facing as well as forward facing camera and if reporting an offender again will keep a back up copy of a much longer stretch of my ride.  You can expect any gaps to be exploited.

The film
Taken with a Contour HD camera fixed to my handlebars.  My own analysis of this film by reference to the centre lines and to my own speed (19mph) was that the car was travelling 3 x my distance in any given number of frames (thus 57mph).  [A careful analysis in due course by an expert making every assumption in the Defendant's favour (as he should) was 51- 57 mph.]
I knew he had passed within a metre or I would not have regarded it at the time as so out of the ordinary.  However the film does not on casual inspection demonstrate how close and I initially reported to the police within a metre as the best I could do.  [Again careful analysis by the expert concluded 60 - 80 cm clearance excluding the car's mirror.  Given the consequences of being whacked by a wing mirror at 50-something miles an hour it seems reasonable to say the clearance was approximately 0.5m.].

Here it is.  Please respect my copyright, though I have no problem with links back to this site.
(c) Martin Porter

The next post will look at reporting the incident.