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.


  1. Dear Martin. Sterling work on writing up this bitter case. I read your review of suitable cameras for bikes so I'm surprised you didn't have a rear camera on your stem. I recall vaguely that you thought the fish eye nature of some cameras and the need for two views would be important for the cps to proceed with a prosecution following nay offence.

    1. Thanks. Doubly annoying as I did not bother to follow my own advice.