Monday, 8 October 2012

Justice for cyclists: one possible small step forward, two big steps back

The cycling lawyer continues to explore the unacceptably low penalties handed out to drivers for killing a cyclist, a topic which is being raised in parliament (more details here). Even judges sometimes express deep frustration at the limits placed upon their sentencing power

But while this latest effort to reform the law is very welcome, I wonder how many people are aware that the Crown Prosecution Service is currently seeking to limit the prosecution of some drivers involved in fatal collisions or who have, for example, driven at reckless speeds.

PLANS for bold legal reforms could see fewer emergency services personnel charged with criminal offences over their response to 999 call-outs. Draft Crown Prosecution Service (CPS) guidance today suggests it is should be‘very unlikely’ police, fire and ambulance workers are prosecuted for committing driving offences while responding to call-outs. The draft guidance also suggests there may be no public interest in charging people in cases where members of their family or close friends are killed – as they will already have suffered ‘overwhelming grief.’ The consultation ends on November 8. 

I stumbled upon this revelation in a local newspaper account of a police driver who was found not guilty of dangerous driving.

These are some of the reforms which the CPS is proposing to introduce. Personally I think they will end up making our roads more dangerous, and reinforce the message that criminally reckless, even lethal driving, is not so regarded by the justice system. In the case of fatal collisions involving the death of someone close to the killer driver, the CPS is proposing to water down the current law as follows:

Whilst the serious nature of these cases usually means that a prosecution will be in the public interest, prosecutors must acknowledge the greater emotional impact felt by a driver where the death he/she has caused is that of a relative or someone with whom they share a close personal/family relationship. These types of cases are more commonly referred to as "nearest and dearest" cases. Where the degree of culpability of the driver is low and the fatality was as a result of the standard of driving falling below that required by law with no evidence of danger to other road users, it is unlikely that a prosecution will be in the public interest. Examples of this may include minor errors of judgement such as failure to look properly before turning at a junction due to a momentary lapse of attention; or, where the illegality arose as a result of a genuine mistake on the part of the driver, for example, a mistaken belief that he/she was insured. The same conclusion would be appropriate where a driver demonstrated a higher degree of culpability (i.e. slightly more than low culpability) but there was no evidence of continuing danger to others. For instance, where an individual is tuning a car radio and is distracted by this and a fatality ensues. 

This shows that the CPS is institutionally on the side of the criminally inattentive driver. The roads are crammed with drivers whose attention is not focused on the road ahead, yet the CPS is proposing to exempt some of them from prosecution. In any case, the notion that innocent drivers suffer from ‘a momentary lapse of attention’ is garbage – this is the feeble excuse wheeled out every time by the classic dangerous driver who regularly drives in a criminally reckless and negligent way and then, when sooner or later they end up in a collision, sob that they were momentarily distracted.

As for the emergency services:

In the course of their duties, police officers, ambulance drivers and fire-fighters may need to drive a vehicle in response to an emergency in a manner which would otherwise be considered unacceptable. It is very unlikely to be appropriate to proceed with a prosecution on public interest grounds if a police officer, ambulance driver or fire-fighter commits a driving offence while responding to an emergency call unless the driving is dangerous or indicates a high degree of culpability. There will sometimes be cases when a person who is not a member of the emergency services will have to drive in response to an emergency situation. For example, a parent taking a sick child to hospital. As with members of the emergency services, the considerations outlined above will also apply in these cases. 

If this exemption is granted to drivers who are not members of the emergency services then I feel sure we’ll be hearing lots of reckless drivers involved in a crash using the ‘my child was unwell and I genuinely felt it was an emergency’ alibi.

As for the professionals. The police are involved in high-speed collisions, sometimes with fatal consequences, with alarming frequency. Indeed

Each day in London, an average of 12 road traffic accidents take place involving vehicles belonging to the Metropolitan Police, according to figures obtained by the Daily Mail, resulting in the deaths of 22 people, including five pedestrians and one cyclist, during the past three years. 

The notion that police drivers responding to emergencies have in the past been unreasonably and mercilessly prosecuted by the CPS is a myth. Most of the time they are never prosecuted at all.

The local case that sticks in my mind is the killing of an elderly pedestrian in Chingford three years ago. Brian Elton was killed while walking across a very wide road with clear sightlines for approaching drivers. The investigation of his killing by an un-named police driver was less than transparent. The toothless, dysfunctional and utterly discredited IPCC (which is stuffed with ex-police officers) rushed to exonerate the killer driver. Two very salient issues were never made public. What was the speed of the police car in this 30 mph zone? What was the nature of the emergency that the police officer was responding to? These are reasonable and valid questions which I think it is very much in the public interest to know the answers to, but they never will be answered because there are no systems in place to bring them out into the open.

Finally, cop this.

 The story behind this video is here.