661-Pete wrote:Yes - I see that all right. But of course it doesn't explain how the guy referred to in this thread, who was prosecuted, got acquitted, after a full trial before a jury. Unless the CPS were negligent in not presenting enough evidence?
I don't think that that follows. I'm saying that there's a question of norms. eg Driving and texting is now accepted by many people as the norm, even though it can objectively be shown to be dangerous, in much the same way as drink driving. The big difference is that with drink driving, the objectivity in terms of evidence is provided by testing and scientific analysis. With an allegation of "bad driving," no matter how good the evidence or the advocate presenting it, if the jury believes the driving was OK, that's the end of it. I'm blaming the CPS for having led the way when the investigation of the majority of crashes was abandoned. I'm completely out of touch now, of course, but it's my impression that recently the CPS has tried quite hard to retrieve the situation, at least in KSI prosecutions, but as I've suggested on the current Michael Mason thread, we're past the point of no return.
I've a friend who is a magistrate. She texts while driving and things there'e nothing wrong with the practice.
'Give me my bike, a bit of sunshine - and a stop-off for a lunchtime pint - and I'm a happy man.' - Reg Baker
thirdcrank wrote: The big difference is that with drink driving, the objectivity in terms of evidence is provided by testing and scientific analysis. With an allegation of "bad driving," no matter how good the evidence or the advocate presenting it, if the jury believes the driving was OK, that's the end of it.
I was impressed with evidence for use of the phone. As with alcohol use, it was AIUI an open and shut case: texting is illegal and dangerous, the defendant was texting at the time of the accident and there was clear evidence of this. The shock to me in this case is that the jury then went on to find him not guilty. Had the jury found the same person not guilty in a drink driving case (i.e. causing death), surely there would have been some intervention possible? Or are we saying that even if the person had been several times over the limit, he could only have been charged with that (drinking while under etc), not with causing death?
When the pestilence strikes from the East, go far and breathe the cold air deeply. Ignore the sage, stay not indoors. Ho Ri Zon 12th Century Chinese philosopher
The breathalyser analogy only goes so far. Breathalyser cases are summary only, so they never go to a jury. The rules about the secrecy of jury deliberations mean we'll probably never know the way this verdict was reached. Speaking generally, the prosecution has to prove the offence charged. In this case, that was causing death by dangerous driving, with an alternative count of causing death by careless driving. AFAIK, there's no doubt that in this case that it was the defendant's driving which killed the deceased ie the defendant didn't coincidentally die of, say, natural causes. Nor was it suggested that somebody else was driving. So the crux of the case was whether or not the defendant's driving fell below / well below, the current norm. (Exact wording of legislation linked above.) By returning a not guilty verdict, they showed that they were not satisfied that the prosecution had proved the case to the criminal standard. In plain English, the jury accepted that texting while driving did not amount to "bad driving." Verdicts like this are quoted as one of the strengths of the jury system in maintaining individual freedoms in the face of the power of the state.
IIRC that legislation was introduced because it was too difficult to prosecute the outcomes of mobile phone use at the wheel as careless/dangerous driving. So the prospect of a fine and points on your licence for simply being caught would be enough to deter people. IMO that simply has not worked.
Drivers who use a mobile phone, whether hand-held or hands-free:
are much less aware of what's happening on the road around them fail to see road signs fail to maintain proper lane position and steady speed are more likely to 'tailgate' the vehicle in front react more slowly, take longer to brake and longer to stop are more likely to enter unsafe gaps in traffic feel more stressed and frustrated.
They are also four times more likely to crash, injuring or killing themselves and other people.
From my own observations there are very many drivers who are quite happy that being four times more likely to crash, injuring or killing themselves and other people is a risk worth taking.
High on a cocktail of flossy teacakes and marmalade
Leaving aside the fact that the jury could acquit him if they so chose (something I would personally be keen to defend), does anyone know what was put forward as an alternative explanation of the cause of the collision? On a newspaper comments page, someone had suggested that if it wasn't careless driving it had to be murder (i.e. deliberate) as there was no other explanation. And the jury, for this reason alone, were right to acquit him of careless or dangerous driving.
When the pestilence strikes from the East, go far and breathe the cold air deeply. Ignore the sage, stay not indoors. Ho Ri Zon 12th Century Chinese philosopher
Since posting about the reasoning behind this verdict, I've found this in the CPS guidance.
Although proving causation in fatal collision cases can, on occasion, be straightforward, prosecutors should be alive to the fact that it is possible, (though this is likely to be extremely rare), for a vehicle to be driven carelessly or dangerously without the careless or dangerous act or omission being causative of death. For example, causation may not be made out where a driver was avoidably distracted by something in the car, and suddenly a pedestrian stepped out into the road and was so close to the drivers car that a collision was inevitable, even if the driver had been paying full attention. Here, the death that occurred was unavoidable, irrespective of the manner of the driving. (My emphasis.)
“I realised it was a cyclist on the pavement on my left hand side. He started to come off the pavement and I started to react. I started to brake and steer around the cyclist.
“It was all very quick but it seemed to me he had adjacened (sic) out slightly from the lane he should have been on.”
He told the jury that Daniel had turned around and looked behind him “just before it (the van) struck the bike”.
“He just came out more than I expected. I spiked my brakes," he added.
It would appear that the driver believed the fault for the collision lay with the deceased's standard of cycling. It would appear that the jury agreed.
I believe this is a form of SWISS as defined by TonyR. Dead men can't apportion blame.
High on a cocktail of flossy teacakes and marmalade
I hope they also got the driver to display his one handed without looking texting ability and compared the spelling etc with the standard of messages he'd been sending, then got him to read out a text, one handed, without looking.
Another curious aspect of his case is that I assume that the family can (perhaps) claim the cost of the damage to the bike from the driver's insurers (this would be normal in the case of a rear shunt) even though they wouldn't be able to claim for any damage to the lad himself. And the deceased would have been able, had he lived, to have done the same. In any case, in the event of an insurance claim the driver would have been deemed to be at fault (I presume). I don't know why the court would find that the driver wasn't at fault. It's a strange distinction IMV. Is this not where a private civil claim for damages often comes in (rather than a private prosecution)?
When the pestilence strikes from the East, go far and breathe the cold air deeply. Ignore the sage, stay not indoors. Ho Ri Zon 12th Century Chinese philosopher
A rear shunt doesnt always mean the person behind is liable, this is often claimed to be the case but that is an expectation rather than a rule.
I think that in this case, if the claim that the cyclist jumped off the pavement is believed, then the driver probably will not be held liable for the damage. It is not as if he was driving too close behind the cyclist and failed to brake in time.
beardy wrote:A rear shunt doesnt always mean the person behind is liable, this is often claimed to be the case but that is an expectation rather than a rule.
I thought it was a default position but you are no doubt right.
When the pestilence strikes from the East, go far and breathe the cold air deeply. Ignore the sage, stay not indoors. Ho Ri Zon 12th Century Chinese philosopher
gaz wrote: ... It would appear that the driver believed the fault for the collision lay with the deceased's standard of cycling. It would appear that the jury agreed.
I believe this is a form of SWISS as defined by TonyR. Dead men can't apportion blame.
That sounds right. Sometimes, evidence of a deceased's conduct will come from independent witnesses or it may be self evident, eg if the deceased collided with the side of a vehicle which had already partially passed them. The alleged texting was relied on here by the prosecution as evidence of "avoidable distraction" so the jury must have accepted that the driver wasn't distracted and thus they could believe his evidence about the behaviour of the rider.
gaz wrote: ... It would appear that the driver believed the fault for the collision lay with the deceased's standard of cycling. It would appear that the jury agreed.
I believe this is a form of SWISS as defined by TonyR. Dead men can't apportion blame.
That sounds right. Sometimes, evidence of a deceased's conduct will come from independent witnesses or it may be self evident, eg if the deceased collided with the side of a vehicle which had already partially passed them. The alleged texting was relied on here by the prosecution as evidence of "avoidable distraction" so the jury must have accepted that the driver wasn't distracted and thus they could believe his evidence about the behaviour of the rider.
I've done jury service once about 5 years ago. Reading about one of our cases in the paper a colleague at work said how did they find him not guilty. If all we'd had to go on was what the paper had chosen to print we'd have found him guilty. Fortunately, as with all juries, we heard all the evidence. I suspect if any reasonable person heard all the evidence in this case they might find the verdict more understandable.
'Give me my bike, a bit of sunshine - and a stop-off for a lunchtime pint - and I'm a happy man.' - Reg Baker
