Hit from behind.

[beardy]

It appears that those who are supposed to speak on our behalf are taking an interest in it

This is certainly one of the options that the Cyclists' Defence Fund is considering supporting.

However we have flagged up via Martin Porter that there are other possible ways of securing justice for the family, that they may also wish to consider.

One option in particular may be a more effective way to challenge the apparent police failing in this case, while potentially paving the way for a stronger private prosecution case.

We will update once we have greater clarity on the legal position and the views and wishes of the family.

Roger Geffen, CTC and Cyclists' Defence Fund

Posted yesterday on Martin Porters reply page.

[thirdcrank]

Light at the end of the tunnel.

(And thanks to beardy for linking to that.)

No matter what the result of the this case, I still hope that the question of the requirement or otherwise of the police to consult the CPS after a fatal collision will be clarified and that if the lack of such consultation conforms with current policy, then there should be a campaign to change that policy.

[Edwards]

I am wondering what the families position was between the incident and his death. I did not read any thing about it in the original linked article.

In MrsEs case a decision not to prosecute was taken after consultation with her a few days afterwards. She agreed to a driver improvement program rather than prosecution, so that is what happened.

I do not know what the position about prosecution would have been if she had died sometime after.

[Steady rider]

What is to be done?

A very good question. Previously I suggested that reports should be obtained;

1) drivers details and medical report
2) vehicle details
3) accident report for time and location
4) witness or statement details

Assuming using the existing coroners court,

The coroners court would have the power to summon people to appear in connection with the death. Person driving a vehicle or others legally obliged to answer questions to the best of their knowledge.

The coroners court then decides if a charge against any person should proceed.

The police would function to provide the 4 reports and any details required. All details open to public inspection. This would be a simple system. It would not depend on relatives having to decide or the CPS or Police. The coroner having seen the reports and witness evidence could decide if someone may have been at fault and if there was reasonable supporting evidence and should face charges. Once decided by the coroner and recommended charge, the CPS could process the case.

An appeal process could exist in case of disputes.

[Shootist]

Some possibly interesting extracts from the CPS guidance on Road Traffic Offences.

http://www.cps.gov.uk/legal/p_to_r/road_traffic_offences_guidance_on_prosecuting_cases_of_bad_driving/

Referral of Fatal Collision/Manslaughter Cases

To ensure consistency of approach, charging decisions in all fatal collision cases should be approved by a Chief Crown Prosecutor (CCP), Deputy Chief Crown Prosecutor (DCCP) or nominated senior decision maker (who will have been nominated for this role by their CCP/DCCP).

Inquests

Section 16 of the Coroners Act 1988 (as amended by section 20(5) of the Road Safety Act 2006 - RSA 2006) stipulates that a Coroner must adjourn an inquest where a person is charged with any of the offences below:
causing death by dangerous driving;
causing death by careless driving while under the influence of drink or drugs;
causing death by driving while unlicensed/disqualified or uninsured;
causing death by careless driving.

The inquest should not take place until the conclusion of the criminal proceedings unless there is a reason to proceed with it.

Section 16 of the Coroners Act 1988 does not apply to fatal collisions where section 3 of the RTA 1988 (driving without due care and attention - careless driving) has been charged because in such cases it cannot be shown that the driving caused the death.

Causing death by careless or inconsiderate driving

The offence of causing death by careless driving under section 2B of the RTA 1988 is committed when the manner of the suspects driving causes the death of another person.

The definition of this offence is linked to the provisions of section 3ZA of the RTA 1988. The section stipulates that a person is to be regarded as driving without due care and attention if (and only if) the way he or she drives falls below what would be expected of a competent and careful driver.

The clear difference between this offence and an offence of causing death by dangerous driving is the standard of driving. For causing death by dangerous driving, the standard of driving must fall far below what would be expected of a competent and careful driver; whereas for this offence the standard of driving must merely fall below what would be expected of a competent and careful driver.

Driving without due care and attention

The offence of driving without due care and attention (careless driving) under section 3 of the RTA 1988 is committed when the defendants driving falls below the standard expected of a competent and careful driver - section 3ZA(2) of the RTA 1988.

The maximum penalty is a level 5 fine. The court must also either endorse the drivers licence with between 3 and 9 penalty points (unless there are "special reasons" not to do so), or impose disqualification for a fixed period and/or until a driving test has been passed.

In determining what is to be expected of a competent and careful driver, the prosecutor must take into account not only the circumstances of which the driver could be expected to be aware, but also any circumstances shown to have been within the drivers knowledge.

The test of whether the standard of driving has fallen below the required standard is objective. It applies both when the manner of driving in question is deliberate and when it occurs as a result of incompetence, inadvertence or inexperience.

Occasionally, a collision may occur but there is no evidence of any mechanical defect, illness of the driver, or other explanation to account for why the collision happened. In these cases, a charge of careless driving may be appropriate, but prosecutors should exercise caution.

If the evidence is capable of proving how an incident occurred (e.g. a collision), the case can be put on the basis that there is a very strong inference that the defendant was driving below the standard expected of a competent and careful driver.

In the absence of any explanation by the defendant as to the cause of the collision, a court may infer that the offence was committed, but where the defendant does provide an explanation for the collision, however unlikely, you will have to consider whether to proceed.

The civil law doctrine of res ipsa loquitur [the thing speaks for itself] has no direct application to the criminal law. (But see Wilkinsons at para 5.52):


"the fact that res ipsa loquitor has no application to criminal law does not mean that the prosecution have to negative every possible explanation of a defendant before he can be convicted of careless driving where the facts at the scene of an accident are such that, in the absence of any explanation by the defendant, a court can have no alternative but to convict"

But, of course, it wasn't referred to CPS for some reason.

[beardy]

The Police seem to have accepted the explanation that she did give.

"I didnt see him".

[thirdcrank]

The Police seem to have accepted the explanation that she did give.

"I didnt see him".

Apart from the fact that you are speculating, as shootist has already pointed out earlier, that's not a defence but almost amounts to an admission. One exception which juries have sometimes accepted when the CPS hasn't, is when something has happened to blind the driver suddenly, perhaps the most notorious example from a forum perspective has been the sun in the eyes explanation.

shootist has provided a good set of links IMO, including one saying that "fatals" must be referred to the CPS. (I would say that because it's all the stuff I'm often hammering on about.)

While I'm on I'll offer a bit of history about the next bit quoted by shootist.

The civil law doctrine of res ipsa loquitur [the thing speaks for itself] has no direct application to the criminal law. (But see Wilkinsons at para 5.52):

"the fact that res ipsa loquitor has no application to criminal law does not mean that the prosecution have to negative every possible explanation of a defendant before he can be convicted of careless driving where the facts at the scene of an accident are such that, in the absence of any explanation by the defendant, a court can have no alternative but to convict"

I'm unsure of the date and I don't know the name of the case, but sometime around 1978 IIRC, there was a decided case about a due care prosecution involving a shunt. In those days, an inevitable prosecution for due care. The prosecution - remember this was pre-CPS so ther may have been no professional advice - was so confident that this was an open and shut due care that they must have produced very little supporting evidence, as in probably none. It went on appeal and it was held that a shunt was not inevitably due care. Whatever the finer points of that case, it was soon being interpreted, at least round here, as meaning that there should be no prosecutions for colliding with the back of the vehicle in front. The "momentary lapse of attention" garbage just reinforced the effect and most shunts were either filed NFA or were not even investigated unless there were serious injuries. As shootist has already pointed out, crashing into the vehicle in front is generally due care. But as I've pointed out a generation (ie drivers, police and lawyers) has grown up accepting that this type of driving is OK.

This is why I'm so keen to get cases like this considered by somebody senior in the CPS. They may still decide there's insufficient evidence or that a prosecution is not in the public interest, but at least the issues are being properly considered. Remember the definition of due care: it's based on expectation. If the decision is taken by the police, expectations can only go one way: down. The police cannot take the decision to prosecute: that's for the CPS, but it seems they have been taking the decision not to prosecute when files should be going to the CPS for a decision.

[oldstrath]

The Police seem to have accepted the explanation that she did give.

"I didnt see him".

The problem is that this might actually be true. One possibility would be a visual defect, another would be distraction, the third would be essentially 'inattention blindness'. Effectively she may have been too busy looking at 'threatening threats' in the surroundings to be able to notice the cyclist, who was not apparently any kind of threat.

In the long term the only solution really is to move to driverless vehicles, and preferably to ban private cars (with political will the latter could be done today). All the legal solutions would be nice, but we can't make them happen.

In the short term all we can do as cyclists is impinge more on cager consciousness in a way that makes us appear as things needing attention (aka threats). Offensively bright and flashy may well be the way to go, but studies would be useful. The argument that 'cars use steady 6 candela so that's enough' is probably nonsense from this perspective - cars are a visible threat, we are small and insignificant, so need to do more to look like a threat, because that's what our visual system evolved to process best.

[Shootist]

shootist has provided a good set of links IMO, including one saying that "fatals" must be referred to the CPS. (I would say that because it's all the stuff I'm often hammering on about.)

As I read it, I think that it meant if fatal collision files are sent to CPS any decision must be made by someone of seniority within CPS, not necessarily that all fatal collisions should be sent to CPS. That in itself poses the question why was this not sent to CPS for consideration rather than some police officer making his mind up? Some of the rubbish that requires a CPS approval to prosecute is so trivial by comparison that this decision looks worse and worse every time I think about it.

[Shootist]

The problem is that this might actually be true. One possibility would be a visual defect,

That was tested and discarded.

another would be distraction,

Which she almost certainly would remember. As she hadn't mentioned any distraction we can discount that.

the third would be essentially 'inattention blindness'. Effectively she may have been too busy looking at 'threatening threats' in the surroundings to be able to notice the cyclist, who was not apparently any kind of threat.

Then she was driving without due care and attention.

In the long term the only solution really is to move to driverless vehicles, and preferably to ban private cars (with political will the latter could be done today).

Who is going to organise this, the bicycle fairy? No offence meant but that is pure fantasy. The solution that might work is to up the standard of driving substantially, and to remove the driving licence from all who cannot attain this better standard.

All the legal solutions would be nice, but we can't make them happen.

we could if concerted action was taken by the cycling organisations. In this instance a private prosecution, a complaint about the police investigation, and determination to follow them through.

In the short term all we can do as cyclists is impinge more on cager consciousness in a way that makes us appear as things needing attention (aka threats). Offensively bright and flashy may well be the way to go, but studies would be useful. The argument that 'cars use steady 6 candela so that's enough' is probably nonsense from this perspective - cars are a visible threat, we are small and insignificant, so need to do more to look like a threat, because that's what our visual system evolved to process best.

It does seem that (some) cyclists need to better understand the risks presented by reality rather than just moaning about inevitabilities. As an example, yes, I would like to be able to cycle along a dual carriageway with impunity, but I will never take such a route. Moan all you like about inconsiderate lorry drivers, forgetting for the moment that they deliver the goods that, for instance, provided you with your computer to moan with and your glass of chardonnay or cup of tea while you are doing so. The dual carriageway dangers will never go away while these goodies are desired. Do cyclists never pause to consider just how much damage they will do to a lorry that drives over them? Answer, hardly any. So yes, have your flashing lights and reflective strips. Don't ride without lights, wearing black, and darting across the road without signalling, like the berk I nearly hit the other night.

[Shootist]

More info discovered.

http://www.courtnewsuk.co.uk/newsgallery/?page=7&news_id=39245

A driver described the moment she hit a cyclist in Regent Street as 'like something had a fallen from the sky', an inquest heard today (WEDS).
Gale Purcell was driving home from work when she hit Michael Mason, 70, a teacher who campaigned for cyclist's safety.
She said did not see Mr Mason and only realised she had hit a cyclist when she had pulled over.
Mr Mason, who was not wearing a helmet, was rushed to St Mary's Hospital, Paddington, immediately after the accident at about 6.25pm on 25 February, but slipped into a coma caused by catastrophic head trauma.
His life support machine was switched off three weeks later after he fell into a 'permanent vegetative state'.
The teacher also suffered a fractured skull, broken ribs and a broken ankle as a result of the collision with Ms Purcell's black Nissan Duke.
Ms Purcell said: 'It felt like something had fallen from the sky, I was totally unaware of the cyclist, I heard an impact.'
She added: 'I didn't really know what had happened, I pulled in next to the Boris bikes, put on my hazard lights and leapt out of the car to go back to the scene.

Asked by Martin Porter, Mr Mason's family's barrister, if she had the radio on she said: 'I don't remember, but I don't normally have the radio on.'
Mr Porter asked: 'You were unaware before you stopped that you had hit a cyclist?'
She said: 'I stopped and ran back, it could have been a pedestrian.'
She added: 'I was looking straight ahead at the time, I didn't see him, I should have seen him if I was but I didn't, I was going north and I was looking ahead.'
Carmel McLoughlin was standing just a few metres away from the scene of the collision as she waited for a bus told the inquest Mr Mason had caught her attention because he was not wearing a helmet.
She said: 'I remember Mr Mason standing out because it's unusual to see a cyclist who doesn't have a hi-vis jacket or a helmet.'
She added: 'I noticed him overtaking the black car that was in the collision.
'I think I heard the bang, I looked round and I saw Mr Mason being thrown into the air – he was on the off side, so the side nearest to the driver.'

Sarah Thornley was crossing the junction of Regent Street and Oxford Street on her way to Boots at the time of the accident.
She said: 'I thought I hears a man's voice make an 'ah' or and 'oh' sound – I thought I saw a man on a bike turning right and a black car.
'Something made me look back and I saw him in the road.'
CCTV footage from Top Shop Oxford Street of the moments just prior to the crash showed Mr Mason cycling about a metre from the curb.
The witnesses say he then changed positions and moved to the nearside of the car.
Pedestrian Neil Trevithick had been trying to overtake the crowds by walking in the bus lane on the opposite side of Regent Street, and was one of the first to reach Mr Mason.
He said: 'There was a load bang and I saw the cyclist being hit by the wing mirror of the small black car and gentleman hitting the bonnet of the car and then being off it an on to the road.
'I reached him in probably about five seconds and there was already someone there holding his head,' he said.
He said in his opinion the car was accelerating and was probably going about 20mph and was accelerating, but 'not in an inappropriate way, it was heading towards the lights'.
He said he didn't hear the sound of brakes or a car horn, just a load bang.
'When I reached the gentleman he had a partially blocked airway and was making a slight snoring sound as people with blocked airways do.'

PC Brian Gamble who investigated the scene said Ms Purcell had been breathalysed, drug tested and eye tested at the scene before being taken for an interview under caution at the police station.
He said: 'Mr Mason was probably travelling at a similar speed to the other traffic on the road which was probably at the 30 mile-per-hour speed limit, there were no climatic factors that contributed to the collision, it was a clear dry evening.'
He said that neither the bike nor the car had any defects that would have caused the accident.
PC Gamble said Ms Purcell had probably braked just before or immediately after the accident due to the damage to the car and where Mr Mason landed.
Recording a verdict of accidental death, coroner Dr William Dolman said: 'Mr Mason was clearly a very fit 70-year-old man who had been cycling for many years, cycling was his preferred mode of transport.'
He added: 'Mr Mason was not wearing a helmet, and while this may not be a legal requirement his most severe injuries were head injuries both inside and outside the skull.
'Michael Mason's medical cause of death was head injury, this was an accident – to his families I offer my condolences on behalf of the court.
'It's quite clear that the injuries that he suffered were catastrophic, he lost consciousness and thank heavens because he didn't have to suffer a long illness.'
Mr Mason, who was the second cyclist to be killed on London's roads this year, was a supporter of better road safety for cyclists.

So, pure speculation, but did the cyclist overtake the car then start to move back to the left, the driver not realising and accelerating from some delay which had temporarily obstructed the car. The scene sounds like it was a bit of a madhouse with traffic and pedestrians mingling somewhat. Certainly not as straightforward as it first read, although I am still concerned that it wasn't passed to the CPS.

[beardy]

More info discovered.

http://www.courtnewsuk.co.uk/newsgallery/?page=7&news_id=39245

A driver described the moment she hit a cyclist in Regent Street as 'like something had a fallen from the sky', an inquest heard today (WEDS).
Gale Purcell was driving home from work when she hit Michael Mason, 70, a teacher who campaigned for cyclist's safety.
She said did not see Mr Mason and only realised she had hit a cyclist when she had pulled over.
Mr Mason, who was not wearing a helmet, was rushed to St Mary's Hospital, Paddington, immediately after the accident at about 6.25pm on 25 February, but slipped into a coma caused by catastrophic head trauma.
His life support machine was switched off three weeks later after he fell into a 'permanent vegetative state'.
The teacher also suffered a fractured skull, broken ribs and a broken ankle as a result of the collision with Ms Purcell's black Nissan Duke.
Ms Purcell said: 'It felt like something had fallen from the sky, I was totally unaware of the cyclist, I heard an impact.'
She added: 'I didn't really know what had happened, I pulled in next to the Boris bikes, put on my hazard lights and leapt out of the car to go back to the scene.

Asked by Martin Porter, Mr Mason's family's barrister, if she had the radio on she said: 'I don't remember, but I don't normally have the radio on.'
Mr Porter asked: 'You were unaware before you stopped that you had hit a cyclist?'
She said: 'I stopped and ran back, it could have been a pedestrian.'
She added: 'I was looking straight ahead at the time, I didn't see him, I should have seen him if I was but I didn't, I was going north and I was looking ahead.'
Carmel McLoughlin was standing just a few metres away from the scene of the collision as she waited for a bus told the inquest Mr Mason had caught her attention because he was not wearing a helmet.
She said: 'I remember Mr Mason standing out because it's unusual to see a cyclist who doesn't have a hi-vis jacket or a helmet.'
She added: 'I noticed him overtaking the black car that was in the collision.
'I think I heard the bang, I looked round and I saw Mr Mason being thrown into the air – he was on the off side, so the side nearest to the driver.'

Sarah Thornley was crossing the junction of Regent Street and Oxford Street on her way to Boots at the time of the accident.
She said: 'I thought I hears a man's voice make an 'ah' or and 'oh' sound – I thought I saw a man on a bike turning right and a black car.
'Something made me look back and I saw him in the road.'
CCTV footage from Top Shop Oxford Street of the moments just prior to the crash showed Mr Mason cycling about a metre from the curb.
The witnesses say he then changed positions and moved to the nearside of the car.
Pedestrian Neil Trevithick had been trying to overtake the crowds by walking in the bus lane on the opposite side of Regent Street, and was one of the first to reach Mr Mason.
He said: 'There was a load bang and I saw the cyclist being hit by the wing mirror of the small black car and gentleman hitting the bonnet of the car and then being off it an on to the road.
'I reached him in probably about five seconds and there was already someone there holding his head,' he said.
He said in his opinion the car was accelerating and was probably going about 20mph and was accelerating, but 'not in an inappropriate way, it was heading towards the lights'.
He said he didn't hear the sound of brakes or a car horn, just a load bang.
'When I reached the gentleman he had a partially blocked airway and was making a slight snoring sound as people with blocked airways do.'

PC Brian Gamble who investigated the scene said Ms Purcell had been breathalysed, drug tested and eye tested at the scene before being taken for an interview under caution at the police station.
He said: 'Mr Mason was probably travelling at a similar speed to the other traffic on the road which was probably at the 30 mile-per-hour speed limit, there were no climatic factors that contributed to the collision, it was a clear dry evening.'
He said that neither the bike nor the car had any defects that would have caused the accident.
PC Gamble said Ms Purcell had probably braked just before or immediately after the accident due to the damage to the car and where Mr Mason landed.
Recording a verdict of accidental death, coroner Dr William Dolman said: 'Mr Mason was clearly a very fit 70-year-old man who had been cycling for many years, cycling was his preferred mode of transport.'
He added: 'Mr Mason was not wearing a helmet, and while this may not be a legal requirement his most severe injuries were head injuries both inside and outside the skull.
'Michael Mason's medical cause of death was head injury, this was an accident – to his families I offer my condolences on behalf of the court.
'It's quite clear that the injuries that he suffered were catastrophic, he lost consciousness and thank heavens because he didn't have to suffer a long illness.'
Mr Mason, who was the second cyclist to be killed on London's roads this year, was a supporter of better road safety for cyclists.

So, pure speculation, but did the cyclist overtake the car then start to move back to the left, the driver not realising and accelerating from some delay which had temporarily obstructed the car. The scene sounds like it was a bit of a madhouse with traffic and pedestrians mingling somewhat. Certainly not as straightforward as it first read, although I am still concerned that it wasn't passed to the CPS.

The bits in green seem to contradict this from Mr Porters post.
.

Further the rear tyre left a mark and dent mid way between the centre line of the car and its offside. That is to say right in front of the position where the driver was seated.

Though what fits to my mind is that the car touches the rear wheel, leaving the mark on the front of the car. This forces the cyclist over to the left which the witness sees but thinks is the cyclist's own doing. Then the bang as the bulk of the cyclist's body hits the car/ mirror and bonnet and the bike goes down.

[SA_SA_SA]

It seems to be being implied that some drivers see cycle lamps, and then (unconsciously?) decide to view them as unimportant:
but only flashing rear lamps give cyclists away as cyclists, and this was generally suggested as a safety feature.

Motorcyclists usually have a single steady car-like rear lamp: does this mean steady might be better sometimes for only some drivers? Bahh, now I am confused.
Perhaps mimicing a motorcycle from the rear is good?

Is it really being suggested as a good idea for cyclists to essentially drive around with a rear fog lamp brightness rear lamp (worse possibly flashing?) when this is illegal for other vehicles due to dazzle (which I suspect could adversely affect the safety of pedestrians due to drivers simply ignoring any resulting reduced visibility)?

[beardy]

Motorcyclists usually have a single steady car-like rear lamp: does this mean steady might be better sometimes for only some drivers? Bahh, now I am confused.
Perhaps mimicing a motorcycle from the rear is good?

You appear to be under the misapprehension that motorcyclists get noticeably better treatment, the reason why motorcyclists dont need the bright flashing lights so much is that they generally are going a similar speed to or faster than the cars.

[SA_SA_SA]

You appear to be under the misapprehension that motorcyclists get noticeably better treatment...

I haven't heard motorcyclists complain about drivers seeing a single rear lamp and deciding to treat it with less respect than the two of a car.

If a driver isn't looking(texting)/uncounscious I don't see how dazzling lamps will help.

What population evidence is there that blinding rear lamps are good idea and have no adverse effects on other road users like pedestrians (or other legally lit cyclists)?

I still think that to avoid dazzle there has to be a reasonable upper limit (currently self-imposed) to the brightness of cycle lamps (except in actual fog ).
The max for a car tail lamp is 12cd, the rear Never Ready Night Rider had a bright 20cd rating (with new batteries )for the central narrow letter box part of its beam (most were mounted wrong, pointing at the sky though!). There were pretty bright (much brighter than a car lamp) on that narrow axis: so surely a 25cd / 30cd-ish limit would be reasonable?

According to wiki, the allowable range of intensity for a ECE rear fog lamp is 150 to 300 candela and
a range of acceptable intensity for a ECE stop lamp of 60 to 185 candela.