Safety drivers to be held criminally responsible following 2018 fatality in USA?
Driverless cars – or autonomous vehicles – are a reality. What was once the preserve of science fiction are now on the roads in certain countries around the world. While this does not include the UK yet, it is surely only a matter of time. Government consultations are under way and legislation could be forthcoming as early as next year.
As road traffic lawyers, our interest is in what happens when something goes wrong. If the car is self-driving, when does the human occupant in the “driver’s seat” cease to be responsible for the vehicle? What happens when the car exceeds the speed limit for example? Who is to blame for what – the human or the car? If it is the human, how does the prosecution prove that? If it is the car, should the manufacturer face charges?
Something as mundane as minor contraventions of the speed limit are one thing. But what about when there is a tragic accident? The people who have a stake in manufacturing these autonomous vehicles may try to convince us that driverless cars are going to make our roads safer and prevent such accidents.
Autonomous vehicle technologies, of which automated lane keeping is the latest, will be life-changing, making our journeys safer and smoother than ever before and helping prevent some 47,000 serious accidents and save 3,900 lives over the next decade,’
Mike Hawes, chief executive, society of motor manufacturers &traders
The facts of the case appear to be that Ms Vasquez was that the car was self-driving and Ms Vasquez was watching a video on her mobile phone instead of watchingt the road. Apparently, UBER had – for reasons not clear – had deactivated the automatic emergency braking system. However it is not clear whether that would have made any difference anyway. Although the system detected Ms Herzberg 5.6 seconds before the crash, it failed to determine “what” she was or that she was headed into the vehicle’s path.
The case goes to trial in February next year and is worth keeoing any eye on. Ms Vasquez certainly should not have been watching a video on her phone (if that is indeed what she was doing). But having watched the video, I’m not altogether convinced that it made any difference. It was pitch black. Ms Herzberg seemed to come out of nowhere. She was pushing her bicycle while crossing the road outwith a safe crossing area. She did not seem to know or care that a vehicle was approaching and apparently had methamphetamine in her system. Based on the footage, even a fully attentive driver would have had no chance of stopping in time.
Ms Vasquez has previous felony convictions and has spent 4 years in prison. Ultimately, here, American prosecutors have gone for the easy target, not the multinational companies. My feeling is that UK prosecutors will do exactly the same thing.
Many facets of our lives have been impacted severely by the effects of COVID-19. Many of these are well-known, from school closures to restrictions upon travel. Much of what the Government and other public bodies have done to help mitigate the effects of this global pandemic has been rightly praised. But, based on what some of my own clients have told me and also from queries I have received, I think one public body can be singled out for its utter inflexibility and stupidity – the Driver and Vehicle Standards Agency (DVSA).
The DVSA is the body which oversees the drink drive rehabilitation scheme (DDRS) in the UK. For those who do not know, the DDRS is an optional educational course. It is available to persons convicted of drink driving whom the sentencing court certifies as suitable to participate. Since the case of PF Paisley v Little, this will include almost all first offenders who ask to be certified. As the court stated:
We do not regard it as necessary for an accused in the appellant’s position [a 1st offender] to justify his attendance at the course. Attendance at such a course is, in our view, the appropriate course to be adopted in the first instance
The offender has to complete the course by a certain set date, usually well in advance of (what would be) their discounted period of disqualification. Fail to do so and the 25% discount is lost.
The Drink Drive Rehabilitation Scheme is a proven success that benefits us all
So what is the problem? Many scheduled courses were cancelled due to the impact of COVID-19. As a result, many people who had booked for and paid for the course were hung out to dry. From the queries and feedback we have received, people were then being offered courses outwith their completion deadline. And, in a decision that is as baffling as it is outright vindictive, the DVSA has refused to extend completion deadlines.
Can’t get on a course? Tough.
Can’t complete a course you have already started? Tough.
None of this is in any way your own fault? Tough.
No doubt many people will shrug their shoulders at this. Why should we do drink-drivers any favours? Because these courses do not just provide a benefit to the offender, they provide a benefit to us all. Independent studies have shown that offenders who did not attend a DDRS course were 2.6 times more likely to reoffend compared with offenders who had attended a course.
In short – the course works. And when the DVSA screwed the offenders, they screwed you too.
The effect of COVID-19 and the accompanying lockdown has been profound in all walks of life. The legal profession is no exception. Like most criminal defence lawyers, particularly those practising road traffic law, we have experienced a massive downturn in business as local courts close and hearing dates get delayed. And we assumed that, with fewer cars on the road, we would continue to experience a downturn over the coming months.
After all the Department of Transport has reported that motor vehicle use has fallen by two-thirds since the outbreak of the current crisis. Fewer cars on the road surely means fewer speeding drivers, right?
According to the report, our quieter roads seem to have been like a red rag to a bull. For example, Greater Manchester Police report more than 6,200 cases of speeding since the beginning of lockdown. That represents an increase of 57%, notwithstanding the reduced amount of cars on the road. Similarly, instances of (alleged) speeding have almost doubled on Lincolnshire’s roads. There are no reported speeding figures in Scotland but Police Scotland stated that over the Easter period between 10 and 14 April, 16 people were found [allegedly] committing drink or drug-driving offences (which actually sounds quite low to me!)
It is not often I find myself agreeing with the police but it is hard to argue with Superintendent Julie Ellison of Greater Manchester Police when she wrote:
At all times road safety in and around Greater Manchester is of paramount importance as speeding can have devastating consequences – not only does it increase the risk of collisions occurring, but it can affect the severity of those that do take place and in the worst case scenario can be fatal.
“In this current climate, keeping the pressure off our emergency services is so important whilst they keep the public safe and well. If someone is speeding and they have a collision, this will take up vital resources including NHS, fire and the police.
So, to all those speeding drivers out there, please slow down. The last thing our NHS needs is extra, avoidable, work. And the last thing our police officers need to be doing is scraping a 150mph motorcyclist off the road. On a personal note, to the selfish sod in Johnstone, Renfrewshire who thinks its fine to scream through a public park on his dirtbike – I take my children there so no it isn’t. I
One final thing though. The defence lawyer in me can’t end a blog like this without saying that these are allegations. Nothing against any of these drivers has yet been proved in a court of law and yet the police speak as if these allegations are established fact. Speed detection technology can get it wrong. If you don’t believe me, check out this blog here (and don’t let the fact that I am referencing myself to support my arguments get in the way).
A article published in the Glasgow Herald on 14 August has stated Scotland “has been found to have the highest levels of distracted driving offences in the UK”. Asked to comment on the findings, a spokesman for our moral guardians at Brake stated:
The number of distracted driving offences in Scotland is cause for concern and highlights that there is still much work to be done regarding the dangers of phone use behind the wheel. We need urgent clarification of the law on using hand-held mobile devices while driving, including closing loopholes which treat sending or receiving data differently. The current law also provides a dangerous false impression that it is safe to use a mobile phone with a hands-free kit – it is not. All phone use behind the wheel is dangerous, and we need the law to reflect this by banning the use of hands-free devices
Quoted in Glasgow herald, 14 august 2019
Apparently – in linked news – the transport select committee of the UK Parliament is now recommending a blanket ban on all mobile phone usage while driving including hands-free use
So just how accurate is the claim made in the Herald? Do I agree with Brake? Should the UK Parliament legislate to ban hands-free mobile phone use while driving? My answers, respectively, are “dunno”; ” with a wee bit of it”; and “no”.
First let me make clear what I do agree with. I agree with the increased penalty for driving while using a mobile phone. I agree that driving while using a mobile phone can be distracting. I agree that using phone in a “hands free” capacity can also be distracting. And before anyone says “how is that different from talking to a passenger”, we would suggest that they read this article from the New York Times. For numerous reasons, chatting on the phone simply is more distracting than chatting to a passenger. Whether it amounts to a criminal level of distraction is another issue.
Now for the problems. First the methodology. The Herald bases its claim that Scotland has (current tense) the highest levels of distracted driving offences in the UK primarily on research carried out by Peter Vardy car dealership. This revealed that in around nine months after the increase in penalties for driving using a mobile phone, there had been 8,747 recorded offences across 13 constabularies in the UK. Scotland was said to have been the worst region, accounting for 2,220 of these.
Now that all sounds pretty darn impressive. But consider it more closely. The data encompassed a time period of March 2017-December 2017. That is hardly current. Furthermore it is based on a survey of 13 constabularies across the UK. The last time I checked (today), there were 43 such constabularies. So a more accurate headline would be that Scotland had the highest level of distracted driving offences in a survey of less than a third of the UK’s constabularies. But that is less catchy I suppose.
Second, some of the inaccurate and unchallenged remarks made by the Brake spokesman. For example, the claim that “all phone use behind the wheel is dangerous”. I recall a recent case of ours where it was alleged (incorrectly as it happens) that our client was checking a text while sitting stationary at a red light. That may be illegal but is it “dangerous”? Many are now calling for obligatory disqualifications for using a mobile phone while driving. Does the above case really merit a disqualification? Opinions will vary, of course, but to rob a court of its common sense discretion achieves nothing. Another nugget from Brake was the claim about loopholes “which treat sending or receiving data differently”. There is no such “loophole”.
And third, what about the suggested solution to our problems? A ban on “hands-free” use. The article focuses on the tragic case of Yvonne Blackman, a lady killed by an HGV driver using his mobile phone. The gentleman concerned correctly pleaded Guilty to causing death by dangerous driving after focusing on his phone for a full 18 seconds instead of the road. That case has nothing whatsoever to do with using a phone in a “hands-free” capacity. The driver was touching his phone for the majority of the time as was obvious from the in-cab footage of the incident.
The fact is that Parliament considered banning all mobile phone use when debating the introduction of mobile phone legislation, including hands free use. The conclusion was that it would be too difficult to police. And that is obvious. It is one thing when there has been a tragic accident. In those circumstances the police will usually seize the suspect’s phone and have it analysed for use at the time. If it has been used, even in an otherwise legal “hands free” manner, it is still a relevant fact in the case and will inevitably be seen as an aggravating factor in a case of causing death by careless driving or – more likely – causing death by dangerous driving. However what about everyday policing? How exactly are the police meant to know if someone is using their phone in a hands-free capacity? Spotting a earpiece? Seeing lips move? Or are we to allow random checks of mobile phones for calls/texts/emails/internet searches with no way to be sure that the data displayed on the phone is accurate? Assuming the case proceeded to trial my view is that the Crown would require to produce the phone’s data in court. They would also need to cite the relevant expert who interrogated the phone. Any attempt to have a police officer speak to a call record which was not actually produced in evidence but that he had seen on the phone would fall foul of the rules of best evidence. Even then there would be myriad difficulties if, for example, there was more than one person in the car at the time. How does the Crown prove that the driver was the one actually using the phone?
But the bigger point is that there is no lacuna in the law. If a driver is distracted to a criminal extent due to using a phone in a hands free manner, legislation already exists to deal with it. Such a driver could be prosecuted for careless or dangerous driving or even section 41D(a) of the Road Traffic Act 1988 which specifically deals with distracted drivers. All that articles such as this – with its questionable methodology – do is inflame the readership. A look at the comments section to the article alone accomplishes that. My particular favourite was a reader who had a particularly inventive way to get round the evidential difficulties I alluded to above by stating “perhaps immediate roadside driver disqualification in obvious and flagrant cases would be particularly effective”. I’m sure it would be. All we need to do is forget about due process, the presumption of innocence and all those other annoying things that defence lawyers seem to think are important. Because if the police think they saw something they must of course be 100% correct. But it would only apply to “obvious and flagrant” cases one may say. And who decides what is obvious and flagrant. For “immediate roadside disqualification”, it would have to be the police. Despite our current Prime Minister’s populist push for “law and order”, we don’t live in a police state yet and hopefully we will not be living in one anytime soon.
The correct answer, of course, is the Sheriff Appeal Court (SAC) is not on anybody’s side. It approaches each case neutrally, favouring neither the prosecution nor the defence. But that is not always how it feels, certainly not from a road traffic perspective. The recent decision in the successful Crown appeal against Kevin Coulson certainly rattled my cage. This was a Crown appeal against an acquittal secured by one of my competitors. Much as one may think I would wallow in their failure, I certainly do not. I’m not going to go into the case here as I intend to discuss it in more detail at another time. Suffice to say, however, I 100% agreed with the submissions made by the defence in this case and respectfully disagree with the decision of the court.
This was the 2nd such Crown appeal against a competitor of mine with which I found myself in complete disagreement. In PF Perth v David Martin [2018] SAC Crim (9), the Appeal Court went, in my opinion, to extraordinary lengths to allow a Crown appeal against acquittal in a speeding case involving average speed cameras. In order to find the necessary precedent, the Appeal Court dusted off the archives and relied on the case of Scott v Jameson. Scott v Jameson was decided in 1914. The last time I checked, there were barely any cars in 1914 and there certainly weren’t any average speed cameras.
Such decisions as these lead to practitioners like myself complaining about the decisions of the SAC. “Whats the point in even appealing?” is, in my opinion, a fair reflection of the views of very reasonable defence practitioners around the country. But is this view merited?
The Sheriff Appeal Court, Lawnmarket, Edinburgh
It is possible to carry out an impartial audit of all reported SAC decisions since its inception. Of course many cases are unreported so this analysis is a limited one. But its results surprised me. Since its inception, there have been 68 reported defence appeals in the SAC. Of these, 32 were allowed or partially allowed. That is a proportion of 47%. Hardly fits the picture of a prosecution-centric SAC. Even if we take the 5 partially-allowed appeals and move them to the “refused” column, the proportion of allowed appeals is still 40%. Of course there is more than one kind of appeal and it seems that the defence have more cause to be optimistic when appealing against sentence than against conviction.
Appeals against Sentence
There are 41 reported defence appeals against sentence. Of these, 24 were allowed (3 partially). That is a proportion of almost 59% (or 51% if you move partially allowed appeals to the “refused” column). Not all of these decisions are necessarily good outcomes for the defence. The decision in Love v PF Kilmarnock [2018] SAC (Crim) 12 is a good example. A disqualification from driving was reduced from 16 months to 10 months, meaning the appeal was technically “allowed”. However, when one considers that the offence was speeding at 92 in a 70 limit – for which the appellant was offered a fixed penalty – the penalty still seems brutally harsh, the poor driving record of the appellant notwithstanding. But 59% is 59%.
Appeals against Conviction
This paints a less friendly picture for the defence. I have included here appeals raising “procedural” points such as decisions to allow Crown adjournments. In total there were 27 such cases. Only 8 were allowed, 2 of which were only partially allowed. That is a refusal rate of 70%, rising to 78% if we move the partially allowed appeals to the “refused” column.
The difference is quite stark – a refusal rate of 41% for appeals against sentence against 70% for appeals against conviction and procedural appeals which would have similar effect. And there is one final category which may truly rankle.
Crown Appeals
Crown appeals to the SAC are rare. Since inception in 2015 there have been only 8. And the success rate? 100%. That’s right. Every single Crown appeal has been allowed, including the decision in Coulson that propelled me to research this article in the first place. If we add these 8 to the unsuccessful defence appeals against conviction, we get a Crown success rate of 77%. If we move the partially successful defence appeals to the “refused” column, this rises to a mammoth 83% success rate for the Crown.
The Big Picture
It seems that the defence does considerably better at the SAC when it is not squaring off against the Crown. The difference in success rates between appeals against sentence (in which the Crown rarely plays a part) and appeals against conviction/Crown appeals is stark. On balance, though, I found myself surprised that 47% of all (reported) defence appeals were successful.
That was not the only thing I found surprising. Of all the reported cases (and I have read them all) there is not one dissenting judgement. And the amount of reported cases has fallen sharply. In 2016, 33 cases were reported. This fell to 18 in 2017 and 17 in 2018. In 2019 to date (1st July 2019 so exactly halfway through the year) there has only been 5 reported cases, 4 of which were Crown appeals (one of which was conjoined with an unsuccessful defence appeal). The 4 Crown appeals reported in the first half of 2019 equals the entire amount of Crown appeals between 2015-2018. If the reported cases accurately reflect the proportion of all cases heard by the SAC, it is suggestive of increased Crown activism to appeal coupled with defence reticence (and/or fewer defence cases passing the sift). While it seems my own opinion about successfuly appealing to the SAC was pessimistic (in relation to sentence at any rate), it does seem that the perception is influencing the reality.
There are currently various Speed Limits in Scotland. They range from 20mph “zones” (including much of Edinburgh) up to 70mph on most motorways and certain dual carriageways.
A bill seeking to make 20mph the new “default” speed limit has been rejected by Holyrood’s rural economy committee reports the BBC.
So what is the current “default” limit? Well the national speed limit is 60mph on single carriageway roads and 70mph on dual carriageways. The most common of Speed Limits in Scotland, however, is 30mph. This is the speed limit which applies to “restricted roads“. These are your typical roads found in built-up areas, including town centres and areas with substantial amounts of housing. It is likely that the closest main road to your house is a restricted road. These roads do not have speed limit signs. Instead the speed limit is designated by a system of street lighting. What is that? Its basically a set of lamposts with no more than 185 metres between each one.
It is primarily these roads which were targeted by Green MSP Mark Ruskell in his bill. He states that reducing the limit is :
“the simplest, quickest and cheapest way to save lives, make our streets safer, and encourage more people to walk and cycle more”
BBC NEws, 31 may 2019
With respect to Mr Ruskell, if he thinks reducing the speed limit by 10mph is likely to get more people walking or cycling then he is living in cloud-cuckoo-land. I’m from Edinburgh and I don’t know a single person who has suddenly thought “hmmmm, 20mph? I know, I’ll walk those 5 miles to work instead. Chucking it down? No problem. Files to carry? It’ll build my muscles!”
As for increasing safety, given that we are repeatedly told how vulnerable cyclists are, I can’t comprehend how flooding the roads with more of them is going to “save lives”. I’m pretty sure I’m not the only one, moreover, who has nearly been flattened by a cyclist pretending that red lights at pedestrian crossings don’t apply to them and their helmet-cams.
And, regretable though it is, the simple fact is that research from 2017 indicates most drivers simply ignore 20mph limits. Whether this is deliberate or not is questionable. Ask any driver how difficult it is to maintain a steady speed of under 20mph. It is harder than you may think.
Are these signs going to become the norm?
Areas currently subject to 20mph limits are flooded with very “un-Green” road signs. If we are simply going to circumvent this environmental issue by making “restricted roads” subject to 20mph rather than 30mph then that is going to require a massive and expensive campaign to educate the public. Enforcement is another issue. The only practical solution to that is a massive, extensive and expensive system of average speed cameras and we all know how popular those are.
In rejecting MSP Ruskell’s bill, the committee stated:
“After considering the evidence presented, the majority view of the committee is that the default, ‘one-size-fits all’ approach proposed in the Bill is not appropriate, as it does not give local authorities the flexibility to devise 20mph limits that they consider appropriate for their areas.”
BBC news, 31 may 2019
In response Mr Ruskell states that the Committee “puts the motoring lobby ahead of child safety”. What an ignorant thing to say. Lets have 20mph zones outside every school in the country by all means. But even then there will be accidents. The only way to stop them is to ban cars altogether. Given the contempt with which he speaks of the (undefined) “motoring lobby”, perhaps that is what MSP Ruskell really wants.
Dangerous Driving in Scotland if prosecuted on summary complaint currently carries a potential jail sentence of up to 6 months in prison. Current proposals by the Scottish government are intended to provide against such “ineffective” short term sentences.
So does this mean the end of jail sentences for Dangerous Driving in Scotland? Probably not but it is worth taking a closer look at.
The current penalties for Dangerous Driving in Scotland are set by the UK Parliament They include mandatory disqualification from driving for at least 12 months, a fine of up to £10,000 and a mandatory resit of an extended driving test before regaining the right to drive. Serious or repeat offences can be punishable by up to six months in prison. Prison sentences are, in practice, rare. The separate offence of causing serious injury by dangerous driving carries up to 12 months in prison if prosecuted on summary complaint. Such sentences are more common but still relatively rare (more serious instances are prosecuted at jury level and carry up to 5 years imprionment).
Prison sentences for dangerous driving are competent but rare
The current proposals by the Scottish Government are aimed at creating a presumption against prison sentences of less than a year. This would encompass all convictions of Dangerous Driving in Scotland and the vast majority convictions involving serious injury by dangerous driving prosecuted at summary level. Currently such a presumption exists only for sentences of 3 months or less.
Community Safety Minister Ash Denholm is quoted a saying:
Clearly, prison remains the right option for those who pose a serious risk to public safety and sentencing decisions will remain a matter for the independent judiciary. However, we want to ensure courts consider the most appropriate sentence in all cases and imprison people only where there is no suitable alternative.
The Times scotland, May 18, 2019
Overall the change is subtle. By virtue of the Criminal Procedure (Scotland) Act 1995, section 204(2) sentencers already have to be satisfied that there is no suitable alternative to imprisonment, at least in respect of people who have not been to prison before. Moreover the final decision remains, as now, with the judiciary.
It is clear that prison remains an option for Dangerous Driving in Scotland. But the view of the legislature will weigh on the minds of sentencing sheriffs. Prison sentences are rare at present. No doubt part of the reason for that is the offence, although serious, is often committed by otherwise law-abiding citizens. The judiciary – correctly- may also feel that the public can be adequately protected by the imposition of lengthy driving bans – in effect taking the offender “off the road” without the more radical step of taking him “off the street”. Going forward, given the view of the legislature, there is likely to be some kind of shift. Already rare sentences will not disappear entirely.
It has been widely reported recently that David Beckham has been disqualified for 6 months for driving while using a mobile phone. The Sun newspaper, with its usual flair for a good headline proclaimed:
BANNED IT LIKE BECKHAM: David Beckham banned from driving for 6 months for using mobile phone at wheel of £100k Bentley
the sun, 9 May 2019
I’m not entirely sure what the value of Mr Beckham’s car has to do with the price of bread but it is true that he was disqualified from driving at Bromley Magistrates Court for a period of 6 months. What is not accurate is to say that it was for driving while using a mobile phone. Mr Beckham received six points for the offence. He was thereafter disqualifed for 6 months because those points meant he had accumulated 12 points within a 3-year period. Had Mr Beckham had less than 6 points, therefore, he would not have been disqualified.
Bromley Magistrates Court where David Beckham was disqualified
So is the answer to the question in our headline “no”? Well not quite. It is possible. The Road Traffic (Offenders) Act 1988 makes clear that the court can impose a period of discretionary disqualification. That, however, is unusual and it is not what happened in this case. In all the time that I have been defending drivers accused of driving while using a mobile phone, the driver has never been disqualified unless either (a) I have requested it or (b) the driver has been on 6 or more points and therefore disqualified for the accumulation of points.
The Sun’s report also stated that Mr Beckham “tried to save his licence by arguing that he only had three points”. I am not entirely clear what has been argued here. However there is a common misconception that, if points have been removed from your licence since the offence but before you are sentenced, that you can avoid disqualification. That is incorrect. It may be that Mr Beckham’s lawyer was arguing a technical point. However the general rule is that the points which count are the points you had at the time of the offence, not at the time of sentencing. So if you had six points at the time of the offence but they have been removed by the time of sentencing, you are treated as having 6 points.
There are only two ways to avoid a 6-month disqualification if that is the case. The first is to argue that such a disqualification would cause exceptional hardship. If successful this can mean that disqualification is avoided entirely. The second is to try to persuade the court not to impose points at all but to impose a short period of discretionary disqualification instead, hence there are times when I have requested such an outcome. Neither argument is easy.
The silver lining for David Beckham is that his 12 points will be wiped clean after he has served his ban and he can get back to driving that “£100k Bentley” with a clean licence.
I get a news feed sent to my phone every morning. It contains the legal issues of the day, everything from commercial and property stuff (too complicated), Brexit (too “oh god not again”) and updates on important cases (which saves me from having to read the actual case). I give it a perfunctory glance and then promptly forget about it. But not today. Because today’s feed contained this quite unbelievable story from The Times.
The article concerns something apparently mundane: an application to Dundee City Council for a taxi driver’s licence. Any individual seeking such a licence has to, quite properly, pass a “fit and proper person” test. Police Scotland are entitled to object to any application. They do so in the form of a letter to the Council setting out their grounds for opposition. This is usually on the basis of previous convictions and sometimes on the basis of fixed penalties for minor contraventions of road traffic legislation.
Dundee City Council
On this occasion there was reference to 3 minor convictions, all in excess of 7 years old. A bit harsh, maybe, but not improper. However the letter also made reference to an allegation of assault to serious injury and permanent disfigurement. Now this is a very serious charge but the applicant was acquitted of this charge by a jury of his peers. And as people in this country are innocent until proven guilty, this means the applicant is innocent in the eyes of the law. But not in the eyes of the moral guardians of Police Scotland. Here is what the letter said:
Police Service of Scotland is of the opinion the applicant is not a fit and proper person to be granted a taxi driver licence and objects to the granting of such a licence. It should be noted that the final charge [listed in the letter] of Assault to Severe Injury and Permanent Disfigurement has been disclosed on this occasion despite the applicant being found not proven for this.The reason for disclosure is that where not proven is the outcome in a case this shows the jury believed that the person in question is guilty of the offence, however there is an insufficiency of evidence to convict. It is the opinion of the Police Service of Scotland that this is pertinent to this application due to the serious nature of the offence and implication of guilty albeit without formal conviction.”
This is quite simply staggering. Lets leave aside the issue of how the police could possibly know the reasoning of the 15 ladies and gentlemen who acquitted the applicant. Lets leave aside how, short of illegally contacting members of the jury, they could possibly know they “believed him to be guilty”. What is most galling is that the police still refer to the “offence” supposedly committed. There was no offence. The accused was cleared by the jury.
A leading QC, Brian McConnachie, has accused the police of “ignorance and a quite staggering misunderstaning of the not proven verdict”. It is my opinion that Mr McConnachie may be giving Police Scotland too much credit. A more cynical view is that Police Scotland knows exactly what the Not Proven verdict means and simply sought to poison the minds of Dundee City Council against the applicant by providing deliberately erroneous information. History has proven that the police are not always above distorting the truth or planting evidence when they just know the accused is Guilty. Such deplorable conduct is mercifully rare and I do not suggest that the conduct here is comparable to that. But I cannot shake the suspicion that the motive is the same – the police just know the accused did it and are going to protect the public by ensuring he does not drive taxis.
Police Scotland claim that the letter was sent “in error”. If that is true, how did that “error” occur? We are not talking about a speliing error or a typo here. A alternative account could be that they have simply been caught out and are desperately backtracking.
Mr McConnachie wonders if this kind of thing is commonplace. I can only speak from my own experience. I recall representing one client accused of using his phone while driving and who had an ongoing application for renewal of his driving licence. He denied the offence. He was subsequently cleared of the offence when the case against him was deserted. In the interim, Police Scotland had opposed his application. The impression is that he was presumed Guilty by the police. The fact he was eventually cleared did not change the fact that the police had, in my opinion quite deliberately, poisoned the well. Cliches abound – “mud sticks”; “you can’t unring a bell”, “no smoke without fire”. I suspect that in this case – as in the current matter – police intentions may be good. They believe they need to protect the public. They need to ensure only fit and proper people drive our taxis and can’t details like “innocent until proven guilty” get in the way. But no matter how pure the motivation, did a wise man not once say the path to Hell is paved with good intentions?
It used to be I could not visit a news site without been reading about police crackdowns on motorists disguised as “raising awareness”. In the dark days of Stephen House, these were not really about raising awareness or “keeping people safe” (Police Scotland’s strap line). They were, in my opinion, little more than cynical revenue-generating exercises for the police. Lately these campaigns have been less prevalent but this article on the BBC website this week suggests the storm clouds are gathering again.
The thrust of the campaign is that plain clothes officers will cycle up and down our busy roads waiting for cars to pass them. If the car gets too close, the officer will radio to colleagues further up the road – and no doubt tucked out of sight – to pull over the offender for a good talking to. If the naughty so and so is deemed not to be taking things seriously (i.e. he fails to show due deference and politeness to the police officer threatening him with 100 lines) he will find himself charged with careless driving. One hopes that said police cyclists will be riding at a regular pace and not at 7mph in the hope of enticing frustrated overtakes but the cynic in me is sceptical.
Now because we have a little thing called corroboration in Scots law, one may wonder how the word of a solitary cyclist will be enough to prosecute the motorist. Is this going to be a case of police officers looking sweet on bicycles made for two? Unfortunately not. There is to be no expense spared here. Each bike will be equipped with rear facing and forward facing cameras. And, as the courts have made clear in the case of Shuttleton v PF Glasgow, the footage alone – although technically just one source – can be sufficient evidence of careless driving. If you are so inclined you can read the entire judgement here. However the gist of it is that video footage is “real evidence”. Once the provenance of the footage is established, the footage itself is enough to establish the offence. As the Lord Justice Clerk put it:
“It is the provenance of the real evidence, not its substance, which must be proved by corroborated evidence; the finding of the fingerprint; or of DNA; or in the case of CCTV footage, proof that th footage is a recording of the event which gives rise to the charge. It is in my view misleading to talk of corroboration in the conventional sense when referring to real evidence”
LadY dorriAn, Shuttleton V pf glasgow
So that’s that? Easy-peasy for the police and the prosecution? Well not quite. But before I talk about why not, I want to make clear that the aim of this campaign is a worthy one. It comes off the back of a survey carried out by YouGov and commissioned by Cycling Scotland. Chief executive Keith Irving stated:
“People who cycle regularly are likely to experience a very scary close pass incident every couple of days…… Every week in Scotland at least three people cycling suffer serious potentially life threatening injuries, usually from a collision with a vehicle”
If that is the case, and I have no evidence to the contrary, then clearly there is an issue to address. That said, I do wonder how many times the cyclist is blameless in these accidents. I don’t have figures for how many times I have seen cyclists ignore red lights, fail to stop at give ways, ignore cycling lanes or weave all over the road. But it happens. A lot. And can lead to accidents. Will the police issue similar crackdowns on these cyclists? I’m not holding my breath based on a case of mine which I discuss below. But there is no doubt that cyclists do get injured as a result of inconsiderate – or just plain selfish – driving.
To be clear, failing to leave a cyclist sufficient space can amount to careless driving (aka driving without due care and attention or reasonable consideration for other road users) contrary to section 3 of the Road Traffic Act 1988. The Highway Code makes clear that a cyclist should be given a wide berth of around 1.5 metres.
Rule 163 of the Highway Code
And section 38(7) of the Road Traffic Act 1988, as any good prosecutor knows, means that a breach of the Highway Code can be taken into account in determining whether an offence has been committed.
But…but…but that isn’t the whole story. The section also states that a breach of the Code “shall not in itself render that person liable to criminal proceedings of any kind”. In short, the law does not demand perfection of our drivers and therefore not every error should be elevated to the level of criminality. Is it really criminal, for example, to only give a cyclist one metre of space on a tight road with a 30mph limit? And how exacting does the evidence of distance need to be?
I remember defending a driver accused of such an overtaking manoeuvre not so long ago. The cyclist had a camera on his helmet and there was little doubt that my client failed to give him 1.5 metres of space. And, boy oh boy, did the cyclist let him know. Claiming he had been “nearly killed” he gesticulated, shouted and swore. He had, in his words, “almost been knocked into the ditch”. Quite how he managed to take one of his hands off the handlebars to give my client ‘the finger’ in those circumstances and still keep his bike under control will have to remain a mystery. But the best bit was when the cyclist then set off in pursuit of my client. He pulled alongside him at a red light (at least he stopped I suppose), hit his window with his bicycle pump and proceeded to shout, swear and threaten my client (who, by the way, was a gentleman in his 70s) in a pretty aggressive manner. Action taken again the cyclist for his deplorable behaviour – zilch. Action taken against my client for a minor error – prosecuted for careless driving.
Fortunately in this case, the footage for obvious reasons was helpful to my client and the prosecutor had the decency to look suitably embarrassed by the whole thing. After all, what had really happened? Answer – a car had overtaken a bike a wee bit too closely but essentially nothing had happened. Apart from some quite unacceptable abuse on the part of the cyclist that is. I argued the point above – yes there was a driver error but not every error is criminal – and the client was found Not Guilty.
So while I’m concerned that we are going to start seeing another glut of police “crackdowns” (remember they are definitely not money-making exercises), I am actually delighted that the police are using cameras for this one. Because we will be able to see what actually happens, not just the police version of what happened. Not that the police would exaggerate or (whisper it) lie, of course. But what if I had a pound for every time I have seen footage which bears little resemblance to the police account? Well, I would still need to work but I might finally be able to replace the old BMX with one of those fancy mountain bike things.
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