Bez: “Erasure”

by Bez 7

In the aftermath of a car crash there is silence. An eerie, disturbing silence. But if you listen carefully, you can hear the echoes of the crash throughout the legal system.

And, like any echoes, these become quieter and quieter.

The law, like the life scattered across the tarmac, is being erased.

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Run to the sun

If there is one thing that is emblematic of the gradual legalisation of homicide, it is low sun. I’ve written about it over and over and over again. A trawl of the internet uncovers a wealth of cases (twenty-five incidents in all, catalogued here) where one or more drivers collided with someone, with fatal consequences, and cited blinding by sun as a key factor in having failed to see the person or vehicle that they hit.

Individually, they make for fascinating reading. Some have quite startling aspects to them: for instance a driver having had several seconds on a straight road to see their victim prior to their claim of being dazzled; or a driver’s direction of movement being at right angles to the sun, suggesting that it must surely have been a filthy windscreen that became opaque; or the driver having adjusted their visor or lifted their foot several seconds before impact, yet still progressing and still being surprised when they hit something, someone, they didn’t see; or—perhaps the most startling of all—the collision investigator who opined that hi-viz clothing acted as camouflage. Yes, that’s right: as if “Be Safe, Be Seen” campaigns everywhere weren’t fatuous and poisonous enough already, their Most Sacred Trinket may be considered camouflage if you’re killed while wearing it.

Sadly, as can be seen from the outcomes, by and large all of these things are swallowed whole by juries. No-one, it seems, considers the principle of res ipsa loquitur, whereby failing to react to a wholly apparent and predictable phenomenon and driving directly into space you cannot visually assess at a speed that prevents the avoidance of a fatal collision just might be considered irrefutable evidence of unsafe driving. If you drive into a space you can’t see, there’s a limit to how surprised you can be to find out that it’s not empty.

 If you drive into a space you can’t see, there’s a limit to how surprised you can be to find out that it’s not empty.

But the cases are not only individually interesting: they paint a picture when taken as a whole.

Sometimes

The timeline below (which you can click to see a larger version) shows all the drivers involved in these incidents, each positioned according to the month in which the legal decision was made regarding whether they legally caused a death. They’re identifiable by outcome (not charged, found not guilty, pleaded guilty and found guilty) and by victim vehicle (motor vehicle, pedal cycle, foot and horse).

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Some notable points emerge.

  • Of the cases that went before a jury, 18 resulted in not guilty verdicts and only 3 guilty. (Additionally, although Paul Byrne pleaded guilty to causing death by careless driving, he was found not guilty by a jury of causing death by dangerous driving, arguably a 19th not guilty verdict.)
  • The above becomes a ratio of 18:2 for victims not in a motor vehicle, and 3:0 for victims on foot.
  • The two cases which involved victims inside motor vehicles both resulted in convictions for causing death.
  • Inspecting the two cases where the defendant was found guilty of causing the death of a person on a pedal cycle, it’s notable that in one case the victim was a high-ranking serviceman and in the other the victim was well known locally through involvement with a football club; some remarks about people’s perception of others might be pertinent.
  • In the last three years, juries have ruled 7:1 that drivers who collide with people on pedal cycles while blinded are not culpable for having caused death.

Fill us with fire

Underpinning the failure to hold people responsible for driving cars directly into other people is an attitude belied by this comment below an article about the trial of Raymond Carroll:

“To suggest that anyone who is blinded by the sun should simply stop their car is a ridiculous thing to say. If he’d done that, we’d be reading here about a multi-car pile up instead.”

This is arms race logic. Just as the National Rifle Association in the US argues that the answer to the problem of some people having guns is for more people to have guns, so too people everywhere argue that the answer to the problem of someone else potentially unable to avoid a collision is to drive such that you cannot avoid a collision yourself. It’s quite perverse: the potential for another person’s unsafe driving justifies everyone’s actual unsafe driving.

What’s more, one has to wonder why a pile-up is considered worse than killing someone. In September 2013, up to 150 people contributed to a pile-up on the Sheppey Crossing during ten minutes of carnage in which it can hardly be disputed that most were driving such that they were unable to stop in the distance they could see to be clear. In this most extreme of examples, a single incident representing many multiples of the collisions listed above, eight people were seriously injured but there was not one fatality. Most participants simply suffered a bad day out and the hassle of an insurance claim. Not one person was charged with any offence. Such is the ability of the modern motor vehicle to protect its occupants, and such is the apathy of the world at large to people taking full advantage of that protection.

Sadly, the “arms race” view is shared by the courts: you can be convicted of causing death if you park in the carriageway or break down on a motorway, and in neither scenario is the driver of the vehicle who hit yours considered responsible for having done so: public information films might advise you not to drive such that you can’t avoid a collision around a bend, but the law says it’s absolutely fine to do it. The idea that you should be able to stop in the distance that you can see to be clear, possibly the most important tenet of safe driving, is laughed out of court.

Of course, it all gets rather worse if you’re stupid enough not to carry a car around with you.

Reason

In February 2014, Michael Mason was killed on London’s Regent Street when struck from behind by a Nissan Juke driven by Gale Purcell. The case is now heavy with notoriety, largely due to the absolutely disastrous handling of it by the Metropolitan Police.

It is known that Mason’s bicycle was struck by the Juke at a point to the offside of the centre, in other words directly in Purcell’s forward line of sight. The arguably reasonable issue in terms of evidence is that it is also known that Mason was initially further left on the carriageway but there is no CCTV evidence of the point at which he moved, and there are no reliable witness statements. (That said, one wonders how someone could manoeuvre a bicycle three-quarters of the way across the front of a vehicle behind them and moving in the same direction without a “competent and careful driver”—as is the pertinent statutory definition—being able to observe them from the wheel of that vehicle.)

However, while one might expect the police to explain why this might make the chance of provability low in the context of any likely charge (causing death by careless driving), they delivered quite a different explanation of inaction.

Instead, the document contains a list of points which feel very much like a prejudiced and scattergun approach to shoring up a decision not to prosecute. These include:

  • that Mason was (as was his legal right) wearing dark clothing
  • that Mason was (as was his legal right) not wearing a helmet
  • that a witness’s opinion was that “it would be difficult for a driver to pick out anything” in the visual noise of Regent’s Street
  • that Purcell maintained her course

Of course, maintaining one’s course is often an effective means of driving straight into things: if there is someone in front of you, it hardly seems a reason not to prosecute. And if the “sea of lights” in Regent’s Street genuinely makes it difficult for a driver to pick out anything (the police seem to take a witness’s opinion at face value rather than cite forensic evidence), this surely at least means that drivers should be taking rather more care; or, if it’s really that bad, perhaps cars shouldn’t be there at all. To use it as an excuse for a death is absurd, not least because Regent’s Street is heavy with pedestrian traffic, few if any of whom will be as well-illuminated as Mason. What recourse would their families have in the case of their death?

As for the absence of a helmet, this is clutching at straws: it has hardly prevented prosecution before, and nor should it. It has affected liability settlements through contributory negligence, but it hasn’t affected culpability. Even if it were to, it could only feasibly make the difference between careless driving and causing death by careless driving, but for it to do that would be a bold and deeply worrying precedent, not least because it is unprovable and would rely on expert witness opinion based on controversial evidence. That said, by citing it as a reason for not prosecuting, it is in danger of crating a de facto precedent, and is scarcely less worrying as a result.

Note also that yet again the “Be Safe, Be Seen” campaigns’ trinkets are argued elsewhere in the document as being worthless: “Mr Mason was displaying lights on the bicycle but these lights could easily be lost to a drivers sight in a busy central London Road in the dark where there are numerous other lights displayed.” Again, the message is clear: drivers are not expected to visually process people who are entirely legally illuminated.

Mason was wholly within the law, it would seem, yet the law will not stand up for his right to simply obey it. And neither will it, of course, for yours or mine.

The circus

If you’re in two minds as to whether this all seems a little alarmist, I would recommend reading my reaction to the trial of Steven Petterson last year, and the court notes which are linked from it. It is perfectly clear that there is little if any appetite in the system for using the law to make it clear that only one person chooses to drive a heavy, fast vehicle into a space that they simply cannot see. That one person is rarely held to account for that negligence.

But if you have hope that things will change, toss it in the bin. Look at the timeline above. Look in particular at the ever more densely populated orange band and the barren green band. They tell a simple tale: charges of causing death which go before a jury stand very little chance of succeeding. Any remotely worthwhile defence lawyer will look at this and know precisely how to play the system. In the vast majority of cases, the advice to the defendant will be: Let’s go to court. You’ll be nervous, but trust me. You’ll get off.

It takes minimal reasoning to convince a jury that This Could Happen To Anyone. No, not death. That couldn’t happen to anyone, because only idiots find themselves on tarmac without wearing a car around them. Driving into people. Anyone could do that.

And now, it takes minimal reasoning to persuade the police that This Could Happen To Anyone. It was too dark, it was too bright; hell, now we’re going with it was dark and there was too much light. Who cares? Logic doesn’t matter. Everyone knows you just keep driving because The Worst Thing You Can Do is to brake, because then people go into the back of you. Better to risk mowing someone down than to cause someone else to absolutely unavoidably smash the front of their car on the back of yours, right?

The police know the score. So do the CPS. They know that their resources are best spent on prosecutions which stand a good chance of securing a conviction. And, pragmatically, it’s hard to argue with that. As Einstein famously said, insanity is doing the same thing over and over again and expecting different results. Add public money into that process and in many ways it’s hard to justify prosecutions.

How long will it be before “struck from behind” prosecutions completely cease where low sun is cited? How long before they cease where urban visual noise is cited? If there is only so much money to spend on prosecutions, why throw it away on the ones which stand little chance of success? The police are, as their document quite clearly shows, ceding to jurors’ prejudices despite the law.

And there is the erasure. The erasure of responsibility for one’s vehicle leads to the erasure of law. This is creeping de facto legalisation of homicide. The masses want to keep their foot on the accelerator come what may, and they are winning the legal right to do so.

It doesn’t have to be

The hypocritical application of the Highway Code, citing victims’ non-compliance with mere advisory rules as reasons not to prosecute drivers while explicitly dismissing advisory rules in court (even as part of the definition for “a competent and careful driver”) is a systemic problem that needs to be reversed. And the acceptance of this by jurors, overlaid with their own driving experience and education, is a democratic arms race that is dismantling the purpose of law, which is to protect people. The motor vehicles used by the majority have become the ivory towers from which they regard the victims on the ground.

Without prominent recognition of responsibility being bound to potential for harm, without the principle of res ipsa loquitur being observed for consciously driving into unknown space, without the total overhaul of the statute in the Road Traffic Act of 1988 that encourages the democratic lowering of standards, without a systemically consistent approach to the Highway Code, and without any willingness for society to view any private transport issues from a vantage point other than the driver’s seat, this situation can only worsen.

In time, we will see more deaths arising from the NRA’s logic. Not by guns, but by vehicles. And we will see fewer convictions, and fewer prosecutions. And, unless people fight for a sea change in the law and its processes, the vicious circle of erasure will continue until the only reaction to a “struck from behind” death is the sweeping up of debris from the road.

This erasure of responsibility, of law, leads to only one thing: the erasure of lives.

Comments (7)

  1. HI Bez,
    great work there with the article.

    My Dutch girlfriend asks this:
    How does this compare to a European country with a Non-Jury system [not NL as they have a reverse bias, cyclists are protected]?

  2. Your last four paragraphs are, sadly, so right.

  3. Thank you for writing this.

  4. It is also worth noting that since the introduction of the Death by Careless Driving legislation the number of prosecutions for the more serious Death By Dangerous Driving have plummeted. The CPS would much rather take a guilty plea to the lesser offence than fight a not guilty dangerous plea. Even when the circumstances would clearly warrant it. Defence solicitors know this all to well.

  5. I was talking about this very thing with some septic colleagues recently. Apparently coming out of nowhere is a federal offence in the US

  6. so sad to think that we are potentially losing people from this very forum at any time to this, any one of us who is posting here on this timeline, and all we will be is a chalkmark on troad for a few hours and an insurance claim for the driver of the car. There is no public appetite for change, or even awareness of the scale of the problem. It makes me feel physically sick to think about it. Thank you Bez but preaching to the converted will change nothing.
    Perhaps it is time for action?
    Massed marches by victims of RTC deaths?

  7. Great bit of writing. Thank you.

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