Why Lock The Thread re Death of a Cyclist?

Eau Rouge

Wallace1492 wrote:

[Maybe it did not come across correctly. I was never intending to say Stubbs meant it. I had highlighted the fact the female did not mean it, and would no doubt suffer every day in relation to a call for tougher sentences, asking what her punishment should be.

I completely agree that the main difference is what happened after.

I understand what you are saying about lessening a prison sentence, but when any sentence would be quite paltry. For example, if Stubbs had stopped, as I believe he could have, he would more than likely not have gone to jail. He was imprisoned for his actions after.

Yes, the system is not perfect at all.

If Stubbs had stopped he wouldn't have gone to prison at all. He was found guilty of careless driving, which does not carry a custodial sentence. His prison time can only have been for the Perverting the Course of Justice charge he was also guilty of, which only relates to what happened after the accident.

Nicholls, the woman driver, despite her apparant regret and remorse was still give the maximum possible fine allowed and a fairly lenghtly ban. It amounts to the maximum allowed sentence, which makes me wonder how she avoided the "death by careless driving" charge that should have been around at the time, but would seem to indicate the judge in her case didn't think too lightly of her actions.

gtvlusso

hey Spen666:

I have read quite a bit of your stuff and I must admit that I am a bit lost: If you were handed this case from the outset, how would you have approached it?

is that okay to ask in this? - I don't wanna annoy anyone :-) If it is unfair, please feel free not to answer and I don't mean this in ego way - just how a lawyer would see this from a person enterting their office with this case.

please feel free to ignore if I have overstepped any boundary.

greg66_tri_v2.0

According to this, and this the driver was charged with causing death by dangerous driving and perverting the course of justice. He faced trial in 2007, when the jury was unable to reach a verdict on either charge. I'm rusty on my criminal law, but I think that means the jury were unable to form a sufficient majority to convict or acquit. Spen666 will know the real answer.

He was retried in 2008, at which he was not convicted of death by dangerous driving, but was convicted of death by careless driving - on a 10-2 majority. He was also done on the perverting charge on a 10-2.

It's pretty difficult to say how the case could/should have been handled without having a very good handle on the evidence that was to be presented.

Eau Rouge

Greg66 wrote:

He was retried in 2008, at which he was not convicted of death by dangerous driving, but was convicted of death by careless driving - on a 10-2 majority. He was also done on the perverting charge on a 10-2.

Not death by careless driving, just careless driving, the former didn't apply at the time of the incident so he couldn't be tried on it.


I don't wish to cause offence, and spen666 has shown time and again that I don't have much of a clue about the law, but if I was involved on the prosecution side I'd be very concerned about the moments between the crash itself and when Mr. Spink died. There appears to have been a period of time between them, a period during which had Stubbs stopped, Mr. Spink might well not have died. I can only presume there wasn't enough evidence from this time to charge him with manslaughter.

Wallace1492

Greg66 wrote:

According to this, and this the driver was charged with causing death by dangerous driving and perverting the course of justice. He faced trial in 2007, when the jury was unable to reach a verdict on either charge. I'm rusty on my criminal law, but I think that means the jury were unable to form a sufficient majority to convict or acquit. Spen666 will know the real answer.

He was retried in 2008, at which he was not convicted of death by dangerous driving, but was convicted of death by careless driving - on a 10-2 majority. He was also done on the perverting charge on a 10-2.

It's pretty difficult to say how the case could/should have been handled without having a very good handle on the evidence that was to be presented.

Just to clarify, he was actually found guilty of careless driving, failing to report an accident and perverting the course of justice. Death by careless driving was not an option at the time - it is now. His 2 years sentence was for perverting the course of justice. First trial was in 2008 and second was in November this year.

spen666

gtvlusso wrote:

hey Spen666:

I have read quite a bit of your stuff and I must admit that I am a bit lost: If you were handed this case from the outset, how would you have approached it?

is that okay to ask in this? - I don't wanna annoy anyone :-) If it is unfair, please feel free not to answer and I don't mean this in ego way - just how a lawyer would see this from a person enterting their office with this case.

please feel free to ignore if I have overstepped any boundary.

I presume you mean from a defence point of view rather than as a prosecutor.

First thing I used to do was see what the prosecution case was (assuming client wanted to deny the offence)- ignoring for a minute what client said.

I would establish in my mind if I thought theprosecution case had weaknesses in it.

If itwas acase that seemed strong I would seek to find out how the client would answer the charges.

I would then seek to take instructionsfrom the client focussing especially around any weaknesses in the prosecution case.

It is hard to answer a case withouthaving specific facts. I would advise client that attacks on victims, especially deceased ones rarely play well with the court, and will usually be a factor leading to increased sentences

When you are defending someone- that is what your job is - ie defending them. Its not about what is fair or nice, its about getting the best result for the client within the legal system by legitimate means.
I have given the example on here before of aclient who kiled someone in a road accident. i spoke to him before police arrested him. He was high on drink ansd drugs at time of accident. I told him if arrested now he would get done for death by dangerous whilst under the influence and face upto 10 years imprisonment. If hewas arrested days later after drink./ drugs were out of his system, he would only face cdangerous driving - max 2 year imprisonment. Client left the area for 5 days and then handed self in when sober etc. A legitimate and proper piece of defence work

Wallace1492

Oops, posted same as Eau Rouge at same time...

Agree with what you say Eau, there was a time that he could possible have done something but continued, we will never know why. The courts can only go on the evidence, and not on what "could" have been.

It is a very sad point that a moments bad choice can result in the death of an innocent victim, but the problem is what punishment to dish out.

In one case, the driver could stop, do what they can, report it, call ambulance etc, and be wracked with guilt and never drive again. In another case, they can shrug their shoulders, blame the cyclist. Both end up getting similar sentences but in my opinion, they are different. (well, thinking about it, are they!!??) Very, very hard question.

Could myself or any other driver be in that position with a moments drop in concentration, could you, the reader? Possibly. Is it just a matter of luck that it hasn't happen yet. Perhaps.

There is no doubt that Stubbs actions afterwards were totally reprehensible, and deserves all he got, if not more.

But what punishment for someone that drops concentration for a moment, then has to live with it. I do not think prison would be the answer. A lifetimes ban from driving? Maybe.

I would be interested to hear Terra Nova's thoughts on that. Would he have been happy with the full truth coming out, hearing how sorry the driver was, and no prison sentence.

There is no doubt the victims family have etheir own life sentence, and most normal people would have that too if they were the driver.

I have always thought this sort of situation to be very difficult.

tailwindhome

spen666 wrote:

I have given the example on here before of aclient who kiled someone in a road accident. i spoke to him before police arrested him. He was high on drink ansd drugs at time of accident. I told him if arrested now he would get done for death by dangerous whilst under the influence and face upto 10 years imprisonment. If hewas arrested days later after drink./ drugs were out of his system, he would only face cdangerous driving - max 2 year imprisonment. Client left the area for 5 days and then handed self in when sober etc. A legitimate and proper piece of defence work

Would your clients action's and your advice not constitute perverting the course of justice?

My understanding was that a solicitor's duty as an 'officer of the court' overrode their obligation to their client?

Not asking to be argumentative, just interested.

What would the differences be between your actions and that of Johnny Sandhu

Wallace1492

spen666 wrote:

When you are defending someone- that is what your job is - ie defending them. Its not about what is fair or nice, its about getting the best result for the client within the legal system by legitimate means.
I have given the example on here before of aclient who kiled someone in a road accident. i spoke to him before police arrested him. He was high on drink ansd drugs at time of accident. I told him if arrested now he would get done for death by dangerous whilst under the influence and face upto 10 years imprisonment. If hewas arrested days later after drink./ drugs were out of his system, he would only face cdangerous driving - max 2 year imprisonment. Client left the area for 5 days and then handed self in when sober etc. A legitimate and proper piece of defence work

Spen, a tough one. Most people might say legitimate - yes, proper - no. I do understand that you have to act on the best interests of the client, and your advice to him was what was best for him to reduce sentence, but it led to him (i assume) defeating the system and not being held responsible for his actions. You know he should have got longer, perhaps there was circumstantial evedince that he "may" have been drunk or on drugs, but as there was no hard evidence, this was not possible to persue. This to me would be horrendous if I was the family of the victim looking for proper justice, and the truth (as Terra Nova is/was)

However it does reinforce your earlier point that courts do not always get the truth, just some version of it that can be proved "beyond reasonable doubt".

You must have pretty thick skin in those cases as I for one could not do that. (no offense!!)

spen666

WheezyMcChubby wrote:

spen666 wrote:

I have given the example on here before of aclient who kiled someone in a road accident. i spoke to him before police arrested him. He was high on drink ansd drugs at time of accident. I told him if arrested now he would get done for death by dangerous whilst under the influence and face upto 10 years imprisonment. If hewas arrested days later after drink./ drugs were out of his system, he would only face cdangerous driving - max 2 year imprisonment. Client left the area for 5 days and then handed self in when sober etc. A legitimate and proper piece of defence work

Would your clients action's and your advice not constitute perverting the course of justice?

My understanding was that a solicitor's duty as an 'officer of the court' overrode their obligation to their client?

Not asking to be argumentative, just interested.

What would the differences be between your actions and that of Johnny Sandhu

Client's actions were not peverting course of justice.

He left scene of an accident before I spoke to him. Indeed it was some 12 hours later he called me. I advissed him of the consequences of being arrested now or later.

You have the right not to incriminate yourself, so he had no duty to hand himself in.

TRe the case you quoted. All I did was advise someone what the penalties were if arrested today or arrested later. I took no part in their crime which had been completed hours before I spoke to them.

I am more than happy to justify my actions. I never made any secret at the time to police/ CPS/ court about what I had done and indeed the Law Society also confirmed my actions were the appropriate and proper actions of a good robust defence lawyer

spen666

Wallace1492 wrote:

....
Spen, a tough one. Most people might say legitimate - yes, proper - no. I do understand that you have to act on the best interests of the client, and your advice to him was what was best for him to reduce sentence, but it led to him (i assume) defeating the system and not being held responsible for his actions. You know he should have got longer, perhaps there was circumstantial evedince that he "may" have been drunk or on drugs, but as there was no hard evidence, this was not possible to persue. This to me would be horrendous if I was the family of the victim looking for proper justice, and the truth (as Terra Nova is/was)

However it does reinforce your earlier point that courts do not always get the truth, just some version of it that can be proved "beyond reasonable doubt".

You must have pretty thick skin in those cases as I for one could not do that. (no offense!!)

That case was very odd. The deceased was the best friend of my client.

The deceased's sister came to every court hearing and gave evidence at sentencing hearing on behalf of my client.

I did know my client was high on drink and drugs. He had told me that at the outsethewas

Eau Rouge

Wallace1492 wrote:

Could myself or any other driver be in that position with a moments drop in concentration, could you, the reader? Possibly. Is it just a matter of luck that it hasn't happen yet. Perhaps.

Veering off topic now....
I can imagine having a moments loss of concentration. I cam imagine having an accident in that moment. I can't imagine how anyone has such a moment when following a cyclist, or approaching a roundabout, let alone both.

You see a cyclist on the road, you know they are not going to be moving along the way a car in front would, and that you really will have to watch them until your past. Likewise a roundabout, you know you're going to have to think and react to unknown cars when you get to it.
How does anyone stop concentrating in those circumstances? Those are times you concentrate more, surely? Having a momentary loss of concentration in those circumstances is not something to console yourself with or to lessen the guilt or blame with.

Wallace1492

So, it is really back to what will try and ease the situation. Tougher sentences - no, i don't think so, as I dont think it is a factor, that will not stop someone losing concentration.

Education, a tougher driving test - I think this is where a difference can be made. Showing consequences of what could happen should be a deterrent. Back to basics, an overhaul of the whole learning to drive and attitudes around it. Not easy to do, as it will cost, and most people will have the attitude that it is their "right" to drive.

Again, I would be interested to hear Terra Nova's view's, and indeed yours Spen.
In the case you had, what would have stopped your client getting behind the wheel that day, you may not know, maybe nothing would have, but interested in your opinion.

spen666

Wallace1492 wrote:

So, it is really back to what will try and ease the situation. Tougher sentences - no, i don't think so, as I dont think it is a factor, that will not stop someone losing concentration.

Education, a tougher driving test - I think this is where a difference can be made. Showing consequences of what could happen should be a deterrent. Back to basics, an overhaul of the whole learning to drive and attitudes around it. Not easy to do, as it will cost, and most people will have the attitude that it is their "right" to drive.

Again, I would be interested to hear Terra Nova's view's, and indeed yours Spen.
In the case you had, what would have stopped your client getting behind the wheel that day, you may not know, maybe nothing would have, but interested in your opinion.

What would have stopped him? Probably not a lot as he was high on drink & drugs and not thinking straight.

Personally, I would increase penalties for several offences:

1. No Insurance- I would make it imprisonable- so the courts can jail the persistent offenders.
2.Fail to Stop - I would increased the penalty to the maximum for death by dangerous driving ( 14 years IIRC). There must be no incentive to leave the scene of an accident- see the example I referred to above)

I would scrap dangerous/ careless driving offences and replace with a new offence of bad driving and allow the court to sentence according to the blame they attach ie max penalty the same as dangerous driving. I would do same for death by... offences

There is a general view that short prison sentences do not work- ie they are too short for prisons/ probation to do rehabilitation work, but I'm not sure that is what is needed for this type of offence. The real threat of prison will keep most drivers alert and driving carefully.

I would send more people to prison for motoring offences.

I would prosecute SMIDSY cases- IMHO that is a clear admission of careless driving ( bad driving under my new regime).

spen666

Oh, and I would also introduce a pschometric type of test into driving test so that people who are "dangerous" personalities are weeded out before passing their test

Increase penalties for driving without a licence to the same as driving whilst disqualified- ie iimprisonable

tailwindhome

spen666 wrote:

Client's actions were not peverting course of justice.

He left scene of an accident before I spoke to him. Indeed it was some 12 hours later he called me. I advissed him of the consequences of being arrested now or later.

Presumably this is the distinction - advising your client of the consequences as opposed to advising him to scarper.

You have the right not to incriminate yourself, so he had no duty to hand himself in.

Even though he does so to conceal evidence? Would destroying other physical evidence be covered by the right not to incriminate yourself or be perverting the course of justice?

Re the case you quoted. All I did was advise someone what the penalties were if arrested today or arrested later.

Fair comment. Again I presume the distinction above.

I am more than happy to justify my actions. I never made any secret at the time to police/ CPS/ court about what I had done and indeed the Law Society also confirmed my actions were the appropriate and proper actions of a good robust defence lawyer

I make no judgement on your actions legally or morally.

I'm only asking.

zanes

spen666 wrote:

Oh, and I would also introduce a pschometric type of test into driving test so that people who are "dangerous" personalities are weeded out before passing their test

+1

Increase penalties for driving without a licence to the same as driving whilst disqualified- ie iimprisonable

Isn't this the case currently? What are the different offences?

tailwindhome

spen666 wrote:

Increase penalties for driving without a licence to the same as driving whilst disqualified- ie iimprisonable

Would that include allowing your license to go out of date, because you put it in the important documents file and forgot about it for 10 years :oops: :oops: :oops:

spen666

WheezyMcChubby wrote:

spen666 wrote:

...

You have the right not to incriminate yourself, so he had no duty to hand himself in.

Even though he does so to conceal evidence? Would destroying other physical evidence be covered by the right not to incriminate yourself or be perverting the course of justice?

As said beforethis is the not incriminating yourself. If hehad burned the carout or some other destruction of physical evidence he wouldbe guilty.

Here, he just avoided being arrested. You have not legal duty to hand yourself in.


as for theother points. I realise you were not having a go at me, but a now banned member of this forumdid takegreat offenceat my actions last time this was raised. I thought I'd get mydefence in before he returns with his 9000th new personna

suzyb

tbh I don't think there is a solution to the problem of lack of concentration. And I'm not sure it would be fair to put people in jail for years for it.

I do agree with tougher sentences for people driving without insurance or a license though.

And do all defence lawyers think like you spen. Just in case I ever need one

spen666

zanes wrote:

spen666 wrote:

Oh, and I would also introduce a pschometric type of test into driving test so that people who are "dangerous" personalities are weeded out before passing their test

+1

Increase penalties for driving without a licence to the same as driving whilst disqualified- ie iimprisonable

Isn't this the case currently? What are the different offences?

No licence on carries a fine.Driving disqualified is imprisonable

cjw

spen666 wrote:

I would prosecute SMIDSY cases- IMHO that is a clear admission of careless driving ( bad driving under my new regime).

I think this is actually the key. Think of the way drink driving was focused upon, with more consistent prosecution and has now become (almost) socially unacceptable.

Similar stance to SMIDSY would work very well IMHO. Publicity campaign focused on loosing your license and from this your job etc etc due to not paying attention supported with fines and loss of license for a period in minor bad driving situations (I like the 'bad driving' idea) - the minimum and prison in death cases EVERY TIME. That would 'drive' the message home.

spen666

-null- wrote:

tbh I don't think there is a solution to the problem of lack of concentration. And I'm not sure it would be fair to put people in jail for years for it.

I do agree with tougher sentences for people driving without insurance or a license though.

And do all defence lawyers think like you spen. Just in case I ever need one

I am NOT advocating years in prison. I think for most motorists the threat of even a short sentence would increase the standard of their driving

zanes

spen666 wrote:

zanes wrote:

spen666 wrote:

Oh, and I would also introduce a pschometric type of test into driving test so that people who are "dangerous" personalities are weeded out before passing their test

+1

Increase penalties for driving without a licence to the same as driving whilst disqualified- ie iimprisonable

Isn't this the case currently? What are the different offences?

No licence on carries a fine.Driving disqualified is imprisonable

What about such things as "driving otherwise than in accordance with a license" (wrong class, learner without L plates etc?)

BTW, not trolling, genuinely interested

iain_j

I think "no licence" comes under driving otherwise than in accordance with one.

Specialized Needs

spen666 wrote:

<snip>I am NOT advocating years in prison. I think for most motorists the threat of even a short sentence would increase the standard of their driving

I would agree if the motorist believes that there is a reasonable chance of getting caught and convicted. However, if on the other hand the law is changed and there is no practical enforcement, I don't see that increasing the penalty would affect things for much longer than the media campaign raising awareness around its introduction (ref: points on licence for using a mobile to communicate whilst in 'control' of a motor vehicle).

A start would be to enforce the current laws. I also like the 'bad driving' and 'death by bad driving' ideas, removing the choice to be made over Careless and Dangerous. I would also love to see SMIDSY being tantamount to an admission of fault (would that be a presumed liability ). And I can't argue with the psychometric testing idea: there are some relatives of mine who I won't have drive me around as I fear what will happen if they get annoyed.

Which change listed above would be the most likely to succumb to an organised pressure campaign, I wonder?

Terra Nova

Just caught up with the thread.... I am very pleased to be reading opinions and respectful exchanges of views.... Can I ask one thing? Please leave number9 alone, I don't know him personally but he saw my brother's case and felt strongly enough to start a thread on the internet about it, from which many people sent feelings of sympathy my family's way. My family and myself are amazed and touched that some small recognition of my brother has come of this. What I can gather from his posts he cares about cyclists being kept safe on our roads. If it his him that has been banned I don't think he deserves it....

I'm going to go back and respond to some of the questions and opinions raised but can I ask something else? What do these abbreviations mean?

IIRC
SMIDSY

tailwindhome

Terra Nova wrote:

Just caught up with the thread.... I am very pleased to be reading opinions and respectful exchanges of views.... Can I ask one thing? Please leave number9 alone, I don't know him personally but he saw my brother's case and felt strongly enough to start a thread on the internet about it, from which many people sent feelings of sympathy my family's way. My family and myself are amazed and touched that some small recognition of my brother has come of this. What I can gather from his posts he cares about cyclists being kept safe on our roads. If it his him that has been banned I don't think he deserves it....

I'm going to go back and respnd to some of the questions and opiniosn raised but can I ask something else? What do these abbreviations mean?

IIRC
SMIDSY

If i remember correctly

Sorry Mate, I Didn't see you

suzyb

spen666 wrote:

-null- wrote:

tbh I don't think there is a solution to the problem of lack of concentration. And I'm not sure it would be fair to put people in jail for years for it.

I do agree with tougher sentences for people driving without insurance or a license though.

And do all defence lawyers think like you spen. Just in case I ever need one

I am NOT advocating years in prison. I think for most motorists the threat of even a short sentence would increase the standard of their driving

Sorry I misunderstood. However I don't think the threat of prison would improve the standard of driving. imho nothing will.

deptfordmarmoset

Terra Nova wrote:

Just caught up with the thread.... I am very pleased to be reading opinions and respectful exchanges of views.... Can I ask one thing? Please leave number9 alone, I don't know him personally but he saw my brother's case and felt strongly enough to start a thread on the internet about it, from which many people sent feelings of sympathy my family's way. My family and myself are amazed and touched that some small recognition of my brother has come of this. What I can gather from his posts he cares about cyclists being kept safe on our roads. If it his him that has been banned I don't think he deserves it....

I'm going to go back and respond to some of the questions and opinions raised but can I ask something else? What do these abbreviations mean?

IIRC
SMIDSY

Glad to see you're still posting, I was a afraid you might have given up on us. I'm also very glad to see your comments about number9.