Hit him at 52 in 40 area but not my fault!

Mike Healey

Here we go, again:

http://www.bbc.co.uk/news/uk-wales-sout ... s-15686419

Mr_Cellophane

Mr Poulson, a Cardiff University student, suddenly pulled out and hit the side of his lorry.

Mr Poulson put out his right hand as if to indicate a right turn but did not look behind him.

Sounds mainly the fault of the cyclist.

Mike Healey

And we are relying on the word of a driver who was not only exceeding the speed limit by 15mph before the collision, but was also on his mobile and had merely stopped talking at the time of the collision? And, of course he had no reason to lie, had he?

The young man was only an experienced cyclist, after all, so, naturally, he would have swerved into the path of the lorry without looking, would he not? On a 40mph road?

Oh, and would the driver have been at the collision point if he'd been obeying the speed limit, instead of being over it by, roughly 37.5%? And his concentration hadn't been affected by being on his mobile, would it, even tho' every piece of research I've read demonstrates that being on a mobile affects drivers even worse than alcohol?

It doesn't sound like the cyclist's fault to me, but more like a driver lying to save his skin

Mr_Cellophane

Mike Healey wrote:

And we are relying on the word of a driver who was not only exceeding the speed limit by 15mph before the collision, but was also on his mobile and had merely stopped talking at the time of the collision? And, of course he had no reason to lie, had he?

The young man was only an experienced cyclist, after all, so, naturally, he would have swerved into the path of the lorry without looking, would he not? On a 40mph road?

Oh, and would the driver have been at the collision point if he'd been obeying the speed limit, instead of being over it by, roughly 37.5%? And his concentration hadn't been affected by being on his mobile, would it, even tho' every piece of research I've read demonstrates that being on a mobile affects drivers even worse than alcohol?

It doesn't sound like the cyclist's fault to me, but more like a driver lying to save his skin

Where does it say these were the lorry drivers quotes ? They could have been the cyclist's mother's.

priory

If the court heard that he was speeding to that extent and on the phone I do not see how they could find the driver innocent of blame; but not surprised. The courts are not prepared to do anything substantial to punish bad driving and drivers like this one know it.
Killing a student is just an inconvenience to some people. You have to look morose for a bit. I bet his colleagues expressed sympathy for him.

If he had not been speeding the cyclist's calculation about the turn might have been completelty correct and no collision would have happened. Even if there was still a crash he would have been hit at something less than 40mph and the time under the truck would have been shorter. Why did the court not agree with that? Because they are not interested in enforcing the driving laws. The judges and magistrates have more sympathy for the drivers than their victims. At one time they used to say so in court quite often, but they have stopped that.

not that I am cynical or anything, it's the truth I tell you.

spen666

priory wrote:

If the court heard that he was speeding to that extent and on the phone I do not see how they could find the driver innocent of blame; but not surprised. The courts are not prepared to do anything substantial to punish bad driving and drivers like this one know it. ......

The driver was not found innocent of blame. He was found not guilty of causing death by careless driving. Am I splitting hairs? No - the system in England & Wales are that you are found guilty or not guilty. The verdict of the court was not guilty- this is different from being found innocent. The prosecution must prove defendant is guilty, not the other way round.


As for the courts not being prepared to do anything substantial... are you really suggesting that the courts should be punishing the driver after a jury of members of the public had found him not guilty?

Remember who found him not guilty- yes, a jury of members of the public, not a decision of the Judge, but the jury.

priory

'''''The driver was not found innocent of blame. He was found not guilty of causing death by careless driving. Am I splitting hairs? No - the system in England & Wales are that you are found guilty or not guilty. The verdict of the court was not guilty- this is different from being found innocent. The prosecution must prove defendant is guilty, not the other way round.'''''

of course you are splitting hairs. what has any of that got to do with the fact that the court failed to take action against a truck driver who killed a boy while doing lethal, illegal speed and on the phone? The law is not protecting us or our children and as such is failing.

As has been said above it is not morally acceptable to drive past someone at such speed and with evidence of inadequate attention, whatever that cyclist might have got up to , because it is to be expected that people may make mistakes and put themselves in danger. For the cps to prosecute we may gather the evidence was good. he was let off by an inadequate system.
I shall spare you my opinion of the jury.

spen666

priory wrote:

'''''The driver was not found innocent of blame. He was found not guilty of causing death by careless driving. Am I splitting hairs? No - the system in England & Wales are that you are found guilty or not guilty. The verdict of the court was not guilty- this is different from being found innocent. The prosecution must prove defendant is guilty, not the other way round.'''''

of course you are splitting hairs. what has any of that got to do with the fact that the court failed to take action against a truck driver who killed a boy while doing lethal, illegal speed and on the phone? The law is not protecting us or our children and as such is failing.

As has been said above it is not morally acceptable to drive past someone at such speed and with evidence of inadequate attention, whatever that cyclist might have got up to , because it is to be expected that people may make mistakes and put themselves in danger. For the cps to prosecute we may gather the evidence was good. he was let off by an inadequate system.
I shall spare you my opinion of the jury.

So you want the courts to punish those whom the jury (remember 12 members of the public) have found NOT GUILTY.

right- you are obviously unable to see the consequences of such a proposal








Turning to the Jury- they are made up of 12 members of the public - what would you prefer- a jury hand selected by the state- thus ensuring we end up with Stalinist type show trials.

StorckSpeed

I'm left dumbfounded by this.
"Christopher Shapland, aged 28, admitted exceeding the speed limit but denied it had contributed to the accident."
He was driving whilst on the phone and exceeding the speed limit by 37%. If he wasn't on the phone he might have been paying more attention. If he had been doing the speed limit then not only would he have been further from the cyclist before he made the manouevre but his thinking time and stopping time would have increased and instead of hitting the student at 52mph he might have hit him at 30mph which may have made all the difference. Surely some of this contributed to the cyclists death.
The Highway code suggests that you should slow down when passing vulnerable road users and give them as much room as you would a car. I don't think these rules of the road were being followed.
You can be found guilty of causing death by dangerous driving if you were in a collision and were talking on the phone at the same time, even if speed wasn't a factor which it was in this case. If this driver is not guilty of causing death by dangerous driving then I can't see how anyone is ever found guilty of this charge EVER.

"He said Mr Poulson put out his right hand as if to indicate a right turn but did not look behind him."
So the only person that suggests the student didn't look WAS the driver. The man with the vested interest.

I'm afraid this strikes me once again as demonstrating that jurys feel a degree of sympathy towards fellow drivers who act irresponsibly and drive dangerously. They see themselves in a similar situation and are influenced by their own experiences and lifestyles.

thegibdog

StorckSpeed wrote:

I'm afraid this strikes me once again as demonstrating that jurys feel a degree of sympathy towards fellow drivers who act irresponsibly and drive dangerously. They see themselves in a similar situation and are influenced by their own experiences and lifestyles.

Agreed, it's a whole lot easier to sympathise with someone doing something you do every day; most jurors will be drivers, most drivers break the speed limit, a significant number use their mobile phone whilst driving. How many jurors will be regular cyclists?

It's also easier to sympathise with someone who is in front of you rather than someone who isn't, one of the reasons why trial by jury doesn't always work.

dilemna

spen666 wrote:

priory wrote:

'''''The driver was not found innocent of blame. He was found not guilty of causing death by careless driving. Am I splitting hairs? No - the system in England & Wales are that you are found guilty or not guilty. The verdict of the court was not guilty- this is different from being found innocent. The prosecution must prove defendant is guilty, not the other way round.'''''

of course you are splitting hairs. what has any of that got to do with the fact that the court failed to take action against a truck driver who killed a boy while doing lethal, illegal speed and on the phone? The law is not protecting us or our children and as such is failing.

As has been said above it is not morally acceptable to drive past someone at such speed and with evidence of inadequate attention, whatever that cyclist might have got up to , because it is to be expected that people may make mistakes and put themselves in danger. For the cps to prosecute we may gather the evidence was good. he was let off by an inadequate system.
I shall spare you my opinion of the jury.

So you want the courts to punish those whom the jury (remember 12 members of the public) have found NOT GUILTY.

right- you are obviously unable to see the consequences of such a proposal








Turning to the Jury- they are made up of 12 members of the public - what would you prefer- a jury hand selected by the state- thus ensuring we end up with Stalinist type show trials.

You are surely not this naive Spen?

Juries are directed by judges on the law and told what they should and should not be considering. The CPS has many questions to answer as they and their advocates from time to time put forward very weak cases or only prosecute much lower offences and still c0ck up the prosecution of these and when faced with a particularly tenacious defence cave in. Also juries have been known not to be as impartial as you hypothetically suggest. The jury may have had a disproportionately high number of truckers in it . In your world miscarriages of justice don't exist whether an innocent is found guilty or a guilty person is found not guilty. It works both ways. This case is shocking. It is morally and legally repugnant that this guy got off.

symo

Where does he live?
Who is his employer?

Will Nunez

Id like to know where tis happened. If its a clear stretch of road with good visibity then surely the truck driver should have seen the cyclist and given him due space. He should also have been cognisent that there was a potential for turning if he could see a junction or service station. Surely competant driving is about predicting the movement of vehicles around you. He should have been going at a speed to react to the cyclist signalling which he clearly wasnt, especially with a heavy load behind him. Even if it wasnt a clear stretch then if he was rounding abend then the speed was inappropriate. Coming from behind surely there is a massive onus on the truck driver to have allowed for all outcomes.

Sounds to me lik ethe usual overtake and leave the bike 2inches of space instead of doing a proper overtake manouvre away from junctions and turnoffs. But then a 1page story on the BBC doesnt provide the "unnewsworthy 200 page report with the details in it.

Pross

These issues always look cut and dried from news headlines but juries will be sitting for days in many cases listening to all the facts (and opinions) from both sides before making a decision so are in possession of far more information. I'm not saying the driver wasn't seriously in the wrong or that the cyclist did anything he shouldn't have but none of us on here have enough information to contradict the jury's decision.

Will Nunez

cases from the prosecution and the defence in a little more detail

http://www.thisissouthwales.co.uk/Drive ... story.html

One story quotes him as a keen motorcyclist and "He loved his BMX", more info to give us prejudices in the case ;-)

sfichele

The location, I think, was High Noon service station

Found from this site

Its a long clear stretch of road. From reading other websites another driver saw Poulson give a hand signal. Clearly the lorry driver didn't because the idiot was on the phone not-concentrating and obviously just overtaking them on auto-pilot.

It was also significant, said Mr Wright, that a motorist had seen Mr Poulson with his right arm extended, signalling his intention to turn, at the time of the collision.

diy

There are age old criminal law concepts which need to be understood: mens rea and actus reus - the guilty mind and the guilty act.

Until fairly recently courts judge a person, not on the results of their actions, but their acts and their intent. Imagine two scenarios:

A: an impatient driver fails to look properly and pulls out of a junction.
B: an impatient driver fails to look properly and pulls out of a junction running over a cyclist and killing them.

the intent and the act are the same in A and B. Is it fair that A gets off and B goes to prison, when what they did and intended to do is the same? In criminal law there are now different penalties for the result. Death by dangerous driver vs dangerous driving for example.

But in both cases it is the intention and the act that is being judged.

IMO You should judge a person not on the result of actions, but the intention and the action.

sfichele

So basically if I were to drive like a reckless Mr Magoo reaping havoc, destruction and killing people in my wake, its all fine and good so long as a I didn't mean to.

Oh wait what happened to driving with due care and attention?

diy

If a reasonable person would know or should know that its dangerous, then you have both the guilty act and the guilty mind.

The point I'm making is that (and nobody knows the facts here) this is a case where it appears a lorry driver exceeding the speed limit for his vehicle was unable to react when a cyclist pulled across his path while being overtaken.

His guilty act was speeding. There may have been other aspects, but the Jury didn't find evidence beyond reasonable doubt. So they had to consider the facts as proven. They were asked to judge - did this speed equal dangerous or careless driving. The Jury were asked to judge the act on its attributes. The result of the act is irrelevant to the guilt.

BigJimmyB

Mike Healey wrote:

every piece of research I've read demonstrates that being on a mobile affects drivers even worse than alcohol?

Really?
Please share your sources
Worse than how much alcohol?

Genuinely interested BTW....

sfichele

diy wrote:

If a reasonable person would know or should know that its dangerous, then you have both the guilty act and the guilty mind.

And an example of that might be driving at excessive speed, whilst on a mobile phone, driving a large goods vehicle, and overtaking some cyclists on a narrow road after passing road markings indicating SLOW DOWN, beware of the junction and beware of overtaking!!!

From what I can see this case centres on what the cyclist did. Did he signal his intention clearly? Did he look over his shoulder? Did he give the vehicles behind enough time to react to his signal (if any).

If the cyclist did give good signals and ample time for the signal to be observed then the driver is massively at fault, because from his own defense he claims the cyclist "just swerved out" which strongly suggests he hadn't been paying attention because he was too busy nattering on the phone!

If the cyclist had "swerved" out then this is nothing more than a tragic accident. However, there are witnesses stating the cyclists gave a clear hand signal.

I really can't see any obvious mitigating factors in favour of the driver. Just go and look at the road on google street view. It is seriously narrow to be driving a truck at excessive speeds at that point whilst on a phone, especially when approaching two cyclists at a junction

sfichele

In addition his statements seem to contradict those of the other witnesses.
source

Giving evidence, Mrs Powell said she was driving behind the lorry on the A40 in the direction of Nantgaredig and there was nothing to obscure her view of Mr Poulson when the lorry pulled out to overtake Mrs Poulson.
Mr Poulson was "in the middle of the lane", preparing to turn right into the garage, and his right arm was fully extended, she said.

Mrs Powell believed that Mr Poulson had been stationary and said she had not seen him moving across the road.

Another witness, Belinda Jones, was travelling along the A40 in the opposite direction.

She saw two cyclists in the middle of the road and thought it was unusual that someone would start to overtake them when they were in that position.

Other statements suggest the driver was more than 86 m behind the cyclist when he had stopped to make the turn.

Yet he maintains that Poulson had just swerved blindly into him, despite the fact he also claimed that he had been concentrating on the two cyclists from a distance and had moved to the opposite lane to overtake. If that's true how did two other drivers see the signal and road positioning of the cyclists, but he didn't? Possibly because he wasn't concentrating. Possibly because he'd only seen the first cyclist and not the second? Who knows, but I from what I've read his story doesn't add up!

diy

We were not in court so we don't know if any of that is true.

There are a lot of contradictions in the evidence offered, we only have what the press reported and I'm not commenting on the evidence or lack off.

Giving a signal does nothing other than convey your intentions to others it does not give you a right to make a move. Its just information. In any case this is not about civil liability for damages, its about criminal guilt. I'm not saying he isn't responsible for the accident in some way.

The definition of careless and dangerous driving is published and reasonably well established. See the charging standard for info:
http://www.cps.gov.uk/publications/pros ... olicy.html

sfichele

That makes very interesting reading. Especially this bit:

Causing death by dangerous or careless driving
It is not a requirement of Section 1, Section 2B (see note 16) or Section 3A of the Road Traffic Act 1988, that the prosecution proves that the death was foreseeable. The prosecution only needs to prove that the vehicle was driven dangerously or carelessly and that the driving was the cause of the death of another person. The essential qualitative difference between the offences therefore depends on the standard of driving.

Both offences are objective in the sense that the defendant's state of mind is not normally a relevant consideration in determining whether the defendant drove dangerously or carelessly. The fact that a defendant genuinely believed that in the circumstances his or her driving was not dangerous is irrelevant.

Both offences require the driver to depart from the standard of a competent and careful driver, but the key difference between the offences is the extent to which the driving falls below the required standard:

to be dangerous, the driving must fall 'far below' the required standard;
to be careless, the driving need only fall 'below' the required standard.

Which suggests that mens rea is irrelevant!

diy wrote:

Giving a signal does nothing other than convey your intentions to others it does not give you a right to make a move

How so in this case? The truck or any other vehicle does NOT that have an implicit right to overtake a cyclist or any other vehicle unless safe to do so. If this had been a car signalling your argument would suggest that the truck could over take it whilst signalling right - which is without doubt illegal.

From all accounts the cyclist had clearly signalled his intentions a long way before the truck hit him. The driver's the lack of awareness and speed contributed to the accident.

diy

mens rea is not a requirement in strict liability offences. There is a requirement for a guilty mind unless there is a statement to the contrary in the statute. The default position is that there is a requirement for a guilty mind. (e.g. theft, murder, manslaughter etc)

Setting aside strict liability offences for a moment, the guilty mind is sufficient to convict without there being a a guilty act. Attempted robbery, attempting to pervert the course of justice... etc.

How so in this case? The truck or any other vehicle does NOT that have an implicit right to overtake a cyclist or any other vehicle unless safe to do so. If this had been a car signalling your argument would suggest that the truck could over take it whilst signalling right - which is without doubt illegal.

why do you think this would be illegal? what law is broken? At what point would it be illegal? Are you talking about liability for an accident or are you saying a offence has been committed? I'm sure you'd accept there could be a scenario where the signal was too late for the overtaking vehicle? If you are in two lanes of traffic and are being overtaken by a faster car, does indicating give you the right to pull in to his path?

I don't expect you to answer this, I'm just trying to show that its not a straight forward matter of accident liability resulting in a criminal act.

sfichele

diy wrote:

The default position is that there is a requirement for a guilty mind

I'm not sure that is correct at all in this particular case. With regards to mens rea, everything I've read so far it is completely irrelevant in a charge/prosecution of Causing Death by Dangerous Driving. Apparently the law was changed in the 1991 Road Traffic Act, as explained by this document and many others

It is significant that Parliament intervened shortly after Caldwell to reform the offence of reck-
less driving (and therefore causing death by reckless driving) by replacing it with the
offence of dangerous driving—see the Road Traffic Act 1991. The effect of this was
to make clear that the offence could now be committed without any form of mens rea
that required reference to the defendant’s state of mind. Recklessness was replaced, as a
fault element, by the term ‘dangerous’. Whilst it could and was argued that recklessness
implied some conscious risk-taking by the accused, there was no doubt that ‘dangerous-
ness’ as a fault element rested entirely upon an objective assessment of the defendant’s
conduct. In other words a defendant could drive dangerously because he had a badly
secured load on the back of his trailer—there was no need for him to be aware of this.

With regards to breaking the law you are right things are very grey and murky! The highway code claims to be law, however, the road traffic act has this to say.

failure on the part of a person to observe a provision of the Highway Code shall not of itself render that person liable to criminal proceedings of any kind but any such failure may in any proceedings (whether civil or criminal, and including proceedings for an offence under the Traffic Acts, the [1981 c. 14.] Public Passenger Vehicles Act 1981 or sections 18 to 23 of the [1985 c. 67.] Transport Act 1985) be relied upon by any party to the proceedings as tending to establish or negative any liability which is in question in those proceedings.

Which to the pedant means that the highway code is only relevant if a criminal charge is brought and tested in court.

How exactly does your example of changing between two lanes have any relevance to this case? You are right that indicating in that case doesn't give you a right to change lanes - but on a single carriage way if you are turning right and some idiot overtakes you at that point and smashes into you they are in the wrong (with regards to the highway code in many respects). If you we are splitting hairs then you are right that the actual act is not explicitly defined in law anywhere. However, there would surely be grounds to charge under the provisions Dangerous driving or Careless, and inconsiderate, driving

diy

Good on you for doing some research to understand the subject, note my previous statement regarding strict liability offences in my previous post.

mens rea is not a requirement in strict liability offences. There is a requirement for a guilty mind unless there is a statement to the contrary in the statute. The default position is that there is a requirement for a guilty mind.

Most road traffic offences are strict liability offences - dangerous driving, driving without due care, speeding etc.

My original point about mens rea and reas actus was that too many of the replies in this thread focused on the results of the act - i.e. a death. A person did something and another person died - therefore it must be death by dangerous or careless driving. This is wrong.

but on a single carriage way if you are turning right and some idiot overtakes you at that point and smashes into you they are in the wrong (with regards to the highway code in many respects). If you we are splitting hairs then you are right that the actual act is not explicitly defined in law anywhere. However, there would surely be grounds to charge under the provisions Dangerous driving or Careless, and inconsiderate, driving

Being partially or fully liable for the accident (e.g. failing to abide by one or more of the rules of the hwc) does not mean you have committed an offence. In any case there were grounds, the CPS did Charge, the jury found that there was insufficient evidence.

When you make your turn, the obligation is on you to check its safe. When you make an overtake the obligation is on you to check its safe. One or both parties failed to do this. We don't know who. I'm not saying the jury were right or wrong in their finding. I'm defending the court - we cannot rely on the report in the paper as safe statement of evidence.

dilemna

diy wrote:

Good on you for doing some research to understand the subject, note my previous statement regarding strict liability offences in my previous post.

mens rea is not a requirement in strict liability offences. There is a requirement for a guilty mind unless there is a statement to the contrary in the statute. The default position is that there is a requirement for a guilty mind.

Most road traffic offences are strict liability offences - dangerous driving, driving without due care, speeding etc.

My original point about mens rea and reas actus was that too many of the replies in this thread focused on the results of the act - i.e. a death. A person did something and another person died - therefore it must be death by dangerous or careless driving. This is wrong.

but on a single carriage way if you are turning right and some idiot overtakes you at that point and smashes into you they are in the wrong (with regards to the highway code in many respects). If you we are splitting hairs then you are right that the actual act is not explicitly defined in law anywhere. However, there would surely be grounds to charge under the provisions Dangerous driving or Careless, and inconsiderate, driving

Being partially or fully liable for the accident (e.g. failing to abide by one or more of the rules of the hwc) does not mean you have committed an offence. In any case there were grounds, the CPS did Charge, the jury found that there was insufficient evidence.

When you make your turn, the obligation is on you to check its safe. When you make an overtake the obligation is on you to check its safe. One or both parties failed to do this. We don't know who. I'm not saying the jury were right or wrong in their finding. I'm defending the court - we cannot rely on the report in the paper as safe statement of evidence.

Diy - are you a legal practioner ie solicitor or barrister? Some of your reasoning is very muddled. Just thought I would ask as I would be worried if you were trying to appear authoritative on this matter.

diy

Feel free to point out the muddle. Nobody is offering legal advice here.

dilemna

diy wrote:

Feel free to point out the muddle. Nobody is offering legal advice here.

You have avoided my question. Are you going to answer it?

cooldad

I'm interested too - seems fairly clear to me. I think diy's question is more relevant than yours.