Crime and Punishment : Chapter 1

I WAS OUTRAGED. It’s hard not to be outraged whenever you read about something that’s happened on our roads. It’s particularly difficult when that affects one of our own. Cyclists are vulnerable, squidgy and deserve protection. We’re out there, minding our own business, doing what we love, when, suddenly, time’s up, game over, time for the outrage to start.

Whenever you read about a cycling related case and its outcome you might be half expecting it to be about someone’s cat getting run over. There’s very little tragedy, very little humanity. It’s almost as if serious injury and death are the inevitable consequence of sharing the roads. Oh well, that’s the risk we take. But it shouldn’t be like that. There should be questions, there should be recrimination (if it’s right to do so) and society should learn from it, improve, be a little bit better.

We’re frequently told that all road users should show tolerance to others. That’s a pretty weird way of putting it. That suggests that each category of road user fundamentally disagrees with the other’s choices but chooses to accept it through gritted teeth. It’s not how things should be. We shouldn’t be tolerant. We should be welcoming. We should be understanding. We should all get along, not because we are told to, but because we are human beings and what better way to demonstrate our humanity by looking out for our fellow humans.

Well, it’s a noble ideal. And that ideal, it seems, is as far away today, at least in the UK, as it ever was. We’re bombarded with click bait pieces about attacks on cyclists, poor infrastructure causing deaths, attacks by cyclists, camera wielding commuters, sportive road closures and bloody road tax. And the more we read all of this stuff the easier it is to be OUTRAGED!

There’s an inherent problem with the reporting of any legal case whether it’s about a cyclist killed by a driver who claims the sun was in his eyes, or the trial of a newspaper executive who logs into your Facebook account twice a day. The problem is that trials are long, boring, and full of facts. Absolutely full of facts. You could fill a daily paper with the facts from even the most simple of trials. You wouldn’t want to read that stuff, so you get a précis. And that’s the problem. You can’t really get a legal case unless you hear every fact, listen to every word, understand every nuance. Indeed, it’s hard to offer up any opinion on any legal case because, just like Vietnam, you weren’t there man.

What this piece seeks to do is to give you some understanding of the legal process in England and Wales, to explain how we get cases to Court in the first place and to attempt to explain why some cases may not go the way that you expect. This isn’t an effort to collate everything but an attempt to make some sense of, it not all, then some of it. It’s an epic, just like the book of the title. Though I don’t think it will take you quite as long to read and, if the BBC do decide to serialise what I’ve written, I’d expect less onscreen sex. It’s part 1 for now, I’ll get round to some more in depth analysis in due course. What I wanted was to get away from the sensationalism of media and have a look at why cases are the way they are. I have my own theory, and I’ll get to that in the follow up pieces. This isn’t a thesis, not yet. It’s just an opinion piece. If I get the time it might grow into something a lot larger.

If you want to start with outrage then you have to start in the right place. You need to feel some indignation, some injustice, something to be outraged about. So, with no particular weight attached to it at all, it’s just a recent case, have a look at the following. It’s not even a cycling one, but it does involve vulnerable pedestrians. So it’s not a bad place to start.

Read this in order to be OUTRAGED!

So, you read that one? 15 months for leaving a child with brain injuries. Doesn’t sound particularly good does it? You’d get more than that for………..well……….quite a lot of things actually. And let’s see what he was charged with…….“Llewellyn admitted perverting the course of justice, failing to stop after an accident, driving without insurance, theft, failing to surrender to bail and breaching a suspended sentence. The court heard he had 17 previous convictions for 29 offences, including failing to stop after an accident and failing to report it, and driving whilst disqualified.”

To his credit, he pleaded guilty. In our Courts we give “credit” for that, up to a 1/3 reduction in your sentence for pleading guilty before a trial. You can debate whether that’s fair at some length. Perhaps we should have a starting point of “what you get if you plead guilty” and then ADD a 1/3 if you are found guilty. We could do that but we’d just have to rejig all the current starting points. We’d end up lowering them and the total sentences handed down would probably remain the same. So, don’t get too angry, not yet.

No, the real problem with the above case is how it’s reported. It’s a bloody serious case. A boy was left with serious and life changing injuries. But the media report is notable for what’s absent rather than what’s present. Half of the offences are “administrative,” however serious they may be. Perverting the course of justice, failing to surrender and breaching a suspended sentence are absolutely nothing to do with the driving that occurred that day. Those offences did not lead to an accident which caused brain injuries. Indeed, they all came later. There’s a theft and that’s pretty serious as well. It’s not very clear what the theft was in relation to. The motorcycle we must assume. And there’s likely to be a clear correlation there, people who steal stuff are often poor drivers. The same goes for driving whilst disqualified and driving without insurance. This is really not a person you want on the roads. That much is evident. Frankly, his lawyer did an amazing job to get him a mere 15 months especially with that many previous convictions. We’ll look at sentencing in a later piece, but, for now, 15 months is likely to have been the length of the longest sentence handed down for the worst offence. Probably the perverting the course of justice. He may well have received prison sentences for the other offences as well. But, most of the time, sentences run concurrently, that is to say you serve the length of the longest sentence. But let’s not complicate this, for now.

There’s something notably absent in the above case though. There are no actual driving offences. That is to say nothing to do with the manner of his driving. That might surprise you. There are plenty to choose from. Careless driving, dangerous driving and the new offence of causing serious injury by dangerous driving. There are offences of causing death by careless or dangerous driving but, of course, mercifully in the case, the boy survived. Yet he wasn’t charged with any actual driving offence. It seems clear cut. This is a villainous type. He’s clearly up to no good and hits someone who’s just crossing the road. So, why wasn’t he charged, at the absolute minimum, with careless driving?

Well, it all comes down to the evidence. We have to take a dispassionate view of what can be proven. Can we demonstrate that, in this case, there is evidence that the standard of driving fell below the standard expected of a competent driver or that he did not show reasonable consideration for other pedestrians and vehicles on the road. Evidence is key. There has to be something tangible on which to base a prosecution. Are there independent witnesses to the driving? Is there any CCTV evidence? Are there brake marks on the road indicative of a certain speed? It’s not about implication or inferring evidence, though those matters may come into play, it’s about whether a thing can be proved to have happened or not.

Before I deal with how our system works let’s have a look at a case in which some evidence is present but a lot is not. Prepare to be OUTRAGED!

Revenge is a dish best served with a D Lock

Interesting case. Your mind wanders to how on earth this kind of stuff happens. Is the driver deceitful? Did he swerve, as one witness suggests, towards the cyclist? Has he got away with it? Or is he just a bloody useless driver, of which there are many.

There appears to be evidence of a collision here. But it’s unclear. If there is a collision then you’d think that there should be, at least, a charge of failing to stop/report an accident. Yet there’s nothing other than having to go on an awareness course. Meanwhile the cyclist gets done for criminal damage because, as a result of the red mist descending after almost being flattened, he decides to take up his righteous indignation. And, during the argument, he smashes the window with a D lock.

Evidence. Why is the evidence of what the cyclist did any better than the evidence of what the driver is alleged to have done? Well, because he did it. We know that because he pleaded guilty. There’s likely to have been independent witness evidence as well, but, evidentially this is an easy one to deal with. The ONLY question here was whether it was in the public interest to charge him. As soon as he was charged there was really only one outcome, a guilty plea.

But I can sense that you are still OUTRAGED! The Magistrates considered that the motorist’s actions amounted to provocation. The problem there is that the defence of provocation (which has now been renamed the defence of “loss of control”) is a defence only to murder. And even then all it does is to reduced that offence to one of manslaughter. It’s no use in this case other than to reduce his sentence because of it.

What about the sentence he got? Surely, given the provocation, he should have just got a slap on the wrists. Well, in reality, he did. He was given pretty much the lowest sentence it was possible to give. There was no option to find him not guilty, he’d pleaded guilty. Equally there was no option to give an absolute discharge, it wasn’t within the powers of the Court to give such a sentence. So, on this one, please don’t be outraged. There was insufficient evidence to bring any prosecution against the driver. There was sufficient evidence to bring a case against the cyclist. Plain, simple, dispassionate. Sometimes it goes “our” way. So have a read of the next case before we move on.

Bloody Audi drivers

She contested that. And lost. The evidence was good. The red mist descended and she lost it. What’s notable in that case is that she was convicted, along with dangerous driving, of attempting to cause grievous bodily harm. Effectively using a vehicle as a weapon. That doesn’t happen too often and it’s good to see it being taken so seriously. Loads of evidence here and no evidence to support her rather spurious defence. She claimed that the car had malfunctioned. The PC who examined the car found no evidence f that. Indeed, it would be surprising if such an expensive, powerful car, had suffered a fault at the very moment that an altercation had taken place.

No outrage here. But no victorious punching of the air either. It is what it is. An idiot driver getting what they deserve. Because the evidence supports it.

This is how it works…………..

Police, CPS, Judges, Juries, all clueless, inept, corrupt, dumb. In those cases where the driver “gets off” you’ll see those themes. There’s a belief out there that we’re hard done by, that, if you wanted to bump someone off, you’d be better doing it with a car than with a knife. Cyclists, the cockroaches of the highway, no rights, not really victims, they were asking for it. It’s hard to untangle the emotion. It’s impossible to pin down the facts. But, let’s have a go. But we have to go way back, start at the beginning. Let’s deal with what we know. The first step on our journey is knowledge. This piece is about the legal system of England and Wales. But there are some constants that apply to other legal systems. Read it with that in mind.

In the UK we can broadly divide our legal system into the Civil and Criminal law. They operate quite differently, though there are some constants. Each has a different aim. Let’s consider, for example, our cyclist. He’s being a good boy, waiting patiently at a set of red traffic lights. Whilst waiting he’s hit from behind by a speeding, drunk driver. He’s seriously injured. What happens next?

1 What does the Civil law want?

In general terms it’s fair to say that the Civil law looks to the victim. It aims to compensate the cyclist for his losses and, as far as is possible, to put him into the position he would have been in had the accident not happened. Given that we do not yet possess a TARDIS, and that our lack of possessing a TARDIS is a pretty good indication of never being able to possess a TARDIS, then the only practical way to achieve this is by monetary compensation. We value the injury, we pay back the lost wages, we make things “better” as much as they can be. Hopefully he will recover fully and the compensation is good enough to cover everything that’s happened to him. Sadly, this is rarely the case. Very often the injured party is left with a permanent injury. We just can’t fix that. All we can do is provide compensation for “pain and suffering” and hope that that’s enough. It’s an imperfect system. I’ll return to the civil law in a later chapter.

In order to succeed against the motorist the cyclist must demonstrate a number of things. First, he has to show that the motorist owes him a “duty of care.” This is an established legal concept. It’s pretty much a given that road users owe each other a duty of care. Second, he has to show that the duty has been breached. He will base his claim in negligence. He’ll show that the motorist was negligent in driving at speed, driving whilst drunk and, in all the circumstances, failing to take sufficient care. And, finally, he will need to demonstrate that his injury and losses were caused by the accident. In the example given much of this will be straightforward.

Civil law claims of this type are brought by the injured party. We call them the Claimant. There is no state involvement.

2 What does the Criminal law want?

Let’s switch now to the criminal law. Arguably the focus changes.  The victim is still important, indeed, generally, without a victim there’s no case.  But the criminal law is more concerned with the motorist and seeks to determine whether the driver should be punished for his actions. Although the evidence of the witness is important in relation to convicting the motorist it is not really about the victim at all. It looks at whether a specific criminal offence has been breached and, if it has, whether that person should be punished for their actions.

Criminal law prosecutions are brought by the State. In England and Wales the body that prosecutes cases is called the Crown Prosecution Service (CPS).

These two systems are not mutually exclusive. Indeed, in the above example, it would be quite common for the criminal and civil cases to run in tandem. The motorist will be punished by the criminal law and the cyclist compensated by the civil law. Evidentially, it’s better for the criminal case to finish first so that the cyclist can rely on that conviction in his civil case.

3 The burden and standard of proof in the Courts

In both the civil and criminal courts the onus is on the party bringing the case to demonstrate that it should succeed. That is what is known as the “burden of proof.” There are some exceptions but they are quite rare, so let’s leave that for now. The “standard of proof,” i.e. what is needed to find in favour of the party bringing the case, differs in the civil and criminal courts.

In a civil claim the Claimant must demonstrate that the Defendant is liable for the accident and resulting injuries and losses. The Claimant’s must prove this “on the balance of probabilities,” that is to say, more likely than not. Or, if you want to put a value on it, 51%. A Judge in a civil case cannot sit on the fence. He has to decide whether that thing has taken place, or not.

In a criminal case the Prosecution must demonstrate that the Defendant has breached the criminal law. The Prosecution must prove its case so that the person hearing the case (a judge or jury) can be “sure” that the thing has happened. You may not hear the words “beyond reasonable doubt” anymore but being sure means the same thing.

Civil claims don’t cause too many difficulties so I’ll return to them at a later date. Let’s look at the criminal law and how cases start.

4 The birth of a criminal case

It’s the criminal cases which cause so much consternation. Defendants acquitted because they were blinded by the sun, Defendants exonerated of driving carelessly, and Defendants given lenient sentences by namby pamby liberal leftie leaning Judges. How did we get here? Even getting to debating the outcome of a case requires a massive amount of hurdles to be jumped. It’s stacked against the cyclist from the start.

The first thing that is required is an investigation. Think about that for a moment. Ever come across an accident? What happens? Well, everything happens. Vehicles get moved, phone calls are made, panic sets in, bodies are covered, obfuscation, chaos. Remember that burden and standard of proof? It all starts here, before the police come. Someone needs to start keeping a record, someone needs to preserve the evidence. There’s only so much that forensics can assist with. Eventually the Police arrive and take statements, take photos, carry out their measurements, try to ascertain what has happened. No one is yet concerned with a criminal case, that comes later. If there’s a camera recording all of this stuff then that’s great. It’s also rare. Cast your mind back to that D lock incident. One witness claims the car drove at the cyclist, another that it swerved to avoid a traffic cone. It’s difficult, from the off. Mistakes and omissions here will have a huge impact later on.

Then it’s done. Evidence collected, analysed. Witnesses, and we hope there are some, are interviewed. The Defendant may be arrested, he will certainly be interviewed at some point. If he has an explanation he should give it. But he doesn’t have to, he can stay silent if he wants. He has that right. It may not help his case in due course. We have something called “adverse inference,” that is to say, in layman’s terms, if you stay silent in an interview and then, at trial, you tell a story, why didn’t you say that in your interview, is it because you made it all up after? Ok, it’s more complicated than that, but you get the point.

So, evidence collected, a case is formed. The police refer what they have to the CPS. The CPS decide whether there is sufficient evidence on which to base a case. This is the first stage in the decision to prosecute. Crown Prosecutors must be satisfied that there is enough evidence to provide a “realistic prospect of conviction” against each defendant on each charge. They must consider whether the evidence can be used and is reliable. They must also consider what the defence case may be and how that is likely to affect the prosecution case. A “realistic prospect of conviction” is an objective test. It means that a jury or a bench of magistrates, properly directed in accordance with the law, will be more likely than not to convict the defendant of the charge alleged. (This is a separate test from the one that criminal courts themselves must apply. A jury or magistrates’ court should only convict if it is sure of a defendant’s guilt.) If the case does not pass the evidential stage, it must not go ahead, no matter how important or serious it may be.

Then there’s the public interest test. Crown Prosecutors must then decide whether a prosecution is needed in the public interest. They must balance factors for and against prosecution carefully and fairly. Some factors may increase the need to prosecute but others may suggest that another course of action would be better. A prosecution will usually take place however, unless there are public interest factors tending against prosecution which clearly outweigh those tending in favour. The CPS will only start or continue a prosecution if a case has passed both stages.

Are you exhausted yet? It may not sound like much but there’s a lot going on here. And every mistake is a mistake that will come back to haunt you. Even the best case can fall apart due to lack of evidence. They’re getting away with it, already. So, let’s assume that we get that far. We have a fairly solid case. The CPS agree to prosecute. There’s a realistic prospect of a conviction. Where do we go next? And, in this next part, we’re operating on the assumption that the Defendant will plead not guilty. If they plead guilty then there will be no need for a trial at all. There will be a sentencing hearing.

5 In which court do criminal trials take place?

The next step is to choose the Court the case will be tried in. There are two to choose from. They are the Magistrate’s Court and the Crown Court. There are some pretty fundamental differences between the two. All cases start in the Magistrate’s Court. Depending on the seriousness of the case they either stay there, or are transferred to the Crown Court.

5.1 Categories of offences

There are three categories of offence. They are, summary offences, either way offences and indictable only offences. Summary offences can only be tried in the Magistrate’s Court (there are a few minor exceptions). Indictable offences can only be tried in the Crown Court. Either way offences may be tried in either Court. For those cases, in theory the defendant can decide which Court he would like to be tried in. He might, for example, decide that his “story” is more likely to be believed by a Jury of his peers and opt for a Crown Court trial. Or he might decide that he’s swayed by the lower sentencing powers of the Magistrate’s Court and wish to be tried there. That’s the simple version, there are other considerations. Ultimately, the choice may not be his.

The Prosecution get the first go. They make representations that the case is “too serious” for the Magistrates. The Defendant makes representations in response.  If the Magistrates agree with the Prosecution then the case will be sent to the Crown Court for trial.

If the Defendant opts for Crown Court trial there will be no objection from the Prosecution. That choice is the Defendant’s right. The case will be sent to the Crown Court for trial.

Finally, if the Defendant opts for Magistrate’s Court trial and the Prosecution (and Court) agree, then the case will remain in that Court.

Any either way offence tried in the Magistrate’s Court will, if the Defendant pleads guilty, or is convicted following trial, normally be sentenced by that Court. However, if the Magistrates believe that they do not have sufficient sentencing powers then they can send the case to the Crown Court for sentencing.

5.2 Trials in the Magistrate’s Court

Magistrate’s Court trials are determined by a Judge or a panel of Magistrates, depending on the seriousness of the case.  There are no juries. The Judge or Magistrates listen to the evidence and, at the conclusion of the case, determine which evidence they prefer. If they consider the case to be proven then a conviction will follow. A range of sentencing options are open to them ranging from a fine, through community penalties and up to a prison sentence. But the maximum prison sentence a Magistrate’s Court can impose is generally 6 months. So, even if the case were tried in the Magistrate’s Court then, if the offence is so serious that a penalty in excess of 6 months is a) provided for in the definition of the offence and b) is, in the view of the Court, required, then that case can be sent to the Crown Court for sentencing purposes. That relates only to either way offences. Most summary offences will not, by their very definition, attract a sentence of more than 6 months.

5.3 Trials in the Crown Court

The thing about Magistrates Courts is this. Most of the time it’s being heard by Magistrates and, frankly, they’ve heard it all before. They’re battle hardened and cynical. So, quite often, with that in mind, if there’s an opportunity to take your case to the Crown Court then that’s where you go. Because then you get to be tried by a Jury of your peers. 12 of them, most of the time. And, to convict you, most of them need to agree. 12 ideally but, if that doesn’t happen, then a minimum of 10. A trial by your peers, people like you.

The thing is……for most criminal cases, you know, the really criminal ones then your peers aren’t really like you at all. They are decent hardworking people who would never find themselves in that position. But driving cases? Well. Thing is now. Your peers. They drive as well. They are just like you. They sympathise with how difficult it is to see when the sun is low, how hard it is to wait for the screen to demist and just how bloody annoying cyclists are. Yes. Let’s get tried by them………….they’re just like me. It’s to that we’ll return in part 2………………

5.4 Typical offences

Let’s just have a look at some of the most common types of motoring related offences and where they should be tried:

OFFENCE COURT MAX CUSTODY OTHER
Careless Driving Magistrates None Points and fine
Dangerous Driving Either way 6 months / 2 years Mandatory disqualification and fine
Causing serious injury by dangerous driving Either way 5 months / 5 years Mandatory disqualification and fine
Causing death by careless driving Either way 6 months / 5 years Mandatory disqualification and fine
Causing death by dangerous driving Crown Court 14 years Mandatory disqualification and fine

Those are the common ones. There are a few more. What’s alarming is just how few there are. The sentences are maximum ones. So, in relation to dangerous driving a Magistrates Court can sentence up to 6 months in custody and the Crown Court up to 2 years. Even if the case started in the Magistrates Court it can be sent to the Crown Court if the Magistrates thought it was an appalling example. Equally, if that case was tried in the Crown Court the Judge, if the thought it a fairly run of the mill case, hand down a sentence no greater, or indeed less than, that which may have been handed down by the Magistrates. In a later piece I’ll deal with how sentencing works, the entry points, the factors that need to be taken into account and now some it might cause you to be outraged.

What’s alarming in relation to the above list is just how few there are. And there’s a massive omission. Where is causing serious injury by careless driving? That’s a huge issue and the subject of quite a lot of debate. Will we see that offence? Let’s hope so. It won’t be soon enough.

And, finally, that question. Murder. Manslaughter. Does that ever happen? We’ll have a look at that as well. But, for now, let me say this, the very existence of the two “causing death by” offences is as a result of the reluctance of the state to consider charging people who drive like idiots with, at the very least, manslaughter. But we’ll return to that.

And there we go. You might still be outraged, for now. But there’s more to come. Not just the criminal stuff either. Let’s talk about helmets and why society feels the need to show its undying love towards you. Let’s deal with reflective clothing and why it might be your fault. Let’s talk about why people who get high on drugs and kill two people don’t get done for murder. There’s a lot to talk about. Prepare to be outraged. But only if you’ve come into it with an open mind………………….

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