Judge cites victim's lack of helmet as "mitigating" factor in sentencing killer driver

Cycling organisation also flags up confusion over new “Death by Careless Driving” offence

by Rebecca McIlhone   May 12, 2009  

road.cc news

The CTC has condemned a judge for taking into account the fact a cyclist was not wearing a helmet when sentencing the driver who killed him calling the suspended jail sentence "an extraordinary example of ignorant judicial victim-blaming”.

Denis Moore, 50, collided with cyclist James Jorgensen, 55, last September, on a roundabout in Seaham, County Durham, close to Jorgensen’s home. Jorgensen died eight days later of severe head injuries.

Although the court was told Moore was driving at around 20mph, Judge Richard Lowden said the fact Jorgensen had not been wearing a helmet was a “mitigating factor.”

Moore, of Byron Terrace, Houghton-le-Spring, near Sunderland, admitted the new charge of ‘causing death by careless driving’. The court was told he regularly drove his partner’s Hyundai Matrix mobility car despite only holding a provisional licence.

The judge at Durham Crown Court sentenced him to 24 weeks in jail, suspended for 12 months, ordered him to be electronically tagged for three months and banned him from driving for two years, after which he must sit an extended test.

Ron Mitchell, representing Moore, said his client had suffered from a “momentary lapse of concentration”. He added that his remorse was so deep he had tried to commit suicide after the incident.

CTC’s Campaigns & Policy Manager Roger Geffen said: “My first thoughts are for Mr Jorgensen’s family. I cannot imagine how they must be feeling. If bereavement wasn’t enough, they now have a Judge effectively saying Mr Jorgensen himself was partly to blame for his own death, simply because he wasn’t wearing a helmet.

"There are still serious doubts about the effectiveness of cycle helmets, particularly in preventing serious or fatal injuries, and there is no law requiring cyclists to wear them. This sentence is an extraordinary example of ignorant judicial victim-blaming”.

The Durham case seem unlikely to set a precedent  because the judge seems to have mis-interpreted the sentencing guidelines which say that mitigating circumstances should only be taken into account in cases of causing death by dangerous driving which relate to the commission of the offence not it's outcome. In this case Mr Jorgenson had nothing to do with the commission of the offence he was simply a victim of its outcome. 

Speaking to road.cc Geffen went on to highlight problems wtih the new charge of Death by Careless Driving, although he was clear he did not wish to relate his comments to this particular case.

He said the CTC will be challenging the new offence as part of a campaign on traffic laws this Autumn as the cycling organisation thinks the word "careless" confuses the issue.

Before the new charge was brought in the options for prosecuting people in relation to fatal road traffic incidents were Death by Dangerous Driving (max sentence 14 years), Dangerous Driving (max sentence two years) or Careless Driving, which did not carry a custodial sentence.

Geffen told road.cc: “This meant the fact that someone died as a result of careless driving was often not even mentioned in a Magistrates court trial. This caused enormous distress to people that had already suffered a bereavement.”

However, he said the new offence merely causes confusion because the distinction between careless driving and dangerous driving is not clear enough.

“The old legal framework said that if you drive dangerously and kill someone you get a maximum of 14 years,” he said. “If you drive dangerously and don't kill someone you get a maximum of two years.

“Now we have this anomaly that if you kill the victim through less dangerous driving you get a maximum of 5 years.

“It’s going to cause more problems than it was designed to solve. We need to redefine careless driving. The word needs to be taken out of the legal framework altogether. It creates legal anomalies and PR anomalies because it means something different in common parlance to what it means in law.

“It sends out signals that it’s ok to kill someone for a lapse of attention. But drivers have a much higher duty of care than that.”

For details on the CTC's stance on careless and dangerous driving, follow the link to the appropriate page of their website.