Suspended sentence for driver who used camper van "as a weapon" to ram cyclist in road rage attack

"Anyone using a vehicle as a weapon for whatever reason deserves a custodial sentence and you are going to get one" … but he doesn't

by Tony Farrelly   June 3, 2013  

A driver who, in the words of the trial judge used his camper van "as a weapon" to ram a cyclist in a road rage attack  which only by matter of "luck than judgement" didn't kill him has been given a suspended three month prison sentence, banned from driving for a year and ordered to do 200 hours unpaid work.

The Crown Prosecution Service offered no evidence on a charge of attempted grievous bodily harm and graphic designer Alistair Burnell pleaded guilty of a charge of dangerous driving at Hull Crown court for a road rage attack last year in which cyclist, Alan Smith suffered abrasions to his hips, ankles and elbow and grazes to his head. Trial judge Judge Michael Mettyear, told Burnell: "You could have killed him and you would have been be going to prison for a some time. "It was more through luck than judgment that he was not injured more seriously."

The sentence, and the seeming reluctance of the prosecuting authority to press a more serious charge will add further fuel to recent calls for a review of sentencing guidelines for incidents in which drivers kill or injure vulnerable road users.

On Friday, the issue was again brought in to sharp focus by the new that the Crown Office in Scotland was to appeal against the "unduly lenient" sentence handed down the motorist who killed 75 year old Audrey Fyfe - he was sentenced to 300 hours community service and a five year driving ban for "clipping" Mrs Fyfe with his car. The fact that she was the second cyclist he had killed in 25 years was not deemed to be an aggravating factor by the trial judge Sheriff James Scott.

On Saturday the family of Ross and Clare Simons launched an online petition calling for tougher sentences for repeat offending drivers - Ross and Clare were killed by Nicholas Lovell in January this year while riding their tandem. At his trial it emerged that Lovell had 11 previous convictions for driving while disqualified. While Lovell was given the maximum sentence for causing death by dangerous driving - many will wonder why he did not face the more serious charge of manslaughter.

Today (Tuesday) CTC, the national cyclist's organisation launches it's Road Justice Campaign - which aims to press police and prosecutors to investigate incidents in which cyclists are injured more thoroughly and to prosecute them more rigourously.

Given the tenor of the remarks from both the prosecution and Judge Mettyear there will no doubt be frustration amongst cycle campaigners that Burnell's sentence was not harsher.

Hull Crown Court was told the the incident developed after Burnell drove his van too close to Mr Smith, who banged on the side by way of warning. Words were exchanged and then the cyclist rode on, fearing - as the Hull Daily Mail reports - that the situation was going to escalate. After a short distance though he felt a shunt from behind, lost control of his bicycle and fell to the ground.

Burnell's barrister, Gurdial Singh, said to Judge Mettyear: "The use of a vehicle in this way clearly crosses the custody threshold but I seek to persuade you to suspend the sentence."

In his pre-sentence remarks Judge Mettyear said: "You were driving this vehicle down a road and the cyclist was clearly concerned about the closeness to him that you got your van.

"If he could bang on the side of your van, you were too close.

"That was not the worst of it. You had heated words. You had words and he was telling you what you had done and you both had an altercation and you swerved at him.

"Anyone using a vehicle as a weapon for whatever reason deserves a custodial sentence and you are going to get one."
He then went on to suspend the sentence.

Two particular aspects of this case are likely to frustrate many in the cycling community about this case is that despite the tenor of the judge's remarks the sentence for using a van "as a weapon" was still relatively light; and secondly. and perhaps more importantly despite the prosecution contending that Burnell had used his vehicle as a weapon with which he could have killed - he was charged with a driving offence rather than a more serious one of causing bodily harm or intending to cause harm.

It is worth asking what the charge and what the outcome would have been had this altercation taken place in a bar and instead of a camper van the "weapon" involved had been a beer bottle or a glass?

27 user comments

Oldest firstNewest firstBest rated

This could be just the judgement needed to launch a similar campaign in England as the CTC did in Scotland after the Audrey Fyfe case.

Laws are different and ruled over by different offices. So maybe this can serve as the ruling that helps change things in England and the the Government to set up NATIONAL standards for this sort of sentencing.

Gkam84's picture

posted by Gkam84 [8934 posts]
4th June 2013 - 0:01

6 Likes

The CPS published guidelines on Dangerous Driving give a 12month disqualification as a minimum

The courts need to address "the right to drive" - if you choose to drive a vehicle in an irresponsible way then the default should be a very extended ban - enforcement is an issue but the message needs to be given some how

as to light sentencing - the guidelines exist but courts are choosing to ignore them not just for "accidents" but for deliberate acts like the above: here is the summary statement from the CPS guidelines:
"Sentencing Range: Non custodial options may be considered, coupled with a long period of disqualification, but usually a custodial penalty is appropriate, especially where a number of aggravating factors combine."

incidentally someone posted this story over on the Singletrackworld forum yesterday its about legal aid but has this quote from a leading Barrister,who also acts as Court Recorder so will presumably become a Judge in the near future:

"Alistair MacDonald, leader of the North Eastern Circuit, said: "The losers from this bill will be law-abiding citizens on modest incomes who defend their homes against intruders, accidentally clip a cyclist in their cars,......"

http://www.thisisnottingham.co.uk/Chris-Grayling-m-going-selling-courts/...

not much hope for change soon then

posted by antigee [165 posts]
4th June 2013 - 0:40

9 Likes

Over the last 15 years or so the Crown Prosecution Service has become a second-rate, figures driven, despicable and useless service.

They have lost touch with reality. Lawyers are now encouraged to downgrade offences at the charging stage so they are kept out of the Crown Court, because the Court system is struggling.... Yes they are playing the bean counting game with you as a victim.

They are so out of touch its ridiculous. Cases like this are soul destroying. The driver of that camper van should have gone to prison for a GBH. If you use a weapon (a vehicle) to assault someone it automatically becomes a GBH, with a S18 GBH giving the Judge discretionary life sentencing powers. CPS can go down that route, but choose not to.

The CPS don't run these cases because they are so figures focused. They are judged by the results they get so will run with specific offences where there is a more realistic prospect of a conviction, or a safer bet, if you like. Sod whats right for the victims and sod justice, whats that?

I've been involved in the British legal system for the last 20 years and its become an utter joke. Justice? What Justice?

posted by Critchio [114 posts]
4th June 2013 - 7:33

4 Likes

I am rapidly comming to the conclusion that the only way to deal with bad driving is to kill drivers and claim self defence. The legal system is a farce that offers no defence for cyclists.

Question is, how can we get the legal system to work in a manner that protects cyclists from bad drivers?

Is it really that hard?

mrmo's picture

posted by mrmo [1178 posts]
4th June 2013 - 8:50

8 Likes

Ridiculous.

antigee wrote:

"Alistair MacDonald, leader of the North Eastern Circuit, said: "The losers from this bill will be law-abiding citizens on modest incomes who defend their homes against intruders, accidentally clip a cyclist in their cars,......"

This use of the word 'clip' really winds me up. If one party has over a ton of metal, and the other doesn't, there is no 'clip'. Either they get flipping whacked, or they don't. GRRRR.

Last night I would have considered trading a very loud baby for a really nice bike.

posted by notfastenough [3313 posts]
4th June 2013 - 9:15

9 Likes

Sadly there is a frightening regularity in this sort of BS outcome.

cidermart's picture

posted by cidermart [467 posts]
4th June 2013 - 9:23

7 Likes

notfastenough wrote:
Ridiculous.

antigee wrote:

"Alistair MacDonald, leader of the North Eastern Circuit, said: "The losers from this bill will be law-abiding citizens on modest incomes who defend their homes against intruders, accidentally clip a cyclist in their cars,......"

This use of the word 'clip' really winds me up. If one party has over a ton of metal, and the other doesn't, there is no 'clip'. Either they get flipping whacked, or they don't. GRRRR.

Absolutely, it's a hardly a clip around the ear is it ? And if you "clip" someone surely you're no longer law abiding as you're driving without due care and attention ? Typical attitiude from the legal "professionals" in this country. maybe Mr Macdonald should spend a few days on a bike and we could take turns in "clipping" him.

Really wish the CTC or BS would take a case and make a big deal of it like the recent Scotland resentencing campaign. It's an absolute joke, but a joke where people are actually dying

Scott Spark 910 - Boardman Team Carbon - Planet X XLS

posted by colinth [188 posts]
4th June 2013 - 9:26

9 Likes

Pathetic! Angry

It will take a politician or one of their family members to have a serious incident before the politicos pull their heads out of their backsides and 'realise' cyclists aren't a nuisance, but are vulnerable road-users!

Tripod16

posted by Tripod16 [113 posts]
4th June 2013 - 10:56

5 Likes

antigee wrote:

"Alistair MacDonald, leader of the North Eastern Circuit, said: "The losers from this bill will be law-abiding citizens on modest incomes who defend their homes against intruders, accidentally clip a cyclist in their cars,......"

This is astonishing and quite informative. It makes it sound like knocking someone off their bike with a ton of metal is just a little "Oops!" incident that happens to the best of us from time to time and that people can't reasonably be expected to be held accountable for.

Until that changes we'll get nowhere. On the plus side, a few years back it would have been something about law-abiding citizens who just have a couple of beers after work before driving home so things can change.

posted by Chuck [393 posts]
4th June 2013 - 11:09

5 Likes

Terrible News for road safety! This two-ton camper was used as a leathal weapon and amounts to "Attempted Murder" by the driver! There should be a campaign for justice, let the punishement fit the crime.

Is the Law; becoming an ASS?

posted by Mostyn [407 posts]
4th June 2013 - 11:21

9 Likes

I wonder what that lawyer chappie would think if I was driving a lorry and "clipped" his car with it. The size/weight difference between a lorry and a car is comparable to the difference between a car and a bike+rider so I reckon the analogy works.

Suppose I just clipped him and sent him spinning off into a ditch. Presumably that would be OK, just one of those things? And we'd all shake hands at the side of the road, laugh about it and go on our merry way?

No, he'd be pressing for everything he could, probably claiming whiplash and all sorts. So why is it any different for cyclists? The attitude of some people just makes me despair! I'm coming to the same conclusion as mrmo above. Kill them, claim self defence.

posted by crazy-legs [536 posts]
4th June 2013 - 11:47

6 Likes

Disheartened that when the judge said this warranted a custodial sentence he still suspended it. Heartened though that the judge said:

"If he could bang on the side of your van, you were too close."

Useful ammunition!

posted by Paul J [644 posts]
4th June 2013 - 12:19

14 Likes

Motorists need to understand that they are travelling on a public highway and as such other members of the public have as much right to be there as them. This also needs to be applied to the law and an even approach taken.

posted by madhouse [39 posts]
4th June 2013 - 12:34

6 Likes

Motorists have no rights to be there, they are using the public highway under invitation and license.

posted by northstar [1107 posts]
4th June 2013 - 12:35

8 Likes

crazy-legs wrote:
I wonder what that lawyer chappie would think if I was driving a lorry and "clipped" his car with it. The size/weight difference between a lorry and a car is comparable to the difference between a car and a bike+rider so I reckon the analogy works.

Suppose I just clipped him and sent him spinning off into a ditch. Presumably that would be OK, just one of those things? And we'd all shake hands at the side of the road, laugh about it and go on our merry way?

No, he'd be pressing for everything he could, probably claiming whiplash and all sorts. So why is it any different for cyclists? The attitude of some people just makes me despair! I'm coming to the same conclusion as mrmo above. Kill them, claim self defence.

I think killing them is a little strong, unless they are actively trying to kill you. But that's what really annoys me, that many of the drivers who attempt this aren't actively thinking about you. They are just trying to get by, and don't want to realise they are risking your life for five improved seconds of theirs. Actual murderous intent would, funnily enough, make me feel a little better!

And you're right, if one car hit another with this kind of size imbalance ... the police would bloody well turn up for that collision!

posted by Not KOM [79 posts]
4th June 2013 - 12:37

6 Likes

I'm a firm believer in the "If he could bang on the side of your van, you were too close" argument and it boils my p1ss when someeone says "well I didnt hit you did I".

posted by mrchrispy [306 posts]
4th June 2013 - 12:43

9 Likes

notfastenough wrote:
This use of the word 'clip' really winds me up. If one party has over a ton of metal, and the other doesn't, there is no 'clip'. Either they get flipping whacked, or they don't. GRRRR.

+1.

The guy used a vehicle in a deliberate attempt to kill or maim. That's pretty dreadful.

But I'm not sure prison is necessarily the answer in all cases but a longer (i.e. meaningful) driving ban and significant hurdles to regaining a license for twats like this are essential.

Simon E's picture

posted by Simon E [2000 posts]
4th June 2013 - 15:18

4 Likes

The CPS is staffed by morons who don't give a **** about the wellbeing of cyclists.

Wonder what the outcome would be if he'd run a camper van into a police officer?

I'm a human being, God damn it! My life has value. I’m as mad as hell and I’m not going to take this anymore.

posted by Carl [136 posts]
4th June 2013 - 16:31

6 Likes

I'm not sure I understand this sentencing. What would have been the outcome if he had deliberately driven at and collided with a pedestrian?

posted by cookdn [13 posts]
4th June 2013 - 18:46

3 Likes

Hi all, please be gentle with me as this is my 1st post. With regards to the incident reported in the Hull Daily Mail, there were a lot of mitigating circumstances presented at court which lead to the Judges reasoning in giving the sentence he did and whilst I do not condone the drivers actions I can confirm that the Judges in Hull have jailed at least 2 drivers in the last 12 months for incidents involving cyclists, unfortunately these were both fatalities. Hull Daily Mail is my local newspaper and is well known for sloppy & inaccurate reporting so anything taken from their website may well be incomplete. The full report can be found here but please disregard the comments as they really don't reflect the true behaviour of most Hull drivers as I know from experience. http://www.thisishullandeastriding.co.uk/Cyclist-mown-raging-man-camper-...

posted by Gus T [39 posts]
4th June 2013 - 20:06

6 Likes

The CPS is full of 2nd rate lawyers who couldn't make it in the private sector.

mike_ibcyclist's picture

posted by mike_ibcyclist [36 posts]
4th June 2013 - 21:10

4 Likes

When will the madness end?

The glass is 50% capacity.

mrfree's picture

posted by mrfree [35 posts]
4th June 2013 - 21:34

4 Likes

mrfree wrote:
When will the madness end?

It won't until drivers who do this are given life bans.

posted by northstar [1107 posts]
4th June 2013 - 23:01

5 Likes

Sigh, maybe it will take a judge getting run over (assuming any cycle) to cause a change.
It's bad enough when there's little in the way of repercussions for a driver in a SMIDSY accident but someone actually using their vehicle as a weapon (and the judge agreeing with that fact) not doing jail time is just ridiculous.

posted by fuzzywuzzy [60 posts]
5th June 2013 - 7:44

5 Likes

Gus T wrote:
With regards to the incident reported in the Hull Daily Mail, there were a lot of mitigating circumstances

A "lot" of mitigating circumstances?

You mean:

Burnell's barrister, Gurdial Singh, said to Judge Mettyear:
"He is a man without convictions or cautions against him. He is very well thought of and is spoken of in glowing terms."

Had to laugh at that one. After all, it was just such a man who lead the country into war with Iraq, and he's been since labelled a "plausible psychopath". Guess that makes it alright then.

Ho hum.

TiNuts's picture

posted by TiNuts [93 posts]
6th June 2013 - 7:43

4 Likes

fuzzywuzzy wrote:
Sigh, maybe it will take a judge getting run over (assuming any cycle) to cause a change.

Yes, I imagine if they cycled around wearing their wigs and brightly coloured gowns the hit rate may well go up quite a bit. Then they just might get a flavour of what it's like to cycle on UK roads. They'd better be wearing helmets though (black, of course) otherwise the defence will argue contributory negligence.

TiNuts's picture

posted by TiNuts [93 posts]
6th June 2013 - 7:50

4 Likes

Life bans would be more common if the country as a whole hadn't made it pretty much impossible to get anywhere without a car. You can't be considered a useful human being without a car now.
Until public transport and cycle provision are of a quality where a judge could say, "you don't need to drive" they feel bad about banning people. You have to be a threat to their safety before they want you off the road, and then only for a short time.
Driving is very much seen as a right and until that changes, you will see this type of injustice. There is no alternative to driving for way too many people. That could be sorted, but it's not likely to happen, let's face it.
I've been in many near misses and woken up in casualty with concussion and a broken collar bone, thanks to a hit and run. When it went to court, I was considered 50% culpable for not having lights even though it wasn't dark (9pm in june) and he got off with nothing but paying me compensation (which his insurance would have paid), which was halved because I was given half the blame. I was riding along a road, he turned right on me, I have no recollection and was left for dead. At the time, I was much younger and took the decision and moved on. Nowadays I think I would have taken it much further and made more fuss. How many cases must there be out there like me where the victim doesn't bother to press charges and takes the blame simply because they didn't have hi-viz and lights when they weren't actually a requirement?

posted by Belaroo [44 posts]
22nd April 2014 - 9:03

4 Likes