Mother devastated after texting driver whose truck crushed 13-year-old girl to death sentenced to 6 months jail

Guilty of dangerous driving & attempting to pervert course of justice, but not causing death

by John Stevenson   September 12, 2013  

Justice (Lonpicman, Wikimedia Commons)

The mother of a Birmingham schoolgirl who was crushed to death by a lorry says the charge and sentence handed down to the driver show “the system is not right.”

Hope Fennell was hit by an 18-tonne truck driven by Darren Foster as she rode her bike across a pedestrian crossing on Kings Heath High Street on November 7 2011.

Foster had been exchanging text messages with his girlfriend while driving round the city and failed to see Hope as she rode out into the road.

As the girl lay dying under his vehicle, Foster attempted to delete the messages in an attempt to cover up.

Hope’s mother, Nazan Fennell told the Birmingham Mail that Foster should have been charged with manslaughter.

“He was on the phone while driving something lethal, which he knew had got the potential to kill,” she said.

“He made that choice, it’s like picking up a gun. Hope didn’t stand a chance.

“The fact he was not charged with Hope’s death after he tried to pervert the course of justice shows the system is not right.”

Nazan Fennell was particularly appalled that after hitting her daughter, Foster returned to his truck to delete his text messages.

“She was mangled under the wheels and he got back in the cab and deleted those texts,” said Nazan.

“He was only thinking about himself.

“I don’t know if I will recover from this. I’m devastated by the result.

“I don’t have a family left. I live in a haze, I live in denial that she’ll come back home.

“I used to work as a substance misuse councillor helping people recovering from addiction. I can’t do it any more.

“I don’t drive my car any more, I don’t go out of my house.”

The case & sentencing

The court found that Foster had been guilty of dangerous driving, in that he had been sending texts while driving round Birmingham, and of attempting to pervert the course of justice by deleting the texts.

Foster was not charged with causing death by dangerous driving, presumably because the Crown Prosecution Service was not satisfied that there was sufficient evidence to provide a realistic prospect of conviction.

If that was the case, potential reasons behind that may include the fact that he had a green light at the time of the collision; there was no evidence from his telephone billing records that he had been texting at that exact moment; and his claim, one the trial judge agreed with, that he had been unable to see Hope Fennell as she rode out into the road in front of him.

The case against Foster was based on police examination of his phone billing history, which clearly showed the deleted texts. Information from his truck’s tachograph showed that he had driven at 55mph while sending or reading at least 11 text messages in the 20 minutes before running over Hope Fennell.

Ben Gow, prosecuting said: “The prosecution accept he was not responsible, criminally, for Hope’s death.

“The defendant knew the police would investigate the cause of the collision and would look at the standard of his driving leading up to the collision.

“He climbed back into the cab and deleted a series of text messages, he deleted at least 11 messages.

“This was done while Hope was under his lorry.”

Foster was charged with dangerous driving and attempting to pervert the course of justice. He was sentenced to two months in jail for the driving offence and four months for perverting the course of justice.

Judge Andrew Menary, QC, said he would have given Foster a sentence of “years and not months” if he had been responsible for Hope’s death.

He said that Foster was not to blame for Hope’s death as he could not see her. Foster had stopped at the crossing and had moved on slowly when the light turned green.

“I accept you would have not been able to see Hope as she moved into the carriageway, you were not to blame,” he said.

“The fact no earlier accident occurred is the result, in my view, of good fortune rather than any indication your driving was not seriously compromised.”

Foster waas also banned from driving for one year and will have to complete an extended driving test before he can resume driving.

Defending Foster, Richard Murray said: “He does feel he was responsible, even though there are no criminal charges (over Hope’s death) as he was the one behind the wheel.

“He will feel that responsibility for the rest of his days.”

CTC comment

The death of Hope Fennell is yet another case of seemingly lenient sentence being handed down after vulnerable road user has died. On its RoadJustice website, cycling campaign organisation CTC said:

"The sentence handed down to Darren Foster was at the lower level of dangerous driving – the minimum sentence for this offence is a 1-year driving ban and a compulsory extended re-test. The maximum sentence for dangerous driving is 2 years in prison, an unlimited fine and an unlimited driving ban. CTC believes Foster should have been given a much longer ban and should be banned from driving HGVs altogether.

"Foster’s driving ban dates from the original hearing in February 2013, which means he could be driving HGVs again in a very short time."

Sentencing review

A review of sentencing guidelines was announced last month. Representatives of British Cycling, CTC and RoadPeace last year met with justice minister Helen Grant to call for thorough investigation and tougher sentencing in cases where a vulnerable road user is the victim.

They also urged that improvements be made to the support provided to the families they leave behind. Also at that meeting was the brother of British Cycling employee, Rob Jefferies, killed on a training ride in Dorset in 2011 by a 17-year-old driver who had passed his test six months earlier and who already had a speeding conviction. He received a non-custodial sentence.

In one of the few potentially positive pieces of news for cycling to emerge from yesterday’s response from the government to the Get Britain Cycling report published by the All Party Parliamentary Cycling Group, it was confirmed that a review of sentencing in cases involving cyclists and pedestrians will be initiated in the new year.

The review of current sentencing guidelines, which will be accompanied by a consultation, will be carried out by the Sentencing Council, which is an independent non- departmental public body of the Ministry of Justice, and will cover the offences of causing death by careless driving and causing death or serious injury by dangerous driving. Proposals will be subject to a formal consultation.

30 user comments

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It just gets worse. We have:

A teenage girl using a crossing, and the lights turned green while she was on it.

A driver sending a boatload of texts while driving, which he knew was wrong. In some respects, this could be a smokescreen, since we don't know what was happening at the exact time.

It is known (see reporting elsewhere if you wish to clarify) that the court accepted she was in the blindspot and that he couldn't see her.

Unless the implication is that a child should be familiar with the blindspots of an HGV, surely the only conclusions can be that either:
- The driver DID cause death by dangerous driving
- The HGV design is simply unsafe to be on the road

So it's 'just one of those things' again is it?!

Dodging the saccadic masking

posted by notfastenough [2398 posts]
12th September 2013 - 14:40

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“He will feel that responsibility for the rest of his days.”

Yeah, right. At Wits End

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 [132 posts]
12th September 2013 - 14:43

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He should have a bicycle as his only means of transport for the rest of his life.

The life of a child should be worth more than we apparently value it.

posted by Jakal79 [48 posts]
12th September 2013 - 14:46

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Why bother with the CTC comments? They're so irrelevant it's a waste of anyone's time reading them... Who cares if they gave him a short sentence for the crime committed when the crime is wrong in the first place. It should have been death by dangerous driving...

ilderracer's picture

posted by ilderracer [12 posts]
12th September 2013 - 14:48

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Banned from driving for just one year? Surprise

posted by seanbolton [94 posts]
12th September 2013 - 14:50

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This incident is a tragic one. I have 3 daughters of my own, so I don't treat it lightly.

But...

notfastenough wrote:
lights turned green while she was on it.

Evidence please?

[edit]

And...

Quote:
It should have been death by dangerous driving...

Evidence that dangerous driving caused the death please? (As opposed to occurring before the incident, which is not in dispute)

posted by flobble [36 posts]
12th September 2013 - 14:56

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notfastenough wrote:

Unless the implication is that a child should be familiar with the blindspots of an HGV, surely the only conclusions can be that either:
- The driver DID cause death by dangerous driving
- The HGV design is simply unsafe to be on the road

It's not clear from the news coverage, but she really should have been visible if the driver stopped at the stop line. There's usually a gap of several feet between the stop line and the crossing markings. In order to be in a blind spot, she'd either need to have stepped out only one or two feet away from the front of the cab, or the cab would need to have passed the stop line.

Given that many drivers treat stop lines as advisory, I wouldn't be surprised if this is what happened. You're entirely right that it's either the driver or the design that's fundamentally unsafe. It's depressing beyond belief that we accept the death of children as an acceptable price to pay for our motoring culture.

posted by babybat [18 posts]
12th September 2013 - 15:03

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Doesn't green mean go if safe to do so ????
In which case where was he looking ???

still on the 3rd switch-back of Bwlch !

posted by therevokid [540 posts]
12th September 2013 - 15:14

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therevokid wrote:
Doesn't green mean go if safe to do so ????
In which case where was he looking ???

Yep, just like the red man on the pedestrian crossing means stop. So where was she looking? Entirely plausible she rode onto the pedestrian crossing after the light changed. (Note: rode, not walked)

Point is, we weren't there, we didn't see it, the evidence is circumstantial at best, so we don't know and we cannot/should not convict.

I want to live in a society that makes judgments based on the facts, not uninformed assumptions and speculation.

posted by flobble [36 posts]
12th September 2013 - 15:27

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I am utterly gobsmacked...utterly

posted by ct [22 posts]
12th September 2013 - 15:37

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Its true we don't have all the facts. The facts we have been given however.
He was texting multiple times while driving a lorry.
He KILLED a young girl.
His first reaction on seeing her dying under his lorry is to get back in and delete all sent messages.

I'm sorry, but yet again we have a justice system that perpetually blames the vulnerable. If all road deaths caused by "professional drivers" were treated as a death at a place of work, I'm sure the HSE would yield better results than the incompetent CPS. Holding the business owners personally responsible would get some changes pushed through very quickly.

I hope this so called professional driver does the only honourable thing. Gives up driving as he clearly is incapable of driving safely, and dedicates his life to trying to make amends. But that would only happen if he was truly sorry.

posted by Mart [68 posts]
12th September 2013 - 18:19

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Mart wrote:

His first reaction on seeing her dying under his lorry is to get back in and delete all sent messages.

This is what I find abhorrent. Maybe she rode out when the lights had changed. Maybe she was in his blind spot. But to put himself first over a dead child makes him a disgusting excuse for a man.

Rob

posted by robert.brady [140 posts]
12th September 2013 - 20:20

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I'd like to see a nationwide collective effort to refer all such travesties of justice to the Crown Prosecution Service, complaining about what they term "unduly lenient sentences" - check out http://www.cps.gov.uk/legal/s_to_u/unduly_lenient_sentences/

posted by austen.croydonc... [10 posts]
12th September 2013 - 20:44

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Mart wrote:
I'm sorry, but yet again we have a justice system that perpetually blames the vulnerable. If all road deaths caused by "professional drivers" were treated as a death at a place of work, I'm sure the HSE would yield better results than the incompetent CPS. Holding the business owners personally responsible would get some changes pushed through very quickly.

I wholeheartedly agree - the threat of corporate manslaughter suits to the directors of companies responsible and fines based on a percentage of turnover if found negligent would rapidly result in a change in attitudes to road safety by employers of drivers. My employer's policy to the use of mobile phones whilst driving is simple - we're simply not allowed to use our phones whilst driving.

Make mine an Italian with Campagnolo on the side

posted by monty dog [325 posts]
12th September 2013 - 20:44

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Mart wrote:
Its true we don't have all the facts. The facts we have been given however.
He was texting multiple times while driving a lorry.
He KILLED a young girl.
His first reaction on seeing her dying under his lorry is to get back in and delete all sent messages.

Driving & texting: Reprehensible - But he was caught, and has been punished for it.
Subsequently deleting texts: Abhorrent is right. I cannot understand how anyone could think of anything else except the girl in this circumstances. But he was caught and has been punished for it
Killing a young girl: Utterly tragic. But still, no matter what we think of the above, I have still seen no evidence that it was actually his fault.

posted by flobble [36 posts]
12th September 2013 - 20:56

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If the truck has a blind spot right in front of it then when pulling up at a pedestrian crossing why does the driver not stop far enough short of it that he can see the crossing? Green does not mean go.

Location... http://goo.gl/maps/ohvJJ That little ghost bike is so tragic. My condolences to all affected.

posted by Malaconotus [22 posts]
12th September 2013 - 21:59

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I want to pick up on one aspect of this, the fact that the judge agreed that the blind spot was good reason for Foster not to have seen Fennell.

Quite clearly, the law has in this case determined that the vehicle itself was at fault: the reason she died is that the vehicle does not permit the driver to see people whom he can then - legitimately, in the purest sense of the word - kill.

Now, I don't agree with that and you probably don't either, but it is what it is. The law's opinion is more influential than yours and mine.

But it brings into sharp focus the response of the Freight Transport Association to calls for HGVs to be imrpoved in terms of safety to others:

http://beyondthekerb.wordpress.com/2013/09/05/cyclists-go-truck-yourselves/

The law says the vehicle is fatally flawed; someone has died because of the vehicle. Yet the body that represents half of the HGV fleet appears to be opposed to addressing this legally recognised feature, and others.

And as a further point regarding HGV blind spots, here's a post on the CTC forum, from an HGV driver:

http://forum.ctc.org.uk/viewtopic.php?p=701401#p701401

But, the FTA and the HGV industry aside, this is a truly appalling case with unbelievable sentencing, for a man that acted fully and clearly illegally rather than "merely" negligently and who actively sought to pervert the cause of justice, including a pitiful driving ban. It's the clearest illustration of the UK's appalling legal handling of a road collision that I've seen in a while, and that's really saying something.

Bez's picture

posted by Bez [308 posts]
13th September 2013 - 8:07

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Given the woeful state of our legal system, It won't be long before we see a significant rise in vigilante justice.

posted by Matt_S [175 posts]
13th September 2013 - 8:43

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Wtf? could have been my daughter or anyone's daughter for that sake

Can't someone get a petition up to increase this murderer's sentence for christ's sake?

posted by Karbon Kev [626 posts]
13th September 2013 - 8:47

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ilderracer wrote:
Why bother with the CTC comments? They're so irrelevant it's a waste of anyone's time reading them... Who cares if they gave him a short sentence for the crime committed when the crime is wrong in the first place. It should have been death by dangerous driving...

On the contrary, it highlights just how broken the system is. Not only are the CPS extremely reluctant to pursue the appropriate offences, even under a successful prosecution for a lesser offence, the sentences are almost invariably at (or in another recent case, below) the lower end of sentencing guidelines.

posted by pdw [14 posts]
13th September 2013 - 10:31

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Much sympathies to the family. As if the loss of their daughter was not enough, insult was added to injury by that verdict.
As a friend working in CID once told me: "the CPS is a bunch of pussies".

posted by Arno du Galibier [22 posts]
13th September 2013 - 10:51

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flobble wrote:
This incident is a tragic one. I have 3 daughters of my own, so I don't treat it lightly.

But...

notfastenough wrote:
lights turned green while she was on it.

Evidence please?

http://www.birminghammail.co.uk/news/local-news/hope-fennells-killer-dri...

"Foster, delivering his final load of the day, pulled away at the green light, not seeing the teenager riding out in front of him."

As I said, reported elsewhere.

Dodging the saccadic masking

posted by notfastenough [2398 posts]
13th September 2013 - 11:05

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They say everything happens for a reason, so I wonder if it was established in court why this man deleted text messages from his phone?
Are these the actions of an innocent man? Are they the actions of someone with compassion for a child on a bike that has just been killed?
I for one would be numb if I had just done such a thing regardless if I was to blame or not.
Put yourself in that guys shoes, imagine what just happened, then imagine thinking I hope I don't get into trouble for this, let me just delete these text messages just in case...

So, what are the lessons learned or the recommendations that will prevent this from happening to others in the future?

If it was that texting whilst driving was the cause, then the sentence should reflect that.
If it was unavoidable because of the type of vehicle, then they should be banned from busy high streets such as this one.
If the law does not take any of these into consideration, then if is obviously not meant to be a deterrent or to protect people, rather just to record what has happened for statistical purposes!

So remember, it's not justice, it's the law!

posted by ronin [49 posts]
13th September 2013 - 12:13

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I would hope, at least, he'll no longer be eligible to drive an HGV ever again! What a pathetic, toothless justice system we have at times.

posted by southseabythesea [38 posts]
13th September 2013 - 12:39

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notfastenough wrote:

"Foster, delivering his final load of the day, pulled away at the green light, not seeing the teenager riding out in front of him."

As I said, reported elsewhere.

FFS notfastenough, newspaper reports are not evidence, and even the sentence you quote is ambiguous! They're a tool to attract attention, which is then used to sell advertising, which pays the wages of the reporters (apologies road.cc staff). Sometimes the integrity and quality of the publication and reporting means it's reliable, but to rely on the media as the provider of the precise and literal truth is a foolish mistake.

posted by flobble [36 posts]
13th September 2013 - 13:03

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It wasn't his fault 'as he didn't see her'?

So if any of us ever cause a collision resulting in death we just avoid liability by stating our eyes were closed. It gets worse doesn't it?

Hating our selfish and ignorant car culture

posted by ironmancole [92 posts]
13th September 2013 - 13:33

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This is being covered in greater detail here http://www.birminghamcyclist.com/forum/topics/lorry-driver-pleads-guilty... There is so much wrong with the design of the street, and its use and yet no one is doing anything about it.

The option is available for the Traffic Commissioner to revoke the HGV licence on the grounds that the driver has shown himself not to be a fit person to hold an HGV licence. The key problem I suspect is getting the backing for the Commissioners through the Courts if they do start to get tougher with the powers they rightly have as regulators. When they try to revoke or reduce the licences of operators, or impose penalties for operating outwith the terms of an operator's licence, their position is weakened by the ability of a determined rogue to keep operating whilst a whole trail of appeals and stalling keeps them operating with impunity.

47 years of breaking bikes and still they offer me a 10 year frame warranty!

A V Lowe's picture

posted by A V Lowe [392 posts]
13th September 2013 - 14:18

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We had a collection to defend a cyclist riding outside cycle lanes, which is his right.
Why not one to fund an action against the driver and company for operating an unsafe vehicle.
It would do so much good if it were to act as jurisprudence, as a legal precedent.

Enjoy

posted by cisgil23 [27 posts]
13th September 2013 - 16:52

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flobble wrote:
notfastenough wrote:

"Foster, delivering his final load of the day, pulled away at the green light, not seeing the teenager riding out in front of him."

As I said, reported elsewhere.

FFS notfastenough, newspaper reports are not evidence, and even the sentence you quote is ambiguous! They're a tool to attract attention, which is then used to sell advertising, which pays the wages of the reporters (apologies road.cc staff). Sometimes the integrity and quality of the publication and reporting means it's reliable, but to rely on the media as the provider of the precise and literal truth is a foolish mistake.

Obviously I should go and interview them myself then. Or is it better to simply not permit comments at all?!

Dodging the saccadic masking

posted by notfastenough [2398 posts]
14th September 2013 - 8:10

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What I really don't understand is this "blindspot".
We have a 13 year old girl riding a bicycle. How high is that? How on earth can a blindspot be so huge that she couldn't be seen when directly in front of the lorry? There is something seriously wrong here.

posted by saddlebag [3 posts]
14th September 2013 - 12:44

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