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

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.

Our official grumpy Northerner, John has been riding bikes for over 30 years since discovering as an uncoordinated teen that a sport could be fun if it didn't require you to catch a ball or get in the way of a hulking prop forward.

Road touring was followed by mountain biking and a career racing in the mud that was as brief as it was unsuccessful.

Somewhere along the line came the discovery that he could string a few words together, followed by the even more remarkable discovery that people were mug enough to pay for this rather than expecting him to do an honest day's work. He's pretty certain he's worked for even more bike publications than Mat Brett.

The inevitable 30-something MAMIL transition saw him shift to skinny tyres and these days he lives in Cambridge where the lack of hills is more than made up for by the headwinds.