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Justice (Lonpicman, Wikimedia Commons)Two drivers cleared of causing death by careless driving after hitting cyclist in low sun
Two drivers whose cars hit a cyclist in Shopshire two years ago have been cleared of causing his death by careless driving after they claimed they had been unable to see him because of low sun and glare from a wet road.
On the morning of October 17, 2012, cyclist John Edmund Searle was hit by the wing mirror of a car being driven by Pamela Willocks. The 59-year-old teaching assistant fell into the road, and moments later was run over by a van driven by Russel Davies, inflicting fatal injuries.
He was then hit a third time by a silver Citroen, Shrewsbury Crown Court heard during the trial.
Despite efforts by paramedics to revive him, Mr Searle died at the scene.
According to the Shropshire Star, dentist Gary Pitkin, who was driving the other way on the B4368 Corvedale Road near Craven Arms, stopped to try and assist Mr Searle. As he called emergency services, Mr Pitkin was hit by a blue car, breaking his leg.
Mrs Willocks and Mr Davies denied the charges of careless driving.
The court was told that low morning sun, and glare from the wet road had made it hard for drivers to see as they drove east along the road.
Davies said he had been on the way to a job when it happened.
He said: “All of a sudden the near side wheel on the van struck something on the road. There was a massive jolt. It felt like something like a raised drain cover or something at the time.
“I was a bit worried something had fallen off the vehicle into the road and that was why we went back really.”
He said he was greeted with “carnage”. “It was not what I expected to see when I came back round the bend.”
Asked by his solicitor Miss Kim Halsall if he knew if his vehicle had gone over Mr Searle's bike, Mr Davies replied: “No. I didn’t know at the time, I didn’t know what I had gone over.”
He added that he could not say if he had also driven over Mr Searle. He said: "I don’t know what I went over at the time.”
Prosecutor Simon Davis, asked Davies: “This wasn’t any old bump was it? It was quite substantial?”
Davies said: “I said to the officer at the time I thought it was a drain cover. I don’t know what else you want me to say.”
The prosecutor said: “The jolt you felt was Mr Searle’s body, wasn’t it?”
“No, I don’t know,” Davies said.
Mr Davis asked: “How can you dispute it was Mr Searle’s body?”
“I can’t,” Davies said. “I didn’t know what it was so I don’t know.”
Davies said he had not been driving too quickly and had not been distracted. Asked if he should have been driving more slowly because of the low sunlight and glare he said: “I thought I was driving at a safe speed for those conditions, I would have been driving slower otherwise.”
Constable Ian Edwards, a collision expert for West Mercia Police, said sunlight would have been shining directly into the eyes of drivers travelling eastbound on the road.
After Mr Searle had been hit by three separate cars, Gary Pikin stopped to try and help.
He said: “I thought I saw some rubbish and a bright yellow thing I thought was a sack or bag. I slowed down and as we passed I saw a chap in the road near his bike.”
Mr Pitkin said he pulled up and ran to the aid of the cyclist. He said: “I put my right hand on the cyclist’s shoulder and said ‘I can see you have been hurt, I am going to phone for an ambulance’. The cyclist made a groaning noise.
“I straight away got on the phone and had an infuriating call with the emergency services who did not know what road I was referring to.”
The court heard that while he was on the phone, a blue car hit Mr Pitkin and he fell and broke his left leg.
He said: “I am prone to pacing while on the phone so was walking backwards and forwards trying to explain where I was. While I was facing Craven Arms I got hit by a car that came through, it spun me round and I landed on my backside with my feet slightly over Mr Searle. It felt like a hard rugby tackle and I don’t think I left the ground. Mr Searle did not move from when we passed him in the car to when I was hit.”
Christopher Smith, a passenger in Davies’ van on October 17 on their way to an electrical contract, told the court the weather conditions made driving difficult as the sun was shining strongly and they were driving towards it.
Mr Smith said: “The van was going about 40 to 50 mph. We went over something in the road, about a mile and a half from Craven Arms. It felt like going over a log or something. Russel said to me ‘What was that?’ and I replied, ‘I don’t know’.”
Asked if he was comfortable with the way Mr Davies was driving, Mr Smith said: "Yes."
Mrs Willocks and Mr Davies were acquitted of careless driving by unanimous verdicts of the jury yesterday.
Judge Robert Eades said: “This has been a very unusual case and it had a lot of permutations which made it from a lawyer’s point of view very interesting but from a jury point of view very difficult.”
This is the second case this year in which the prosecution has been unable to convince a jury that drivers who kill should not be able to use being dazzled by the sun as an excuse.
Last month two drivers accused of causing the death of a cyclist by careless driving were cleared by a jury at Newcastle Crown Court. They had said during their trial that they had been blinded by the sun before hitting cyclist Stan Coates on October 26, 2012. The driver who initially struck Mr Coates was found guilty of careless driving.
If some sweary venting about this and similar cases would make you feel better (or even angrier) this commentary by Bez is well worth a read.
John has been writing about bikes and cycling for over 30 years since discovering that people were mug enough to pay him for it rather than expecting him to do an honest day's work.
He was heavily involved in the mountain bike boom of the late 1980s as a racer, team manager and race promoter, and that led to writing for Mountain Biking UK magazine shortly after its inception. He got the gig by phoning up the editor and telling him the magazine was rubbish and he could do better. Rather than telling him to get lost, MBUK editor Tym Manley called John’s bluff and the rest is history.
Since then he has worked on MTB Pro magazine and was editor of Maximum Mountain Bike and Australian Mountain Bike magazines, before switching to the web in 2000 to work for CyclingNews.com. Along with road.cc founder Tony Farrelly, John was on the launch team for BikeRadar.com and subsequently became editor in chief of Future Publishing’s group of cycling magazines and websites, including Cycling Plus, MBUK, What Mountain Bike and Procycling.
John has also written for Cyclist magazine, edited the BikeMagic website and was founding editor of TotalWomensCycling.com before handing over to someone far more representative of the site's main audience.
He joined road.cc in 2013. He lives in Cambridge where the lack of hills is more than made up for by the headwinds.
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55 comments
Thanks Bez. Your well written and informed blog makes very interesting, if incredibly depressing, reading. As you, I cycle and drive and would not claim to be anti-car, but the system does seem unbelievably skewed in favour of the car, with excuses being made left, right and centre for what is essentially laziness, incompetence, arrogance or stupidity (or a highly dangerous combination of them all).
The judge advising the jury to ignore the Highway Code...
I am quite literally speechless
As cyclists, we should all start riding into police vehicles/bobbys on the beat/judges and lawyers and claim we didnt see them cause of the sunlight, or that we thought they were street furniture.
http://www.cps.gov.uk/legal/p_to_r/road_traffic_offences_guidance_on_pro...
Scroll down for the discussion on causation.
This one's pretty difficult. There must be causation. If a jury, properly directed, cannot, so that they are sure, find that party caused the death then they must acquit. So, where you have multiple contributors, this becomes quite difficult.
In effect, each defendant can say that a) they weren't driving dangerously/carelessly AND/OR b) that they did not cause the death.
It's stacked against a guilty verdict and, of course, rightly so.
It's deeply unsatisfactory. There is clear evidence here of careless and dangerous driving. I'm guessing, having not seen all the evidence or heard the summing up, that this comes down to causation. Who caused the death. And that's what the jury struggled with.
What I am surprised is that there were no findings of careless driving here which, it is clear, even without all the evidedence, there was.
How how how can they possibly not be guilty?! I don't know the ins and outs of different charges (I'd assume careless driving rather than dangerous?) but surely they are ALL guilty of exactly the same thing - driving far too fast for the conditions (because low sun/poor vision should = slow the fuck down) and not being able to slow down in time for another road user (the cyclist) who sadly then became 'an obstruction' rather than a cyclist.
I wish there could be a magic way of stopping these incidents - at the moment (possibly due to the 'worst' cases getting the coverage?) there doesn't seem to be any justice, meaning the car-first attitude and lack of deterrent is self-perpetuating.
But that's not a statutory offence. The statutory offence is "careless driving", defined as "a standard of driving which falls below that expected of a competent and careful driver".
Now, there is no statutory definition of "a competent and careful driver". This is defined by case law.
A crucial point is that the Highway Code is not a legal document. The "must" clauses in it are layman's wording of statutory offences, but nothing in the Highway Code is in any way legally binding. Viz the Petterson trial earlier this year, in which the judge explicitly advised the jury to ignore the Highway Code and its recommendation to "slow down and, if necessary, stop" when dazzled:
http://beyondthekerb.wordpress.com/2014/02/12/futility/
The curious aspect of this is not that contravening the Highway Code itself constitutes an offence, because it's perfectly plain that it doesn't; it's that the Highway Code is not considered (in this case at least) to be a valid factor in determining "a standard of driving which falls below that expected of a competent and careful driver". This is left up to the jurors, most if not all of whom of course probably drive in a manner that would see them drive incautiously when dazzled, and most if not all of whom would consider themselves a competent driver.
Note from the linked post that the Highway Code is considered repeatedly when analysing the behaviour of the deceased cyclist.
And a separate point for the "presumed liability" discussion: the important detail is not "presumed vs strict", but "liability vs culpability". Presumed liability is simply a means of easing civil claims (ie damages) derived from the relative potential for harm of different vehicle types, not a hierarchy of legal responsibility deriving from the same.
From the highway code, note the absence of a must or should, so, I guess slowing down is actually optional???
Please contrast with
So the cyclist is guilty if they weren't wearing a helmet or hi viz but slowing down is on a par with using cycle paths???
It was the drivers responsibility to slow down and both of them have got away with careless driving. Until government reminds people to drive at a speed appropriate fro the conditions - rather than taking the speed limit as the target this will keep on happening.
There is a get out clause these days with windscreens as most modern windscreens have UV protection so Polaroid sunglasses do not work. Of course, anyone with common sense would keep a pair of tinted sunglasses in the car to wear for low bright light and shiny road conditions - and drive more slowly.
As the saying goes: If only 'common' sense was as common as the name suggests..
Presumed liability, for me, is the true way forward. It would do more than education. And, of course, it works downwards so would encourage better use of paths by cyclists and keeping them off the pavements.
There's a risk it could lead to worse cycling but I think the reckless will just continue to be reckless.
"40 to 50 mph" into the sun?
Hell, I don't feel safe driving at 40-50 Kph (25-30mph) into the sun.
This. Exactly this.
It is beginning to feel like there is no hope of justice for victims of road traffic offences.
Under presumed liability, wouldn't the drivers have had to PROVE that they had taken every precaution necessary to avoid the accident? Like reducing speed due to blinding conditions? Guilty, all of them. Will not bring Mr. Searle back though. If only his case would bring about a change of law.
No: Presumed liability is a civil process term, not criminal.
You are thinking of strict liability (where in England it's used for example when driving too near behind someone and failing to stop in time).
How would it then work? Presumed liability for traffic accidents not involving bodily harm, automatic strict liability for all cases involving the latter? And what about intent, f.i. it can be proven the driver itended to inflict bodily harm, but was not able to (eg. driving under influence of alchol, drugs etc..)?
Then you charge with murder, manslaughter, GBH, assault, etc, whatever is suitable. If you can prove intent, there are plenty of options.
Not quite. Presumed and strict liability exist most commonly in civil law. We don't yet have a presumed liability for accidents. That would work by reversing the burden of proof. So, if you have a cycling accident involving a car then the car driver would need to prove it was NOT his fault.
Strict liability is something different. There's no reversal of the burden. You are just liable. An example would be an escape of water from a water company's supply. They are liable regardless of negligence. That is the case even if someone else breaks the supply. The water company must compensate you but can then "reclaim" the compensation from the person who caused the loss.
In terms of driving into the back of someone it's merely a presumption and convention. If you are, for example, stationary at traffic lights and someone runs into the back of you you still have to prove your claim. Although, it is likely, by convention that the other party's insurers will settle or, if it gets to Court, barring some weirdness, you will win.
Strict liability in criminal cases is much less common and broadly limited to statute.
Someone above mentioned joint enterprise. It doesn't apply, but, in terms of "fixing" this area of law it might be something to look at. So, you could legislate that where several drivers contributed to the death then they are all equally liable. I very much doubt that there's the political will to make that change.
@bendertherobot: You're right, of course.
The way presumed liability works in pretty much every European country is that in civil claims, the driver will be liable for compensation costs unless it can be proven the cyclist was at fault.
This causes no problems, as only a superbly reckless person would do a bike vs. car crash for cash...
It was only a cyclist ……..
RIP John Edmund Searle.
Busy narrow commuter B road - first car (black small 4wd, driver never identified) passes too close to cyclist, next driver hits cyclist with wing mirror, van driver runs over fallen cyclist, guy stops to help injured cyclist but gets hit by another car - but a court finds everyone's driving was OK?
A very sad summary of the acceptance that being able to drive to work as fast as you like with no concern for other road users is a norm in society.
Incidentally saw this case yesterday an odd compare and contrast - nobody killed or injured:
http://www.bbc.com/news/uk-30083726
"A man who drove a car on to the Brands Hatch circuit, in Kent, during a race has been jailed for eight months."
"AA president Edmund King said most drivers were sensible enough to slow down when they are dazzled."
So this is nonsense justice.
http://www.dailymail.co.uk/news/article-2461972/Glare-sun-contributes-3-...
Regarding thinking you've run over a drain cover. Having, unfortunately, run over a fox a number of years ago, I can say that felt nothing like going over a drain cover. A drain cover has a short, fairly uniform, dip then bump with a metallic sound. Sadly the fox was a sudden irregular bump with the sound of scratching to the bottom of the car. I cannot believe for a second someone could genuinely think running over a person was just a drain cover. Furthermore I didn't see it until just before hitting it and can't imagine how someone could not see something 3 foot higher than a fox as they hit it. Unless perhaps they're not looking and going dangerously fast.
I have this amazing trick I do when visibility is poor or I am getting loads of glare off the sun....
I SLOW THE FUNK DOWN!!!
Plus, have some people never heard of polaroid sunglasses?
I've been following the progress of this case in the local rag. Early in the trial the police expert seems to have provided them with a 'reason', low sun, shiny wet road surface,I did not anticipate a conviction, and sadly the rest is now history.
Another miscarriage of justice because drivers are not expected to be responsible for their actions. There is something very wrong in our society.
In hindsight, maybe the court/jury should have made a site visit in similar conditions and got out of their vehicles.
The emergency services might have become rather busy shortly after though.
"The court was told that low morning sun, and glare from the wet road had made it hard for drivers to see as they drove east along the road."
They were going 40-50 mph in those conditions.
That's wilfully dangerous driving in my book.
CPS has A LOT to answer for.
On your last point, why? They brought the case. The jury rejected it. They may not have brought it well, who knows, we didn't hear it.
Causation where you have several intervening or additional acts is really complicated. Add a Judge who tells the jurors that they must be sure, and they inevitably cop out.
I'd like to see what expert evidence there was here, particularly medical, as to who was most likely to have caused the death.
I think a tweak in the law is probably needed as a consequence of this and other similar cases.
Charge them all under Joint Enterprise?
No: They haven't undertaken anything together, there's no agreement whatsoever, just happened to be on same road driving dangerously at the same time.
This summer i was riding my motorbike in low sun wearing a darkened visor and was pulled over, told to take it off and ride without one or the bike would be impounded and I was fined £100 all in the name of safety.
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