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Submission to APPCG Justice Enquiry

by koscycle | January 23, 2017 | APPCG Justice Enquiry

My name is Kevin O’Sullivan and I am a personal injury lawyer of 25 years experience. For the last 15 years I have almost exclusively represented cyclists in cases arising from road accidents, mostly in London.

Injuries have ranged from cuts and bruises to those of the utmost severity, severe brain damage, multiple orthopaedic injuries, serious scarring cases (from going under a HGV) and significant psychiatric consequences – many of my clients refuse to cycle again after a serious accident.

I’ve personally conducted two inquests for tragic cyclist fatalaties and appear regularly in the media on cycling law.

In January 2016, I set up the UK’s first ever law firm that acts just for cyclists, Cycle Legal.

Although I am a civil lawyer, a central part of every cycling personal injury case is to closely monitor a police investigation and prosecution, and support my client throughout this lengthy process, although I have no direct involvement since it is of course a matter of the state against the defendant driver and my client is a witness for the prosecution.

I will restrict most of my comments to criminal justice, since in my long experience, this is the subject that cyclists care about most greatly, whether criminal justice is served

after they have been the victim of a road accident, rather than the financial outcome of any civil case.

Criminal justice ,moreover,is where I consider most change should take place for cyclists in the legal system.

I will be forwarding to the committee the contact details of clients of mine who have agreed to be contacted and, indeed,wish to speak to the committee about their varied experiences.

Government Cuts in Police Investigation

The overwhelming issue of the moment is how Government cuts to public services are impacting upon criminal justice in cycling cases.

One of the best things about early instruction after an RTA is that local authority or TFL CCTV should be available within a 30 day window, after which it is deleted.

To my amazement, when a client of mine was seriously injured on a very busy main road, Vauxhall Bridge Road, the police did not automatically request from TFL the footage that was clearly present to inform the police investigation.

Because I was instructed within 30 days, I was able to obtain the footage myself and forward it to the police to consider and review their investigation after they had already closed their enquiries.It is only this footage that now gives my client any chance of winning his civil case after sustaining a life-changing leg injury. He should have been able to rely on the police to do this for him.

I have spoken with the police on another matter, also on a busy main road, Hackney Road. The police civilian case officer candidly told me in December that the local authorities do not have the resources to check for footage and neither do the police .

Most of us would fully understand that this should apply in very minor cases, but this is happening in cases where serious injury has been sustained.

As a slight aside,I met a client last month who had to wait two hours at the accident scene (car door opened in her path ) for an ambulance with a badly broken arm

To Prosecute or to ‘No Further Action’ (NFA) the case ?

To attempt to address some of the criminal justice issues you raise directly:

a. I would submit that the careless and dangerous driving standards should stay, since these are easily understood – falling below the standard of a careful and competent driver and falling far below the standard of a careful and competent driver.

b. Where there should be change is in the decision making on prosecution. My experience is that the police/CPS will not charge when there is no independent witness, although the severity of injury justifies a prosecution and the circumstances of a road accident often speak for themselves. In other words, there is a realistic chance of a conviction even without a witness and the CPS need to be much more bold.

It would assist the Committee to obtain from the CPS their criteria for charging in careless driving matters. It should be desirable for there to be at least one independent witness blaming the driver, but this should not be a prerequisite to a prosecution in the first place. I have had many clients who have been very distressed that they are left with a life-changing injury and the police take no further action even through there is compelling evidence against the driver.

I often challenge the police /CPS decision not to prosecute with occasional success.

The CPS should also be aware that as a general rule, a cyclist makes a reliable witness in a court room. It is always dangerous to generalise, but I have met and represented literally hundreds of cyclists over two decades and they are almost always articulate, well-educated and reliable, exactly the type of person that the CPS should have faith in when making the finely balanced decision as to whether to not to charge a driver if there is no witness.

The charging criteria for careless driving should also recognise the vulnerability of cyclists.

There is a hierarchy of vulnerability on the roads, which has pedestrians and cyclists as the most vulnerable, and HGV lorries as the least.

Injury in the Criminal Charge

In my submission, the vulnerability of the road users and the injured victims of an RTA should be the first matter that the CPS consider when deciding whether or not to charge a driver. This change should be made to the CPS charging criteria.

A few years ago, the law was changed to add the offence of “serious injury caused by dangerous driving”. This is little known and little used, partly because dangerous driving as an offence is charged so rarely in my ,mostly urban, experience.

In my submission, this change should now be introduced to the offence of careless driving, so that the charge of “serious injury caused by careless driving” is available to prosecutors. At a stroke, this would alter the mindset of the seriously injured cyclist when they attend court as a prosecution witness when the case comes to trial.

I have no easy suggestions for altering the format of a criminal trial, since the rights of the Defendant to cross-examine any prosecution witness are ,quite rightly, a fundamental tenet of criminal law, but it can be a hugely distressing ordeal for a

seriously injured cyclist to be aggressively cross-examined by a lawyer representing the driver.

The prosecution witness, the injured cyclist, has no legal representation in court and can often feel isolated and under attack.

The introduction ,some years ago, of Victim Impact Statements (VIS) has helped to enable my clients to say in writing how the accident has affected them and the magistrates do take this statement into account if there is a conviction, but the cyclist victim would be much more a central part of the process if the charge against the Defendant directly refers to the impact – e.g. “causing serious injury by careless driving”.

When my injured client hears in court the charge that refers to their injury they will feel more a part of the proceedings rather than have to hear a defence lawyer remind the bench that the hearing is only to decide on the standard of driving ,and not the consequences.

Magistrate Trial Only for Causing Death by Careless Driving

This offence is only a few years old and ( was welcomed by those of us who fight for vulnerable road users ),but already there is growing evidence that juries are unwilling to convict a driver because they know that prison is a likely consequence. I have discussed this with Rosamund Urwin of the Evening Standard who has gathered some excellent evidence which may assist the Committee on how prevalent this acquittal rate is in cycling fatalaties.

Punishments

I long ago lost count of the amount of times I have seen a punishment for the driver after a careless driving trial to be a £250 fine and 3 points on their licence. This is almost exactly the same as the punishment for going through a speeding camera at 7 mph above a camera imposed limit (say, 50 mph) when there is no collision at all, no injury sustained and no victim.

I make this comparison simply to illustrate how paltry the punishment is for a careless driving charge. Cyclists, in my experience, do not wish to see draconian sentences, but they do wish to feel that justice has been done. In my submission, the best way of achieving this is much greater use of driving bans.

Where the court should be more hesitant to impose a driving ban,perhaps, is where the Defendant drives for a living and I have had clients who have implored a court not to ban a driver to take away his livelihood or imprison the driver.

A key role, however, in criminal punishment and altering driver behaviour is the deterent effect of sentencing. If the general public are aware that causing an injury to a vulnerable road user could realistically result in them losing their licence for six to

twelve months, I consider this would have the greatest impact. The current penalties for careless driving are no deterrent effect at all, points and a fine .

Causing life changing injury to a cyclist ,therefore, often results in a penalty that is barely different to the most minor speeding offence.This cannot be allowed to continue.

This directly influences driver behaviour in that being careless at the wheel is not taken more seriously than speeding by the justice system.

Civil Justice

There is a higher standard of proof in the criminal courts (beyond reasonable doubt) than there is in the civil courts (on the balance of probabilities).This often means that even when the police have not prosecuted, or a prosecution has taken place and the Defendant has been acquitted, the civil matter still succeeds in full, either at trial or by negotiation.

The comments and submission I make on criminal justice are of little relevance to the civil justice process, and certainly have no effect at all on compensation. Where they go towards is giving the cyclist victim a greater feeling that criminal justice has been served and at least properly investigated.

Where the cyclist is much more at risk from a civil justice point of view is from the current Government reforms to remove the small claims limit of £1,000 and increase this to £5,000. A large majority of cycling injuries following RTAs fall within this £5,000 limit, since most cycling injuries are thankfully minor. If these Government reforms go ahead, the cyclist will be left to negotiate the civil justice system on his or her own against huge insurance companies which have massive resources and all the expertise and experience in these cases. In order to preserve cyclists’ access to justice, this small claims limit should stay at £1,000.

I am very keen to appear before the committee to assist further on Tuesday, 28 February 2017 at 3.30pm.



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