The Michael Mason case - why, what happened, and where now?
A three year journey from Regent Street to the Old Bailey
Last week Gail Purcell was acquitted at the Old Bailey of causing the death by careless driving of 70 year-old teacher Michael Mason. On 25 February 2014 Michael, known as Mick to his friends, was cycling along London’s Regent Street when he was hit from behind by the Nissan Juke driven by Ms Purcell. He sustained fatal injuries, never recovered consciousness, and passed away in hospital 19 days later.
Unusually, this case was not prosecuted by the Crown Prosecution Service (CPS). They didn’t refuse to prosecute, they were just never asked to consider doing so as the Metropolitan Police wouldn’t refer the file to them or ask for advice.There was a trial at the Old Bailey because Cycling UK’s Cyclists’ Defence Fund (CDF) stepped forward to pursue a private prosecution in lieu of any action by a public prosecutor.
I was in court throughout the trial last week, have been involved in this case for much of the last year, and have had numerous conversations with Mick’s family, particularly his daughter Anna Tatton-Brown. Accordingly, in light of the not guilty verdict, I should perhaps explain why CDF chose to pursue this case, why it was right to do so, what the jury heard last week, and the changes that Cycling UK believe are now needed. As you might guess, this will be a long read.
The well-lit street
I will start with the issues which were not in dispute. The collision occurred at around 6.23pm. Mick was cycling north on Regent Street. It was night time, but we know from CCTV footage that both his lights were working. His bike was fitted with the required reflectors and was road legal. He was wearing dark clothing, and his lack of hi-viz or reflective clothing was something the police believed was significant.
The street lights were on and the road was illuminated by lighting from the retail business along both sides of a well-lit street. Ms Purcell was also travelling north along Regent Street. She can’t say what happened, because she never saw Mick.
She didn’t see him as she drove along Regent Street, with the gap narrowing between her car and Mick’s bicycle. She didn’t see him when she hit him, in what the experts described as a linear collision (i.e: the bicycle was directly in front of the car rather than at an angle), which caused damage to the front right hand side of Ms Purcell’s car. She still didn’t see him when a large dent was caused to the right hand corner of her bonnet, in front of her driving position, which the collision experts did not believe was caused by Mick’s bicycle, leaving only one alternative.
A bag of potatoes
“I just didn’t see him”, was Ms Purcell’s response in a roadside police interview under caution. Eighteen days later in a further interview, she explained that she heard an impact to the right of her car, but she “didn’t know if it was a pedestrian or if something had come from the sky, a bag of potatoes”. Ms Purcell repeated that she just didn’t see a cyclist at any time.
Last week, Ms Purcell’s evidence in court reflected what she had said in her original police interview: “I don’t understand what happened”. Mick’s family would probably say the same thing. Unfortunately, we can’t ask Mick what happened, Ms Purcell just can’t explain it, and the CCTV evidence doesn’t tell us what happened in the final seconds before the collision.
CCTV from further south on Regent Street allowed the collision experts to calculate that Mick was cycling at an average speed between 10 and 12 mph, to a point 28 metres prior to the blood stains on the road which marked where he landed post collision. Ms Purcell was estimated to be driving at 25 mph, with a margin of error in the calculations of 2-3 mph either way.
Failure to look or failure to see?
What we do know is that Mick moved across to the outside lane as he passed a bus stop on the inside lane, and that he was in the outside lane when Ms Purcell’s car hit him from behind. The question was, why didn’t she see him, and was that failure to do so careless?
In the absence of CCTV showing what happened in the seconds prior to the collision, and Ms Purcell’s inability to assist, the court heard evidence last week from 11 witnesses, all of them pedestrians on Regent Street at the time of the collision.
Here we move from undisputed facts to accounts which differ. Understandably, most of these witnesses were going about their business and reacted to the sound of the collision. Nobody had a clear view of both bicycle and car in those fatal last seconds, and it has to be acknowledged that there were inconsistencies between the evidence of people who witnessed a brief traumatic event.
In the air and visible to some, but not to the driver
There were however some common themes. Seven of the witnesses gave evidence about seeing Mick in the air after the impact, arguably significant given that Ms Purcell didn’t.
One witness described the collision occurring more towards the driver’s side of the car, and that Mick went “over the windscreen then bounced off that side of the car”. A second said he saw Mick being hit by the car and “going up in the air and backwards – up the car, over the wing mirror, into the road”. Describing it as a substantial impact, he added that Mick was “thrown up into the air, catapulted across the bonnet, and subsequently died”.
Unused material and 'irrelevant' witnesses
The police had witness statements from these two witnesses when they refused, despite a formal request from Mick’s family, to refer the case to CPS for review. Four witnesses, however, gave evidence last week who CDF’s lawyers Edmonds Marshall McMahon located and obtained statements from. The police had their contact details, as they were in the police unused material schedule which CDF received shortly before the trial, but the police seemingly decided they had nothing relevant to say.
In evidence last week, one of the apparently irrelevant four described Mick’s bicycle sliding over the front bumper on the right side of the car, and Mick falling to the front right of the car, landing towards the island in the middle of the road. Another described “two things flying through the air – I was fairly certain one of the objects was a person”. A third said she “saw the man flying through the road”, and that “the man became airborne”. These were witnesses identified from unused material the police did not intend to rely on, unearthed by CDF’s diligent lawyers.
But Ms Purcell saw nothing in front of her, nothing on or over her bonnet, and nothing flying through the air. She did, however, know that there had been some event, as in her evidence she described hearing a loud crash or bang, and in interview, the "bag of potatoes" which came from the sky. So, one of the questions last week was what Ms Purcell did following the collision?
Time taken to stop
In their evidence, six of the witnesses made reference either to Ms Purcell continuing after the collision, an initial impression that this was a hit and run, or that she was not intending to stop. She did stop, but you might think that her reaction to the event would be something to consider when examining her awareness of her surroundings, and whether or not she had been or was distracted.
One of the four witnesses the police considered irrelevant gave evidence that Ms Purcell’s car continued up Regent Street, that he ran up the street after the car which was stopped at the lights, and “stood in front of the car and held out my hand and asked the driver to stop and pull over – I indicated which way to turn the wheel to help her park the car”.
He said that his first impression had been that she was leaving the scene, which was why he subsequently took a photograph of the number plate. Remember, the police didn’t think he was a relevant witness.
Other witnesses referred variously to the car moving on, thinking initially it may have been a hit and run, and the car pulling up at or through the lights, suggesting a somewhat delayed reaction to the thing which she heard but did not see, but which caused a dent in her car bonnet.
Was speed a factor?
When trying to fathom why Ms Purcell failed to see Mick, an obvious question was whether her speed was appropriate for the traffic conditions. Whilst it was not alleged that she was exceeding the speed limit at the time of the collision, the limit is just that, a limit not a target, and a number of witnesses who provided statements to the police also gave evidence last week about whether Ms Purcell’s speed was appropriate.
Asked about Ms Purcell’s car’s speed one said, “it was above 20 yes, it was travelling relatively fast for coming up to traffic lights”.
Another that she “saw a car that was going particularly fast – it appeared to be going fast in comparison with the other cars on the road”. The witness had been planning to cross the road to McDonalds, but, confirming that “the vehicle was definitely travelling fast”, said that as she watched the car she “made the decision not to cross the road because I would have been run over if I did”. A third witness added that “the vehicle was moving, I believe it was roughly 30 mph”.
There to be seen
As well as the witnesses who were on Regent Street, the court also heard evidence last week from two collision investigators, one of whom (now retired) conducted the original police collision investigation, PC Brian Gamble.
I will come to his evidence shortly, but it is interesting first to recall what he said in his written report, which the police had when they declined to seek CPS advice and closed the case, namely that, “In my opinion, if Ms Purcell had looked through her windscreen ahead of her vehicle, then a view of Mr Mason on his pedal cycle in the road was available to her”. Put bluntly, Gamble’s report suggested that Mick was there to be seen. Tragically, he wasn’t, but why?
Helmet, hi-viz and the visible car behind you
The police’s answer to that question is demonstrated within the investigating officer’s report in response to a complaint submitted by Martin Porter QC on behalf of Mick’s family, seeking a review of the decision not to refer the case to the CPS for charging advice. That report states that the rationale for not seeking charging advice included that:
1. Mr Mason was wearing dark clothing, the collision having taken place during the hours of darkness;
2. Mr Mason was not wearing a cycle helmet, the cause of death being head injury;
3. Whilst there was always debate as to whether Mr Mason was there to be seem, there was no argument as to Ms Purcell’s vehicle being visible;
4. CCTV corroborated how busy the area in general was, with both motorists and pedestrians;
5. Mr Mason was displaying lights on his bike, but these lights could have easily be lost to a driver’s sight in a busy London road in the dark where there are numerous other lights displayed.
Disgraceful victim blaming
My view, and I know Mick's family agree, is that the police explanations outlined above amounted to disgraceful victim blaming, in respect of which a police force with an illustrious history and reputation such as the Metropolitan Police should be ashamed.
Ignore for today the arguments regarding the merits of helmets, because the absence of a helmet is in any event irrelevant to Ms Purcell’s standard of driving.
As to the other excuses, it seemed that the police view was well, you know, it’s a busy road, a driver can’t be expected to see every other road user, even if they do have lights. If the silly cyclist chooses to cycle at rush hour without hi-viz what do they expect? And anyway, if he’d looked behind, he should have seen Ms Purcell’s car – it was there to be seen as she approached him from behind.
Ignoring guidance - because we can
CPS guidance indicates that charging decisions in fatal road collision cases should be referred to the CPS and be made by a senior crown prosecutor. The police in this case refused to do so, despite repeated requests, so CDF, after consulting with Mick’s family, sought legal advice about and subsequently commenced a private prosecution of Ms Purcell.
That took us to the Old Bailey last week. You will remember what the other witnesses said, but let’s get back to PC Gamble.
The five second rule
How long does it take you to react when you’re driving?
The car in front brakes suddenly. The pedestrian walks into the road without looking. How quickly do you react if you are paying attention?
Imagine you are driving along a well-lit city road in the evening. It could be London, Manchester or any other city, with shops and other retail outlets emitting lighting. There are streetlights and other vehicle lights. It’s night time, but is it right to say it’s dark?
You’re driving at around 25 mph and something happens further down the road. It might be a drunk stumbling into the street, a car pulling out and stalling, or even a bag of potatoes falling from the sky onto someone’s bonnet. You have to react. Now count from zero to five seconds. That’s how long Gamble says it might take you to react and then take avoiding action.
It appears you can ignore all that stuff in the Highway Code about stopping distances; Gamble says anything up to five seconds to do something to avoid the child who runs into the road is fine.
His evidence was that reaction times when driving, for most people, are between one to two seconds, but that’s in daylight, and it “could be three to four seconds at night time”. On top of that, it’s not just about reacting, you then need to take avoiding action, and that could add another second. So, Gamble’s time to react and take avoiding action is anything up to five seconds. This hadn't been in his original written expert witness report: he simply added it verbally in court.
Additionally, according to Gamble, the lack of reflective clothing “could affect reaction times”, and in any event, when considering hazards, “the cycle is smaller than a car, so you have to take into account that the hazard is smaller”.
Didn't see or don't recall
But let’s get back to why Ms Purcell did not see Mick, because she didn’t claim she saw him but had no time to react; she said she never saw him at any time pre- or post-collision. Gamble had an answer for that. You see, “although she said she didn’t see him, it’s possible she didn’t recall seeing him. It’s possible that she braked but had no recollection”.
That’s despite Gamble’s earlier evidence that he found no evidence of any evasive action or emergency braking by Ms Purcell.
If you are screaming whilst reading this, saying that drivers need to be aware of what’s around them, you need to reflect on Gamble’s evidence concerning potential hazards, and the driver’s perspective. As Gamble explained, “from a driving point of view, you’ve got to take in a number of potential hazards. With such a large amount to process it’s not beyond the realms of possibility to miss a potential hazard, and the cyclist presents a smaller hazard”.
Blasé about smaller hazards
But if she drives this route daily, surely Ms Purcell should have been aware that cyclists are likely to be on Regent Street?
Wait, Gamble says that if you drive the same busy route regularly “you can get blasé about it without realising. We can go along a route we are used to, they should be aware and probably are aware, and unless something is right in front of you, you might not react to it”.
If being blasé means being indifferent to something, then you might wonder whether being indifferent to other road users whilst driving suggests a lack of care, which is careless. Not according to Gamble. There’s lots for a driver to see, cyclists are small, we all get blasé, and it’s understandable that we don’t see anything that’s not right in front of us. Even then, we might have seen it but just can’t recollect doing so. If we do see it, count to five; we’ve got that long to do something.
A case to answer
Notwithstanding the evidence Gamble gave, and the ultimate not guilty verdict, I believe CDF was right to bring this case, a decision vindicated by the Judge on the third day of the trial.
Following the conclusion of the prosecution evidence, the defence lawyers made an application to dismiss the case on the basis that there was no case to answer: in other words, there was insufficient evidence upon which a jury could properly convict. That application is made to a Judge in the absence of the jury, so they don’t know that it’s been made if the Judge rejects the defence application, which is exactly what the Judge did.
The implication of this is that the Judge accepted that this case was properly brought to court, and that it was right that a jury heard the evidence and reached a verdict. What the police have failed to recognise is how badly that reflects on their decision not even to refer the case to the CPS for advice. Who knows, the CPS might just have suggested the police take statements from the witnesses CDF’s lawyers managed to find.
Nobody prosecutes a case or commences litigation expecting to lose, but the outcome of such cases is never guaranteed. Sometimes it is necessary for campaign groups to grasp the nettle and champion a cause. The only alternative in this case would have been to roll over and accept some appalling victim blaming by the police, an irrational and flawed decision not to refer the case to the CPS, and a failure to put a case before a court which the Judge accepted required a jury decision.
CDF was right to prosecute
Last week was quite an emotional week in my life, and I did not even know Mick. His daughter Anna sat in court throughout the case, listening to evidence regarding blood stains, her father flying through the air, and yet again, his dark clothing. Her dignity throughout this case has been truly humbling.
Despite the outcome, Anna and her family believe that bringing a private prosecution was the right decision. I just wish the police would reflect on why it was necessary for a charity to do this, and the assumptions which influenced their refusal to seek CPS advice. There is currently no indication that they will do so.
The feeling is that cyclists are both vulnerable on the road, and then vulnerable in the judicial system...many feel that there is a huge blind spot in the justice system with regard to cyclists."
Nigel Wynn, Cycling Weekly news reporter
Success and failure
There is a Winston Churchill quote that “success consists of going from failure to failure without loss of enthusiasm”, and that is the approach Cycling UK, CDF, other campaign groups, campaigners and anyone who just feels strongly about this case, need to adopt.
There are many problems that need to be addressed which are revealed by this case, and this article is long enough already without me outlining those in detail today. Amongst them however, I would suggest that there are three key issues which must be included in our future Road Justice campaigning, namely that:
1. The current guidance regarding referral of fatal road collision cases to CPS for charging decisions needs to become a requirement, a rule which police forces can’t simply ignore as they did in this case;
2. Collision investigation standards are urgently needed, with accreditation and increased transparency as called for by RoadPeace through their collision investigation campaign.
3. The current classification of careless and dangerous driving offences, how driving standards are assessed, and charging standards, are simply not fit for purpose. They must be changed, with the standard of driving required being more objectively determined. Currently, the law requires jurors to consider whether another driver’s standard of driving fell "below", or "far below" the standard which they believe would be expected of "a careful and competent driver", whatever that standard might be. One person might well think they’re a careful and competent driver as they overtake a cyclist whilst speeding, leaving a 30 cm gap. I would disagree, so our perspectives on what falls "below the competent and careful driver" test will be irreconcilable. We are asking jurors to apply a standard that few understand, and which is far too subjective.
There will be more to follow on where we go with Road Justice campaigning very soon, and we will contacting other campaign groups next week to co-ordinate support and action.
Some of our wider concerns as demonstrated in this case, are well summed up by journalist Nigel Wynn, who covered this case for Cycling Weekly. Commenting to Cycling UK after the trial's conclusion Nigel said: “The feeling is that cyclists are both vulnerable on the road, and then vulnerable in the judicial system...many feel that there is a huge blind spot in the justice system with regard to cyclists.“ I agree, and our goal is to fix this.
Keep cycling and carry on campaigning
For now, thanks for bearing with me and reading this lengthy article, and huge thanks to all of you who supported CDF’s work on the Mick Mason case. Cycling UK, CDF and Mick’s family are immensely grateful for your support and encouragement.
Keep cycling and carry on campaigning.