Gold Scales of Justice picture
The Scales of Justice, which, like cyclists, should still be visible in the dark. Flckr credit: vaXzine

Curfew in 'seven second' cyclist's death by careless driving case

Driver Derek Edward Chenney has been sentenced to a curfew order and a two year driving disqualification after admitting to causing the death of head teacher Paul Miller by careless driving. Chenney drove into the illuminated cyclist, having failed to see him for seven seconds. But why was he charged with 'careless' rather than 'dangerous' driving?

On Friday, Derek Edward Chenney was sentenced to a six month curfew and disqualified from driving for two years at Weymouth Magistrates Court. He had pleaded guilty to the charge of causing the death of cyclist and Head Teacher Paul Miller, who was cycling home from work on the 8 January this year when Chenney drove into him from behind.

The Dorset Echo reported the Court heard that Mr Miller was wearing high visibility clothing and had lights on his bike. His widow Andrea spoke about how her husband took cycle safety and visibility very seriously, using a built-in rear flashing light fitted into his jacket in addition to the rear light on his bike. 

I have driven behind him in the dark on several occasions and he was so highly visible that I had no fears for his safety."   

Andrea Miller, Paul Miller's wife

Seven seconds to see a cyclist

The police investigation found that there were seven seconds of full visibility of the road ahead, with no oncoming traffic, in which Chenney should have seen Mr Miller on his bike and overtaken him safely yet Chenney failed to see him. At time of reporting, no explanation appears to have been provided as to why.

The sentence imposed requires Chenney to stay at home between 9.00pm and 6.00am every night for six months, and to take an extended re-test after his two year disqualification has expired before he can be considered for a new licence. He was also ordered to pay a victim surcharge of £145 and court costs.

Dangerous driving and careless driving

Under current legislation, if a person's driving falls below the standard of a competent and careful driver ('the required standard'), and they cause another road user's death, the police have a choice regarding which offence to prosecute.

If the police think the standard of driving fell 'far below' the required standard, and it would have been obvious to a competent and careful driver that driving in that way would cause danger, the police can charge the driver with causing death by dangerous driving. By contrast, 'careless' driving merely needs to fall 'below' (rather than 'far below'), without a requirement for it to cause danger that ought to have been foreseeable by a careful and competent driver.

In this case, the police chose to prosecute for 'careless' rather than 'dangerous' driving, even though the Dorset Echo's reporting suggests the driving would appear to have caused danger that would have been obvious to a careful and competent driver. Road safety campaigners point to the following points in particular:

1. Mr Miller was fully illuminated and visible for seven seconds before Chenney drove into him;

2. Chenney appears to have given no explanation as to why he failed to see him in all this time.     

Under these circumstances, CTC has expressed its concern, and is keen to understand:

1. If someone drives without noticing a cyclist in front of them seven seconds, does that really just fall below' (and not 'far below') the standard expected of a careful and competent driver?  Is it not obvious that this would cause danger?

2. If it is not 'far below', how long does someone have to drive with no awareness of a cyclist in front of them before they pass the threshold from 'careless' to 'dangerous' driving?

3. In these circumstances should Chenney not have been charged with causing death by dangerous driving?

Undercharging and downgrading

Within its Road Justice Campaign CTC has continuously raised concerns regarding the increasing reluctance of the police and prosecution to charge drivers with 'dangerous' driving offences, and the undercharging and downgrading of offences to merely 'careless' driving. Various examples and case studies evidencing this are contained within the Road Justice charging and prosecution document.

Recently the former Director of Public Prosecutions, Sir Keir Starmer, now a Labour MP, voiced his concerns indicating that there is, "a very strong case for change in the way that cases involving the death of cyclists are handled by the law  -  decisions to prosecute in cases in which a cyclist has been killed in a road traffic incident should be made by the Crown Prosecution Service not the police."

[There is] a very strong case for change in the way that cases involving the death of cyclists are handled by the law  -  decisions to prosecute in cases in which a cyclist has been killed in a road traffic incident should be made by the Crown Prosecution Service not the police."

Sir Kier Starmer, former DPP   

Sir Keir Starmer was speaking on the Victoria Derbyshire programme in a report highlighting the failings of the criminal justice system in cases involving cyclists, produced by BBC journalist Anna Tatton-Brown, daughter of cyclist Michael Mason who died after being stuck from behind by a motorist whilst cycling in London. In Mr Mason's case the police declined to prosecute the driver for any offence, leaving Mr Mason's family to consider a private prosecution against the driver, with assistance from the Cyclists' Defence Fund

An 'early guilty plea'

Chenney's lawyer in mitgation last week said that his client had done all he could to lessen the impact for Andrea Miller, her family and friends, by pleading guilty 'at the earliest opportunity'. CTC believes Chenney cannot be blamed for the decision to prosecute merely for 'careless' driving, but does question what comfort Mr Miller's family will have from 'an early guilty plea' to this lesser charge is somewhat questionable.

CTC believes downgrading offences to secure early guilty pleas to careless driving, when the standard of driving falls 'far below' the required standard, sends the wrong message regarding the gravity and consequences of driving offences. Where a cyclist has died CTC agrees with Sir Kier Starmer that the CPS should always be involved in the charging process, and the decision regarding which offence to prosecute.

Non-custodial sentence

In Chenney's case, CTC suggests, the Magistrates could have declined to deal with the case and transferred it to the Crown Court, which would have had the power to send Chenney to prison for up to 2 years less a discount for a guilty plea. As the Magistrates retained the case, their maximum powers of imprisonment were limited to 6 months. In this case, though the option was available, a suspended prison sentence was not even imposed. In two years time Chenney will also be able to re-apply for his licence after taking an extended test.

CTC presumes the Magistrates were content that Chenney would not repeat the error in concentration and awareness that lead to Mr Miller's death, even though an explanation for this lapse is still forthcoming. 

One of the aims of CTC's Road Justice campaign is to stop the police, prosecutors and the courts from dismissing driving which causes self-evident danger as mere "carelessness" with the woefully inadequate sentencing that so often flows from this. Under the law as currently drafted, the key distinction between 'dangerous' and 'careless' driving is whether it caused obviously foreseeable danger, not the state of mind of the driver, For a fuller explanation see CTC's briefing on road traffic offences and sentencing.

If the legal system is to stop people driving in ways that endanger other people on our roads, CTC believes the police and prosecutors need to make charging decisions which reflect the danger that bad driving can cause, including its potentially lethal consequences.

Michael Mason funding appeal

Anyone wanting to find out more about the Michael Mason appeal or wishing to contribute to the appeal can do so via this link to the just giving page.  

DuncanDollimore