Magistrates allowed texting driver to keep his licence - and Lee lost his life

Cycling UK believes texting while driving is a serious offence and should be dealt with appropriately

Magistrates allowed texting driver to keep his licence - and Lee lost his life

Caught eight times for driving whilst using a mobile phone, but allowed by a court to carry on driving lest the loss of his licence might cause his family hardship, six weeks later Christopher Gard was texting as he drove into and killed cyclist Lee Martin. Which did the Magistrates think was more important, Gard's need to drive or the safety of other road users?

Too busy texting to see a cyclist

Thirty year-old Christopher Gard was sentenced yesterday at Winchester Crown Court for causing the death by dangerous driving of father of two Lee Martin on 12 August last year, as Lee was cycling along the A31 near Bentley, Hants.

There was no criticism of Lee's riding. He was an experienced cyclist, whereas Gard's experience involved his arrogant disregard for road safety, his previous motoring convictions, and the nonchalant leniency of a justice system which put the preservation of his licence above Lee's life.

Gard drove into Lee from behind on a dual carriageway. PC David Mitchell from Hampshire Police confirmed that Gard had not been aware of the cyclist in front of him, or indeed any of the other cyclists he had passed on the A31 competing in a 10 mile time trial that evening. All because at the time he was too busy exchanging texts with a friend about walking his dog. Essentially, he was too busy to care.

A leopard's spots, nine chances and one life

Tragically for Lee, it seems that Gard was the leopard with no interest in changing his spots. Twice he had been sent on driver awareness courses for using his phone whilst driving. On six occasions since April 2009 he had been fined and incurred penalty points for the same offence.

The day he drove into Lee was the ninth time we know of that Gard came to the attention of the police for driving whilst using a mobile phone. The leopard had nine chances to change, but Lee didn't have nine lives.

Exceptional inconvenience

Anyone with 12 points on their licence in a three year period supposedly faces an automatic driving disqualification, for at least six months, under what is known as the totting up provisions. Unless of course the driver can dodge the ban by convincing the court that they will face exceptional hardship if their licence is lost. In practice, this means the difference between exceptional hardship and mere inconvenience becomes blurred as drivers plead their need to drive.

Six weeks before the incident that claimed the life of Lee, Gard appeared before a Magistrates' Court for his sixth mobile phone offence. He faced disqualification under the totting provisions but magically kept his licence. The serial offender's circumstances were exceptional!

Harm to which family?

The Magistrates bought the blarny and Gard kept his licence because of the excessive harm losing it would cause his family. The excessive harm impacted instead on Lee's family, his widow and two children. The Magistrates decided to give him a ninth chance, and Gard's licence to drive became a licence to kill.

Sentencing Gard yesterday to nine years in prison and disqualifying him from driving for 14 and a half years, Judge Susan Evans QC referred to his exceptional hardship plea saying, "On June 30 last year, just six weeks before you collided with Mr Martin, you were convicted after trial of driving whilst using a mobile telephone, and on that day you put forward to the Magistrates that you would encounter special hardship. You assured the Magistrates you wouldn't use your phone, that you would lock it in the boot of a car in a bag". A pie-crust promise he ignored.

In a statement Lee's family said, "The Magistrates chose to allow the defendant to keep his licence. The result of that lenient approach to such a serious offence was the death of Lee Martin only six weeks later. Whilst Lee's death is clearly the fault of the defendant, we feel that the legal system is somewhat to blame."

​The Magistrates chose to allow the defendant to keep his licence. The result of that lenient approach to such a serious offence was the death of Lee Martin only six weeks later. Whilst Lee's death is clearly the fault of the defendant, we feel that the legal system is somewhat to blame.

Statement by Lee Martin's family

Still waiting for the offences and penalties review

Over a year before Gard kept his licence the then Justice Secretary Christopher Grayling MP announced the Government's intention to carry out a review of motoring offences and penalties. Nothing happened. Michael Gove took over as Justice Secretary a year later, and as Cycling UK reported, we were still waiting for something to happen two months ago.

Gove has now gone, post Brexit, and we have a new Justice secretary, Elizabeth Truss MP. Cycling UK wrote to her about the delayed offences and penalties review in July, and have been told that Ministry of Justice officials "will be in touch after the summer recess".

The review of motoring offences shouldn't just be about those cases like Lee's where death or serious injury are caused. The issues which need to be addressed, so cruelly evidenced in the sorry Gard saga, include the minimisation of mobile phone offences, the failure to treat and charge mobile phone use whilst driving in some cases as careless or dangerous driving, and the unwillingness of the courts to disqualify drivers.

One of Cycling UK's priorities for the review is addressing the inconsistency behind the truly ridiculous exceptional hardship plea, which defeats the purpose ot the totting up provisions. It treats inconvenience as exceptional hardship, placing licence preservation and driver inconvenience above road safety.

Lee's family said that he died doing something he loved: cycling. Cycling UK believes the person responsible for his death should have lost his licence to drive before last August, and that the justice system should have dealt with Gard's abject disregard for others more seriously, and sooner.

We wait to see if the new Justice Secretary has more enthusiasm for our Road Justice Campaign, and whether she will now accelerate the review, the need for which Lee's case demonstrates, and which should have been concluded long before his tragic death.   

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I've started to tweet to @DriveInsured, the twitter account for the Motor Insurers' Bureau with examples of scofflaw drivers, who clearly represent a major insurance risk to the Insurance Companies who provide the insurance policies, and if they refuse to insure your car, the Police have powers to immediately seize it (and destroy or sell it).

We already have an Operator Compliance Risk Score for HGV operators, which sees each operator ranked as green, amber, red for their ability to comply with the relevant laws. Those who are sink to a red rating will come under closer scrutiny, as the DVSA and Police will be watching them with extra vigilance, knowing their past history. Perhaps we need to do the same for all motor vehicles given the potential harm that can arise with a persistently dangerous driver.

The Insurance companies need to put their houses in order. I used to be a Police Officer, I dealt with a number of individuals who had supplied/ failed to supply the correct details to their Insurance Companies.

I needed the Insurance Companies to provide me with evidence and to give statements in order that I could progress the matter to Court. They rarely if ever gave me that evidence, preferring instead to either cancel the Insurance, or increase the premiums. The " Offender " would either pay or just move Insurance Company, the original company would not tell the new Insurance company or the new company would not make the proper enquires preferring to just accept the new business. How the hell could this individual continue to get Insurance ?

ok so he could lie to get Insurance, but the MIB Motor Insurance Bureau have a sophisticated Data Base, they supply that Data Base to the Police. Every time I have renewed my Insurance for the last Ten Years the renewal Docs have reminded me that the information, I supply will be checked to "prevent fraud "

I know the Police are bound by the Data Protection Act but did they not have Duty of Care to inform his Insurance Company of his convictions? He could have been taken off the road by default, no Insurance.

Given the sheer volume of cases for many close calls and observed bad driving that I see posted by cyclists and pedestrians on social media, I think that we need a more effective way to track and rein in bad drivers.

Working on the ethos "Follow the Money" I realised that the insurers inevitably pick up the bill, either through a direct claim against the policy of the bad driver, or, because that driver has voided the policy through failing to adhere to the contract, or having no insurance at all, the Motor Insurers' Bureau has to pay.

This I've taken to tweeting the MIB (@driveinsured) with hastags #HighRisk and #VoidPolicy when I come across examples, and suggesting that a register of Vehicle Insurance Risks And Liabilities (I'm suggesting it might be called VIRAL) is developed from which the insurers can extract important information on the risks that they carry for each vehicle policy issued. Such a system already exists for HGV's - the Operator Compliance Risk Score, and it provides DVSA and Police with a traffic light rating on each operator based on factors such as MOT failure rates, driving and vehicle offences logged. This enables them to pay greater attention to those operators who are habitually less diligent in complying with the rules, and most likely to cause harm.

Obviously the first action might be an increase in the insurance premium for the vehicle, and ultimately the insurer could refuse to insure the vehicle or exclude a named driver. This gives the Police a key tool in their armoury to get badly driven vehicles off the road, as they can immediately seize any vehicle being driven without insurance on the spot, or better still, avoiding a car chase, anywhere it is parked on the public highway.

A particularly nice twist comes when you look back at Jeremy Vine's little incident. It didn't take long for those viewing the clip to look up the vehicle on the DVLA registration check website, and find out that the VED ran out 2 months earlier, technically in breach of the insurance T&C and thus voiding the policy. Had a quick witted police officer been around they could have seized the car there & then....

Funnily enough a surprising number of bad drivers also seen to be equally lax in keeping their vehicle VED and MOT up to date, and those numbers now go into the Police database - that most traffic patrol cars are always checking against their ANPR (number plate reading cameras).

Thus the Police and insurers can deliver a pincer movement bad drivers rack up insurance black marks, and eventually cannot get insurance, and any vehicle they are driving - or have driven has potentially voided the insurance cover, meaning the Police can seize it.

Here's the DVLA link

Apart from a failure of the system, this is an indictment of the magisrates who were lenient to Christopher Gard when he came before them on 8 previous occasions.

Is there any scope in the Cyclists Defence Fund doing something to get those magistrates to rethink their attitudes to motoring crime, and make it clear to them how their actions indirectly led to the death of Lee Martin?

The law is partly there to protect the innocent, but these magistrates' leniency removed that protection, and they should be made to think about that fact.

In addition to a jail sentence where is the logic in banning such people for a limited time? Why are such people not banned for life? Drivers who kill or cause life changing injuries (not just to cyclists) need to be got off the roads permanently. Yes, they may ignore such a ban in the same way as they don't bother with insurance, etc but this should earn them a substantial jail sentence. The problem is that this will never happen - the right to drive (according to our judiciary) is on par with the right to life.

Magistrates who allow persistent offenders to keep their licences under the 'exceptional hardship' guidance should be held to account. The idiots who swallowed Gard's bleats should be named, shamed and barred from public office for life - they bear much of the blame for this tragedy.

So much for three strikes and you're out. There is some argument for giving a second chance (though I don't usually agree with it and certainly not in this case) 8 times let off? FFS!