Need for a national collision investigation branch

Now is the time for a national and independent Road Collision Investigation Branch.  So says PACTS who organised yesterday’s conference on this theme.  With road deaths no longer decreasing, new efforts are required. So PACTS is working to get the Vehicle Technology and Aviation Bill amended to include establishment of this department.

Noone should be surprised that RoadPeace, a road crash victims’ charity, has long supported such investment in investigation research. At our 2010 conference on Improving the Post Crash Response in London, Simon Labbett, ex police collision investigator (and now a TRL Director) spoke about this, as did Richard Cuerden (TRL Technical Director of Vehicle Safety and Chair of PACTS Vehicle Design Working Group , who highlighted the work of the multi-disciplinary On the Spot Study research programme.

As we stressed at yesterday’s conference, we see it as complimentary to police investigations. We launched our campaign last year on collision investigation on the premise that thorough investigations are the cornerstone of both justice and prevention. And our campaign is focusing on police investigations as, even with a national branch, the vast majority of casualty collisions will be investigated by the police and only the police.

Acknowledged by PACTS and other conference participants, the idea of a Road Collision Investigation Branch is not new. It was a key issue posed in PACTS’ Transport Safety Commission’s 2014 inquiry. In our response to that inquiry, we argued that an additional surcharge on motor insurance premiums, collected via the MIB, could fund this department. Such funding should also ensure consistent and thorough police investigations.

In the coming months we will try to help PACTS make the case for a National Collision Investigation Branch. We know from our members how desperate they are to see that lessons are learned, with the deaths of their loved ones making a difference.

A best example of this is Kate Uzzell, our new RoadPeace South West Local Group co-ordinator. Through her efforts, and following the death of her husband after hitting a pothole whilst cycling, road maintenance inspections now must consider the impact of road defects on cyclists.

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Fine changes with sentencing guidelines

The new Magistrates Sentencing Guidelines contain two welcomed changes.  First, drivers whose excess speed puts them in the highest sentencing band, will now face a maximum fine of 150% of their weekly income, with a cap of £1,000.  Second, professional drivers are to be held to a higher driving standard — ‘vehicle used for the carriage of heavy goods or for the carriage of passengers for reward’ is to be added as a factor indicating higher culpability for the offence of careless driving.

Both changes were explicitly an acceptance of the arguments put forward by RoadPeace, as acknowledged by the Sentencing Council. Both changes nudge the justice system a little further towards the reduction of road danger. It is said that a journey of a thousand miles begins with a single step. And, on that basis, both changes must be welcomed.

But, more was needed. First, the £1,000 cap on speeding fines, represents a simple discount to those who will struggle least to pay it. And the less they need it, the higher the discount will be. So, “role models” such as Premiership footballers or FTSE 100 CEOs will face a maximum fine of 2.3% and 0.9% of their weekly salaries. Those on the average wage (£94,000) in the Borough of Kensington and Chelsea will face no more than 55%. There is no cap on the fine for drink driving – Yaya Toure of Man City was given a £54,000 fine just before Christmas ; there is no need for one for speeding fines. A consistent relationship between income level and fine level is simply a matter of justice.

And an opportunity was lost to increase the use of driving bans. Speeding drivers prosecuted at court are already a small minority of those sanctioned. In 2015, 1.2m speeding drivers attended NDORS speed awareness courses, 791,000 were given FPNs and only 180,000 (8%) were sent to court.

Yet only 3% of speeding drivers convicted at court were banned – one in 450 of all those sanctioned when speed awareness and FPNs are included. More bans are needed, even if they only last a few weeks. It has been almost 50 years since a mandatory driving ban was introduced for drink driving. And drink driving and associated casualties have decreased. Imagine if there was a mandatory driving ban for the highest band of speeding drivers.

RoadPeace fears this same mistake is being made with the MoJ’s consultation on driving offences. The MoJ have restricted this consultation to just a few offences, mainly dealing with custodial sentences. The only discussion of driving bans is a proposal to increase the mandatory disqualification period from one year to two years for all causing death by driving convictions. But one in five drivers convicted of Causing Death by Careless Driving currently escape any ban, thus showing the need for training of judges.

 

MoJ proposals revictimise crash victims

Fair compensation for road crash victims–this should not be too much to ask for road crash victims–given the state had already failed to protect them from harm.

But the MoJ is proposing (yet again) to make life harder for crash victims.

They have launched a lengthy consultation. In a nutshell…

The MoJ want to reduce, if not eliminate, compensation for the pain and suffering incurred by whiplash. To tackle fake whiplash claims, they are proposing to deny compensation for innocent victims. Even those injured in crashes where a driver was prosecuted for causing the crash—even these victims would be treated as if they are fraudulent.

And they also want to increase the small claims court limit from £1k to £5k. This would mean that all those victims with claims up to £5k would not be able to get their legal costs paid. Crash victims would be expected to defend themselves or pay out of their pocket to be represented by a professional after being wrongfully injured.

No surprise—RoadPeace (still) opposes them

RoadPeace opposes the MoJ’s, proposal, as we did in 2013 when similar proposals were drafted. At that time, the House of Commons Transport Committee appreciated the unfairness in these proposals and were able to stop them from being implemented. With much greater commitment to promoting active travel, we need their help and others to help block the new proposals.

Road Victims are Real Victims campaign

So we are campaigning with Cycling UK and Living Streets to ensure that road victims are treated as real victims.  Cycling UK has been fantastic and organised an easy to use on line letter that is sent to the MoJ. Please write today to ensure the MoJ knows how disastrous these proposals would be.

CWIS, Better Justice and Civil Justice

And the active travel community is right to be worried. These proposals are particularly unfair to pedestrians and cyclists. We highlighted this concern in our response to the draft CWIS consultation this spring, where we called for a Better Justice theme to be added, noting that

Those walking and cycling face not only greater risk of being injured, but they will also be much less likely to have access to justice and legal advice through an insurance policy. And the proposed reform of removing the right to general damages and increase in the small claims court limit will make it even harder for injured walkers and cyclists to claim compensation.

The government’s recent British Road Safety Statement prioritised “Fair and responsive” insurance but focused only on reducing the costs for insurance companies and “honest motorists”, with no thought given to innocent victims of crashes. Whiplash is a problem with motor vehicle occupants, too often caused by criminal drivers. Injured pedestrians and cyclists should not be penalised as a should not be penalised as a result reforms aimed at reducing whiplash and fraudulent claims.

Need to cycle proof justice policies

We also argued in our response that

Just as the CWIS proposes to review the planning process to audit its impact on active travel, so should this apply to any changes in civil compensation or criminal justice procedures.

If government is to be serious about promoting active travel, then we need joined up thinking and consistent policies.

We also raised this with Andrew Jones, Road Safety Minister, after the DfT’s British Road Safety Statement was published. RoadPeace offered to organise a meeting with victims and personal injury solicitors to ensure the DfT were reminded of the honest need for motor insurance compensation.

And we repeated this offer last month, when the Road Safety Minister attended our London service commemorating the World Day of Remembrance for Road Traffic Victims. By this time, the MoJ had launched its consultation, with the dreaded proposals on whiplash claims and small claim limits.

There are many ways in which the MoJ does not treat crash victims as victims, including:

  • not even counting the victims of road traffic crime
  • the refusal to include culpable road deaths as homicides
  • the miserly bereavement damages in England and Wales
  • not including road crime victims in criminal justice strategies

Please don’t let them add to this list. Consultation closes 6 January 2017.

Longer prison sentences for the worst welcomed but more reform is needed

Finally, the government is to consult on driving offences. Over 4000 have been killed on our roads in the 31 months since the government announced a full review of driving offences on 4 May 2014.

The good

According to the press release–and only the press release–with the consultation launched tomorrow, tougher sentences are coming—at least in theory. The worst of killer drivers will face a maximum sentence of life imprisonment. Thus they will be sentenced as if they were convicted of manslaughter.

And longer sentences were overdue for the multiple and repeat offenders whose criminality shocked not just the families but also the public, press and MPs.

We do welcome the possibility of much longer sentences. This will help allay the concerns over early guilty pleas, early release from prison, and multiple deaths being sentenced concurrently.

 
The bad

But reform should not stop with tougher sentences for the worst few

The proposals –or at least those in the press release–will affect very few offenders. In 2015, only 24 drivers were given more than 5 years prison sentence, with just two drivers sentenced to more than 10 years in prison.

Drivers to be sentenced as if manslaughter but the bereaved remain treated as second class victims

In 2015, 321 drivers were convicted of causing a death. The government could have proposed all culpable road deaths to be prosecuted as manslaughter. That would have allowed the tougher sentences and also benefited all families bereaved by law breaking drivers, most of whom involving cases where drivers were convicted of Causing Death by Careless Driving. Families bereaved by law breaking drivers deserve the same support and rights as do families bereaved by murder and manslaughter.

 
Custody and careless driving—risk of undercharging

And the government is proposing a Causing Serious Injury by Careless Driving charge with a maximum custodial sentence of 3 years. RoadPeace has argued that if jail is justified, then the charge should be dangerous driving, not careless driving.

We believe that the 5 year maximum custodial sentence for Causing Death by Careless Driving resulted in undercharging of Causing Death by Dangerous Driving. Why would the CPS press for the tougher charge when four in five drivers convicted of Causing Death by Dangerous Driving result in a custodial sentence of five years or less?

 
We await the consultation launch tomorrow. And can only hope that it is not the missed opportunity implied by the press release.

Justice and the World Day of Remembrance

Today is the World Day of Remembrance for Road Traffic Victims. The theme this year is “Vital post-crash actions: Medical Care, Investigation, Justice. To commemorate it, WHO has just published a new guide on Post-Crash Response:  Supporting those affected by road traffic crashes. This guide focuses on the emergency care and rehabilitation of road crash victims.

As the national charity for road crash victims, our members –both bereaved and injured know the importance of justice to their souls and sanity. Read Viv’s story below for an example of the lasting effects of injustice.

‘Justice for victims – A contradiction in reality ‘

My beloved brother was a kind, compassionate, gentle, honest man of integrity, and with my younger brother simply the best brothers and friends any sister could hope to have. He was simply driving home along a normal ‘A’ road when just after 5pm on the 18th January 2010 his car was crushed and his life was horrifically taken from him, and us. He had driven thousands of miles in this country and abroad as part of his job. He was always mindful of other car users and safety was always uppermost in his thoughts.

He was killed six  years ago in a head on collision when the driver of the other car having crossed onto the nearside verge, then changed direction and crossed over onto the opposite side of the road and into the path of my brother. His defence was one of ‘insanity’. He was found not guilty and given an absolute discharge with no driving restrictions. I have campaigned ever since for the right to be heard and for the case to be re-examined. I have written scores of letters and  emails and despite being told by ‘experts’ in  legal, academic  and medical fields that they agree with me,  we have no rights. I quote from a small selection; “I agree with you that this case was handled disastrously –

You have come up with strong confirmatory evidence that the outcome was wrong “.

“As a lawyer, I do not see what more you could possibly have done, or where you can go (other than by forming a political pressure group)   You have no right of appeal, and you have no standing to compel the prosecution.  The reason you have no appeal is that you were not a party to the proceedings.  Only a party can appeal”. 

My story is one of the human right to representation, to be heard and the right of appeal. No different, no more no less than the rights of those who are prosecuted.  Bereaved relatives of those horrifically killed on the roads have no representation as does the defendant when it comes to the justice system that is there we are told to represent justice.

We are told that the prosecuting barrister is there not to represent us but the CPS, and therefore we have no say when it comes to the rights or wrongs of prosecution decisions irrespective of whether guidelines in place do not support those decisions, which are based on the likelihood of a successful prosecution.

We are told that despite having credible evidence based information that disputes the claims of the defence we have no right to be heard, but are at the mercy of a system where the CPS chooses whether or not to fund expert witnesses to challenge or discredit ‘expert’ evidence presented. This  in turn in the absence of a robust prosecution using expert evidence offers the jury a biased representation of the facts, and people would say as they have that it would not be difficult to surmise the resulting verdict.

If as the dictionary describes ‘jury’, as a ” a number of men/women selected according to law and sworn to declare the truth on the evidence”, how is this possible if the prosecution chooses not to fund expert evidence?

Does this represent a fair and just society, is this justice?

What is justice? The dictionary describes it as;”quality of being just”, “impartiality”, “fairness” and which of those words describes the rights of the victims.    If in turn the defendant is found not guilty the victims are allowed nothing with regards appeal irrespective of the facts.

Is this Justice?

Road Peace as a charity has kindly supported me by giving the forum under ‘member’s campaigns’ to represent our story and campaign – see ‘Justice for Stephen’.  

But where do we go from here? Apart from kind words and sympathies from lawyers and many other people that I have contacted no one is prepared to help us further by bringing the case to the attention of the masses. Only perhaps with the support of others, that allows not only for the instigation of an independent review of the facts but in time the right of representation, the right to be heard and the right of appeal for every victim. At present we are as May Hamilton so rightly said, the forgotten victims of road crashes.Why else would we have no rights? They say without justice there is no peace. Let this end now.

 

The Forgotten Victims

Guest blog by RoadPeace member May Hamilton, bereaved after her husband was killed while cycling when a driver opened their car door in his path.

It is a matter of shame that, in our justice system, there are always victims of road traffic collisions whose fate is overlooked.  I would like to concentrate on one group of those, namely, the victims who are killed or seriously injured in car dooring incidents.

My Husband, Robert, was one such. On 23rd January 2014 he was riding his small shopper bike down a quiet residential street in Southport when Joanne Jackson opened the door of her Toyota Avensis as he was passing. He was hit on his left side by the outer part of the door and, in the words of the only independent witness, was sent “flying through the air”. He landed on his head and suffered traumatic injuries from which he died the same day.

Robert was 76 years old, and a very experienced cyclist who had ridden thousands of miles both in this country and on the continent. He had taken part in several charity rides for Marie Curie Cancer Care over the past few years including a 500 mile ride from Berlin to Warsaw. He also took part in charity rides to support the local Hospice. Only the previous summer he had ridden hundreds of miles in France with the French Cycling Federation, something he did annually.  His favourite means of transport around home was either his shopper or his road bike and he cycled virtually every day. He was no novice and knew his roadcraft . He was exceptionally fit and healthy for his age and expected to live at least another ten years.

Instead his life was cut short through the carelessness of a woman, who, when she appeared in the Magistrates. Court on a minor charge, and later at the inquest, showed not a shred of remorse, was thoroughly offensive  and arrogantly maintained that there was nothing she could or should have done differently.

She claimed to have checked her mirrors, looked over her shoulder, opened the door a fraction and very carefully before opening it fully. CCTV footage belied this and her assertion that she had not hit Robert was contradicted by the independent witness and by the inquest finding. The fact that she had hit Robert with the outer flat part of the door could only have meant that he was directly alongside her when she opened the door. If she had taken the trouble to glance to the side she would have seen him. Instead she tried to make out that she had done all the right things and did not know where he came from.

The Police carried out a thorough investigation but the stumbling block was the CPS with whom I had a very acrimonious battle. They refused to charge the woman with gross negligence manslaughter  saying there was “insufficient evidence”.

Because the car was not moving at the time, none of the road traffic offences applied. She was eventually charged under the Road Vehicle Construction and Use Regulations with opening a car door in such a way as to endanger someone. For killing my Husband she was fined just £200 with costs and received a six month driving ban.

There is only one case I know of where someone has been charged with manslaughter in similar circumstances. That is the case of Kennan Aydogdu who flung open the door of his taxi, which had blackened out windows, and hit Sam Harding into the path of a bus. Sam was killed instantly. Unbelievably a London jury acquitted Aydogdu even though there were independent witnesses.

The latest statistics I have found on dooring incidents date from 2013 when there were nearly 600 reports. Fortunately, most of the time, injuries are not serious, but there are times when they can be very serious, and, as in Robert and Sam’s cases, fatal.

Because these fatalities are rare and are not caused by moving vehicles they do not get the publicity that goes with dangerous or careless driving cases, but the impact on the families is just as devastating.

This is my horrific experience of one category of offences, but I am sure there are many other types of road crashes where the fate of the victim is sidelined. An insultingly trivial and hurtful charge, or none at all, may be brought against the perpetrator., or a pitifully inadequate penalty, if any, imposed, in what is a travesty of justice.

I was aghast to find out from RoadPeace that there are cases where a driver can be prosecuted for careless or drunk driving but not for causing the resulting death. These offences are crimes and must be treated as such.

I am glad that the MoJ is to finally review driving offences but it should be wider than the most serious offences.  There needs to be a wider consideration of charges and penalties, especially where a death has occurred. For cases like Robert’s, there desperately needs to be a change in the law to allow for a charge of causing death or serious injury through the instrument of a motor vehicle, whether moving or not, with a penalty equivalent to that of a serious driving offence.

It will take a very long time to bring about changes, but in the meantime I would urge victims and their families not to forget the possibility of taking a civil action for negligence against the perpetrator where the criminal law has failed to act satisfactorily.  It is only when insurance companies start to receive an influx of claims and drivers are hit in their pockets by increased insurance premiums, that things may start to change.

 

Fraud v. Whiplash

For the moment George Osborne’s reforms for whiplash injuries have been set aside by the government; however, the discussion around potential legislative changes and the commitment to reduction of the number and costs of whiplash claims remains on the Ministry of Justice’s agenda.  Meanwhile, the debate between insurance companies and solicitors remain – is the issue actually fraudulent claims?  What about the rights of the injured victims?

The proposed reform removed the right to general damages (this is a head of damage referred to as a non-economic damage and provides compensation for injuries such as pain and suffering and emotional distress) for minor soft tissue claims and transferred any personal injury claims with a value of up to £5,000 in general damages to the small claims court.   The reasons behind this reform can be summarised as the nationwide requirement for the reduction in both fraudulent claims and motor insurance premiums.

If the issue truly is fraud, let’s take a brief look at the statistics surrounding the data that is available. The Association of Personal Injury Lawyers (APIL) notes that the fraudulent statistics are both inconsistent and incorrectly assessed.  When referring to the total fraud bill in 2015, the Insurance Fraud Task Force includes ‘detected’ fraud in their total of £1.3 million.  Compared with the statistics of the Association of British Insurers (ABI) in 2012 that note only 7% of motor claims were fraudulent.  APIL argues that when separating fraudulent claims and motor vehicle claims, not only is there a clear representation of lower proven fraud, but also that ‘detected’ fraud should be defined as what it is: unproven fraud.

In their news release dated October 13, 2016 ABI does not mention the issue of fraud and discusses at length the requirement for this reform to “tackle the excess of the compensation culture” and to save billions (£4 billion over the court of Parliament) in premiums.

APIL discusses the purpose of general damages is to compensate for the most ‘devastating aspect of any car crash’; the personal injury.  The damage to your car or the car itself can be replaced, whereas personal injury and the loss of enjoyment of life, no matter the size, leaves as lasting effect of the daily life of the victim.

This reform affects the victim on many levels.  From the issues of the compensation being a right for every injured individual, access to justice and the Rule of Law, to lack of representation in the courts the bottom line is that this reform could leave the already vulnerable person at risk.

We have attached various articles for your reference.  While the reform has been set aside, the issues are still relevant and as suggested in the law gazette, maybe this is the time for an independent look at the information and statistics and for the solicitors and insurers to come together to address fraudulent activities and to ensure the rights of victims remain enshrined in today’s common law.

http://www.lawgazette.co.uk/analysis/comment-and-opinion/truss-drops-osbornes-whiplash-baby/5058290.fullarticle

http://www.lawgazette.co.uk/analysis/comment-and-opinion/heres-how-id-tackle-the-whiplash-culture/5058083.article

https://www.abi.org.uk/News/News-releases/2016/10/Ministry-of-Justice-delays-to-whiplash-reform-cost-motorists-nearly-3m-a-day

https://www.apil.org.uk/files/campaigns/government-proposals-to-reform-low-value-personal-injury-claims.pdf