Timothy Sanders has died.

[Howard]

Hi folks,

This one really has got to me.

You might recall that on 14 February 2002 triathlete Timothy Sanders
was cycling past an intersection on the A3 near Guilford when he was
run down from behind by a driver doing 70 MPH who was in the middle of
a mobile phone call.

Sanders was left with catastrophic spinal injuries that means he was
left with 'Locked in Syndrome'. This means that although his mind was
alert he had no control over his body and could not even breathe
unaided. He was looked after in a unit in Germany which specialises in
such injuries. The court awarded him £8 million to be paid at
£250,000 a year to pay for his care, despite the 'defence' claiming
the cyclist should have used another route (even though there isn't a
direct alternative) or got off and crossed the intersection on foot!

No charges were brought against the driver even though the driver
admitted to the police he was using his phone and 'not seen' the
cyclist until he was only 10 yards away. It was also reported that the
police had not released the drivers name.

I was wondering how Timothy was doing and so traced and contacted his
solicitor, asking how he was doing, why no charges had been brought
and whether I was right in thinking that this case was perhaps more
evidence that the legal system is now of the opinion that cyclists
must use 'A' roads entirely at their own risk. I have just received a
reply...

Dear Mr Peel,

I am sure you will be sad to hear that Timothy died about 2 months
ago. Once he realised that notwithstanding the excellent treatment he
was receiving in the German clinic, there was no real chance of a
significant improvement in his condition whereby he could be self
sufficient he deteriorated rapidly. He remained wholly dependant for
all functions and was having increasing difficulty in communicating
even with an alphabet chart.

The answers to your questions I believe are as follows, firstly the
driver's name was not withheld. It was contained in the police report
and the driver was the named Defendant in the proceedings we issued
for Timothy. These were settled for the equivalent of 8.5 million
which was paid by the driver's insurers. The High Court approved this
settlement which was reached by negotiated agreement, so the courts
were wholly supportive of Tim's claim. The settlement needed the
approval of the court because Tim was a patient unable to manage his
own affairs. With the agreement of Tim's parents and for his
protection the monies were invested to provide him with enough capital
to build a specially adapted house, which was in the process of being
built when he died, and £250,000 for life. The prognosis for his life
expectancy was 10 years minimum.

After Timothy's death there was an inquest and the driver gave
evidence which was simply to the effect that he had not seen Timothy
until shortly before the impact and he had been using a hands free
mobile at the time.

The reason the Crown prosecution service (not the police officers who
felt there should have been a prosecution) decided not to prosecute in
the magistrates court was because a woman in a car on the slip road
had given a statement which said that she felt Timothy was negligent
simply by being on such a busy road. We spoke to her twice and she was
obviously hung up about cyclists, we later found out that she had been
involved and hurt some years earlier in an accident involving a
cyclist. She was the only witness who had a completely clear view, and
indeed other motorists were also hostile to Tim and wouldn't give us
statements, so the CPS decided not to risk a criminal prosecution. We
were glad of this because if the motorist had been acquitted it was
have affected Tim's civil claim.

We remain as always in Cycleaid willing to answer any legal questions
for cyclists.

Regards
Simon Holt
Snr panel Solicitor Advocate.
Cycleaid.

'... other motorists were also hostile to Tim and wouldn't give us
statements, so the CPS decided not to risk a criminal prosecution.'

Forget justice, the mob have now taken over...

I hope that Timothy's parents know just how much this case touched the
cycling community.

Howard.

[Dave Kahn]

(Howard) wrote in message >...
> Hi folks,
>
> This one really has got to me.

Howard, sad news. Thanks for passing it on.

--
Dave...

[Richard Goodman]

"Howard" > wrote in message
m...

> I was wondering how Timothy was doing and so traced and contacted his
> solicitor, asking how he was doing, why no charges had been brought
> and whether I was right in thinking that this case was perhaps more
> evidence that the legal system is now of the opinion that cyclists
> must use 'A' roads entirely at their own risk. I have just received a
> reply...
>

And indeed it seems the reply confirmed exactly that:


> The reason the Crown prosecution service (not the police officers who
> felt there should have been a prosecution) decided not to prosecute in
> the magistrates court was because a woman in a car on the slip road
> had given a statement which said that she felt Timothy was negligent
> simply by being on such a busy road.

So all the main witness could say was her opinion that he was being
negligent merely by being on the 'A' road and because of this the CPS
decided not to prosecute? That confirms it doesn't it? Use A roads as a
cyclist at your own risk.

> We spoke to her twice and she was
> obviously hung up about cyclists, we later found out that she had been
> involved and hurt some years earlier in an accident involving a
> cyclist. She was the only witness who had a completely clear view,

And so even though her opinion contributed nothing at all to the evidence
about what happened, there was also scope to discredit it and show there was
bias.

and
> indeed other motorists were also hostile to Tim and wouldn't give us
> statements,

Hostility no doubt being based on the fact that he was a cyclist on an 'A'
road and got no sympathy from them either.

> so the CPS decided not to risk a criminal prosecution. We
> were glad of this because if the motorist had been acquitted it was
> have affected Tim's civil claim.
>

It's a sad state of affairs when a catastrophically injured cyclist/his
legal advisors have to be glad the driver isn't prosecuted, basically
because of bias against cyclists on the part of motorist witnesses, and fear
by the CPS that their views, no matter how demonstrably biased they might be
shown to be, might be accepted by magistrates, because it might harm his
civil damages claim if the driver gets off. Makes you sick, doesn't it :(

Rich

[Al C-F]

On 23 Nov 2004 07:59:41 -0800, (Howard)
wrote:

Very sad news.

Thanks to Simon Holt for such a detailed response.

[Simon Proven]

Howard wrote:

> The reason the Crown prosecution service (not the police officers who
> felt there should have been a prosecution) decided not to prosecute in
> the magistrates court was because a woman in a car on the slip road
> had given a statement which said that she felt Timothy was negligent
> simply by being on such a busy road.

Witnesses should only be giving factual evidence in this sort of
matter. *opinions* such as this should not be for the witness,
it is for the court to decide this. The average motorist is
simply not qualified to tell a cyclist where they should ride or not.

> '... other motorists were also hostile to Tim and wouldn't give us
> statements, so the CPS decided not to risk a criminal prosecution.'

> Forget justice, the mob have now taken over...

Indeed. Side with your own, never mind the rights or wrongs. :-(

Simon

[Tony Raven]

Howard wrote:
>
> Sanders was left with catastrophic spinal injuries that means he was
> left with 'Locked in Syndrome'. This means that although his mind was
> alert he had no control over his body and could not even breathe
> unaided.

For an insight into his condition I can thoroughly recommend a short
book "The Diving Bell and the Butterfly" by Jean Bauby. Bauby was the
Editor of Elle and went into Locked in Syndrome as a result of a major
brain stem haemmorhage. He dictated the book by blinking one eye - the
only movement left to him - before he died. Its both a fascinating
insight into what the condition means and surprisingly uplifting.


> and whether I was right in thinking that this case was perhaps more
> evidence that the legal system is now of the opinion that cyclists
> must use 'A' roads entirely at their own risk.

I hope not and I'm not sure that is what it says. With that much money
on the table why prolong proceedings by taking it to court and risking
not winning when actually what was needed was to use the money to get
the support and help that Sanders desperately needed. He could be in
his own home in the UK instead of stranded in Germany while the Court
ground through the process. I support the pragmatism of his solicitor
even though it may leave us disatisfied about some of the issues not
being resolved. FWIW when I was knocked of my bike the witness
statement to the police put the blame squarely on me for cycling where I
was but I won because I showed that the witness did not understand the
law and my rights. Ultimately the court decides based on the law on not
on the personal views of witnesses

Tony

[Richard Goodman]

"Tony Raven" > wrote in message
...
> Howard wrote:
>
>> and whether I was right in thinking that this case was perhaps more
>> evidence that the legal system is now of the opinion that cyclists
>> must use 'A' roads entirely at their own risk.
>
> I hope not and I'm not sure that is what it says. With that much money on
> the table why prolong proceedings by taking it to court and risking not
> winning when actually what was needed was to use the money to get the
> support and help that Sanders desperately needed. He could be in his own
> home in the UK instead of stranded in Germany while the Court ground
> through the process. I support the pragmatism of his solicitor even
> though it may leave us disatisfied about some of the issues not being
> resolved. FWIW when I was knocked of my bike the witness statement to the
> police put the blame squarely on me for cycling where I was but I won
> because I showed that the witness did not understand the law and my
> rights. Ultimately the court decides based on the law on not on the
> personal views of witnesses
>

Strictly speaking, in legal terms it doesn't say anything because it didn't
go to Court. But I think it does say something about the CPS, who
apparently decided not to proceed for their own reasons, which had nothing
to do with what suited the convenience of Tim or his advisors - those
reasons being the presence of a witness who had no evidence to give, only an
opinion, and which should properly have been disregarded by the Court had it
gone there. That the CPS can apparently use such flimsy reasons for failing
to prosecute does indeed suggest to me an institutionalised willingness in
the 'court system' to accept the idea that cyclists use A roads at their own
risk.....

On the otherhand, the insurance co did pay out despite the so called
'witness' evidence, so to that extent I guess it can't be said to be
completely accepted that cyclists on A roads are negligent just by being
there. Thank heavens for that!

Rich

[David Hansen]

On Wed, 24 Nov 2004 13:11:20 -0000 someone who may be "Richard
Goodman" > wrote this:-

> Strictly speaking, in legal terms it doesn't say anything because it didn't
>go to Court. But I think it does say something about the CPS, who
>apparently decided not to proceed for their own reasons, which had nothing
>to do with what suited the convenience of Tim or his advisors - those
>reasons being the presence of a witness who had no evidence to give, only an
>opinion, and which should properly have been disregarded by the Court had it
>gone there. That the CPS can apparently use such flimsy reasons for failing
>to prosecute does indeed suggest to me an institutionalised willingness in
>the 'court system' to accept the idea that cyclists use A roads at their own
>risk.....

It is wider than those monkeys. The police will often go to some
lengths to avoid inconveniencing motorists by making them account
for their (in)actions. There are postings about this attitude here
from time to time.


--
David Hansen, Edinburgh | PGP email preferred-key number F566DA0E
I will always explain revoked keys, unless the UK government
prevents me by using the RIP Act 2000.

[JLB]

>
> Strictly speaking, in legal terms it doesn't say anything because it didn't
> go to Court. But I think it does say something about the CPS, who
> apparently decided not to proceed for their own reasons, which had nothing
> to do with what suited the convenience of Tim or his advisors - those
> reasons being the presence of a witness who had no evidence to give, only an
> opinion, and which should properly have been disregarded by the Court had it
> gone there. That the CPS can apparently use such flimsy reasons for failing
> to prosecute does indeed suggest to me an institutionalised willingness in
> the 'court system' to accept the idea that cyclists use A roads at their own
> risk.....
>
> On the otherhand, the insurance co did pay out despite the so called
> 'witness' evidence, so to that extent I guess it can't be said to be
> completely accepted that cyclists on A roads are negligent just by being
> there. Thank heavens for that!

You seem have a common misconception, confusing the role of criminal and
civil law. The CPS (or the Procurator Fiscal) has no business at all
considering the possible civil law repercussions of any decision. Their
job is to prosecute in the public interest those cases they believe will
stand up.

You might find it interesting, for example, to see how the Health and
Safety at Work Act goes to considerable lengths to avoid so far as
possible any H&S inspector being involved in, or taking into
consideration, any potential civil cases that might arise. The Act also
states that the results of any action taken under it do not prejudice
civil proceedings.


--
Joe * If I cannot be free I'll be cheap

[Richard Goodman]

"JLB" > wrote in message
...
>
> You seem have a common misconception, confusing the role of criminal and
> civil law. The CPS (or the Procurator Fiscal) has no business at all
> considering the possible civil law repercussions of any decision. Their
> job is to prosecute in the public interest those cases they believe will
> stand up.
>

Strictly speaking, in legal terms it doesn't say anything because it didn't
go to Court. But I think it does say something about the CPS, who
apparently decided not to proceed for their own reasons, which had nothing
to do with what suited the convenience of Tim or his advisors - those
reasons being the presence of a witness who had no evidence to give, only an
opinion, and which should properly have been disregarded by the Court had it
gone there. That the CPS can apparently use such flimsy reasons for failing
to prosecute does indeed suggest to me an institutionalised willingness in
the 'court system' to accept the idea that cyclists use A roads at their own
risk.....

On the otherhand, the insurance co did pay out despite the so called
'witness' evidence, so to that extent I guess it can't be said to be
completely accepted that cyclists on A roads are negligent just by being
there. Thank heavens for that!

Rich

[Richard Goodman]

"Richard Goodman" > wrote in message
...
> "JLB" > wrote in message
> ...
>>
>> You seem have a common misconception, confusing the role of criminal and
>> civil law. The CPS (or the Procurator Fiscal) has no business at all
>> considering the possible civil law repercussions of any decision. Their
>> job is to prosecute in the public interest those cases they believe will
>> stand up.
>>
>
> Strictly speaking, in legal terms it doesn't say anything because it
> didn't
<snip>

Duh, I didn't mean to repeat myself - problems with using cut and paste
between mail clients and cutting and pasting the wrong text, then sending
without reading!

Anyway, what I meant to say was, I am very well aware of the difference
between civil and criminal law. It may not be in the public interest to
waste costs on unsuccessful prosecutions. I think most of us here would
agree that is also not in the public interest that motorists who main and
kill get away with either not being prosecuted at all, or prosecuted for
less serious charges than seem appropriate, with inappropriate sentencing if
convicted, so easily. That the CPS feels it cannot get a prosecution in a
case like this, where a driver strikes a cyclist from behind while driving
using a mobile 'phone, and the only thing a witness for the defence can say
is her opinion that the cyclist was negligent for being on the road at all,
is a sad reflection on the dire state of the criminal justice system on
motoring offences.

That the insurers settled the civil claim does not mean there should be any
scope for complacency. As is well known and often discussed here, they will
frequently take any opportunity to reduce damages for contributory
negligence. Any suggestion that there is contributory negligence in being
on the road at all is a serious matter, and if criminal courts were to start
accepting that argument it definitely would affect civil claims. One could
conclude that the CPS might already have accepted it, in their handling of
this case.

Rich

[JLB]

Richard Goodman wrote:
> "Richard Goodman" > wrote in message
> ...
>
>> "JLB" > wrote in message
>> ...
>>
>>> You seem have a common misconception, confusing the role of
>>> criminal and civil law. The CPS (or the Procurator Fiscal) has no
>>> business at all considering the possible civil law repercussions
>>> of any decision. Their job is to prosecute in the public interest
>>> those cases they believe will stand up.
>>>
>>
>> Strictly speaking, in legal terms it doesn't say anything because
>> it didn't
>
> <snip>
>
> Duh, I didn't mean to repeat myself - problems with using cut and
> paste between mail clients and cutting and pasting the wrong text,
> then sending without reading!
>
> Anyway, what I meant to say was, I am very well aware of the
> difference between civil and criminal law. It may not be in the
> public interest to waste costs on unsuccessful prosecutions. I think
> most of us here would agree that is also not in the public interest
> that motorists who main and kill get away with either not being
> prosecuted at all, or prosecuted for less serious charges than seem
> appropriate, with inappropriate sentencing if convicted, so easily.
> That the CPS feels it cannot get a prosecution in a case like this,
> where a driver strikes a cyclist from behind while driving using a
> mobile 'phone, and the only thing a witness for the defence can say
> is her opinion that the cyclist was negligent for being on the road
> at all, is a sad reflection on the dire state of the criminal justice
> system on motoring offences.
>
> That the insurers settled the civil claim does not mean there should
> be any scope for complacency. As is well known and often discussed
> here, they will frequently take any opportunity to reduce damages for
> contributory negligence. Any suggestion that there is contributory
> negligence in being on the road at all is a serious matter, and if
> criminal courts were to start accepting that argument it definitely
> would affect civil claims. One could conclude that the CPS might
> already have accepted it, in their handling of this case.

Ok. I read too much into your sentence
" But I think it does say something about the CPS, who apparently
decided not to proceed for their own reasons, which had nothing
to do with what suited the convenience of Tim or his advisors ..."
because, well, it's the job of the CPS to use its own reasons that have
nothing to with the convenience of Tim or his advisors.

You are right about standard of proof, but I don't see the relevance on
this point.

The question of what is the "public interest" could keep us going
forever, but we can cut it short: here is the CPS's own version
http://www.cps.gov.uk/victims_witnesses/publicinterest.html

I agree with you that a prosecution appears to be indicated on this
occasion. However, (in my view) the worst problem with both the Fiscal
service and the CPS is not an institutional bias. Both are underfunded,
severely over-worked and cannot attract top quality staff due to
uncompetetive salaries and career structures. In consequence they are
disturbingly timid in taking prosecutions, far too ready to plea
negotiate for any sort of guilty plea (they deny that they "plea
bargain" but that is playing with words) and they clutch at any excuse
to drop proceedings.

In this instance where the only well-placed witness was going to
denigrate the cyclist and excuse the driver there really would be
difficulty persuading the court to disregard her to the point of proven
beyond reasonable doubt when there was nobody to contradict her. (I wish
I could believe she has trouble sleeping at night.) Who was going to
call her as a witness? She's no use to the prosecution if she's going to
argue the driver was not at fault. Calling her as a hostile witness is
not going to help. She would appear for the defence if she had the
nerve, and unless she's stupid as well as prejudiced she would put in
details to back up her version. Imagine her saying she noticed that Tim
was distracted, not paying attention, had swerved into the car's path...
With no other witnesses in a position to say otherwise, the only hope
would be to bring her down on cross examination. This is not infallible,
and all she has to do to destroy the prosecution is muddy the waters. I
don't doubt that Tim's legal team were genuinely grateful there were no
criminal proceedings.

Since there was no prosecution there was no decision by the court. No
precedent has been set, and lower courts do not set precedent anyway.
But, if the question of cyclists having no right to go on A roads is
going to be put to a higher court, I hope the cyclist's case is as solid
as possible. Unfortunately, thanks to this woman, this case falls well
short.

I know of similar although less serious case where a motorcyclist
acquaintance was hit by a car that pulled out of a side road into his
path. The driver immediately summoned a neighbour who had seen nothing,
gave him a highly prejudicial and imaginitive summary of events and
obtained his promise to be a witness in any proceedings; all this while
the biker lay on the road with a broken leg listening to her. How we
laughed.

--
Joe * If I cannot be free I'll be cheap

[David Hansen]

On Wed, 24 Nov 2004 19:30:16 +0000 someone who may be JLB
> wrote this:-

>I agree with you that a prosecution appears to be indicated on this
>occasion. However, (in my view) the worst problem with both the Fiscal
>service and the CPS is not an institutional bias. Both are underfunded,
>severely over-worked and cannot attract top quality staff due to
>uncompetetive salaries and career structures. In consequence they are
>disturbingly timid in taking prosecutions, far too ready to plea
>negotiate for any sort of guilty plea (they deny that they "plea
>bargain" but that is playing with words) and they clutch at any excuse
>to drop proceedings.

That is what some claim and may sometimes/often happen.

However, I have seen them do none of these things and thus make them
appear to be cretins when the cases got to court, wasting our money
in the process. Instead of maliciously prosecuting people who are
innocent of the crimes they are accused of the Fiscal rascals would
be far better employed dealing with those who are not.


--
David Hansen, Edinburgh | PGP email preferred-key number F566DA0E
I will always explain revoked keys, unless the UK government
prevents me by using the RIP Act 2000.