From a previous post on another forum
Posted: 29-02-12 1:27pm Post subject:
Hmmm.. interesting judgement.
Here there are 5 trail riders that I presume have given evidence... v one irate farmer trying to catch up with a group of trail riders in slippery conditions.
The mere fact that the farmer had tried to catch up with the trail bikes raises some questions..
We all know that safe driving on mud is far far slower than safe riding of a trail bike in the same conditions...
A trail bike is safe when travelling at 15-20mph on un surfaced roads.. but a 4x4 is safe at close to walking pace...
The simple fact that the 4x4 collided with a trail bike and overturned is testament that it was travelling too fast for the conditions.
A farmer with apparently years of experience with use of vehicles in such conditions should have demonstrated due care and attention.. he did not and the circumstances surrounding this incident show that the farmer was trying to catch upto and tell off trail riders.
Had this been on any normal road the fact that a member of the public was chasing to catch up to and tell off then had an accident and killed a person he was chasing would be enough for death by reckless driving.
Maybe the CPS went for the wrong charge/offence and should have stuck with death by reckless driving.
Maybe the driver is a Mason.. whatever the true circumstances it is surprising in the fact that the driver seems to have got off without any punishment via the courts.
One would have thought that after 10 years of “LOST” trail riders then proper signage would have been provided. If the police failed to find anyone in 10 years doing anything wrong it does rather raise the issue of what exactly are the legal rights in this area..
Posted: 29-02-12 6:02pm Post subject:
OK then lets approach this in a different way...
Farmer was driving in the same manner but when he rounded the corner on the track there was a bunch of walkers on the track and he reacted in the same way, clipped one and turned the vehicle over onto the other...
It would be reasonable to say that he was reckless in that he was not driving to the prevailing conditions and could not stop or take avoiding action safely..
Would one then take the view that the drivers actions were reckless?
As it stands then..if you are walking, riding, driving on a farm then the farmer can drive like an idiot and run you down without fear of prosecution?
Either no offence has been comitted or there has been an injustice...
Becuase there is a stated and admitted fact that the farmer was trying to chase , stop and remonstrate with the trail riders there is an element of intention to do something. That something was to catch up with and stop the trail riders..
In doing so the farmer exceeded a state of reasonable driving for the conditions and had an accident and killed one and injured another...
Wanton and furious driving
33.We will only prosecute for this offence when it is not possible to prosecute for an offence under the road traffic legislation, for example:
when the driving was not on a road or other public place;
when the vehicle used was not a mechanically propelled vehicle (such as a bicycle or horse drawn vehicle).
34.When a vehicle has been deliberately used as a weapon and has caused injury, we will normally prosecute for the offence of dangerous driving, or a specific assault under other provisions in the Offences Against the Person Act 1861, subject to there being sufficient evidence to provide a realistic prospect of conviction for one of those offences.
Causing death by dangerous or careless driving
21.It is not a requirement of Section 1, Section 2B (see note 16) or Section 3A of the Road Traffic Act 1988, that the prosecution proves that the death was foreseeable. The prosecution only needs to prove that the vehicle was driven dangerously or carelessly and that the driving was the cause of the death of another person. The essential qualitative difference between the offences therefore depends on the standard of driving.
22.Both offences are objective in the sense that the defendant's state of mind is not normally a relevant consideration in determining whether the defendant drove dangerously or carelessly. The fact that a defendant genuinely believed that in the circumstances his or her driving was not dangerous is irrelevant.
23.Both offences require the driver to depart from the standard of a competent and careful driver, but the key difference between the offences is the extent to which the driving falls below the required standard:
to be dangerous, the driving must fall 'far below' the required standard;
to be careless, the driving need only fall 'below' the required standard.
Unlawful act manslaughter
6.It must be proved that:
the defendant's act caused the death of the victim;
the defendant's act constituted a criminal offence in itself;
the defendant had the mens rea appropriate to the unlawful act which caused the victim's death; and
the defendant's unlawful act is objectively recognised as having put the victim at risk of some physical harm, albeit not necessarily serious harm.
7.Unlawful act manslaughter will be considered the most appropriate charge when there is evidence to prove that a vehicle was used as an instrument of attack (but where the necessary intent for murder was absent), or to cause fright, and death resulted.
8.Unlawful act manslaughter can occur in a variety of ways. For example, a driver may deliberately drive at a person or group of people with the intention of causing them to fear being struck by the vehicle. The driver may not actually intend to hit them with the car, but if he/she does so and someone is killed as a result, he/she may be guilty of unlawful act manslaughter. If someone is injured, the defendant may be prosecuted for an assault.
9.There is a difference between these cases and bad driving cases where a death has occurred as a result of driving that is unlawful only because of the negligent manner of its performance (see note 15).
10.In cases where a death has occurred as a result of bad driving and it is clear that the standard of driving has been grossly negligent on the part of the driver, a charge of gross negligence manslaughter may be the correct charge, as explained below.
Gross negligence manslaughter
11.To prove a charge based on gross negligence manslaughter, the prosecution must show that the defendant owed the victim a duty of care; that the driving caused the victim's death; that the driving fell far below the minimum acceptable standard of driving; that there was an obvious and serious risk of death; and that the conduct of the defendant can, in all the circumstances, be described as 'reprehensible'.
12.Some sections of the public consider that we should often charge gross negligence manslaughter instead of causing death by dangerous driving.
13.There are two arguments put forward to support this view:
first, that the public is now increasingly less tolerant of bad driving and convictions for gross negligence manslaughter may be more likely;
secondly, because manslaughter carries a higher maximum penalty, it better reflects the gravity of the offence.
14.However, the position is not straightforward. Prosecutors may have one or more statutory offences available to them (causing death by dangerous driving and causing death by careless driving whilst unfit through drink or drugs) in cases where there has been a fatal collision caused by bad driving. Before a charge of gross negligence manslaughter will be preferred, there must be something to set the case apart from one where one of the statutory offences can be proved.
15.As a matter of law, it is more difficult to prove an offence of gross negligence manslaughter than it is to prove an offence of causing death by dangerous driving. It is not necessary to have evidence of an obvious and serious risk of death to prove an offence of causing death by dangerous driving. All that is required is evidence that the driving was dangerous and that the driving caused the death of another person.
16.Whilst it is correct that the offence of manslaughter carries the possibility of a more severe sentence than an offence of causing death by dangerous driving, the courts have, over the years, generally passed sentences well within - sometimes significantly below - the maximum sentence available for causing death by dangerous driving.
17.We will, therefore, only charge gross negligence manslaughter in cases where there is evidence to show a very high risk of death, making the case one of the utmost gravity.
18.Under the provisions of Section 33 of the Road Safety Act 2006, juries are now able to return alternative verdicts for offences of causing death by dangerous driving, dangerous driving, causing death by careless driving when under the influence of drink or drugs and furious driving where they are not satisfied that the prosecution has made out its case for manslaughter. This has not previously been the case.
19.This alternative verdict provision provides something of a safety net for the prosecution, but there must still be sufficient evidence for a realistic prospect of conviction of manslaughter and it must still be the most appropriate charge, before a decision to charge manslaughter will be made.
20.In most cases where a death occurs as a result of dangerous driving, the statutory offence of causing death by dangerous driving will remain the correct charge.