Earlier this month, Aslan Kayardi appeared at Isleworth Crown Court to defend a charge of dangerous driving. The prosecution was a little unusual in that it was brought privately: the Metropolitan Police had declined to prosecute; however, reportedly, the CPS refused the defendant’s request to effectively veto the case on the grounds of insufficient evidence or lack of public interest: the CPS quite clearly considered the prosecution valid and worthwhile.
The incident in question was an overtaking manoeuvre, recorded by Martin Porter on a forward-facing video camera mounted on his handlebar. I’ve watched it; the driver passes quite close and at high speed, but it is not wholly remarkable: my immediate reaction to it was, “I’ve had worse”. Someone else’s was, “that’s a normal Tuesday afternoon.”
So, if this sort of driving doesn’t seem extraordinary to experienced cyclists, why does it warrant prosecution?
The reason is simple: it warrants prosecution because it poses significant risk to others. Experienced cyclists have decided to tolerate this risk and ride anyway, but others are understandably more cautious, and driving such as this is a significant factor in many people’s decision to give up cycling or never start in the first place. It is the sort of thing that is merely alarming until the occurrence of some event which is, whilst foreseeable, rare and therefore unaccounted for by the driver, and then it can easily become catastrophic.
So, as regards the merits of prosecution, the danger is the key: the lack of being extraordinary—in principle, and we shall return to this point—doesn’t matter. The fact that many people do it is not a reason for it to be de facto legal. To risk an analogy: in the 1980s one might have expected fighting to erupt at many football matches (and, just as with cycling, parents may well have felt they were forced to keep their children away from the violence) but the prevalence of crowd violence—no matter how many people tolerated or even enjoyed it—made it neither morally acceptable nor in any way legal.
I’m fortunate enough to have access to three key documents relating to this case: the video of the incident, the investigator’s report and a comprehensive but unofficial transcription of the proceedings. Together these highlight some apparent pitfalls in prosecuting cases of this type.
(Please note that I have included certain quotations from the transcript. It was produced during the trial and takes a few grammatical shortcuts, hence in a number of cases I have made minor grammatical changes to make it understandable; but I have not altered—certainly not sought to alter—the meaning.)
The incident in question happened at this location, on the A315 in Hounslow. A short distance ahead is a bridge, where the single carriageway narrows, beyond which is a traffic light-controlled junction. The speed limit is 30mph here (something that was not obvious when I first saw the video, otherwise my initial reaction may have been different). The following warning signs are present:
- multiple “slow” markings on the tarmac (one visible in the image below, and another rae)
- a “road narrows” warning (again, behind the viewpoint below)
- a “queues likely” warning (visible below)
- a “hump-backed bridge” warning (visible below)
- long dashes along the centre line of the carriageway
At the time of the incident it was dark but dry and clear. Oncoming traffic can be seen (and note that there is an additional oncoming vehicle obscured by the Audi in this image).
Prior to the case, an investigator’s report was produced which analysed the video evidence as well as Porter’s GPS data in order to produce estimates for the speeds of the car and the bicycle, and the positions of each. This report was of seemingly good quality, using multiple methods of calculation for each figure. It claimed that Porter’s speed was a steady 19mph and the defendant’s was 50-57mph. It placed Porter’s wheels at 1.2-1.5m from the kerb and his right side at 1.5-1.8m; it placed the left side of the Audi at 0.6-0.8m from Porter’s right side (not accounting for the wing mirror).
Note that the lowest end of the calculated speed range, 50mph, is itself at a level for which ACPO guidelines advise prosecution in court rather than a fixed penalty notice and points; in other words, a serious speeding offence if proven.
Let’s skip straight to the verdict, which was that the jury found the defendant not guilty. Note that a charge of dangerous driving offers the opportunity to find the defendant guilty of the lesser offence of careless driving, but he was fully acquitted. It took just 24 minutes for the jury to reach their verdict.
That is their decision and people would, on seeing the evidence, understandably have differing opinions as to whether it was a fair one. It’s not a clear-cut thing. It’s also important to note that the fact that the jury reached this verdict does not necessarily constitute a statement that passing someone at this speed and this proximity is not an offence; it is a statement that the evidence presented during proceedings did not convince them beyond doubt that an offence had been committed.
However, before we get to what I think may be the critical reason why this type of driving is so hard to prosecute, it’s worthwhile picking through the proceedings to establish some other problematic factors that arose in this case.
The CPS guidelines for the prosecution of dangerous driving state the following:
The following examples of circumstances that are likely to be characterised as dangerous driving are derived from decided cases and the SGC Definitive Guideline:
- failing to have a proper and safe regard for vulnerable road users such as cyclists
- speed, which is particularly inappropriate for the prevailing road or traffic conditions
- disregard of traffic lights and other road signs, which, on an objective analysis, would appear to be deliberate
- overtaking which could not have been carried out safely
Depending on your point of view, some or all of these probably are exhibited in this case. Taking the wording at face value, my layman’s opinion is that at least the first three are present; and it’s import to reiterate the point that the CPS approved this prosecution, which suggests that they believed at least one applied.
However, whilst these are examples of what may constitute dangerous driving, these are not the criteria against which the evidence is assessed. The offence of dangerous driving is defined in the Road Traffic Act 1988 as follows:
A person is to be regarded as driving dangerously if (and only if) the way he drives falls far below what would be expected of a competent and careful driver and it would be obvious to a competent and careful driver that driving in that way would be dangerous.
The definition of careless driving is less onerous, replacing “far below” with simply “below” and removing the clause requiring obviousness:
A person is to be regarded as driving without due care and attention if (and only if) the way he drives falls below what would be expected of a competent and careful driver.
Naturally, in both cases it is required of the prosecution to prove beyond reasonable doubt that a criminal offence has been committed; the defence is required to prove nothing.
Acceptance of evidence
An obvious requirement of the prosecution is to provide evidence of the offence, which in this case took three main forms: the video evidence gathered by Porter, the expert witness analysis of the recorded evidence, and the appearance of Porter himself in the witness box.
The jury must also consider any evidence provided by the defence. In giving his evidence, the defendant maintained that his car was centrally positioned over the centre line of the carriageway, which naturally implied a greater passing distance.
The judge is recorded as directing the jury to “form opinion about witnesses and which evidence is reliable and which evidence is not. Mr Kayardi has chosen to give evidence in this case and you must give it as much weight as other evidence.” What is arguably left unclear here is the meaning of the word “weight”. Is it synonymous with “credibility”? To give two statements equal weight would, I think, be taken by most people as meaning to consider them to be equally valid.
This interpretation seems problematic with evidence such as video recordings: to use a rather bolder example, if the prosecution evidence in a house burglary case was a CCTV recording which very clearly showed the face of the defendant stealing items from the house, and the defence evidence was an unsubstantiated verbal claim to have been at home watching TV at the time of the burglary, it would be rather odd to think that the sum of this conflicting evidence was zero and no conclusion could be drawn.
Here, the analysis of the video evidence seemingly lacked credence in court: the responses given by the expert witness lacked the conviction that was present in the document, and it is clear from the transcript that the defence leapt on this. Indeed, my impression is that the defendant was likely advised beforehand to emphasise a lack of certainty and verbally offer alternative evidence: this was a very clear line of defence when he was questioned.
Even without the arguably unclear direction as to the relative merits of evidence, I would speculate that for many people it is more natural to empathise with a person’s account of events than it is to grasp mathematical margins of error. And not even the margins of error: many find basic calculations somewhat inaccessible. During cross-examination the prosecution sought to explain the concept of dividing a known distance by a known time to derive a rate of movement—a trivial mathematical matter—but the defendant’s response is recorded as, “I never heard anything like that until I got here, to be honest.”
This all has an interesting implication beyond this case; one which should be borne in mind by anyone who supports laws already implemented in other countries that specify a minimum passing distance.
Measurement is something which sounds simple but is actually extremely complex. Accurate measurement is a fraught subject, and a video recording of moving vehicles is generally a poor foundation for accuracy. It’s certainly possible to derive figures, but the margins of error are significant.
And then you have the issue of many people’s natural distrust of maths. If you wrap the maths up in some complex electrical circuitry, wrap that up in a plastic case, and put a simple numeric display on the front of it then they’ll trust it implicitly: digital watches, satnavs, radar guns and electronic tape measures are packages which are easily understood and easily believed, despite the complex calculations that go on within. And this is one of the key reasons why a “Near-miss-o-meter” is such an interesting thing.
Be wary of distance passing laws. The impracticalities of enforcement are vast.
But I digress.
Portrayal of character
The assessment of someone’s character is an odd facet of trials for driving offences. In many crimes it is of great relevance (and indeed this includes those where a vehicle is used as a weapon). But when it comes to considering someone’s competence behind the wheel, a good nature is not the same as good driving. Most of us will have a dear friend or relative whose standard of driving we find appalling for one reason or another.
The defence made a great deal of Porter’s online presence. His Twitter history was discussed, as was his blog. There was a very clear tactic to portray him as a somewhat vexatious plaintiff: when discussing tweets, the prosecution is recorded as saying to Porter that, “in fact that is what this case is about. Not about Mr Kayardi’s driving on that night in February, Mr Kayardi is a scapegoat.” It was suggested that Porter’s decision to prosecute was a “personal campaign and calculated move”.
This is a curious inclusion in proceedings, since it wholly concerns the period after the alleged offence: there is nothing here which could have provoked the defendant into the act under scrutiny, since by then it was in the past. And there is no suggestion that Porter had incited the defendant to pass closely; the video evidence bears this out. The reasons for prosecuting should surely be moot; the question is simple: was an offence committed?
However, while Porter’s social media postings indicating his support of campaigns for reducing road danger was permitted to influence the jury and form a significant part of the defence’s case, the defendant’s social media postings were not admissible. There are sound legal reasons, discussed during the trial, why they would not be admissible in a certain context (it could not be ascertained that the material showed either the defendant or the committing of an offence) it is not quite so clear to this layman why they were seemingly inadmissible in any context, given the apparent lack of relevance of Porter’s tweets as described above. (By the way, the material is nothing sinister; merely driving related.)
Our relationship with The Highway Code
It is a simple fact that The Highway Code is not a legal document. Some of its content serves as a lay phrasing of certain laws, but it has no strict legal status whatsoever. In the context of dangerous or careless driving, it is often cited as a reference, but its application in the context of actual legal proceedings is—for better or for worse—somewhat flexible.
Proceedings in this case contained a few interesting contributions. From the defence, referring to the illustration accompanying Rule 163 in the Highway Code: “Those of you who drive and those of you who are road users, you’ll be aware of Highway Code and aware that that photo is not what it looks like when driving. How often do you get that sunny road, that marking, that opportunity? No, this is real life.”
Somehow these factors are considered reason to pass closely (and, in this case, at speed with oncoming traffic). Darkness is a factor in not being able to leave space? Perhaps it is also a factor in apparently driving at over 50mph while doing so.
The defendant offered this reasoning: “The rules say give enough room if it’s available. If not enough room, do it within fair distance, which I have.” This is, of course, a commonly held view: if there’s not enough room, do it anyway. Don’t wait until enough room is available, just do it. Anyone who cycles will be quite familiar with many people’s tendency to either pass closely or to play chicken with an oncoming road user rather than wait for even a couple of seconds for enough room. The phrase “not enough” should perhaps serve as a hint, but no.
Disturbingly, at one point even the prosecution appeared rather relaxed about safe driving, saying in the closing speech that the defendant “was, as I put it, driving for sport. All very well on the track; all very well on the road where there is visibility for hazards and room to avoid them; but as I say, on the A315 at 7:00 in the evening, here: not OK”. A very clear implication that “driving for sport” is acceptable on the highway provided the driver doesn’t think there are significant risks. When empathy for the behaviour being prosecuted leaks into even the prosecution’s closing speech, you can be sure the whole subject is askew.
But, anyway, all of these things are a little incidental. The defence will of course seek to undermine the prosecution evidence; they will of course play to human traits in empathising with different types of evidence; and they will of course take full advantage of people’s greater familiarity with being at the wheel of a car than being on a bicycle amongst motor vehicles and their drivers.
The real problem here is not something particular to this case, but to all charges of dangerous driving.
Acquittal was virtually inevitable
Having pointed out a number of points that likely contributed to the acquittal of the defendant, I think it is necessary to point out—with the benefit of hindsight, of course—why I think acquittal was virtually inevitable from the very start. (Which isn’t to say that the undertaking of this prosecution was misguided—it wasn’t, and this is justified by the fact that the CPS clearly considered the evidence sufficient to support the charge—but that its failure illuminates a fundamental issue with this type of prosecution.)
The problem lies with the charge of dangerous driving. Specifically, there are two problems.
The first problem with a dangerous driving charge
Although the jury had the option of finding the defendant guilty of careless driving, I would hypothesise that the necessary focus on dangerous driving puts jurors in a certain frame of mind. Obviously the defence hammers home the point—“What prosecution have to prove is that Mr Kayardi’s driving fell FAR below what expected. That puts that standard very high. It has to be obvious; again, very high.”—but the judge also has to guide the jury: “it’s a high threshold”. At both the beginning and the end of proceedings the jurors are instructed, quite correctly, as to the considerable threshold of the dangerous driving charge (rather, two thresholds: the burden of proof and the magnitude of the lack of care). They are on occasion reminded of this. In short, the court ensures—again, quite correctly—that they must always bear in mind these criteria.
Now, you don’t have to be Derren Brown to know that statements influence your thinking, and repeated statements more so. So, because of the perfectly correct emphasis of the court on the criteria of the more serious offence, the lesser careless driving charge is firmly relegated to the background. The jurors’ primary responsibility is to constantly consider the evidence in the context of the high threshold of dangerous driving. When you’re doing that, it’s very easy and natural to think of the evidence as not meeting that threshold, and of the defendant being not guilty. It seems quite plausible that this steers the mind to see the evidence as being insufficient generally, and thus for a careless driving conviction to be less likely than it would had the evidence been absorbed through the much coarser mental filter required for that charge.
If that is the case then it’s particularly problematic in this case, because there was almost no chance of the jury finding the defendant guilty of dangerous driving, because of the second problem.
The second problem with a dangerous driving charge
The real problem in this case is the second clause of the statutory definition of dangerous driving, which requires that
it would be obvious to a competent and careful driver that driving in that way would be dangerous.
Now, let’s consider who a careful and competent driver is. Am I? Are you? You probably think you are: most of us believe we drive carefully (indeed, around 80% of us would rate ourselves as above average, whatever “average” is). We may drive to the best of our current ability and with the benefit of what experience we have, but does that mean we are strictly careful and competent? This is a huge issue with the Road Traffic Act 1988: it sets no benchmark as to what constitutes a careful and competent driver is.
Imagine there was a law related to data security which said “The data handler is guilty of an offence if it would be obvious to a competent and careful data handler that handling in that way would be severely insecure.” As a juror, what do you do? How can you see things from the perspective of a competent and careful data handler when you are not one? I mean, we all use computers. We all use online systems, manage our own personal data, and so on. But in order to consider evidence in the context of this offence you would probably want to hear the opinion of someone who was proven to be a qualified and peer-respected data handler, otherwise your perspective is not quite the same.
Yet jurors, regardless of how well they drive themselves or even whether they drive at all, are assumed to be capable of adopting the viewpoint of a competent and careful driver in order to decide what is or is not obvious to them.
And this gives us our de facto definition of “a competent and careful driver”: it is a person chosen entirely at random.
Return to the initial reactions to the video. “I’ve had worse.” “A normal Tuesday afternoon.”
It is wholly apparent to anyone who has ridden extensively on the road that if you take a person at random, the chances are that it is not obvious to them that passing 2-2.5ft away at 50-60mph is dangerous. This is essentially the test of dangerous driving. The statutory definition of the offence makes it democratic, because we all take ourselves to be careful and competent drivers, and the court assumes us all to be able to at least adopt that perspective. The defence in this understandably used this: “Mr Kayardi would ask you: draw on your own experiences.”
To my mind, the prosecution did not really focus on divorcing the jury from their comfortable perspectives (and, indeed, I have never read notes from any trial that have suggested any such attempt). The evidence and the incident were treated as a whole, rather than being broken down into a series of smaller decisions: Do you accept the expert evidence that the defendant was driving at over 50mph? Do you accept that driving at 50mph in a 30 limit, a summonable offence in its own right, lacks either care or competence, or both? As far as I can see, anyone answering “yes” to both would, logically, have deemed the speed alone to constitute careless driving.
The lack of rigour in assessing care and competence is extremely problematic in combination with the statutory definition of dangerous driving. The clause of obviousness, in this context, is extremely obstructive: it allows any behaviour to be defined as not dangerous provided only that drivers in general are ignorant of any danger associated with it.
In case you’re sceptical as to the effect of allowing a jury to interpret the statutory definition of dangerous driving, I would ask you to note one thing: apparently the decision to escalate this case to a Crown court instead of a magistrate’s court, and thus to hand over the decision to a jury, was made by the defence.
Where do we go from here?
There are at least three ways in which matters could be improved.
One is to review the statutory definition of careless and dangerous driving.
Another is to define a benchmark of care and competence when considering a charge. For example the court could require—just as is the case in myriad other subjects around which trials revolve—a person of certain accreditation to act as an expert witness in providing the perspective of “a careful and competent driver”.
And another is to teach all drivers explicitly about a whole raft of well-known and often well-researched dangers, of which passing cyclists close and fast is just one, so that these things can be said to be obvious to them.
And that’s something I’ve been meaning to write about for some time…