Thursday, 25 June 2015

My Day in Court

Despite what some may think I have never actually been in court as a witness before. Today was the first case that has actually got to that stage.

First, here is the incident itself.

This occurred back in February 2014 and has only now gone to court. The case was submitted to the Procurator Fiscal (PF) by the police with the suggested charge of Dangerous Driving. The PF agreed and a trial date was eventually set to try the driver for Dangerous Driving.

So today I went to court in Glasgow. This morning was mainly spent sitting. Waiting. Sitting. Waiting. It was a long morning. Lots witnesses were getting called and either dismissed or taken into court. Only approaching lunchtime did I hear that my case was going ahead and for some reason had been swapped from court 19 to court 20.

The PF then asked for a quick word. She asked me where my cameras were placed. I pointed out they were on my helmet and, at that time, on my downtube. That was all the PF spoke to me about before the trial.

Soon I was taken through to court and there I was standing in the witness box. There was the judge...actually a magistrate in this case, a clerk, another person who I think was a clerk and who seemed to be just doing some random work on a computer, the PF, the defence lawyer, a police officer and the accused. There was no-one in the public gallery throughout the trial.

First off the PF asked me questions. My name, age, occupation, what happened how did I feel, etc. This was all before the footage was shown. At this early stage I have to be honest, but I felt the PF was nervous, hesitant and unprepared. I was asked about passing distances, who recommended it etc.

At one point I was asked a particular question about acceptable driving. The magistrate then pointed out to the PF that this would only be appropriate if I was deemed an expert witness. The PF was hesitant about this. She was not sure about this at all. The magistrate then suggested that I be removed whilst this was discussed.

When I came back in, though I wasn't told the outcome, it became clear that I was not considered an expert and that my opinion was to be limited to what was relevant to cycling, though saying what was too close etc was ok.

In the video used in court two cars overtaking were seen from the rear camera. These cars gave me room. The magistrate asked if this could have been related to the change in lighting. I suggested it wasn't.

I was asked about my visibility, where I pointed out my lights (2 on back, 2 on front). I also mentioned my hi-vis. Yes this is not necessary, but it wouldn't hinder my case. I did not mention and was not asked about wearing a helmet, although that was probably implied by having a helmet camera!!

We started looking at the footage and after watching all the way through I was asked questions about it. What was happening, where I was, the road conditions and details about the incident itself. During this section we approached lunchtime and the case was ajourned until after lunch.

I treated myself to a roll and sausage!

Back in court the video analysis continued. How did I feel. How close did I think it was, and importantly what position did I ride on the road. This led to discussions of the primary and secondary road position. What it was, why it was recommended and where exactly I was. I was probably in a strong secondary just over a metre out.

Then the PF rested her examination. I have no idea how long it was! At a guess, 30 mins.

Then the defence lawyer started asking questions. He was definitely more assured. I can't remember everything that was asked but there were a few things he focused position....did I agree that my position was an attempt to control the traffic behind me?.... was I wobbling as I went up the hill?.... Did I really swerve at all as the car passed?....and most importantly, how close was the car.

He definitely thought that his strongest defence was the car was not as close as I suggested and that it was in fact perfectly safe. He did point out at one point that I wasn't hit and thus this suggested that it wasn't dangerous. He asked about speed limits. He was keen to point out that the driver wasn't actually speeding and that the speed limit in this area was national (60mph). I agreed that this was true.

He then suggested that what had actually happened was that I had just not expected the car and had had a bit of a fright when the car had passed unexpectedly.

Then the police witnesses were brought in and they were questioned to make sure they had done the interviews etc correctly. They had.

Then, the summing up. This is where it got interesting. The defence lawyer went first. His main line of defence was that the video was not clear enough in demonstrating that the pass had in fact been dangerous. He suggested that it was in fact very difficult to determine how close the car was. Then something unexpected happened....

The magistrate interrupted and said something along the lines of....'my biggest problem is that it is not clear from the footage that it is the accused's car that is in the video.

This very obviously caught the defence lawyer by surprise, as he ummed and awwed for a few seconds. He quickly composed himself and said, 'yes, I was obviously coming to that'. The defence lawyer then focused on the fact that the registration could not be identified, and that thus there was no corroboration.

Hmm. This really surprised me. In the video, right after the incident I shout out the registration. I witnessed the car. I was one point of corroboration. The police earlier had confirmed that the driver admitted driving the car that night. He admitted that he had driven along that road at approximately that time. That was the second point of corroboration. However the focus was on the fact that the car was not identifiable from the video itself.

The PF tried to dispute this, but, in my opinion, very weakly. She pointed out that I said the registration right after the incident and that it was on camera, but this wasn't good enough. I sat there willing her to just say....but there was a!!!!! I saw it. I also said that I remembered the reg even when I had got home.  mentioned this during the trial itself. But no. The magistrate just kept focusing on the fact that from the video it could have been many different types of cars.

The driver admitting being there, and driving the describing the car as a black estate car (I'm sure in my witness statement I also mentioned it was an Audi), and the fact that I had a registration that fitted all of the above, was not good enough in the magistrates opinion. Not beyond reasonable doubt.

And so the judge summed up. He pointed out that two things have to be met to reach a conclusion of guilt. First, what the car was and who was driving it (there was no doubt about who drove that particular Audi as he was the only driver). That was not proven in his opinion. So the driver was not guilty.

The other condition that had to be met was the seriousness of the incident. The incident had to be 'well below' the standard expected of a reasonable driver. On this the judge was very clear.

'Had we been able to confirm your identity beyond reasonable doubt, I would have found you guilty of dangerous driving'

And that was that.

Not guilty.

As we left I saw the the driver looking relieved and shaking his lawyers hand. It seemed this did matter to him. The PF did come out to ask if I understood what had happened. I did. In my opinion she had failed to prosecute properly. I didn't say that. However, it wasn't the defence lawyer who saved his client. It was the magistrate who didn't think there was enough corroboration.

When I went outside the police were waiting to have a chat. They were very surprised by what had happened and could not understand where the issue with corroboration was. They had done their job well, and for that I am grateful. They fully understood that this was not about this one driver, but about the big picture.

It was in my opinion, the wrong decision. However, we must respect the courts decision. I don't personally feel any animosity towards the driver. I'm pretty sure he knows what happened that night was wrong and to be fair he has suffered some punishment. You don't get legal aid for cases such as this, so he will be out of pocket by a fair bit paying for his lawyer. I suspect that he will driver more carefully in the future.

If indeed the driver is reading this, I would be more than happy to meet and confidentially hear his side of the story, perhaps over a beer or a coffee. If you are up for this, feel free to contact me via this blog. Rest assured I have no ill feeling towards you personally.

The important positive that has come out of this is that a magistrate agreed that a close pass can and does constitute dangerous driving. He made that perfectly clear. That should encourage others to report similar incidents and to request they are taken seriously.

Let me know your thoughts, and if there are any lawyers out there, let me know what you think!


  1. It appears the defence lawyer did not dispute that the accused was the driver. It was very helpful of the magistrate to do so for him otherwise there might have been a miscarriage of justice and a driver might have been held to account for dangerous driving.

  2. David, well done. A technical point to remember to get the prosecutor to address next time, and I'm glad something positive has come out of what the mag said.

  3. Think of yourself as the prosecutor. Get the original footage with you at court.
    Remember, your word means nothing in court, it is up to you to prove the driver is wrong and you need to have a strong evidence along.

  4. Quite obvious that the Magistrate was determined to DERAIL the case , so as to prevent the result becoming an item of CASE LAW ?

    With ALL the admissions by the Driver , it takes a nervous PF & cooperative Magistrate , to ensure that the BLINDINGLY OBvious is not taken into account !

    Next case , the Magistrate should arrive with the white walking stick , so that ALL will know that they have NO CHANCE in convicting the MURDERED CYCLIST !

    Scottish Cyclists are seeking " Strict/Presumed Liability Laws & Safe Pass of 1 1/2M Laws , yet , these will serve NO PURPOSE as long as Dinosaurs sit in Judgement of those that they KNOW met the Prosecution Criteria that allows the PF & Police to bring the matter to trial !

    As to YOUR time , does the Court regard it as Beneficial , even if they may have awarded " out of pocket expenses " ?

    As the Government seek to reduce Expenditures , do they realise the " Savings " here , may create an even BIGGER DEFICIT , as the expense of " SEVERELY INJURED/MAIMED CYCLISTS " brought about by the failure to deter " Driver Irresponsibility " continues to grow ?

    Since the 1980s children have clearly been discouraged from riding a bike to school , AND NOW , we have the NHS Budget SOARING , as the battle of OBESITY is being LOST !

    STUPIDITY has Consequences , AND NOW , it is coming to roost !

  5. In a sense the magistrate was correct. Although you shouted out the reg number, that was just you corroborating your own eye witness testimony and not a separate piece of evidence. On the balance of probability, it was the accused who was driving, but we don't convict people on the balance of probability in Scotland. We convict on beyond reasonable doubt, which needs a much higher threshold of evidence.

    I know you are probably pissed off at the outcome. I would be too. But, really, it's better that the guilty go free, rather than the innocent being convicted.