Tyranny of the masses

We are thankful to the Beyond the Kerb blog for adding legal details about the present unsatisfactory court proceedings in cases of drivers pleading not guilty to charges of causing death by dangerous or careless driving. In a recent post, reporting the Coroner’s Court hearing of the case of a pedestrian killed by a driver, only 200 metres from  a much more reported death, we wrote:

The key point that is not addressed by the justice system is  Who should judge the standard? Who is a competent and careful driver?

It would seem obvious that the judge should be someone who is officially recognised to be a competent and careful driver, according to objective standards. This means that the Police expert witness should be asked to make a statement on objective grounds whether the driving was dangerous or careless. That should be taken as a statement of facts, rather than an opinion.

The starting axiom should be that a careful driver does not kill or injure, unless the victim purposefully put herself in harm’s way (i.e. to commit suicide). It should be an extremely difficult hurdle to show that a careful driver would have killed someone.

In practice the judgment is made by a jury that statistically is composed by regular drivers who see themselves as competent and careful according to their own standards. Innumerable studies have shown that people over-rate their abilities in all domains and that driving is particularly rife for over-confidence of own  skills. This is compounded by the very British  “us-and-them” attitude of cataloging people according to accent, transport mode, schooling, etc.

So in effect we have incompetent, biased people making judgments.

The second order consequence of this absurdity is that Prosecutors and Police are extremely shy of charging and prosecuting killers, because of over-sensitivity to failing to obtain convictions.

We have a paradoxical situation where the legal system, rather than raising the standards of people’s behaviour to ensure everyone’s personal safety, is held hostage by the lowest denominator who resist to improving their behaviour.

 

Beyond the Kerb gives us a historical perspective on how we got here:

The problem with this statutory definition [of dangerous driving] (and, indeed, that of careless driving) is cemented in law by way of the Court of Appeal, specifically in response to R v Lawrence 1982, in which Stephen Lawrence’s conviction for reckless driving (as defined in the Road Traffic Act 1972) was overturned. Lord Diplock noted the following:

“It is for the jury to decide whether the risk created by the manner in which the vehicle was being driven was both obvious and serious and, in deciding this, they may apply the standard of the ordinary prudent motorist as represented by themselves.”

Note that the wording of the RTA 1988 postdates Lord Diplock’s comments: this Act of Parliament, the legislation most commonly used to prosecute bad driving, is founded on the very notion that jurors should judge others by their own arbitrary standards of conduct and not by some objective and fixed measure of competence and care. It is a mechanism by which the decline of standards is assured.

Without objectivity, equality of legislation is not possible. And without comprehensively overhauling the Road Traffic Act, objectivity is not possible.

The article masterfully points to the futility (and potential harm) of Matthew Briggs’s campaign. It is incorrect to say that present law is sufficient; the law must be changed, but much more radically than the knee-jerk reaction advocated by Briggs.

The article needs to be read by everyone concerned about fairness in dealing with road violence.

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