There is something that happens twice a day, every day. It has done so since before life existed on Earth and it will do so until the seas boil and life ceases to exits. So reliably does it happen that the very concept of a day is inherently bound to it. Twice a day, the sun is near the horizon.
Given the frequency and the fundamental constancy of this phenomenon, the way we treat it with regard to road collisions is quite remarkable.
Let’s take a look into the sun.
Yesterday, the trial of Steven Petterson concluded. He was charged with causing death by careless driving after David Irving was struck from behind by the wing mirror of Petterson’s minibus in December 2012. Irving was knocked to the ground and was run over by a following vehicle.
Hampshire police issued a slightly curious statement requesting “that people do not make comment on the case without having listened to all the evidence given in court, which at times was complex“. Well, tempting as it is, I’m not going to. There’s really no need to, because it simply fits a much broader pattern, upon which I will make comment.
A pattern of light
Here is a small list, arrived at from some very cursory googling:
- Anthony Maynard, died 3 July 2008. Struck from behind by van. Driver was dazzled by low sun, CPS did not press charges.
- Peter Stubbs, died 4 May 2010. Struck from behind by car. Driver was dazzled by low sun, was charged with causing death by careless driving, two juries failed to reach a verdict, judge filed formal not guilty verdict.
- David Noble, died 20 October 2010. Struck from behind by car. Driver was dazzled by low sun, was charged with causing death by careless driving, was found not guilty.
- Arthur Lakin, died 25 October 2010. Struck by car. Driver was dazzled by low sun, was charged with causing death by careless driving, was found not guilty.
- Christian and Nicholas Townend, died 5 December 2010. Struck from behind by coach. Driver was dazzled by low sun, was charged with causing death by dangerous driving, was found not guilty of both the original charge and of causing death by careless driving.
- Maria Micklethwaite, died 13 January 2012. Struck from behind by car. Driver was dazzled by low sun, was charged with causing death by careless driving, was found not guilty.
- Ray Elsmore, died 5 December 2012. Struck by car. Driver was dazzled by low sun, was charged with causing death by careless driving, jury failed to reach a verdict (Update, June 2014: After two retrials, the CPS dropped all charges).
- David Irving, died 17 December 2012. Struck from behind by minibus. Driver was dazzled by low sun, was charged with causing death by careless driving, was found not guilty.
The common factors in all of these cases, just to be clear, are these:
- the victim died as a result of being hit by a car whose driver claimed not to have seen them
- the reason the driver gave for not having seen the victim was low sun (even if this was the case only at or immediately before the moment of collision and the victim was quite visible shortly beforehand)
- the driver was either not found guilty of any charges, or was never even charged
(Note that I haven’t included any of the cases where a driver was convicted but the low sun was a mitigating factor in sentencing.)
In other words: The legal process has ruled that in each of these cases that there is no culpability in driving a car into someone and extinguishing their life, if you failed to account for the celestial body that is so constant and so fundamental to our existence that without it there would be no life.
What giveth, truly taketh away.
The thing is, when I read these cases, my first thought is one question: Why is the court even considering the weather?
The astonishment of man
Weather happens. Weather happens every hour of every day. The sun shines, rain falls, wind blows, ice gathers… And these conditions are there, right in front of us, all the time. If you leave the house at dawn on a wet winter’s day, you know the sun will be low and you know it will be in front of you as you drive east. If you leave the house and the temperature is near zero, you know there may be ice. If you leave the house and it has been raining for two days, you know there may be standing water. There are no surprises.
But our transport system and our legal system are surprised by this. When people drive into a space that they hadn’t figured out contained a person, some people come along with tape measures and traffic cones and they scratch their heads and they wonder, what happens when you look toward the sun? And then they write down what they think happens when you look towards the sun, and they give those writings to some people who sit in a big room. And they spend a couple of days discussing what people should be expected to do when they look towards the sun. And, after millions of years of humans looking at the sun, they generally fail to figure out what is expected.
And the matter of astonishment should be not that people can’t see very well when they look at the sun, but that people are still, in 2014, trying to get their head around how people should respond to looking into the sun.
It is truly incredible.
The vicious circle
People die because people haven’t figured out what to do when they see the sun. And people haven’t figured that out because the law says it’s ok for them not to have bothered to figured this out. And so it’s a vicious circle.
And it’s not ok.
This vicious circle can only be broken one way: By changing the law such that it’s not ok to do it. By changing the law such that it’s not ok to simply drive into a space without ascertaining that there is no-one already in it. By changing the law so it’s not ok to fail to control a vehicle and blame it on the weather that hadn’t been accounted for.
The two fundamental failings
There are two key failings of the legal process. They are closely related to the fact that the Road Traffic Act 1988 desperately needs to be changed to either radically redefine or completely replace the concepts of “careless driving” and “dangerous driving”, but that’s a whole blog post in itself.
The two failings are these: That “I didn’t see him/her” is a valid defence, and that the weather can be a justification for, or a mitigating factor in, not seeing someone or something.
Any campaign that wants to address road danger should really be demanding – among other things – these two legal changes:
- That in order for the “I didn’t see X” to be a valid part of either defence or mitigation, the onus should be on the defendant to prove that it was not reasonably possible to see X. There are situations where such “impossibility” is perfectly plausible (eg pulling onto an unlit road at night into the path of an unlit vehicle approching from the side) but not only are these few and far between, it should be possible to list them explicitly as part of CPS guidelines. Any edge cases can be tested in court, but the key is the burden of proof.
- That weather, whilst pertinent to accident investigation recommendations for future driving and technology, is not even considered in terms of culpability of a driver, who should be responsible for driving according to the conditions. This is not just a matter of visibility: take for example this driver who, as far as I can ascertain from multiple reports, was not charged for the death of a passenger because he lost control in a puddle and so was deemed not to have caused the death (the implication being that the puddle did).
Together, these factors would give significant protection to all road users. It would be clear that no longer would it be tolerated to drive into a space that had not been sufficiently checked, and in so doing to cause injury or death.
“I didn’t see him/her” should surely be an admission of fault in all but the rarest cases. And the weather – that thing that happens everywhere, every day – should absolutely not be an excuse for failing to see.
Until those changes are made, anyone on an eastbound carriageway in the morning or a westbound one in the evening has no legal right not to be mown down from behind. None.
If you find such total lack of protection to be unacceptable, then let’s do something. Let’s make a strategy and take it to politicians and the CPS.
Because, without that, people will drive blindly and people will die.
Your thoughts in the comments are most welcome.
The AA tweeted this recently:
Obviously they meant “bad weather for driving”. But what we see in reality is “weather for bad driving”.
And that subtle linguistic ambiguity kind of sums things up.
Weather happens. Deal with it.
Epilogue, 11 February 2014
Today someone kindly alerted me to these reports of the trial produced by Southampton Cycling Campaign. They make for fascinating reading, but of particular note on Day 6 is the following record of a comment made by the judge: “Jury will be directed to ignore Highway Code ‘slow down or stop if dazzled’“.
So there we are: apparently, it has been made explicit in a court of law that there is no legal expectation to moderate the progress of one’s vehicle in any way in order to account for loss of vision due to the sun.
This means, therefore, that not only do juries deem it acceptable in the context of the wording in the Road Traffic Act 1988 to hit and kill someone because of bedazzlement, but judges guide them explicitly to this outcome.
There is no legal protection when your physical protection is at its lowest. None.
This has to change.