A question of perception: some thoughts on the Michael Mason case

(Disclaimer: I am in no way connected with this case, except that my partner was a Trustee of the Cyclists Defence Fund, the charity that took this case to court.)

Michael Mason was a lifelong cyclist who was cycling up Regent Street in Central London on 25 February 2014 when he was given fatal injuries through being struck from behind by a car travelling at speed. I wrote two years ago, after a vigil had been held at the site of the collision, and the Metropolitan Police had refused to initiate any legal proceedings agains the driver, that:

If this is allowed to stand without further legal or political challenge, the position seems to be that any good and responsible cyclist cycling in every way within the law can just expect to be be killed by a driver running them over from behind, there need be no rational explanation of the incident, and the driver may just walk away from such a killing with no legal procedure following and a blameless record. The implications are quite horrific for all who cycle on our roads.

As I anticipated then, a rare private prosecution subsequently took place, funded by donations to the Cyclists Defence Fund (CDF). And, as I acknowledged might happen, the jury did take the same view as the police, who did not want to prosecute this case, and acquitted the driver of the charge of causing death by careless driving.

The vigil at the site of the killing of Michael Mason in 2015

Nevertheless, I am absolutely certain that this case should have been brought to court. The CDF doing this brought to light a mass of evidence that was not available when I wrote in 2015. This eye-opening evidence would not have come to light otherwise. It is described in Duncan Dollimore's long blog post for Cycling UK, and this is essential reading as background to the rest of what I write here, or certainly the first nine sections of it (down to the heading There to be seen).

I'm going to set aside here any deficiencies in the police investigation of the case, which may be regarded as serious, and just base what I write on that report of what happened in court, on the evidence that was gathered and presented to the jury. In doing this, I am assuming that the account referenced is a fair, accurate and complete one, as I was not present in court. It is, admittedly, difficult to separate the court case from the administrative cock-up that preceded it. The jury may well have been influenced by knowledge that the police had not wanted the case to go to court, though, as Dollimore's account makes clear, the judge was of the opinion that it was a case that should be tried.

The key points that came to light, it seems to me, are that:

• Michael Mason, cycling at night with lights and reflectors in a brightly-lit Regent Street, pulled out into the right-hand lane to overtake a stopping bus (as cyclists have to do constantly in UK towns and cities)
• After he did that he was hit squarely from behind by Gail Purcell's (the defendant's) car, so hard that he was thrown into the air, a large dent was made in the front right-hand bonnet of the car, and he subsequently died from head injuries.
• Purcell claimed never to have seen him, though she said she heard an impact
• Purcell did not stop until made to do so by a witness who ran after her and caught her at traffic lights.

These are my reflections:

'Seeing' is an internal fact of a person's consciousness, a product of eye, brain and mind (if these are considered separate entities). No-one other than Gail Purcell can really know whether she saw Michael Mason on his bike before or during the collision, or whether she saw anything that might indicate to her she had been involved in a collision. Whether she saw anything or not is fundamentally unprovable in a court case. I daresay the jury took this view, and acquitted her, choosing to believe her account that she did not see anything, or to give her the benefit of the doubt, given that it could never be proved whether or not she was telling the truth about what she saw. They may even have considered that the fact that she did not stop after the crash tended to corroborate the view that she was telling the truth in claiming not to have seen anything. (An alternative interpretation, of course, is that she was aware of what had happened, and was fleeing the scene.)

However, that a driver should remain on the road when their perception of what is going on around them has been, on one tragic occasion, and could be again, so appallingly inadequate as to allow them to kill a human being right in front of their car who should have been plainly visible, that they should remain on the road, driving, with no sanction, is deeply worrying. Can driving with such deficient awareness be regarded as, by definition, 'careless' driving in the meaning of the law? This jury, and juries in many other comparable cases, have answered this question: 'no'. But are they competent to make this judgement, and where does that leave the protection of vulnerable road users?

I'm no fan of jury trials in general, not just in road traffic cases, but in normal criminal cases. I've been on a few juries, and not been impressed with how the system works. I don't think the British 'trial by jury' system leads to an honest, dispassionate search for the truth. I think jury trials tend to be a kind of costumed masque, a theatrical put-on, where a selection of the general public somewhat selected for their lower than average educational or professional attainments are attempted to be cajoled, or tricked, by slick professional actors into believing stories that are not true, or into believing that true accounts are a pack of lies. The side with the better, more convincing actors has a good chance of winning, whether it is in the right or not.

Juries are not a cross-section of the population. Too many people are able to get out of serving on juries, one way and another, and they tend to be the more intelligent part of the population. Anyone connected with the justice system or the police is barred from being on a jury, as are teachers, doctors and members of the armed forces: together, a very significant slice of the higher-attaining segment of the population. Other professionals seem to be able to argue easily they have responsibilities that absolve them from the duty. Others just refuse to go, and nothing seems to happen to them. So juries tend to be composed mostly of lower-skilled employees, housewives and tradespeople.

In cases of cycling deaths caused by bad driving, this is a particularly problematic situation. It amounts to a motorist being tried by other motorists, by, most likely, rat-running school-run mothers and white van men, who probably do believe that cyclists should not really be on the road, and are responsible for the perilous position in which they put themselves. Such jurors likely put themselves in the position of the driver who, though an 'understandable' lapse of attention, has managed to do fatal damage. Drivers who never cycle just perceive the situation on the roads in a very different way to people who do cycle on the roads, those who do cycle on the roads are a small minority of the population, and it really looks like this affects justice in cases of cycle fatalities. As Mark Treasure has pointed out, of 276 drivers involved in fatal cycling collisions between 2007-14, only 80 received a disqualification. 71% were left free to carry on driving. Just imagine it if all cases of personal harm occurring in the course of robberies were tried by juries of thieves. They would obviously tend to let the defendants off, sympathising with them, feeling that 'Theft is just a thing that you do, a way of making a living, and sometimes thing go wrong, and people get hurt, but we can't help that'. This is the tendency in cases of cycling death.

Clearly mine is a deeply cynical view, but I am supported in the idea that in these cases jury trials are not the best way to get justice by Martin Porter QC, who writes with an inside-knowledge of the system (and a background of course as a cyclist, with involvement in many cases of death and injury to cyclists):

Often these juries acquit after less than an hour of deliberation, even when the evidence against the driver seems very strong. 

Why? One reason appears to be that driving offences seem far more likely than other serious crimes to invoke empathy and compassion from a jury. “There but for the grace of God go I” is not a thought likely to cross many jurors’ minds with murder, rape, terrorism or knife crime. But surveys show that a majority of drivers admit to breaking speed limits, and almost all can probably remember a lapse in concentration or worse when in a car.

The jury in the Michel Mason case took only 17 minutes to reach their 'Not Guilty' verdict.

I can't know what the family of Michael Mason have gone through; I have no connection with them. Nothing will bring Michel Mason back, and nothing will bring back all the other cyclists, pedestrians, drivers and car passengers killed by bad, inattentive drivers. I have no great interest in seeing severe punishment of grossly incompetent drivers like Gail Purcell (though I think removing their licences permanently when they kill would be appropriate): what I do have a great interest in is in moving to a situation, where, one way or another, they don't have such common opportunity to kill me when I am on my bike.

I'm not so naive as to believe any campaigning by cycling or road victims' organisations is likely to get the time-honoured British system of trial by jury changed. I also believe general social attitudes to these questions are very unlikely to change in the short-term (by which I mean in my lifetime). Given when sociologists call the 'normative' character of driving in our society, and the likelihood of cycling continuing to be somewhat 'deviant', democracy is never going to be on my side. I therefore tend to attack the problem from a different direction, as readers of this blog will by now know. I want cyclists out of harm's way. We shouldn't have to constantly do the manoeuvre on busy, dangerous streets that Michael Mason was doing when he was killed, pulling out into the path of drivers who may well be so deficient in their perception of their environment that they fail to see us, and they kill us. There are better systems.

A better system, under construction in Enfield (Photo: Brian Deegan)

A bretter system, under construction in Brent (My photo)

A better system, in use in Lambeth (My photo)

The part of Regent Street on which Michael Mason was killed is but yards from the junction where the current design for Cycle Superhighway 11 would terminate its segregated cycling provision, like that shown above, were that scheme to be built. That scheme is currently one of the many cycling schemes put on hold by Sadiq Khan, Mayor of London, over the last year, where construction could already have started. If CS11 were to be built according to current plans, of course it would then be highly desirable, and eminently possible, for it to be extended from Portland Place all the way down Regent Street.

My jury is still out on Sadiq Khan and his Cycling and Walking Commissioner Will Norman. If their lengthy period of stasis on new cycle schemes is being used to gestate a grand new strategy of cycle infrastructure provision that will allow the Mayor to spend effectively the substantial sum he has promised to cycling, then the wait will have been worth it. If, however, their delay is due to political timidity, as Andrew Gilligan seems to suspect, then their honeymoon period will soon have run out, and campaigners will have to start shouting loud against them. Recall that by the same stage in the last mayoralty, Gilligan, as Cycling Commissioner, had already announced a visionary programme. And still there had to be a rush of work in the last year of the Johnson mayoralty to ensure a reasonable amount was built (a rush that Khan seems to frequently criticise as 'disruptive'). I'm not attacking Khan, I'm simply looking at the calendar. It's looking increasingly improbable that he will be able to deliver on his promise of tripling the length of segregated Cycle Superhighways in his term, or even come close.

In one of my most popular (or notorious) posts in this blog, Cycling is dangerous, I wrote the following paragraph, which, six years on, and after quite a lot of positive developments for cycling in London, I still feel has much relevance:

People who get on bikes in traffic quickly realise they have no protection other than their own physical capabilities and wits. They discover that they are totally on their own. Nobody and nothing will protect them, not the Highway Code, not the police, not the Crown Prosecution Service, not the courts. And the roads are often designed to make things as dangerous as possible for them. This utterly uncontrolled, socially anomalous danger of cycling is what makes it unique as a legal activity. Being a pedestrian can sometimes have a similar character, but not for so long, as pedestrians are mostly segregated from traffic. Cycling, for a normal activity, that we would hope would be an everyday one, as opposed to a special one like mountaineering or skydiving, is tolerated by our society as uniquely dangerous.

As seeing is an internal, personal perception, which cannot be proved or disproved, by anyone else, so is the subjective feeling of safety or danger. I started this post by referencing Duncan Dollimore's article on the Cycling UK website. How did reading that yesterday make me feel when I went out on my bike today, on my regular journey on one of London's major roads, the A5, which has all the hazards a major UK urban road can have? It made me more worried about my safety, about cycling. I found myself checking my mirror even more than usual (and I usually do it a lot), wondering, as I pulled out into the outside lane to overtake parked cars or stopped buses, as I must, if that motorist behind me is that one in million who has my number, that one whose perception of what is on the road in front of them, in plain view, is so appallingly deficient that they might just continue on the same course and at the same speed to kill me.

That was just my perception, but perceptions matter.