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2012 Koestler awards: Blossom, Reaside Clinic

My brother Stephen West was a loving; compassionate man of integrity who was killed in a head on collision in 2010. His partner who was a passenger in the car was seriously injured and transferred to an intensive care unit followed by months of rehabilitation. The driver of a car coming in the opposite direction crossed the road into the path of my brother’s car after initially going onto the nearside verge.

This we were told was consistent with a momentary lapse in concentration rather than any loss of consciousness from a medical problem. The guidance for the Crown Prosecution Service (CPS) from Her Majesty’s Crown Prosecution Inspectorate (HMCPSI) states:

‘… that drivers who kill because of a split second error or lapse of judgement can and should be charged with causing death by dangerous driving.’

My family and I were told that although this incident satisfied this definition of dangerous driving, the CPS were going to prosecute the driver for causing death by careless driving because they weren’t sure they could obtain a conviction on the more serious charge despite the clear legal and prosecutorial guidance given.

We were told that a ‘suspected reason for the accident was that the defendant may have fallen asleep. However there was insufficient evidence to prove this to the required criminal standard’. The Attorney General agreed with this decision and told us that he felt the jury would have thought the higher charge too harsh.

What does this say about the feelings for the families and the value of life that is lost on our roads?

Some 16 months later following numerous delays called for by the defence to prepare exhaustive medical tests, the defendant pleaded not guilty by reason of insanity. This plea was based on one three-second episode of an abnormal heart rhythm found on a heart tracing several months after the collision, the only abnormality found despite several tests of the heart and brain to look for any plausible cause. Advice sought on our behalf from an independent cardiac specialist was that this ‘abnormality’ is meaningless, and not sufficient to support the notion that a heart rhythm problem had caused the loss of control.

The defendant was found not guilty by reason of insanity by the jury, and given an absolute discharge. The judge had no power to restrict the defendant’s driving.

The CPS told us they would argue that the medical evidence was irrelevant as there was no evidence that a heart rhythm problem was the cause of the incident. The CPS made the decision not to fund any medical expert witnesses to refute the defence case, so the jury heard evidence only from the defence’s expert witnesses. I ask the question how a jury can properly come to a correct conclusion when flimsy medical evidence is not robustly challenged. The CPS has been criticised in the past by the HMCPSI for being underprepared, prejudicial evidence going unchallenged and inappropriate pleas being agreed to.

The judge told us in court that sympathy plays no part in proceedings.

However, for justice to be done and seen to be done, families and the public expect a fair trial. This means not only fair representation for the defendant, but also fair representation for victims and their families. A trial that allows the evidence as it was to be heard and challenged appropriately and effectively by the CPS, and we had assumed that a prosecution ’expert’ witness would have been instructed by the CPS. If this had happened, we would have accepted the outcome irrespective of what it was.

The barrister refused to see us at court and we were told later that he felt that we were trying to tell him what to do. In court the barrister argued that ‘the reality of this is that, for a very short period of time, you took your eyes off the manoeuvre and then over steered as you attempted to correct this error… .’

The barrister was unable to effectively challenge or argue the case put forward by the defence in the absence of any prosecution expert witnesses to explain to the jury the flaws in the defence’s medical evidence. As we were told later if the defence offers weak medical evidence it is up to the prosecution to rip it to shreds.

He failed to do this.

At present we like many families have no rights when the Crown Prosecution Service has failed to prosecute effectively. We are not represented by independent lawyers like the defendant is. Our questions about court proceedings went unheeded. The CPS complaint process will only look at the way the complaint is handled not at the complaint itself and even this is done by the CPS itself. Lawyers whom I contacted after the trial advised that ‘you have no right of appeal, and you have no standing to compel the prosecution’, despite them agreeing that ‘this case was handled disastrously’ – and that we had ‘come up with strong confirmatory evidence that the outcome was wrong’.

We are realists, we knew that even if the verdict had been guilty the sentence would have been lenient in comparison to the catastrophic consequences of what happened but we expected a fair and just hearing.

The ‘Joint Inspection of the investigation and prosecution of fatal road incidents’ by the HMCPSI and HMIC published in February 2015 stated that

‘There is currently no obligation on the trial advocate to provide a report outlining any potential weaknesses in the prosecution case. By contrast it is mandatory for counsel prosecuting trials of rape cases to provide such a report.’

They added that the HMCPSI ‘consider that this should be remedied with immediate effect’. The Victim’s Code states:

You are entitled to be informed and be given reasons for any decision the CPS makes to:

• discontinue a charge and proceed on another;
• substantially alter a charge;
• discontinue all proceedings;
• offer no evidence in all proceedings.

In addition, where the CPS discontinues or offers no evidence in all proceedings, you are also entitled to be informed of how you can access further information about the decision and how you can seek a review of the decision if you are dissatisfied with it.

With regards to the defence’s report the CPS said that they anticipated that the best this will do will be to indicate that a cardiac event was a possibility and nothing higher than that and ‘therefore the crown will not be instructing an expert which will clearly come to the same conclusions’.

Over a year later during the CPS complaints process that we initiated after the trial with regards to the CPS’s response to not funding any expert evidence at trial we were told that ‘as the experts could only indicate that a medical intervention was a possibility and no more it was not appropriate for the prosecution to call any expert evidence. No expert could indicate less’.

Yet the defence called five.

The independent cardiac electrophysiology expert who was consulted on our behalf was willing to commit himself to a stronger rebuttal than this, stating that the finding was of dubious significance. Even the finding of a possibility is subject to qualification; it can be a reasonably likely possibility, or only a theoretical possibility. This was not discussed at all.

We were never offered a post acquittal meeting (despite it being a recommendation by the CPS in a compliance review following implementation of the Victim Focus Scheme in 2008)

With this pledge by the HMCPSI our campaign is to be heard and for our questions to be answered. We ask for the medical evidence that was presented to be reviewed by an independent panel made up of academic, medical and legal experts to look at whether it satisfied the level of proof required, to look at whether there was the correct application of the law, and for a written report to be made in line with the HMCPSI’s recommendations for such reports to be implemented immediately.

I have discussed what happened with Amy Aeron-Thomas, executive director of Road Peace, and she agrees this is what should have happened following the court trial. We do not seek revenge but justice. We ask on behalf of all families who have lost loved ones for the right to independent representation and in the name of justice the right to be heard.

www.thejusticegap.com gave us the forum to present our case via his online publication the ‘justice gap’ (see In the name of justice: a right to be heard). Now I ask for the public to support our petition for that case to be answered to.

Our campaign calls for greater involvement by victims of crime and their relatives in the decision-making of the CPS and mechanisms to ensure that victims and relatives voices are heard.