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PostPosted: Thu Nov 18, 2004 02:24 
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Hi All,

I've been corresponding with Alan Wilkinson of http://www.fastandsafe.org.nz . We've been discussing Alan's idea for protecting us from pointless speeding prosecutions. I've got Alan's permission to repeat the correspondence here.

=========================================
Alan:
> My working hypothesis has been to pursue a legislative change to the effect
> that a driver who can show that his/her driving was safe in the
> circumstances should have a valid defence to any driving charge. It seems
> to me this is simple, extremely effective at removing unnecessary
> prosecutions, and forces an absolute focus on provable road safety
> objectives. It also has the great advantage of complete flexibility as
> safety knowledge and technologies develop.

Paul:
I do so wish I believed that this could work. But I believe you're letting the
lawyers get involved in the definition of "safe". That's not good. In the UK
at least, I'm certain that case law would evolve defining certain speeds in
certain circumstances as being safe. Then complex court cases would take place
comparing this circumstance to that circumstance. The bottom line is I don't
think the courts have any chance at all of making the right judgements, and,
worse even than that, they would create their own standards of safety. Within
quite a short space of time we'd have 20 cases in higher courts that defined
what speeds were safe in what circumstances. Then we'd really have lost
control to the folk that know least.

Alan:
That is a reasonable concern, but I don't think it is overwhelming, nor do I agree we would lose control to those that know least. Court precedents set legal principles, not engineering or factual determinations. They would likely only determine what are valid and invalid safety considerations and what drivers should be expected to take into consideration. But this is an issue I will raise with my legal advisors.

Paul:
But that's not all. It would be incredibly difficult to find broad based
support for the idea because everyone would claim it'd lead to complex and
expensive arguments in court. The problem with this argument is that it's
probably right. Even if I thought it was a good idea, I might not shoot for it
because of the difficulty of actually getting anywhere with it.

Alan:
Currently court and fine costs over traffic infringements are astronomical. There can be little doubt that the consequence of my proposal would be a drastic reduction in both numbers and costs, although no doubt there would be a few expensive cases. But these expenses would actually be useful, allowing in depth and impartial investigation and publication of important safety issues. Currently the expenditure is almost entirely wasted and useless.

Paul:
I'm so sorry to pour cold water on an idea that has tremendous merit as a
matter of principle. As a matter of practice, however, I simply don't think it
works.

The speeding prosecutions method I'm recommending has worked very well indeed
for us in the past, and I know of no reason why it can't work again.

Alan:
I'm rather unclear what you are recommending other than leaving matters to the discretion of well-trained police officers? I think the police have been complicit in getting where we are today - they are motivated to increase budgets, equipment and staffing by ruthless scaremongering and slanted propaganda. You would have to find some way to change their motivation drastically.

Alan:
> I also believe that progress will be fastest and perhaps only possible if
> private enterprise is permitted to take a strong lead.

Paul:
That's a fascinating point. I shall give it very careful consideration. It's
pretty much new to me and will require thought.
======================================

Now the bottom line here is that I'd REALLY like to agree with Alan, but I don't trust our courts to either a) cope or b) make the right judgments.

Alan's view is in contrast with our view described at:
http://www.safespeed.org.uk/speeding.html

Comments? Could we make Alan's idea work?

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PostPosted: Thu Nov 18, 2004 12:18 
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Paul,

I agree with you on this one. The concept of Alan's idea makes it sound extremely attractive however my thoughts are that:
    It could bring the court system to a grinding halt if everyone who thought they had the chance of arguing the toss (no matter how tenuous their case) went to court to do so. OK, I accept that we currently have that right.
    The rulings would almost certainly be inconsistent
    A new breed of 'speeding conviction' chasing lawyers would probably emerge


And ultimately as you say, we will end up defining 'safe', not through a process arrived at by road and transport experts, but by a system which earns its corn arguing nuances and technicalities in a sterile environment. Not good.


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PostPosted: Thu Nov 18, 2004 14:06 
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Eventually you would end up with speed limits effectively being set by legal precedent. "90% of drivers charged with unsafe driving for doing over 30 mph along here have been convicted."

You could even put the numbers on white signs with a red border :|

Also bear in mind that something similar used to apply to the drink-driving laws. The police had to demonstrate impairment. People who could afford expensive lawyers were sometimes acquitted even when the evidence suggested they had been too drunk to stand up.

I can just imagine human rights lawyers defending chavs had up for doing 70 mph down residential streets in stolen cars :evil:

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PostPosted: Thu Nov 18, 2004 14:14 
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Perhaps a variation on this would be to have a "recommended" maximum speed, similar to the current posted speed limits, and an "absolute" maximum speed, set considerably higher, above which it would be presumed on a strict liability basis that someone's driving was dangerous, and perhaps a stronger penalty applied than at present. Maybe something like 50 mph in a "proper" 30, 100 mph on a SC NSL and 120 mph on a motorway.

Between these figures, the fact that someone's driving was safe in the circumstances could be a valid defence.

I'm not necessarily advocating this (as I think we get too hung up altogether on numerical speed) but it's worth thinking about.

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PostPosted: Thu Nov 18, 2004 15:02 
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I tend to agree with you Paul. The idea is attractive in principle but unworkable in practice, for the reasons you described.

However, it may be possible to introduce the opportunity to present an argument for 'mitigation' based on assessment of the relative degeree of 'safety violation' and allow the court to vary the penalty for the offence accordingly from small fine and no points where the mitigation is successful to [edited]larger(er) fine and standard points where the mitigation plea is unsuccessful. The problem with this idea, however, is it would tend to favour the better off who have the resources to pay for legal representation and/or expert witnesses.


Last edited by Observer on Thu Nov 18, 2004 15:27, edited 1 time in total.

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PostPosted: Thu Nov 18, 2004 15:10 
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Observer wrote:
However, it may be possible to introduce the opportunity to present an argument for 'mitigation' based on assessment of the relative degeree of 'safety violation' and allow the court to vary the penalty for the offence accordingly from small fine and no points where the mitigation is successful to no fine and standard points where the mitigation plea is unsuccessful. The problem with this idea, however, is it would tend to favour the better off who have the resources to pay for legal representation and/or expert witnesses.


Not to mention the fact that the legal system is always looking for disincentives to discourage individuals pursuing their day in court, so there would no doubt be an 'increased fine and more points' option to discourage what they would call 'spurious' claims (not unlike the present!)


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PostPosted: Thu Nov 18, 2004 21:32 
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The bottom line for me is, if bureaucrats can't prove in court driving was dangerous, why should we let them assume it?

Regarding the other comments, there are already prosecutions for dangerous driving etc. which do not involve simple numeric measurements and are decided by the courts. Most offences are of that kind. Why should speeding be any different?

It seems to me you guys may be locked into a mindset of accepting the status quo for no good reason except you are used to it.

You also totally ignore the fact that the "rich guys with good lawyers" are actually going to set precedences for everyone else. Don't winge about that!

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PostPosted: Fri Nov 19, 2004 03:41 
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alanw wrote:
The bottom line for me is, if bureaucrats can't prove in court driving was dangerous, why should we let them assume it?


I think the point really is that the courts are not very well placed to make an expert judgement about a road situation. They are not expert drivers, and we don't even have an expert driver profession that could be used to advise the courts. Perhaps if we did have an expert driver profession that would help.

alanw wrote:
Regarding the other comments, there are already prosecutions for dangerous driving etc. which do not involve simple numeric measurements and are decided by the courts. Most offences are of that kind. Why should speeding be any different?


Speeding is inherently a quantitative offence. "Standards of driving offences" are inherently qualitative. We could try to redefine speeding in qualitative terms - I'd love to - but as soon as someone asks: "how fast were they travelling?" we drop straight back into a quantitative argument.

So I do think there's an absolutely fundamental difference.

alanw wrote:
It seems to me you guys may be locked into a mindset of accepting the status quo for no good reason except you are used to it.


Me? I hope not! :) I'm proud to be open to any sort of idea that might work. I've been trying hard to support your idea, but as you know I've been finding it difficult. When I asked to post it here, I'd hoped that someone would be able to allay my concerns, or suggest a variation to overcome the objects, but no such luck.

alanw wrote:
You also totally ignore the fact that the "rich guys with good lawyers" are actually going to set precedences for everyone else. Don't winge about that!


Yep. That seems like a genuine positive.

Alan, I still love the basic idea. I'd love to believe it could work. But the problem of the courts creating patchwork speedlimits through case law seems insurmountable. We'd be out of the frying pan and into the fire.

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PostPosted: Fri Nov 19, 2004 14:09 
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Ultimately this issue hinges on the philosophical point of whether you think it should be possible to convict people for unsafe driving under any circumstances purely on the grounds of the speed they were travelling at in relation to the road environment, regardless of any other factors.

If you say "Yes" to this (irrespective of what speeds we're talking about) then you've conceded the point, if you say "No" then effectively you are saying that people should be free to drive at whatever speed they like and the only legal sanction should apply if they have a crash.

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Any views expressed in this post are personal opinions and may not represent the views of Safe Speed


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PostPosted: Fri Nov 19, 2004 16:52 
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Hi Peter,

I'm very fond of this "identifying the fundamental" approach, but I don't think we've quite got there yet.

PeterE wrote:
Ultimately this issue hinges on the philosophical point of whether you think it should be possible to convict people for unsafe driving under any circumstances purely on the grounds of the speed they were travelling at in relation to the road environment, regardless of any other factors.


I think the first fundamental is (and I'm sure we're agreed) that the law must normally target dangerous behaviours. (as opposed to purely technical violations).

The second fundamental is that we're going to accept an error rate. We'll accept that some small percentage of safe behaviours are going to get caught in the net. If that percentage is small enough that virtually no one gets more than 3 licence points from it over 3 years, then I don't think we'll be too worried.

The third fundamental seems to me to be that we're all agreed that present policy doesn't work and we need an alternative.

Now this is where it gets sticky. I accept that we should be able to process someone through court on the basis of a speed and a speed limit. But I'm somewhat at a loss as to how this might be fitted into your framework.

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PostPosted: Fri Nov 19, 2004 18:14 
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SafeSpeed wrote:
PeterE wrote:
Ultimately this issue hinges on the philosophical point of whether you think it should be possible to convict people for unsafe driving under any circumstances purely on the grounds of the speed they were travelling at in relation to the road environment, regardless of any other factors.

I think the first fundamental is (and I'm sure we're agreed) that the law must normally target dangerous behaviours. (as opposed to purely technical violations).

The second fundamental is that we're going to accept an error rate. We'll accept that some small percentage of safe behaviours are going to get caught in the net. If that percentage is small enough that virtually no one gets more than 3 licence points from it over 3 years, then I don't think we'll be too worried.

The third fundamental seems to me to be that we're all agreed that present policy doesn't work and we need an alternative.

Now this is where it gets sticky. I accept that we should be able to process someone through court on the basis of a speed and a speed limit. But I'm somewhat at a loss as to how this might be fitted into your framework.

This brings to mind the tale of the elderly philosopher who went up to an attractive young woman at a party and asked: "Would you have sex with me for a million pounds?"

She thought for a while and said that, hypothetically, she would.

He then asked "OK, so would you have sex with me for twenty pounds?"

Outraged, she retorted "What do you think I am, a prostitute?"

"We've already established that," he replied, "now we're just trying to fix the price."

The point I was trying to make is that either you accept that people may be prosecuted purely for numerical speed, regardless of what level you set the prosecution threshold, or they can't.

To give a more concrete example, there are plenty of residential roads where it is physically possible to drive at 60 mph for a substantial distance. This is illegal, on the grounds that when driving at 60 mph the accident rate is likely to be much higher than when driving at or below 30 mph. However, even if the risk is much greater, the vast majority of individual instances of driving at 60 mph would not result in an accident.

So, under Alan's proposed system, would someone driving at 60 mph along a residential street be prosecuted? And if so, how could his driving be identified as relatively unsafe, except by saying that he was driving at 60 mph along a residential street?

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Any views expressed in this post are personal opinions and may not represent the views of Safe Speed


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PostPosted: Fri Nov 19, 2004 18:51 
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PeterE wrote:
To give a more concrete example, there are plenty of residential roads where it is physically possible to drive at 60 mph for a substantial distance. This is illegal, on the grounds that when driving at 60 mph the accident rate is likely to be much higher than when driving at or below 30 mph. However, even if the risk is much greater, the vast majority of individual instances of driving at 60 mph would not result in an accident.

So, under Alan's proposed system, would someone driving at 60 mph along a residential street be prosecuted? And if so, how could his driving be identified as relatively unsafe, except by saying that he was driving at 60 mph along a residential street?


Great stuff, Peter. I think we're getting somewhere.

We're talking about speeds incompatible with hazard density, rather than speeds incompatible with specific hazards.

I suippose we could get a fairly concrete standard by reference to 85th percentile speed. I guess that's what my intelligent Police observer would be doing, although he wouldn't normally be stating it in those terms.

With Alan's scheme, we'd still catch faster than normal experts who might be doing their thing with full knowledge. With Alan's scheme we could try to convince the court. With our usual scheme we have a fair chance to convince the officer at the road side that our behaviour was responsible.

So now Alan seems to need to explain if it would be possible to prosecute a driver in town at an unusually high speed compared with hazard density, yet where there's no immediate or obvious danger from the speed.

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PostPosted: Fri Nov 19, 2004 19:43 
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SafeSpeed wrote:
I think the first fundamental is (and I'm sure we're agreed) that the law must normally target dangerous behaviours. (as opposed to purely technical violations).

The second fundamental is that we're going to accept an error rate. We'll accept that some small percentage of safe behaviours are going to get caught in the net. If that percentage is small enough that virtually no one gets more than 3 licence points from it over 3 years, then I don't think we'll be too worried.

The third fundamental seems to me to be that we're all agreed that present policy doesn't work and we need an alternative.

Now this is where it gets sticky. I accept that we should be able to process someone through court on the basis of a speed and a speed limit. But I'm somewhat at a loss as to how this might be fitted into your framework.


What that all boils down to is we need a return to largely discretionary enforcement but a degree of non-discretionary detection and enforcement (possibly fixed cameras, possibly mobile units) is reasonable and appropriate at specific points of high hazard density, or unusually high hazard.

That's the enforcement aspect. At the same time, we need to seek to improve driving standards. You manifesto has a number of useful ideas which should be considered. That's tackling the issue from both ends.


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PostPosted: Fri Nov 19, 2004 22:25 
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Observer wrote:
What that all boils down to is we need a return to largely discretionary enforcement but a degree of non-discretionary detection and enforcement (possibly fixed cameras, possibly mobile units) is reasonable and appropriate at specific points of high hazard density, or unusually high hazard.


That's what I was saying 18 months ago. Now I believe we must scrap all the cameras. They've been so hopelessly misused that the message they send is actually dangerous. We will not be able to get back on track while cameras remain. We will not be able to start to repair the Police Public relationship while cameras remain. See:

http://www.safespeed.org.uk/cameras.html

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PostPosted: Sat Nov 20, 2004 01:23 
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PeterE wrote:
So, under Alan's proposed system, would someone driving at 60 mph along a residential street be prosecuted? And if so, how could his driving be identified as relatively unsafe, except by saying that he was driving at 60 mph along a residential street?

I envisage to prove you were driving safely you would have to be able to show that you could stop or avoid any reasonably likely contingency. For example, if there was limited visibility because of parked cars or other obstructions at the side of the road behind which pedestrians or other traffic could be obscured you would clearly have to be driving with a speed and clearance that enabled you to avoid any intrusion onto your roadway.

I fail to see any difficulty in proving that case.

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PostPosted: Sat Nov 20, 2004 01:31 
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SafeSpeed wrote:

I think the point really is that the courts are not very well placed to make an expert judgement about a road situation. They are not expert drivers, and we don't even have an expert driver profession that could be used to advise the courts. Perhaps if we did have an expert driver profession that would help.

Regarding expertise, I don't see why it is any different from any other technical field - road safety expert evidence would be called on both sides and evaluated by the court.

SafeSpeed wrote:
Speeding is inherently a quantitative offence. "Standards of driving offences" are inherently qualitative. We could try to redefine speeding in qualitative terms - I'd love to - but as soon as someone asks: "how fast were they travelling?" we drop straight back into a quantitative argument.

So I do think there's an absolutely fundamental difference.


I disagree, speeding too fast for the conditions is not a simple measurement. There are relevant measurements involved, speed, relative speed, clearance, visibility, stopping distance, etc., and the evaluation must consider all of these - not just one single component. That is what we want to be judged on. Why ask for anything less?

SafeSpeed wrote:
alanw wrote:
It seems to me you guys may be locked into a mindset of accepting the status quo for no good reason except you are used to it.


Me? I hope not! :) I'm proud to be open to any sort of idea that might work. I've been trying hard to support your idea, but as you know I've been finding it difficult. When I asked to post it here, I'd hoped that someone would be able to allay my concerns, or suggest a variation to overcome the objects, but no such luck.


Thanks Paul, my comments weren't directed at you of course.

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PostPosted: Sat Nov 20, 2004 01:36 
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alanw wrote:
PeterE wrote:
So, under Alan's proposed system, would someone driving at 60 mph along a residential street be prosecuted? And if so, how could his driving be identified as relatively unsafe, except by saying that he was driving at 60 mph along a residential street?

I envisage to prove you were driving safely you would have to be able to show that you could stop or avoid any reasonably likely contingency. For example, if there was limited visibility because of parked cars or other obstructions at the side of the road behind which pedestrians or other traffic could be obscured you would clearly have to be driving with a speed and clearance that enabled you to avoid any intrusion onto your roadway.

I fail to see any difficulty in proving that case.

Are you suggesting the burden of proof should fall on the accused rather than on the authorities?

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PostPosted: Sat Nov 20, 2004 01:38 
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A question to Alan - do you believe the same regime should apply to alcohol offences?

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PostPosted: Sat Nov 20, 2004 02:03 
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I couched my proposal in the form that the authorities can make whatever traffic driving regulations they like, but if the defendent can show his/her actions were safe then he/she cannot be convicted.

In that form, the burden of proof does fall on the defendent. The advantage is that it disables all unreasonable application of regulations.

Yes, I believe that the alcohol laws are also applied totally unreasonably at times and defendents should be similarly protected by a sanity clause.

Again, if bureaucrats cannot prove something is unsafe, why should we let them assume it????

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PostPosted: Sat Nov 20, 2004 02:10 
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I wonder how much of the difference in opinion here stems from cultural, legal and practical differences between Britain and New Zealand?

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