Sentencing Mr Charles

[oldcodger]

As with the previous exercises I am more interested in explaining the thinking process behind sentencing than the sentence itself.

Mr Charles (aged 40) entered a not guilty plea to a charge of “Permitting the opening of a door of a motor vehicle on a road so as to cause injury or danger, contrary to the Road Vehicles (Construction and Use) Regulations 1986: Reg 105.”

Mr Charles had been taking his son aged 8 to a friends house for a birthday party. There were cars already parked outside the house but as Mr Charles was not intending to stay he pulled up beside the cars and told his son to get out on the offside if there was nothing coming.

The boy opened the door causing a motor cyclist to take evasive action to avoid a collision. The motorcyclist stated that he almost fell off but that no damage was done.
The motorcyclist agreed with the defence that there had been no other moving vehicles on the road at the time.

Mr Charles said that he suffered from arthritis of the neck and shoulder and had been unable to turn sufficiently to check by looking over his shoulder but maintained that he had checked all 3 mirrors before telling his son to open the door if nothing was coming. He maintained that as both he and his son had checked, and seen nothing, the fault lay with the biker. He alleged that the biker must have been either speeding or riding in the gutter, otherwise they would have seen him.


Would you find Mr Charles guilty or not guilty?

If not guilty, why?
If guilty why?
If guilty what factors would you consider when deciding on a sentence for Mr Charles?


I will post my thoughts in a few days.

[7db]

A) He's guilty.

i) The agreed facts are that the door was opened when he was in charge of the car.

We can surmise that he permitted it - he was in charge of the vehicle when the door was opened, and you can't give any independence of thought/action to the 8yo. Furthermore, it is clear that had he forbidden the 8yo from opening the door it is unlikely that it would have been opened.

ii) It caused danger to the motorcyclist. In casuing him to swerve to avoid an acicdent, it clearly casued danger (regardless of whether the motorcyclist could have put himself in a position where it would not have been dangerous -- ie by being further out.

i) and ii) together must indicate guilt, assuming this is an absolute offence, and not one that requires mens rea.


B) Factors for consideration (in order of magnitude):-
i) No discount available for guilty plea
ii) Mitigation:- Actual injury was not caused to the motorcyclist
iii) Mitigation:- Reasonable steps were taken to prevent the offence -- ie there was no carelessness*, recklessness or malice in committing the offence. In particular:-
- he verbally instructed his son to check
- he checked mirrors
- he was prevented from checking more thoroughly by a medical condition**.
iv) Mitigation - the clear road, and failure of the motorcyclist to position himself safely away from the car does indicate some contribution to the near miss from the rider. I list this as the least mitigating circumstance, as the other person putting himself in a position of potential danger is not mitigation (you can't pull the trigger, just cos the other guy put the gun in his mouth).


* If there was no carelessness in his checks, how come there was a near-miss? Wouldn't careful checks result in the bike being seen? I would disagree -- the positioning and riding of the bike might have been such that even careful checks might not have revealed his proximity.

** A consideration might be whether this medical condition makes him, in fact, unfit to drive (and consequently whether he was breaching the terms of his licence in not reporting this condition, and whether he was therefore in fact uninsured - ooh this line of thinking gets nasty quickly, doesn't it?!).




Given all the lines of mitigation (and providing that we believe all that the facts as presented are true), then I think he's in line for a discharge with the requirement to report his medical condition to the DVLA and his insurer.

[cochapman]

It strikes me,that at the very least he is guilty of being rather silly, boarding on stupid. I've got an 8 year old son and like most of his friends, he hasn't got an real "road sense", certainly not in the terms an adult driver would understand the term, so there is no way I'd allow my son to make a decision about whether someting was coming or not and hence allow him to open his own door (we've still got the child locks on).

As for the m/c being "in the gutter", again, no defence. It may not be a sensible place for a m/c to ride, but lots of them do, and it is still part of the road.

I'm not sure the arthritis is an excuse either. If it effects him sufficently to be unable to turn his neck so he can look around him, should he be driving?

Do I understand correctly, was Mr Charles effectively "double parked"? My understanding is that this an offence as well (I haven't got my HC with me to check to see if it is just "not recommend" or if it is specifically illegal); so another black mark.

Mitigating factors: he claims both he and his son made a reasonable effort to check for other road users. The m/c was unhurt, albeit obviously cross enough to report it and the potential for injury to both passenger and m/c even at 30mph (assuming a residential area) is still quite serve.

To me, this is a classic case of where a "good talking to" by a Traffic Policeman at the time of the incident would have propably had the best effect. <soap box warning> Sadly, speed cameras don't replace real policemen :rolleyes:

Guilty. 4 minus marks (double parked, allowing an 8 year old to judge, not being in a state to look around himself, potential for serious injury); 2 plus marks (some effort to look around, no one actually hurt). I don't know what the maxium for the offence(s) are, but in my opinion this is at least as dangerous as doing 80 on a clear dual carriage way for which I got 3 points and £60 fine (do I sound bitter and twisted about this one? :p ), so the fact that is has come to court - 3pts and £60. However, as I said, the best and most educational outcome would have been a REAL policeman explaining to him AT THE TIME just why it was so dangerous.

[oldcodger]

Do I understand correctly, was Mr Charles effectively "double parked"?Yes - although he had the engine running, had no intention to stay any longer than absolutely necessary and was very close to the parked vehicles in order to leave as much room as possible in the road.



To me, this is a classic case of where a "good talking to" by a Traffic Policeman at the time of the incident would have propably had the best effect.The reason that this was reported is that one of the parents dropping children at the party was a senior detective officer. He witnessed the offence and managed to persuade the biker that reporting the offence was better than ripping the drivers head off.:)

[wazza]

My view is:



The driver of the car should be found GUILTY.



If he has a problem with not being able to turn his neck then another offence of "Not being in a position to have proper control" could be considered.

The driver of a car is RESPONSIBLE for the vehicle and the actions of his passengers. he has a duty of care to ensure his passengers alight the vehicle safely, he should at least have ensured that the nearside door was used. The childs safety being an important issue.

Danger was caused to the motorcyclist, the biker should also have taken more care in his position on the road and should have thought to himself that a door may open and should have accepted some responcibility.



So in summary I would say he was guilty by neglect and should not allow his passengers to get out of the car on the offside and his medical condition should be highlighted for advice.... he should perhaps have an extra long wide mirror to aid his rear vission.

A Danger was caused to an unseen biker, and he did have to take evaisive action.. the points to prove; opened door ;yes
in to path of a vehicle; yes
Danger caused: yes

the biker should have forseen a possible problem and took more care


I would find the car driver guilty but as for a punishment I would consider an or a minor fine only with costs (as he pleaded not guilty) I would not award penalty points. It matters not he was only stopping for a moment and was not staying, he allowed his passenger to get out on the offside and he should have paid more attention to checking the road.

[oldcodger]

So far we have only had replies from regulars. These sentencing exercises are open to everybody.

newbies are especially welcome - you don't have to answer all of it.

Isn't there anybody out there who thinks he is not guilty:eek:

[wazza]

Isn't there anybody out there who thinks he is not guilty


Nope :|

[Halski]

me neither - I agree with Wazza :)

[Shobhna]

I would say that the car driver is guilty since as a responsible adult it was his job to make sure that he did not open the door of his car or allow the door of his car to be opened so as to endanger another pedestrian or road user.


The biker should have anticipated just such a thing.

as for the fine, I don't know except that he should not be given points on his licence for this.

[7db]

Ok, if noone else will do it, I'll defend him to the best of my abilities without fear or favour... (but I expect a reputation click :D )



He's clearly NOT GUILTY. (to cheers from the public gallery)

I'll put forward four challenges to charge (conveniently labelled (i)(iv) for anyone to counter-challenge). I only need one challenge to succeed, to the level of providing reasonable doubt, for the conviction to fail.



The offence as written:-
Opening of doors
105. A person shall not open, or cause or permit to be opened, any door of a vehicle on a road so as to injure or endanger anyone.

Agreed facts:-
That the door was opened and no actual injury occured are agreed facts. The road was clear (apart from the bike).

Proof required for conviction:-
Proof is required, therefore that:-
A) He permitted the door to be opened so as to endanger someone
and
B) In the manner of its opening it actually did endangered someone.

We'll establish reasonable doubt on both of these pillars separately.


A) Did he permit the door to be opened so as to endanger someone?

His instruction to open the door was prefaced by an instruction not to endanger any one. In particular, not just an instruction not to endanger anyone, but a clear instruction to check behind the car for anyone coming and open the door ONLY IF it was clear -- something that an eight year old would be capable of understanding and following.

It is reasonable to assume that the eight-year-old would follow his father's instruction, and that an eight year old could faithfully check that nothing was coming.

In fact there was something coming when the child opened the door. So either
i) the child checked that nothing was coming and opened the door
or
ii) the child disobeyed his father's instruction.

In the case of i), the opening of the door is not done "so as to endanger anyone" -- indeed it is permitted solely on the basis that there is noone to endanger. So the father must be discharged.

In the case of ii), the father has clearly not permitted the opening of the door and so must be discharged.

From this is it clear that he did not "permit the door to be opened so as to endanger someone"


B) Was the manner of its opening such that it actually did endangered someone?

Lets argue both (either) that:-
iii) No danger was present for the rider
iv) Any danger was a result of his riding, not the door opening

iii) In fact, no danger was posed to the motorcyclist. No injury occured. He avoided the door (as he had avoided the car, and other parked cars). Indeed, the supposed danger was not even enough for him to fall off. He was inconvenienced in his progress along the road, quite possibly, but this is not endangered. That he was irascible and impatient is clear from his actions after the incidnet in adopting a violent attitude towards Mr Charles.

iv) Any danger to the rider was of his own making as he chose to overtake the vehicle without making proper checks and leaving sufficient clearance, and would have been foreseen by a reasonable and competent rider. Furthermore, it is clear that his prior position and speed that he was riding recklessly - for if he weren't he would have been visible to either Mr Charles or the child. We cannot find against Mr Charles simply because despite his caution, someone else has put themselves in a position of danger (we can't really blame him for breaking a bottle, which someone else has balanced precariously)*


I can't really see how the bench could find him anything other than not-guilty.







* Compare with my previous gun-in-mouth analogy.

[oldcodger]

In particular, not just an instruction not to endanger anyone, but a clear instruction to check behind the car for anyone coming and open the door ONLY IF it was clear -- something that an eight year old would be capable of understanding and following.

It is reasonable to assume that the eight-year-old would follow his father's instruction, and that an eight year old could faithfully check that nothing was coming.The age of criminal responsibility is 10 years.

[major9067]

Taking the individual elements of the incident there is certainly a prima facie case.

1. A person - in this case the driver.

2. Opens or permits to be opened - allows an 8 year old to perform the act.

3. Door of a vehicle

4. On a road

5. So as to cause injury/danger - seriously disturbed the poor motorcyclist.

Now taking all those together it certainly appears that all the elements of the offence are present so what, if any, are his defences.

The driver could hold that he instructed the child to check before opening the door.

The child is below the age of criminal responsibility and due to his tender years should not be considered by the driver as being sufficiently responsible to make a reliable assessment of road conditions. A prudent driver should therefore rely solely on his own judgement of the situation in determining if it is safe to open the door.

The driver has also stated that he made his own observations of the situation and concluded that it was safe. Now this might allow him a defence of "honest and mistaken belief of fact" (this was a defence in the UK before I left and I don't know if that has changed or not), unless we consider two factors. Firstly the driver's stiff neck and secondly the fact that he instructed the child to make his own check.

The driver was aware that he had a physical condition which, precluded him from making a full check of the area and should have taken this into consideration before he even chose the place to stop his vehicle. His action in instructing the child to check the area before opening the door could be construed as an indirect admission that he had been unable to make a full inspection of the area, otherwise he would surely have been confident enough to allow the child to alight from the vehicle on his say so.

I can't think of any other argument he could make, so, yes, guilty.

[7db]

The age of criminal responsibility is 10 years.

That's as maybe, but we are not trying the child, or testing whether he knew the difference between right or wrong, only whether in asking the child to check, the driver ensured that the door was not opened "so as to endanger".

This pillar of the defence does rest heavily on that phrase imcluding some notion of intent as well as simple cause.

[7db]

His action in instructing the child to check the area before opening the door could be construed as an indirect admission that he had been unable to make a full inspection of the area, otherwise he would surely have been confident enough to allow the child to alight from the vehicle on his say so.

Since I'm the only one who'll take on this ill-fated defence...


That he told the child to check cannot be taken as evidence of his failure to make a proper inspection -- any parent when teaching their child safe road behaviour would instruct them to "check it is clear".

[JP7]

If I might add my two-penceworth, this seems a very unfortunate scenario to be in, since effectively all it is is a mildly unfortunate event. It all seems like a bit of overkill since thankfully nobody was injured. But that's irrelevant since it's already at the point of being in court.

My judgement swings towards not guilty, since no intent to cause danger was made clear by either the driver or his son. Both made conscientious checks that there was no traffic behind and both evidently established (albeit wrongly) that there was nothing of danger. I don't think there can be any way of taking this fact away from them that they exhibited care in their actions. As far as they were concerned the road was clear.

An element of blame should also be passed to the motorcyclist - with any amount of riding experience he should be very sensitive to what other road users are doing. A double-parked vehicle with the engine running (and was an indicator flashing?) is an unpredictable hazard and should be approached with care. He should also have noted that there were occupants in the car and should be prepared for a door to be opened. It isn't clear how fast he was going, where he was positioned, whether his headlight was on or how close he was attempting to pass the vehicle.

Despite that, a lot of weight should be placed on the fact that the driver was perhaps unfit to drive due to his medical condition which hadn't been reported to the DVLA. This isn't a defence by any means, it actually incriminates him even more than the original "offence" if he's failed to notify the DVLA.

As far as the case is hand is concerned I would say that he should be found not guilty. In effect he did not permit his son to open the door causing danger, since he expressly told his son to only open the door if the road was clear.

I'll be interested to see the outcome...

[oldcodger]

I don't think there can be any way of taking this fact away from them that they exhibited care in their actions. As far as they were concerned the road was clear.The whole point is that the road was not clear. You have raised a point about them taking care. When the results are posted there will be something about that aspect.


An element of blame should also be passed to the motorcyclist - with any amount of riding experience he should be very sensitive to what other road users are doing. A double-parked vehicle with the engine running (and was an indicator flashing?) is an unpredictable hazard and should be approached with care. He should also have noted that there were occupants in the car and should be prepared for a door to be opened.I wouldn't disagree with your comments about the rider however there is nothing (as far as I am aware) that stops him riding as close as he wants to the car - there is a law that makes it an offence to open a car door in a manner that causes danger or injury.


Despite that, a lot of weight should be placed on the fact that the driver was perhaps unfit to drive due to his medical condition which hadn't been reported to the DVLA. This isn't a defence by any means, it actually incriminates him even more than the original "offence" if he's failed to notify the DVLA.I'm pleased at the number of people who have picked up on this.


I'll be interested to see the outcome...Just need to get my notes into a readable form - should be later today:)

[7db]

As his defence lawyer I think I'm going to advise him to make a run for it, as it's not looking good for him at the moment...



I wouldn't disagree with your comments about the rider however there is nothing (as far as I am aware) that stops him riding as close as he wants to the car
There must come a point where he is riding without due care and attention if he gets too close? However, as noted - none of this is a defence for Mr Charles.

[oldcodger]

This offence can be charged in a number of ways :-
Causing, opening or permitting.
The penalty is the same in all cases.
In this case it was charged as permitting.


The following advice was given by the Court Clerk :-

It can be committed by a driver or passenger.

When a child opens a door and a parent is in the car and knew the child was going to open the door the parent can be charged with permitting even if no express permission to open the door was given.
The CPS do not have to prove any damage or indeed that anyone was careless, merely that danger OR injury was caused


We found the following facts :-

Mr Charles gave permission to a child to open an offside door on a double parked car.

Although a safety warning was given, the child was below the age of criminal responsibility, did not hold a driving licence (obviously!!) and could not reasonably be expected to understand the possible consequences of failing to see an approaching vehicle or motorcycle. Its worth remembering that this 8 year old had arrived at a birthday party and was probably excited.

The biker was already on the wrong side of the road, due to the double parking, and was forced to swerve even further over to avoid a collision.

Mr Charles, by his own admission had not seen the biker.

The witness had seen the biker and stated that his speed was reasonable in the circumstances but was unable to give an estimate in MPH.

The witness stated that the biker had been riding “half a cars width out from the kerb until he commenced his overtaking”.

We found that the bikers driving did not contribute to the incident.

We found that being forced to swerve sharply to avoid an opening door posed a risk to the biker.

We found that danger was caused and therefore announced a guilty verdict.


How did we sentence?

The first thing is to look for aggravating factors. In the legal sense aggravating means factors that make the offence worse than the average.

The next thing is to look for mitigating factors. That’s the factors that make the offence less serious than the average.

The last thing is to consider any relevant features of the offender.

Aggravating factors :-
Double parking, therefore limiting road space.


Mitigating factors :-
No injury caused.

Features of the offender:-
Pleaded not guilty, so no discount off sentence.
Previous clean record.

Other things to consider :-
Mr Charles admission of being unable to check over his shoulder.

Thinking about the sentence
A very minor offence which would probably have attracted a £60 fixed penalty if seen by a traffic officer.
That was our view at least – perhaps some of the traffic cops could comment?

The Sentence
This offence only carries the possibility of a discharge or a fine. It does NOT carry endorsement or disqualification.

We fined him £90 and £35 costs.

The aftermath
Courts are REQUIRED to report to the DVLA any driver who suffers from a disease or disability which is likely to cause his driving to be a danger to the public.
We reported Mr Charles.

[7db]

Great problem and nicely laid out answer, OC, thanks.

[Hoon Devil]

Interesting reading, thanks OC!

[Halski]

The right result IMO....

[oldcodger]

The right result IMO....Mr Charles thought so too.

He arrived with his barrister and took the whole thing very seriously. He didn't seem surprised at the verdict and told the usher to pass on his thanks to the bench and clerk for the courteous way in which he had been treated.

It seems he just wanted his day in court:)

[7db]

I feel I can empathise with his barrister.

What a nice chap.

Was the motorcyclist done for his threatening behaviour following on from the incident? :)

[Shobhna]

Surely the motor cyclist was justified in losing his tember ----specially when he came pretty close to being involved in an accident thru no fault of his own. What if the biker had collided with the car door, he would have hurt the child as well as himself.

Oldcodger, does this mean that the owner of the car - Mr Charles - was guilty of permitting a car door to be opened in such a way as to endanger another road users life? or is there no such thing, only that he got fined.

I did not expect that he would get disqualified from driving for the offence.

[oldcodger]

Oldcodger, does this mean that the owner of the car - Mr Charles - was guilty of permitting a car door to be opened in such a way as to endanger another road users life? Its not a case of endangering life just a case of "causing danger". Danger is left to the bench to define.

Having heard evidence from all concerned we were of the view that the sudden swerve the biker was forced into constituted a danger.

Bear in mind that this is a very minor offence - it doesn't even carry points.

Its also worth pointing out that Mr Charles had no disagreement with the verdict or sentence. He left us happy that he had had his day in court.

I doubt if he will be so happy when he gets a letter from the DVLA ordering him to have a medical to determine his fitness (or otherwise) to drive.
It crossed our minds that his arthritis may well have been the reason the CPS decided to prosecute this case:)

[cochapman]

Thanks OC for another interesting insight into how the bench works. It's really nice to be able to point the whingers on other forums to threads like this, so they can see the thought and effort you JPs put into making sure justice is done.

[jamesedga]

A simularthing happened to me on my pushboke. During roadworeks in the rain on the way to school there were roadworks and i was undertaking the traffic jam until a child decides he is late for school and throws open the passanger door of his dads ford maverick.

I was'nt going slow as i had to drop the bike off at my dads before school. I braked hard and locked up but had no braking distance, not being able to swerve i mad last second decesion that the soft wet grass was nicer then the car door so i dropped myself onto that just before the bike opened his door a little bit more.

No injury to me, no apparant injury to the bike (sligtly buckled wheel i noticed later) and one rather damaged car door that took a lot pushing to unbend the hinge mechanisum and shut the door.