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APPLICATION FOR JUDICIAL REVIEW

STATEMENT OF TRUTH

 ACCOMPANYING FORM 86A AND EXHIBITS

 

R v Sehgal – Death by Dangerous Driving

Old Bailey, 2/11/98 – 6/11/98   T980878
Judge David Paget QC

THE DEFENDANT WAS FOUND GUILTY OF DEATH BY DANGEROUS DRIVING
 BY A UNANIMOUS JURY

 
1            BACKGROUND

a.  How Livia was caused to die

 

Livia Galli-Atkinson, 16, left home at 6.55pm to walk to her ballet class, some 800 yards away. By 7.05pm she had been struck by a Mercedes which drove on to the pavement where she was walking.

As the defendant drove up Windmill Hill, in Enfield, towards his home (2° gradient), for some unknown reason, he suddenly veered off the main road to his left, at the junction with Shirley Road (ref Section 1, police photo page 3). He hit the pavement. His speed was accepted to be no more than 30-mph. On first impact with the pavement, the vehicle side wheels (driver side), front and rear, were off the pavement, the insides of which were scraping against the kerb (ref Section 1, police photo, page 5). A wall stands along side the entire length of the pavement, to the left (ref Section 1, police photos, pages 7 & 9)

Having mounted the pavement, the defendant then went on to crash into a 2-metre high, height restriction post, which stood 12 metres on from his entry point (ref Section 1, police photos, pages 3 & 4). He demolished the post which gashed his radiator and caused his gearbox air cooler reservoir to puncture and to lose fluid.  This caused the car to progressively lose power (ref Judge’s Summing-up, Section 2, page 13, D-E), as it went up hill, until he came to a stop, 39.5 metres on from his point of entry to the pavement.  Police photos on pages 3 & 4 show the demolished post, and the fluid spillage, indicating the direction of the car’s travel on the pavement.

The defendant travelled over the post, causing sparks and noise (witnessed) by which time, he was fully four wheels on the pavement and heading for the Ross House wall (ref Section 1,police photos, pages  3 & 6).  He hit and injured an elderly pedestrian woman on his left, standing by the wall. He steered away from the wall and continued driving on the pavement, full vehicle body width.  He failed to brake at any time of impact, although he said to the police in his statement to them, that he had applied maximum brakes on first impact with the pavement (ref Section 2, Judge’s Summing-Up, pages 35/36). No brake markings were discovered. (Application Notice for Police Report in Section B at front of file).

At 31.5 metres on, from point of entry to the pavement, the defendant hit Livia, ran over her, and dragged her under his car for a further 8 metres. Having travelled over her, the vehicle failed.  The total distance travelled on the pavement was 39.5  metres.  Livia lay fatally injured.  The defendant  got out of his car, went to the rear and pulled Livia away.  He was stopped from doing any more by a witness, an oncoming jogger, behind Livia, who thought he would be hit next (ref Section 2, Judge’s Summing-Up, page 28). He was asked to switch his ignition off by another witness. Before doing this, the defendant drove the car further forward, one car length, to straighten it.  The car could not be moved any further due to mechanical failure (ref Section 1,police photo, page 7). 

The ambulance arrived at 7.17pm but despite medical attention, Livia died at 7.40pm from severe head injuries. On police arrival, the defendant confirmed himself to be the driver. The alcohol test proved negative.

Charged with Death by Dangerous Driving, under Section 1 of the Road Traffic Act 1988, the defendant pleaded not guilty to any charge and maintained this position, throughout. No apology or declaration of remorse was ever received by the family despite the defendant and his family living 800 metres away from the bereaved family and despite their children having attended the same primary school – indeed their son was a class mate of our eldest daughter.

 b.   Real time on the pavement – not 2 seconds but 5+ seconds

 

i) In his Summing -Up, Section 2, page 13, G, Judge Paget QC said that 39 metres was travelled by the car at 30 mph in little more than 2 seconds.  This is incorrect.  A car travelling at 30 mph, will cover 13.41 metres per second.  Therefore, the 39 metres would be covered in 2.95 seconds.  However, a car cannot travel 39 metres at 30 mph and come to a stop instantly, as it reaches its 39 metre point.  It has to decelerate before coming to a stop. This the Judge did recognise (ref Judge’s Summing-up, Section 2, page 13, D-F). However, never, when acknowledging time spent on the pavement by the driver, did the Judge direct the jury to take deceleration into account or any other impeding factors.

ii) The Judge said the driver was on the pavement a little over 2 seconds and he braked. Had loss of power, from loss of fluid, been taken into account, it would have been found that the actual time spent on the pavement was approximately 5 seconds, and this time gives substantial mitigation to the defendant,  (ref George Atkinson Report, investigated and verified by Stillwell Bell,  Section 3, pages 54-56).

iii) If the driver’s reaction time to the purported dazzle was 1.5 seconds (ref Judge’s Summing-up, Section 2, page 43), the distance travelled within this time would have to have been 20.12 metres. The reaction time and distance would have to have arisen prior to coming up to hitting the pavement – hence, the driver’s conviction that he had applied maximum brakes on hitting the kerb in forseeing danger.  Taking this into account, it should have been clear that the whole incident took 1.5 seconds, plus, at least the 5 seconds to drive the total distance of 59.62 metres (which is the sum total of 39.5 metres, on the pavement + 20.12 metres reaction distance). 

iv) Had the driver braked maximum as soon as he had hit the pavement at 30 mph, he would have stopped, at least, one metre beyond the height restriction post standing 12 metres on from the kerb.

v) The driver was travelling uphill and losing power due to hitting the post and the woman pedestrian. He was, naturally, losing speed, and as this occurred, his braking distance would have reduced, and as this reduced, he would not have required the distance he did travel, but much less. There were several opportunities to save life.  The point is that he did not brake. Section 1, police photo, page 8,shows a tread mark on the pavement, not a skid mark (as expected at maximum braking, (ref Section 2, Summing-up, page 36, F-H) or sign of brakingThe tread marks in the photo on page 8 are discussed in the Judge’s Summing-up, Section 2, page 41, C-D.

c. The aggravating factors   

Judget Paget QC said in his Sentencing Remarks (ref Section 4, page 62, D-F) that “not one of the aggravating features in the guideline case R v Boswell (1984) 6 Cr.App.R. (S) 257 (Section 8) was present, but almost everyone of the mitigating features is present”..   “ no deliberate conduct, prolonged driving, risk taking, or speed.”

  1. In his remarks to the police, the defendant said that he knew he was driving on the pavement and had he known there were pedestrians on it, he would have got off sooner – something the Judge never remarked at any point during the trial.  Contradictorily, the defendant alsosaid he remembered hitting the pole and the pedestrian (ref Judge’s Summing-up, Section 2, page 36,D).  The driver did not see any pedestrians.  His decision to take a risk was continuous.

 

  1. The time spent on the pavement was the crucial, focal point of the Defence angle, which the Judge adopted.  The Prosecution case was simple: here was a driver who was knowingly driving on the pavement and was avoiding contact with the wall, knowingly, by steering away from it (ref, fluid marks) and that therefore he was in control of the vehicle, but, yet, did nothing.  Again, the Judge did not remind the jury of the fact that the driver knew he was driving on the pavement either in his Summing-up or Sentencing Remarks (Sections 2 and 4).
  1. In his Summing-up (Section 2, pages 16/17/18), the Judge re-iterated repeatedly the criteria of death by dangerous driving (Section 22, page 197), “far below the standard expected”, being the operative phrase.  In his direction to the jury on Friday 6/11/98, (ref Section 6, page 72 C-B), the Judge began the morning by asking the Jury to consider again whether “that moment’s inattention fell far below what would be expected of a competent and careful driver”.  Given the driver’s ample opportunities to advert danger, the suggestion to the jury that the risk this driver had taken, even for a moment, might be negotiable, when the Judge had clearly failed to evaluate the aggravating features and  the analytical realities, was outrageous. His remarks were biased in favour of downgrading to lesser charges of either careless, inconsiderate, or even accidental driving.  The defendant was in-fact sentenced for careless driving. It seemed the Judge favoured the concept that the case was borderline (ref Judge’s Sentencing Remarks, Section 4, page 61, D-F).  He infers that the police were perhaps undecided because they had taken 5 months to bring the charge.  The police told the victim’s family that it looked like a charge of death by dangerous driving, two days after the death of their daughter. Furthermore, the police confirmed to the victim’s family on February 28 that they had sent to the CPS for advice, their preliminary report with the charge of death by dangerous driving.  It was said that as none was needed, the report should be forwarded without delay to the Branch Prosecutor, Mr David Levy who would take charge of the case.  There was no police or CPS hesitation in bringing the charge, only in so far as manslaughter. In fact, the police included in their final report to the CPS, that  manslaughter be considered (for ratification, the police report would have to be called for).

 

  1. With regard to the defendant’s right to silence (Summing-up, (Section 2, p37 G, page 38, A-G).  If there was nothing that the defendant could have added to what he had said to the police, what harm could there have been in repeating his statement for cross examination in the court? The decision not to testify was a last minute strategy, at the very point when the defendant was due to stand. This move by Defence confirmed the risk taking character of the defendant, to use the system to save himself.  The endorsements he had on his licence were reckoned to be minor, speeding and jumping red lights, yet, they too, pointed to a tendency to take risk.  Given that another risk had taken a life, the pattern of tendency for risk taking ought to have been relevant as an aggravating factor.
  1. Paragraph 1b in this statement sets out the actual length of time on the pavement. This piece of driving was indeed prolonged unless driving 39.5 metres on a pavement is to be cited, henceforth, as a legal norm.

 

 2 THE SENTENCE

In little over one hour, the Jury found the defendant guilty as charged, of having caused a death by dangerous driving, a homicide, for which the sentence is up to ten years maximum. That is, in consideration of the judge’ remarks, the jury, nevertheless, found the driver guilty of “a standard of driving that fell far below the standard expected of a competent and careful driver and that it would have been obvious to a competent and careful driver that driving in that way would be dangerous”. It was a unanimous verdict in accordance with that other requirement for it to be beyond all reasonable doubt and therefore not “borderline”.  

This was ludicrously and wholly disregarded by the Attorney General.

 

3 AUTHORITIES including Boswell (Section 7-16 pages 77-125)

Judge Paget QC said in his Sentencing Remarks, (Section 4 pages 2 and 5) that there are no comparable guideline cases. Most decided cases involve drink or speed and killings on a road or crossings. None bear the features in R v Sehgal of knowingly driving on a pavement with managed control over a prolonged distance leading to serious injury of one pedestrian and the death of another.  Nevertheless, there are elements even in Boswell and Attorney’s references 12/24 sent to us which are relevant (ref Section 9, pages 89,90,91 of the Attorney’s copies; more clearly pages 84,85):

 i) ..any driver that fails to realise that what he is doing at the wheel is creating a risk when to any ordinary person such risk would be obvious, or, even worse, sees the risk and nevertheless takes a chance on avoiding disaster and so kills, is prima facie, deserving of severe punishment.  In our view such punishment in many cases involve immediate loss of liberty... 

 ii) ..the duty of the court;“ to reflect the concern of Parliament and also, which is sometimes forgotten, to reflect the concern of the public about these matters.

 

iii) In Attorney General’s Ref 24, (Section 10, page 101 or 86), the inadequacy of Boswell as a guideline is recognised.  Given the Judge’s admission that this was “an exceptional case”….”there was no comparable case”, this would have been an opportunity for the Attorney General to seek new guidelines in the public interest with special reference to death caused on a pedestrian right of way – a pavement.

iv) Attorney General’s reference No 34 (1994) concerns a case where death is caused on a zebra crossing by a convicted dangerous driver. Despite the very strong mitigating circumstances, the court sustained the custodial sentence.  Livia was walking on a pavement.

  1. Other relevant guideline cases are:

 

R v Obermeir (1997) 2 Cr App R (S) 346 (Section 12)
R v Lunt (1998) 2 Cr App R (S) 348 (Section 13)
R v Wilsdon (1998) 2 Cr App R  (S) 361 (Section 14)

which entail elements of risk taking, bad driving, mitigation as valid as the defendant’s in our case and advanced the arguments put forward in Boswell in 1994.  The sentences given and upheld were custodial. The fatalities occurred on a road.  Livia was walking on a pavement.

 

4 A MATTER OF PUBLIC CONCERN – THE RIGHT TO LIFE

The Attorney General failed to give due consideration to the material before him. He failed to understand the public concern in this case and those of a traumatised family who had understood that the system had failed it where it ought to have worked: in the court.  Had his decision been transparent, there would not have been any reluctance to substantiate it in full. (ref Section 16, Correpondence, pages 126 - 166). He ignored the jury verdict. He did not care to investigate the very large number of English authorities (ref Section 7, pages 78/9, lists the several relevant authorities). He supported distorted understandings and condoned a sentence not for the offence but for careless driving.

 

i) The CPS and Prosecution Barrister were adamant that the case should go to appeal. (ref Section 17, Correspondence, page 179/80). In fact, the Crown Branch Prosecutor was visibly fuming at the sentence. Here was a case that had been judiciously prepared by the police, by the CPS, Wood Green and London Branches. The defendant had been found guilty of a serious charge for dangerous driving, brought before the Central Criminal Court, In the presence of the police in the Witness Service Room at the Bailey, immediately following the sentence on 6/11/99, they confirmed their support for immediate appeal. Then, it was learned that the  Prosecution Barrister had sought advice from a Senior Treasury Counsel, Mr Mark Dennis who was dealing with the Pinochet case at the time of our appeal. We were refused sight of the advices the Attorney General received on professional privilege grounds. In the event, he stated that the responsibility for refusing leave to appeal was his (ref Section 16, Correspondence, page 154).

 

ii) The Attorney General’s consistent reply to our questions as to why he did not refer to other more recent available authorities was that “there was nothing further that could be usefully added”. Our last letter of appeal to the Attorney General, John Morris, is dated 13 April 1999 with an acknowledged reply dated 26 May 1999 (ref Section 16, page 161). Two further appeals were sent to the new Attorney, Lord Williams, dated 20 August and 20 September 1999 (ref Section 16, pages 162-165).

 

iii) It is unclear what interests lie at the heart of decisions that are prepared to perpetuate a culture of tolerance for road traffic fatalities rather than to utilise the current sentencing guidelines (ref Section 22, page 197) which at least show a will by Parliament to deter dangerous drivers. It is unclear why the evidence of how the death of an innocent occurred, on a pavement, should be treated with such anecdotal contempt. It is clear that the kind of mischief that is being generated is against the public interest and this cannot be repeated often enough. Leniency towards dangerous drivers and convicted dangerous drivers is bound to undermine confidence in the criminal justice system and in the judiciary, because they legalise the taking of life. Livia Galli-Atkinson, 16,  was for some reason expendable but she is an example of many who have been at the raw end of Justice.  Section 21 highlights  just a few reported cases and evidence of professional, parliamentary, media and public concern can be found in the following sections:

 

Section 17, pages 177/8
Section 19, pages 184-187
Section 20, page 189
Section 21, page 190, 193, 194

iv) This year the rulings of three courts turned around the concept that “one off” pieces of dangerous driving, resulting in death, such as briefly dozing off at the wheel; sometimes failing to notice a pedestrian on a crossing (Boswell 1994) is socially acceptable. 

·In R v Simmonds, the Cr App on 22/1/99, (Section 15, pages 119-124)
stated that a court was entitled to bear a death in mind in a case of careless driving

·In both R v Merryweather, Cr App, Times Law Report 7/9/99, (Section 25, page 236), and in
·R v O’Brien, Old Bailey, Evening Standard 11/99 (Section 18, page 183)

the judgment recognised that the consequence of a dangerous piece of driving, ie the death, is the central issue, and that, therefore, a custodial sentence would be proper. 

Again, it should be noted that none of these deaths were caused to occur on a pavement.  

If the Attorney General fails in his duty to give leave to appeal, where it is so clearly appropriate, then he is not carrying out his duty to protect and reflect the public interest as intended by Parliament. During an eighteen month period of his office, 13 out of 19 cases of convicted dangerous driving  (ref Section 20, page 188/9), were denied leave to appeal. Ours is one of them.  
 
v) The two most obvious aggravating features of the case was acknowledged risk taking on a pedestrian’s right of way and the calculated desire to deflect and duck responsibility for a death. The system helped a guilty man and in light of the evidence and verdict, it is a denial of natural justice, and above all, a dangerous precedent.

vi) The Attorney General was wrong to refuse leave to appeal bearing in mind there is no comparable guideline case. Here was an opportunity to set a standard in line with the urgent need to protect the public from dangerous drivers, whatever their class, background, religion or charitable good works.  A paedophile is rightly sent to prison for committing offences against a child.  A rapist is rightly sent to prison for raping a wife or a stranger. This is because the victim matters.  Should any of those victims be killed at the hands of a dangerous driver, they suddenly do not. Not frequently enough, anyway. Certainly, Livia’s premature death did not matter to either the court or to the Attorney General.  Unless his decision is quashed or a judgment made in favour of a public admittance that his decision was flawed and wrongly taken, the serving guideline will remain that a driver can drive on a pavement for 39 or 39.5 metres, and kill without fearing a proper deterrent.

vii) Where long term re-education programmes in road safety are valuable, vulnerable road users and pedestrians walking on a pavement must be protected, in the short term.  What confidence in the criminal justice system and the judiciary can there be, otherwise?

 

We, the undersigned, affirm this statement to be true to the best of our knowledge

 

Applicants signatures: Date:


………………………………………………………. ……………………………….
George K Atkinson

 

………………………………………………………. ………………………………..
Giulietta Galli-Atkinson


 

 

AN APPEAL TO THE COURT
BEFORE MR JUSTICE OWEN, ROYAL COURTS OF JUSTICE

7 FEBRUARY 2000, 10.30 AM, COURT 2

The purpose of Judicial Review is to evaluate the lawfulness of a process.  We know we cannot change the sentence passed on 6 November ‘98, however, unjust, and however unjustly, it was upheld on 3 December 98 by the Attorney General.

It will be appreciated that this is the first time, since Attorney John Morris’ decision, that we have been granted an opportunity to state our case in person.

My husband has dealt with the points of law which we consider were not applied and should have been.  Our conclusion addresses the impact of injustice which while you may feel is irrelevant to this court, I would, respectfully, submit, that we would not be here arguing our case, if it were not for that.  We dedicate this to our daughter Livia whose passion for fairness and determination to succeed, drives us to plead her cause.  We also dedicate it to the many other victims of dangerous drivers and injustice. We hope that you will carry the message with you.

It has been said that the whole idea of the law in the West is to remove the element of emotion from crime and punishment and that families and victims are the last people who can see things straight when it comes to imposing sentences in court.  The problem is that while courts came into being in order to forestall family feuds and outlaw mob lynchings, we have a situation in Britain, today, particularly in regard to road traffic fatalities, were the pendulum has swung so far in favour of judgments for the defendants, that it is safe to say that a new breed of licenced killers is being spawned to walk our streets, free and easy, identifiable only to those they’ve victimised.  The fact is that on average the guilty of motor killings are served with a community service, points and/or a fine and a mere temporary ban on driving.  While it is considered unwise for families of primary victims to become concerned and involved in a criminal justice process which increasingly fails them, the grief of such families becomes compounded  when expected to accept verdicts which betray their values, their sentiments and their dead.

Under any circumstance, the loss of a loved one is painful.  When the loss is of a much loved child and sister, caused by unforeseen, violent circumstances, the experience of pain is excruciatingly traumatic and tragic.

Our society is regulated by laws to keep us in check, which educate our limits so that, to a useful degree, we can entrust ourselves to each other.  We rely on reason, goodwill, good judgement.  We repudiate anti-social behaviour which will risk, injure or annihilate life – one life.  They are pre requisites to civilised conduct and its progress.  They are applicable to all of us, including motorists – to those drivers who can cause unlimited harm by irresponsible use of their vehicle, a killing machine and as dangerous a weapon as any other.

The gravest, ultimate harm was done to Livia.  She was killed while entrusting herself to the safety of a pavement, a legal right of way of a pedestrian.  While provoking no situation, she entrusted herself to the reason and competence of oncoming motorists on the road, adjacent to her pathway. Livia’s reliance and trust was misplaced.  All Sehgal could offer was “if I had known there were pedestrians on it, I would have got off sooner!”

So, defendants present the value of their life.  They present the face of remorse, past good character, service to society.  They flag up the first time offence plea – all the self-serving mitigating circumstances of credit, in order to abscond from the responsibility of having taken someone else’s life by their own action; in order to seek pardon, understanding, commiseration, in their fear that their freedom and their lifestyle is threatened, that their families will be hurt and damaged.  But, how does one judge the notion of good citizenship when a young girl is dragged to her death, in the manner Livia was, by a proven dangerous driver who failed in his duty of care in a moment that really mattered, in a life- saving moment?

We should all remember that death is not choosy – and it hurts most when it strikes by surprise.  Each life has value and it is no less true of each life driven underground.  Each life driven underground, in the manner of Livia, is an assault, a disfigurement, a rape.  Each offender, whose mitigating circumstances sway to leniency, cocks his snook at the value of someone else’s life.  Authorities that tolerate motor killings in proven dangerous circumstances, on the principle of there but for the Grace of God, go I, are short sightedly complacent, unjustly partial and betray the innocent, perhaps, one of their own, one day.

Livia’s death is not a banality. Had authorities carried out their duty to implement the current legal provisions and penalties, prior to 12 January 1998, Livia might still be alive today.  138 children killed in 1997 might still be alive today.  Had the Attorney General wielded his discretionary power more rationally by examining the facts and referring to the several guideline cases and references available to him, we might not be having to struggle to be heard, to struggle for Justice. And we are not alone. Public outcry is on the increase as is parliamentary concern.  The Attorney General was aware of this

A/ because it is within his Government’s manifesto to address road safety and unduly lenient sentences
B/ because several debates have taken place in parliament addressing unduly lenient sentences and one, at least prior to his decision on Livia that had been brought by Mrs Patricia Hewitt on 13/5/98 on behalf of her constituents fighting for justice.

It is irrational for him to say on February 4, 1999, in Parliament, that he is aware of the House’s concern and that he is addressing it together with the Home Secretary, and then,  when he has the opportunity to do so, he wholly disregards his own statement, given a jury verdict that unwaveringly pronounced “GUILTY”.

Such verdicts are meaningless if the commensurate deterrent is not attached to the crime to signal to society zero tolerance for dangerous drivers.  And if the degree of criminality is in dispute, in Livia’s case – are we too say that the driving on a pavement that causes serious injury and death is of minor blame or importance?

I don’t think so. If rationality were not an issue, we should not be here, today, arguing against the sanction, legitimization, of Livia’s killing.

The several Court of Appeal judgments, including Neaven, Merryweather, and Casson and O’Brien in lesser courts, concluded that loss of liberty could only be appropriate, when loss of life had been caused by one’s own conduct of driving. This is not an awakening. It is just that perceptions have been allowed to slip.  This has been unmerited, irresponsible, anti social and dangerously apathetic.  The Attorney’s decision on Livia emanated from that easy come, easy go, loss of principle and rationality into which Livia was ensnared

We plea for leave to go forward to a Court of Appeal to quash his wrong decision, to quash his acquiescence to a wrong, to restore confidence in the legal process and the rule of law. It is a matter of common sense and should we begin to apply it, today, then perhaps, authorities will be entitled to teach morality to the common man.


 

 

BEFORE LORD JUSTICES SCHIEMANN & BROWN
CRT 3, ROYAL COURTS OF JUSTICE, 10.30 AM

10 March 2000

 

INTRODUCTION

Livia Galli- Atkinson, our daughter, was killed whilst walking on a pavement, a legal right of way for pedestrians, by a driver of a car who mounted the pavement and knowingly drove 39.5 metres, injuring and hospitalising an elderly pedestrian, hitting, running over and dragging Livia under his car. Livia was fatally injured and died 40 minutes after the collision with her.

The driver was charged with death by dangerous driving and was found guilty unanimously, in little over one hour, at the Old Bailey. He was fined £2000 with costs, banned for five years, and had his licence endorsed with 10 penalty points.

The Prosecution Barrister, in agreement with the Branch Prosecutor of the CPS, Wood Green, filed for appeal on the grounds that the sentence was unduly lenient. The Attorney General did not think that the sentence was unduly lenient and did not refer the case to the Court of Appeal.

We appeal to this court for judicial review against the irrational decision taken by the Attorney General not to appeal against the unduly lenient sentence in the Case of R v Sehgal.  We will clearly show that the factors involved in the decision making process, were irrelevant and that factors that should have been considered, were ignored. To do so we will have to revisit the case of R v Sehgal, R v Boswell and other relevant case law in support of the grounds for our appeal to the court.

The Case of R v Sehgal

1            BACKGROUND

a. How Livia was caused to die

Livia Galli-Atkinson, 16, left home at 6.55pm to walk to her ballet class, some 800 yards away. By 7.05pm she had been struck by a Mercedes which drove on to the pavement where she was walking.
As the defendant drove up Windmill Hill, in Enfield, towards his home (2° gradient), he suddenly veered off the main road to his left (the driver claimed a car came onto his side of the road and dazzled him, (Police Report File section A, p7 (10.2), at the junction with Shirley Road and Windmill Hill (ref Section 1, police photo p. 3).

b. Driver’s Path

He hit the pavement. His speed was accepted to be no more than 30-mph. On first impact with the pavement, the vehicle side wheels (driver side), front and rear, were off the pavement, the insides of which were scraping against the kerb (ref Section 1, police photo, page 6). A wall stands along side the entire length of the pavement, to the left (ref Section 1, police photos, pages 7 & 9).  Having mounted the pavement, the defendant then went on to crash into a 2-metre high, height restriction post, which stood 12 metres on from his entry point (ref Section 1, police photos, pages 3 & 4). He demolished the post which gashed his radiator and caused his gearbox air cooler reservoir to puncture and to lose fluid.  This caused the car to progressively lose power, as it went up hill, until he came to a stop, 39.5 metres on from his point of entry to the pavement.  Police photo section 1 page 4 show the demolished post, and the fluid spillage, indicating the direction of the car’s travel on the pavement.

c. Driver Impacts
The defendant travelled over the post, causing sparks and noise (witnessed) by which time, he was fully four wheels on the pavement and heading for the Ross House wall (ref Section 1,police photos, pages 3 & 6).  He hit and injured an elderly pedestrian woman on his left, standing by the wall. He steered away from the wall and continued driving on the pavement, full vehicle body width. At 31.5 metres on, from point of entry to the pavement, the defendant hit Livia, ran over her, and dragged her under his car for a further 8 metres. Having travelled over her, the vehicle failed. The total distance travelled on the pavement was 39.5 metres. He failed to apply emergency brakes at any time whilst on the pavement (ref Police Report Section A, page 8, 11.6), although he said to the police in his statement to them, that he had applied maximum brakes once on the pavement.  No brake markings were discovered. Livia lay fatally injured. The defendant got out of his car, went to the rear and pulled Livia away.  He was stopped from doing any more by a witness, an oncoming jogger, behind Livia, who thought he would be hit next (ref Section 2, Judge’s Summing-Up, page 28 E-F). He was asked to switch his ignition off by another witness. Before doing this, the defendant drove the car further forward, one car length, to straighten it.  The car could not be moved any further due to mechanical failure (ref Section 1,police photo, page 7). 
The ambulance arrived at 7.17pm but despite medical attention, Livia died at 7.40pm from severe head injuries. On police arrival, the defendant confirmed himself to be the driver. The alcohol test proved negative.

d. Charged
Charged with Death by Dangerous Driving, under Section 1 of the Road Traffic Act 1988
, the defendant pleaded not guilty to all charges and maintained this position, throughout the judicial process.


e. Reason for accident
Reference Police Report and Transcript (Section E, page 83, tape counter 29,08 to 29.19).  NB this was an observation that Mr Sehgal made prior to the collisions. In Section D, page 43-44 are comments in relation to number of vehicles on the road.  Adam Davis was confident that no other vehicles were behind him on Windmill Hill at the time of the impact.  This is because he was able to do a U-turn, 50 yards further on down the hill.  Adam Davis went on to state that he did not remember any other vehicle in front of him from the moment he passed under the train bridge through to the traffic lights.  He believed his was the only vehicle going down Windmill Hill at the time of the impact.  In addition, he could not remember any vehicles being parked anywhere on Windmill Hill.  He further stated that he did not need to flash his headlamps or sound his horn.

Kelly Muntzer who was a passenger in the car that Adam was driving states in Section D, page 46, that “as we were travelling down Windmill Hill, I saw no vehicles in front of us nor when I turned round did I see any behind us.  Nor did we have any occasion to use our horn, headlamps or cross over the centre line. 
Robin Gutteridge, a driver witness, Section D, page 48, states that he was driving 20 yards behind Mr Sehgal and from his position he was sure that there was nothing untoward occurring to the offside of the Mercedes, on the opposite carriage way, nor to the front, as far as he could see.  At no time during this part, did he see an additional lights from the rear of the Mercedes, apart from the rear position lights which were both on, when it mounted the pavement.  Mr Gutteridge pulled over just past Shirley Road and stopped and this was before the height restriction post.  Why did Mr Sehgal find it necessary to travel on the pavement for 39.5 metres?  Why did he not pull in, too
.

David Littleton’s statement is in Section D, page 50-51.  He stated that after the car mounted the pavement, he described the speed of the car as less than 30 mph and that he also had good vision of the opposite carriage way and ahead, in his own lane.  He also reported nothing untoward occurring in these areas.

Jackie Edwards, Section D, page 56.  She stated that as she looked down the road, she saw an old fashioned Mercedes, with all four wheels on the pavement, travelling up the hill, towards her.  The car did not appear to be driving erratically, but normally. 

Mr Sehgal was unable to give a description of the vehicle coming towards him, the speed that it was doing or estimate how far in front of him this purported vehicle was (see page 98, tape counter 6.58; page 99, counter time 7.29 to 9.18; page 100, counter time 9.25 to 9.46; 10.02 to 10.31.

None of the 3 driver witnesses and Kelly Munzter, the passenger saw a car on Sehgal’s side of the road.  In addition, the traffic could only be described as extremely light as Adam and Kelly were in the only vehicle travelling down the hill at the time of the collision.  In short, Mr Sehgal’s account of what caused him to mount the pavement was not corroborated by the witnesses and he because he declined to testify, Mr Sehgal’s  purported dazzle could not be tested in open court.

f. Reaction time
If the driver’s reaction time to the purported dazzle was 1.5 seconds (ref Judge’s Summing-up, Section 2, page 43 A, page 44, B), the distance travelled within this time would have to have been 20.12 metres. The reaction time and distance would have to have arisen prior to coming up to hitting the pavement – hence, the driver’s conviction that he had applied maximum brakes prior to hitting the pavement in forseeing danger.  Taking this into account, it should have been clear that the whole incident took 1.5 seconds, plus, at least the 5 seconds to drive the total distance of 59.62 metres (which is the sum total of 39.5 metres, on the pavement + 20.12 metres reaction distance).
Additionally, he said he braked, once on the pavement, therefore, he would have had to react to this and in effect this puts his reaction to the dazzle at least 30 metres down the road from his point of entry on to the pavement.  However, as will be seen when we look at braking, this element was disregarded.

g. Real time on the pavement – not 2 seconds but 5+ seconds

i) In his Summing -Up, Section 2, page 13, G, Judge Paget QC said that 39 metres was travelled by the car at 30 mph in little more than 2 seconds (also refer to section 6 pp71 B-G).  This is incorrect.  A car travelling at 30 mph, will cover 13.41 metres per second.  Therefore, the 39 metres would be covered in 2.95 seconds.  However, a car cannot travel 39 metres at 30 mph and come to a stop instantly, as it reaches its 39 metre point.  It has to decelerate before coming to a stop. This, the Judge did recognise (ref Judge’s Summing-up, Section 2, page 13, D-F and again on pp 42 A-B ). However, never, when acknowledging time spent on the pavement by the driver, did the Judge direct the jury to take deceleration into account or any other impeding factors.
Had loss of power, been taken into account, it would have been found that the actual time spent on the pavement was approximately 5 seconds, and this time gives substantial mitigation to the defendant,  (ref George Atkinson Report, investigated and verified by Stillwell Bell, Section 3, pages 54-56; additional reference Michael Sampson’s credentials).   Section E of the Police Investigator’s report, page 94, counter time 30.29 to page 95, counter time 2.17 – briefly, the police recognised that there was approximately 4 seconds of travel between Sehgal hitting the post and coming to a stop.
He was unable to make any meaningful comment on this.

h. BRAKING
i) Had the driver braked maximum as soon as he had hit the pavement at 30 mph, he would have stopped, at least one metre beyond the height restriction post standing 12 metres on from the kerb. It is not possible to contemplate any kind of braking taking place on the pavement under the circumstances of this case, other than of emergency type. 
ii)      The driver was travelling uphill and losing power due to hitting the post. As a result of this loss of power his speed was reducing and therefore his braking distance would have reduced giving him several opportunities to save life.  It was estimated in the Time and Motion Report that the estimated speed at which the driver hit Livia, was 16 mph.  The reason the Government is asking local authorities to introduce 20 mph zones around schools is because if you are hit by a car at 20 mph, there is a 95% chance of survival.  The point is that his impact speed was so low that rather than knocking Livia off and away from the car, he took her under and dragged her along. (Ref Police Report Section B, page 16, pedestrian and vehicle impact).  Sehgal did not brake. Main File Section 1, police photo, page 8,shows a tread mark on the pavement estimated at 23 metres from the point of entry.  This indicates the wheels are still turning and braking is not taking place. (ref Section 2, Summing-up, page 36, F-H).  The tread marks in the photo on page 8 are discussed in the Judge’s Summing-up, Section 2, page 41, C-D.

2 THE SENTENCE
In little over one hour, the Jury found the defendant guilty as charged, of having caused a death by dangerous driving, a homicide, for which the sentence is up to ten years maximum. That is, in consideration of the judge’ remarks, the jury, nevertheless, found the driver guilty of “a standard of driving that fell FAR below the standard expected of a competent and careful driver and that it would have been obvious to a competent and careful driver that driving in that way would be dangerous”. It was a unanimous verdict in accordance with that other requirement for it to be beyond all reasonable doubt and therefore not “borderline”.

Judge Paget (section 4 pp 61 E-F) agreed with the defence counsel’s perception that this was a borderline case of dangerous driving it is apparent that when sentencing he had forgotten about the death and more importantly about the jury’s verdict. Judge Paget again quotes that a car travelling at 30mph can cover 39m in a little over 2 seconds and again identifies that the car was losing power from the moment it hit the height restriction post but he now concludes that the car also came to halt due to braking. If this was the case then the driver and car were on the pavement longer than 5 seconds.(Sentencing Remarks, Section 4  pp  60 [a] and 61, mispaginated).  It’s strange that two hours prior to this sentencing remark, he said in his direction to the jury that the car travelled 27.5 metres in 2.05 seconds.

Judget Paget said in his Sentencing remarks that he had looked at R V Boswell and had concluded that not one of the aggravating features in its guidelines was present here but almost all of the mitigating features were. I refer to R v Boswell (Section 9), in particular page 85, quote Lord Lane…..””
However, in  R v Merryweather, CA, Times Law Report, 7/9/99, section 25, p236 it says……. The judge declared that there is no comparable case of causing death by momentary dangerous driving (ref Attorney General Ref No 34, 1994, section 11 pp 106, refer to case).


The length of a zebra crossing, .as a car crosses over it, is 2.4 metres (8 feet).  In travelling 39 metres, Sehgal crossed, in effect, approximately 16 zebra crossings with pedestrians on them.  The point is did Lord Lane envisage travelling on a pavement an aggravating feature as he clearly indicated that knocking down a pedestrian on a pedestrian crossing, under the circumstances of the Vano case, is?  It is suggested that Boswell is open ended to give lee way to Judges to introduce aggravating features as and when they occur.  Otherwise, Boswell does not protect anyone other than from drunk drivers or speed merchants.

The fact is the jury found Sehgal guilty of Death by Dangerous Driving, and if it was momentary inattention, he would have been found not guilty of Death by Dangerous Driving, but guilty of a lesser charge.
In addition, Judge Paget measured Sehgal’s  remorse by assessing his demeanour in court -  the defendant had declined to give evidence or to plead guilty for any charge.  What quality of remorse was being accepted?
The Judge ignores his jury and passes a sentence for UNDUE CARE AND ATTENTION (R v  Ramstead The Times Law Report 03/12/98). In Ramstead, Lords Brown-Wilkinson, Styn, Hoffman, Woodborough and Millet stated that a jury’s attributes are of such paramount importance in order to ensure the integrity of the system that their verdicts, as formal acts, had to be complied with in order to ensure the integrity of the system.


The sentence passed by the judge fell outside the range of sentences a judge could reasonably have considered to be appropriate. In fact, he sentenced the driver for without due care and attention and the fine was not even at the top of the range of penalties available for this charge. It should be noted that in the Magistrate’s Courts, the entry point for a conviction of dangerous driving, is community service. This was clearly not a case of momentary inattention with minimal consequences, but far more serious. Even allowing for the fact that the original cause for the loss of control of the vehicle might have been Sehgal falling asleep at the wheel, there were several moments at which he ought to have been alerted to the loss of control.  If he did fall asleep and lose control - having driven that evening for only a short time, prior to such loss of control - Sehgal’s conduct in driving, (when he must have known he was very tired and of the potential consequences, if tiredness did overcome him), was highly relevant to sentence.

3. THE ATTORNEY GENERAL
The Attorney General, by virtue of section 36 of the Criminal Justice Act 1988, has the discretionary power to deal with unduly lenient sentences. However, where a public body is entrusted with a discretionary power, the statute will often give little guidance as to the factors which it should consider in taking its decisions. I refer to Associated Provincial Picture Houses Ltd v Wednesbury Corporation {1948} 1 KB 223,  reference case on IRRATIONALITY or sometimes referred to as Wednesbury unreasonableness, (pp 943 Constitutional and Administrative Law by Hilaire and Barnett). In brief, Lord Greene MR directed that Public Authorities with discretionary power must direct themselves properly in Law. And when exercising that discretion must only apply them selves to the relevant facts and disregard the irrelevant facts. Lord Greene goes on to say amongst other things that notwithstanding the lawfulness in the manner which they have reached their decision, if the decision is so unreasonable, that no reasonable authority would have come to it, the courts can intervene.
The clear implication of this ruling is that the public body must act in the best interests of the public.

I also wish to cite R v Inner London Education Auth. ex parte Westminster City Council {1986} 1 WLR 28 (pp 604-605 Constitutional and Administrative Law) where Glidewell declared amongst other things that any authority in exercising power fails to take into account relevant factors and/or taking into account irrelevant factors, the exercise of that power, is, normally, at least  bad.


I refer you, now,  to section 16 pp 139 which is the correspondence from the AG and states…………………….!!  The judge during his sentencing remarks said that this was a borderline case. This was irrelevant but it influenced the sentence passed by him. The most relevant factor ignored by Judge Paget and which any reasonable person would have considered appropriate was the verdict of the jury. A unanimous GUILTY Verdict (TWELVE – 0). He also ignored the fact that the defendant pleaded not guilty to All CHARGES at every opportunity. He ignored the fact that the driver was driving knowingly on the pavement (Police Report Section E, page, 93 counter time 27.39 – page 94, 20.06 and also Section A,  page 7, 10.7 and 10.8).  The Judge totally misrepresented the time that the defendant was on the pavement.  He also used irrelevant guideline cases when he had Obermeir in Archbold.

The Att Gen  in the case of R v Sehgal referred to three cases; the judge looked at the same cases and claimed to have looked at others; I will deal firstly with AG references 14 and 24.  These are in section10.

In correspondence held in section 16 pp139 and 144, specifically page 144, the AG  says that he did not allow irrelevant factors to affect his judgment. But both these AG references, 14 & 24, are utterly irrelevant in relation to the death of Livia because

  1. Both are drink related; in one case speed was also involved.
  2. Both of the drivers were charged and convicted of careless driving and having consumed alcohol, above the prescribed limits.
  3. The deaths did not involve pedestrians nor were pavement related.
  4. Both cases were judged prior to the amendment to the Criminal Justice Act 1993 which took effect on the 16th OF AUGUST 1993 (these changes involved increasing the sentence for death by dangerous driving from five to 10 years). 

The more relevant authorities in relation to Livia’s death would have been:
R v Obermeir (1997) 2 Cr App R(S) 346  (section 12 pp 111-113) (IN ARCHBOLD)
R v Lunt (1998) 2 Cr App R (S) 361         (section 13 pp 114-115)
R v Wilsdon (1998) 2 Cr App R (s) 361  (section 14 pp 116-118)

In fact in Archbold page 2495, in reference to death by dangerous driving, Shepherd and Wernet (cited by both Judge & AG( was used only to show that the Criminal Justice Act 1988 had been amended to reflect an increase of sentence from 5 – 10 years for death by dangerous driving.  S & W also states that R v Boswell was still a valid guideline case.  The question to ask again, remembering the open endedness of R v Boswell, would it be irrational to assume that a death on a pavement such as Livia’s was not an aggravating feature.

Obermeir, Lunt and Wilsdon deal with instances where the defendants were of good character had good driving records and where there were no aggravating features. Obermeir pleaded guilty and received 2 years reduced to 3months on appeal. Lunt and Wilsdon both pleaded not guilty but were convicted of D by DD and were sentenced 8 months and 12 months respectively. Both appealed but custodial sentences were not altered. In the case of Wilsdon the court highlighted the considerable danger of knowingly taking risks at the expense of other road users.


The relevant factors of AG reference No.34 (1995) 16 Cr.App.(s), already discussed,  (the case of Vano (section 11 pp 106-110) where a driver fails to notice a child pedestrian on a pedestrian crossing and  is convicted of D by DD and sentenced to 28 days in custody). The AG considered that the sentence was unduly lenient and appealed.  The court ruled amongst other things that the major factor in this case was the driver’s failure to look ahead and pay attention in a built up area when driving in circumstances where the public could be endangered by a loss of attention. The sentence passed in the court’s view was not merely lenient but unduly lenient. Even bearing in mind that the maximum sentence had not at this time been increased and there were no aggravating features of drink, or racing or deliberate selfishness. This was a piece of driving which was dangerous to a substantial degree and required to be marked by a sentence of more than 28 days. The court considered that an appropriate custodial sentence, at the time of trial, would have been 6 months imprisonment on a contested case. Had there been a plea of guilty, a discount would have been made for that.

In the case of R v Neaven CA 23/7/99, (Blue File, section C pp10-11).  Mr Neaven was appealing against the sentence of 12 months imprisonment for D by DD. The relevant factors to our case are that Neaven was of impeccable character and had an exemplary driving record. The court ruled that he should have had enough foresight to see that his action in carrying out this maneuver was a danger to other road users. Whilst there was sympathy for Neaven as a result of the fatal consequences, there needed to also to be some consideration to bereaved family. It was submitted by the counsel for Neaven that there had been an error of judgment on Neaven's part. The court ruled that such an error was one that he was not entitled to make.

Quite clearly the Attorney decision rested on the irrelevant understanding of Judge Paget without considering the relevant factors.

Parliamentary and Public Concern
In the Blue File, section E, page 28, there is the full text of a debate brought on 13/5/98 by Mrs Patricia Hewitt, MP, on behalf of her constituents whose daughter was killed on a pavement by a dangerous driver. This concern was expressed prior to the Attorney General’s decision on Livia’s case.

Following his decision, a further debate was brought on the 20/1/99 by Mr Stephen Twigg (Main File Section 19, pp 184-187).  Mr John Randall also took part in this debate because the 15 yr old son of one of his constituents, was also killed while walking on a pavement.  The driver was found guilty of ddd but was given community service.  The Attorney General did not consider the sentence unduly lenient.  This debate received cross party support in the form of Alan Clark, Malcolm Bruce, Andrew Miller.

On the 4 February 1999, the Attorney General said to Mr Mackinley in Parliament, amongst other things relating to sentencing (Blue File, Section E, p21): 
“ I share my Honourable Friend’s concern which is manifest in the House about sentences for causing death by dangerous driving”


During the past two years, we have been drawn into righting the wrong that has been done.  What would we have to show as parents, if we did not?   Along the way we have met many bereaved people in similar desperate situations; we’ve met and written to government officials and we have the solid support of our MP and other cross party MPs acting on behalf of their own constituents caught up in the same scenario.  Our concern we found has been all of these people’s.  Government is finally responding and has responded both by introducing new road safety regulations and is looking to toughen sentencing policy for dangerous driving in response to public outrage.  We must stress that all of this has not been borne out of a desire to clamour and campaign.  It is borne out of misery and disbelief at such goings on.

We still grieve for a much loved daughter and sister that was killed by a dangerous driver who was allowed to abscond his responsibility and was sustained in his lie.  This man could have saved life. He didn’t.  He could have owned up.  He didn’t.  And the system was happy with that - on our behalf.  


CONCLUSION
To conclude: weight was given to irrelevant factors, where relevant factors were not considered. The sentence given, therefore, fell outside the range of sentences which might reasonably have been applied in this case.  Because the Attorney General was privy to the sentencing remarks, and was made aware of their shortcomings, he should have questioned the inconsistency between the jury’s verdict and the application of an unduly lenient sentence to a proven section 1 offence.  He should have looked more closely at the very large number of English Court of Appeal sentencing authorities, more relevant than the ones considered by the AG.  We find the AG’s decision difficult to understand or justify: 

1/ It is irrational to ask a jury to bring a decision of guilt, beyond all reasonable doubt, and then ignore them when they do

2/ It is irrational to accept a sentence applicable to a charge of without due care and attention, when he was found guilty of death by dangerous driving

3/ It is irrational to consider irrelevant English Court of Appeal Sentencing Authorities  which relate to drink & speed –

4/ It is irrational to ignore relevant and readily available English Court of Appeal Authorities:      Obermier;   Lunt;  Wilsdon;  Attorney Ref NO 34, 1994

5/ It is irrational for the AG not to put forward a case to the CA in relation to sentencing, when a Judge has said that there is no comparable case, who then applies irrelevant factors to create his guideline.

6/ it is irrational and hypocritical to express concern in Parliament for unduly lenient sentences for causing death by dangerous driving and lends little credence to his intent to take the matter forward.

7/ it is irrational to be a member of the executive which has a policy of easing traffic congestion and has a strategy to persuade parents on the school run to encourage their children to use public transport and/or pedestrian crossings and pavements, when there is no law to protect them from dangerous drivers such, as the man who killed Livia.  What reflection of concern by the courts and Government was it when sentenced was passed on 6/11/98  - that killing with your vehicle is the easiest form of murder that you can get away with?

We did entrust our daughter to a pavement on a 800 yard walk and she was killed without having contributed to the situation. She had no part in the decision making process and had absolute right of way but the legal preferences have been placed, todate, with her killer’s lie.   

It is not a question of banging up individuals out of vindictiveness, - that is so easily said at the end of a judgment when one cannot respond. It is a question of deterrence.  Had the law been implemented, as it ought to have been, Livia might still be alive today.  

Accident Investigator Paul Summerton said (reference Police Report, Section B page 19) “If the driver had applied his brakes, fully, on mounting the pavement, or even once he had hit the road sign, the deceased would not even have been involved in this accident other than as a witness.

What we are asking is for the relief both in its legal and wider meanings in order to allow us to come to terms with life without our child and sister.  Consideration should be given to the effect that this miscarriage of justice is continuing to have on us.  It is tearing us apart.  The acknowledgement through judicial review that the Attorney’s decision was wrongly taken would be a humane and moral decision to make under the circumstances.

 

Justifying Time Delay at Judicial Review 2000

AFTER ABSORBING THE DETAILS OF HOW OUR DAUGHTER WAS KILLED BY THE CONDUCT OF A DRIVER, IT WAS NOT LONG AFTER THAT WE DECIDED TO CHANNEL OUR GRIEF INTO ENSURING THAT THE PROCESSES OF LAW WOULD BE PROPERLY EFFECTED.  WE HAD READ ABOUT WRONG CHARGES BEING BROUGHT, CPS LOSS OF FILES, UNDULY LENIENT SENTENCES, ETC. OUR VIGILANCE AROSE OUT OF DESPAIR, CONCERN AND FEAR ABOUT THE OUTCOME OF OUR CASE.  IT DID NOT ARISE AND DOES NOT ARISE OUT OF CLAMOUR AND CAMPAIGN.

CLAMOUR AND CAMPAIGN IS RABBLE ROUSING AND IN OUR CIRCUMSTANCE, IT IS OFFENSIVE TO VALUE OUR DAUGHTER’S LIFE IN THOSE TERMS.  OUR CONCERN SEEKS LORD DIPLOCK’S ACKNOWLEDGEMENT THAT THE DECISIONS TAKEN BOTH AT SENTENCE AND AT LEAVE TO APPEAL STAGES WERE SO OUTRAGEOUS IN ITS DEFIANCE OF LOGIC OR ACCEPTED MORAL STANDARDS, THAT NO SENSIBLE PERSON WHO HAD APPLIED HIS MIND TO THE QUESTIONS TO BE DECIDED, COULD HAVE ARRIVED AT THEM.

 
FOLLOWING THE SENTENCE ON 6/11/98 WE WROTE TO THE ATTORNEY GENERAL 4 TIMES (AND TO THE LORD CHANCELLOR), WITHIN THE 28 DAY MARGIN, TO PLEAD TO GIVE US LEAVE TO GO TO THE COURT OF APPEAL.  FOLLOWING HIS REFUSAL ON 3/12/98 WE WROTE TO HIM ON 9/12/98 ASKING HIM HOW HE CAME TO HIS DECISION AND TO HAVE SIGHT OF THE ADVICE.   MR IAN GODFREY AND MR BEN BIRNBERG, AND OUR MP, STEPHEN TWIGG ALSO MADE REPRESENTATIONS ON OUR BEHALF REQUESTING THIS ADVICE.  THE MATTER WAS BROUGHT UP IN PARLIAMENT ON 20/1/99, THE ANNIVERSARY OF LIVIA’S DEATH.  SIGHT OF THE ADVICE WAS REFUSED.  ON THE 8TH JANUARY, OVER ONE MONTH ON FROM THE ATTORNEY’S DECISION, WE WERE FINALLY SENT THE GUIDELINE CASES.  ON THE 18TH JANUARY WE ASKED FOR FURTHER EXPLANATIONS ON THE BASIS OF THE GUIDELINES SENT TO US.  THE ATTORNEY’S ACKNOWLEDGMENT OF THIS LETTER WAS WITHOUT REFERRAL TO THE CONTENTS OF OUR LONG ENQUIRY ON POINTS OF LAW.  WE FOLLOWED IT WITH A TELEGRAM AND ANOTHER LETTER ON 12/2/99 TO WHICH MR MORRIS REPLIED HIMSELF ON MONDAY 1/3/99.  WE WOULD HAVE RECEIVED THE LETTER MID WEEK AND IN ACCORDANCE WITH THE 3-MONTH RULING, WE NOW RECOGNISE, WE WERE ON THE OUTSIDE.

WHILE EXCHANGING WITH THE ATTORNEY, FROM JANUARY TO MARCH, AND THEN THROUGHOUT THE YEAR OF 1999, WE CONTINUED WRITING TO GOVERNMENT LEADERS IN THE HOME OFFICE, DETR, THE LORD CHANCELLOR,  THE PRIME MINISTER,  TO INSIST THAT THERE HAD BEEN A MISCARRIAGE OF JUSTICE.  OUR LAWYER ADVISED US TO GET IN TOUCH WITH MR KULDIP SINGH QC.   WE APPROACHED HIM DIRECTLY ON 4/2/99.  HE AGREED TO SEE US ONLY IF INSTRUCTED BY A FIRM OF SOLICITORS IN ACCORDANCE WITH PROFESSIONAL RULINGS.  WE MET WITH HIM AND OUR OWN SOLICITOR ON 3 MARCH 99.  MR SINGH’S ADVICE WE SUBSEQUENTLY RECEIVED ON 25 MARCH 99.  IT STATED THAT THE JUDGE’S SENTENCE FELL OUTSIDE THE RANGE OF SENTENCES A JUDGE COULD REASONABLY CONSIDER AND WAS WRONG IN PRINCIPLE.   OF THE ATTORNEY’S DECISION, HE STATED THAT IT WAS WRONG AND ALMOST CERTAINLY FUNDAMENTALLY FLAWED ON THE BASIS OF THE SEVERAL ENGLISH COURT OF APPEAL GUIDELINE CASES AVAILABLE TO HIM.  WE DECIDED TO TRY FOR JUDICIAL REVIEW.  ITS MECHANICS WE DID NOT UNDERSTAND BUT WOULD BE LED BY COUNSEL ONCE WE KNEW WHAT THE COST OF PROFESSIONAL REPRESENTATION WOULD BE.  THE ESTIMATED COST ARRIVED ON 6 APRIL 99.  IT WOULD BE IN THE REGION OF £15,000.  WE COULD NOT GO AHEAD.  AT NO POINT WAS IT EVER MADE CLEAR THAT WE COULD ACTUALLY PUT DOWN £30 AND FILL OUT FORM 86A AND CLAIM OUR RIGHT TO ACT ON OUR OWN BEHALF.  WE WERE MADE AWARE OF THIS IN AUGUST ‘99, AS THE LETTER FROM THE CHAIRPERSON OF ROADPEACE CORROBORATES.  IN THE BACK OF OUR MINDS WE THOUGHT WE COULD ASK FOR JUDICIAL REVIEW THROUGH PROFESSIONAL REPRESENTATION ONLY OR THROUGH THE MORAL AWAKENING OF GOVERNMENT OFFICIALS.  IN FACT OUR LETTER OF 1 FEB 99 TO GEORGE HOWARTH, THEN UNDER SECRETARY OF STATE IN THE HOME OFFICE, COPIED TO 11 LEADING MEMBERS OF GOVERNMENT, NAIVELY PLEADS TO GOVERNMENT TO REVIEW THE CASE.  NONE OF THEM REPLIED TELLING US WHAT WE COULD DO INSTEAD OF WASTING TIME WRITING LETTERS.  IT’S PROBABLY FAIR TO SAY THAT VERY FEW ORDINARY FOLK KNOW WHAT LEGAL AVENUES ARE AVAILABLE TO THEM.  IT IS NOT A SITUATION IN WHICH ONE EXPECTS TO FIND ONESELF.

HAD WE KNOWN OF THE SIMPLE PROCESS OF PAYING A NOMINAL SUM AND OF FILLING IN A FORM, WE WOULD HAVE DONE SO SOONER. WHAT POSSIBLE MOTIVE COULD WE HAVE HAD NOT TO HAVE DONE SO GIVEN OUR MANIFEST AND PUBLIC CONCERN TO BE HEARD.  IS IT LOGICAL IN THE CIRCUMSTANCE THAT WE WOULD HAVE ENDANGERED OUR CHANCES OF SUCCESS BY DEFAULTING ON THE TECHNICALITY OF DELAY, HAD WE KNOWN EARLIER ABOUT SELF-REPRESENTATION?

 

IGNORANCE OF THE LAW

 

NOTWITHSTANDING THE COMPOUNDING OF GRIEF BY HAVING TO CONTEND WITH THE PROCESS OF LAW WITHIN THE CRIMINAL COURT SYSTEM, WE HAVE BEEN EXPECTED TO UNDERSTAND THE JUDICIAL PROCESS AND THE TECHNICAL CONSTRAINTS OF JUDICIAL REVIEW.

LORD CHIEF JUSTICE ELLENBOROUGH IN 1802 SAID THAT IN EFFECT EVERY MAN MUST BE TAKEN TO BE FAMILIAR WITH THE LAW.  THE POINT HE WAS MAKING WAS THAT IF EVERY DEFENDANT PLEADED IGNORANCE OF THE LAW, IT WOULD BE DIFFICULT TO PROVE OTHERWISE.

HOWEVER, MR JUSTICE MAULE SAID IN A CASE IN 1846 “ THERE IS NO PRESUMPTION IN THIS COUNTRY THAT EVERY PERSON KNOWS THE LAW.  IT WOULD BE CONTRARY TO COMMON SENSE AND REASON, IF IT WERE NOT SO”
(TIMES LAW SUPPLEMENT FEB 22/00, P13 DR GARY SLAPPER’S CASE NOTES)

IF WE ARE GUILTY OF ANYTHING IT IS THAT WE HAVE HAD TO CONTEND WITH OUR GRIEF AND EVASIVE AUTHORITIES WHO BURNT UP OUR THREE MONTHS. THROUGHOUT THE WHOLE PROCESS WE HAVE BEHAVED IN A DIGNIFIED MANNER, WITH OUR DAUGHTER’S GOOD NAME EVER IN MIND.  THIS HAS MEANT SOMETIMES THAT WE HAVE LOOKED FOOLISH BECAUSE OF OUR LACK OF KNOWLEDGE.  ALTHOUGH THERE IS NO DUTY ON PUBLIC AUTHORITIES TO ADVISE US OF THE REMEDIES AVAILABLE IN LAW TO ORDINARY FOLK, IT WAS CLEAR FROM OUR LETTERS THAT WE WERE LOOKING FOR A REMEDY IN LAW.  AUTHORITIES ARE SURELY OBLIGATED AND BETTER PLACED TO GIVE SUCH ADVICE IF THERE IS NOTHING TO HIDE.  HOW CONVENIENT THAT THE TONE OF THE LETTERS, ON RE-READING THEM NOW, FROM THESE PUBLIC AUTHORITIES CHANGED AFTER THE THREE MONTHS -  WITH “THERE IS NOTHING FURTHER THAT CAN BE USEFULLY ADDED”.   YES, WE SOUGHT ADVICE FROM OUR SOLICITOR AND BARRISTER.  WHY DID WE NOT ASK WHETHER WE COULD REPRESENT OURSELVES?  THE ANSWER IS:   IT NEVER OCCURRED THAT WE COULD, SO IT NEVER AROSE.  WE JUST DIDN’T ASK THE QUESTION. 

AND JUST AS IT MIGHT BE EXPECTED FOR US TO HAVE BEEN MORE ALERT, MIGHT THERE NOT BE A REASONABLE ARGUMENT TO SUPPORT THE EXPECTATION THAT HAVING MADE PLAIN THAT WE SOUGHT HELP, SOME PUBLIC AUTHORITY MIGHT HAVE RISEN TO THE OCCASION, FELT AN OBLIGATION, TO TELL US WHAT IN FACT WE COULD DO OTHER THAN WASTE TIME WRITING LETTERS?

WE HAVE LEARNED BY DEFAULT BUT WE DO HAVE AN ARGUABLE CASE AND TO HAVE IT REJECTED ON A TECHNICALITY PLAYS INTO THE HANDS OF PUBLIC AUTHORITIES WHOSE IRRATIONALITY HAS SENT OUT THE WRONG SIGNAL TO DANGEROUS DRIVERS.    

THE ALL SOULS’ REPORT 1988 CRITICIZED ORDER 53 , RULE 4,  WHICH WAS ASKED TO BE REMOVED THUS LEAVING THE QUESTION OF DELAY TO  THE STATUTORY TEST IN SECTION 31 (6) OF THE SUPREME COURT  ACT 1981.  THE LAW COMMISSION CONCLUDED THAT CERTAINTY WAS DESIRABLE AND RECOMMENDED THE CONTINUANCE OF THE THREE MONTHS TIME LIMIT.  A CASE COULD MOVE TO A SUBSTANTIVE HEARING IF THE REASON FOR THE DELAY, IN MAKING THE LEAVE APPLICATION WAS THE PURSUIT OF AN ALTERNATIVE REMEDY.   WE WEREN’T SURE WHAT REMEDY WE WERE SEEKING BUT WE WERE SEEKING ONE.

TURN TO BOOK ALLEN & THOMSON PAGE 661, RULES OF THE SUPREME COURT, 53 (4) DELAY IN APPLYING FOR RELIEF. 

LOOK AT THE SUPREME COURT ACT 1981, SECTION 31 (6) …………

CITE R V CRIMINAL INJURIES COMPENSATION BOARD EX PARTE A 1999 IN THE COURT OF APPEAL BEFORE LORD JUSTICES SIMON BROWN, PETER GIBSON, IAIN GLIDEWELL

IT WAS HELD THAT LEAVE FOR JUDICIAL REVIEW SHOULD BE GRANTED UNLESS THERE IS NO GOOD REASON FOR EXTENDING TIME OR IT IS ALREADY APPARENT THAT THE EVENTUAL GRANT OF RELIEF WOULD CAUSE HARDSHIP, PREJUDICE OR DETRIMENT.

WHEN THE SAME CASE WENT THROUGH TO THE HOUSE OF LORDS, IT WAS HELD THAT A COURT COULD EXTEND THE TIME IN WHICH TO MAKE AN APPLICATION FOR JUDICIAL REVIEW IF IT FOUND THERE WAS A GOOD REASON FOR EXTENDING THE PERIOD.

WE HAVE SHOWN CLEARLY THAT A/ OUR CASE IS ARGUABLE AT THE NEXT STAGE
B/ THAT IN GRANTING LEAVE TO GO TO JUDICIAL REVIEW, IT WOULD NOT CAUSE HARDSHIP, PREJUDICE OR DETRIMENT TO GOOD ADMINISTRATION WITHIN 31 (6) (B) OF THE SUPREME COURT ACT 1981
.

THE OFFENDER HAS BEEN SENTENCED, THE 28 DAYS FOR THE APPEAL IS OVER.  THE RELIEF WE SEEK IS AS STATED ON FORM 86A.  WE WANT AN ACKNOWLEDGEMENT THAT THE DECISION OF THE ATTORNEY GENERAL WAS WRONGLY TAKEN.
MY LORDS, OUR DAUGHTER LIES DEAD AND THE CIRCUMSTANCES WERE AVOIDABLE – HIT AT 16.5 MPH SHE WOULD HAVE SURVIVED HAD THE OFFENDER BRAKED.  HE TRIED TO LIE HIS WAY OUT BUT WAS FOUND GUILTY.  HOWEVER, HIS LIE WAS UPHELD AND ENDORSED WHERE IT SHOULD LEAST HAVE BEEN. WE HAVE BEEN EXPECTED TO ABIDE BY THAT RULING.  WE CANNOT NOR WILL WE BECAUSE IT IS SIMPLY UNJUST AND AMORAL TO ASK US TO LIVE WITHIN THAT LIE.  AGAIN, THIS IS NOT CLAMOUR AND CAMPAIGN AND YES, NOTHING CAN BRING BACK OUR DAUGHTER OR MAKE AMENDS.  THAT IS NOT TO SAY THAT WE SHOULD NOT TRY TO STICK TO A TRANSPARENT LAW, TO DO SOMETHING TO RECOGNISE RIGHT FROM WRONG.  GRATUITOUS EXPENDABILITY OF AN INNOCENT VICTIM IS WRONG.  THEN PERHAPS WE MIGHT BE ALLOWED TO LIVE THE REST OF OUR SORRY LIVES IN PEACE.  YOU HAVE THE POWER TO GRANT US JUDICIAL REVIEW. YOU HAVE THE POWER TO ADJOURN THE MATTER UNTIL THE SUBSTANTIVE HEARING, SHOULD YOU HAVE THE WILL TO GIVE US LEAVE TO GO FORWARD TO JUDICIAL REVIEW.

 

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