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Northern Ireland appeal judge upholds dangerous driving conviction for close pass

Patrick John Kelly told Spires CC members that he would kill them next time

A judge in Northern Ireland has ruled that a close pass constitutes dangerous driving, dismissing an appeal by a motorist against a conviction for the offence earlier this year.

The incident happened in July last year when several members of Spires Cycling Club, based in Magherafelt, County Londonderry, were subjected to a punishment pass by a motorist who also threatened to kill them next time, on the Pomeroy

In May, the club members testified in Dungannon Magistrates’ Court and the motorist, Patrick John Kelly, was convicted of dangerous driving and fined £400 and banned from driving for 12 months.

Kelly, a haulage contractor by trade, appealed the conviction, but it was upheld at Omagh Appeal Court on Monday 7 October.

With no previous case law to refer to, the appeal hinged on whether a close pass constituted dangerous driving or the less serious offence of careless driving.

In Northern Ireland, the definitions of both offences are the same as in the rest of the UK. For careless driving, “A person is to be regarded as driving without due care and attention if (and only if) the way he drives falls below what would be expected of a competent and careful driver.”

A person is guilty of dangerous driving if “(a)the way he drives falls far below what would be expected of a competent and careful driver; and (b) it would be obvious to a competent and careful driver that driving in that way would be dangerous.”

In this case, the judge decided that the motorist had committed the offence of dangerous driving and upheld the original ruling.

The club’s chair, Stephen Mewha, told road.cc that the Police Service of Northern Ireland works with local clubs to investigate close passes, and that often a warning might be given to the driver, as also happens in police close pass operations elsewhere in the UK.

However, in this case the motorist’s insistence he had done nothing wrong and lack of contrition led to the decision to prosecute.

He said: “Following a number of incidents on the road involving club members the local police have been keen to work with local clubs to reduce such incidents.

“As such they have issued all local clubs with cameras, attend all local sportives with free bike marking and hold regular meetings for cycle clubs on road safety.”

Referring to the specific incident that was the subject of the court case, he said: “A group of our members including a couple of youths and females were out for a normal club spin on the quiet country roads around Pomeroy in July 2018.

“A large van passed them so close it made some of the bikes shake, there was plenty of room and absolutely no reason for the driver to behave in this unsafe manner.

“A short while later the van was pulled in at a petrol station, the club stopped and the club captain asked the driver why he had made such a dangerous manoeuvre.

Patrick John Kelly (pictcure via Spires CC)

“The driver’s response was that next time he would kill them. The incident was reported to the police who contacted the driver.

“Unfortunately they also received a similar response along the lines of ‘well I looked in the mirror and there was none of them lying in the road so that’s all right then’.

“The police were not happy with this response and took formal statements and passed a file to the PPS [Public Prosecution Service].”

He continued: “There were no winners in this, the club members were quite shaken and indeed two have still not returned to cycling. The van driver who runs a haulage business has lost his licence for a year and had a huge fine.

“This could all so easily have been avoided at several stages. Ideally the incident would not have happened, or a more contrite attitude at the petrol station or even a different approach with the police may have resulted in some mediation or advice rather than a court appearance.

“As a side note it’s worth noting that all Spires CC members have licences, insurance and are members of the governing body Cycling Ireland. We all drive as well as cycle and do not want to inconvenience anyone unnecessarily on the roads.”

Whether the appeal decision sets a legal precedent is debatable and in any event would only bind courts in Norther Ireland and not in the rest of the UK.

As discussed above, the offences of careless and dangerous driving are determined by a subjective test relating to the standard of driving, so individual cases would be assessed on the evidence.

Decisions on what offence a defendant should be charged are based on there being a reasonable prospect of securing a conviction, so it is possible that it may encourage the PPS to prosecute such incidents as dangerous rather than careless driving, highlighting to lower courts in Northern Ireland the appeal decision in this case.

Simon joined road.cc as news editor in 2009 and is now the site’s community editor, acting as a link between the team producing the content and our readers. A law and languages graduate, published translator and former retail analyst, he has reported on issues as diverse as cycling-related court cases, anti-doping investigations, the latest developments in the bike industry and the sport’s biggest races. Now back in London full-time after 15 years living in Oxford and Cambridge, he loves cycling along the Thames but misses having his former riding buddy, Elodie the miniature schnauzer, in the basket in front of him.

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18 comments

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chineseJohn | 4 years ago
0 likes

The van driver who runs a haulage business has lost his licence for a year and had a huge fine.

£400 isn't a large amount for an business owner.

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Htc replied to chineseJohn | 4 years ago
0 likes

chineseJohn wrote:

The van driver who runs a haulage business has lost his licence for a year and had a huge fine.

£400 isn't a large amount for an business owner.

We need means tested fines. Completley pointless having fixed fines. £400 could be a months wages or lunch money depending on the offender.

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Bmblbzzz | 4 years ago
1 like

Is a £400 fine a typical sentence for a threat to kill?

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dubliner | 4 years ago
1 like

In the Republic of Ireland here... I have two separate cases with the cops here at the moment.  I realise it's different jurisdiction and all that, but when the court date happens, at least there is some precedence to go by here, albeit North of the border. The copper here used the phrase "careless driving" when I made the statement and handed over the video footage in both cases, but a judge or more senior prosecuting Garda might upgrade the offence... we'll see. 

 

Either way, the careless driving offence would be minimum 5 penalty points and max €5000 fine. The 5 penalty points would probably double the insurance premium... that's good enough for me.   Realistically the fine will be a few hundred quid.  I'll keep ya'll posted.

Wouldn't have been possible without front and rear cameras, which I treated myself to last Christmas as a result of reading the review on this website. I think for "slam-dunk" evidence, you really need both front and rear footage...there's simply no arguing about it then.

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racyrich | 4 years ago
0 likes

£400 is a huge fine?  FFS.

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brooksby replied to racyrich | 4 years ago
0 likes

racyrich wrote:

£400 is a huge fine?  FFS.

If I was hit with a £400 fine I'd not be able to pay it out of my own funds. Would have to sell the car or one of the kids or something...

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HLaB | 4 years ago
1 like

I should have had his ban doubled or more when the judge upheld the original decision though  7

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Vlad the Impailer | 4 years ago
3 likes

Quote from the Supreme Court web pages....  You will see that it includes the Courts of England, and Wales , Scotland and also NI..................

 

The Supreme Court, as well as being the final court of appeal, plays an important role in the development of United Kingdom law.

As an appeal court, The Supreme Court cannot consider a case unless a relevant order has been made in a lower court.

The Supreme Court:

is the final court of appeal for all United Kingdom civil cases, and criminal cases from England, Wales and Northern Ireland
hears appeals on arguable points of law of general public importance
concentrates on cases of the greatest public and constitutional importance
maintains and develops the role of the highest court in the United Kingdom as a leader in the common law world

The Supreme Court hears appeals from the following courts in each jurisdiction:

England and Wales

The Court of Appeal, Civil Division
The Court of Appeal, Criminal Division
(in some limited cases) the High Court

Scotland

The Court of Session

Click here to download a factual guide to The Jurisdiction of the Supreme Court in Scottish Appeals: Human rights and the Scotland Act 2012 (PDF).

Northern Ireland

The Court of Appeal in Northern Ireland
(in some limited cases) the High Court

Please click here to download a full guide to appealing to The Supreme Court (PDF) or our Guide to proceedings for those without a legal representative.

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Vlad the Impailer | 4 years ago
3 likes

No it dosent - NI law is UK law - although they do have different laws for different matters.

It can still be used in UK Courts as an appeal judgement.

If a case goes to appeal and that appeal is upheld - that is Case Law.

That matter is then sent to the Law Courts for ratification and an ammendment is made to the Offence of Dangerous Driving to show this appeal beinh upheld.

I do know my law as I have dealt with it long enough.

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brooksby replied to Vlad the Impailer | 4 years ago
0 likes

Duplicate post; sorry.

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brooksby replied to Vlad the Impailer | 4 years ago
1 like

Vlad the Impailer wrote:

No it dosent - NI law is UK law - although they do have different laws for different matters.

It can still be used in UK Courts as an appeal judgement.

If a case goes to appeal and that appeal is upheld - that is Case Law.

That matter is then sent to the Law Courts for ratification and an ammendment is made to the Offence of Dangerous Driving to show this appeal beinh upheld.

I do know my law as I have dealt with it long enough.

That's right. Remember one of the key points in the current brexit debacle - NI wants to make sure that they're not separated from the mainland UK law (oh, except on the things that they really want to be separated from the mainland UK law on...).

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Roger Geffen replied to Vlad the Impailer | 4 years ago
1 like

Vlad the Impailer wrote:

No it dosent - NI law is UK law - although they do have different laws for different matters.

 

I'm afraid I have to correct part of that statement.  In Great Britain (i.e. England, Wales and Scotland, but NOT in Northern Ireland), the offence of 'dangerous driving', and the corresponding offences involving 'causing death' and 'causing serious injury', are offences under sections 1, 1a, 2 and 2a of the Road Traffic Act 1988 (as amended).  Note that section 197 sets out the geographic extent of this Act.

In Northern Ireland, the equivalent legislation is sections 9 10 and 11 of the Road Traffic (Northern Ireland) Order 1995.  Its wording is similar but not identical (for instance, it talks about 'causing grievous injury' rather than 'causing serious injury').

I do not know whether case law established under a statute in Northern Ireland would set a legal precedent under a different, but similarly worded legislation in Great Britain.

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quiff replied to Roger Geffen | 4 years ago
0 likes

Roger Geffen wrote:

Vlad the Impailer wrote:

No it dosent - NI law is UK law - although they do have different laws for different matters.

 

I'm afraid I have to correct part of that statement.  In Great Britain (i.e. England, Wales and Scotland, but NOT in Northern Ireland), the offence of 'dangerous driving', and the corresponding offences involving 'causing death' and 'causing serious injury', are offences under sections 1, 1a, 2 and 2a of the Road Traffic Act 1988 (as amended).  Note that section 197 sets out the geographic extent of this Act.

In Northern Ireland, the equivalent legislation is sections 9 10 and 11 of the Road Traffic (Northern Ireland) Order 1995.  Its wording is similar but not identical (for instance, it talks about 'causing grievous injury' rather than 'causing serious injury').

I do not know whether case law established under a statute in Northern Ireland would set a legal precedent under a different, but similarly worded legislation in Great Britain.

Late to this thread, but I'm pretty sure that the NI decision could be cited and may be persuasive in a similar case in England & Wales, but it would not be binding on a court in E&W because it originated in a different legal jurisdiction and indeed under a different (though very similar) statute. Even if, for argument's sake, the two cases were in the same jurisdiction so that the decision was formally binding on subordinate courts, all that is binding in a legal precedent is a (potentially narrow) point of law. Each case is decided on its own facts, and there will always be attempts to distinguish a new case from previous precedent. So while helpful, this case certainly does not mean that henceforth every close pass = dangerous driving.       

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Hirsute | 4 years ago
1 like

The article gives doubt to a precedent and also says it would only apply in NI.

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Vlad the Impailer | 4 years ago
6 likes

Absolutley Brilliant - now we have CASE LAW that a close pass and his follow up actions can be charged with, and dealt with, as Dangerous, rather then just Careless.

This will help a lot in terms of close passes - as all Magistrates and Judges get an update on all reviews of appeals, especially of this nature in cases of Dangerous Drive.

I would suggest that we all remember the following:

R V KELLY dated October 2019 from Omagh appeal Court.

You can then use this in your own cases with the Police - as long as you have very good evidence.

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burtthebike replied to Vlad the Impailer | 4 years ago
0 likes

Vlad the Impailer wrote:

Absolutley Brilliant - now we have CASE LAW that a close pass and his follow up actions can be charged with, and dealt with, as Dangerous, rather then just Careless.

This will help a lot in terms of close passes - as all Magistrates and Judges get an update on all reviews of appeals, especially of this nature in cases of Dangerous Drive.

I would suggest that we all remember the following:

R V KELLY dated October 2019 from Omagh appeal Court.

You can then use this in your own cases with the Police - as long as you have very good evidence.

As the article makes clear, this doesn't necessarily make case law, and even if it did, it would only apply in Northern Ireland.  So while it's useful to be able to prod our own judicial system, don't count on it to make an immediate difference on the mainland.

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ktache | 4 years ago
8 likes

Well don the PSNI, the PPS and the Judges in this case.

Any form of contrition at any point (real or not) and this would have gone no further.

The death threat probably didn't help.

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StraelGuy | 4 years ago
9 likes

Wow. Finally. A decent result laugh.

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