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Community order and 18-month ban for driver who killed oncoming cyclist while overtaking

Jury was unable to reach decision on causing death by dangerous driving

Ayasha Penfold, the Kent motorist who hit and killed time trialist John Durey while driving on the wrong side of the road after overtaking two vehicles, has avoided a jail sentence. She pleaded guilty to causing death by careless driving, but Crown prosecutors decided against asking for a second trial when a jury was unable to reach a decision on the greater charge of causing death by dangerous driving.

Durey, aged 69, was hit head-on by Penfold, 20, while riding along the A2070 at Kingsnorth, near Ashford, on May 31 last year. He died in hospital on June 5.

Prosecutor Ahmed Hossain said Durey would have been visible to the driver for at least 45 seconds prior to the crash.

“The road was clear. There was good visibility and it was a straight passage of road.”

Penfold told the jury she had been to Ashford to visit friend and had not been in a rush to return home.

"I felt the lorry and car in front of me were moving slowly and I wanted to overtake them."

Penfold admitted causing his death by careless driving but pleaded not guilty to the more serious charge of causing death by dangerous driving.

At the conclusion of a four-day trial last month, the jury was unable to reach a majority decision of whether she was guilty of the more serious offence.

The Crown Prosecution Service needed to apply for a retrial within a week following the lack of a decision, but opted not to.

Kent Online reports that Judge Lowe gave Penfold a 12-month community order and banned her from driving for 18 months.

He said her lack of experience – she had only passed her test three or four months before the crash – could have contributed to the collision.

“You had completely failed to see Mr Durey coming in the opposite direction until it was too late for you to take corrective actions,” he said.

“Roads are sometimes thought by drivers to be built for the exclusive convenience of motor vehicles but most roads are built for cars to share with a variety of other road-users, including cyclists.

Alex has written for more cricket publications than the rest of the road.cc team combined. Despite the apparent evidence of this picture, he doesn't especially like cake.

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77 comments

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FluffyKittenofT... | 5 years ago
6 likes

We need jury vetting for such cases.  At the very least there should be a cap on the number of motorists allowed to serve on juries in such cases.  And no-one who's ever committed a motoring offense.  That would be a start.

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danhopgood replied to FluffyKittenofTindalos | 5 years ago
5 likes

FluffyKittenofTindalos wrote:

We need jury vetting for such cases.  At the very least there should be a cap on the number of motorists allowed to serve on juries in such cases.  And no-one who's ever committed a motoring offense.  That would be a start.

But juries are specifically chosen to reflect the population.  What needs to change is the attitude of the population. 

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Simon E replied to danhopgood | 5 years ago
2 likes

danhopgood wrote:

But juries are specifically chosen to reflect the population.  What needs to change is the attitude of the population. 

It seems that juries need a change of perspective on road crime. Instead of "that could be me, driving like that" it should be  "that could be my child killed by someone whose selfish attitude means he/she cares only about their own safety".

Instead of accepting such horrendous mistakes as "momentary lapse of concentration", "blinded by the sun" or some such pathetic nonsense as acceptable they start seeing bad driving as a regular, even habitual practice that should be punished.

the little onion wrote:

Prejudice and bias is so engrained as to make the notion of a fair trial meaningless.

Edit - sorry, I missed your comment earlier. It encapsulates my thoughts better than my own ramblings.

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FluffyKittenofT... replied to danhopgood | 5 years ago
0 likes

danhopgood wrote:

FluffyKittenofTindalos wrote:

We need jury vetting for such cases.  At the very least there should be a cap on the number of motorists allowed to serve on juries in such cases.  And no-one who's ever committed a motoring offense.  That would be a start.

But juries are specifically chosen to reflect the population.  What needs to change is the attitude of the population. 

 

In my opinions the only thing that could change that is an aggressive program of increasing high-quality cycle infrastructure.  Then more would cycle and get a different perspective on things.  Of course that would also greatly reduce the need for such court cases in the first place.

 

But that's going to be a long hard slog to achieve.  In the meantime, I don't think it's true that 'juries are chosen to reflect the population'.  I suspect the demographics of who serves on juries are very skewed, in reality.

 

  And in any case, I'm inclined to wonder whether the jury should rather represent _that section of the population involved in the case_?  Including the victim.  It slightly reminds me of those cases in the US when cops are accused of mistreating a black person and they make sure the case is heard in some all-white suburb.

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brooksby | 5 years ago
4 likes

Quote:

He said her lack of experience – she had only passed her test three or four months before the crash – could have contributed to the collision.

So, I trust m'lud has also insisted that she now retake her driving test??

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peted76 | 5 years ago
2 likes

I wonder why they decided against the retrial.. 

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hawkinspeter replied to peted76 | 5 years ago
7 likes

peted76 wrote:

I wonder why they decided against the retrial.. 

Because they don't give a shit about cyclists?

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Butty replied to peted76 | 5 years ago
2 likes

peted76 wrote:

I wonder why they decided against the retrial.. 

Becausse the CPS have secured a successful conviciton, which goes down as a brownie point in thier performance assessment?

Too much cost to then justify a retrial that may be marginal as it was only a cyclist, so quit while you're winning?

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the little onion | 5 years ago
19 likes

A jury of drivers in the UK in 2018 passing judgement on another driver killing a cyclist is like getting an all-white jury in 1950s Alabama to pass judgement on another white person killing a black person. Prejudice and bias is so engrained as to make the notion of a fair trial meaningless.

 

(the driver here should have tried the Gail Purcell trick of just saying "I didn't see him", and then she wouldn't even have been charged with any office)

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Dnnnnnn replied to the little onion | 5 years ago
2 likes

the little onion wrote:

A jury of drivers in the UK in 2018 passing judgement on another driver killing a cyclist is like getting an all-white jury in 1950s Alabama to pass judgement on another white person killing a black person. Prejudice and bias is so engrained as to make the notion of a fair trial meaningless.

(the driver here should have tried the Gail Purcell trick of just saying "I didn't see him", and then she wouldn't even have been charged with any office)

This.

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kitsunegari replied to the little onion | 5 years ago
1 like

the little onion wrote:

A jury of drivers in the UK in 2018 passing judgement on another driver killing a cyclist is like getting an all-white jury in 1950s Alabama to pass judgement on another white person killing a black person. Prejudice and bias is so engrained as to make the notion of a fair trial meaningless.

 

(the driver here should have tried the Gail Purcell trick of just saying "I didn't see him", and then she wouldn't even have been charged with any office)

I as going to post something similar.

Cyclists simply cannot get a fair trial in this country.

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KINGHORN | 5 years ago
10 likes

says more about the attitude of jury towards cyclists!

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2Loose | 5 years ago
8 likes

What on earth could the jurors fail to agree on? 

That road is positively roman. 

 

Appalling.  

 

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peted76 | 5 years ago
14 likes

I'm speechless.. an 18month driving ban for killing someone.

I get that she had only just passed her test, but surely the punishment does not reflect the crime here, in any order of magnitude!

I would have agree that it probably wouldn't be in the public interest to jail a 20year old for this, however she should never be allowed to drive a car again.

 

On a clear straight road, she overtook a car and a lorry subsequently hit a time trialist head on whilst doing so, subsequestly killing him, they agreed she should have had 45seconds clear view to see the cyclist.. and did not. 

.. and she changed her reasoning for hitting the cyclist twice..  

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Simon E replied to peted76 | 5 years ago
4 likes

peted76 wrote:

I'm speechless.. an 18month driving ban for killing someone.

Agreed.

Previously I've argued on here against a knee-jerk call for a prison sentence for road deaths but since the ridiculous situation with Charlie Alliston's case I am inclined to think "well, if it's good enough for him..."

I explained the basics of the Alliston case to my wife, who was appalled that it warranted time in prison yet so many drivers who kill and maim get off with a light slap of the wrist.

An 18 month ban, after what we've read? no

FluffyKittenofTindalos wrote:

We need jury vetting for such cases.  At the very least there should be a cap on the number of motorists allowed to serve on juries in such cases.  And no-one who's ever committed a motoring offense.  That would be a start.

If we consider the way jurors can easily be swayed by their own prejudices and sympathies then I agree.

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TedBarnes | 5 years ago
7 likes

“The road was clear. There was good visibility and it was a straight passage of road.”

I was assuming a standard country road, but "straight  passage of road" is an understatement: 

https://www.google.co.uk/maps/

No wonder they said 45 seconds of visibility. That is an unbelievably long time when driving. 

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Hirsute | 5 years ago
1 like

I've posted this before but worth a repeat http://www.gazette-news.co.uk/news/16055928.Pensioner_driver_jailed_for_...
Of course this was car on car and a dead pensioner, so merits a jail sentence as opposed to some lycra lout for whom hanging isn't good enough.

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Canyon48 | 5 years ago
1 like

...?

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Hirsute | 5 years ago
10 likes

Brake your ankle and try to make a claim for 175k and get 3.5 years inside
Kill someone with a deliberate reckless act and get eff all.

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danhopgood replied to Hirsute | 5 years ago
4 likes

hirsute wrote:

Brake your ankle and try to make a claim for 175k and get 3.5 years inside Kill someone with a deliberate reckless act and get eff all.

"Brake" for the bend; "break" your ankle....

I agree this outcome says a everything we need to know about the culture on the roads.  How to change it though, that's the question  

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Hirsute replied to danhopgood | 5 years ago
1 like
danhopgood wrote:

hirsute wrote:

Brake your ankle and try to make a claim for 175k and get 3.5 years inside Kill someone with a deliberate reckless act and get eff all.

"Brake" for the bend; "break" your ankle....

I agree this outcome says a everything we need to know about the culture on the roads.  How to change it though, that's the question  

Thanks hoopgod, I must practice my homophones.

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pockstone | 5 years ago
6 likes

I despair.

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ClubSmed | 5 years ago
3 likes

"Your licence will be cancelled (revoked) if you get 6 or more points within 2 years of passing your test"

Does that mean that she got less than 6 points for this as the licence was not cancelled? I got 6 points for doing 60mph on a 50mph Multi-lane (3 lane) carriageway!

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ceebee247 | 5 years ago
8 likes

I'm completely gobsmacked by this - how can someone be killed on the road and yet the driver, who instigated the action of the death is let off effectively scot free. 

 

I wonder what the result would have been if John Durey had been in a car and instead of cyclist is killed, the headline was 'pensioner killed by inexperienced new driver'. Suspect the jury would have found a different verdict and the penalty would have been alot higher. It doesnt say but i'm also assuming that if she was overtaking she was also speeding...

Just goes to show the complete onesideness of our current justice system.

 

Thoughts and prayers with Durey Family

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jimc101 | 5 years ago
7 likes

Kill someone while driving, and it's your fault, regardless of if they were a ped, driver, cyclist, or other road user,  should = lifetime ban, with no possibilty of restoration, and that's after time serverd

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madcarew replied to jimc101 | 5 years ago
0 likes

jimc101 wrote:

Kill someone while driving, and it's your fault, regardless of if they were a ped, driver, cyclist, or other road user,  should = lifetime ban, with no possibilty of restoration, and that's after time serverd

you might be wary of that yardstick being applied to you. Having watched an acquaintance go through, and get off a death by dangerous driving charge (Careless driving was what he answered to in the end) the process does have important safeguards in place. What if you are driving down the road and  a child chases a ball into the road, you swerve to avoid the child but kill cyclist who came around a car just as you swerved?  

That's why we don't have blanket rules.

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BehindTheBikesheds replied to madcarew | 5 years ago
0 likes

madcarew wrote:

jimc101 wrote:

Kill someone while driving, and it's your fault, regardless of if they were a ped, driver, cyclist, or other road user,  should = lifetime ban, with no possibilty of restoration, and that's after time serverd

you might be wary of that yardstick being applied to you. Having watched an acquaintance go through, and get off a death by dangerous driving charge (Careless driving was what he answered to in the end) the process does have important safeguards in place. What if you are driving down the road and  a child chases a ball into the road, you swerve to avoid the child but kill cyclist who came around a car just as you swerved?  

That's why we don't have blanket rules.

That would be death by dangerous driving because you took ZERO account of there being a child nearby, narrowed road (car parked on opposite carriageway) and did not slow for their very likely action, one that we know children do very frequently, even more so with a ball or bike.

Just because the police let off killer drivers who kill children/other vulnerable road users because they made a small error does not in my eyes let you off the hook for driving without any consideration as to the what if.

When driving would you keep your foot in when driving past a person on a horse or if there is a wild animal near/in the road, if not why would you do it when there are children or other vulnerable road users about? This is the problem, police/government indoctrinate to make it seem everyone elses fault except those behind the wheel.

A child stepping/running out into the road should be easily anticipated. Firstly there's the time of day/day of week, then there's a good chance if it's a built up area/residential there will be children about particularly in the summer. We have speed limits for a reason, that means when you have parked cars or vulnerable people around you you slow down so that you don't have to veer off so wildly to avoid a child running out in front of you because you observed the hazard early, you anticipated and took account of what might happen given the knowledge that we have about these things.

So in the example you gave it should be dangerous driving.

Avatar
madcarew replied to BehindTheBikesheds | 5 years ago
0 likes

BehindTheBikesheds wrote:

madcarew wrote:

jimc101 wrote:

Kill someone while driving, and it's your fault, regardless of if they were a ped, driver, cyclist, or other road user,  should = lifetime ban, with no possibilty of restoration, and that's after time serverd

you might be wary of that yardstick being applied to you. Having watched an acquaintance go through, and get off a death by dangerous driving charge (Careless driving was what he answered to in the end) the process does have important safeguards in place. What if you are driving down the road and  a child chases a ball into the road, you swerve to avoid the child but kill cyclist who came around a car just as you swerved?  

That's why we don't have blanket rules.

That would be death by dangerous driving because you took ZERO account of there being a child nearby, narrowed road (car parked on opposite carriageway) and did not slow for their very likely action, one that we know children do very frequently, even more so with a ball or bike.

Just because the police let off killer drivers who kill children/other vulnerable road users because they made a small error does not in my eyes let you off the hook for driving without any consideration as to the what if.

When driving would you keep your foot in when driving past a person on a horse or if there is a wild animal near/in the road, if not why would you do it when there are children or other vulnerable road users about? This is the problem, police/government indoctrinate to make it seem everyone elses fault except those behind the wheel.

A child stepping/running out into the road should be easily anticipated. Firstly there's the time of day/day of week, then there's a good chance if it's a built up area/residential there will be children about particularly in the summer. We have speed limits for a reason, that means when you have parked cars or vulnerable people around you you slow down so that you don't have to veer off so wildly to avoid a child running out in front of you because you observed the hazard early, you anticipated and took account of what might happen given the knowledge that we have about these things.

So in the example you gave it should be dangerous driving.

Clearly you drive at 15kph on wide open boulevards, with no vehicles parked at the side; or you are gifted with prescience. If you cannot conceive of a situation where an unseen child can run out from between 2 parked cars without you having any possible warning (I'll help you. Normal suburban street, time of day is immaterial, it might be a holiday, a no teacher day at school, a weekend, homeschooled kids etc etc; cars parked at the side almost continuously along the road, a luton van, behind the van, hidden from view by a low hedge 2 children are playing, one kicks the ball out the open gate, the 4 year old chases after it. You can't see the children or the garden and with no warning at all a child appears at full run from between 2 vehicles - remember the luton? -  and you are aware enough and swerve to miss them, but a cyclist who was momentarily hidden from view comes out from behind another vehicle directly into your path. )

When driving the unforseen does happen. If you cannot conceive of that as a driver, then you are simply the most dangerous creature on the road as you believe you are in control of everything that is going on. You aren't. 

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nniff | 5 years ago
11 likes

So not ........."the way he/she drives falls far below what would be expected of a competent and careful driver, and it would be obvious to a competent and careful driver that driving in that way would be dangerous"

 

I'm glad that they've cleared that up for us, just in case anyone who rides a bike is still in any doubt as to what to expect.  Call me naive, but I would have though that moving onto the opposite side of the road and killing someone was the very antithesis of 'competent and careful' and obviously so.  In fact, I'm not sure what else you would have to do to make that manoeure more dangerous - what yardstick are they using?

That would be the twelve good men and true who get fed up when their way is impeded in any way by a cyclist, the same people who will drive for 5 minutes around a supermarket car park instead of walking for 30 seconds from a space a little further away.

 

Avatar
Fifth Gear replied to nniff | 5 years ago
8 likes

nniff wrote:

So not ........."the way he/she drives falls far below what would be expected of a competent and careful driver, and it would be obvious to a competent and careful driver that driving in that way would be dangerous"

 

I'm glad that they've cleared that up for us, just in case anyone who rides a bike is still in any doubt as to what to expect.  Call me naive, but I would have though that moving onto the opposite side of the road and killing someone was the very antithesis of 'competent and careful' and obviously so.  In fact, I'm not sure what else you would have to do to make that manoeure more dangerous - what yardstick are they using?

That would be the twelve good men and true who get fed up when their way is impeded in any way by a cyclist, the same people who will drive for 5 minutes around a supermarket car park instead of walking for 30 seconds from a space a little further away.

 

The problem is that a jury is totally unsuitable to come to a verdict on a driving offence. When it says "it would be obvious to a careful and competent driver" there is no reason to think that an ordinary person qualifies to make this judgement. Clearly, at the very least, a driving examiner should be required to assess the evidence and come to a qualified judgement in order that the court is directed appropriately. While driving offences continue to be left to the judgement of ordinary drivers, justice for the victims of dangerous drivers will continue to be subverted.

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