# 20 cm from Death - Outcome



## magnatom (1 Dec 2010)

I have finally got an outcome from the 20cm from death incident. See my video below.

[media]
]View: http://www.youtube.com/watch?v=0fqACT1jNV0[/media]





I will be pursuing this matter vigorously.


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## Simon_m (1 Dec 2010)

F**k me!


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## 400bhp (1 Dec 2010)

That's the first time I have seen the video.

The video diesn't lie in this one - that was scary 

I think this a good one to take to the papers.


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## BSRU (1 Dec 2010)

That's the first time I have seen it and it was a completely shocking piece of dangerous driving of an extremely large vehicle.

How they can state there is not enough evidence beggars belief.


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## Simba (1 Dec 2010)

Reason they say there isn't enough evidence is because its only a cyclist, thats my 2 pence worth.


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## slugonabike (1 Dec 2010)

I swore when I watched that, dog knows what I would have done if it had been me involved! Not enough evidence, WTF do they need?


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## e-rider (1 Dec 2010)

If no contact is made it's almost impossible to press charges - so it doesn't surprise me (however, it is clearly wrong that it should be like this) 

interesting to see that you don't cycle in the cycle lane - it looks perfectly useable (or is it just the camera position?)


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## BenM (1 Dec 2010)

> interesting to see that you don't cycle in the cycle lane


The highway code suggests that if you cycle faster than about 18mph you should not be using cycle lanes; AFAIK Magnatom only cycles as slow as 18mph in heavy traffic...... and what does the cycle lane have to do with the incident in question which clearly occurred on a roundabout?

B.


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## chigman (1 Dec 2010)

Made me shudder after watching that. That excuse of a driver should have he's license taken away for ever, that was a bang out of order piece of driving as I've seen. 

Lack of evidence ? they gotta be on drugs, and if they're not, they are total morons.

I to would be taking that further, good luck to you.

Steve


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## ThePainInSpain (1 Dec 2010)

It may be that there is insufficient evidence to prosecute for 'Dangerous Driving', but maybe the lesser charge of 'Driving without due care and attention' should have been gone for.

If that had have been me, I think I would have tended to chase the MF and deck him.


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## BentMikey (1 Dec 2010)

How about further action with the company? I'd want to write them and make a complaint, but I can't remember what came of any communications with them?


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## BSRU (1 Dec 2010)

ThePainInSpain said:


> It may be that there is insufficient evidence to prosecute for 'Dangerous Driving', but maybe the lesser charge of 'Driving without due care and attention' should have been gone for.
> 
> If that had have been me, I think I would have tended to chase the MF and deck him.



I think careless driving would have been easier but should have been done for something instead of nothing.


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## magnatom (1 Dec 2010)

BM,

I never contacted any company. Part of the reason was my belief that the evidence was so compelling that the case would be sure to make it to court. Lesson learned.

ThePaininSpain,

I certainly understood that this could be dropped to a careless driving charge. I could have _almost_ understood that, but for it to be dropped completely...


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## magnatom (1 Dec 2010)

I have asked the procurator fiscal to clarify why it felt there was insufficient evidence. I'll let you know when I hear.


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## HLaB (1 Dec 2010)

magnatom said:


> I have asked the procurator fiscal to clarify why it felt there was insufficient evidence. I'll let you know when I hear.




There was insufficient evidence because there was no death  if there had been it would have went to court and then the driver would have been fined £500 and given 3 penalty points   

Good luck with your pursuits.


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## 2_Flat_erics (1 Dec 2010)

Totally outrageous that they are not prosecuting for anything at all.

Take it to the papers and the TV.


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## Flying_Monkey (1 Dec 2010)

Bad as it was, I think you just have to chalk it down to experience now. And it could have been worse, much worse... 

http://www.mountainx.com/news/2009/former_asheville_firefighter_gets_4_months_for_shooting_cyclist


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## magnatom (1 Dec 2010)

I've contacted the CTC, so we will see if they want to take this up or not. I'm also going to wait and see what the reasons behind dropping it are. Once I know that I will certainly get this publicised (if anyone is interested).


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## magnatom (1 Dec 2010)

Flying_Monkey said:


> Bad as it was, I think you just have to chalk it down to experience now. And it could have been worse, much worse...
> 
> http://www.mountainx...hooting_cyclist



I'm not expecting anything to happen to that particular driver, but I wan't to make damn sure that the PF or CPS take these matters more seriously in the future. Whilst drivers like this get away with driving like this, driving standards will not improve and cyclists will continue to face unecessary dangers. 

Whilst law enforcement is not the complete answer, it certainly is part of it.


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## Banjo (1 Dec 2010)

Now that the law has failed you have you considered taking a copy of that to the company involved? 

Probably achieve nothing but may make you feel better.


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## thomas (1 Dec 2010)

magnatom said:


> I'm not expecting anything to happen to that particular driver, but I wan't to make damn sure that the PF or CPS take these matters more seriously in the future. Whilst drivers like this get away with driving like this, driving standards will not improve and cyclists will continue to face unecessary dangers.
> 
> Whilst law enforcement is not the complete answer, it certainly is part of it.



Does the driver who was driving the tanker know that they were going to be charged with dangerous driving, etc, etc...or are they blissfully unaware?


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## magnatom (1 Dec 2010)

thomas said:


> Does the driver who was driving the tanker know that they were going to be charged with dangerous driving, etc, etc...or are they blissfully unaware?



They were charged and interviewed. I suspect that they now know that they will not be prosecuted.


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## magnatom (1 Dec 2010)

Banjo said:


> Now that the law has failed you have you considered taking a copy of that to the company involved?
> 
> Probably achieve nothing but may make you feel better.



I'm not going to pursue the driver. It would gain little if nothing. I am going to hound the PF though.


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## Flying_Monkey (1 Dec 2010)

magnatom said:


> I'm not going to pursue the driver. It would gain little if nothing. I am going to hound the PF though.



I think that's the only approach worth trying.


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## ohnovino (1 Dec 2010)

Truly shocking video.

I've got a horrible feeling the argument for not prosecuting is that "_he didn't actually make contact with you_"


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## Banjo (1 Dec 2010)

magnatom said:


> I'm not going to pursue the driver. It would gain little if nothing. I am going to hound the PF though.



Your probably wise.you could end up on a harrasment charge while he or she walks away laughing. 

That must be the worst example of dangerous driving past a cyclist i have ever seen that didnt actually involve a collision.

I think the adrenalin would have had me in hot pursuit pedalling furiously in a futile attempt to catch up. (been there got the Tshirt) 

PS dont be embarrassed about swearing etc .I would have equalled that AND had to go home for clean pants


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## cheadle hulme (1 Dec 2010)

Atrocious driving. Mind if I post this on Pistonheads? There has been a recent thread about another cyclist with a helmet cam who over reactes a little. It would be interesting to redress things a little.

My link

Edit - a few traffic pol on there too.


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## subaqua (1 Dec 2010)

well i posted it my facebook page. and it went in Video of the day section on a diving forum i frequent.

sadly i got a lot of "typical cyclist always playing being the victim" responses.


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## BentMikey (1 Dec 2010)

Cheadle, really, I'd prefer you not to post in cesspits like that, especially not linking to us. Thanks for the vote of confidence anyway...

LOL on that muppet about recumbents. I'm sure he rather likes Lamborghinis and many other low cars like that, and has no problem with them. I'm sure he also doesn't realise that with many low sports cars, their lights are lower than recumbent lights, and their drivers are too.


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## downfader (1 Dec 2010)

[QUOTE 1259159"]
For some reason I can't see the video?
[/quote]


I think its being watched... a LOT.

Mags.. I've forwarded the link to a few papers news email, perhaps others here could also email various newspapers and get the gist going..? They can then choose if they have an interest and might run a general peice on cyclists not having any joy with the Police, etc.


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## magnatom (1 Dec 2010)

downfader said:


> I think its being watched... a LOT.
> 
> Mags.. I've forwarded the link to a few papers news email, perhaps others here could also email various newspapers and get the gist going..? They can then choose if they have an interest and might run a general peice on cyclists not having any joy with the Police, etc.



Guys,

Can I ask that you don't forward it to any more press. I've had interest from the press and they are wanting some exclusivity (I can assure you this does not involve any money changing hands!). So to retain some impact with this, I'll keep it to this one article at the moment. If done correctly others will follow the story up.

Not a problem that you did downfader, I understand why you forwarded it, but sometimes less is more......


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## As Easy As Riding A Bike (1 Dec 2010)

What I find astonishing is that - if it hadn't been for your persistence - no-one would have informed you of the outcome. That is almost as disgraceful as the decision not to prosecute.

Good luck with whatever course of action you choose to take.


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## magnatom (1 Dec 2010)

WheelyGoodFun said:


> What I find astonishing is that - if it hadn't been for your persistence - no-one would have informed you of the outcome. That is almost as disgraceful as the decision not to prosecute.
> 
> Good luck with whatever course of action you choose to take.


Aye, I asked the PF if it was their policy to contact those who report a crime to inform them of the outcome. The answer was no. 

Very poor service.


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## ACS (1 Dec 2010)

I have also added this to my FB page. Not a lot to add except my support and echo the comments made by others.


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## downfader (1 Dec 2010)

magnatom said:


> Guys,
> 
> Can I ask that you don't forward it to any more press. I've had interest from the press and they are wanting some exclusivity (I can assure you this does not involve any money changing hands!). So to retain some impact with this, I'll keep it to this one article at the moment. If done correctly others will follow the story up.
> 
> Not a problem that you did downfader, I understand why you forwarded it, but sometimes less is more......




Fair enough, good luck btw!


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## GAVSTER (1 Dec 2010)

magnatom said:


> Aye, I asked the PF if it was their policy to contact those who report a crime to inform them of the outcome. The answer was no.
> 
> Very poor service.




Mags - I think you need to be realistic. There are getting on for 400,000 reported crimes in Scotland every year. Added to that the same in offences. There are a few hundred PFs - if PF's informed every complainant then there would need to be a lot more staff.

I think that COPFS do try and inform victims of 'solemn' crimes.

Looking at your video it's difficult to argue that the HGV's driving was truly awful and certainly was dangerous ... however the PF will make a decision on if he thinks he would get a conviction - very little point pro-ing a case if it's gonna get chucked.

Now, with Scots law working on the premise that you need corroboration - the fiscal had your statement and the video to go on. Did you also have another independent witness?

My personal view is that the driver should have been prosecuted but hey I'm a cyclist and not a prosecutor.

I do know some prosecutors - and ask them what they think.

Glad that you came out of it the right way up.

Gav


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## Peter10 (1 Dec 2010)

If he was interviewed and charged then the police's job is done and the CPS take it from there. In England and Wales the CPS won't take on a job unless they are near sure or conviction as they have targets (80%+ conviction rate). It's pathetic how the courts operate in this country. It's one of the main reasons the police get a bad reputation as people think it is their fault criminals are not prosecuted. The court system is a joke...


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## thomas (1 Dec 2010)

BentMikey said:


> Cheadle, really, I'd prefer you not to post in cesspits like that, especially not linking to us. Thanks for the vote of confidence anyway...
> 
> LOL on that muppet about recumbents. I'm sure he rather likes Lamborghinis and many other low cars like that, and has no problem with them. I'm sure he also doesn't realise that with many low sports cars, their lights are lower than recumbent lights, and their drivers are too.



I did a track day with a mate which was arranged by Piston Heads. The people I met were all very nice...we didn't talk about cycling funnily enough, but they seemed to have the good sense to test their driving on a race track


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## Black Sheep (2 Dec 2010)

thomas said:


> I did a track day with a mate which was arranged by Piston Heads. The people I met were all very nice...we didn't talk about cycling funnily enough, but they seemed to have the good sense to test their driving on a race track



there are many enthusiasts on piston heads who know that driving skill used and developed on a track can be used at slower speeds on the road, for example, smooth cornering and better braking practice 

these same people will condemn people who try and learn it on the road and push their limits on the road, believing that it is not safe and they should save that kind of thing for the track. 

there are other people on there who really shouldn't be allowed to drive.


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## magnatom (2 Dec 2010)

GAVSTER said:


> Mags - I think you need to be realistic. There are getting on for 400,000 reported crimes in Scotland every year. Added to that the same in offences. There are a few hundred PFs - if PF's informed every complainant then there would need to be a lot more staff.
> 
> I think that COPFS do try and inform victims of 'solemn' crimes.
> 
> ...



Yes indeed. But how many people pass through the NHS every day, and would patients accept not hearing about their results?

I'm not suggesting that they ring every person who makes a complaint, but there needs to be a system where you can check progress simply and where you get an idea of timescales. For example how difficult would it be to send a letter to every complainant at the time of complaint to tell them the proceedure and who and where to contact if they have not heard anything in x months time?

As far as I am aware the driver when questioned said he did not see me. That in itself is an admission of guilt, as it is clear from the video that he had every chance to see me. In fact in the video that I gave police it even shows me putting my bright yellow jacket on at the start of the commute and switiching on my B&M Ixon IQ and Hope 1 front lights!

If you could get some unofficial comments from prosecutors then that would be very interesting.


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## Jezston (2 Dec 2010)

GAVSTER said:


> Mags - I think you need to be realistic. There are getting on for 400,000 reported crimes in Scotland every year. Added to that the same in offences. There are a few hundred PFs - if PF's informed every complainant then there would need to be a lot more staff.



I dunno, I live in the east Midlands and after reporting a taxi driver for bullying me out of the way before getting out of his car and threatening me - to be honest a very minor incident compared to mags - I had an officer visit the next day, and a call a few weeks later letting me know what happened and asking me for feedback on how I felt it was handled. Nottingham isn't exactly what you'd call a low crime rate area either. I don't think it's too much to ask any police force to let people know how their cases are being handled.


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## magnatom (2 Dec 2010)

Jezston said:


> I dunno, I live in the east Midlands and after reporting a taxi driver for bullying me out of the way before getting out of his car and threatening me - to be honest a very minor incident compared to mags - I had an officer visit the next day, and a call a few weeks later letting me know what happened and asking me for feedback on how I felt it was handled. Nottingham isn't exactly what you'd call a low crime rate area either. I don't think it's too much to ask any police force to let people know how their cases are being handled.



Ah Jezston, don't get mixed up between the police and the CPS(PF). The police, after a few false starts, were happy to proceed with the charges, my problem is with the PF.


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## GAVSTER (2 Dec 2010)

magnatom said:


> Ah Jezston, don't get mixed up between the police and the CPS(PF). The police, after a few false starts, were happy to proceed with the charges, my problem is with the PF.




Indeed Mags - the police did what you would expect - they examined the case and decided that a report to the PF was the right course of action.

In terms of informing people of prosecution decisions I would again say that if every single complaint got updates the PF's would need a lot more legal staff. Just dealing with the solemn cases is huge.

Anyway - I have spoken to two PFs on the QT.

The problem is that under Scots law your video and your witness statement could be argued as coming from the same source therefore there was no independent corroboration.

The case may have been no-pro-ed because it would have most likely failed in court.

I think there should be a change to the Criminal Procedure (Scotland) Act that would allow video evidence that was obtained by an individual to be seen as independent corroboration. Obviously they would have to be unedited rushes.

When you get a response from your PF - if he says that it was not proceeded with because of lack of corroboration - then you should consider speaking to your MSP.


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## Ravenbait (2 Dec 2010)

FWIW, I'm not a lawyer etc etc etc.
As someone who has appeared as a witness in a professional capacity, I can confirm that as Scots law stands, what is important is the witness statement. You speak to what you saw. I've been involved in cases where photographs were submitted as evidence, but we had to speak to the evidence, and every single photo had to be taken AND witnessed. I would imagine that the PF decided not to proceed in this case because the only evidence was the video and the witness statement -- there was a lack of independent corroboration. The reason for this is, as I understand it, is there needs to be a witness speaking to the fact that the digital/documentary evidence accurately reflects what was there at the time. Both the evidence taker and the witness have to sign a statement to the effect that the documentary evidence is a true representation of what was there and has not been tampered with in any way.

Sam


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## magnatom (2 Dec 2010)

Thanks guys. That is very interesting. Is this similar in English law? I know of at least one case where video evidence was used to convict.

If this is indeed the case then, yes I will be in touch with my MSP and MP (I'm sure they would help at least). I also personally know an MSP from my uni days (and another prospective candidate), so I will certainly take it up with them.

Anyway, I will wait and see what the PF says.


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## CopperBrompton (2 Dec 2010)

In England, dangerous driving is a very hard charge to prove. The CPS will generally go with careless driving except in the most extreme cases, even where a collision has occurred. 

If it's true that video evidence without an independent witness is not accepted, then I would definitely write to your MP.


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## magnatom (2 Dec 2010)

Indeed, and I was to some extent resigned that the charge would be lowered to Careless Driving. However, to be completely dropped is just ludicrous. 

To anyone (sane) who views this video, it is obvious, without any reasonable doubt that the driving standard of the tanker driver was criminally poor. Yet, it seems (and this is supposition until the PF gets back to me) that the law is balanced in favour of the driver in this case. That has to change. If that requires lobbying MP's, MSP's etc, then I will do that. 

What scunners me the most is that, if I had failed to stop in time and had been crushed to death by that tanker, then it is likely that the driver would have been prosecuted and my video evidence would have been used. It would seem that only my dead body would have provided ample evidence of poor driving on the part of the tanker driver. 

It's time we took a stand and made sure that the law does not fail us in the future.


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## GAVSTER (2 Dec 2010)

magnatom said:


> Thanks guys. That is very interesting. Is this similar in English law? I know of at least one case where video evidence was used to convict.
> 
> If this is indeed the case then, yes I will be in touch with my MSP and MP (I'm sure they would help at least). I also personally know an MSP from my uni days (and another prospective candidate), so I will certainly take it up with them.
> 
> Anyway, I will wait and see what the PF says.




Video evidence is used to convict in Scottish courts every day. If there was CCTV evidence of your 'incident' and you made a statement - there would then be corroboration.

MP's have no locus reallly in Scots law. 

With the Cadder ruling there will be changes to criminal procedure law next year anyway - perhaps this would present a legislative vehicle. Also there have been calls for a change in corroboration in Scots law after Cadder and maybe this will happen.


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## magnatom (2 Dec 2010)

Gavster, you're not a lawyer are you?


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## As Easy As Riding A Bike (2 Dec 2010)

magnatom said:


> What scunners me the most is that, if I had failed to stop in time and had been crushed to death by that tanker, then it is likely that the driver would have been prosecuted and my video evidence would have been used. It would seem that only my dead body would have provided ample evidence of poor driving on the part of the tanker driver.



Yes, that provokes an interesting thought experiment. 

Let's imagine, god forbid, that you had been crushed to death in exactly the same scenario.

The powers that be decide not to prosecute - because your helmet camera evidence was not corroborated by an independent witness. 

One would hope that would provoke an outcry.

Yet the logic is precisely the same as in this case.


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## Ravenbait (2 Dec 2010)

GAVSTER said:


> Video evidence is used to convict in Scottish courts every day. If there was CCTV evidence of your 'incident' and you made a statement - there would then be corroboration.



I may not have made it clear -- this is why I think it's to do with tampering. An independent camera can be used as evidence to back up a witness statement. But witness-supplied documentary evidence is not sufficient to act as corroboration. It's there to give additional weight to the witness testimony. It's still down to what the witness will speak to.

That's just my experience in having put cases together, however.

Sam


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## Bollo (2 Dec 2010)

magnatom said:


> Thanks guys. That is very interesting. Is this similar in English law? I know of at least one case where video evidence was used to convict.
> 
> If this is indeed the case then, yes I will be in touch with my MSP and MP (I'm sure they would help at least). I also personally know an MSP from my uni days (and another prospective candidate), so I will certainly take it up with them.
> 
> Anyway, I will wait and see what the PF says.



I know that CCTV can be used as sole evidence in England, because I sat on a jury for such a case last year. I suppose it could be argued (in my case) that the CCTV operator was the independent witness as he was watching events unfold 'live', but I'd imagine that the video evidence would have been equally admissible if the footage had not been observed at the time.

I'd also support Magger's arguments about the PF's lack of communication. The time/effort/systems required to send a simple letter when the PF close any case is minute compared to the overall time and effort for the case up to the point of closure.


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## ttcycle (2 Dec 2010)

F*cks sake?!! Not enough evidence?!! What more do the plod need?!

I am angry with you Mags!


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## magnatom (2 Dec 2010)

ttcycle said:


> F*cks sake?!! Not enough evidence?!! What more do the plod need?!
> 
> I am angry with you Mags!



Why!? What did I do wrong....?



(I do actually know what you mean! )


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## magnatom (2 Dec 2010)

I can understand that tampering could be an issue. However, in this situation, it would take a master of video recon and adjustment to tamper with this in such a way as to actually falsify the video testimony. Surely this is up to a judge/jury to decide, i.e. what is the likelihood of tampering? Does the accused feel that the video has been tampered with? etc. 

The law has to change.


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## Ravenbait (2 Dec 2010)

magnatom said:


> I can understand that tampering could be an issue. However, in this situation, it would take a master of video recon and adjustment to tamper with this in such a way as to actually falsify the video testimony. Surely this is up to a judge/jury to decide, i.e. what is the likelihood of tampering? Does the accused feel that the video has been tampered with? etc.
> 
> The law has to change.



I'm not disagreeing with you.

The point is, the PF has to consider the defences available, and how easy it would be to counter them/disprove them. I had a case held up for longer than you'd imagine likely over a definition to do with the location, even though it was a clear-cut case with plenty of evidence and witnesses and everyone knew where the incident took place. If the defence argued that the video had been tampered with, how would the PF counter that? There would have to be an expert witness, who would have to be paid to analyse the footage.

As I said, I'm not disagreeing with you, but I also understand that what seems a clear, open-and-shut case can often turn out not to be when it comes to the arguments presented in court.

Sam


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## ttcycle (2 Dec 2010)

magnatom said:


> Why!? What did I do wrong....?
> 
> 
> (I do actually know what you mean! )



Just..everything..I can't even verbalise it as the rage is just spilling out...you just get on me nerves


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## magnatom (2 Dec 2010)

Ravenbait said:


> I'm not disagreeing with you.
> 
> The point is, the PF has to consider the defences available, and how easy it would be to counter them/disprove them. I had a case held up for longer than you'd imagine likely over a definition to do with the location, even though it was a clear-cut case with plenty of evidence and witnesses and everyone knew where the incident took place. If the defence argued that the video had been tampered with, how would the PF counter that? There would have to be an expert witness, who would have to be paid to analyse the footage.
> 
> ...



Don't worry, I realise where you are coming from, and it is important for me to understand this argument, so I appreciate your comments. 

OK. Let me turn this on its head. What changes in the law would be required to ensure greater weight can be placed on evidence such as my helmet camera video?

Sam, if you are willing could you PM me what your connection to the courts etc is. Just so I can understand where you are coming from. (I'd understand if you'd prefer not to of course!)


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## magnatom (2 Dec 2010)

ttcycle said:


> Just..everything..I can't even verbalise it as the rage is just spilling out...you just get on me nerves



Good, good, good. If you keep your anger focused on me, all the road users of London will be a lot safer!


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## CopperBrompton (2 Dec 2010)

magnatom said:


> What scunners me the most is that, if I had failed to stop in time and had been crushed to death by that tanker, then it is likely that the driver would have been prosecuted and my video evidence would have been used. It would seem that only my dead body would have provided ample evidence of poor driving on the part of the tanker driver.


Yes, when you put it like that, it was a bit selfish of you to brake.


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## BSRU (2 Dec 2010)

Ravenbait said:


> I'm not disagreeing with you.
> 
> The point is, the PF has to consider the defences available, and how easy it would be to counter them/disprove them. I had a case held up for longer than you'd imagine likely over a definition to do with the location, even though it was a clear-cut case with plenty of evidence and witnesses and everyone knew where the incident took place. If the defence argued that the video had been tampered with, how would the PF counter that? There would have to be an expert witness, who would have to be paid to analyse the footage.
> 
> ...



That is something similar to what I was told by a traffic Police officer as to why they would not use video evidence for minor offences, that is any not involving an actual collision. The defence can claim it has been tampered with or falsified then the courts will have to prove otherwise. In a collision case the judge would inform the jury as to the integrity of the video evidence in his opinion and how much weight to give it when deciding upon guilt.
I do not understand why they would think I would spend hours with my "Steven Spielberg Jurassic Park" editing suite just to incriminate a complete stranger, apart from the fact my pc could never cope resulting in a terminal crash and burn.


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## GAVSTER (2 Dec 2010)

magnatom said:


> Gavster, you're not a lawyer are you?




Nope - but I do understand criminal procedure in Scotland.

Again - I would contend that your problem is not with the PF's but with the law itself. sam makes some very valid points in his contribution I think about corroboration.

I understand the point you make about tampering with video but the quality of evidence in criminal cases is 'beyond ALL reasonable doubt' not 'on the 'balance of probability'.

There will be chances for the law to be changed around corroboration in the reasonably near future which is way beyond traffic offences but at the heart of Scots law itself.

Sorry I can't be more helpful.


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## magnatom (2 Dec 2010)

Gavster, you have been helpful. 

As I've said before it all hinges on the reply I get fro the PF, however, it would seem that this is indeed bigger than the PF, and is in fact an issue with the law itself. What I need is some input from a lawyer (Scottish) who would be able to help with this matter, i.e. what the current situation is, and how it could be best changed. So if anyone knows of a cycle friendly Scottish lawyer who is willing to donate some time to this (I might be out of luck!) then point them here!


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## Sh4rkyBloke (2 Dec 2010)

So video evidence is not good enough unless backed up by independent witness... and of course humans are always completely accurate in their recall of events, and are in no way open to bribery and/or threats... Bloody joke the Scottish System if this is the case! (that's not to say that English Law is any better though!)


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## magnatom (2 Dec 2010)

Sh4rkyBloke said:


> So video evidence is not good enough unless backed up by independent witness... and of course humans are always completely accurate in their recall of events, and are in no way open to bribery and/or threats... Bloody joke the Scottish System if this is the case! (that's not to say that English Law is any better though!)



Agreed. there have been many studies indicating the falability of witness accounts. That is why the law has to change. It would be wrong to accept video evidence without question, but it needs to be given significantly more weight. There will be something in the press about this at the weekend (not just about my incident). After this I hope I can get more coverage and then I can start pressing MP's etc (assuming I get a quickish reply from the PF of course!)


----------



## Coco (2 Dec 2010)

I agree with what you've said so far Magna and the decision stinks, but I can see how the video could present the PF with problems. Although it shows a lot it doesn't show the whole picture. 

Playing Devil's advocate here (pardon the pun), but did you signal to the driver to indicate that it was ok to go ahead then mis-time his speed and end up on the RAB at the same time as him? 

I'm not suggesting for a minute this is what happened, but I'm sure a lawyer could come up with this scenario and a whole lot more to discredit the value of the video. The result would be the same except you and me (taxpayer) would have wasted a lot of time and money.

If nothing else comes of this, at least us camera wearers will know that sometimes we need more than just a camera and perhaps we should also seek witnesses. Like all your other videos, there is an educational benefit in this one too.




Look forward to the media interest. This is right up their street.


----------



## boydj (2 Dec 2010)

In my experience, the video *is* the corroboration of Magnatom's evidence. I think it likely that if the driver were charged with an offence, especially the lesser offence of careless driving, and presented with the video evidence, he would plead guilty in order to minimise the sentence.


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## DrSquirrel (3 Dec 2010)

magnatom said:


> Agreed. there have been many studies indicating the falability of witness accounts. That is why the law has to change. It would be wrong to accept video evidence without question, but it needs to be given significantly more weight. There will be something in the press about this at the weekend (not just about my incident). After this I hope I can get more coverage and then I can start pressing MP's etc (assuming I get a quickish reply from the PF of course!)



Forgive me if I have missed this.


Have the Police actually spoken to the driver?

Admitting that he saw you is a witness in itself, or the opposite suggesting that he didn't see you would also prove driving without due care surely?


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## magnatom (3 Dec 2010)

DrSquirrel said:


> Forgive me if I have missed this.
> 
> 
> Have the Police actually spoken to the driver?
> ...



As far as I am aware the driver said he didn't see me at all. I agree, this in itself is an admission of guilt, however, I might only get to the bottom of this through the PF. 

Does anyone in the know, know if it is possible for me to get any access or details on the statement of the driver?


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## magnatom (3 Dec 2010)

Getting my photos taken today for some press at the weekend. More info shortly.....


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## sadjack (3 Dec 2010)

magnatom said:


> As far as I am aware the driver said he didn't see me at all. I agree, this in itself is an admission of guilt, however, I might only get to the bottom of this through the PF.
> 
> Does anyone in the know, know if it is possible for me to get any access or details on the statement of the driver?



What about a civil action of some kind? Is it possible to sue for putting you in danger? If so an application from your solicitor to the PF must surely result in you being provided with some evidence in their possession.

If it is possible to make a civil action, the balance of probabilities comes into play as mentioned in earlier in this thread.

A different approach. Might be costly though. 

Just a thought.

I would have thought that the drivers admission to the police that he did not see you, when the video footage clearly shows that you are there shows a lack of care and attention so at least a charge of driving without due care should be possible.

I don't understand the stance that the driver "may" bring a defence that the video was tampered with. Was he shown it in police interview, surely he must have. Did he bring this defence forward then? If not why not? If he was sure you were not there then it would be the first thing he would say isn't it? Let the jury decide I say.

Like you Magnatom I would be livid with this decision and would use everything I could to take it further.

Be interesting to know if you can bring a civil action in this type of situation tho.

Best of luck


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## magnatom (3 Dec 2010)

As far as I am aware there have only ever been a few private prosecutions in Scotland. I would also expect that they would be costly, and I certainly can't afford that!!

As I've mentioned above, I don't see too much merit in chasing this particular driver. I don't think it is worth it, but I think there is merit in making sure that this type of evidence can be used in future. This might require a law change.


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## CopperBrompton (3 Dec 2010)

What Jack is referring to is a civil, rather than criminal, case. I don't know the system in Scotland, but in England you can bring a small claims case for about £70.


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## magnatom (3 Dec 2010)

Ah sorry, my mistake. I do think, though that my time is better spent looking at the bigger picture. From all accounts the driver was pretty shocked when the police turned up. Hopefully he has had his wake up call, waiting to find out if he was to be charged with Dangerous Driving.


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## Banjo (3 Dec 2010)

I think the way to look at it is that you have achieved quite a bit.

The driver is now fully aware how close he came and hopefully will be more bike aware in future also you have highlighted to us lot how dangerous R.A.B.s really are. I think the danger oF R.A.B.s is that drivers are looking to the right as they approach and not where they are actually driving.

a lesser rider would have frozen in fright in the same situation.Your fast reaction saved you.


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## subaqua (3 Dec 2010)

[QUOTE 1259208"]
I don't think they would have, that's the glorious thing about the human body it can take care of itself sometimes without the need for a thought process.
[/quote]


correct. 

hence the need to think more whenm its snowy weather and not use the front brake at all


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## magnatom (3 Dec 2010)

Aye, there was no thought in my reaction at all, just instinctive reaction. Perhaps a more novice rider would have panicked, but I would suspect most seasoned riders would have managed the stop in a similar fashion.

Where I was lucky, was that I had changed the stock brake pads that came with the Ribble to koolstops a few days before. That might well have mad a metre of a difference......


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## subaqua (3 Dec 2010)

[QUOTE 1259211"]
You can use the front brake in the snow - just make sure the bike is in a straight line.
[/quote]


till it locks up and spills you onto the tarmac. i speak from bitter experience many many years ago


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## classic33 (3 Dec 2010)

magnatom said:


> As far as I am aware the driver said he didn't see me at all. I agree, this in itself is an admission of guilt, however, I might only get to the bottom of this through the PF.
> 
> Does anyone in the know, know if it is possible for me to get any access or details on the statement of the driver?




Try a request under the freedom of information act. Worked down here, Yorkshire, for me. Although the police were non to happy.


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## magnatom (3 Dec 2010)

classic33 said:


> Try a request under the freedom of information act. Worked down here, Yorkshire, for me. Although the police were non to happy.



You managed to get the drivers statement under freedom of information? I wouldn't have thought that was possible. How did you word your request?


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## gb155 (4 Dec 2010)

I have nothing else to add apart from the fact its a TOTAL Disgrace !


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## magnatom (4 Dec 2010)

Guys,

A heads up that there will be an article in the Sunday Times tomorrow. You'll be glad to know it isn't just about me and my incident, there is another member of this very forum who will be in the article as well. I'll let him announce who he is.


Fingers crossed it is a good article!


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## thomas (4 Dec 2010)

magnatom said:


> Guys,
> 
> A heads up that there will be an article in the Sunday Times tomorrow. You'll be glad to know it isn't just about me and my incident, there is another member of this very forum who will be in the article as well. I'll let him announce who he is.
> 
> ...




Someone scan and PM me a copy please....







...it'll be too cold to walk to the paper shop tomorrow morning


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## 661-Pete (4 Dec 2010)

Might even go out and get a copy of the ST! The roads are clear of snow now and I can get on the bike  

I would say the outcome is 'disappointing' rather than 'disgraceful' - these things happen so often in our legal systems (English as well as Scots) and getting off for a clear offence is just too common. Maybe the driver's employers (was he an employee or self-employed?) will have had 'words' internally. Or possibly the driver's clients?

After I witnessed a collision between two cars in April (myself being overtaken by one of them), I made a point of saying to the police "I strongly suspect that <so and so> was Driving without Due Care and Attention". Those were my words. The officer noted this, and said to me that, "since there were no injuries" _(in fact the other driver was badly shaken in my judgement, but he refused any medical attention and probably didn't say so to the cop), _it was unlikely to go any further, even though I counted as (so I assumed) and 'independent witness'. And so it was. I've heard nothing since, not from any party. And I do have an interest in seeing stupid driving like I witnessed, curbed. We all have.


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## PBancroft (4 Dec 2010)

Will be buying a copy of the ST, just hope it doesn't go the way of "cyclists are a danger on the roads and this is what happens to them"


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## benborp (4 Dec 2010)

magnatom said:


> Guys,
> 
> A heads up that there will be an article in the Sunday Times tomorrow. You'll be glad to know it isn't just about me and my incident, there is another member of this very forum who will be in the article as well. I'll let him announce who he is.
> 
> ...



Sheepishly raises hand. It was me. I think due to having some success in a prosecution magnatom mentioned my experiences to the reporter. I had previously been wary of making much of my success as I thought it was a fairly muddled example of achieving some sort of justice (I still don't know the sentencing outcome). But seeing the difficulties that magnatom and others (for example Bollo and his right turning Volvo) have had in getting their evidence of bad driving and aggression taken seriously, I now really don't think it's worth waiting for the 'perfect' video incident to highlight the current justice system's deficiencies - there's too much at stake. magnatom's got form in making a positive difference through publicity and campaigning and I think his approach backed up with what I think should be a balanced piece is what is going to get cyclists' concerns about safety and enforcement best aired. I was happy to help, I just hope my waffling made some sort of sense.


----------



## classic33 (4 Dec 2010)

magnatom said:


> You managed to get the drivers statement under freedom of information? I wouldn't have thought that was possible. How did you word your request?




Wording used was blunt & to the point. I'd been mucked about for over three years, by the police, over the incident. What was got was a photocopy of the statement with the sensitive parts blacked out. Parts such as the force headquarters, where the request was sent to. Drivers name & address, as given. But by that stage I knew more about him than the police did.

Driver that hit me mistook me for a bus, so felt safe to drive into me, me being a bus.

Consider also the pocketbooks that were carried by the officer(s) who will have visited the driver to get his side of the story, before any official statement was taken. Find out who they were & request copies of their notebooks as well. Heavily edited of course.

What you may also want to consider doing, given the other course of action your taking is to wait it out. Getting that information now could put you in a bad light.


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## subaqua (6 Dec 2010)

[QUOTE 1259215"]
Sorry but that's human error and nothing to do with the bike. If you have gripped the front brake so hard that the front wheel locks then methinks you were going a bit to fast for the conditions?
[/quote]

not entirely true thats the laws of physics applying . if the braking mech applies more friction than the road it will lock up easily. One of Newtons laws I beleive  

and granted, at 14 you generally think you are invincible and do ride a little differently than a near 40 yr old


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## thomas (6 Dec 2010)

subaqua said:


> not entirely true thats the laws of physics applying . if the braking mech applies more friction than the road it will lock up easily. One of Newtons laws I beleive
> 
> and granted, at 14 you generally think you are invincible and do ride a little differently than a near 40 yr old



I reckon it's true. The only time I've locked a wheel up was from pulling my brakes too hard...and generally on a slightly wet road surface.


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## magnatom (6 Dec 2010)

[QUOTE 1259225"]
Link to the ST article?
[/quote]

MP, you have to pay for access to ST, so I don't think links work!


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## Origamist (6 Dec 2010)

[QUOTE 1259225"]
Link to the ST article?
[/quote]

https://www.cyclechat.net/


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## 2Loose (6 Dec 2010)

thomas said:


> I reckon it's true. The only time I've locked a wheel up was from pulling my brakes too hard...and generally on a slightly wet road surface.



Newton was right about something shocker? I can see the headlines now...


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## raindog (7 Dec 2010)

A thread has been started on another forum about the horrendous Italy and Cumbria tragedies and I added the Sunday Times article and magnatom's youtube vid. After seeing the vid, a couple of none-cyclists are now asking why the cycle path wasn't being used and why the roundabout was straight-lined - something I noticed myself to be honest. These are genuine questions, and the people asking them are just as horrified by the lorry driver's agressive driving as we are.

I'm trying to carry the torch for us cyclists so if I could go back with a couple of answers it would be great.


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## BentMikey (7 Dec 2010)

raindog said:


> A thread has been started on another forum about the horrendous Italy and Cumbria tragedies and I added the Sunday Times article and magnatom's youtube vid. After seeing the vid, a couple of none-cyclists are now asking why the cycle path wasn't being used and why the roundabout was straight-lined - something I noticed myself to be honest. These are genuine questions, and the people asking them are just as horrified by the lorry driver's agressive driving as we are.
> 
> I'm trying to carry the torch for us cyclists so if I could go back with a couple of answers it would be great.



Using the cycle path:
Cyclists are not required to use the cyclepath. In many cases they make life more dangerous for us, not less dangerous. In this specific case, it goes against National Standards cycle training, which suggests you should take the lane at most junctions and roundabouts just as if you were a car. Going in the cycle lane leaves you vulnerable to cars overtaking from behind you and then cutting across your path. It also makes you even less likely to be be seen by other users on the roundabout since you're not riding where they expect to see other road users. Sticking to the left and going around the roundabout is *extremely* bad advice, despite the fact that this used to be advice in the previous version of highway code. At the beginning of that video, the cycle lane also goes through the door zone of a parked car, and being doored is one of the big dangers for cyclists. There's also a manhole cover in that lane, and slippery wet metal is something to be avoided.

On the other hand, there's some merit to the idea of staying mostly in the cycle lane, and coming out for the above mentioned hazards. That brings its own hazard though, of needing to negotiate into the main traffic stream repeatedly (mirror-signal-manoeuvre) in a relatively short distance, so I think I would have done much the same as Magnatom here and stayed in the main lane.

"Straight-lining" the roundabout:
If I'm not mistaken, that is a single lane roundabout. Given the apparent damp road conditions, this makes good sense on a two-wheeled vehicle, we don't have as much traction available as motor vehicles. There's nothing wrong with doing this per se, and there was no other traffic to come into conflict with as a result of taking a straighter line.

Those people questioning Magnatom's riding in this particular video might like to think a little more carefully about car culture, and the wish to criticise cyclists before motorists. TRRL549, a govt. report, specifically mentions how most people tend to do exactly this, because we're nearly all motorists, and cyclists are an out-tribe, subject to what is in effect a form of racism. I'll say it again, there's nothing wrong with Magnatom's cycling in this clip. Sure, he makes mistakes, and I make plenty of mistakes of my own, we all do. Just not in this video clip.


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## magnatom (7 Dec 2010)

Just to add to what Bentmikey said.....umm, err..umm, nope I can't think of anything to add. 

Raindog, out of interest what forum? Feel free to PM me if you don't want to publicise it. 

[posh voice] It's good to be able to defend ones self! [/posh voice]


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## magnatom (7 Dec 2010)

Hang on a minute.....what are you saying BM?! Are you suggesting I make mistakes!!!!!


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## magnatom (7 Dec 2010)

I forgot about this video. It is the same cycle ane going in the other direction, and it explains some of the deficiencies.

[media]
]View: http://www.youtube.com/watch?v=QPDA5xM88-Q[/media]


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## raindog (7 Dec 2010)

Thanks for your reply BentMikey, and thanks for the info by PM magnatom.


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## wesa (7 Dec 2010)

Sorry if this has already been posted, I didn't see it.

http://www.bbc.co.uk/news/uk-england-berkshire-11935490

This article implies that it is only one cyclist using a camera, I do wish journalists would actually do some research


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## thomas (7 Dec 2010)

wesa said:


> Sorry if this has already been posted, I didn't see it.
> 
> http://www.bbc.co.uk/news/uk-england-berkshire-11935490
> 
> This article implies that it is only one cyclist using a camera, I do wish journalists would actually do some research




What is poor about the article is that it has about 4 lines of actually written content, and then just quotations.


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## magnatom (7 Dec 2010)

Aye it is a poor article. In fact it is so poor, I'm not sure why the BBC bothered at all. 

When I get feedback from the PF (they were supposed to acknowledge me within 3 working days....but I will let them off for now, due to the weather), I'll probably look for some further publicity. I will try and chose who to talk to as wisely as I can, but you can't control a story once it is out.

Dave


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## wesa (7 Dec 2010)

Mags, when you refer to the PF I keep thinking of the Pun***re Fairy. "When I get feedback from the PF", _feedback_, that is one way of putting it!



I don't know why I still bother with the BBC. I recently had some first hand knowledge of an incident that they covered. I went through the article and found at least one error in every single paragraph.


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## 400bhp (7 Dec 2010)

BentMikey said:


> and cyclists are an out-tribe, subject to what is in effect a form of racism.


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## BentMikey (7 Dec 2010)

Are you disputing TRRL 549 then, 400bhp? It's easily downloadable, and is titled "Drivers perceptions of cyclists".


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## Bollo (7 Dec 2010)

400bhp said:


>


Sorry 400, but there's a well-quoted report from the Transport Research Laboratory (used to be public access, now you have to register?) that comes to this conclusion. From memory, I don't _think _it makes a direct link with racism, but the theory of out-groups that it uses can also be applied to racism, sexism, homophopia etc. A very interesting read if you can get hold. Origamist usually has this sort of thing at his fingertips.


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## Bollo (7 Dec 2010)

BentMikey said:


> Are you disputing TRRL 549 then, 400bhp? It's easily downloadable, and is titled "Drivers perceptions of cyclists".



Beat me to it!


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## HLaB (7 Dec 2010)

View attachment TRL549 Basford (2002) - Drivers Perception of Cyclists.pdf


Bollo said:


> Sorry 400, but there's a well-quoted report from the Transport Research Laboratory (used to be public access, now you have to register?) that comes to this conclusion. From memory, I don't _think _it makes a direct link with racism, but the theory of out-groups that it uses can also be applied to racism, sexism, homophopia etc. A very interesting read if you can get hold. Origamist usually has this sort of thing at his fingertips.


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## magnatom (7 Dec 2010)

The PF have got back to me......to confirm that they will get back to me within the next 20 working days!  I hope they actually manage that this time!


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## 400bhp (7 Dec 2010)

BentMikey said:


> Are you disputing TRRL 549 then, 400bhp? It's easily downloadable, and is titled "Drivers perceptions of cyclists".



Don't define cyclists as a race.

Fine, say other people stereotype us.


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## Ravenbait (7 Dec 2010)

400bhp said:


> Don't define cyclists as a race.
> 
> Fine, say other people stereotype us.



Nobody did.

In terms of social exclusion, however, and peer-group identification, the inherent problems of labelling are of the same ilk.

Sam


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## Bollo (7 Dec 2010)

Ravenbait said:


> <br />Nobody did.<br /><br />In terms of social exclusion, however, and peer-group identification, the inherent problems of labelling are  of the same ilk.<br /><br />Sam<br />


<br /><br /><br />

I think we all know what BM was saying, but it's easy for that kind of comparison to be misinterpreted. It's also ok to argue or disagree with the results of a report. The TRL don't have a monopoly on wisdom. From what I remember, that particular report did a lot of data gathering to build a picture of driver attitudes and then drew comparison with an recognised model of group behaviour, so in many ways it's uncontroversial. Contrast that with the TRL's recent report on helmet use!


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## magnatom (11 Dec 2010)

I've had a reply (snail mail) from the Procurator Fiscal informing me of the reasons for not pursing the case. The relevant paragraph (including mistakes) is as follows:



> Following a full and consideration of the circumstances contained in this report it was felt that there was insufficient admissable evidence to identify the driver of the oil tanker. As you may know, criminal proceedings cannot be raised in Scotland unless there is corroborated evidence, ie evidence from more than one source, to identify the accused. I have reviewed this case and consider that the decision was correct on the basis of the information available in this report.





This is all a bit strange and doesn't ring true at all. I know for a fact that the police interviewed the driver and had absolutely no problem in identifying him. No mention was ever made to me by the police that he was denying driving the lorry. In fact I am sure that the police officer (as well as mentioning how nice the driver was ) mentioned to me that he never saw me, i.e. so he was actually driving then.

Are there any legal bods out there? Surely, unless he denies (an probably admited ) driving the lorry, then there is no requirement for me to prove that he was? Anyway, surely his employer would be able to confirm if he was driving the lorry and anyone at his pick up, delivery would be able to confirm that he got in/out of the cab?

What I really need is to get a hold of the drivers statement. I know it has been suggested that FOI might be an option for this, but it isn't guaranteed. Do I have any other rights to get access to the statement (in Scots Law)?

Why do I get the feeling I am being fobbed off.......


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## Origamist (11 Dec 2010)

DISCLAIMER: I have no legal background.

Reading the above para from the PF, the problem appears to be that as the film was shot by you it is not considered corroborative evidence? 

Clearly, they know who the driver is, but they cannot proceed as your statement and film comes from the same and sole source (i.e you). This is presumably why it fails to meet their corroborative threshold. I would hazard that if a third party witnessed the event or filmed it, they may well have proceeded with a prosecution.

I'm glad that our legal system is different south of the border, but I'd like someone with more knowledge of Scottish law to clarify the situation.


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## magnatom (11 Dec 2010)

Origamist said:


> DISCLAIMER: I have no legal background.
> 
> Reading the above para from PF, the problem appears to be that as the film was shot by you it is not considered corroborative evidence?
> 
> ...




This what has been suggested previously, but, and this is what confuses me, surely that would mean that the evidence of the crime was at issue and not the identity of the driver, especially if I am correct that the driver admitted to driving the oil tanker. If he denied driving the oil tanker, when he was supposed to be for his employer, then that would surely mean he would loose his job anyway?!?

I definitely need to get to the bottom of this.


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## magnatom (11 Dec 2010)

I should also add, that if what you say is true Origamist, then the time has come for a change in Scottish Law.....


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## DrSquirrel (11 Dec 2010)

Thinking about England now, and the way they request info on whom the driver was for speeding camera offences... isn't it sufficient for the Police to ask the owner who the driver was, and if they cannot provide the info the owner is liable? Or does that only apply to the more dangerous act of 45 in a 40... ?

I still think with you mags, it seems there is no quarrel on whom was driving with everyone other than PF - I reckon they decided this fact *AFTER *you contacted them and are just making it up as they go along.


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## Origamist (11 Dec 2010)

magnatom said:


> This what has been suggested previously, but, and this is what confuses me, surely that would mean that the evidence of the crime was at issue and not the identity of the driver, especially if I am correct that the driver admitted to driving the oil tanker. If he denied driving the oil tanker, when he was supposed to be for his employer, then that would surely mean he would loose his job anyway?!?
> 
> I definitely need to get to the bottom of this.



I think it means that without corroborative evidence that identifies the accused committing an offence. But hey, I really don't know.


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## sadjack (11 Dec 2010)

If you no longer wish to persue the driver as your earlier posts suggests, I would consider trying to get your MP interested. He or she may write to the PF or others requesting a fresh look at the evidence and where this leaves future complaints. There are enough people just here on this board left feeling that justice has NOT been done to show sufficient public interest I would have thought.

On the other hand if a FOI act application does not get what you want in respect to statements etc, the only other course i can think of is to consider a civil action and ask for the evidence so that you can further that, a solicitors letter may be required to do so. Whether you actually go on with a civil claim is of course a matter to be decided after you see the evidence, but at least you will have it.

I would have thought anyway that your evidence, the evidence of the camera, together with the police interview evidence give the corroboration thats needed, and as you say, if not, the evidence from the company as to which of their employees was in charge of their vehicle should be enough.

Does the PF only consdier a signed confession as corroboration in this case?

Good luck with this.


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## thomas (11 Dec 2010)

sadjack said:


> On the other hand if a FOI act application does not get what you want in respect to statements etc, the only other course i can think of is to consider a civil action and ask for the evidence so that you can further that, a solicitors letter may be required to do so. Whether you actually go on with a civil claim is of course a matter to be decided after you see the evidence, but at least you will have it.



I would imagine a dry cleaning bill should be paid after the state of Mag's shorts when it happened


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## sadjack (11 Dec 2010)

Mags you could always consider starting a petition to show the feeling on this matter.

It need not be limited to Scotland as many people visit / tour there every year. Your issue is of concern to everybody as it seems that tankers can do as they please and people have no way of having their complaint taken forward despite quite compelling evidence.


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## downfader (11 Dec 2010)

sadjack said:


> If you no longer wish to persue the driver as your earlier posts suggests, I would consider trying to get your MP interested. He or she may write to the PF or others requesting a fresh look at the evidence and where this leaves future complaints. There are enough people just here on this board left feeling that justice has NOT been done to show sufficient public interest I would have thought.
> 
> On the other hand if a FOI act application does not get what you want in respect to statements etc, the only other course i can think of is to consider a civil action and ask for the evidence so that you can further that, a solicitors letter may be required to do so. Whether you actually go on with a civil claim is of course a matter to be decided after you see the evidence, but at least you will have it.
> 
> ...




I think going down the MP route could be an option, and trying to get them to address the press to raise awareness. I think there has been fobbing of one's off.


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## Coco (11 Dec 2010)

That does seem a bizarre excuse from th PF. I can't see how the identity of the driver can't be ascertained even without your video. You have the Reg and the date/ time. I agree it sounds like they are making it up as they go along.


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## Ravenbait (11 Dec 2010)

There is nothing independently identifying the driver. The video does not show his face. There is no first-hand evidence demonstrating who the driver was. If the driver, in court, denied being behind the wheel, how would the PF prove otherwise?

I know it looks like you are being fobbed off, but my experience is that evidence has to be pretty clear-cut. I could give you much more bizarre examples of evidence being described as insufficient if it were not unprofessional to do so (we've already discussed this in PM, Mags, so you know why I can't). The response from the PF is pretty much what I would have expected.

Sam


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## Bollo (12 Dec 2010)

Ravenbait said:


> <br />There is nothing independently identifying the driver. The video does not show his face. There is no first-hand evidence demonstrating who the driver was. If the driver, in court, denied being behind the wheel, how would the PF prove otherwise?


So, following this logic, the lorry driver, or anyone else can kill anyone using a car, lorry whatever and as long as there's no one there to see it (or they're wearing a balaclava) they cannot be prosecuted, even if they admit to driving the vehicle and are expected to be doing so by their employer? 

Lazy police and lazy PF. They don't give a cuss.


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## Origamist (12 Dec 2010)

Bollo said:


> So, following this logic, the lorry driver, or anyone else can kill anyone using a car, lorry whatever and as long as there's no one there to see it (or they're wearing a balaclava) they cannot be prosecuted, even if they admit to driving the vehicle and are expected to be doing so by their employer?
> 
> Lazy police and lazy PF. They don't give a cuss.



This is what confuses me (unsurprisingly as I glean most of my knowledge of the legal system from Kavanagh QC) as the police would(?) have questioned the registered keeper of the vehicle and asked him/her who was driving it at the time of the alleged incident (Road Traffic Act 1988 Section 172). If the driver was then identified and interviewed would his/her statement not be considered corroborative evidence - particularly as it appears that he has admitted driving the HGV at the time of the incident? What's more, it would surely make it harder for the accused to deny being the driver at a later date.


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## Vikeonabike (12 Dec 2010)

Ravenbait said:


> There is nothing independently identifying the driver. The video does not show his face. There is no first-hand evidence demonstrating who the driver was. If the driver, in court, denied being behind the wheel, how would the PF prove otherwise?




Gathering evidence to prove who was driving the vehicle at the time is not difficult. The vehicle in question was a HGV and therefore would have had a tacograph fitted. This has to be signed by the driver and handedin at the end of each day. The company would have had to showwho was driving the vehicle when a Notice of Intended Prosecution was sent. I would be pretty sure that the company would also have log sheets, CCTV etc, So independant evidence should be readily available. If it isn't then a lot of other people including the company and the driver could be in a lot of bother.

It's a fob off. I've had to shout and scream and stamp my feet to get the bloke to court for due care and attention that knocked me off my Police Motorbike in the summer...CPS weren't interested to start with!


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## magnatom (12 Dec 2010)

I know where RB is coming from, but as Vike says, it isn't hard to prove who was driving. Is it possible the police didn't investigate this enough? I will be contacting the PF on Monday to try and clarify. If I'm not happy after that I can take my complaint to stage 2, i.e. further up the chain. I really do need to get the drivers statement though. I'll also speak to the CTC. Perhaps they can direct me to a friendly Scottish lawyer.


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## sadjack (12 Dec 2010)

Mags, it maybe of course there is no actual statement from the driver. He would (should) have been interviewed under caution so there may only be the police records, (contemp notes / tape recording) of what he said. 

The reason given so far for not going for the driver seem more of an excuse to justify their decision. Vike makes some very good points about work records etc.

It will be very interesting to see the outcome of this.


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## killiekosmos (12 Dec 2010)

I don'y see how the identity of the driver can be in any doubt. He has admitted being the driver and he was driving an HGV for his employer so there should be a tachograph fitted which identifies who is driving. Mags video shows the actions of the driver. The corroboration of the incident is the video and Magnatom's statement.

Unfortunately it strikes me that PF just does not thing this matter is serious enough to pursue. If the driver was charged might he plead guilty anyway?


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## magnatom (13 Dec 2010)

Just a quick update on this. I have called the PF, but had to leave a message. Hopefully they will get back to me today. (Off work with D&V!)

However, I was looking back at some notes I made about my interactions with the police shortly after the incident (7th March at 13:50 to be precise). The PC that I made the statement to definitely suggested that he claimed that 'he didn't see me'. That doesn't sound like a denial of being there.

The PC also said that 'apparently he drives an automatic which would have to go down all the gears as well as up'.....


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## Sh4rkyBloke (13 Dec 2010)

magnatom said:


> Why do I get the feeling I am being fobbed off.......



Because you are? That's p*ss poor, IMO. Unless the Police lied to you about interviewing the driver then the PF should just be able to contact the Police and get hold of the statement which, as you say, proves he admitted being the driver. Someone's telling porkie pies!!


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## sadjack (13 Dec 2010)

Have a look at this Mags, you may have found it in your own research already. It has a nice explanation on corroboration in Scottish Law

http://www.hingstons.co.uk/laws-Corroboration-no.html

If I am reading it right the PF seem to be saying that your testimony and the camera footage is one piece of evidence and needs to be corroborated. (I would have thought one corroborated the other as to the actual incident, but not as to the identity of the driver) 

I would have thought that the police interviews and work related documents would do that.

I wonder what sort of report has been put in front of the PF? 

Seems like a right can of worms. God forbid that you had been hurt in this incident as it seems they are saying that the driver would not have been prosecuted if you had!

Again good luck with this. I hope you get a good outcome.


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## magnatom (13 Dec 2010)

Right. I managed to have a chat with the PF today, in particular the PF that reviewed the case following my complaint. It was a very interesting conversation...


At the start of this process I thought the police were at fault, then I felt that the PF were at fault, now it would appear that the Scottish Government and the Supreme Court are at fault!

As suggested in the letter I was sent, the problem was indeed identification of the driver, which, yes sound totally crazy. Of course none of us linked my case to this. In October this year a Supreme court ruling overturned the normal practice of the Scottish police of questioning a suspect without a lawyer present. 

This is relevant to me as the driver in this case was interviewed in March this year, without a solicitor present during which he did admit to driving the HGV. However, due to the Supreme Court ruling this admission is inadmissible in court.

As Vike suggested there are other ways of determining who was driving the HGV, unfortunately the police thought there was no need with the statement admission. So there were no other corroborating checks. The PF agreed that having the HGV tachy and work rotas etc would probably have covered this. In hindsight the police probably could have done a better job and this wouldn't have been an issue.

Out of interest I asked the PF about the issue of corroboration with respect to the helmet camera. Yes he agreed that my testimony and my video evidence would not count as corroboration. However, there is apparently a way around this. When it gets to court you have an 'expert witness', in this case possibly a traffic cop, who would describe what he sees in the video and his opinion of it. So the good news is that camera evidence is acceptable in Scotland despite the differences in the law.

All in all an interesting tale, where on this occasion the driver got away with it.


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## DrSquirrel (13 Dec 2010)

So in Scotland you just refuse to have a lawyer with you?

How are they supposed to work with this?


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## subaqua (13 Dec 2010)

DrSquirrel said:


> So in Scotland you just refuse to have a lawyer with you?
> 
> How are they supposed to work with this?




if you read the info in the linky then no, thats not how it would work. they have the right to the lawyer present. if they refuse the lawyer then the police can question them. 

not the best result for magnatom here but it may help any future prosecutions by ANY road user


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## boydj (13 Dec 2010)

The ruling would not come into it if you were offered and refused a lawyer.

While it's a far from satisfactory outcome, I think we can take some consolation from the fact that the driver would at least have been given something to think about, after being interviewed under caution, and probably had some months of worry over a possible prosecution and a threat to his job.


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## DrSquirrel (13 Dec 2010)

Okay - were they given he option? did they refuse? etc etc


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## GAVSTER (13 Dec 2010)

magnatom said:


> Right. I managed to have a chat with the PF today, in particular the PF that reviewed the case following my complaint. It was a very interesting conversation...
> 
> 
> At the start of this process I thought the police were at fault, then I felt that the PF were at fault, now it would appear that the Scottish Government and the Supreme Court are at fault!




Mags - this is what I posted about two weeks ago.

It is not the polis or the PF that is at fault it is the Scottish Government that is at fault (you could try and blame the ECHR too but ..)

The ruling they refer to is the Cadder ruling - one that was inevitable after the Solduz judgement. i mentioned that before.

I would say again. Take it up with your MSP and tell him or her to tell Kenny MacAskill the Scottish Justice Secretary that your're not happy.

To the subsequent poster - it is not the absense of a lawyer that is at fault according to EHCR but the lack of access to one.

In England and Wales under the PACE Act there is an automatic right to legal representation. In Scotland because of the old system of corroboration that was not the case - it is now under new guidelines from the Lord Advocate.


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## magnatom (16 Dec 2010)

Sorry guys, I've been under the weather recently so did manage to reply to this.

GAVSTER, if you did, I missed it! Sorry! What is there to take up with my MSP? The issue seems to be out of my hands, and as far as I can tell nothing that I can do, and the protocol for interviewing the accused has changed already.


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## JoysOfSight (16 Dec 2010)

Why can't they re-interview the driver?

Are they saying if they'd interviewed someone for multiple-homicide but this rule change came along, they'd have let him off?


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## As Easy As Riding A Bike (16 Dec 2010)

JoysOfSight said:


> Why can't they re-interview the driver?
> 
> Are they saying if they'd interviewed someone for multiple-homicide but this rule change came along, they'd have let him off?



A very good point.

He hasn't been convicted on the basis of evidence given without a lawyer. 

The prosecution hasn't even started.


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## magnatom (16 Dec 2010)

I have no idea of what could and couldn't be done here, although it may have run out of time, as it has been more than 6 months since he was charged. What are the rules in Scotland?

The problem is I don't know where I can and cannot push. Anyway, I'm not sure if I want to push any more. As I mentioned earlier, it is the bigger picture I am interested in.

What is good news were the comments from the PF about the admissibility of helmet camera evidence, i.e. an expert witness can be brought in. That is useful information for anyone in Scotland. If anyone tries to suggest that the video evidence is not admissible, this information could be very useful.


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## classic33 (16 Dec 2010)

magnatom said:


> I have no idea of what could and couldn't be done here, although it may have run out of time, as it has been more than 6 months since he was charged. What are the rules in Scotland?
> 
> The problem is I don't know where I can and cannot push. Anyway, I'm not sure if I want to push any more. As I mentioned earlier, it is the bigger picture I am interested in.
> 
> What is good news were the comments from the PF about the admissibility of helmet camera evidence, i.e. an expert witness can be brought in. That is useful information for anyone in Scotland. If anyone tries to suggest that the video evidence is not admissible, this information could be very useful.



I can sympathise. I bet there was a stage when you would have settled for the drivers head on a plate. You passed that stage & found yourself fighting a new battle, against the system. System appear to have won.

Early on, before you removed the clip from youtube, you mentioned you think you know where the tanker was coming from. If this is the case why not write to the company operating the site. You've already done this with First. And if if looking at the larger picture we manage to get a company willing to help out in the making of the video, would that not help?


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## GAVSTER (16 Dec 2010)

magnatom said:


> Sorry guys, I've been under the weather recently so did manage to reply to this.
> 
> GAVSTER, if you did, I missed it! Sorry! What is there to take up with my MSP? The issue seems to be out of my hands, and as far as I can tell nothing that I can do, and the protocol for interviewing the accused has changed already.



Your case is going nowhere I'm afraid but you might get the law changed so that corroboration in Scots law is made more sensible so that video evidence could be used along your statement to get a conviction.


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## Amanda P (16 Dec 2010)

magnatom said:


> As Vike suggested there are other ways of determining who was driving the HGV, unfortunately the police thought there was no need with the statement admission. So there were no other corroborating checks.



This is all very interesting, and I understand where you going from here.

But, surely, armed with this new information, it's not too late to collect evidence of who was driving that tanker on that day - the tacho discs and drivers' records (delivery notes, rosters etc) should still be filed somewhere and could still be examined. Or the driver could simply be re-interviewed, this time with the option of having a lawyer present. 

As you say, though, after all this delay, it probably is too late. Justice delayed is justice denied.


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## Ravenbait (16 Dec 2010)

Uncle Phil said:


> As you say, though, after all this delay, it probably is too late. Justice delayed is justice denied.



I don't know if there's a time bar (a statutory timescale for taking a case) on road traffic offences. Might be worth checking.

On the other hand, it might also be time to decide what can be learned from this and move on. The likelihood of the same circumstances arising again (the change from not needing a lawyer present to needing one during the course of an investigation, which is what seems to have happened here) is very low.

Sam


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## jdrussell (16 Dec 2010)

Hi,

Firstly, I think the video is shocking.  I have watched three times now and as a cyclist it gives me chills every time I watch it. I'm glad, first and foremost, that you are OK and survived this ordeal even though you were obviously shaken up. I totally understand the points made about corroborating evidence, and no, I am not saying this is right. Of course the sole video evidence of the person riding the bike should be used as primary evidence material. No further evidence should be necessary. The only reason that it shouldn't be submitted is if you work with Stephen Spielberg on the next instalment of Avatar, where you have the means available to edit the video.

What also leaves a sour taste in my mouth is the fact that the PF's letter states that they have been unable to contact the driver, this is an outright lie. The letter is also shockingly written. It astounds me how some people can get to positions like this and are unable to do their job properly on a multitude of levels.

I hope you get this sorted in your favour, I really do as it really leaves a sour taste in my mouth. If it is doing that to me, god knows what you are going through with this.

Jon


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## CopperBrompton (16 Dec 2010)

Ravenbait said:


> I don't know if there's a time bar (a statutory timescale for taking a case) on road traffic offences.


In England, it is 14 days to issue a notice of intended prosecution, and six months to bring the matter before a court.


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## BILBO (16 Dec 2010)

Hi, there. I have just watched your video and it brought back a horrible memory for me because something very similar happened to me on a roundabout in London. I was three quarters of the way round the roundabout when a huge truck approached and what is amazing is that I made eye contact with the driver because I am very wary of trucks and he slowed but then accelerated forcing me into an emergency stop which was terrifying because I knew there was loads of traffic behind me. I have never been so angry in my life and shouted a load of abuse at him when I got round the other side whereupon he shouted abuse at me and threatened me with violence. He was eating a sandwich as he drove onto the roundabout I might add! It was a hideous experience because it was so deliberate, you really do wonder what sort of people are driving around out there. 

Your headcam is interesting, where can I get one and how much?

ta 

Bilbo


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