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Post by Einhorn on Mar 5, 2023 18:10:59 GMT
I can certainly understand how a jury would come to the conclusion that suddenly screaming at an elderly cyclist might cause her to start and fall from her bicycle. I can also see how a jury would conclude that it was foreseeable that this might lead to her death, given the very close proximity to a busy highway. I see no problem with this aspect of the case at all. What point are you making about 'Caldwell Recklessness' I am stating the law as it appears on the Crown Prosecution Services' own website. I don't know why you have even brought recklessness into the discussion, given that negligence and recklessness are not the same thing. And I totally get your confusion. But the point with Caldwell, or rather the discontinuance thereof, is that it introduces subjectivity into legal argument. So, per your example, the jury may well conclude that it was foreseeable. i Indeed, given the 2 second time-frame, I'd seriously doubt whether anyone would reasonably have foreseen the outcome of that exchange.
(Although if anyone really wanted to contend otherwiseynviction.
The only confusion is on your part, Squeaky. Recklessness and negligence are not the same thing. The test is of reasonable foreseeability and what the reasonable person would have expected to happen in those circumstances. The correct question for the jury was: would a reasonable person have understood that it is extremely dangerous to startle an elderly cyclist using a footpath close to a busy highway. If the answer is yes, the test is satisfied. If you need further convincing, take a look at the name of the crime charged: it is gross negligence manslaughter, not gross recklessness manslaughter. You say that is incorrect. But it is notable that only you say this is incorrect. The trial judge did not agree with you. I have explained why this is the case. Your agreement with the judges in the case simply isn't necessary |
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Post by Toreador on Mar 5, 2023 18:17:08 GMT
And I totally get your confusion. But the point with Caldwell, or rather the discontinuance thereof, is that it introduces subjectivity into legal argument. So, per your example, the jury may well conclude that it was foreseeable. i Indeed, given the 2 second time-frame, I'd seriously doubt whether anyone would reasonably have foreseen the outcome of that exchange.
(Although if anyone really wanted to contend otherwiseynviction.
The only confusion is on your part, Squeaky. Recklessness and negligence are not the same thing. The test is of reasonable foreseeability and what the reasonable person would have expected to happen in those circumstances? The correct question for the jury was: would a reasonable person have understood that it is extremely dangerous to startle an elderly cyclist using a footpath close to a busy highway. If the answer is yes, the test is satisfied. If you need further convincing, take a look at the name of the crime charged: it is gross negligence manslaughter, not gross recklessness manslaughter. You say that is incorrect. But it is notable that only you say this is incorrect. The trial judge and the appeal court do not agree with you. I have explained why this is the case. Your agreement with the judges in the case simply isn't necessary So you think the pedestrian should have considered the cyclist would steer on to the road when a car was coming. |
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Post by Einhorn on Mar 5, 2023 18:19:44 GMT
The only confusion is on your part, Squeaky. Recklessness and negligence are not the same thing. The test is of reasonable foreseeability and what the reasonable person would have expected to happen in those circumstances? The correct question for the jury was: would a reasonable person have understood that it is extremely dangerous to startle an elderly cyclist using a footpath close to a busy highway. If the answer is yes, the test is satisfied. If you need further convincing, take a look at the name of the crime charged: it is gross negligence manslaughter, not gross recklessness manslaughter. You say that is incorrect. But it is notable that only you say this is incorrect. The trial judge and the appeal court do not agree with you. I have explained why this is the case. Your agreement with the judges in the case simply isn't necessary So you think the pedestrian should have considered the cyclist would steer on to the road when a car was coming. Whatever the cyclist did was involuntary. She was startled. That tends to happen when somebody very close to you suddenly screams at you. |
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Post by Einhorn on Mar 5, 2023 18:21:18 GMT
I can certainly understand how a jury would come to the conclusion that suddenly screaming at an elderly cyclist might cause her to start and fall from her bicycle. I can also see how a jury would conclude that it was foreseeable that this might lead to her death, given the very close proximity to a busy highway. I see no problem with this aspect of the case at all. What point are you making about 'Caldwell Recklessness' I am stating the law as it appears on the Crown Prosecution Services' own website. I don't know why you have even brought recklessness into the discussion, given that negligence and recklessness are not the same thing. And I totally get your confusion. But the point with Caldwell, or rather the discontinuance thereof, is that it introduces subjectivity into legal argument. So, per your example, the jury may well conclude that it was foreseeable.
But would the defendant have reasonably foreseen it? I'd say that's dubious. Indeed, given the 2 second time-frame, I'd seriously doubt whether anyone would reasonably have foreseen the outcome of that exchange.
(Although if anyone really wanted to contend otherwise, I'd suggest that the driver would also share culpability).
But as it stands, it was a freak occurrence. And an unsafe conviction.
I would add that not only did the judge and jury not agree with you, but it would appear that the defendant's own lawyers don't agree with you, Squeaky. If the link in the OP is correct, they are not appealing the conviction; they are only appealing the sentence. |
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Post by The Squeezed Middle on Mar 5, 2023 18:22:17 GMT
The only confusion is on your part, Squeaky. Recklessness and negligence are not the same thing. The test is of reasonable foreseeability and what the reasonable person would have expected to happen in those circumstances. The correct question for the jury was: would a reasonable person have understood that it is extremely dangerous to startle an elderly cyclist using a footpath close to a busy highway. If the answer is yes, the test is satisfied. If you need further convincing, take a look at the name of the crime charged: it is gross negligence manslaughter, not gross recklessness manslaughter. You say that is incorrect. But it is notable that only you say this is incorrect. The trial judge did not agree with you. I have explained why this is the case. Your agreement with the judges in the case simply isn't necessary So you're going for objective negligence and I don't think that would hold water in light of Caldwell. I disagree with the verdict and I think that it will be overturned on appeal. |
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Post by Einhorn on Mar 5, 2023 18:25:27 GMT
The only confusion is on your part, Squeaky. Recklessness and negligence are not the same thing. The test is of reasonable foreseeability and what the reasonable person would have expected to happen in those circumstances. The correct question for the jury was: would a reasonable person have understood that it is extremely dangerous to startle an elderly cyclist using a footpath close to a busy highway. If the answer is yes, the test is satisfied. If you need further convincing, take a look at the name of the crime charged: it is gross negligence manslaughter, not gross recklessness manslaughter. You say that is incorrect. But it is notable that only you say this is incorrect. The trial judge did not agree with you. I have explained why this is the case. Your agreement with the judges in the case simply isn't necessary So you're going for objective negligence and I don't think that would hold water in light of Caldwell. I disagree with the verdict and I think that it will be overturned on appeal. You are entirely wrong to bring Caldwell into the discussion. Caldwell is concerned with the mens rea for recklessness. It has nothing to do with negligence. All negligence is judged by the standard of the reasonable man on the Clapham omnibus; in other words, the test is objective. You have completely screwed things up by bringing recklessness into a discussion about negligence. And the conviction will not be overturned on appeal. If the OP is correct, the only thing being appealed is the sentence. |
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Post by The Squeezed Middle on Mar 5, 2023 18:25:36 GMT
I would add that not only did the judge and jury not agree with you, but it would appear that the defendant's own lawyers don't agree with you, Squeaky. If the link in the OP is correct, they are not appealing the conviction; they are only appealing the sentence. Then I'd suggest that the vulnerable defendant was extremely poorly advised. |
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Post by Einhorn on Mar 5, 2023 18:27:23 GMT
I would add that not only did the judge and jury not agree with you, but it would appear that the defendant's own lawyers don't agree with you, Squeaky. If the link in the OP is correct, they are not appealing the conviction; they are only appealing the sentence. Then I'd suggest that the vulnerable defendant was extremely poorly advised. She would have been very poorly advised if she was advised by someone who does not understand the difference between negligence and recklessness, Squeaky. The CPS's own site lists the criteria for gross negligence manslaughter.. They are the standard criteria for negligence. |
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Post by The Squeezed Middle on Mar 5, 2023 18:27:54 GMT
You are entirely wrong to bring Caldwell into the discussion. Caldwell is concerned with the mens rea for recklessness. It has nothing to do with negligence. All negligence is judged by the standard of the reasonable man on the clapham omnibus... So was recklessness in the Caldwell days. That changed with R v G and another [2003]. I'd suggest that its scope is wider than just Arson. |
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Post by Einhorn on Mar 5, 2023 18:30:27 GMT
You are entirely wrong to bring Caldwell into the discussion. Caldwell is concerned with the mens rea for recklessness. It has nothing to do with negligence. All negligence is judged by the standard of the reasonable man on the clapham omnibus... So was recklessness in the Caldwell days. That changed with R v G and another [2003]. I'd suggest that its scope is wider than just Arson. Fine. Either you don't understand or you're pretending not to understand. You're citing Caldwell when the relevant citation is Donoghue v. Stevenson. Don't believe me? Go check the CPS website I linked above. The judge, the defendant's lawyers, and the CPS are all wrong. The only person who is correct here is the person who doesn't even have a law degree. That would be you, Squeaky. Well done! |
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Post by The Squeezed Middle on Mar 5, 2023 18:31:54 GMT
We'll see, Whoiney.
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Post by Einhorn on Mar 5, 2023 18:33:39 GMT
Explain how that's going to happen, Squeaky. How can it possibly happen if she is not appealing the conviction? The link in the OP says she is only appealing the sentence, which is an entirely different thing from appealing the conviction. Do you even understand that? |
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Post by The Squeezed Middle on Mar 5, 2023 18:43:01 GMT
Explain how that's going to happen, Squeaky. How can it possibly happen if she is not appealing the conviction? The link in the OP says she is only appealing the sentence, which is an entirely different thing from appealing the conviction. Do you even understand that? What I understand, Whoiney is:
1) That this woman is innocent. 2) That she was very poorly advised (and that no-one is really interested in helping her because she's one of societys outcasts). 3) And that as long as she isn't in prison then her conviction probably won't impact her life too much (and that her extremely poor solicitors are at least sufficiently pragmatic to realise that, hence going for the low-hanging fruit of a sentence appeal). 4) How to tweak your psychoses (and I'm very good at that).
And I'm bored with you for now Whoiney, so there'll be no further replies to you. Cheers!  |
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Post by Einhorn on Mar 5, 2023 18:46:12 GMT
Explain how that's going to happen, Squeaky. How can it possibly happen if she is not appealing the conviction? The link in the OP says she is only appealing the sentence, which is an entirely different thing from appealing the conviction. Do you even understand that? What I understand, Whoiney is:
1) That this woman is innocent. 2) That she was very poorly advised (and that no-one is really interested in helping her because she's one of societys outcasts). 3) And that as long as she isn't in prison then her conviction probably won't impact her life too much (and that her extremely poor solicitors are at least sufficiently pragmatic to realise that, hence going for the low-hanging fruit of a sentence appeal). 4) How to tweak your psychoses (and I'm very good at that).
And I'm bored with you for now Whoiney, so there'll be no further replies to you. Of course, you're bored, Squeaky. You conflated recklessness with negligence, two entirely different things in law. If the Daily Mail is to be believed, her lawyers don't contest the conviction or the test applied by the court. Everyone (except you) is in agreement that the law was properly applied in respect of the conviction itself. The only question to be settled is whether the sentence was fair. That will be decided by the Court of Appeal. |
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Post by Equivocal on Mar 5, 2023 19:59:31 GMT
She 'screamed' at the cyclist to 'get off the fucking path' beside a busy road. It was foreseeable that this might have shocked the old lady into falling from her bicycle onto the busy highway. Whether that was 'gross' negligence is arguable. But it's possible to see how the judge and jury might have arrived at that conclusion. Where's the mystery? Whether the footpath was designated for cyclist use is immaterial. Gross negligence is doing a lawful act in a grossly negligent manner. If the cyclist shouldn't have been on the footpath, it would have been lawful for the pedestrian to tell her to use the road. But she is not entitled to do that lawful act in a grossly negligent way. Suddenly screaming profanities at someone so as to shock them into a fall onto a busy road is arguably grossly negligent. The question of whether the sentence was fair is an entirely separate matter. The press reports are incomplete, but the Cambridgeshire Police account suggests that the violent gesticulation was the unlawful act. Whilst it is true that a grossly negligent act would be considered unlawful, I think it is substantially more likely that the police account would describe it as such, rather than using the words unlawful. My bet would be on unlawful act rather than gross negligence. I tend to agree that the designation of the footpath is immaterial; as long as the woman believed the cyclist was using the footpath and committing an offence, she was entitled to use reasonable means to prevent the offence continuing. It is possible a jury might find the means constituted unreasonable force, but I doubt it. As I said earlier it all seems a little odd, perhaps due to the press reports. No doubt all will be clarified when the appeal is reported.
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