Cycling UK Forum

..have just received an email that there is to be an appeal of the sentence... good work by all who signed the petition... Won't bring Audrey back maybe we can see some justice and ensure this driver is off the road..

Where's the "like" button?

The court has rejected the appeal, original sentence stands. Full court decision here: http://www.scotland-judiciary.org.uk/9/1134/HMA-v-GARY-MCCOURT

To sum up though:
1. The original sheriff was wrong to mention helmets
2. The conviction fell within the 3rd banding for sentencing for this crime (the lowest)
3. Sentencing is within guidelines.
4. Jog on.

Sorry to be devil's advocate, but I think this is the best that could have been expected. Having read through the testimony in the article, I'd say it falls only within the category 'death by careless driving', not 'dangerous'. And at least that driver is off the road for an extended period of time, maybe permanently. Nothing will bring back the deceased nor comfort her family.

The collision is very similar to one I was in last November, with this one big difference. I'm still alive, only slightly injured. Audrey Fife, sadly, isn't. And my collision happened at night, whereas this one seems to have happened in daylight. Speeds were about the same, as was angle of impact. And I never expected 'my' motorist to get anything more severe than 'careless driving', as indeed it turned out.

I'm presuming Scots law and English law are broadly the same, in this area, apart from obvious differences in terminology. Unless someone can tell me otherwise.

A tragic case, but I think that's it.

How many tragic cases is one allowed to cause before there's some meaningful sanction or the the permanent removal of the licence to drive?

A good summary by honesty, but the linked judgment is well-worth reading if anybody really wants to get to the heart of the process.

I think this bit is particularly significant:

On sentencing, the sheriff remarked that Mrs Fyfe’s failure to wear a helmet may have contributed to her death. However, on appeal, the court observed that no evidence was led by either party as to the effect of not wearing a cycle helmet, and whether or not this may have caused or contributed to Mrs Fyfe’s death, nor were any submissions made to the sheriff by either party on this matter. It is clear from the material placed before the court at the appeal hearing that there is a degree of controversy as to the efficacy of cycle helmets in preventing death. The court considered that the sheriff was wrong to regard this as a matter of judicial knowledge. (My emphasis)

I take the sentence I've highlighted to mean that, in courts in Scotland at least, the benefits of wearing a helmet are not to be taken for granted as a matter of common sense.

(I hope this isn't now turned into a helmet thread, based on what an evidence-based court decision might be.)

HMA v Gary McCourt http://www.scotland-judiciary.org.uk/9/1134/HMA-v-GARY-MCCOURT?utm_source=Newsletters&utm_campaign=4dc4fff4f5-SLN_25_09_13&utm_medium=email&utm_term=0_1eedb22a32-4dc4fff4f5-65402981

From today's Scottish Legal News

The Crown has failed in an appeal against what it submitted was an “unduly lenient” sentence imposed by a sheriff after a motorist was convicted of causing the death of a cyclist by driving without due care and attention.

The Criminal Appeal Court held that there was “no error” in the reasoning which led the sheriff to the conclusion that the respondent’s driving should be placed in the least serious level of gravity and could not say that the sheriff could only have reasonably considered a sentence of imprisonment to be appropriate.

On 8 April 2013, after a trial at Edinburgh Sheriff Court, a jury convicted Gary McCourt by a majority verdict of causing the death of Audrey Fyfe, 75, in Edinburgh in August 2011.

Following his conviction, it emerged that he had been jailed for two years in 1986 after being found guilty of causing another cyclist's death by reckless driving.

McCourt was sentenced on 3 May 2013 to 300 hours community service and was given a five-year driving ban after the sheriff said hat Mrs Fyfe’s failure to wear a helmet may have contributed to her death.

The Crown appealed against sentence, but the Criminal Appeal Court refused the appeal.

A summary of the appeal court’s judgment stated: “With regard to culpability, it was not disputed on behalf of the respondent that he was culpable in failing to look to his right before he began the manoeuvre of turning to his right. It was also accepted that because of his careless driving the most tragic of consequences resulted.

“However, in all the circumstances, the court could not disagree with the sheriff’s categorisation of this as a momentary inattention, the result of which was a low impact, low speed collision with Mrs Fyfe’s cycle.

“Mrs Fyfe was clearly a vulnerable road user, and the sheriff recognised this. However, the sheriff carried out a careful and detailed assessment of culpability and the court could detect no error in the way in which he went about this delicate task.

“The court could also detect no error in the reasoning which led him to the conclusion that the respondent’s driving should be placed in the third, least serious, level of gravity.”

The appeal judges observed that the sheriff sets out in some detail in his report to the court his approach to the previous conviction.

The judgment added: “This approach did not depend only on the fact that the previous conviction was some 27 years ago, but also took account of the quality of the respondent’s driving.

“The sheriff stated that had the quality of the respondent’s driving been at the more serious end of the range of carelessness, he would have been entitled to infer that the respondent had not learnt his lesson from the prior conviction, imprisonment and disqualification, but he was not able to do so.

“Despite the sheriff’s error in treating the fact that Mrs Fyfe was not wearing a cycle helmet as a mitigatory factor, the court was unable to say that the sentence of a community payback order with the maximum number of unpaid hours was unduly lenient.

“It did not fall outside the range of sentences which the sheriff, applying his mind to all the relevant factors, could reasonably have considered appropriate. In particular, the court could not say that, in all the circumstances of this case, the sheriff could only have reasonably considered a sentence of imprisonment to be appropriate.”

threads merged

It does seem from the appeal court's ruling, that the excuse of "I only hit her gently, I didn't even notice doing it" is officially accepted by this (Scottish) court (and has been, in effect by the rest of the UK too).

Judiciary of Scotland wrote:He did not think that his vehicle had made contact with the cycle or cyclist. He did not hear or feel any contact.

PC Stephen Wilson, an accident reconstruction expert, produced a collision investigation report in which he indicated that the markings and the damage to the car and the bicycle suggested a subtle impact that caused the rider of the cycle to lose control and fall. His conclusion was that the respondent’s car struck the rear wheel and offside pannier of the bicycle. The damage was very slight, therefore speed on impact was low and speed was not a contributory factor. From the position of a scratch on the road surface made by the cycle’s offside pedal guard, PC Wilson concluded that after the collision the cyclist continued in the same direction of travel for 7 feet or more, lost her balance, and fell to her right. Contact between the car and bicycle must have been minimal”.

So as long as you only collide gently with a cyclist and only cause slight damage to their bike, their death requires no more than a knuckle rap?

Whatever happened to that good old common-law principle the eggshell skull rule (en.wikipedia.org/wiki/Eggshell_skull)? So he only drove into her gently, it killed her! Why do car drivers not take their (vulnerable) victims as they find them?

Having read the full appeal report 2 things strike me:

1. The point that TC highlighte about helmets.

2. That turning slowly across the path of another slow moving vehicle such that you strike the back end of it (i.e. it was in what surely should've been your full view for a considerable time) is regarded as being at the very bottom end of careless driving. Drivers are apparently hardly culpable if they don't look where they're going. The law is truly careless about what happens to vulnerable road users. We have a society that's happy to sacrifice life for the convenience of drivers.

AlaninWales wrote:...............Whatever happened to that good old common-law principle the eggshell skull rule (en.wikipedia.org/wiki/Eggshell_skull)? So he only drove into her gently, it killed her! Why do car drivers not take their (vulnerable) victims as they find them?

Yes, that jarred with me too.

I have mailed Kenny MacAskill (Scottish Justice secretary), and Graeme Pearson (shadow Scottish Justice Sec) and my local MP about this today. Appalling.

Email addresses for the first two are:
Kenny.MacAskill.msp@scottish.parliament.uk <Kenny.MacAskill.msp@scottish.parliament.uk>
Graeme.Pearson.msp@scottish.parliament.uk <Graeme.Pearson.msp@scottish.parliament.uk>

This should not end here... It's a shameful travesty.

Ironic that you can (mis)pronounce his name "My Court"...

MartinC wrote: ............We have a society that's happy to sacrifice life for the convenience of drivers.

Sadly once again in a long list of motorists colliding with vulnerable road users,the motorist is "slapped on the wrist" yet again.
A truly sad day for justice.

I'm ashamed of Scottish justice (justice?) tonight.