Wednesday, 25 September 2013

Appeal rejected to extend "unduly lenient" sentence for driver who killed two cyclists


The Court of Criminal Appeal in Scotland has just handed down their judgment in the case of Gary McCourt v Her Majesty’s Advocate. You can read the judgment in full here.

In this case, Gary McCourt was driving westbound on Portobello Road, Edinburgh. Mrs Fyfe, was cycling eastwards on the same road. McCourt wanted to turn right into Craigentinney Avenue across Mrs Fyfe’s path. He ‘more or less stopped' to allow an eastbound bus to pass by and immediately turned right to go across the opposite carriageway. Mrs Fyfe had been cycling behind the bus and as McCourt turned into the side road he struck her bicycle towards the rear wheel. She lost balance and fell, striking her head. She died from her injuries two days later.

The case was heard by Sheriff Scott in the first instance and he ruled that Gary McCourt was guilty of driving without due care and attention and should be sentenced to 300 hours community service. He should also have a five-year driving ban with a compulsory extended re-test. Mrs Fyfe’s widower complained that the sentence was ‘beyond comprehension’ and the CTC wrote to the Lord Advocate to ask that the sentence be appealed.

There were a number of factors that the appeal court were asked to consider, the most important of which, for me, are the following:
  1. McCourt had been found guilty of causing death by reckless driving of another cyclist in 1986. This should have been an aggravating factor in determining the sentence. 
  2. Sheriff Scott said in his judgment that Mrs Fyfe not wearing a cycle helmet contributed significantly to her death. This should not have been a mitigating factor.
  3. The accident involved more than “momentary inattention”, which is what the initial court had found.
       The court was also asked to rule as to whether the driver’s remorse should have been a mitigating factor – particularly as he had maintained a plea of not guilty and fought the case to trial. McCourt had said "that he decided to go to trial not to prove that he was innocent but to ensure that the victim's family knew the truth of what had happened" which is hard to believe. However, it would have been very hard for the appeal court to overturn the judge’s subjective finding (which they did not do) and I will not dwell on that point here.

      1. EARLIER CONVICTION

McCourt had already been sentenced to 1 year in custody and was banned from driving for 10 years after having been found guilty of causing death by reckless driving in 1986. The prosecution argued that this should have been a powerful aggravating factor in determining the sentence handed down to the driver. 

The trial judge was of the view that the current case involved a low level of carelessness and as the previous case was 27 years before it should not be given a great deal of weight. However, when he killed Mrs Fyfe he had only been driving again for 8 years since regaining his licence. The judge added that if the driving had been at the more serious end of the range of carelessness he would have been able to infer that the driver had not learned his lesson and punished him more severely. The appeal court upheld his view on this.

      2. CYCLE HELMET 

Sheriff Scott was of the view that it is a matter within ‘judicial knowledge’ that in low impact, low speed collisions between vehicles and cycles, a helmet is likely to be effective in preventing serious or fatal head injury to a cyclist. He cited rule 59 of the Highway Code, which says “you should wear a cycle helmet which conforms to current regulations, is the correct size and securely fastened.”

The prosecution argued that not wearing a cycling helmet was similar to not wearing a seatbelt when in a car, which courts had already found should not be a mitigatory factor. In my view, the prosecutors ought not, without strong qualification, have compared the failure to wear seat belts with not wearing a helmet as there are many differences – not least that only one of them is enforced by the law. 

The prosecution referred to three studies / presentations as evidence that the value of cycle helmets was a matter of dispute. They also argued that there was no evidence, medical or otherwise, that the absence of a cycle helmet contributed to the death and the sheriff was wrong in mitigating the respondent's sentence on that account.

The appeal court agreed and found that the sheriff erred in treating this as a matter of judicial knowledge, which are matters which can be “immediately ascertained from sources of indisputable accuracy, or which are so notorious as to be indisputable.” The appeal judges stated that:

“there is a degree of controversy as to the efficacy of cycle helmets in preventing death. We consider that the sheriff was wrong to regard this as a matter of judicial knowledge. The view which he reached was based not on evidence but on speculation, and in this respect he fell into error. He should not have treated the fact that Mrs Fyfe was not wearing a cycle helmet at the time of the collision as a mitigatory factor.”

It is a crumb of comfort in an otherwise unfavourable judgment that the court found this in the prosecution’s favour although, frankly, it would have been a disaster if they had not. Incidentally, I would also urge any solicitors acting for injured cyclists to refer this passage to the court when arguing that cyclists should not have their damages reduced for failing to wear a cycle helmet.

3. MOMENTARY INATTENTION

The driver accepted that if he had looked he would have seen Mrs Fyfe and her death would have been avoided. There was also a red coloured cycle lane to draw people’s attention to the presence of cyclists. The prosecution argued that it was obvious that McCourt should have looked to his right after the bus had passed the junction before he began turning. As a result of these factors, I agree with the prosecution that this was not “momentary inattention” but amounted to a basic failure of driving.

I would argue that momentary inattention should refer to an error occurring when in a passive state, such as when a driver goes into the back of the vehicle in front. The driver in this case, however, was nearly stationary and was taking a positive action of turning into a side road. In taking this action he failed to check for the presence of other road users and drove into Mrs Fyfe’s bicycle.

However, the appeal court said “we cannot disagree with the sheriff's categorisation of this as a momentary inattention...the sheriff carried out a careful and detailed assessment of culpability as recommended in the Definitive Guideline, and we can detect no error in the way in which he went about this delicate task.”

As a result of the court’s findings they did not uphold the appeal and the driver’s sentence will stand. Mrs Fyfe’s widower said that “despite this bitterly disappointing outcome, at least we tried to do something about it and convince the judges that the sentence was far too lenient considering the circumstances of his past history." I commend Mrs Fyfe’s family for doing so, and they have at least ensured the court’s clarification that Sheriff Scott was incorrect finding that Mrs Fyfe not wearing a cycle helmet at the time of the collision was a mitigating factor.

In my view, there is one key factor that should have determined a higher sentence for the driver – namely that the accident was not simply caused by momentary inattention. The seriousness of the offence should then have been categorised as falling towards the higher end of the middle category. A period of 36 weeks of custody would then have been the minimum finding. Taking into consideration the previous conviction, McCourt should then have been given a permanent ban from driving, which is the only just consequence in this case.

As I discussed in my article for Lexis Nexis (see previous blog post) the Sentencing Council is shortly to undertake a review of the sentencing guidelines for prosecutors in cases of death by dangerous and careless driving. The All-Party Parliamentary Cycling Group (APPCG) inquiry in their “Get Britain Cycling” report suggested that the prosecution guidelines needed to properly distinguish between careless and dangerous driving. Their particular concern was that driving which has caused an “obvious danger” is often dealt with under the lesser offence of careless driving. I would argue that this case is a good example of this occurring, and I hope that sentencing policy will be changed to encourage the courts to give stronger sentences to better protect cyclists and other road users.

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