Scottish jury finds case against driver who killed cyclist 'not proven'

Verdict returned after judge rules comments in police report blaming motorist inadmissible

by Simon_MacMichael   November 11, 2009 news

A Scottish jury has returned a verdict of ‘not proven’ in the trial of a motorist accused of killing a cyclist while she was taking part in a charity cycling ride to commemorate her late husband.

The verdict is unique to Scots law and provides a third option where the judge or jury - depending upon which is deciding the case - are not satisfied that the prosecution has proved its case sufficiently for a conviction to be returned, but at the same time are not convinced enough of the defendant’s innocence to deliver a not guilty verdict.

Nick Underdown, a 28-year-old reporter, was charged with causing death by careless driving after he came round a bend on the Isle of Arran and ran into a group of cyclists including the victim, Elspeth Kelman, in August last year. Another member of the party, from a church in Glasgow who were taking part in an annual ride in memory of Mrs Kelman’s husband Ronald, who died of cancer in 1994, was injured in the crash.

A police report pinned the blame for the accident on Mr Underdown, but his defence counsel argued successfully that parts of the report incriminating him should not be shown to the jury.

According to BBC News, the police report said that Underdown "failed to maintain proper control of the vehicle," adding that “his actions have been careless". It also found that "there was no wrongdoing on the part of the cyclist". The jury, however, was unaware of those comments after the judge ruled those parts of the report them inadmissible.

Francis Downie, Mrs Kelman’s sister, expressed disappointment at the not proven verdict and was quoted as saying “the shocking and violent nature of her death caused us horror, anger and agitation."

5 user comments

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One thing about the Not Proven ruling is that should more evidence become available, I believe a retrial can be called for. Should some of the evidence be proved admissible then the defendant would be back in court rather quickly. I suspect an appeal might find the original judge's decision overturned, which would of course change everything.

We shall see what happens.


posted by OldRidgeback [2308 posts]
11th November 2009 - 16:38

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Hmmm, so is it 'not proven' that the poor old cyclist died then?

--- --- \_ \¬
------ (+) / (+)______ better by bike!

Mike McBeth's picture

posted by Mike McBeth [73 posts]
11th November 2009 - 16:53

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not guilty, but don't do it again as they say.

Start Cycle Commuting. Write off your car!

posted by step.doran [71 posts]
11th November 2009 - 16:54

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Be interesting to know what the point of law on which the police evidence was excluded was. I wonder if it was because the attribution of blame was based on the officer's opinion but that there was not enough evidence to back it up in fact.

Tony Farrelly's picture

posted by Tony Farrelly [4160 posts]
12th November 2009 - 8:41

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The ruling was that the case against the driver could not be proven, rather than not guilty. In other words, the jury believed the driver was guilty but that the evidence was not sufficient. I'd be curious why the judge ruled the police report inadmissible. Given that this was a fatal accident, an appeal by the family would carry some weight and there would be considerable pressure for the police evidence to be revealed. The Not Proven ruling means that this remains a live case and can be reinvestigated.


posted by OldRidgeback [2308 posts]
12th November 2009 - 9:40

1 Like