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Crown's case highlights that motorist Gary McCourt had killed before, and trial judge put too much emphasis on fact cyclist not wearing helmet...

Edinburgh’s Court of Criminal Appeal was yesterday told that the sentence imposed in May on the motorist found guilty of causing the death by careless driving of cyclist Audrey Fyfe in August 2011, was “unduly lenient,” and have been urged to ban him from driving for life and jail him for a minimum of eight months. The three judges who heard their appeal are now considering their decision.

When Gary McCourt, aged 49, was convicted at Edinburgh Sheriff Court in April, it emerged that he had previously served a prison sentence in connection with the death of 22-year-old cyclist George Dalgity in Edinburgh in 1985.

In May, McCourt was sentenced to 300 hours’ community service and banned from driving for five years in connection with Mrs Fyfe’s death. That sentence provoked outcry from her family as well as the wider cycling community and beyond.

National cyclists’ organisation CTC, which Mrs Fyfe had belonged to for more than five decades, joined her family in campaigning for the sentence to be appealed, and around 5,000 people wrote to Scotland’s Lord Advocate to urge that action be taken.

At yesterday’s appeal hearing, Solicitor General Lesley Thomson outlined the Crown’s case, saying that the trial judge, Sheriff James Scott, had been incorrect in his finding that Mrs Fyfe’s death had resulted from "momentary inattention" by McCourt, and that sentencing guidelines had not been applied correctly, reports The Scotsman.

"The sheriff erred in his assessment of the culpability of the respondent in that he attached insufficient weight to both the quality of the respondent's driving which resulted in the fatal collision and to the respondent's previous conviction for causing death by reckless driving.

Sheriff Scott was also strongly criticised for the focus he placed on the fact Mrs Fyfe was not wearing a cycle helmet, with the Solicitor General insisting he had entirely formed his own view" on the issue, with no evidence presented regarding what Ms Thomson described as an "extremely controversial and disputed" subject.

"The sheriff further erred in attaching undue weight to the evidence that the deceased was not wearing a cycling helmet at the time of the collision.

"There was no evidence, medical or otherwise that the absence of a cycle helmet contributed to the death and the sheriff erred in mitigating the respondent's sentence on that account."

The Crown also said that too little account had been taken of McCourt’s previous conviction relating to Mr Dalgity’s death.

"There is no indication how he considered the public was going to be protected from this particular driver who had killed twice," said the Solicitor General.

"In the circumstances of this case it is an inevitability because of the culpability of the driving and because of the aggravating factors," she added, calling for McCourt to receive a lifetime ban.

Herbert Kerrigan QC, representing McCourt, insisted that Sheriff Scott had acted correctly, maintaining that McCourt had been driving slowly when he “clipped” the rear wheel of Mrs Fyfe’s bike. He also said that the comments regarding the fact she was not wearing a helmet could not be criticised.

"He has applied some common sense," said Mr Kerrigan.

"The fact of the matter is she chose not to wear a safety helmet, which she was perfectly entitled to do. The sheriff has quite clearly weighed matters up with great care and concern."

The three judges who heard the appeal will now prepare a written judgment.

Lord Menzies, sitting alongside Lord Glennie and Lady Dorrian, said: "You have provided us with some food for thought. We will give our decision in writing as quickly as we can, but at a later stage."

Following the appeal hearing, Mrs Fyfe’s husband Ian said that motorists who kill innocent road users should be banned for driving for life.

"The sheriff put too much emphasis on the fact that my wife wasn't wearing a cycle helmet when it hasn't been proven that a cycle helmet would have prevented the death,” he said.

"I would like to see careless or reckless – whatever adjective you care to use –  drivers who are responsible and found guilty of killing innocent road users,
or seriously injuring innocent road users, to have a lifetime ban on driving.

"I feel that would focus the minds of careless drivers about what would happen because few people who drive want to lose their licence. That would send out the correct message.

"Whether we will be successful, 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."

Born in Scotland, Simon moved to London aged seven and now lives in the Oxfordshire Cotswolds with his miniature schnauzer, Elodie. He fell in love with cycling one Saturday morning in 1994 while living in Italy when Milan-San Remo went past his front door. A daily cycle commuter in London back before riding to work started to boom, he's been news editor at road.cc since 2009. Handily for work, he speaks French and Italian. He doesn't get to ride his Colnago as often as he'd like, and freely admits he's much more adept at cooking than fettling with bikes.

12 comments

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monty dog [460 posts] 3 years ago
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To extend the defence counsel argument will now proclaim that victims of gun crime are responsible because they weren't wearing bullet-proof vests?

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Some Fella [890 posts] 3 years ago
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Ive said it before and i'll say it again - this woman had spent a a very long life cycling without a helmet and not died.
The only issue to consider is that this moron McCourt decided to get in his car that day and ended up killing someone (again) - not what this women was wearing on her head.
Her actions should have never been called into the matter. She has been blameless all her life and she should be blameless in her own death.

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mrmo [2093 posts] 3 years ago
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monty dog wrote:

To extend the defence counsel argument will now proclaim that victims of gun crime are responsible because they weren't wearing bullet-proof vests?

Good isn't it, make the victim responsible for their own death. Absolve the driver of any crime...

If i didn't know this was true i would think i was reading a new version of Erewhon.

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swelbo [33 posts] 3 years ago
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Some Fella wrote:

Ive said it before and i'll say it again - this woman had spent a a very long life cycling without a helmet and not died.
The only issue to consider is that this moron McCourt decided to get in his car that day and ended up killing someone (again) - not what this women was wearing on her head.
Her actions should have never been called into the matter. She has been blameless all her life and she should be blameless in her own death.

+1

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Karbon Kev [688 posts] 3 years ago
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Some Fella wrote:

Ive said it before and i'll say it again - this woman had spent a a very long life cycling without a helmet and not died.
The only issue to consider is that this moron McCourt decided to get in his car that day and ended up killing someone (again) - not what this women was wearing on her head.
Her actions should have never been called into the matter. She has been blameless all her life and she should be blameless in her own death.

+2

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jollygoodvelo [1540 posts] 3 years ago
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Couldn't agree more with the comments about helmet wearing above.

However, I can't agree with the (albeit understandable) 'eye for an eye' demand of a mandatory life driving ban for a driver who kills or seriously injures a cyclist. That is hysteria and disproportionate. A long ban - say five years, to start on the driver's release from a prison sentence, with compulsory re-test to ensure the driver is re-educated - would address the need for punishment sufficiently and not excessively in my view.

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gb901 [154 posts] 3 years ago
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So the same crime in 1985 results in a prison sentence but only 300 hours community service in 2013? So much for politicians rhetoric of "hard on crime - hard on criminals"!

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zanf [869 posts] 3 years ago
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Gizmo_ wrote:

Couldn't agree more with the comments about helmet wearing above.

However, I can't agree with the (albeit understandable) 'eye for an eye' demand of a mandatory life driving ban for a driver who kills or seriously injures a cyclist. That is hysteria and disproportionate. A long ban - say five years, to start on the driver's release from a prison sentence, with compulsory re-test to ensure the driver is re-educated - would address the need for punishment sufficiently and not excessively in my view.

I'm all for driver re-testing every few years with compulsory medicals every 5 and annual eye tests.

If it really is a privilege to drive then the person should be able to demonstrate that they are medically fit and a proper driver throughout all of their driving 'career', not just for 45 minutes at the start of it.

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Ush [755 posts] 3 years ago
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Gizmo_ wrote:

I can't agree with the (albeit understandable) 'eye for an eye' demand of a mandatory life driving ban for a driver who kills or seriously injures a cyclist.

If you come at it from a point of view which considers motorised vehicles as dangerous machinery for which responsible, trained users are granted a limited operating license then banning someone that's shown twice that they can't control that machinery isn't exactly revenge or punishment. It's just a sensible precaution. In fact the standards of licensing ought to be much higher based on the number of killed and seriously injured.

A jail term: that's punishment and while I wouldn't (sitting comfortably outside of the situation and not having my mum killed) call for it, I understand where they're coming from.

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kie7077 [887 posts] 3 years ago
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zanf wrote:
Gizmo_ wrote:

Couldn't agree more with the comments about helmet wearing above.

However, I can't agree with the (albeit understandable) 'eye for an eye' demand of a mandatory life driving ban for a driver who kills or seriously injures a cyclist. That is hysteria and disproportionate. A long ban - say five years, to start on the driver's release from a prison sentence, with compulsory re-test to ensure the driver is re-educated - would address the need for punishment sufficiently and not excessively in my view.

I'm all for driver re-testing every few years with compulsory medicals every 5 and annual eye tests.

If it really is a privilege to drive then the person should be able to demonstrate that they are medically fit and a proper driver throughout all of their driving 'career', not just for 45 minutes at the start of it.

At 1st I thought this a little extreme, but I think it would go a long way towards stopping bad driving habits from setting in. I bet lots of boy racers would fail their 2nd test.

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TeamCC [146 posts] 3 years ago
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outcomes from courts like this always look so wrong, I wish they would make it clearer on how they reached this decision. It does not matter he was driving slow when he clipped her, the speed of the vehicle did not make the outcome less severe. I think he should lose his license, sentenced to some jail time, and have a much longer community service or large financial obligation to help put things right.

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jacknorell [974 posts] 3 years ago
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gb901 wrote:

So the same crime in 1985 results in a prison sentence but only 300 hours community service in 2013? So much for politicians rhetoric of "hard on crime - hard on criminals"!

It's not a crime when you only hurt/kill some poor person walking/cycling. Or so it would seem.

The judgment was a joke.