Appeal judges urged to impose jail term and lifetime ban on driver who killed cyclist Audrey Fyfe
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."