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Appeal rejected against "unduly lenient" sentence for driver in Audrey Fyfe caseAileen Brown and Audrey Fyfe on holiday

Appeal rejected against "unduly lenient" sentence for driver in Audrey Fyfe case

Gary McCourt, the motorist who has killed two cyclists, will be driving again within five years
by Simon_MacMichael
Wed, Sep 25, 2013 11:29
38

Gary McCourt, the Edinburgh motorist twice convicted of kiling a cyclist, will be free to drive again in less than five years' time after the Court of Appeal in Edinburgh rejected an appeal by the Crown against what it beleved was an "unduly lenient" sentence handed down to him in May for causing the death by careless driving of 75-year-old cyclist Audrey Fyfe in 2011.

National cyclists' organisation CTC, which organised a successful petition to ask Scotland's Lord Advocate to appeal the sentence imposed on 49-year-old McCourt - a five-year ban from driving plus 300 hours'  community service - says that it is "extremely disappointed" in the decision, while Mrs Fyfe's daughter Aileen Brown, pictured anbove with her mother, said that the Scottish justice system had failed cyclists.

McCourt insisted that he had merely "clipped" Mrs Fyfe's bike, while the trial judge, Sheriff James Scott, made much of the fact Mrs Fyfe - a cyclist for more than half a century, who had met her husband through their joint love of cycling - hadn't been wearing a helmet, which he believed contributed tto her death.

When McCourt was convicted in April, it emerged that he had been sentenced to a year in prison and banned for driving for ten years in 1986 for causing the death of 22-year-old student George Dalgity through reckless driving.

McCourt had pleaded not guilty to that charge, but pleaded guilty on separate charges of driving without insurance, driving without a full licence and without supervision or licence plates, leaving the scene without exchanging details or reporting the collision to the police, and failing to produce his licence afterwards.

Donald Urquhart, secretary of CTC Scotland said outside the court today: “Whilst it might be considered a success to have persuaded the Crown to lodge an  appeal against the  original sentence, the fact is that someone who has now killed two vulnerable road users with a motor vehicle will be allowed to resume driving in a relatively short time whilst the families and friends of those killed have been permanently affected by his criminal conduct. 

"The authority to drive a motor vehicle is not a right; it is a privilege that comes with the grant of a driving licence. That privilege should be withdrawn when the driving conduct of an individual falls below that which might be reasonably expected and, in particular, when other, more vulnerable road users are affected.

"In this case, two people have been killed by someone who has failed to meet even the most basic standards of driving on two separate occasions but who is still being allowed to resume driving at some point in the near future, something that must be considered a risk and to the detriment of other vulnerable road users.

"That is neither right nor acceptable in a civilised society. ”

The decision comes just weeks after the government, in its response to the Get Britain Cycling report published by the All Partty Parliamentary Cycling Group following a six-week enquiry earlier this year, said it would order a review in the new year of the investigation, prosecution and sentencing in cases where cyclists and other vulnerable road users are the victims.

That was one of the issues discussed by MPs at the Get Brtain Cycling debate in the House of Commons earlier this month.

Mrs Fyfe's daughter Aileen Brown said: “I am lost for words. There was a unanimous vote in parliament earlier this month to strengthen the enforcement of road traffic law, to ensure that driving offences - especially those resulting in death or injury - are treated sufficiently seriously      by police, prosecutors and judges.

"The police here did an admirable job for us but the Scottish  justice system appear to have had complete disregard for government policy.

"Scotland led the way in the smoking ban and minimum pricing on alcohol. The decision to allow Gary McCourt and drivers like him to drive again suggests that the judiciary are frightened to grasp the nettle and make decisions which would make our country a safer place to live."

 

Audrey Fyfe
Gary McCourt
CTC
Simon MacMichael

Simon joined road.cc as news editor in 2009 and is now the site’s community editor, acting as a link between the team producing the content and our readers. A law and languages graduate, published translator and former retail analyst, he has reported on issues as diverse as cycling-related court cases, anti-doping investigations, the latest developments in the bike industry and the sport’s biggest races. Now back in London full-time after 15 years living in Oxford and Cambridge, he loves cycling along the Thames but misses having his former riding buddy, Elodie the miniature schnauzer, in the basket in front of him.

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38 comments

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dp24 | 10 years ago
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Simon_MacMichael wrote:

And an appeal from the Court of Appeal in Edinburgh would go to the Supreme Court in London (formerly the House of Lords); at that level, decisions in Scottish cases would be binding on lower courts in England & Wales, and vice-versa.

Criminal cases in Scotland can't be appealed to the Supreme Court.

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Gkam84 replied to dp24 | 10 years ago
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dp24 wrote:
Simon_MacMichael wrote:

And an appeal from the Court of Appeal in Edinburgh would go to the Supreme Court in London (formerly the House of Lords); at that level, decisions in Scottish cases would be binding on lower courts in England & Wales, and vice-versa.

Criminal cases in Scotland can't be appealed to the Supreme Court.

Of course they can....I think you might want to check your facts out again, I'll just point you to two cases

Nat Fraser's numerous appeals and this one

http://www.heraldscotland.com/news/crime-courts/uk-supreme-court-overrul...

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Simon_MacMichael replied to dp24 | 10 years ago
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dp24 wrote:

Criminal cases in Scotland can't be appealed to the Supreme Court.

Hadn't realised that (studied law in Wales, so clearly had civil cases in mind, which do go to Supreme Court). Thanks for clarifying.

Gkam - High Court of Justiciary is highest court of criminal appeal in Scotland, except where there is human rights element (as in your example); seems to be that since Scotland not a signatory to European Convention on Human Rights, such cases have to go to Supreme Court of the UK.

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A V Lowe replied to sfichele | 10 years ago
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sfichele wrote:

The police /expert/ report doesn't add up.

"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”."

If she was travelling at a very slow 10 mph, then 7 feet means she hit the deck in less than 0.5 seconds. That is a small amount of time to describe a cyclist that has lost her balance, and fell over of her own accord. Whereas in fact the impulse from the collision means she has practically hit the deck almost immediately, and in no way tallies with the police report conclusion.

I'd not seen the investigation report and from what I read here as an engineer something seems rather flawed.

I've had a few crashes with cars in around 48 years of riding a bike. I wrote off a car once, luckily I wasn't wearing a helmet and the main impact was between my backside and the A pillar - the bike remained rideable - even after a calculated 40mph impact speed so damage is not always a clear-cut reflection of the collision speeds and outcomes.

In another T-bone incident, hardly a mark to be found on the car - bike wrecked - me badly cut ankle where my heel went through the spokes after rolling down the road with the bike just flicked enough to set off a violent rotation which fortunately could be turned in to a somersault at speed, possibly more than one roll to cover a distance of at least 5 metres from the point of impact

What I don't understand is the 'pedal guard' what is a pedal guard? It would be unlikely that the bike Audrey was riding had a chainguards so I'd conclude the officer might have meant the pedal. Now for the pedal to strike the road within 7 feet of the point of impact (? barely a bike-length) there has to be a substantial rotation of the bike from a vertical position. There will also be small marks on the bike and the car to define the height at which the contact was made. A low hit would put a substantial overturning moment in play as the CoG of rider and bike would be flicked over to the right. A higher hit would have pushed to the left. Clipping the extremity is likely to deliver a more violent flick than hitting it 'midships' both rotating in the vertical plane and in the lateral plane, depending on whether the rear of the bike was lifted or not and how the bike and rider rotated in the horizontal plane with various factors coming in to play on the forces which might act to throw the rider to the ground or up in to the air.

Indeed it would be very interesting to see the technical details for the impact and forces delivered to Audrey and the bike to figure out how just a clip of the wheel would have delivered such a result.

Avatar
dp24 replied to Gkam84 | 10 years ago
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Gkam84 wrote:

Of course they can....I think you might want to check your facts out again, I'll just point you to two cases

Nat Fraser's numerous appeals and this one

http://www.heraldscotland.com/news/crime-courts/uk-supreme-court-overrul...

The circumstances in which this is possible are extremely limited - largely, as Simon has pointed out, in relation to the ECHR (as in the Fraser case), or whether the government has acted ultra vires in respect of devolved powers.

In general there is no right of appeal to the Supreme Court, and the SC cannot review something which is purely a matter of (Scots) law. I believe the number of cases that have fit the criteria and been reviewed by the SC since devolution is about 30.

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Gkam84 replied to dp24 | 10 years ago
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dp24 wrote:

The circumstances in which this is possible are extremely limited - largely, as Simon has pointed out, in relation to the ECHR (as in the Fraser case), or whether the government has acted ultra vires in respect of devolved powers.

In general there is no right of appeal to the Supreme Court, and the SC cannot review something which is purely a matter of (Scots) law. I believe the number of cases that have fit the criteria and been reviewed by the SC since devolution is about 30.

Ah, that makes sense, I thought there were quite a number of ways to get it to the Supreme Court.

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icam1968 | 10 years ago
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http://www.bbc.co.uk/news/uk-scotland-glasgow-west-24303256

By contrast, this is what happens when you hit a motorcyclist, with previous. However, it seems that jail came far too late. It seems drivers are the only people who can be convicted, yet carry on as if nothing has happened. Surely someone could have seen this coming?

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Matt eaton | 10 years ago
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Maybe I've misread the article but it seems to suggest that this guys has killed two people with his car but the powers-that-be are happy to allow him to continue to drive on the roads, albeit after a ban of a few years.

Surely there's some mistake?

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