A motorist in Scotland who says she has “no recollection” of a crash in which a cyclist was killed has been acquitted of causing death by dangerous driving after a jury returned a not proven verdict.
Jordan McDowall, aged 21 and from Erskine, had been charged with the offence following the death of cyclist Kevin Gilchrist, 51, on Greenock Road, Inchinnan, Renfrewshire on 28 July 2018, reports The Gazette.
At her trial in the High Court in Glasgow, she claimed she could not remember the collision, which happened when she veered onto the wrong side of the road and crashed into Mr Gilchrist, saying she had a “gap” in her memory.
During the trial, Paul Kearney QC, prosecuting, asked Ms McDowall, who had only been driving for seven weeks at the time of the fatal crash, “Is it not the case you were fully conscious but for whatever reason not paying attention to the road ahead?”
“No,” she replied, saying that the last thing she remembered was exiting a roundabout.
She also denied being on her mobile phone after the crash, despite eyewitness evidence to the contrary.
“If the witness is right, it means you were conscious enough and alert enough to be using your phone straight after an episode of loss of consciousness and memory,” Mr Kearney said.
“I don’t know what happened,” she replied.
The verdict of not proven is one of three available to the 15 jurors trying cases in Scottish criminal courts, the other two being guilty or not guilty. As with a not guilty verdict, one of not proven constitutes an acquittal.
It is generally considered by legal commentators as being returned in cases in which the jury believes there is culpability on the defendant’s part, but the prosecution has been unable to establish their guilt beyond reasonable doubt.
Since road.cc was established in 2008, there have been at least three other cases in which a jury has returned a verdict of not proven against a motorist accused of causing a cyclist’s death.
In 2009, van driver Nick Underdown was acquitted of causing the death by careless driving of Elspeth Kelman, who had been on an annual bike ride on Arran to commemorate her late husband.
The case was the first time a motorist had stood trial on that charge in Scotland, with the offence introduced in August of the previous year, the same month the fatal crash happened.
Lorry driver John Stewart was acquitted in 2014 of causing the death by careless driving of Andrew McNicoll in Edinburgh in in January 2012.
The trailer the driver was towing struck Mr McNicoll, causing him to crash into a parked car, sustaining fatal injuries.
The trial heard that police collision investigators had been unable to establish that the driver was to blame for the victim’s death, however.
In 2018, a jury unanimously returned a verdict of not proven on a charge of causing death by dangerous driving against a motorist who had killed cyclist Gary Christie in Kirkcaldy in November 2016.
The same jury, however, found David Gordon guilty of the lesser charge of causing death by careless driving.
52 thoughts on “Driver who claims she cannot remember fatal crash that killed cyclist walks free from court”
So an eyewitness states she
So an eyewitness states she was on the phone, she was on the wrong side of the road and hits a driver. But not proven. I wonder what evidence the jury would have needed. Edit: phone was straight after the crash. She still denied it though as it would have proven she was medically alert.Also I didn’t see anything in the report of her license been withdrawn due to having medical cause unknown blackouts. Surely no-one should be able to drive in those cases until i]the cause is known and can be treated and controlled.
Unfortunately true or not it
Unfortunately true or not it’s a reasonable defence – both shock and impact can cause memory loss. The key is proving negligent behaviour on the driver and it sounds like there was a lack of evidence to do this. Otherwise they wouldn’t have been focusing on the aftermath.
However, it seems her defence
However, it seems her defence seemed to be she had blacked out whilst driving, so was not in control of the car and not her fault for the death, not suffered from shock afterwards. Hence the refuting of the witness seeing her on her phone seconds after impact. The prosecution were trying to prove she was aware enough to instantly try to phone someone after the incident. They couldn’t so the jury returned the verdict.
Would be interesting to see
Would be interesting to see more detail – we’ve only got some points contested by the defense. As you point out it’s up to the prosecution to prove it – defense need do nothing themselves. But it seems it wasn’t contested that she was in the car and driving it before, and the car was the same one which caused the death. Seem to be witnesses for both the “before” and “after”.
Just wondering if to get a conviction it’s a question of lucking out with both competent represention and an unusual sympathetic judge / jury, or whether this is actually currently beyond our logical abilities to prove?
Or maybe we’re seeing the legal development of the dangerous driving charge? Recall “…driving falls far below the standard expected of a competent and careful driver and it would be obvious that driving in that way would be dangerous”.
Maybe if you’re not conscious you legally can’t be driving, ergo the barrier to proving this charge includes refuting every kind of “medical incident”, disproving automatism etc.? (I understand there are some limits to the latter and it’s rarely used but can be a trump card).
Frankly considering all this I’m evenmore in favour of making it harder to get squashed in the first place.
Inference is not evidence.
Inference is not evidence. Until there is presumed liability in these cases a lack of evidence means the driver is going to be acquitted.
Presumed liability is for
Presumed liability is for civil cases though not criminal.
hirsute wrote:
Beat me to it. I’m not aware of anywhere this pertains to criminal cases although I’m happy to be educated!
Secret_squirrel wrote:
(See below for presumed liability). But lack of what evidence though? The very definition of the particular offenses (dangerous and careless) is so utterly subjective it seems that this is set up to be “how long’s a piece of string”. (Imagine if we defined speeding offenses by “going above the speed a careful driver would” with no reference to speed limit signs. “Wanton and furious driving” if you will.) This is doubled because the driver is most commonly being judged by their “peers” (other drivers) but on-road cyclists are in the minority in the population.
Just as a thought experiment say this person kept showing up for the same offense and making the same plea? The same logic would seem to follow. “Isn’t it a pity that this keeps happening to you?”
Again I’d really much rather we spend energy (and money) on ensuring this doesn’t happen in the first place. Although of course continually reading these does stir up a desire to see someone held accountable. Or at least have the pause button pushed on their license for a period to reduce the risk for everyone else.
Presumed liability is for
Presumed liability is for civil not criminal cases in any jurisdiction that has it.
It would have no baring on a case like this.
I am definitely for introducing it into Scotland though.
Edit: sorry I see a couple of people were quicker off the mark than I was.
Wouldn’t hold your breath on
Wouldn’t hold your breath on that one. The current government stubbornly refuses to introduce presumed liability and has done so since coming to power. In the same way they have made no progress in ensuring vulnerable road users are safe be it through infra or the judicial system and Police Scotland are still to roll out a portal for reporting instances of shoddy driving. I’m hoping that the Greens will be strong enough to make some decent inroads in regards to sustainable travel in Scotland and not be cowtowed by the SNP. Rant over!
chrisonatrike wrote:
The Record seems to have a bit more detail than the Gazette. https://www.dailyrecord.co.uk/news/scottish-news/scots-driver-sobbed-court-couldnt-25219768
I remember this incident. The road in question is on one of my loops. This particular stretch is about half a mile long between the junction ( light controlled) and the roundabout which actually is designed well enough to stop it being used as a sling shot when coming from Bishopton. That and a kink in the exit road helps slow vehicles down after which it is pretty much as straight as a die for about a mile with the interruption of traffic lights and a traffic island.
Going by her stating she was doing approx 40 she would have blacked out for thirty seconds give or take I would imagine that would have been sufficient for the police to seize her licence pending on medical checks maybe this happened as she appears to been given an all clear medically.
Turns out she was also wearing sliders which may have had an influence on the outcome of the collision. Footwear catches one of the pedals. Reach down to fix it. Who knows?
Seems as well that the prosecution offered a DBCD but the Crown wanted the DBDD. Resulting in the car centric – (cynical am I) jury returning a not proven verdict to a young lassie starting off in life thus keeping her record untarnished. Would the result have been different with the careless driving charge or if the offender was a local NED doped up to his eyeballs. Yea I know. I’m jaded and cynical regarding the Scottish judicial system regarding driving offences.
@Rendell this particular road is rarely used by peds. If they do use it, it’s between the estate and the village the opposite direction to the crash.
Cardiologist, Stuart Hutcheon
Cardiologist, Stuart Hutcheon, earlier told jurors that before the incident, McDowall was not prone to black outs or fainted.
He agreed with a professor’s suggestion that for this to occur at the single event of the road traffic incident was “quite a coincidence”.
How did “I can’t remember after the accident what happened” equate to “know one knows at all what happened”?
Apart from hitting and killing someone whilst be in charge of a vehicle.
Why did the Police not check her phone records or her mother’s? With a dispute over the call, it would be clear whether a phone was used.
The whole thing stinks. No
The whole thing stinks. No matter what way you look at it there’s a plethora of issues that the jury appears to have pretty much disregarded. A few of my colleagues are retired police officers and they’re aghast at the outcome of this particular case.
chrisonatrike wrote:
DP.
Secret_squirrel wrote:
doesn’t change the fact the she killed him while driving on the wrong side of the road, whether she remembers or not does not change what she did or her culpability. the only defence could be a merdical episode causing the driving on the other side. Not memory loss caused by doing something that was blatently dangerous to begin with.
Secret_squirrel wrote:
Surely it is similar to the situation with providing an alibi though? Presumably the witness who allegedly saw her on her phone also saw the accident? In which case there is eye-witness testimony that she was driving the car on the wrong side of the road, hit and killed the cyclist.
In those circumstances, simply claiming not to remember and asserting you might have blacked out requires you to provide some evidence for that assertion, and not simply have a jury take your word for it … just like you have to provide evidence that you were somewhere other than the crime was committed rather than it just being accepted because you said so.
The prosecution cannot prove that she didn’t black out, and it is unreasonable to expect them to, so it is up to her to demonstrate that this could be the case, not just say so.
Also, as others have said … if the jury accepted her explanation that she wasn’t responsible for the cyclist’s death because she blacked out at the wheel, she should definitely have her licence taken away until she can demonstrate she has addressed her medical condition.
Jetmans Dad wrote:
The witness saw her on the phone immediately after the accident, doesn’t mean they saw the accident – could have been walking with their back to it and turned on hearing the impact.
What has her memory of events
What has her memory of events got to do with the reality of those events? It is not disputed that by driving on the wrong side of the road, in contravention of the Highway Code, she ran into and killed a vulnerable road user. It is entirely plausible that the trauma may have affected her memory – I don’t understand how it affects her guilt.
What is to stop anyone stonewalling “I don’t remember” as a ruse to escape justice?
Worked for Rupert Murdoch…
Worked for Rupert Murdoch…
“It is generally considered
“It is generally considered by legal commentators as being returned in cases in which the jury believes there is culpability on the defendant’s part, but the prosecution has been unable to establish their guilt beyond reasonable doubt.”
Or “we know who did it, but we don’t hang motorists round here”?
Surely though if someone is prone to unexplained lapses in consciousness at random then they’re not a suitable person to be operating motor vehicles in public? (If there had been anything medical pre-existing or diagnosed after the fact you’d bet that would appear as the defense). Note there’s no discrimination here for any particular medical condition because none was suggested.
This case should at least bring comfort to any motorists prone to thoughts along the lines of: “I scarely dare drive near cyclists these days. One could wobble all over the road and off their bike and that could see me banged up!”. Just paranoia – it’s highly unlikely that you’ll so much as be arrested, never mind in court, and if it gets that far the Shaggy defence will see you right. Oh, unless you were high / pissed / forgot to wipe your phone. For those that fall short rest assured – you could have been driving without insurance while banned but when you get out in a year or two your “rights” will soon be restored!
Did the police check her
Did the police check her phone records? She’s even got the phone in her hand walking out of court!
When there’s a murder charge and the defence claims manslaughter with diminished responsibility due to a mental health episode, they don’t just take their word for it, they have to provide medical evidence. Surely the same would apply if you claimed to have lost conciousness?
What an appalling situation.
Yet another case of a driver
Yet another case of a driver killing someone and escaping without apparent penalty. There is no doubt that she killed him, and no suggestion of any medical reason for her blackout, but she still evades punishment.
If you are in the driver’s seat of a vehicle, you are in charge of a lethal weapon, one that kills and maims many more people than are killed and injured by guns, but for the latter, if you make a mistake you are held to account, but not for the former.
The system of road law has pretty much broken down in this country, when drivers can kill and maim with impunity, and we need a complete paradigm shift to protect the vulnerable, not the powerful, starting with defining as dangerous anything which kills or injures. One MP gets killed and all hell breaks loose; hundreds of vulnerable road users slaughtered; nothing, except changing a few words in the HC.
“The trial heard that police
“The trial heard that police collision investigators had been unable to establish that the driver was to blame for the victim’s death, however.”
So i guess that Mr. Gilchrist just randomly decided it was a great day/time/evening to off himself with no assistance from Ms McDowall who was messing with her phone and driving on the wrong side of the road???
In my youth. I often made jokes about people suddenly hiccuping and dying out of the blue but this isnt a laughing matter.
I hope the judge and jury never come across a situation where a person who killed one of their loved ones gets to walk free from court without any charges being placed against them. The pain of the people who lost a friend, a brother, a loving father and a husband will be one that never heals especially when there was no real justice to find closure and close the chapter under.
my deepest thoughts and condolences to the friends and family of the deceased. I am saddened by the unfortunate circumstances of Mr. Gilchrist’s passing yet my heart burns with anger at the lack of backbone the UK justice system has when it comes to dealing with such issues.
Maybe ‘not proven’ on her
Maybe ‘not proven’ on her killing Mr Gilchrist, but surely for the safety of all other road users she should have been banned from driving anyway until the cause of this alleged blackout could be determined? I couldn’t see any reference that she had voluntarily handed in her licence…
Jut invoke the helen measures
Just invoke the helen measures defence and say it was the cyclist’s fault anyway.
hirsute wrote:
The “I was driving safely on the wrong side of the road until the cyclist moved into my line of travel” defence.
I mentioned the same thing.
I mentioned the same thing. If we take her at her word, she blacks out whilst driving and nothing medically seemed to have been shown why. So she should not be able to drive until this is resolved as it could easily happen again. As she has already caused the death of someone through it (and very relieved not to be punished for it for some reason), then surely she wouldn’t want another death on her consciense when it happens again.
AlsoSomniloquism wrote:
Sorry – I must have blacked out and missed your comment, AS 😉
Brooksby , quite right , if
Brooksby , quite right , if she blacked out as she claims surly it would be prudent to suspend her license until such time it was considered safe to let her back on the road. It is a fact , however much dismissed that cyclists are considered a irritation on the road by the motoring community and as such almost all accidents involving them must be the fault of the cyclist , after all we don’t pay the non existent road tax , that was abolished in1937 as long as the current attitude to cyclists exists we are all in real danger of being considered expendable.
Another reason to never
Another reason to never venture out without a camera. I have no idea whether or not any footoage would have proved culpability but it could have been shown to the driver over and over again to help her regain her memory of what happened.
It wouldn’t have helped Mr. Gilchrist but it may have helped other cylists especially if it was made public along with the result of the trial.
My first thought on reading
My first thought on reading the above was ‘she must have been easy on the eye’ and having now clicked on the article I can see that yes, she arguably was. Be interested to know the gender breakdown of the jury.
Other questions;
– Why the dangerous driving charge, when they prosecution clearly didn’t have sufficient evidence? A death by careless driving would have been far simpler to prove surely?
– If the accused phone usage was so pivotal, why were phone records / activity not checked and proof either way established?
– If the blackout defence was to be used, did the prosecution not have time to prepare for this? If so, why was this not more effectively challenged, or at least the premise that the defendent had a requirement to prove they had a medical condition conveyed to the jury?
I feel for the victims family.
The photo I saw shows a
The photo I saw shows a bleach blonde with phone in hand.. I know the type well and her offence demonstrates distracted driving so common today with mobile phone use; regardless, without very convincing evidence she had a medical episode, she would have never got off in Australia. I hope causing the death of someone weighs very heavily on her conscience but somehow, I doubt it.
Fortunately in neither
Fortunately in neither England nor Australia is judgment passed on the basis of choice of hair colour nor “I know the type well.”
Rendel Harris wrote:
And looking around the world we can only be grateful – and vigilant – on that front!
Absolutely nothing to do with the topic or the direction but some poetry pops into my head (on the subject of Oscar Wilde’s trial). Maybe just me: https://poets.org/poem/oh-who-young-sinner
Didn’t know that one, thanks!
Didn’t know that one, thanks!
Honestly, that comment above makes my blood boil (and I should state that like most of us I’m not at all happy about the outcome of this case) – imagine subbing “young black man” for “bleach blonde”, “The photo I saw shows a young black man with phone in hand. I know the type well.” Shameful, stupid, and shamefully stupid statement.
I’m not so sure about that…
I’m not so sure about that… I would be happy to wager that the jury would have been less favourable if it was a similarly aged, less well presented male standing in the dock.
There is an understandable (I guess) reluctance to be seen to ‘ruin’ the life of someone so young and ‘desirable’ (I use that word deliberately as a proportion of men probably do literally desire her, but many more, both male and female would desire the life she represents – young, stereotypically attractive, world at her feet etc.), and therefore jurors will struggle to remain fully impartial during the trial process
This is especially the case in motoring incidents due to the ingrained ‘that could easily be me standing there’ mindset of a significant proportion of motoring jurors.
Unless the defendent is obviously a ‘bad’un’ then a death by dangerous driving charge is always going to struggle.
Wasn’t there a court case in
Wasn’t there a court case in the US a few years ago, where a (male) college student was accused of rape* and the college and the courts didn’t exactly proceed as they ought to have. They were on record as saying that they didn’t want to ruin the young man’s future career over some bad activities lasting less than fifteen minutes.
*The woman in question was blacked out in an alleyway, IIRC, and he just did what all fine upstanding young college men do in those circumstances and decided to undress her and ‘take advantage’…
brooksby wrote:
Brock Turner. He was sentenced fro 6months, served 3. The assault was actually pretty horrific even considering the nature of those types of crime. The weak sentence was apparently cos he had a glittering future ahead of him.
If she was not on her phone
If she was not on her phone at the time of the collision, or very shortly before it, I would eat my plastic cycling hat…
As is so often pointed out
A helmet won’t protect your stomach in this case. As is often rightly pointed out. I feel queasy myself about this one.
Reminds me of this one:
Reminds me of this one:
https://www.gazette-news.co.uk/news/19381160.spinnaker-pub-crash-colchester-driver-jailed-stuart-mcclung-crash/
Xozumti suggested he may have blacked out before the crash, although no medical evidence supports that assertion.
He pleaded guilty so blacking out would be an attempt to reduce the sentence.
Unsurprisingly he was caught driving during his subsequent 2 year ban.
Regardless of the nonsense
Regardless of the nonsense defence or the fact that blacking out doesn’t affect the moral culpability. The fact this woman has walked scott free seems ludicrous!
Kill someone in a car = ah, don’t worry about it. Cars rule! Carry on.
You’re missing the point.
You’re missing the point. She walked free because whether we like it or not there was insufficient evidence to convict her.
Would you really want a legal system that operates on hearsay, assumptions and suppositions?
The jury decided that but
The jury decided that but then most of them are motorists who drive above average and you know, shit happens when you drive but hey, that’s ok.
hirsute wrote:
Thats always a possibility but in this case I doubt it due to the “Not Proven” verdict. If they really were rabid Car-ists it would have been Not Guilty. There is no way we will ever fully know unless we meet one of the barristers or jurists IRL, but the verdict suggests to me that the jury felt there was some culpability but not enough evidence to support it.
As cyclists we are always going to assume – from experience – that in cases like this the driver did something wrong and someone died as a result. However as painful as it is we also need to acknowledge that we are spectating from the sidelines with partial information.
I do not, obviously. However
I do not, obviously. However from what I can read the driver hit the cyclist whilst behind the wheel and that does not appear in doubt.
The fact no one saw it and the driver can’t remember what happened should not define culpability in this case. If a tree falls over in the woods does it make a sound? If a driver causes an accident and no one is alive to tell the tale does that mean there is no responsibility. If they can’t prove that she was neglegent, then they should at least prosecute for some other offence, not let her drive off and get on with her life.
I would like to think that the prosecution conducted a detailed look at her phone before and immeditley after the accident and I wonder why a witness who stated she was on her phone was seemingly ignored. Of course this is an internet lynch mob job on the woman, but either the facts or the journalism reported aren’t right or this is yet another seemingly terrible tragedy for which a driver walks away from. Human life simply does not seem as valued in the laws concerning driving a motor vehicle.
peted76 wrote:
That sounds dangerously close to State mandated revenge to me. Someone died so someone must be punished.
Secret_squirrel wrote:
I’m concerned about her ability to drive and not endanger people if she is subject to blackouts of which she has already had one fatal outcome. Drivers with epilepsy are not allowed to drive for IIRC 3 years after their last attack, so I would expect a similar driving ban to affect this driver, especially as one person has already lost their life.
At least not proven has a bit
At least not proven has a bit of stigma to it.
This sort of case is why
This sort of case is why cyclists need presumed liability laws..
https://bicyclingaustralia.com.au/news/safety-advocacy-is-it-time-for-presumed-liability-laws/
Nope, see comments below.
Nope, see comments below.
It would be for civil not criminal cases.
Don’t even know the deceased
Don’t even know the deceased or the family he leaves behind but the injustice of this outcome makes me feel ill.