http://citycyclingedinburgh.info/bbpress/ CityCyclingEdinburgh Forum » Topic: Cyclist Injured - Craigentinny en Wed, 15 Apr 2026 04:11:47 +0000 http://citycyclingedinburgh.info/bbpress/topic.php?id=3596&page=6#post-126010 Thu, 26 Sep 2013 09:17:34 +0000 Uberuce 126010@http://citycyclingedinburgh.info/bbpress/ <p>It took me far too long to catch this:</p> <p><em>referring to the fact she carried on for 7m before 'losing her balance', which somehow distances the clipping and the actual cause of death, whereas she actually lost balance at the moment of clipping, because of the clipping, and only fell off 7m later.</em></p> <p>It sounds like a long distance, but 7 metres is the ground you cover in one second at 15.8mph.</p> <p>If I was running at full tilt, even on my knackered old knees, and you instantly took my legs out I'd hit the ground more than seven metres later. </p> http://citycyclingedinburgh.info/bbpress/topic.php?id=3596&page=6#post-125999 Thu, 26 Sep 2013 08:41:23 +0000 crowriver 125999@http://citycyclingedinburgh.info/bbpress/ <p>Also being discussed on the <a href="http://forum.ctc.org.uk/viewtopic.php?f=6&amp;t=76323">CTC Forum</a>. </p> http://citycyclingedinburgh.info/bbpress/topic.php?id=3596&page=6#post-125994 Thu, 26 Sep 2013 05:48:29 +0000 Charterhall 125994@http://citycyclingedinburgh.info/bbpress/ <p>Totally disgusted. Scotland appears to offer the least protection to cyclists of any country in Western Europe. </p> http://citycyclingedinburgh.info/bbpress/topic.php?id=3596&page=6#post-125954 Wed, 25 Sep 2013 19:31:23 +0000 Baldcyclist 125954@http://citycyclingedinburgh.info/bbpress/ <p>I must admit I am really disappointed that that his license wasn't taken away from him for life.</p> <p>With regard to a custodial sentence, and 'mitigating factors', I accept that this was an accident* and that he didn't mean to hit her, and even that he was remorseful after the event.</p> <p>But really, the fact that this person has killed 2 people with a car if nothing else must mean that this person is not capable of driving a car safely, and therefor should be banned for life.</p> <p>*another schoolboy analogy.... If this man had been working on the 4th floor on some scaffolding, and dropped his hammer, and killed someone as a result, I think it unlikely he would end up in prison, he may get sacked, have his accreditation etc taken away from him, but he wouldn't be sent to prison. Incapable doctors are another example of people who inadvertently kill and don't end up in prison. </p> http://citycyclingedinburgh.info/bbpress/topic.php?id=3596&page=6#post-125950 Wed, 25 Sep 2013 18:42:21 +0000 gibbo 125950@http://citycyclingedinburgh.info/bbpress/ <p>I think we see this differently because we experience dangerous/aggressive driving on an almost daily basis.</p> <p>Perhaps, if the judges had learned the truth about the cyclist/driver relationship by cycling around the city for a few days, the verdict would be different. </p> http://citycyclingedinburgh.info/bbpress/topic.php?id=3596&page=6#post-125934 Wed, 25 Sep 2013 14:45:33 +0000 Dunny 125934@http://citycyclingedinburgh.info/bbpress/ <p>With regard to convictions being spent, I think it depends on the level of disclosure required by an employer, not by the type of offence committed.</p> <p><a href="http://www.disclosurescotland.co.uk/what-is-disclosure/" rel="nofollow">http://www.disclosurescotland.co.uk/what-is-disclosure/</a> tells you all about it. </p> http://citycyclingedinburgh.info/bbpress/topic.php?id=3596&page=6#post-125930 Wed, 25 Sep 2013 14:24:26 +0000 crowriver 125930@http://citycyclingedinburgh.info/bbpress/ <p><em>PROTEST!</em></p> <p>Aye. Something along the lines of placards/banners with the following slogan:</p> <p>KILLING US SOFTLY</p> <p>Press release headline: "Appeal Court decides it's okay to kill cyclists as long as you do it gently." </p> http://citycyclingedinburgh.info/bbpress/topic.php?id=3596&page=6#post-125919 Wed, 25 Sep 2013 13:51:18 +0000 Wilmington's Cow 125919@http://citycyclingedinburgh.info/bbpress/ <p>"<em>Suppose we didn't distinguish between a low speed collision and a full on wipe-out, as people seem to be suggesting. </p> <p>The corollary of that is surely that if a driver left the road at 50mph in a 20 zone and mowed down a group of school kids, we'd be howling about how unfair it is that sentencing doesn't take into account the severity of the collision, since all are treated equally. No?</em>"</p> <p>I can see what you're saying Dave, but in this case if he'd broadsided Audrey there's little difference to 'just' clipping her. Yes, if he was to have handbrake turned into the turn at 60mph then there's a measurably greater culpability, but in this instance it's not the level of negligence that is leading people to complain, but rather that by 'clipping' the back wheel it's seen as less serious than if he'd gone straight into her side. The level of negligence would be identical in both cases. So you're not really comparing apples with apples in your schoolkid analogy.</p> <p>"<em>Acknowledging the difference between a low speed impact and a flat-out one, at least in principal, I'm comfortable with</em>"</p> <p>I don't think anyone at all has said it's not a principal they're not comfortable with, it's different reasoning of the sheriff and court that people have a gripe with. 'Killing her gently' isn't with refernce to the speed, but rather that the impact was described often as 'clipping' which somehow meant it wasn't as serious, as well as referring to the fact she carried on for 7m before 'losing her balance', which somehow distances the clipping and the actual cause of death, whereas she actually lost balance at the moment of clipping, because of the clipping, and only fell off 7m later.</p> <p>"<em>It will be disclosed that he's a killer to future employers</em>"</p> <p>Until the conviction is 'spent'. Not sure what that is with a motoring offence like this. Probably around 5 years?</p> <p>"<em>That's a pretty big deal (Anth may know whether or not that's an actual Precedent for the purposes of other cases?)</em>"</p> <p>Precedents aren't like statute in that it doesn't automatically apply, but the reasoning can be referred to in future cases and argued as to whether it applies. </p> http://citycyclingedinburgh.info/bbpress/topic.php?id=3596&page=6#post-125917 Wed, 25 Sep 2013 13:42:32 +0000 Wilmington's Cow 125917@http://citycyclingedinburgh.info/bbpress/ <p>"<em>@WC<br /> Isn't the decision saying that the absence of a helmet wasn't presented by the defence as a mitigating factor and neither the prosecution nor the defence presented any evidence that a helmet would or wouldn't have made a difference BUT the Sheriff took it upon himself to consider it a factor and in that he was wrong.</em>"</p> <p>Ah yes, read that completely wrongly. </p> <p>Still angry abotu the rest of it mind... </p> http://citycyclingedinburgh.info/bbpress/topic.php?id=3596&page=6#post-125915 Wed, 25 Sep 2013 13:21:15 +0000 Dave 125915@http://citycyclingedinburgh.info/bbpress/ <p>... also, vitally, the court found the Sheriff was in error when he judged that the deceased had commissioned their own death by riding bareheaded. </p> <p>That's a pretty big deal (Anth may know whether or not that's an actual Precedent for the purposes of other cases?) </p> http://citycyclingedinburgh.info/bbpress/topic.php?id=3596&page=6#post-125914 Wed, 25 Sep 2013 13:19:29 +0000 neddie 125914@http://citycyclingedinburgh.info/bbpress/ <p>PROTEST! </p> http://citycyclingedinburgh.info/bbpress/topic.php?id=3596&page=6#post-125910 Wed, 25 Sep 2013 13:13:42 +0000 Dave 125910@http://citycyclingedinburgh.info/bbpress/ <p>Suppose we didn't distinguish between a low speed collision and a full on wipe-out, as people seem to be suggesting. </p> <p>The corollary of that is surely that if a driver left the road at 50mph in a 20 zone and mowed down a group of school kids, we'd be howling about how unfair it is that sentencing doesn't take into account the severity of the collision, since all are treated equally. No?</p> <p>Acknowledging the difference between a low speed impact and a flat-out one, at least in principal, I'm comfortable with.</p> <p>This case is difficult. If the driver wasn't a multiple killer, I wouldn't be comfortable with a custodial sentence. Is it too tempting to think that people get off lightly? It will be disclosed that he's a killer to future employers / in disclosure checks and he's facing many weeks of unpaid corrective labour (just not in a jail).</p> <p>In my opinion the main disappointment is that pleading not guilty to causing a second death still doesn't lead to a custodial sentence upon conviction, and that killing multiple times doesn't result in a lifetime ban. Many of the points made by the court do seem fair to me. </p> http://citycyclingedinburgh.info/bbpress/topic.php?id=3596&page=6#post-125909 Wed, 25 Sep 2013 12:54:44 +0000 Morningsider 125909@http://citycyclingedinburgh.info/bbpress/ <p>This is outrageous. </p> <p>One matter not yet mentioned is the Appeal judge's decision to support the Sheriff's decision to accept the driver's "genuine remorse" as a mitigating factor. How can any reasonble person believe this after the driver has already killed one cyclist, than killed another and then plead not guilty - that is pretty much the definition of not showing remorse. </p> http://citycyclingedinburgh.info/bbpress/topic.php?id=3596&page=6#post-125906 Wed, 25 Sep 2013 12:36:17 +0000 Instography 125906@http://citycyclingedinburgh.info/bbpress/ <p>@WC<br /> Isn't the decision saying that the absence of a helmet wasn't presented by the defence as a mitigating factor and neither the prosecution nor the defence presented any evidence that a helmet would or wouldn't have made a difference BUT the Sheriff took it upon himself to consider it a factor and in that he was wrong. </p> http://citycyclingedinburgh.info/bbpress/topic.php?id=3596&page=6#post-125897 Wed, 25 Sep 2013 12:22:24 +0000 kaputnik 125897@http://citycyclingedinburgh.info/bbpress/ <p>I think the Scottish Legal System just invented itself a new category of motoring offence called "killing them slightly".</p> <p>It's OK if you kill someone with your car if you do it gently. Because it was "slight", and slight is nice.</p> <p>"<em>Honestly your honour, I drove my car at the deceased really gently, it was just a wee tap. It's their own fault for not being able to stay upright after being hit with a 1.5 tonne motor vehicle</em>". </p> http://citycyclingedinburgh.info/bbpress/topic.php?id=3596&page=6#post-125894 Wed, 25 Sep 2013 12:19:28 +0000 Wilmington's Cow 125894@http://citycyclingedinburgh.info/bbpress/ <p>Wellt his is at least something, "<em>The view which he reached was based not on evidence but on speculation, and in this respect he fell into error. He should not have treated the fact that Mrs Fyfe was not wearing a cycle helmet at the time of the collision as a mitigatory factor</em>" </p> http://citycyclingedinburgh.info/bbpress/topic.php?id=3596&page=6#post-125893 Wed, 25 Sep 2013 12:16:16 +0000 kaputnik 125893@http://citycyclingedinburgh.info/bbpress/ <p><em>Perhaps the most annoying thing is that the 'contact being minimal' seems to be a reason to suggest the driving wasn't really that bad </em></p> <p>Indeed.</p> <p>It doesn't matter how "carefully" you kill someone. You killed them. End of. </p> http://citycyclingedinburgh.info/bbpress/topic.php?id=3596&page=6#post-125892 Wed, 25 Sep 2013 12:16:16 +0000 Wilmington's Cow 125892@http://citycyclingedinburgh.info/bbpress/ <p>Seriously losing faith now, they state: "<em> It is to be noted that the sheriff has not recorded that it formed any part of the plea in mitigation that Mrs Fyfe was not wearing a safety helmet, nor was any evidence led as to what difference, if any, it might have made to the outcome had she been wearing a cycle helmet at the time of the accident</em>"</p> <p>But just a few paragraphs late: "<em>The sheriff then went on to consider mitigating factors. (Again, in his report to us the sheriff has directed himself to the table on page 11 of the Definitive Guideline, rather than to the table on page 15. However, again nothing turns on this in the circumstances of this case.) The sheriff concluded that only one such factor applied in this case, namely that the actions of the victim contributed to the commission of the offence. He states that he reached this conclusion because "the victim's deliberate decision not to wear a safety helmet contributed significantly to the likelihood of death resulting".</em>"</p> <p>So they say that he didn't report that the lack of a helmet was a factor, and then that the lack of the helmet had been considered as a mitigating factor (and that in two instances the sheriff had referred them to the WRONG table within the sentencing guidelines...). </p> http://citycyclingedinburgh.info/bbpress/topic.php?id=3596&page=6#post-125890 Wed, 25 Sep 2013 12:12:08 +0000 Wilmington's Cow 125890@http://citycyclingedinburgh.info/bbpress/ <p>Which is exactly what the Sheriff did it appears (full opinion online now): "<em>The respondent's relevant previous conviction was some 27 years ago, and apart from a breach of the peace in 1993 the respondent had not come before the courts since. Applying the Definitive Guideline "Causing Death by Driving" issued in July 2008 by the Sentencing Guidelines Council in England it was submitted that there were no aggravating factors and that the starting point was "Community Order, low to high</em>" </p> http://citycyclingedinburgh.info/bbpress/topic.php?id=3596&page=6#post-125888 Wed, 25 Sep 2013 12:06:25 +0000 Wilmington's Cow 125888@http://citycyclingedinburgh.info/bbpress/ <p>Interesting (from one of those hideous radt traffic law sites aimed at getting people off), it appears Scottish courts <em>can</em> follow the sentencing guidelines of Engliand if they so desire:</p> <p>"<em>The Scottish Courts are entitled to seek guidance from the Definitive Guide of the Sentencing Guidelines Council in England and Wales. It serves as a very useful tool to help identify the range of sentences appropriate to the particular circumstances of the case. Before the offence was created all offences regardless of a death being caused were prosecuted under s.3 of The Road Traffic Act, and the fact a death occurred was not a feature of the case that was often reflected in the sentence, particularly for cases involving a momentary loss of attention.<br /> Now however these offences, because of the occurrence of a death, are considered to be much more serious.<br /> In a case prosecuted before a jury the maximum sentence is 5 years imprisonment with a mandatory minimum disqualification of 12 months. The court also has the discretion to impose a condition to re-sit a driving test</em>" </p> http://citycyclingedinburgh.info/bbpress/topic.php?id=3596&page=6#post-125887 Wed, 25 Sep 2013 12:00:48 +0000 Wilmington's Cow 125887@http://citycyclingedinburgh.info/bbpress/ <p>There aren't sentencing guidelines in Scotland - I should have been clear when referring to such that I meant the legislative sentencing range. </p> http://citycyclingedinburgh.info/bbpress/topic.php?id=3596&page=6#post-125886 Wed, 25 Sep 2013 11:59:32 +0000 Wilmington's Cow 125886@http://citycyclingedinburgh.info/bbpress/ <p>Yep, those are CPS (English) sentencing guidelines. Scotland is a separate legal system. </p> http://citycyclingedinburgh.info/bbpress/topic.php?id=3596&page=6#post-125883 Wed, 25 Sep 2013 11:36:16 +0000 WickyWocky 125883@http://citycyclingedinburgh.info/bbpress/ <p>But the sentencing guidelines are for England and Wales. Why are the Scottish courts adhering to them? </p> http://citycyclingedinburgh.info/bbpress/topic.php?id=3596&page=6#post-125882 Wed, 25 Sep 2013 11:33:01 +0000 Kim 125882@http://citycyclingedinburgh.info/bbpress/ <p>Here we go again, the culture of the <a href="http://www.kimharding.net/blog/?p=1666">Sacred Driving Licence</a> is alive and well within our court system. We desperately need a review of the sentencing guidelines. </p> http://citycyclingedinburgh.info/bbpress/topic.php?id=3596&page=6#post-125881 Wed, 25 Sep 2013 11:27:37 +0000 holisticglint 125881@http://citycyclingedinburgh.info/bbpress/ <p>@WC - Unfortunately the 3rd level offence cannot carry a custodial sentence according to the CPS: </p> <p>"Sentencing range: Community order (LOW) - Community order (HIGH)"</p> <p><a href="http://www.cps.gov.uk/legal/s_to_u/sentencing_manual/causing_death_by_careless_or_inconsiderate_driving/" rel="nofollow">http://www.cps.gov.uk/legal/s_to_u/sentencing_manual/causing_death_by_careless_or_inconsiderate_driving/</a></p> <p>Maximum penalty for 1st level is still only 3 years !</p> <p>These guidelines are insane - mitigation includes not being an experienced driver or if you killed someone you know.... </p> http://citycyclingedinburgh.info/bbpress/topic.php?id=3596&page=6#post-125879 Wed, 25 Sep 2013 11:14:29 +0000 Wilmington's Cow 125879@http://citycyclingedinburgh.info/bbpress/ <p>For the most part that's absolutely correct - but the sentencing guideelines for the offence for which McCourt was convicted include much stronger penalties than that handed down. So while the government could be more robust (and brave) in this particular instance the judiciary have chosen to impose a penalty significantly lower than that whcih they could have levied, even if they did classify it in the least serious level of gravity. </p> http://citycyclingedinburgh.info/bbpress/topic.php?id=3596&page=6#post-125878 Wed, 25 Sep 2013 11:11:47 +0000 holisticglint 125878@http://citycyclingedinburgh.info/bbpress/ <p>I think this is the key issue from the summary:</p> <p>"...the respondent’s driving should be placed in the third, least serious, level of gravity (as set out in the Definitive Guideline produced by the Sentencing Council for England and Wales)."</p> <p>until the guidelines are changed to protect those of us not in protective metal cages on the road then sentences like this will continue to be handed down.</p> <p>It is the government who are responsible for this situation, not the Judiciary. </p> http://citycyclingedinburgh.info/bbpress/topic.php?id=3596&page=6#post-125877 Wed, 25 Sep 2013 11:10:43 +0000 Wilmington's Cow 125877@http://citycyclingedinburgh.info/bbpress/ <p>Oh, and five years is described as being a very long time to be without a licence.</p> <p>HE'S KILLED TWO PEOPLE! </p> http://citycyclingedinburgh.info/bbpress/topic.php?id=3596&page=5#post-125876 Wed, 25 Sep 2013 11:09:39 +0000 Wilmington's Cow 125876@http://citycyclingedinburgh.info/bbpress/ <p>Perhaps the most annoying thing is that the 'contact being minimal' seems to be a reason to suggest the driving wasn't really that bad (even if it was classified as at the worst end of 'careless') - the simple fact of the matter is HE HIT SOMEONE WITH HIS CAR WHO HE SHOULD HAVE SEEN! Doesn't matter if it's a clip of the back wheel, or full on into the side, that cyclist was a soft and squishy vulnerable road user.</p> <p>I'll bet it wouldn't be looked at in the same wishy washy light if he'd clipped a kid walking across the road at that junction (there's a pedestrian refuge) and that child had fallen, hit their head, and died. It wouldn't have been described as 'minimal' in that sense... </p> http://citycyclingedinburgh.info/bbpress/topic.php?id=3596&page=5#post-125875 Wed, 25 Sep 2013 11:06:57 +0000 Wilmington's Cow 125875@http://citycyclingedinburgh.info/bbpress/ <p>Most of this annoys me....</p> <p>"<em>SUMMARY</p> <p>On 8 April 2013, after a trial at Edinburgh Sheriff Court, a jury convicted Gary McCourt by a majority verdict of causing death by driving a motor car without due care and attention.</p> <p>The sheriff imposed a sentence which comprised a Community Payback Order with a requirement that the respondent undertake 300 hours unpaid work (being the maximum available) within a period of 12 months, disqualified him from holding and obtaining a driving licence for five years and until he passes the extended test of competence to drive, and ordered endorsement of his driving licence. The Crown appealed against this sentence as being unduly lenient. </p> <p>The sheriff summarised the evidence which he heard as follows:</p> <p>“At approximately 6:30pm on 9 August 2011 the respondent was driving a motor car westwards on Portobello Road, Edinburgh. The deceased, Mrs Audrey Fyfe, was riding a bicycle eastwards on Portobello Road. The respondent intended to turn right into Craigentinney Avenue, which joins Portobello Road on its north side. He testified that he, ‘slowed down to a crawl or stopped’ and ‘slowed down, more or less stopped’ at the junction, to allow an eastbound bus to pass by. In the course of the trial the Crown attempted to prove that no such bus passed the junction at the material time, but the evidence was inconclusive. In any event, the respondent testified that he moved off and began to turn right. His speed was approximately 5 to 10 mph. He did not think that his vehicle had made contact with the cycle or cyclist. He did not hear or feel any contact.</p> <p>PC Stephen Wilson, an accident reconstruction expert, produced a collision investigation report in which he indicated that the markings and the damage to the car and the bicycle suggested a subtle impact that caused the rider of the cycle to lose control and fall. His conclusion was that the respondent’s car struck the rear wheel and offside pannier of the bicycle. 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”.</p> <p>On sentencing, the sheriff remarked that Mrs Fyfe’s failure to wear a helmet may have contributed to her death. However, on appeal, the court observed that no evidence was led by either party as to the effect of not wearing a cycle helmet, and whether or not this may have caused or contributed to Mrs Fyfe’s death, nor were any submissions made to the sheriff by either party on this matter. It is clear from the material placed before the court at the appeal hearing that there is a degree of controversy as to the efficacy of cycle helmets in preventing death. The court considered that the sheriff was wrong to regard this as a matter of judicial knowledge. </p> <p>The sheriff assessed the respondent’s remorse as genuine, and there is no material which would justify the court in interfering with that conclusion. </p> <p>With regard to culpability, it was not disputed on behalf of the respondent that he was culpable in failing to look to his right before he began the manoeuvre of turning to his right. It was also accepted that because of his careless driving the most tragic of consequences resulted. However, in all the circumstances, the court could not disagree with the sheriff’s categorisation of this as a momentary inattention, the result of which was a low impact, low speed collision with Mrs Fyfe’s cycle. Mrs Fyfe was clearly a vulnerable road user, and the sheriff recognised this. However, the sheriff carried out a careful and detailed assessment of culpability and the court could detect no error in the way in which he went about this delicate task.</p> <p>The court could also detect no error in the reasoning which led him to the conclusion that the respondent’s driving should be placed in the third, least serious, level of gravity (as set out in the Definitive Guideline produced by the Sentencing Council for England and Wales).</p> <p>The sheriff sets out in some detail in his report to the court his approach to the previous conviction. This approach did not depend only on the fact that the previous conviction was some 27 years ago, but also took account of the quality of the respondent’s driving. The sheriff stated that had the quality of the respondent’s driving been at the more serious end of the range of carelessness, he would have been entitled to infer that the respondent had not learnt his lesson from the prior conviction, imprisonment and disqualification, but he was not able to do so. </p> <p>The court stated that it is perhaps easy to take a superficial view that by his bad driving the respondent has caused the death of two people in two road accidents over 27 years and that this required to be marked with a sentence of imprisonment. However, the sheriff has carried out the delicate and detailed sentencing exercise with considerable care and has given full reasons for the conclusion which he reached. The court must give weight to his views, particularly given that this is a case which has gone to trial and the sheriff has had the advantage of seeing and hearing all the evidence. </p> <p>Despite the sheriff’s error in treating the fact that Mrs Fyfe was not wearing a cycle helmet as a mitigatory factor, the court was unable to say that the sentence of a Community Payback Order with the maximum number of unpaid hours was unduly lenient. It did not fall outside the range of sentences which the sheriff, applying his mind to all the relevant factors, could reasonably have considered appropriate. In particular, the court could not say that, in all the circumstances of this case, the sheriff could only have reasonably considered a sentence of imprisonment to be appropriate.</p> <p>The court was unable to agree with the Crown’s submission that the period of disqualification was inadequate. This is a disqualification for a significant number of years, and even after those years have expired, the respondent will not be able to drive (if indeed he wishes to do so) until he has passed the extended test of competence. Again, the court could not say that this aspect of the sheriff’s disposal was so outwith the range available to him as to be unduly lenient.</p> <p>The court therefore refused the appeal</em>" </p>