Interestingly, but I suppose unsurprisingly, the police specials forum post has descended into the standard ******s are a sensible procaution and would help reduce head injuries even at ~20mph discussion.
CityCyclingEdinburgh Forum » Infrastructure
Cyclist Injured - Craigentinny
(177 posts)-
Posted 10 years ago #
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The quote below sums up the mentality I think. This poster seems to be in a minority mind you. I wonder if he/she is a judge?
I'm saying he was unlucky in that the cyclist died. Many drivers have collisions due to careless or reckless driving but no one dies.
He was "unlucky" that she died. It would appear that cyclists have a responsibility to not die when someone drives their car over them. This is the impression I have always had and I have just had it confirmed.
Posted 10 years ago # -
A Crown Office spokesman said: “No decision has been reached.”
Slightly worried that they might not want to create a precedent of giving in to public pressure - but hopefully they have the courage...
Posted 10 years ago # -
Posted 10 years ago #
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Evening News @edinburghpaper 6m
Breaking news: Crown Office to appeal "unduly lenient" sentence of Gary McCourt over death of cyclist Audrey Fyfe - story soon
Posted 10 years ago # -
Posted 10 years ago #
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http://www.ctc.org.uk/news/campaign-success-mccourt-sentence-will-be-appealed
"Over 6048 CTC members, other cycling organisations’ supporters and the public wrote to the Lord Advocate in support of the appeal over the last few weeks."Posted 10 years ago # -
Good news, lets hope that a lifetime ban results
Posted 10 years ago # -
I'm sure alot of folk will have gotten this from CTC, but in case anyone hasn't they're looking for people to head along in support of Audrey Fyfe's family as Gary McCourt had a load of friends/family at the last session
Dear Try Cycle,
I'm sending you this email because you helped secure an appeal of the unduly lenient sentence given to Gary McCourt, who killed cyclist Audrey Fyfe in 2011.
During the sentencing in May of this year only two members of Audrey’s family were present, compared to a much larger contingent of McCourt’s family. As you live in, or near Edinburgh, I wondered if you are able to attend the hearing next week to provide support to the Fyfe family. Two CTC representatives will also attend.
Please only reply to this email if you are available on Tuesday 13th August to attend the hearing at the High Court in the Lawnmarket in Edinburgh. Please note that the hearing begins at 10am and could last all day.
Sign up for Road Justice updates
You currently are not subscribed to Road Justice emails and are receiving this email only because you helped by writing to the Lord Advocate.If you want to receive updates from the Road Justice campaign, please subscribe or update your preferences here. I'll only email you with the result of the hearing if you don't subscribe to hear more.
Regards,
Rhia Weston
Road Justice Coordinator
Posted 10 years ago # -
Hi,
I'm new to posting on the forum, but I met some of you at POP2. I'm going along to the court hearing on Tuesday. Anyone else going?Posted 10 years ago # -
I went to appeal today. It was quite hard to hear, and I didn't take notes, but here' a summary of what happened as far as I could tell.
The established facts of the case were that Audrey Fyfe was cycling east, and Gary McCourt was driving west on the same road, when he turned right without looking before starting to make the turn. His car hit Audrey's bike, she fell, hitting her head and later died of the injuries.
The Crown Office appealed the unduly lenient sentence of Gary McCourt on the basis that:
1. Failing to look before starting to turn right is a more serious mistake than the 'momentary inattention' that the sheriff categorised it as.
2. McCourt's previous conviction for causing death by dangerous driving was not sufficiently taken into account. Although it's about 26 years since this offence occurred, McCourt had not been driving for almost 20 of those years, and so has only shown 7 years of driving without killing someone.
Also, too much weight was given to McCourt's remorse. He denied guilt until the trial, and showed remorse after being found guilty.3. At the end of the trial, the sheriff considered the fact that Audrey Fyfe had not been wearing a cycle helmet to be a mitigating factor, as he thought that if she had been wearing one, she might not have died. He reached this conclusion despite no evidence of this being given in court. It was not discussed at all during the trial up to that point. The Crown Office argued that the scientific evidence behind helmet wearing is in dispute, and it can't be taken as read that a helmet would have helped. Previous cases in which someone who was not wearing a seatbelt has died were cited. In these cases the lack of a seatbelt was not seen as a mitigating factor.
Overall, the careless driving belongs in a more severe category, one that should have a custodial sentence. The Crown Office also argued for a lifetime driving ban in the interests of public safety.
The counter argument was then heard as follows:
A bus obscured Fyfe from McCourt's sight. When he did see her, he swerved to avoid her, clipped her back wheel, then she travelled a few yards and fell over. This is the sort of event that a helmet is designed for and it's just common sense that a helmet would have provided protection.
McCourt really is remorseful. He has not been able to work since the incident, and may have PTSD.
The poor driving in this case is much less bad than the dangerous driving in the previous conviction. It's not bad enough to be considered a pattern.
The judges' point of view.
There was much discussion around how to decide McCourt's culpability, i.e. whether 'momentary inattention' was fitting, but I couldn't tell what the outcome of this was.
The judges did not want to reconsider the element of remorse. There wasn't a lot of discussion about the previous dangerous driving conviction.
I did think that the judges took on board the argument that the helmet wearing was not allowable as a mitigating factor, and also that it could not be assumed that the evidence would have been that a helmet could have saved Fyfe's life.And now we await a verdict in writing.
Here's the EEN report: http://www.edinburghnews.scotsman.com/news/crime/judges-urged-to-jail-gary-mccourt-1-3043228
Posted 10 years ago # -
Thanks
Pretty good report with no notes.
Did there seem to be many 'supporters'?
Posted 10 years ago # -
I forgot to count, about 15 supporters I think. Most, like me, didn't wear hi-viz and helmets, so didn't look obviously like cyclists. Well, we should be able to cycle around in normal clothes and still be protected by the law...
Posted 10 years ago # -
That's good.
More than just a 'token' handful.
Posted 10 years ago # -
"A bus obscured Fyfe from McCourt's sight"
This keeps getting trotted out... With no suggestion that if your sight is obscured surely you wait until it's not obscured before a manoeuvre? And woo hoo, so he 'swerved'. A driver having to swerve due to his own lack of care isn't exactly an example of good driving. And still with this 'clipped' thing - it's totally irrelevant!
Posted 10 years ago # -
Well, the defence has got to put up a defence however inadequate it might be.
Posted 10 years ago # -
I am glad that the prosecution has asked for a lifetime ban.
Posted 10 years ago # -
@amir, I agree; add a dangerous driver to safe roads and you have dangerous roads.
Schopenhauer's law of entropy - if you put a spoonful of wine in a barrel full of sewage, you get sewage. If you put a spoonful of sewage in a barrel full of wine, you get sewage.
Posted 10 years ago # -
Appeal refused. Original sentence stands.
Posted 10 years ago # -
Is that a guess, or have you heard Insto?
My other half simply said, "I can't see it being a good outcome for cycling." Which is probably right.
Posted 10 years ago # -
summary decision
http://www.scotland-judiciary.org.uk/9/1134/HMA-v-GARY-MCCOURT
Posted 10 years ago # -
*sigh*
Posted 10 years ago # -
Just reported on Radio Scotland that the appeal was thrown out and original sentence still stands.
Colin
Posted 10 years ago # -
Disgusting.
Posted 10 years ago # -
Most of this annoys me....
"SUMMARY
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.
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.
The sheriff summarised the evidence which he heard as follows:
“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.
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”.
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.
The sheriff assessed the respondent’s remorse as genuine, and there is no material which would justify the court in interfering with that conclusion.
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.
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).
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.
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.
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.
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.
The court therefore refused the appeal"
Posted 10 years ago # -
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.
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...
Posted 10 years ago #
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