Oh, and five years is described as being a very long time to be without a licence.
HE'S KILLED TWO PEOPLE!
CityCyclingEdinburgh Forum » Infrastructure
Cyclist Injured - Craigentinny
(177 posts)-
Posted 11 years ago #
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I think this is the key issue from the summary:
"...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)."
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.
It is the government who are responsible for this situation, not the Judiciary.
Posted 11 years ago # -
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.
Posted 11 years ago # -
@WC - Unfortunately the 3rd level offence cannot carry a custodial sentence according to the CPS:
"Sentencing range: Community order (LOW) - Community order (HIGH)"
Maximum penalty for 1st level is still only 3 years !
These guidelines are insane - mitigation includes not being an experienced driver or if you killed someone you know....
Posted 11 years ago # -
Here we go again, the culture of the Sacred Driving Licence is alive and well within our court system. We desperately need a review of the sentencing guidelines.
Posted 11 years ago # -
But the sentencing guidelines are for England and Wales. Why are the Scottish courts adhering to them?
Posted 11 years ago # -
Yep, those are CPS (English) sentencing guidelines. Scotland is a separate legal system.
Posted 11 years ago # -
There aren't sentencing guidelines in Scotland - I should have been clear when referring to such that I meant the legislative sentencing range.
Posted 11 years ago # -
Interesting (from one of those hideous radt traffic law sites aimed at getting people off), it appears Scottish courts can follow the sentencing guidelines of Engliand if they so desire:
"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.
Now however these offences, because of the occurrence of a death, are considered to be much more serious.
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"Posted 11 years ago # -
Which is exactly what the Sheriff did it appears (full opinion online now): "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"
Posted 11 years ago # -
Seriously losing faith now, they state: " 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"
But just a few paragraphs late: "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"."
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...).
Posted 11 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
Indeed.
It doesn't matter how "carefully" you kill someone. You killed them. End of.
Posted 11 years ago # -
Wellt his is at least something, "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"
Posted 11 years ago # -
I think the Scottish Legal System just invented itself a new category of motoring offence called "killing them slightly".
It's OK if you kill someone with your car if you do it gently. Because it was "slight", and slight is nice.
"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".
Posted 11 years ago # -
@WC
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.Posted 11 years ago # -
This is outrageous.
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.
Posted 11 years ago # -
Suppose we didn't distinguish between a low speed collision and a full on wipe-out, as people seem to be suggesting.
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?
Acknowledging the difference between a low speed impact and a flat-out one, at least in principal, I'm comfortable with.
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).
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.
Posted 11 years ago # -
PROTEST!
Posted 11 years ago # -
... also, vitally, the court found the Sheriff was in error when he judged that the deceased had commissioned their own death by riding bareheaded.
That's a pretty big deal (Anth may know whether or not that's an actual Precedent for the purposes of other cases?)
Posted 11 years ago # -
"@WC
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."Ah yes, read that completely wrongly.
Still angry abotu the rest of it mind...
Posted 11 years ago # -
"Suppose we didn't distinguish between a low speed collision and a full on wipe-out, as people seem to be suggesting.
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?"
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.
"Acknowledging the difference between a low speed impact and a flat-out one, at least in principal, I'm comfortable with"
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.
"It will be disclosed that he's a killer to future employers"
Until the conviction is 'spent'. Not sure what that is with a motoring offence like this. Probably around 5 years?
"That's a pretty big deal (Anth may know whether or not that's an actual Precedent for the purposes of other cases?)"
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.
Posted 11 years ago # -
PROTEST!
Aye. Something along the lines of placards/banners with the following slogan:
KILLING US SOFTLY
Press release headline: "Appeal Court decides it's okay to kill cyclists as long as you do it gently."
Posted 11 years ago # -
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.
http://www.disclosurescotland.co.uk/what-is-disclosure/ tells you all about it.
Posted 11 years ago # -
I think we see this differently because we experience dangerous/aggressive driving on an almost daily basis.
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.
Posted 11 years ago # -
I must admit I am really disappointed that that his license wasn't taken away from him for life.
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.
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.
*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.
Posted 11 years ago # -
Totally disgusted. Scotland appears to offer the least protection to cyclists of any country in Western Europe.
Posted 11 years ago # -
It took me far too long to catch this:
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.
It sounds like a long distance, but 7 metres is the ground you cover in one second at 15.8mph.
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.
Posted 11 years ago #
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