Gary Mccourt V. Her Majesty's Advocate
| Jurisdiction | Scotland |
| Judge | Lord Menzies,Lord Glennie,Lady Dorrian |
| Judgment Date | 25 September 2013 |
| Neutral Citation | [2013] HCJAC 114 |
| Date | 25 September 2013 |
| Published date | 25 September 2013 |
| Court | High Court of Justiciary |
| Docket Number | XC328/13 |
| APPEAL COURT, HIGH COURT OF JUSTICIARY | |
| [2013] HCJAC 114 | |
| Lord Menzies Lady Dorrian Lord Glennie | Appeal No: XC328/13 OPINION OF THE COURT delivered by LORD MENZIES in APPEAL UNDER THE CRIMINAL PROCEDURE (SCOTLAND) ACT 1995, SECTIONS 108 AND 110 by HER MAJESTY'S ADVOCATE Appellant; against GARY ANDREW McCOURT Respondent: _______ |
Appellant: Thomson, Solicitor General, QC AD; Crown Agent
Respondent: Kerrigan QC; Fairbairn & Co
25 September 2013
Introduction
[1] On 8 April 2013, after a trial at Edinburgh Sheriff Court, a jury convicted the respondent by a majority verdict of causing death by driving a motor car without due care and attention. The charge, of which the respondent was convicted, was in the following terms:
"on 9 August 2011 on a road or other public place, namely Portobello Road, Edinburgh at its junction with Craigentinney Avenue, Edinburgh, you GARY ANDREW MCCOURT did cause the death of Audrey Fyfe, born 14 April 1936, then residing at 22 Coillesdene Crescent, Edinburgh by driving a mechanically propelled vehicle, namely motor car registered number KY53 YSL without due care and attention or without reasonable consideration for other persons using the road or public place in that you did cause your motor car to collide with a pedal cycle, then being ridden by the said Audrey Fyfe, whereby she fell to the ground, striking her head and died on 11 August 2011 as a result of injuries sustained; CONTRARY to the Road Traffic Act 1988, Section 2B."
[2] On 3 May 2013 the sheriff proceeded to sentence the respondent. At that time he had before him a Criminal Justice Social Work Report, three victim statements, and a schedule of the respondent's previous convictions. This schedule disclosed that the respondent had been convicted in June 1986 at Edinburgh High Court of a contravention of section 1 of the Road Traffic Act 1972 (causing death by reckless driving), in respect of which he was sentenced to imprisonment for one year and disqualified from driving for ten years. Having heard the solicitor for the respondent in mitigation, 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 twelve 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 has appealed against this sentence as being unduly lenient.
The circumstances of the offence
[3] In his report to this court the trial sheriff set out the evidence about the circumstances of the collision 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. Although other eye witnesses were able to testify about the immediate aftermath, including Mrs Fyfe's fall, and although a police accident reconstruction expert drew certain inferences, the respondent was the only eye witness who was able to testify directly about the collision between his car and Mrs Fyfe's bicycle.
The respondent intended to turn right (approximately northwards) 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. I have no way of knowing whether or not the jury accepted that part of the respondent's testimony.
In any event, the respondent testified that he moved off and began to turn right:
'I turned right after the bus had passed'; 'I turned to my right as the bus went past.'
His speed was approximately 5 to 10 mph. He deponed that:
'As I started to accelerate I realised a cyclist was going across the lane, so I braked and swerved to the left.'
He did not think that his vehicle had made contact with the cycle or cyclist. He did not hear or feel any contact.
'I seen the cyclist go by me and slightly wobble and cycle on and fall over intae Craigentinney Avenue ...'
In cross-examination the respondent was asked if he had looked to his right. The following exchanges took place:
Q. Did you look to your right?
A. As I turned.
Q. Not before?
A. Not before. I was concentrating on manoeuvring in the middle of the road and watching the bus straight ahead of me.
Q. The bus was your principal focus?
A. Yes ...
Q. You only looked after you started to drive forward and to the right?
A. Yes.
Q. You agree that you didn't look before you started your manoeuvre?
A. I looked to the right, to turn right, as I was manoeuvring.
Q. Had you looked right before starting to manoeuvre you'd have been alerted to the fact that Mrs Fyfe was on a bicycle, crossing the junction? Do you agree?
A. Yes.
Q. Had you had been aware, you would not have carried out your manoeuvre?
A. No. [which I took to mean 'Yes'] ...
Q. You accept that you clipped her back wheel?
A. Yes.
Q. That caused Mrs Fyfe to wobble?
A. Yes.
Q. And ultimately she fell to the ground?
A. She cycled on, and fell.
Other witnesses spoke to Mrs Fyfe falling to her right, still astride the cycle, and to her head striking the roadway. It was obvious that she had sustained a serious head injury. She was not wearing a safety helmet. Her daughter, Mrs Linda Hamilton, deponed that Mrs Fyfe never wore a safety helmet: she liked to feel the wind in her hair.
PC Stephen Wilson, an accident reconstruction expert, produced a collision investigation report in which he opined 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 undisputed conclusion was to the effect that, by inference from damage to the car and cycle, the front offside of 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. The accused's assertion that he swerved to his left before the collision fitted with the damage and marks at the scene. His version of events (i.e. seeing the cyclist as he was turning and swerving to his left before the collision) was consistent with PC Wilson's objective findings.
In re-examination PC Wilson deponed that the respondent must have had full vision of the bicycle through the front windscreen of the car prior to the collision. The following exchange took place:
Q. Could the bus have obscured the cyclist immediately before the accused began to turn?
A. There is that possibility. If a vehicle was turning and struck the rear wheel of the bike with the front offside corner, the bike would have been travelling therefore the bike would have been in view through the front window prior to impact.
The Crown and defence entered into a lengthy joint minute of agreement, including agreement concerning the medical evidence and cause of death. The agreed medical cause of death was:
'1a Head injury
1b Road traffic collision (cyclist)'
While preparing this report I noted that paragraph 12 of the joint minute is in these terms:
'on 17 August 2011 a post mortem examination took place at the Edinburgh City Mortuary to establish Audrey Fyfe's cause of death. The examination confirmed that Audrey Fyfe died as a result of a head injury as a result of a road traffic collision in which she was struck by a vehicle while cycling.'
In fact Mrs Fyfe and the respondent's vehicle never came into contact. Clearly there is a drafting error in the joint minute that was not noticed by me or by the parties during the trial."
Mitigation
[4] The sheriff in his report sets out the plea in mitigation advanced on behalf of the respondent. The respondent's solicitor observed that the respondent was aged 49 and lived with his partner of 26 years and their teenage child. As a result of this tragic accident the respondent has become unemployed. The Criminal Justice Social Work Report was generally positive and identified the risk of reoffending as low and no imminent risk of serious harm. The respondent had expressed genuine remorse for the tragic result of his inattention and its impact on the Fyfe family. 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"
[5] 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.
The sheriff's reasoning
[6] The sheriff noted that this court had observed that it is appropriate in cases involving charges of causing death by dangerous driving or careless driving for sentencers in Scotland to have regard to the Definitive Guideline referred to above - see HM Advocate v Noche [2011] HCJAC 108 at paragraph [29]. He observed that the factor that primarily determines the starting point for sentence is the culpability of the offender, and that in determining the...
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