James George Neil Against Her Majesty's Advocate
| Jurisdiction | Scotland |
| Judge | Lady Clark Of Calton,Lady Cosgrove |
| Neutral Citation | [2014] HCJAC 67 |
| Court | High Court of Justiciary |
| Published date | 08 July 2014 |
| Year | 2014 |
| Date | 08 July 2014 |
| Docket Number | HCA/2014 |
| APPEAL COURT, HIGH COURT OF JUSTICIARY
| |
|
| [2014] HCJAC 67 |
| Lady Clark of Calton Lady Cosgrove
| Appeal No: HCA/2014/1228/XC
OPINION OF THE COURT
delivered by LADY CLARK OF CALTON
in
NOTE OF APPEAL AGAINST SENTENCE
by
JAMES GEORGE NEILL
Appellant;
against
HER MAJESTY’S ADVOCATE
Respondent:
_______
|
Appellant: Whyte, Solicitor Advocate; Beltrami & Co, Glasgow
Respondent: Rodger, AD; Crown Agent
8 July 2014
History of the case
[1] The appellant was born on 17 May 1978. He appeared on petition on 9 May 2013 on two charges. The first charge narrated possession of a controlled drug namely cannabis resin, a class B drug, contrary to the Misuse of Drugs Act 1971. The second charge was in the following terms:
“on 20 August 2012 on a road or other public place, namely the A83 road from Stronachullin, Tarbet to a point approximately 0.1 miles south of Erines Cottage, Erines, Tarbert, Argyll you JAMES GEORGE NEILL did cause the death of Natasha Clark, born 22 November 1994, formerly of 29 Oakhill, Tarbert by driving a mechanically propelled vehicle, namely motor car registered number SM53 YHB dangerously and, having consumed a quantity of Cannabis Resin, drive at excessive speed on said road, whereby you lost control of said vehicle and it skidded and struck a rock or similar object which caused damage to said vehicle and injuries to passengers therein, namely Sean Rory McGregor, Sandra Petra Frew or Harvey, both c/o Police Service of Scotland, Oban and said Natasha Clark, who was so severely injured that she died at Glasgow Royal Infirmary, Glasgow on 21 August 2012: CONTRARY to the Road Traffic Act 1988, Section 1.”
[2] In due course, a trial date was set for a trial in the High Court at Paisley on 20 January 2014 on an indictment that libelled both charges. On 9 January 2014 the terms of a plea were agreed. That resulted in an accelerated diet in the High Court at Paisley on 17 January 2014 when the Crown formally accepted the appellant’s plea of not guilty to charge 1 and a guilty plea to charge 2 under deletion of the words “having consumed a quantity of Cannabis Resin”. The appellant was convicted and the advocate depute moved for sentence and tendered a notice of previous convictions. None of the previous convictions involved motoring offences. The criminal record disclosed convictions at summary level on nine occasions before the appellant was 20, typically for disorder offences. Thereafter the appellant remained conviction free for almost 15 years until a conviction on 27 August 2012 for a contravention of the Misuse of Drugs Act 1971 section 5(2) (cannabis resin) for which he was fined £70.
[3] At the accelerated diet, the advocate depute read the agreed narrative and referred to a number of productions including a map and various photographs. A “drive through” video at 40 miles per hour was played to the court. The judge in his report explained that the images supplemented the description of the locus, as given in the narrative, in that they showed a “road narrows” sign with a sign “oncoming vehicles in the middle of the road” and a further “slow” marking on the road surface slightly beyond the point where the crash happened in the appellant’s direction of travel.
Summary of the facts
[4] We take the summary of the locus description and the agreed circumstances leading up to the death of Natasha Clark and injury to the two other passengers from the detailed report of the judge which stated:
“Locus description
The locus is the A83 Lochgilphead to Campbeltown trunk road in Argyll, between Stronachullin and just south of Erines Cottage, Erines, Tarbert a distance in total of approximately five kilometres or three miles. Here, the A83 is a single carriageway with two lanes divided by white road markings. It runs generally north to south and it is subject to a 60 mph speed limit. Throughout this stretch of road there are numerous corners and rises and dips in elevation.
The collision, which is described below occurred about 0.1 miles south of Erines Cottage. At this point the road follows a long gradual left hand bend and then turns gradually to the right, rises and tightens into a right hand bend. The road narrows slightly at the approach to this right hand bend. There is a “SLOW” marking painted on the roadway at the approach to the last mentioned bend.
At the time of the incident, overhead conditions were cloudy and the road surface was slightly damp. Visibility was good and it was daylight.
Incident
On the 20 of August 2012 Natasha Clark visited her friend Sandra Harvey at her home in Tarbert. Sandra Harvey was a hair dresser and she had made an arrangement to visit a friend named Claire Bowness at the latter’s home in Stronachullin to do her hair. Sandra Harvey’s boyfriend Sean McGregor was a friend of the offender and the offender had agreed to drive Sandra Harvey and Sean McGregor to Stronachullin and back to Tarbert. At the invitation of Sandra Harvey, Natasha Clark joined them in the car. They arrived at Stronachullin at approximately 18.00 hours and left shortly before 20.00 hours.
As they left to drive back to Tarbert the offender sat in the driver’s seat with the deceased directly behind him. Sean McGregor sat in the front passenger seat with Sandra Harvey directly behind him. The deceased was wearing a seatbelt. As the offender drove off from Claire Bowness’s house he revved the car’s engine loudly, accelerated sharply and spun the wheels of the car.
There was a marked difference in the manner of the offender’s driving compared to the initial journey to Stronachullin. As the offender drove along the A83 he drove at excessive speed throughout the journey. Sandra Harvey and the deceased were being flung about from left to right on the back seat as the offender sped along the road. Sandra Harvey looked at the speedometer and saw that it was reading a speed of 110 miles per hour. Sandra Harvey saw that Natasha Clark looked frightened. Sandra Harvey held Natasha Clark’s hand and closed her eyes.
Sean McGregor also realised that the offender was driving too fast and told the offender on two occasions to slow down and stop “pushing it”. The offender continued south along the A83 and tried to cut a right hand bend but another vehicle was driving in the opposite direction to the offender and the offender was forced to return to his own side of the carriageway. Sean McGregor said to the offender, “That wiggled a bit there James slow down”. The offender ignored the witness McGregor’s pleas to slow down and he continued to drive at high speed. Sean McGregor looked at the speedometer and noted that as the car drove along the stretch of road prior to Erines Cottage the speedometer read 110 miles per hour.
As the offender drove towards the locus the witness Coll McFarlane was travelling in the opposite direction in his white transit van. The witnesses Davie Russell and Duncan Stewart were also in the van with the witness McFarlane. As the witness McFarlane drove north on the A83 he passed the spot where the collision subsequently occurred and he noticed the offender’s car coming towards him in the opposite direction. All of them were local to the area and knew the road. They all remarked about the speed of the offender’s car. Mr McFarlane and Mr Stewart estimated that the offender was travelling around 100 miles per hour. Mr Russell commented that it was...
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