HMA v CLARK MUNRO

On 1 August 2014 at Edinburgh Sheriff Court, Sheriff Crowe imposed a community payback order on Clark Munro with a direction to carry out 240 hours unpaid work and disqualified him from driving for 40 months after he admitted causing death by careless driving.

“In this case the now deceased Ian McCance was walking home in the Marchmont area of Edinburgh about 3 am on 26 January 2013 having attended a Burn’s supper and addressed the haggis in the course of the evening.

Mr McCance was in the act of crossing Marchmont Road at the pedestrian crossing when he was struck by the accused’s taxi as he was driving 3 passengers to their destination.

Mr McCance was struck by the taxi around its offside headlight and was thrown across the bonnet of the vehicle before hitting his head on the bottom offside corner of its windscreen before falling onto the roadway.

The accused stopped his taxi immediately and police and paramedics attended. Mr McCance was found to be suffering from a serious head injury and was treated at the scene where he required coronary pulmonary resuscitation. He was treated at the scene for some time before being taken to Edinburgh Royal infirmary where he died at 6 26am without recovering consciousness.

Mr McCance died as a result of a head injury occasioned by severe multiple skull fractures with an associated brain injury predominantly on the left hand side. He was also found to have a pelvic injury and a number of blunt –force injuries consistent with being caused while being a pedestrian in a road traffic collision.

Although the autopsy conformed that Mr McCance had consumed alcohol earlier in the evening, this was not a factor in the incident.

A police accident reconstruction investigation found the road to be in good order and although it was dark, lighting and visibility were good. It was dry but the road surface was damp and the temperature was 4 degrees centigrade.

The accused had been driving up Marchmont Road in a southerly direction. His taxi was found to have been in good working order and there were no defects found that could be considered to be a cause or contributory factor to the collision. By checking CCTV footage it was calculated that the taxi was travelling at between 28 and 31 miles per hour which was consistent with the 30 mph limit as it approached the locus. The pedestrian crossing is about 13 metres wid.  The analysis of CCTV footage indicated Mr McCance had been more than halfway across the crossing when he was struck by the accused’s taxi. Mr McCance had been on the pedestrian crossing for between 3½ and 4½ seconds prior to impact. Based upon these calculations the accused would have had ample time to have seen the pedestrian and to have brought his taxi to a halt to allow Mr McCance to cross the road safely. No skid marks were found on the approach to the crossing indicating the accused failed to apply full emergency braking prior to impact.

Police accident investigators concluded the accused failed to observe the presence of Mr McCance on the crossing as a result of other distractions or tiredness or inattention.

The death of Mr McCance in such sudden and violent circumstances caused his family deep trauma and substantial stress. Mr McCance was 64 years of age and ran an accountancy practice in which one of his sons worked. In the aftermath of Mr McCance’s death the firm had to be wound up with the loss of a job for one son and a source of financial support for Mr McCance’s two other sons. A flat which was a family home to some of the family members had to be given up.

The accused has a clean driving licence and no previous convictions and had operated a taxi for many years. No satisfactory explanation has been given for the failure to see and react to the presence of Mr McCance using the pedestrian crossing.  I can only infer that the accused was not keeping a proper lookout and was driving carelessly as a result of which he knocked down Mr McCance who died from his injuries shortly afterwards.

The maximum penalty for the offence charged is 5 years imprisonment. English sentencing guidelines which were published in 2008 when this offence first came into force are of assistance to the court in assessing the different levels of seriousness in what is always a grave offence. The guidelines were approved by on High Court in 2011 and were considered in the case of H M Advocate v McCourt [2013] HCJAC 108.

In this case Mr McCance’s death was due to the inattention of the accused for a few vital seconds. There were no other aggravating features such as excessive speed. I note, unlike in the McCourt case, Mr Munro has a good previous good record, however unlike that case Mr Munro had a clear view of the crossing and ample time to avoid the pedestrian using it. In terms of the guidelines I am however able to consider a community sentence as a direct alternative to a prison sentence.

I note that the plea was tendered under section 76 procedure at a stage prior to the issue of a full indictment.  Mr Smith  indicated that the accused had been anxious to have the matter dealt with as soon as possible and appears to have prompted petition proceedings in August of last year .Mr Smith was unable to advise the accused until he had full disclosure and he and his client viewed CCTV evidence which showed the deceased to have been blameless. I accept there was a period where a very early plea could not have been entertained by the Crown and it was necessary to see the police accident report which was not disclosed until April 2014. Remorse was expressed when the case called before me last time and today.  I note the effect which this case has had upon the accused’s health and circumstances but obviously Mr McCance’s family have suffered much more.  I note that the accused stopped immediately after the collision and co-operated with the authorities at all stages of procedures.

Had the matter proceeded to trial I would have imposed a community payback order with a direction to carry out 300 hours unpaid work. In view of the early plea I will restrict this element to 240 hours and allow 12 months for this work to be carried out.

I would have imposed a disqualification for a period of 55 months but similarly will restrict this to 40 months backdated to 1 July when I imposed interim disqualification. Mr Munro your driving licence will be endorsed and you will be required to sit the extended test should you wish to regain your licence after the ban has expired”.